State Of Kerala vs Cheriya Mammu Haji on 3 October, 2024

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Kerala High Court

State Of Kerala vs Cheriya Mammu Haji on 3 October, 2024

The State is in appeal, challenging the order of the Forest Tribunal granting exemption to the respondents- applicants under Section 3(3) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (hereinafter referred to as "the Vesting Act").

2. The original application contains two schedules: 'A' schedule having an extent of 13,000 acres and 'B' schedule having an extent of 1,235 acres. 'B' Schedule is stated to be a portion of 'A' schedule.

3. According to the applicants, the 'A' schedule property belongs to the Puthiya Madathummal Peringadi Tarwad of the applicants. Their title and possession of the property has been declared by the Munsiff's Court, Koyilandy in OS 242/1940 under Ext.P2 judgment. While the fact that the properties are vested forest is not disputed, it is MFA(Forest) No.450 of 1982 -: 2 :- 2024:KER:73230 claimed that the applicants are entitled to exemption under Section 3(3) of the Vesting Act in respect of the 'B' schedule property since they hold the same with the intent to cultivate.

4. The State contended that the properties are included in VFC Nos.4 and 54 which cover an extent of 3382.873 acres. The claim for exemption was challenged.

5. The Tribunal, as per the impugned order, held that the applicants are entitled to exemption under Section 3(3) of the Vesting Act with respect to 1020 acres from the 'B' schedule.

6. We have heard Sri.Nagaraj Narayanan, the learned Special Government Pleader for the appellant, and the learned Senior Counsel Sri.M.Ramesh Chander on behalf of the respondents-applicants.

7. The points that arise for determination are:-

(i) Have the applicants established the ingredients under Section 3(3) of the Vesting Act, entitling an order exempting the 'B' schedule property from vesting?

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(ii) Is the identity of the 'B' schedule property established?

(iii) Does the order of the Tribunal warrant any interference?

(iv) Is the additional evidence sought to be produced in the appeal under Order 41 Rule 27 of the Code of Civil Procedure, liable to be admitted ?

8. Section 3 of the Vesting Act provides for vesting of private forests in the State, on the appointed day i.e, 10.05.1971. Section 3(3) of the Vesting Act provides for exemption from vesting if the ingredients as mentioned therein are satisfied. Section 3(3) of the Vesting Act reads thus: -

"(3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling area applicable to him under Section 82 of the said Act."

As per the Section, to secure exemption, the following conditions are to be satisfied:

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(i) The property must be held by the owner.

(ii) Such holding must be under a registered document of title executed before the appointed day.

(iii) It must be held with an intention to cultivate.

(iv) The extent of the property, when taken along with the other properties of the owner, should not exceed the ceiling limit fixed under Section 82 of the Kerala Land Reforms Act.

If the above ingredients are satisfied, such property is liable to be exempted from vesting.

9. A reading of the judgment of the Tribunal shows that, the consideration was with regard to the availability of registered title deed of the applicants and whether they are holding land in excess of the ceiling limit. As to whether the other ingredients have been satisfied or not was not considered at all. Unless the applicants satisfy all the conditions noted above, they cannot secure exemption from vesting. The order of the Tribunal is liable to be MFA(Forest) No.450 of 1982 -: 5 :- 2024:KER:73230 interfered with for that sole reason.

10. As noticed, the 'B' schedule property in the original application is 1235 acres from out of the 'A' schedule having an extent of 13000 acres. In the description of the 'B' schedule to the OA, its four boundaries are shown as "remaining property", indicating that it is bounded on all four sides by the remaining extent of the 'A' schedule. The 'B' schedule was not identified in any manner. No commission was taken out. Without identifying the property an order of exemption could not have been granted.

11. So also, though the claim is for exemption of the 'B' schedule having an extent of 1235 acres from out of the 'A' schedule, the Tribunal has granted exemption for an extent of 1020 acres, which is lesser than the 'B' schedule. The identity of the said 1020 acres is not established. For the said reason also the order of the Tribunal cannot be sustained.

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12. The learned Special Government Pleader took us to the relief claimed in the OA and contended that a reading of the same reveals that the applicants are even uncertain about the identity of the property over which they claim exemption. The relief claimed in the OA reads thus :-

"So this Honourable Tribunal may be pleased to declare that the 'B' schedule property or any other area from 'A' schedule property which this Hon'ble Tribunal deems fit and proper, is not a vested forest and the petitioners are entitled to possess the same for their personal cultivation under Section 3(3) of Act 26/71."

Section 3(3) of the Vesting Act provides for exemption on the ground of intention to cultivate. Such intention must be evinced with reference to the appointed day ie: 10.05.1971. Even in the OA the applicants are not definite/specific regarding the identity of the property over which they claim to have had the intention to cultivate as on the appointed day. Hence the argument of the counsel cannot be brushed aside.

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13. On the findings above, the order of the Forest Tribunal is liable to be interfered with. With regard to the satisfaction of the ingredients of Section 3(3), the only evidence available is that of PW1. Since there has been failure to consider the satisfaction of the ingredients of Section 3(3), we are of the opinion that the Tribunal could be directed to reconsider the matter. Opportunity could be afforded to both sides to amend their pleadings and to adduce further evidence.

14. The appellant has filed IA 1/2024 under Order XLI Rule 27 of the Code of Civil Procedure, seeking production of additional documents/evidence. In the affidavit filed in support of the application it is stated that they were unaware of the existence of such documents. According to the appellant the said documents establish that the applicant's Tarwad had alienated the entire extent of property held by them, to various persons, during the period from 1940 to 1965, and that no property remained with the Tarwad. The MFA(Forest) No.450 of 1982 -: 8 :- 2024:KER:73230 documents are certified copies of the registered assignment deeds. A bare perusal of the documents suggests that they are relevant to determine the claim in the OA since Section 3(3) of the Act requires that the property must be held by the owner and with an intention to cultivate. In the light of the liberty being granted to the parties, under this judgment, to adduce further evidence, it shall be open to the appellant to produce the documents before the Tribunal. To enable the same the additional evidence sought to be produced before this Court could be returned to the appellant.

15. With regard to the ingredient of the Section that the property must be held under a registered document of title, according to the applicants they had obtained title much prior to the coming into force of the registration laws in the Malabar area of the State wherein the property is situated, and that their title and possession of the property has been declared by the civil court in Ext.P2 MFA(Forest) No.450 of 1982 -: 9 :- 2024:KER:73230 judgment in OS 242/1940. The findings in Ext.P2 judgment need to be given due consideration. However, the property has not been identified with reference to Ext.P3 plan prepared in Ext.P2 suit.

16. The learned counsel for the applicants would contend that the memorandum of appeal does not urge any ground denying their right, title or possession and also about the alleged alienations, and hence cannot be argued. We are unable to agree with the submission of the learned counsel. In ground (2) raised in the memorandum, the title and possession of the property of the applicants are denied. By virtue of the additional documents sought to be produced in the appeal under Order XLI Rule 27, the appellant seeks to establish the said contention. That apart, it is well settled that the burden rests squarely on the applicant to prove that he is entitled to the benefit of the exclusion under Section 3(3) of the Vesting Act. Therefore, it is for the applicants to establish satisfaction of the ingredients. MFA(Forest) No.450 of 1982 -: 10 :-

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17. With regard to identity of the property, it is a ground available even on the pleadings of the applicants themselves. At any rate, without establishing the identity, the applicants would not be entitled to an order for exemption.

18. The learned counsel for the applicants would urge that, the alleged lease, the certified copy of which is produced as Annexure-1, violates Section 8 of the Mappila Marumakkathayam Act, which was applicable to the parties and hence is void. Such lease, if at all could have been created, the written consent of the majority of the members of the Tarwad was necessary, it is argued. The learned Special Government Pleader for the appellant would point out that, the said document contains a recital that such written consent was obtained. We do not think that it is necessary or proper for us to go into such contentions at this stage since, as indicated by us earlier, the matter needs to go back to the Tribunal for fresh disposal. All the rival MFA(Forest) No.450 of 1982 -: 11 :- 2024:KER:73230 contentions are to be urged before the Tribunal.

In the result, this appeal is allowed. The order of the Tribunal is set aside. The matter is remanded back to the Tribunal for disposal afresh. Both sides shall be permitted to amend their pleadings and to adduce further evidence if they so choose. It is clarified that all the rival contentions are left open. We are sure that the Tribunal would take note of the fact that the OA is of the year 1981 and make every endeavour for expeditious disposal of the case.

Parties to appear before the Tribunal on 21.10.2024.

Sd/-

SATHISH NINAN JUDGE Sd/-

JOHNSON JOHN JUDGE kns/-

//True Copy// P.S. To Judge APPENDIX OF MFA (FOREST) 450/1982 PETITIONER ANNEXURES Annexure A1 TRUE COPIES OF THE DOCUMENT NO.20/1965 OF KOZHIKODE SRO(CERTIFIED COPIES OF THE ANNEXURE- 1IN RP NO.14/1984) Annexure A2 DOCUMENT NO.39/1961 OF KOZHIKODE SRO (CERTIFIED COPIES OF ANNEXURE -11 IN RP NO.14/1984) Annexure A3 CERTIFIED COPIES OF DOCUMENT NO.710/1940 OF SUB REGISTRAR OFFICE,PERAMBRA Annexure A4 DOCUMENT NO.360/1943 OF SUB REGISTRAR OFFICE, THALASSERY Annexure A5 DOCUMENT NO.383/1943 OF SOB REGISTRAR OFFICE, THALASSERY Annexure A6 DOCUMENT NO.1030/1956 OF SUB REGISTRAR OFFICE, THALASSERY Annexure A7 DOCUMENT NO.1038/1956 OF SUB REGISTRAR OFFICE, THALASSERY Annexure A8 DOCUMENT NO.1039/1956 OF SUB REGISTRAR OFFICE, THALASSERRY Annexure A9 TRUE COPY OF FELLING PERMIT ISSUED BY THE DISTRICT COLLECTOR VIDE PROCEEDINGS DATED 13.04.1973 IS PRODUCED HEREWITH AND MARKED AS ANNEXURE-1X

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