State Of Kerala vs Jameela
2023 Latest Caselaw 17 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                   &
               THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
        FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
                      MFA (FOREST) NO. 162 OF 2012
   AGAINST THE ORDER/JUDGMENT IN OA 10/2008 OF FOREST TRIBUNAL,
                              KOZHIKODE
PETITIONERS:

    1       STATE OF KERALA
            REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA,
            THIRUVANANTHAPURAM.
    2       CUSTODIAN OF VESTED FORESTRS
            OLAVAKKODE, PALAKKAD DISTRICT.
            BY SRI. NAGARAJ NARAYANAN, SR.GOVT.PLEADER (FOREST)


RESPONDENTS:

            JAMEELA
            D/O. KUNHAYISHA, KARANICHALIL, P.O.LAKKIDI, THALIPUZHA
            VILLAGE, WAYANAD-679301.
            BY ADV SRI.JACOB SEBASTIAN


OTHER PRESENT:

            DIVYA.R.NAIR



     THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 06.01.2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MFA(Forest) No.162/2012
                                     2




             K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
                   -------------------------------------------
                    MFA(Forest) No.162 of 2012
                   -------------------------------------------
                   Dated this 06th January, 2023

                               JUDGMENT

Vinod Chandran, J

The State is in appeal from the order of the Forest Tribunal

declaring 2 acres of land, in Sy.No.326/1B2 of Kunnathidavaka Village in

Vythiri Taluk of Wayanad District, as not a private forest. The learned

Special Government Pleader Sri. Nagaraj Narayanan argues that the

Tribunal misdirected itself in finding the scheduled land to be not a

private forest. There was no consideration as to whether the scheduled

land comes within the definition of S.2(f)(1) and merely on the basis of

Commissioner's report and the trees noted therein found the land to be

excluded from the definition of private forest. In fact such exclusion can

only be under clause (A) to (D) of S.2(f)(1)(i) of the Kerala Private Forest

(Vesting and Assignment) Act, 1971 (for brevity 'the Vesting Act'). Ms.

Divya R Nair, learned Counsel appearing for the respondent sought to

uphold the order. It is pointed out that the total extent of vested property

is said to be 26.25 hectares which falls short of 100 acres as required

under S.5 of the Madras Preservation of Private Forests Act, 1949 (For MFA(Forest) No.162/2012

brevity 'the MPPF Act'). Even if the property is one covered under S.2(f)

(1)(ii) then the Commissioner's report clearly indicates entitlement to

exemption under S.3(2). It is argued that the predecessor-in-interest of

the applicant had been in possession of the land from 1958 as a lessee

and then as an assignee all of which have been proved by documents. It is

also pointed out that the predecessor-in-interest, the father of the

applicant also had obtained purchase certificate under the Kerala Land

Reforms Act which is conclusive proof of exemption under the Vesting

Act.

2. The scheduled property belongs to Alliyil Tharavad and

the father of the applicant is said to have obtained leasehold right over

the property in 1958. The ownership of the property which was with

Alliyil Nair and the possession having been obtained on lease is very

evident from Ext.A2, the assignment deed executed by Alliyil Nair in

favour of Moideen, father of applicant. Ext.A1, extract of the basic tax

register also indicated Alliyil Nair as the owner of the said property. Over

and above that, Ext.A3 purchase certificate issued by the Land Tribunal

Kalpetta further fortifies the title of the father of the applicant . On the

death of the father, the property devolved on the applicant and her

mother. The mother of the applicant by Ext.A4 settled her right in favour

of the applicant. The title to the land and the entitlement to file an MFA(Forest) No.162/2012

application under S.8 of the Vesting Act, as found by the Tribunal is

perfectly in order.

3. As for the contention raised by the State we have to

examine whether the land is a private forest as defined under the Vesting

Act. S.2(f)(1)(i) takes within its ambit private forests within the district

of Malabar governed by the MPPF Act. S.5 of the MPPF Act brings within

its ambit only lands contiguously lying having an extent of more than 100

acres. There is no such contention taken by the respondent herein and

only an extent of 26.25 hectares of private forest in new Sy.No.141(old

Sy. No 326/1B2) of Kunnathidavaka Village is stated to have been

included as VFC sketch No.91, after survey and demarcation. Hence it

has to be found that the scheduled land does not come under S.2(f)(1)(i).

However the same being a private forest would fall under S.2(f)(1)(ii)

being situated within the district of Malabar, but not governed by the

MPPF Act. There is hence no scope for claiming exclusion under clauses

(A) to (D) of S.2(f)(1)(i).

4. When the scheduled land is found to be a private forest

what is to be examined is whether the land is entitled to be exempted

under S.3(2) or (3). The Commissioner inspected the property on

17.01.2009 and 05.04.2009. The Commissioner noticed 612 coffee

plants, 406 pepper plants, 10 mango trees, 11 orange trees, 5 cashew MFA(Forest) No.162/2012

trees, 45 silver oak trees and other trees in the disputed property.

According to the Commissioner, the age of the orange and cashew trees

are about 30 years , coconut trees, pepper plants and coffee plants are of

20 years. The Commissioner has also noticed the existence of trees like

muruku, kambily, edala, vattam, ventek, rosewood etc. The Commissioner

has noticed the age of the above said trees ranging from 16 years to 35

years. So, the Commissioner has noticed the presence of cultivated trees

of about 30 years old. It is also to be noted that according to the

Commissioner, the age of the non cultivated trees are also ranging from

20 to 35.

5. The Commissioner has also reported that the application

scheduled property appears to be a garden land and not a forest land. It

was also reported that in the middle of the property there were

remnants of the basement of a building which was stated to be a

residential building by the applicant. The Commissioner also reported

that the building would have been one existing about 20 years back. The

Commissioner's report clearly indicates that there was cultivation in the

property, which could have been nurtured only with human skill and

labour. There were fruit bearing trees and coffee and pepper which

come within the ambit of personal cultivation as required under S. 3(2)

of the Vesting Act. The predecessor-in-interest of the applicant who has MFA(Forest) No.162/2012

obtained the purchase certificate under the Kerala Land Reforms Act

obviously does not have any lands in excess of the ceiling limit, a

purchase certificate having been issued under the very same Act.

6. Over and about it has to be noticed that the Hon'ble

Supreme Court in State of Kerala v. Mohammed Basheer [(2019) 4 SCC

260] categorically held that the lands on which purchase certificate is

obtained by a cultivating tenant raises a presumption of cultivation and

enables automatic exemption from vesting, as cultivated lands, under the

Vesting Act. On the above reasoning we find that the applicant was

entitled for the declaration granted by the Tribunal and there is no valid

reason to interfere with the impugned order.

MFA stands dismissed leaving the parties to suffer their

respective costs.

Sd/-

K.VINOD CHANDRAN, JUDGE

Sd/-

C.JAYACHANDRAN, JUDGE

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