Vazhakundu Estate vs State Of Kerala on 16 August, 2024

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Kerala High Court

Vazhakundu Estate vs State Of Kerala on 16 August, 2024

The original application seeking a declaration that the application schedule property is not a private forest and that the applicants are entitled to the benefit of Section 3(2) and 3(3) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (hereinafter referred to as the "Vesting Act") was dismissed by the Tribunal. The applicants are in appeal.

2. The original application is filed by a firm "Vazhakundu Estate" through its Managing Partner. There are 19 partners in the firm. The OA schedule property is 239 acres of land in Muthalamada Amsom Nelliyampathy Panchayat.

3. The property originally belonged to Venkunad Kovilakam. One C.N.George obtained the property on lease MFA (Forest) No.109/2016 2024:KER:60833 -: 2 :- from the Kovilakam on 02.07.1964, under Exts.A19 and A20 documents. He sub-leased the property to the partners of the firm. The property was gradually planted with cardamom and coffee during the period 1964-69. As on the appointed date under the Vesting Act viz. 10.05.1971, the property was a plantation. The O.A. was filed alleging obstruction by the forest officials regarding the enjoyment of the property.

4. The State denied the contention that the property is a plantation. It was contended that the property is part of a large Malavaram mentioned as Akamalavaram. There was no cultivation in the property as on 10.05.1971, and it was a forest. The entire area was notified as a vested forest under the Vesting Act. The property is a forest under the Madras Preservation of Private Forest Act, 1949 (hereinafter referred to as the "MPPF Act"). It was also contended that the applicants do not have title over the property. MFA (Forest) No.109/2016

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5. The original application was originally allowed by the Tribunal. On appeal by the State in MFA 382/1982, the matter was remanded to determine the extent of property which is liable to be excluded. After the remand the Tribunal dismissed the OA. On appeal by the applicants as MFA 536/1992, the matter was remanded back to the Tribunal for fresh disposal leaving open the rival contentions. Thereafter the Tribunal held against the applicants and dismissed the OA. On appeal by the applicants as MFA 899/2001, the matter was again remanded back to the Tribunal. Thereafter the Tribunal again dismissed the OA. It is challenging the said order that the present appeal has been filed.

6. We have heard Sri.Santhalingam, the learned Senior Counsel on behalf of the appellants and Sri.Nagaraj Narayanan, the learned Special Government Pleader (Forest) on behalf of the respondents. MFA (Forest) No.109/2016

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7. The points that arise for determination are:-

(i) Was the Tribunal within its jurisdiction in having considered the entire merits of the claim in the light of the limited remand in MFA 382/1982, confined to identification of the extent of property to be excluded?

(ii) Is the finding of the Tribunal that the lease in favour of the applicant in the year 1964 is in violation of Section 3 of the MPPF Act correct in law ?

(iii) Is the finding of the Tribunal with regard to the title/right to possess of the applicant correct?

(iv) Is there sufficient evidence to find that as on 10.05.1971, the property was principally cultivated with cardamom and coffee, entitling exclusion of the property from the Vesting Act ?

(v) Is the property liable to be exempted from vesting in terms of Section 3(2) and 3(3) of the Vesting Act?

8. In the first round of litigation, the original application was allowed by the Tribunal. This Court in MFA 382/1982, remanded the matter to the Tribunal for the purpose of identifying the extent of property which is liable to be excluded. However, after remand, the Tribunal found that the lease in favour of C.N.George under Exts.A19 and A20 documents, dated 02.07.1964, was without obtaining permission under Section 3(1)(a) of MFA (Forest) No.109/2016 2024:KER:60833 -: 5 :- the MPPF Act. Accordingly, the OA was dismissed. On appeal, this Court in MFA 536/1992, set aside the order and made an open remand, leaving open the rival contentions and for de novo disposal. In the next round of litigation also, this Court, in MFA 899/2001, made an open remand leaving open all the issues.

9. Though, as argued by the learned Senior Counsel, the original remand order in MFA 382/1982 was for a limited purpose, after the remand, the Tribunal had went beyond the scope of the remand. In the succeeding appeals in MFA Nos.536/1992 and 899/2001, this Court also left open the entire issues, and de novo disposal was directed. The grievance of the applicants that, after the remand in MFA 382/1982, the Tribunal surpassed the scope of the remand order, should have been got rectified/corrected in MFA 536/1992. However, it was not done. In MFA 536/1992 also this Court made an open remand. This was further followed by the open remand in MFA 899/2001, which was also not challenged. Therefore, MFA (Forest) No.109/2016 2024:KER:60833 -: 6 :- in the light of the subsequent judgments in MFA No.536/1992 and MFA No.899/2001, which became final, it is too late in the day for the applicants to contend that, consequent on the limited remand in MFA No.382/1982, the entire issues were not open for consideration by the Tribunal. The contention of the learned Senior Counsel is thus liable to be negatived. Point (i) is answered accordingly.

10. Sri.C.N.George is claimed to have obtained the property on lease from the Jenmi Kovilakam under Exts.A19 and A20 documents dated 02.07.1964. Section 3(1)(a) of the MPPF Act prohibits the owner of a forest from alienating the same without previous sanction of the District Collector. The Tribunal held that no such permission was obtained for the lease in favour of Sri.George and hence the lease cannot be recognised.

11. Section 3(1)(a) of the MPPF Act reads thus :-

"3.Preservation of private forests.-(1)(a) No owner of any forest shall, without the previous sanction of the District Collector, sell, MFA (Forest) No.109/2016 2024:KER:60833 -: 7 :- mortgage, lease or otherwise alienate the whole or any portion of the forest."

The provision mandates that the owner of a forest shall obtain previous sanction of the District Collector even to lease any portion of the forest. It is not in dispute that no such permission was obtained to lease out the property to Sri.C.N.George. However, on 11.05.1962 and 20.01.1962, permissions were obtained by the Jenmi from the District Collector as per Exts.A36 and A37 in terms of Section 3(1)(a), to lease out 60 acres and 114 acres to one K.N.Neelakandan and one Narayani Amma, respectively. Exts.A19 and A20 documents were executed in favour of Sri.C.N.George, referring to Exts.A36 and A37 permissions obtained under Section 3(1)(a) and stating that the said leases did not fructify. A reading of the Section indicates that, the mandate therein is on the owner of the property to get the permission of the District Collector to lease out the same. The identity of the lessee seems to be not of any significance. It is MFA (Forest) No.109/2016 2024:KER:60833 -: 8 :- the identification of the property intended to be dealt with which is seen to be of relevance. Under Exts.A36 and A37 the District Collector had granted sanction to the owner, to lease out the property. Of course, permission granted is to lease out to the persons named therein. However, the mere mentioning of the names of the lessees therein would not restrict the right of the owner to lease it out to any other person. Under Section 3(1)(a), the Collector having found that the property identified could be subjected to lease, the grant of lease thereafter to any other person, would not affect the transaction. Under Exts.A36 and A37, the permission obtained was for lease of 60 acres and 114 acres respectively, thus totalling to 174 aces. It is on the strength of such permission that Exts.A19 and A20 leases were created in favour of Sri.George for the very same extent. Therefore, it cannot be held that the lease under Exts.A19 and A20 were in violation of Section 31(a) of the MPPF Act. Point No.(ii) is thus answered in MFA (Forest) No.109/2016 2024:KER:60833 -: 9 :- favour of the applicants.

12. The learned senior Government Pleader would contend that Exts.A19 and A20 are mere agreements and cannot constitute a lease, hence, no title vested with Sri.George. A reading of the said documents indicate that, by virtue of the documents Sri.George was put in possession of the property as lessee with an understanding that formal lease deeds would be executed in due course. The nature and character of the arrangement was that of a lease. It could only be held that the possession of Sri.George under Exts.A19 and A20 was as a tenant. Therefore, the contention of the learned Government Pleader has no force.

13. The learned special Government pleader would next content that, the leases under Exts.A19 and A20 are in violation of Section 74 of the Kerala Land Reforms Act, 1963 (KLR Act) and hence void. Section 74 thereof prohibits creation of lease and hence Exts.A19 and A20 are void, it is argued. We are afraid that the argument MFA (Forest) No.109/2016 2024:KER:60833 -: 10 :- has no force in the light of Section 3 of the KLR Act. Section 3 exempts certain categories of properties and transactions from the application to Chapter II of the KLR Act. Section 74 falls within Chapter II. Leases of private forest is included in Section 3(1)(vii). Hence for leases of private forest the prohibition under Section 74 of the KLR Act does not apply. The contention of the learned Government Pleader that Exts.A36 and A37 lease arrangements are void for contravention of Section 74 of the KLR Act is thus rejected. Hence the lease under Exts.A19 and A20 are valid.

14. There is yet another issue with regard to the right of the applicant. The original application is filed by the firm "Vazhakundu Estate". The claim is that the lessee Mr.C.N.George had sub-leased the property in favour of the firm. Exts.A55 and A56 are the lease deeds dated 11.06.1974 and 12.12.1973, executed by George. Going by Ext.A55, it is a lease executed by George in favour of three persons; but none of them are partners MFA (Forest) No.109/2016 2024:KER:60833 -: 11 :- of the firm. Therefore the firm does not acquire any rights thereunder. Ext.A56 lease is in favour of two persons who are partners. There is no contention that the lease obtained by the individuals named in Ext.A56 had treated the property thereunder as a partnership property whereby it became a partnership asset. Therefore, there is no material to find that the property belonged to the applicant firm. The applicant firm has failed to prove its title/right to possess over the property. Point No.(iii) is answered accordingly.

15. Section 2(f)(1)(i)(B) provides for exclusion of lands which are used principally for the cultivation of coffee, cardamom, ... from the purview of "private forest"

under the Vesting Act. To claim exclusion, the land should be principally cultivated with coffee or cardamom as on the relevant date viz. 10.05.1971. Ext.A40 is an affidavit dated 12.03.1969, filed in a suit for partition between the sharers of the Jenmi Kovilakom. The contents thereof is to the effect that, Sri.George MFA (Forest) No.109/2016 2024:KER:60833 -: 12 :- who was the lessee of 175 acres has trespassed over acres of adjacent land and planted cardamom, but the major portion was not in the leased area. This indicates that the cardamom cultivation was not mainly in the leased land. Ext.A61 is a letter dated 16.06.1969, issued by Sri.George to the Collector seeking permission in terms of Section 3(2) of the MPPF Act to fell trees in 50 acres of property out of 114 acres. This indicates that 50 acres out of the total 174 acres was not cultivated with cardamom. Ext.A47 is the letter dated 14.06.1970, sent by George to the Receiver appointed in the partition suit, O.S 1/1964. Therein he has stated that out of the total extent of land, 45 acres is rocky land and 57 acres is uncultivable waste land. Thus the total extent of uncultivable land is 102 acres. Therefore, out of the 174 acres, 50 + 102 = 152 acres turns out to be uncultivable. Even going by the case of the applicants, though the extent of the leased out property is only 174 acres, they have taken over MFA (Forest) No.109/2016 2024:KER:60833 -: 13 :- possession of adjoining lands, making the total extent in their possession to 231 acres. The existence of cardamom cultivation in the said encroached portion would not be of any avail to the applicants while considering the issue of exclusion for the leased land. Ext.C2 is the commissioner's report dated 01.01.1982, obtained in the present OA. The commissioner had visited the property in August, September and November, 1981. The report states, "The coffee plants and cardamom plants standing in the vested area is not having its full growth like the plants standing in the non vested area. It may be because it is not properly maintained. The petitioner represented that the coffee and cardamom plants standing in the vested area as well as in the non vested area are having an approximate age of about 8 years". Similar is Ext.C3, the Commissioner's Report dated 11.01.1990. The description of the trees and its age therein does not suggest that the property was principally cultivated with coffee and cardamom as on 10.05.1971. This has been duly taken note of by the Tribunal. In Ammukunhi Amma & Ors. v. The State of Kerala & Ors 2016 (3) MFA (Forest) No.109/2016 2024:KER:60833 -: 14 :- KHC 52, it was held that, to satisfy the requirement of "principally cultivated", sparse growth is not enough and that more than 50% of the land at least must have been planted. The evidence as above indicates that, except for the scattered existence of some cardamom plants it cannot be held that the property was principally cultivated with cardamom and coffee.

16. Though Ext.A21, the report of the Receiver submitted in the partition suit in the family, the Jenmi Kovilakom, it is stated that the major portion of the property is cultivated with cardamom, as was noticed supra, apart from the leased property there was encroachment over a larger extent of property. Therefore, the said report cannot aid the applicants.

17. Thus, it cannot be held that the OA scheduled property was "principally cultivated" with cardamom and coffee. The claim for exclusion of the property from the purview of private forest, was rightly rejected by the Tribunal. Point No.(iv) is thus answered. MFA (Forest) No.109/2016

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18. Now coming to the claim for exemption under Section 3(2) of the Vesting Act, as noticed supra, what is relevant is the nature of the property as on 10.05.1971. The materials indicate that, but for the existence of cardamom and coffee plants scattered in the property, it could not be said that the property was substantially under cultivation. Though the applicants would rely on the cardamom registration and other related documents, the same are much subsequent to the relevant date and is of no avail. The claim under Section 3(2) was rightly rejected by the Tribunal.

19. With regard to the claim for exemption under Section 3(3), admittedly there is no registered document of title in favour of the applicant firm. Section 3(3) postulates the existence of a valid registered document of title for a claim thereunder. In the circumstances the claim under the said provision also fails.

20. The Tribunal while dismissing the claim has taken due consideration of all the relevant aspects. The MFA (Forest) No.109/2016 2024:KER:60833 -: 16 :- findings are based on evidence and warrant no interference.

Resultantly, the appeal fails and is dismissed.

Sd/-

SATHISH NINAN JUDGE Sd/-

JOHNSON JOHN JUDGE kns/-

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