{"id":28888,"date":"2009-01-23T00:00:00","date_gmt":"2009-01-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-government-of-kerala-vs-p-k-muhammed-on-23-january-2009"},"modified":"2017-06-16T14:52:06","modified_gmt":"2017-06-16T09:22:06","slug":"the-government-of-kerala-vs-p-k-muhammed-on-23-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-government-of-kerala-vs-p-k-muhammed-on-23-january-2009","title":{"rendered":"The Government Of Kerala vs P.K. Muhammed on 23 January, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
The Government Of Kerala vs P.K. Muhammed on 23 January, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMFA.No. 67 of 2003()\n\n\n1. THE GOVERNMENT OF KERALA,\n                      ...  Petitioner\n2. CUSTODIAN OF VESTED FORESTS,\n\n                        Vs\n\n\n\n1. P.K. MUHAMMED, S\/O. PAKKAANHI\n                       ...       Respondent\n\n2. KALATHILPOYIL SUBAIDA,\n\n3. VALIYAKATHIL KUNHABDULLA,\n\n4. PAKKANHI KINATTINKARA YOOSUFF\n\n5. O. SAINABHA, W\/O. P.K. YOOSUFF,\n\n6. P.K. SALEENA, D\/O. KUNHABDULLA  HAJI,\n\n7. PAKKANHI KINATTINKARA YOOSUFF,\n\n8. O. SAINABHA, W\/O. P.K. YOOSUFF,\n\n9. V.K. ABOOBACKER, S\/O. MANNU HAJI V.K.,\n\n10. P.K. SAHIRA, D\/O. KUNHABDULLA,\n\n11. P.K. KUNHAMI, W\/O. KUNHABDULLA HAJI,\n\n12. VALIYAKATHYIL KADEESA, S\/O. MAMMU HAJI,\n\n13. VALIYAKATHIL AYISHA, W\/O. LATE MAMMU\n\n                For Petitioner  :ADDL.ADVOCATE GENERAL\n\n                For Respondent  :SRI.V.V.SURENDRAN\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice K.SURENDRA MOHAN\n\n Dated :23\/01\/2009\n\n O R D E R\n  K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ.\n                    -------------------------------\n                    M.F.A. No.67 OF 2003\n                   --------------------------------\n           Dated this the 23rd day of January, 2009\n\n                        J U D G M E N T\n<\/pre>\n
                        ~~~~~~~~~~~<\/p>\n
Balakrishnan Nair, J.\n<\/p>\n<\/p>\n
     The respondents in O.A.Nos.19\/1999 to 29\/1999 are the<\/p>\n
appellants. Those Original Applications were disposed of by the<\/p>\n
Forest Tribunal,      Kozhikode by a common order dated<\/p>\n
29.12.2001.   The respondents herein were the applicants in<\/p>\n
those Original Applications. The dispute between the parties<\/p>\n
relates to 45 acres of land in Sy.Nos.1110\/5A1 A1 C, R.S.56\/part<\/p>\n
of Muppayinad Village, Vythiri Taluk, Wayanad district.<\/p>\n
     2.   The brief facts of the case are the following.    The<\/p>\n
disputed property, according to the appellants, vests in the<\/p>\n
State Government, by virtue of the provisions of the Kerala<\/p>\n
Private Forests (Vesting and Assignment) Act, 1971 (hereinafter<\/p>\n
referred to as “the Vesting Act”). So, they surveyed the land<\/p>\n
and published a notification.       Immediately, the respondents<\/p>\n
herein moved the Forest Tribunal, by filing the above mentioned<\/p>\n
M.F.A.No.67\/2003                2<\/span><\/p>\n
Original Applications. The applicants traced their title to the<\/p>\n
property in the following manner:     The scheduled properties<\/p>\n
along    with   other   items  of  properties   were   held   by<\/p>\n
P.Padmanabhan and T.M.Raghavan as benamies of one<\/p>\n
Mr. Pottakkad Narayanan Nair. As per Ext.A40 document, they<\/p>\n
assigned the said property to the said Pottakkad Narayanan<\/p>\n
Nair. The said Narayanan Nair, as per Ext.A12, assigned 85<\/p>\n
acres of land to Sri.P.C.Jacob and Sri.V.T.John. Pursuant to the<\/p>\n
proceedings of the Taluk Land Board, 40 acres, out of the 85<\/p>\n
acres were surrendered by V.T.John, his brother V.T.Mathew and<\/p>\n
the legal heirs of P.C.Jacob. They obtained purchase certificates<\/p>\n
bearing Nos.4279\/76, 644\/1977 and 643\/1977 of          the Land<\/p>\n
Tribunal, Sulthanbathery, for the balance extent of 45 acres of<\/p>\n
land. Subsequently, the legal heirs of the above said persons<\/p>\n
assigned their rights in the property to Kalathinkal Kunhalavi<\/p>\n
and others. They in turn, assigned the properties involved in<\/p>\n
each applications to the respective applicants, as per Exts.A1 to<\/p>\n
A11.    The applicants contended that the property was never<\/p>\n
governed by the Madras Preservation of Private Forests Act,<\/p>\n
1949 (hereinafter referred to as “the Madras Act”).          The<\/p>\n
scheduled properties were cultivated by them on the appointed<\/p>\n
M.F.A.No.67\/2003                3<\/span><\/p>\n
day, that is, 10.5.1971. The property was covered by coffee and<\/p>\n
cardamom plantations on the said date.            Though the<\/p>\n
predecessors-in-interest of the applicants were cultivating the<\/p>\n
land continuously without obstruction, recently, the forest<\/p>\n
officials started causing obstruction. Therefore, the Original<\/p>\n
Applications were filed.\n<\/p>\n<\/p>\n
      3.  The appellants\/respondents resisted the applications.<\/p>\n
They submitted that the disputed property was part of a private<\/p>\n
forest, which vested in the Government under the provisions of<\/p>\n
the Vesting Act. It was surveyed, demarcated and notified on<\/p>\n
14.12.1979.     It is shown as VFC item No.22 in the said<\/p>\n
notification. The property was always governed by the Madras<\/p>\n
Act and therefore, the alienations made without the permission<\/p>\n
of the competent authority are null and void. The applicants<\/p>\n
have not referred to or produced the title deeds under which<\/p>\n
their vendors got the property. The State is not bound by the<\/p>\n
purchase certificates or the Land Board’s proceedings.     The<\/p>\n
property, on the appointed day, was never covered by coffee or<\/p>\n
cardamom plantation. On the contrary, it was covered by trees<\/p>\n
belonging to forest species like venteak, poovam, edala, ayani,<\/p>\n
M.F.A.No.67\/2003                4<\/span><\/p>\n
kalamthitta, nelli etc., aged about more than 50 years.      The<\/p>\n
respondents also contended that the applications were barred by<\/p>\n
limitation.\n<\/p>\n<\/p>\n
      4. All the Original Applications were clubbed and tried<\/p>\n
together. From the side of the applicants, P.Ws.1 and 2 were<\/p>\n
examined and Exts.A1 to A55 were marked.         From the side of<\/p>\n
the appellants\/respondents, R.Ws.1 and 2 were examined and<\/p>\n
Exts.B1 to B7 were marked.        Apart from those documents,<\/p>\n
Exts.C1 to C3 and Exts.X1 and X2 series were also marked. On<\/p>\n
the above pleadings, the Tribunal raised the following points for<\/p>\n
its consideration:\n<\/p>\n
      (1) Whether the applications are barred by limitation?<\/p>\n
      (2) Whether the property is a private forest?<\/p><\/blockquote>\n
      5. On the first point concerning limitation, the Tribunal<\/p>\n
found in favour of the applicants. The second point was also held<\/p>\n
in favour of them. The respondents in the Original Applications<\/p>\n
have preferred this M.F.A., challenging the above findings of the<\/p>\n
Tribunal. The appellants did not press the point regarding<\/p>\n
limitation before us. The learned Special Government Pleader<\/p>\n
M.F.A.No.67\/2003               5<\/span><\/p>\n
Sri.M.P.Prakash, who appeared for the appellants, attacked the<\/p>\n
second finding of the Tribunal, raising various grounds.      He<\/p>\n
submitted that the area in question was a private forest covered<\/p>\n
by the Madras Act. Therefore, the conversion as well as the<\/p>\n
alienations made by the respondents are illegal and invalid.<\/p>\n
Since the area is covered by the Madras Act, to avoid vesting<\/p>\n
under the Vesting Act,    conversion into an agricultural land<\/p>\n
should have taken place before 1949.    In this case, even if the<\/p>\n
claim of the applicants is taken to be true, all the plantations<\/p>\n
were raised after 1949 only. Therefore, the property in question<\/p>\n
will vest in the Government. The learned Special Government<\/p>\n
Pleader also submitted that the proceedings of the Land Board<\/p>\n
will not bind the appellants herein.        In support of his<\/p>\n
submissions, he relied on the recitals in Exts.A12 and A40.<\/p>\n
Special reference was made to the recital in Ext.A12, wherein it<\/p>\n
is stated that the vendor has clear felled the forest and raised<\/p>\n
the plantation. That was admittedly between 1957 and 1963.<\/p>\n
The learned Special Government Pleader also pointed out the<\/p>\n
recital in Ext.A40, which mentions about the sanction of the<\/p>\n
District Collector for carrying out improvements in the land,<\/p>\n
cutting of trees etc.  Unless the land concerned is a private<\/p>\n
M.F.A.No.67\/2003               6<\/span><\/p>\n
forest covered by the Madras Act, such a recital would not have<\/p>\n
found a place in Ext.A40, it is submitted.     In support of his<\/p>\n
submissions, the learned Special Government Pleader relied on<\/p>\n
the decisions of this Court in State of Kerala v. Moosa Haji<\/a><\/p>\n
[1984 K.L.T. 494 (FB)], State of Kerala v. Kunhiraman<\/a> [1990<\/p>\n
(1) KLT 382] and the decision of the Apex Court in State of<\/p>\n
Kerala v. Popular Estates<\/a> [(2004)12 SCC 434]. He also took us<\/p>\n
through the provisions of the Madras Act and the Vesting Act<\/p>\n
and submitted that since the scheduled properties are covered<\/p>\n
by the Madras Act and the conversion etc., were admittedly<\/p>\n
done after 1949, the property vested in the Government on the<\/p>\n
appointed day. The learned Special Government Pleader<\/p>\n
submitted that the property in question is covered by the<\/p>\n
definition of “private forest” under Section 2(f)(1)(i) of the<\/p>\n
Vesting Act. Sub-clause (B) thereof will apply, if only coffee or<\/p>\n
cardamom is cultivated with the permission of the competent<\/p>\n
authority under the Madras Act. He pointed out that going by<\/p>\n
Section 2(a) containing the definition of “forest” in the Madras<\/p>\n
Act, it includes waste or communal land containing trees, shrubs,<\/p>\n
pasture land and also land declared by the State Government to<\/p>\n
be a forest by notification. The learned Special Government<\/p>\n
M.F.A.No.67\/2003               7<\/span><\/p>\n
Pleader also    referred to the applicability of the Madras Act<\/p>\n
mentioned in Section 1(2)(i). So, the Tribunal mis-directed itself<\/p>\n
in law, while holding that the scheduled properties are       not<\/p>\n
private forests, which will vest in the Government under the<\/p>\n
Vesting Act.    If the scheduled properties in question were<\/p>\n
cardamom or coffee estate before the appointed date, there<\/p>\n
would have been registration with the Coffee Board and<\/p>\n
Cardamom Board under the Coffee Act and the erstwhile<\/p>\n
Cardamom Act respectively.      No such registration obtained<\/p>\n
before the appointed date was produced by the claimants.<\/p>\n
Therefore, the learned Special Government Pleader prayed for<\/p>\n
dismissal of the M.F.A.\n<\/p>\n<\/p>\n
      6. Sri.V.V.Surendran, learned counsel who appeared for<\/p>\n
the respondents\/applicants submitted that the area in question<\/p>\n
was never a private forest covered by the Madras Act. Though<\/p>\n
RW1 claimed that there are notifications available with them,<\/p>\n
which would show that the area in question was covered by the<\/p>\n
provisions of the Madras Act, since the said notifications were<\/p>\n
not produced, the Tribunal rightly presumed that if produced,<\/p>\n
their contents would have been adverse to the State.    Further,<\/p>\n
M.F.A.No.67\/2003               8<\/span><\/p>\n
even assuming the area in question was covered by the Madras<\/p>\n
Act, since it was covered by Coffee and Cardamom plantations<\/p>\n
on the appointed day, the provisions of the Vesting Act will not<\/p>\n
apply. There is nothing in the Vesting Act to imply that the<\/p>\n
conversion should be with the permission of the District<\/p>\n
Collector.    The wealth of materials produced, including the<\/p>\n
opinion of RW2 would convincingly prove that the entire area<\/p>\n
was covered by coffee\/cardamom plantation before the appointed<\/p>\n
day. The Commissioner has also reported that barring an area of<\/p>\n
about      5 acres, the remaining area was covered by<\/p>\n
coffee\/cardamom plantation. It means, the area was principally<\/p>\n
cultivated with those crops. The age of the plants, as stated in<\/p>\n
the Commissioner’s report, would show that they were planted<\/p>\n
before the appointed day. The appellants have not filed any<\/p>\n
objection to the Commissioner’s report. So, the contention of the<\/p>\n
learned Special Government Pleader that the land in question<\/p>\n
was a private forest under the Madras Act and other related<\/p>\n
contentions are unsustainable.\n<\/p>\n<\/p>\n
      7.    The learned counsel for the respondents further<\/p>\n
submitted that the proceedings of the Land Tribunal and that of<\/p>\n
M.F.A.No.67\/2003                  9<\/span><\/p>\n
the Land Board have become final. As per the Land Board’s<\/p>\n
award, the predecessors-in-interest of the applicants have<\/p>\n
surrendered 40 acres of land.      It was taken by the Revenue<\/p>\n
Officials and distributed to the landless agricultural workers and<\/p>\n
there is a colony of such people residing in the neighbourhood of<\/p>\n
the scheduled properties, as evident from the Commissioner’s<\/p>\n
report. There is a public road cutting through the scheduled<\/p>\n
properties, which is being used by the public. The materials on<\/p>\n
record would show unobstructed cultivation by the predecessors-<\/p>\n
in-interest of the applicants for the last several years, which<\/p>\n
dates back to the period before the appointed day. The Advocate<\/p>\n
Commissioners have reported that at the time of their visit, the<\/p>\n
area in question was a well-kept coffee estate. The Tribunal also,<\/p>\n
on inspection of the site, found that the scheduled area is a well-<\/p>\n
kept estate. If it was a forest, normally, there would have been<\/p>\n
obstruction from the side of the forest officials to convert it into<\/p>\n
such an estate.       The learned counsel for the respondents<\/p>\n
pointed out that the decision arrived at by the Tribunal is fully<\/p>\n
supported by the evidence on record and no ground has been<\/p>\n
made out, warranting interference with the same. He also relied<\/p>\n
on certain unreported decisions of this Court. We were taken<\/p>\n
M.F.A.No.67\/2003                10<\/span><\/p>\n
through the decisions of this Court in M.F.A. Nos.185\/1999 and<\/p>\n
166\/2002. The learned counsel also relied on the decision of this<\/p>\n
Court in M.F.A.No.757\/1987 and contended that in the absence<\/p>\n
of any notification produced by the appellants to show that the<\/p>\n
scheduled area is covered by the Madras Act, the claimants<\/p>\n
cannot be asked to adduce negative evidence to show that it is<\/p>\n
an area not covered by the said Act. In the absence of any<\/p>\n
material on record, the contentions of the appellants have to be<\/p>\n
rejected. The recitals in Exts.A12 and A40, relied on by the<\/p>\n
appellants would not show that the area in question was a<\/p>\n
private forest at any point of time, in terms of the provisions of<\/p>\n
the Madras Act. The finding of the Tribunal can, in no way, be<\/p>\n
described as wrong or illegal, warranting interference by this<\/p>\n
Court. The learned counsel also submitted that the proceedings<\/p>\n
of one Department of the Government cannot be ignored by<\/p>\n
another Department.      So, the proceedings of the revenue<\/p>\n
officials under the Kerala Land Reforms Act cannot be ignored<\/p>\n
by the officials of the Forest Department. The learned counsel<\/p>\n
further submitted that since the vendors of the applicants<\/p>\n
obtained patta from the Land Tribunal, it is unnecessary to refer<\/p>\n
to the documents under which they got it. They are documents<\/p>\n
M.F.A.No.67\/2003                 11<\/span><\/p>\n
transferring the verumpattom right, whereas under the patta,<\/p>\n
they obtained perfect title over the property. Therefore, it is<\/p>\n
unnecessary to refer to the earlier documents of the vendors.<\/p>\n
Further, the identity of the property adverted to by the Advocate<\/p>\n
Commissioners, is admitted by the appellants.          Before the<\/p>\n
Tribunal also the identity of the property was not disputed. Once<\/p>\n
the identity of the property is admitted, the alleged defect in the<\/p>\n
title of the applicants is of no consequence, as far as the<\/p>\n
appellants are concerned, it is submitted.\n<\/p>\n<\/p>\n
      8.    The learned counsel for the respondents took us<\/p>\n
through Section 7B of the Kerala Land Reforms Act,1963, which<\/p>\n
says that certain persons occupying private forest or unsurveyed<\/p>\n
lands shall be treated as deemed tenants for the purpose of the<\/p>\n
Act. He also brought to our notice the definition of “Owner”<\/p>\n
under Section 2(c) of the Vesting Act and also Section 3 of the<\/p>\n
said Act, which deals with vesting. Special reference was made<\/p>\n
to sub-section (2) of Section 3 which exempts private forests held<\/p>\n
by an owner under his personal cultivation, provided the extent<\/p>\n
being within the ceiling limit as provided under the Kerala Land<\/p>\n
Reforms Act.     The learned counsel concluded by saying that<\/p>\n
M.F.A.No.67\/2003                 12<\/span><\/p>\n
lands covered by coffee\/ cardamom plantation, even if, they were<\/p>\n
private forests,    are excluded from the definition of “Private<\/p>\n
forest” under Section 2(b)(1)(i)(B). Further, even if, it is private<\/p>\n
forest, to the extent permissible with reference to the ceiling<\/p>\n
limit under the Kerala Land Reforms Act, the owners are entitled<\/p>\n
to hold the same.        In this case, the Land Board, by its<\/p>\n
proceedings     allowed   the   predecessors-in-interest    of  the<\/p>\n
respondents to hold an extent of 45 acres of land. Therefore, the<\/p>\n
appeal is liable to be dismissed, it is submitted.<\/p>\n
      9.    Before dealing with the rival contentions, we will refer<\/p>\n
to certain facts, which are either admitted or proved by the<\/p>\n
evidence on record. The jenmom right of the land vests in<\/p>\n
Nilambur Kovilakom. The materials produced in this case would<\/p>\n
show that atleast from 1953, the land was in the possession of<\/p>\n
the tenants. Ext.A40 is document No.208 of 1957, executed in<\/p>\n
favour of Narayanan Nair by T.M.Raghavan, S\/o.Achuthan,<\/p>\n
Thandarathumullankandi and P.Padmanabhan, S\/o.Naniyamma.<\/p>\n
The said document would show that the assignors were the<\/p>\n
tenants of the scheduled property and they have transferred<\/p>\n
their tenancy rights under the Nilambur Kovilakom in favour of<\/p>\n
M.F.A.No.67\/2003                13<\/span><\/p>\n
the said Narayanan Nair, subject to the tenancy rights of one<\/p>\n
Mr.K.S.Varkey in relation to a portion of the scheduled property.<\/p>\n
Ext.A12 is document No.137\/1963. The said document would<\/p>\n
show that the assignors in Ext.A40 were, in fact, the benamies of<\/p>\n
Narayanan Nair. Narayanan Nair cultivated cardamom in the<\/p>\n
property and out of the properties in his possession on the<\/p>\n
strength of Ext.A40, 85 acres were assigned to M\/s.P.C.Jacob<\/p>\n
and V.T.John.     A portion of the property, of P.C.Jacob was<\/p>\n
assigned in favour of one Mr.Mathew. Later, the Land Board<\/p>\n
initiated ceiling proceedings against the legal heirs of P.C.Jacob<\/p>\n
and V.T.John and they were asked to surrender 40 acres of land<\/p>\n
as excess land. But, they were allowed to keep the remaining 45<\/p>\n
acres.   Thereafter, V.T.John, Mathew and the legal heirs of<\/p>\n
P.C.Jacob obtained purchase certificates in 1976-77 for different<\/p>\n
parcels of land, the total extent of which came to 45 acres. As<\/p>\n
mentioned earlier, they assigned this land to Kalathinkal<\/p>\n
Kunjalavi and others, who in turn assigned the same to the<\/p>\n
present applicants. We notice that the learned Special<\/p>\n
Government Pleader has raised a dispute pointing out that all<\/p>\n
the prior titles are not produced by the present applicants. But,<\/p>\n
there is no dispute regarding the identity of the property and no<\/p>\n
M.F.A.No.67\/2003                 14<\/span><\/p>\n
one else has come forward claiming that he is in possession of<\/p>\n
the disputed property. Therefore, the dispute raised by the State<\/p>\n
that the previous title deeds under which the predecessors-in-<\/p>\n
interest of the applicants got the property were not produced, is<\/p>\n
not of any substance. From the above facts, we find that the<\/p>\n
property in question was covered by tenancy arrangements long<\/p>\n
before 1.1.1964, the date on which the Land Reforms Act came<\/p>\n
into force, prohibiting creation of tenancy after the said date.<\/p>\n
      10. Another fact, which is proved by the evidence on<\/p>\n
record is that the land in question was principally covered by<\/p>\n
coffee or cardamom plantation on the appointed day, that is,<\/p>\n
10.5.1971. The Commissioner’s report and its annexure, the<\/p>\n
report of the RW2 and the deposition of the said witness will<\/p>\n
conclusively prove that at the time of inspection, the area in<\/p>\n
question was principally covered by a well maintained coffee<\/p>\n
plantation. The report of RW2 and his deposition would show<\/p>\n
that substantial portion of the area was cultivated with coffee or<\/p>\n
cardamom before 10.5.1971.\n<\/p>\n
M.F.A.No.67\/2003                  15<\/span><\/p>\n
      11. RW2 was the Deputy Director of Regional Coffee<\/p>\n
Research Station, Chundayil at the relevant time. He has Ph.D<\/p>\n
in Coffee Plant Breeding and Behaviour, from the University of<\/p>\n
Mysore. He was working as a Scientist and Plant Breeder in the<\/p>\n
Coffee Board for more than 23 years. He has deposed regarding<\/p>\n
how the age of a plant can be ascertained. The normal method is<\/p>\n
to find out the number of annual rings, which will tally with the<\/p>\n
age of the plant. But, such method is not suitable for determining<\/p>\n
the age of coffee plants. So, from his experience and expertise,<\/p>\n
he assessed the age of the plants cultivated and reported on the<\/p>\n
age of the plants cultivated in different plots of the disputed<\/p>\n
property. He has reported that coffee plants in ‘A’ plot having an<\/p>\n
extent of 13.39 acres are aged 40 years and above. The age of<\/p>\n
plants in ‘D’ plot having an extent of 14.90 acres is about 35<\/p>\n
years. The plants in ‘F’ block having an extent of 8.34 acres<\/p>\n
were aged between 30 and 40 years. Nothing has been brought<\/p>\n
out in his cross-examination to discredit his version. So, we are<\/p>\n
inclined to go by the above report dated 14.2.2001, for<\/p>\n
determining the age of the coffee plants. By relying on the said<\/p>\n
report, it can be safely concluded that the property was principally<\/p>\n
cultivated with coffee on the appointed day, that is 10.5.1971.<\/p>\n
M.F.A.No.67\/2003                  16<\/span><\/p>\n
      12. In view of the above facts, when the relevant statutory<\/p>\n
provisions are examined, we are inclined to hold that the<\/p>\n
scheduled properties are not vested in the Government by virtue<\/p>\n
of Section 3(1) of the Vesting Act. Section 2(c) defines owner as<\/p>\n
“in relation to a private forest, includes a mortgagee, lessee or<\/p>\n
other person having right to possession and enjoyment of the<\/p>\n
private forest”. Section 2(f) defines private forest as “any land to<\/p>\n
which the Madras Preservation of Private Forests Act, 1949<\/p>\n
(Madras Act XXVII of 1949) applied immediately before the<\/p>\n
appointed day, provided the land is in Malabar District          as<\/p>\n
defined under the State Reorganisation Act, 1956”. But, from<\/p>\n
the said definition, lands which are principally used for<\/p>\n
cultivation of coffee, cardamom etc. are excluded as per sub-<\/p>\n
clause(i)(B) of caluse (1) of sub-section(f) of Section 2.  Section<\/p>\n
3(1) says, notwithstanding anything contained in any other law<\/p>\n
for the time being in force, or in any contract or other document<\/p>\n
of private forest in the State of Kerala shall vest in the<\/p>\n
Government free from all encumbrances on the appointed day.<\/p>\n
Sub-section (2) thereof is an exemption to the above said sub-<\/p>\n
section (1). The private forest held by an owner under his<\/p>\n
personal cultivation, provided the area is subject to the ceiling<\/p>\n
M.F.A.No.67\/2003                  17<\/span><\/p>\n
limit under the Kerala Land Reforms Act, 1963, will not vest in<\/p>\n
the State. We also notice that Section 7D of the Kerala Land<\/p>\n
Reforms Act treats the persons in possession of private forest in<\/p>\n
Malabar as deemed tenants, subject to the conditions therein.<\/p>\n
When the above statutory provisions are read together, we have<\/p>\n
no doubt in our mind that the holdings of the predecessors-in-<\/p>\n
interest of the respondents\/applicants were exempted from the<\/p>\n
vesting provision under Section 3(1), subject to the ceiling limits<\/p>\n
provided under the K.L.R. Act. The Land Board’s proceedings,<\/p>\n
which we have mentioned earlier, allowed the predecessors-in-<\/p>\n
interest to hold only property to the extent permissible as per<\/p>\n
the ceiling limit.\n<\/p>\n
      13. In this case, we notice that none of the contentions<\/p>\n
raised by the learned Special Government Pleader before us<\/p>\n
finds a place in the appeal memorandum. The main contention,<\/p>\n
strenuously canvassed before us, was that lands to which the<\/p>\n
Madras Act applies will continue to be private forest, unless the<\/p>\n
conversion and alienation were with the permission of the<\/p>\n
District Collector under the Act. But, we cannot read any such<\/p>\n
requirement     into   the   exclusion   provision contained    in<\/p>\n
Section 2(f)(1) (i)(B)of the Vesting Act.\n<\/p>\n
M.F.A.No.67\/2003               18<\/span><\/p>\n
      14. If any private forest was found to be principally<\/p>\n
cultivated with coffee, cardamom etc., the same goes out of the<\/p>\n
purview of the private forest on the appointed day, even if, the<\/p>\n
cultivation was undertaken without the permission of the District<\/p>\n
Collector. Even assuming the contentions of the learned Special<\/p>\n
Government Pleader in this regard are acceptable, still the<\/p>\n
property held by the respondents is exempted under Section 3(2)<\/p>\n
of the Vesting Act.      So, in any view of the matter, the<\/p>\n
respondents are entitled to succeed.      The learned Special<\/p>\n
Government Pleader has strenuously contended that the State<\/p>\n
will not be bound by the decisions of the Land Tribunal or the<\/p>\n
decisions of the Land Board. It may be true, if vitiating<\/p>\n
circumstances are there. In this case, we find no such vitiating<\/p>\n
circumstance. From 1953 onwards, the land in question was<\/p>\n
under the possession of the cultivating tenants and in 1976 -77<\/p>\n
patta was obtained. Subsequently, before the grant of patta, by<\/p>\n
ceiling proceedings, they were dispossessed of 45 acres of land<\/p>\n
also. We find no vitiating circumstances in the present case,<\/p>\n
which would have enabled the appellants to collaterally attack<\/p>\n
those orders before us, when they are relied on by the<\/p>\n
respondents.\n<\/p>\n
M.F.A.No.67\/2003                 19<\/span><\/p>\n
      In view of our findings on the facts and also the<\/p>\n
applicability of the provisions mentioned above, we feel it is<\/p>\n
unnecessary to refer to the various decisions cited by both sides.<\/p>\n
In the result, the appeal fails and it is dismissed.<\/p>\n
                            (K.BALAKRISHNAN NAIR, JUDGE)<\/p>\n
                              (K.SURENDRA MOHAN, JUDGE)<\/p>\n
ps<\/p>\n
M.F.A.No.67\/2003    20<\/span><\/p>\n
                            K.BALAKRISHNAN NAIR &
\n                             K.SURENDRA MOHAN, JJ.\n<\/p>\n
                        ===========================
\n                                     M.F.A..NO.67\/2003
\n                        ===========================<\/p>\n
                                          JUDGMENT<\/p>\n
                          DATED 23RD JANURARY, 2009
\n                      ==============================<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court The Government Of Kerala vs P.K. Muhammed on 23 January, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-28888","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThe Government Of Kerala vs P.K. 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