Kerala High Court
M.Ramakrishnan vs Chief Secretary on 11 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
MFA (FOREST) NO. 34 OF 2014
AGAINST THE JUDGMENT IN OA 40/1999 DATED 28.10.2011 OF
FOREST TRIBUNAL, KOZHIKODE
NAME OR NAMES (WITH FULL ADDRESA/ADDRESSES) OF THE
APPELLANT/APPELLANTS:
1 M.RAMAKRISHNAN, AGED 58 YEARS,
S/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,
PALAKKAD DISTRICT
2 MALATHI, AGED 56 YEARS
D/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,
PALAKKAD DISTRICT
3 RADHAKRISHNAN, AGED 54 YEARS
S/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,
PALAKKAD DISTRICT
4 SANTHAKUMARI, AGED 49 YEARS
D/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,
PALAKKAD DISTRICT
5 PREMAKUMARAN, AGED 52 YEARS
S/OMADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,
PALAKKAD DISTRICT
6 GEETHA, AGED 46 YEARS
D/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,
PALAKKAD DISTRICT
7 SURESH, AGED 39 YEARS
S/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,
PALAKKAD DISTRICT
8 GIRIJA, AGED 33 YEARS
D/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,
PALAKKAD DISTRICT
BY ADVS.
SRI.SAJAN VARGHEESE K.
MFA(FT) No.34/2014
2
SRI.LIJU. M.P
NAME OR NAMES (WITH FULL ADDRESS/KERALA ADDRESSES) OF THE
PERSON/PERSONS WHO SHALL BE IMPLEADED OR BROUGHT ON RECORD
AS RESPONDENT/RESPONDENTS:
1 CHIEF SECRETARY
GOVT OF KERALA, THIRUVANANTHAPURAM
2 CUSTODIAN OF VESTED FORESTS
OLAVAKKODE, PALAKKAD
BY SRI.NAGARAJ NARAYANAN, SPECIAL GOVERNMENT
PLEADER (FOREST)
THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON
11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MFA(FT) No.34/2014
3
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
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MFA(FT) No.34 of 2014
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Dated this the 11th day of January, 2023
JUDGMENT
K.Vinod Chandran, J
The applicant before the Forest Tribunal, under S.8 of the
Kerala Private Forest (Vesting and Assignment)Act, 1971, (for brevity,
the Vesting Act), is the appellant. The applicant sought exemption to 98
cents of property in Tarur-I Village, Alathur Taluk, Palakkad District.
According to the applicant, the schedule property belonged to one
Kavalappara family and the applicant was a lessee of Vaidyanatha Pattar
of Pazhambalakkode Village; the lease having been taken in 1961. The
properties were fenced and cultivation commenced by the applicant
which was continued till the forest officials came in to the schedule
property in 1999, alleging vesting, upon which the appellant approached
the Forest Tribunal. It was contended that the land is not governed by
the Madras Preservation of Private Forest Act, 1949, (for brevity, the
MPPF Act) nor is a private forest as otherwise defined under the Act.
MFA(FT) No.34/2014
The lease was for a total of 3 acres 94 cents and except the scheduled
land, the balance were settled in favour of his children. A purchase
certificate was also produced and it was asserted that the applicant did
not have any lands in excess of the ceiling limit under the Kerala Land
Reforms Act.
2. The Divisional Forest Officer, Nenmara, resisted the application
alleging limitation and denying the claim of title as also cultivation in the
property. The property was said to be comprised within a total of 126
acres known as Velankunnu Malavaram (slope of a hill) clearly governed
by the MPPF Act, 1949. The entire Malavaram was notified as vested
forest as V.F.C. item No.181. The property was lying with the
characteristics of a typical forest, full of trees and undergrowth; naturally
grown, belying the contention of organized and systematic cultivation.
The identity of the property, in the survey number asserted was also
seriously disputed.
3. The Tribunal found the issue of limitation in favour of the
applicant, but however, denied the declaration claimed. The Tribunal
noticed that three other OAs, with respect to the total properties alleged
to have been leased out by the applicant and later settled in the name of
MFA(FT) No.34/2014
his children, filed for the same relief, was rejected. The receipts
produced did not show any connection with the property and the trees
in the property, by their age, as declared in the application and noticed
by the Commissioner cannot be related back to the appointed day under
the Vesting Act. The Tribunal, based on the remand order of this Court,
found that the land is not covered under the MPPF Act, but however, is a
private forest coming under S.2(f)(1)(ii) of the Vesting Act. The Tribunal
found that it was not established that there was no cultivation, as on the
appointed day under the Vesting Act. The commission report was also
relied on to deny the declaration sought for.
4. PW1 is the applicant and PW2 is the son of the applicant. A1 to
A3 are money order receipts issued to one Vaidyanatha Iyer and A4 to
A7 are acknowledgement cards of postal articles send to the very same
person. The claim of the applicant was that the receipts were of lease
rent and the communications sent by post were with respect to the
inability of the lessee to pay the rent. The money order receipts does not
disclose the nature of the transaction nor are the communications send,
produced before Court. The Tribunal also noticed that while PW1 stated
in cross examination that on two occasions, he paid lease rent to
MFA(FT) No.34/2014
Vaidyanatha Pattar directly and receipts obtained with the extent of the
property specifically noticed; none was produced before the Tribunal.
5. The learned Counsel for the appellant argued that the settlement
deeds produced as A16 to A18 would clearly indicate from the recitals
that the property was cultivated and was settled in favour of the
children. It was after the settlement that the forest officials interfered
with the possession and enjoyment of the property which led to the
application being filed in the year 2000. The recitals in the settlement
deeds which are similar were read over to us. However, merely going by
the recitals of the year 1999, it cannot be assumed that there was
cultivation carried on in the land as on 10.5.1971, the appointed day
under the Vesting Act. Obviously, the decision in the applications filed by
the children of the applicant, on whom the similar lands were settled, has
become final and there is not even an appeal filed. The purchase
certificate produced by the applicant as noticed by the Tribunal does not
show the very same survey numbers as stated in the application. Only
one of the survey numbers namely 126/6 is seen in the purchase
certificate and the application. There was no attempt made by the
applicant, when a Commissioner was deputed for physical inspection, to
MFA(FT) No.34/2014
get identified the property, with reference to the survey number as seen
from the purchase certificate. It is very pertinent that the Hon'ble
Supreme Court in Hamsa Haji vs. State of Kerala [(2006) 7 SCC 416]
regarding the identification of the property has declared so:
"30. We thus confirm the decision of the High Court
and dismiss the appeal with costs. We hope that this
judgment will act as an eye-opener to the Forest
Tribunals and the High Court exercising appellate
jurisdiction in dealing with claims (obviously now
they are belated claims) for exemption or exclusion
under Section 8 of the Act. It behoves the Forest
Tribunals and the appellate court to carefully
scrutinise the case of title and possession put
forward by claimants as also the identities of the
lands sought to be claimed, while entertaining
applications under Section 8 of the Act."
6. The commission report was also examined by the Tribunal
which did not disclose any personal cultivation having been carried on in
the property. In fact, the declaration in the application with respect to
the cultivation in the property was "20 cashew trees of 10 years age".
The Commissioner, in Ext.C1, found that the schedule property lies as a
part of a hill in several levels. The northern, eastern and western
MFA(FT) No.34/2014
boundaries are private lands, whereas, on the southern boundary, there
is existing a forest land. At the time of inspection in the year 2000, there
was no cultivation carried on in the property. Stumps of trees detected
in the property were specifically stated to be not cultivated, but shoots
sprouted from the trees cut from the property. There were also 24
square pits, presumably dug up to plant rubber, which were found to be
dug up recently. There were also bunds and mounds found in the
property presumably to facilitate tapioca cultivation which was stated to
be within a two year period. Three palmirah trees were existing in the
property having height between 25 to 40 meters which disclosed signs of
recent toddy tapping. There were other trees found in the property
which were naturally grown. The cashew trees were found on the fence
line at the southern boundary having a growth of 15 to 20 years. When
the identity of the property was verified with reference to the Field
Measurement Books (FMB) and the Basic Tax Register (BTR); the
boundaries as disclosed in the application and measurements were not
tallying. The map produced by the forest authorities was found to
approximately identify the property and confirms with the FMB, despite
minor discrepancies.
MFA(FT) No.34/2014
From the above facts as disclosed in evidence and the lack of any
substantive proof of identity of the property and cultivation as on the
appointed day, we do not find any reason to interfere with the order of
the Tribunal. We dismiss the appeal and leave the parties to suffer their
respective costs.
Sd/-
K.VINOD CHANDRAN, JUDGE
Sd/-
C.JAYACHANDRAN, JUDGE
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