IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 67 of 2003()
1. THE GOVERNMENT OF KERALA,
... Petitioner
2. CUSTODIAN OF VESTED FORESTS,
Vs
1. P.K. MUHAMMED, S/O. PAKKAANHI
... Respondent
2. KALATHILPOYIL SUBAIDA,
3. VALIYAKATHIL KUNHABDULLA,
4. PAKKANHI KINATTINKARA YOOSUFF
5. O. SAINABHA, W/O. P.K. YOOSUFF,
6. P.K. SALEENA, D/O. KUNHABDULLA HAJI,
7. PAKKANHI KINATTINKARA YOOSUFF,
8. O. SAINABHA, W/O. P.K. YOOSUFF,
9. V.K. ABOOBACKER, S/O. MANNU HAJI V.K.,
10. P.K. SAHIRA, D/O. KUNHABDULLA,
11. P.K. KUNHAMI, W/O. KUNHABDULLA HAJI,
12. VALIYAKATHYIL KADEESA, S/O. MAMMU HAJI,
13. VALIYAKATHIL AYISHA, W/O. LATE MAMMU
For Petitioner :ADDL.ADVOCATE GENERAL
For Respondent :SRI.V.V.SURENDRAN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :23/01/2009
O R D E R
K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ.
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M.F.A. No.67 OF 2003
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Dated this the 23rd day of January, 2009
J U D G M E N T
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Balakrishnan Nair, J.
The respondents in O.A.Nos.19/1999 to 29/1999 are the
appellants. Those Original Applications were disposed of by the
Forest Tribunal, Kozhikode by a common order dated
29.12.2001. The respondents herein were the applicants in
those Original Applications. The dispute between the parties
relates to 45 acres of land in Sy.Nos.1110/5A1 A1 C, R.S.56/part
of Muppayinad Village, Vythiri Taluk, Wayanad district.
2. The brief facts of the case are the following. The
disputed property, according to the appellants, vests in the
State Government, by virtue of the provisions of the Kerala
Private Forests (Vesting and Assignment) Act, 1971 (hereinafter
referred to as “the Vesting Act”). So, they surveyed the land
and published a notification. Immediately, the respondents
herein moved the Forest Tribunal, by filing the above mentioned
M.F.A.No.67/2003 2
Original Applications. The applicants traced their title to the
property in the following manner: The scheduled properties
along with other items of properties were held by
P.Padmanabhan and T.M.Raghavan as benamies of one
Mr. Pottakkad Narayanan Nair. As per Ext.A40 document, they
assigned the said property to the said Pottakkad Narayanan
Nair. The said Narayanan Nair, as per Ext.A12, assigned 85
acres of land to Sri.P.C.Jacob and Sri.V.T.John. Pursuant to the
proceedings of the Taluk Land Board, 40 acres, out of the 85
acres were surrendered by V.T.John, his brother V.T.Mathew and
the legal heirs of P.C.Jacob. They obtained purchase certificates
bearing Nos.4279/76, 644/1977 and 643/1977 of the Land
Tribunal, Sulthanbathery, for the balance extent of 45 acres of
land. Subsequently, the legal heirs of the above said persons
assigned their rights in the property to Kalathinkal Kunhalavi
and others. They in turn, assigned the properties involved in
each applications to the respective applicants, as per Exts.A1 to
A11. The applicants contended that the property was never
governed by the Madras Preservation of Private Forests Act,
1949 (hereinafter referred to as “the Madras Act”). The
scheduled properties were cultivated by them on the appointed
M.F.A.No.67/2003 3
day, that is, 10.5.1971. The property was covered by coffee and
cardamom plantations on the said date. Though the
predecessors-in-interest of the applicants were cultivating the
land continuously without obstruction, recently, the forest
officials started causing obstruction. Therefore, the Original
Applications were filed.
3. The appellants/respondents resisted the applications.
They submitted that the disputed property was part of a private
forest, which vested in the Government under the provisions of
the Vesting Act. It was surveyed, demarcated and notified on
14.12.1979. It is shown as VFC item No.22 in the said
notification. The property was always governed by the Madras
Act and therefore, the alienations made without the permission
of the competent authority are null and void. The applicants
have not referred to or produced the title deeds under which
their vendors got the property. The State is not bound by the
purchase certificates or the Land Board’s proceedings. The
property, on the appointed day, was never covered by coffee or
cardamom plantation. On the contrary, it was covered by trees
belonging to forest species like venteak, poovam, edala, ayani,
M.F.A.No.67/2003 4
kalamthitta, nelli etc., aged about more than 50 years. The
respondents also contended that the applications were barred by
limitation.
4. All the Original Applications were clubbed and tried
together. From the side of the applicants, P.Ws.1 and 2 were
examined and Exts.A1 to A55 were marked. From the side of
the appellants/respondents, R.Ws.1 and 2 were examined and
Exts.B1 to B7 were marked. Apart from those documents,
Exts.C1 to C3 and Exts.X1 and X2 series were also marked. On
the above pleadings, the Tribunal raised the following points for
its consideration:
(1) Whether the applications are barred by limitation?
(2) Whether the property is a private forest?
5. On the first point concerning limitation, the Tribunal
found in favour of the applicants. The second point was also held
in favour of them. The respondents in the Original Applications
have preferred this M.F.A., challenging the above findings of the
Tribunal. The appellants did not press the point regarding
limitation before us. The learned Special Government Pleader
M.F.A.No.67/2003 5
Sri.M.P.Prakash, who appeared for the appellants, attacked the
second finding of the Tribunal, raising various grounds. He
submitted that the area in question was a private forest covered
by the Madras Act. Therefore, the conversion as well as the
alienations made by the respondents are illegal and invalid.
Since the area is covered by the Madras Act, to avoid vesting
under the Vesting Act, conversion into an agricultural land
should have taken place before 1949. In this case, even if the
claim of the applicants is taken to be true, all the plantations
were raised after 1949 only. Therefore, the property in question
will vest in the Government. The learned Special Government
Pleader also submitted that the proceedings of the Land Board
will not bind the appellants herein. In support of his
submissions, he relied on the recitals in Exts.A12 and A40.
Special reference was made to the recital in Ext.A12, wherein it
is stated that the vendor has clear felled the forest and raised
the plantation. That was admittedly between 1957 and 1963.
The learned Special Government Pleader also pointed out the
recital in Ext.A40, which mentions about the sanction of the
District Collector for carrying out improvements in the land,
cutting of trees etc. Unless the land concerned is a private
M.F.A.No.67/2003 6
forest covered by the Madras Act, such a recital would not have
found a place in Ext.A40, it is submitted. In support of his
submissions, the learned Special Government Pleader relied on
the decisions of this Court in State of Kerala v. Moosa Haji
[1984 K.L.T. 494 (FB)], State of Kerala v. Kunhiraman [1990
(1) KLT 382] and the decision of the Apex Court in State of
Kerala v. Popular Estates [(2004)12 SCC 434]. He also took us
through the provisions of the Madras Act and the Vesting Act
and submitted that since the scheduled properties are covered
by the Madras Act and the conversion etc., were admittedly
done after 1949, the property vested in the Government on the
appointed day. The learned Special Government Pleader
submitted that the property in question is covered by the
definition of “private forest” under Section 2(f)(1)(i) of the
Vesting Act. Sub-clause (B) thereof will apply, if only coffee or
cardamom is cultivated with the permission of the competent
authority under the Madras Act. He pointed out that going by
Section 2(a) containing the definition of “forest” in the Madras
Act, it includes waste or communal land containing trees, shrubs,
pasture land and also land declared by the State Government to
be a forest by notification. The learned Special Government
M.F.A.No.67/2003 7
Pleader also referred to the applicability of the Madras Act
mentioned in Section 1(2)(i). So, the Tribunal mis-directed itself
in law, while holding that the scheduled properties are not
private forests, which will vest in the Government under the
Vesting Act. If the scheduled properties in question were
cardamom or coffee estate before the appointed date, there
would have been registration with the Coffee Board and
Cardamom Board under the Coffee Act and the erstwhile
Cardamom Act respectively. No such registration obtained
before the appointed date was produced by the claimants.
Therefore, the learned Special Government Pleader prayed for
dismissal of the M.F.A.
6. Sri.V.V.Surendran, learned counsel who appeared for
the respondents/applicants submitted that the area in question
was never a private forest covered by the Madras Act. Though
RW1 claimed that there are notifications available with them,
which would show that the area in question was covered by the
provisions of the Madras Act, since the said notifications were
not produced, the Tribunal rightly presumed that if produced,
their contents would have been adverse to the State. Further,
M.F.A.No.67/2003 8
even assuming the area in question was covered by the Madras
Act, since it was covered by Coffee and Cardamom plantations
on the appointed day, the provisions of the Vesting Act will not
apply. There is nothing in the Vesting Act to imply that the
conversion should be with the permission of the District
Collector. The wealth of materials produced, including the
opinion of RW2 would convincingly prove that the entire area
was covered by coffee/cardamom plantation before the appointed
day. The Commissioner has also reported that barring an area of
about 5 acres, the remaining area was covered by
coffee/cardamom plantation. It means, the area was principally
cultivated with those crops. The age of the plants, as stated in
the Commissioner’s report, would show that they were planted
before the appointed day. The appellants have not filed any
objection to the Commissioner’s report. So, the contention of the
learned Special Government Pleader that the land in question
was a private forest under the Madras Act and other related
contentions are unsustainable.
7. The learned counsel for the respondents further
submitted that the proceedings of the Land Tribunal and that of
M.F.A.No.67/2003 9
the Land Board have become final. As per the Land Board’s
award, the predecessors-in-interest of the applicants have
surrendered 40 acres of land. It was taken by the Revenue
Officials and distributed to the landless agricultural workers and
there is a colony of such people residing in the neighbourhood of
the scheduled properties, as evident from the Commissioner’s
report. There is a public road cutting through the scheduled
properties, which is being used by the public. The materials on
record would show unobstructed cultivation by the predecessors-
in-interest of the applicants for the last several years, which
dates back to the period before the appointed day. The Advocate
Commissioners have reported that at the time of their visit, the
area in question was a well-kept coffee estate. The Tribunal also,
on inspection of the site, found that the scheduled area is a well-
kept estate. If it was a forest, normally, there would have been
obstruction from the side of the forest officials to convert it into
such an estate. The learned counsel for the respondents
pointed out that the decision arrived at by the Tribunal is fully
supported by the evidence on record and no ground has been
made out, warranting interference with the same. He also relied
on certain unreported decisions of this Court. We were taken
M.F.A.No.67/2003 10
through the decisions of this Court in M.F.A. Nos.185/1999 and
166/2002. The learned counsel also relied on the decision of this
Court in M.F.A.No.757/1987 and contended that in the absence
of any notification produced by the appellants to show that the
scheduled area is covered by the Madras Act, the claimants
cannot be asked to adduce negative evidence to show that it is
an area not covered by the said Act. In the absence of any
material on record, the contentions of the appellants have to be
rejected. The recitals in Exts.A12 and A40, relied on by the
appellants would not show that the area in question was a
private forest at any point of time, in terms of the provisions of
the Madras Act. The finding of the Tribunal can, in no way, be
described as wrong or illegal, warranting interference by this
Court. The learned counsel also submitted that the proceedings
of one Department of the Government cannot be ignored by
another Department. So, the proceedings of the revenue
officials under the Kerala Land Reforms Act cannot be ignored
by the officials of the Forest Department. The learned counsel
further submitted that since the vendors of the applicants
obtained patta from the Land Tribunal, it is unnecessary to refer
to the documents under which they got it. They are documents
M.F.A.No.67/2003 11
transferring the verumpattom right, whereas under the patta,
they obtained perfect title over the property. Therefore, it is
unnecessary to refer to the earlier documents of the vendors.
Further, the identity of the property adverted to by the Advocate
Commissioners, is admitted by the appellants. Before the
Tribunal also the identity of the property was not disputed. Once
the identity of the property is admitted, the alleged defect in the
title of the applicants is of no consequence, as far as the
appellants are concerned, it is submitted.
8. The learned counsel for the respondents took us
through Section 7B of the Kerala Land Reforms Act,1963, which
says that certain persons occupying private forest or unsurveyed
lands shall be treated as deemed tenants for the purpose of the
Act. He also brought to our notice the definition of “Owner”
under Section 2(c) of the Vesting Act and also Section 3 of the
said Act, which deals with vesting. Special reference was made
to sub-section (2) of Section 3 which exempts private forests held
by an owner under his personal cultivation, provided the extent
being within the ceiling limit as provided under the Kerala Land
Reforms Act. The learned counsel concluded by saying that
M.F.A.No.67/2003 12
lands covered by coffee/ cardamom plantation, even if, they were
private forests, are excluded from the definition of “Private
forest” under Section 2(b)(1)(i)(B). Further, even if, it is private
forest, to the extent permissible with reference to the ceiling
limit under the Kerala Land Reforms Act, the owners are entitled
to hold the same. In this case, the Land Board, by its
proceedings allowed the predecessors-in-interest of the
respondents to hold an extent of 45 acres of land. Therefore, the
appeal is liable to be dismissed, it is submitted.
9. Before dealing with the rival contentions, we will refer
to certain facts, which are either admitted or proved by the
evidence on record. The jenmom right of the land vests in
Nilambur Kovilakom. The materials produced in this case would
show that atleast from 1953, the land was in the possession of
the tenants. Ext.A40 is document No.208 of 1957, executed in
favour of Narayanan Nair by T.M.Raghavan, S/o.Achuthan,
Thandarathumullankandi and P.Padmanabhan, S/o.Naniyamma.
The said document would show that the assignors were the
tenants of the scheduled property and they have transferred
their tenancy rights under the Nilambur Kovilakom in favour of
M.F.A.No.67/2003 13
the said Narayanan Nair, subject to the tenancy rights of one
Mr.K.S.Varkey in relation to a portion of the scheduled property.
Ext.A12 is document No.137/1963. The said document would
show that the assignors in Ext.A40 were, in fact, the benamies of
Narayanan Nair. Narayanan Nair cultivated cardamom in the
property and out of the properties in his possession on the
strength of Ext.A40, 85 acres were assigned to M/s.P.C.Jacob
and V.T.John. A portion of the property, of P.C.Jacob was
assigned in favour of one Mr.Mathew. Later, the Land Board
initiated ceiling proceedings against the legal heirs of P.C.Jacob
and V.T.John and they were asked to surrender 40 acres of land
as excess land. But, they were allowed to keep the remaining 45
acres. Thereafter, V.T.John, Mathew and the legal heirs of
P.C.Jacob obtained purchase certificates in 1976-77 for different
parcels of land, the total extent of which came to 45 acres. As
mentioned earlier, they assigned this land to Kalathinkal
Kunjalavi and others, who in turn assigned the same to the
present applicants. We notice that the learned Special
Government Pleader has raised a dispute pointing out that all
the prior titles are not produced by the present applicants. But,
there is no dispute regarding the identity of the property and no
M.F.A.No.67/2003 14
one else has come forward claiming that he is in possession of
the disputed property. Therefore, the dispute raised by the State
that the previous title deeds under which the predecessors-in-
interest of the applicants got the property were not produced, is
not of any substance. From the above facts, we find that the
property in question was covered by tenancy arrangements long
before 1.1.1964, the date on which the Land Reforms Act came
into force, prohibiting creation of tenancy after the said date.
10. Another fact, which is proved by the evidence on
record is that the land in question was principally covered by
coffee or cardamom plantation on the appointed day, that is,
10.5.1971. The Commissioner’s report and its annexure, the
report of the RW2 and the deposition of the said witness will
conclusively prove that at the time of inspection, the area in
question was principally covered by a well maintained coffee
plantation. The report of RW2 and his deposition would show
that substantial portion of the area was cultivated with coffee or
cardamom before 10.5.1971.
M.F.A.No.67/2003 15
11. RW2 was the Deputy Director of Regional Coffee
Research Station, Chundayil at the relevant time. He has Ph.D
in Coffee Plant Breeding and Behaviour, from the University of
Mysore. He was working as a Scientist and Plant Breeder in the
Coffee Board for more than 23 years. He has deposed regarding
how the age of a plant can be ascertained. The normal method is
to find out the number of annual rings, which will tally with the
age of the plant. But, such method is not suitable for determining
the age of coffee plants. So, from his experience and expertise,
he assessed the age of the plants cultivated and reported on the
age of the plants cultivated in different plots of the disputed
property. He has reported that coffee plants in ‘A’ plot having an
extent of 13.39 acres are aged 40 years and above. The age of
plants in ‘D’ plot having an extent of 14.90 acres is about 35
years. The plants in ‘F’ block having an extent of 8.34 acres
were aged between 30 and 40 years. Nothing has been brought
out in his cross-examination to discredit his version. So, we are
inclined to go by the above report dated 14.2.2001, for
determining the age of the coffee plants. By relying on the said
report, it can be safely concluded that the property was principally
cultivated with coffee on the appointed day, that is 10.5.1971.
M.F.A.No.67/2003 16
12. In view of the above facts, when the relevant statutory
provisions are examined, we are inclined to hold that the
scheduled properties are not vested in the Government by virtue
of Section 3(1) of the Vesting Act. Section 2(c) defines owner as
“in relation to a private forest, includes a mortgagee, lessee or
other person having right to possession and enjoyment of the
private forest”. Section 2(f) defines private forest as “any land to
which the Madras Preservation of Private Forests Act, 1949
(Madras Act XXVII of 1949) applied immediately before the
appointed day, provided the land is in Malabar District as
defined under the State Reorganisation Act, 1956”. But, from
the said definition, lands which are principally used for
cultivation of coffee, cardamom etc. are excluded as per sub-
clause(i)(B) of caluse (1) of sub-section(f) of Section 2. Section
3(1) says, notwithstanding anything contained in any other law
for the time being in force, or in any contract or other document
of private forest in the State of Kerala shall vest in the
Government free from all encumbrances on the appointed day.
Sub-section (2) thereof is an exemption to the above said sub-
section (1). The private forest held by an owner under his
personal cultivation, provided the area is subject to the ceiling
M.F.A.No.67/2003 17
limit under the Kerala Land Reforms Act, 1963, will not vest in
the State. We also notice that Section 7D of the Kerala Land
Reforms Act treats the persons in possession of private forest in
Malabar as deemed tenants, subject to the conditions therein.
When the above statutory provisions are read together, we have
no doubt in our mind that the holdings of the predecessors-in-
interest of the respondents/applicants were exempted from the
vesting provision under Section 3(1), subject to the ceiling limits
provided under the K.L.R. Act. The Land Board’s proceedings,
which we have mentioned earlier, allowed the predecessors-in-
interest to hold only property to the extent permissible as per
the ceiling limit.
13. In this case, we notice that none of the contentions
raised by the learned Special Government Pleader before us
finds a place in the appeal memorandum. The main contention,
strenuously canvassed before us, was that lands to which the
Madras Act applies will continue to be private forest, unless the
conversion and alienation were with the permission of the
District Collector under the Act. But, we cannot read any such
requirement into the exclusion provision contained in
Section 2(f)(1) (i)(B)of the Vesting Act.
M.F.A.No.67/2003 18
14. If any private forest was found to be principally
cultivated with coffee, cardamom etc., the same goes out of the
purview of the private forest on the appointed day, even if, the
cultivation was undertaken without the permission of the District
Collector. Even assuming the contentions of the learned Special
Government Pleader in this regard are acceptable, still the
property held by the respondents is exempted under Section 3(2)
of the Vesting Act. So, in any view of the matter, the
respondents are entitled to succeed. The learned Special
Government Pleader has strenuously contended that the State
will not be bound by the decisions of the Land Tribunal or the
decisions of the Land Board. It may be true, if vitiating
circumstances are there. In this case, we find no such vitiating
circumstance. From 1953 onwards, the land in question was
under the possession of the cultivating tenants and in 1976 -77
patta was obtained. Subsequently, before the grant of patta, by
ceiling proceedings, they were dispossessed of 45 acres of land
also. We find no vitiating circumstances in the present case,
which would have enabled the appellants to collaterally attack
those orders before us, when they are relied on by the
respondents.
M.F.A.No.67/2003 19
In view of our findings on the facts and also the
applicability of the provisions mentioned above, we feel it is
unnecessary to refer to the various decisions cited by both sides.
In the result, the appeal fails and it is dismissed.
(K.BALAKRISHNAN NAIR, JUDGE)
(K.SURENDRA MOHAN, JUDGE)
ps
M.F.A.No.67/2003 20
K.BALAKRISHNAN NAIR &
K.SURENDRA MOHAN, JJ.
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M.F.A..NO.67/2003
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JUDGMENT
DATED 23RD JANURARY, 2009
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