Kerala High Court
Thomas Jacob vs State Of Kerala on 1 November, 2019
Equivalent citations: AIRONLINE 2019 KER 559
Author: T.V.Anilkumar
Bench: A.Hariprasad, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY, THE 01ST DAY OF NOVEMBER 2019 / 10TH KARTHIKA, 1941
MFA.No.138 OF 2006
AGAINST THE ORDER DATED 07-03-2006 IN OA NO.36/2004 OF FOREST
TRIBUNAL, KOZHIKODE
APPELLANT/ APPLICANT:
THOMAS JACOB,
AGED 33 YEARS, S/O.P.A.JACOB, DIRECTOR, M/S.POABS
ESTATE PRIVATE LTD., SEETHARKUNTA.P.O, NELLIYAMPATHY
VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 511.
BY ADV. SRI.N.JAMES KOSHY
RESPONDENTS/ RESPONDENTS:
1 STATE OF KERALA,
REP. BY THE CHIEF SECRETARY, GOVT. OF KERALA,
SECRETARIAT, THIRUVANANTHAPURAM.
2 CUSTODIAN OF VESTED FOREST,
ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKOD, PALAKKAD.
R1-2 BY SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON
24-09-2019, THE COURT ON 01-11-2019 DELIVERED THE FOLLOWING:
M.F.A. No.138/2006
-:2:-
A.HARIPRASAD & T.V.ANILKUMAR, JJ.
= = = = = = = = = = = = = = = = =
M.F.A No.138 of 2006
- - - - - - - - - - - - - - - - - - - - -
Dated this the 1st day of November, 2019
J U D G M E N T
T.V.ANILKUMAR J.
Applicant in O.A. No.36 of 2004 before the Forest Tribunal, Kozhikode is the appellant. He is one of the Directors of M/s. Poabs Estate Private Limited. He sought before the learned Tribunal a declaration that scheduled properties measuring 3.80 hectares of land in R.Sy.No.164/5(old survey no.861/5) and 3.52 hectares of land in R.Sy.No.164/6 (old survey No.861/6) possessed by the Company in Nelliampathy village are not part of a private forest, invoking Section 8 of the Kerala Private Forest (Vesting & Assignment) Act,1971 (for short 'Act No.26 of 1971'). The O.A. was dismissed by the impugned order dated 07.03.2006 which is under challenge in this appeal.
2. Appellant's case is that scheduled properties measuring an extent of 18 acres are coffee and cardamom plantations, forming part of an aggregate area of 1009 acres in Nelliampathy village owned by the erstwhile Karuna Plantations Limited. This estate was formerly called as M.F.A. No.138/2006 -:3:- 'Seethargundu Estate'. After purchase of this estate, the appellant's Company renamed it as 'Poabs Estate limited'. Karuna plantations Limited purchased 1009 acres planted with coffee and cardamom on 15.04.1979 under Ext.A2 sale deed. Its predecessor purchased the estate from Amalgamated Coffee Estate Limited under Ext.A1 sale deed dated 28.08.1969. The ownership of the appellant over the scheduled properties is evident not only from the prior title deeds produced by him but also from Ext.A5 compromise decree in A.S. Nos.6 & 7 of 2000 on the file of the District Court, Palakkad, passed on the basis of Ext.A4 M.O.U. dated 17.07.2003 entered into between parties, when a dispute of ownership over the properties arose between Karuna Plantations Limited and Palakapandy Estate, which is a neighbouring plantation.
3. It is contended by the appellant that the entire estate had been cultivated with coffee and cardamom much prior to 1949, even before coming into force of Madras Preservation of Private Forests Act, 1949( for short, 'M.P.P.F. Act') and consequently, no part of scheduled properties came to be vested as per the provisions of Act No.26 of 1971. It is further stated that, when the respondents claimed the entire estate to be part of a private forest and consequently disputes arose, Karuna Plantations Limited, which is the predecessor of appellant filed O.A.No.573 of 1976 before Forest Tribunal, Palakkad, M.F.A. No.138/2006 -:4:- for a declaration that 919 acres owned by the plantation are not private forests. In M.F.A.Nos. 574 of 1989 and 106 of 1990 challenging the order in O.A. No.573 of 1976, this Court declared 830 acres to be not private forests holding that only balance 89 acres out of the total 919 acres claimed in the O.A. were available for vesting under Act No.26 of 1971. It is contended that since there was no dispute with respondents over the remaining 90 acres out of 1009 acres, scheduled properties which formed part of 90 acres were not made the subject matter in O.A. No.573 of 1976. Before 1009 acres came to be included in Nelliampathy village, 919 acres and 90 acres respectively were lying in Payyalore village and Muthalamada village. It is contended by the appellant that after the disposal of M.F.As., scheduled properties which have a total area of 18 acres were measured out and demarcated by Survey Department, Thiruvananthapuram in the presence of Forest Officials and a sketch indicating that the scheduled properties were part of Seethargundu Estate was prepared. Thereupon, the respondents without any rhyme or reason started obstructing the appellant's free enjoyment and possession of scheduled properties, denying the Company's right and therefore, this O.A. was filed for a declaration that scheduled properties are not part of the vested private forests under the provisions of the Act No.26 of 1971. It is alternatively prayed that in case the properties are M.F.A. No.138/2006 -:5:- found to be private forests, the appellant may be granted the benefit of exemption under Sections 3(2) and 3(3) of Act No.26 of 1971.
4. The respondents filed objection, contending that the scheduled properties are part of a larger chunk of vested forests called as 'Akamalavaram forest', having an extensive area of 5820, situated in various survey numbers in Muthalamada, Elavancherry and Payyalore villages, governed by the M.P.P.F. Act and also Act No.26 of 1971. It is denied that the properties are part of appellant's estate. It is contended that scheduled properties are actually part of Palakapandy Estate owned by Sri.K.V. Lakshmanan. It is pointed out that, since appellant's predecessor did not have any right or enjoyment over the scheduled items, claim in O.A.No.583 of 1976 did not naturally extend over to the entire 1009 acres and instead, it stood confined only to 919 acres. No part of scheduled properties stood included in the title deeds relied on by the appellant and they had never been a part of erstwhile Seethargundu Estate at all. The Forest Department issued Ext.B1 notification on 10.10.1979 with respect to the entire Akamalavaram Forest which took in scheduled properties also and later, on noting that there was omission in mentioning the survey numbers of scheduled properties, Ext.B2 erratum notification was issued in the form of a clarification on 08.12.1999 after incorporating M.F.A. No.138/2006 -:6:- the survey numbers. As a matter of fact, scheduled properties which are private forests stood vested in Government by operation of law with effect from 10.05.1971, when Act No.26 of 1971 came into force. Respondents also questioned the locus standi of appellant to file the O.A., since, according to them, he is not the owner of the scheduled properties. The claim of appellant for exemption under Sections 3(2) & 3(3) of Act No.26 of 1971 was also disputed. O.A. was sought to be dismissed on the ground of limitation also, since it was filed after the expiry of the period prescribed by the Rules framed under Act No.26 of 1971.
5. The appellant was examined as PW.1 before the Forest Tribunal and the Forest Range Officer, Kollamkode was examined as RW.1. Exts.A1 to A13 and Exts. B1 and B2 are the documents admitted to evidence on the side of respective parties.
6. The learned Forest Tribunal rejected the plea of limitation and held that O.A. cannot be dismissed as time barred, since there was no due publication of notification as required by Rule 2A(2) of Kerala Private Forest (Vesting and Assignment) Rules. The view taken by the learned Tribunal appears to be reasonable and we do not want to interfere with this finding.
7. The learned Tribunal dismissed O.A. taking a view that no acceptable evidence was brought on record to prove M.F.A. No.138/2006 -:7:- that the scheduled properties are part of erstwhile Seethargundu Estate, covered by Ext.A1 sale deed dated 18.08.1969 taken in the name of predecessor of the appellant's Company. It was observed that no attempt was made by the appellant to take out a survey commission to substantiate that the properties formed part of the Seethargundu Estate. Consequently, the learned Tribunal held that the appellant failed to show that he was the owner of O.A. scheduled items. It was opined that the probability was more in favour of the view that scheduled properties are part of Palakapandy Estate, owned by Sri.K.V. Lakshmanan and therefore, the appellant has no locus standi to file the O.A., seeking declaration under Section 8 of Act No.26 of 1971. It was also held that the appellant failed to prove that the properties were not private forests since no evidence was brought in to prove that the properties were under fugitive or other cultivation as on 14.12.1949 when M.P.P.F. Act came into force. Appellant's alternative case claiming exemption under Sections 3(2) and 3(3) of Act No.26 of 1971 was also dismissed as not proved.
8. The learned counsel for the appellant assailed the findings based on which the O.A. was dismissed and contended that material evidence proving the appellant to be the owner of the properties was overlooked by the learned Tribunal. It was further submitted that the M.F.A. No.138/2006 -:8:- documents produced clearly proved that scheduled properties were part of erstwhile Seethargundu Estate and Ext.A13 common judgment in M.F.A. Nos.574 of 1989 and 106 of 1990 having a bearing on this aspect was not correctly perceived by the learned Tribunal. According to the learned counsel, M.P.P.F. Act hardly applied to the scheduled properties since they had been already cultivated with coffee and cardamom much prior to 1949 and learned Tribunal erred in refusing to declare scheduled properties as not private forests.
9. The core issue for consideration is whether scheduled properties are private forests as defined by Section 2(f) of the Act No.26 of 1971. A person seeking a declaration under Section 8 of Act No.26 of 1971 has the initial burden to prove that the properties claimed are not private forest. A land to which M.P.P.F.Act applied, immediately before 10.05.1971 when Act No.26 of 1971 came into effect, alone could be considered to be a private forest going by the definition of the term in Section 2(f) of Act No.26 of 1971. The M.P.P.F. Act, 1949 would apply only when the land in question has a contiguous area exceeding 100 acres, and it was not subjected to any fugitive or other cultivations prior to 14.12.1949. Only on the claim of shortage in extent, the appellant cannot wriggle out of the M.P.P.F. Act. This is because going by the case set up by both parties, the disputed properties M.F.A. No.138/2006 -:9:- are part of a very large extent of land exceeding 100 acres. According to the respondents, the properties are part of Akamalavaram vested forest, having a large area of 5820 acres. According to appellant also, the properties are part of 1009 acres covered by Exts.A1 to A3 title deeds. There is no iota of evidence in this respect showing that scheduled properties were under such cultivation. Nor is there any evidence to prove that the properties were principally cultivated with coffee or cardamom before the vesting Act No.26 of 1971 came into force. It is here the relevancy of the question as to whether the scheduled properties formed part of Karuna Plantations formerly called as Seethargundu Estate comes to be examined.
10. Exts.A1 to A3 title deeds do not help the appellant in this respect, since the properties covered by these documents were unsurveyed lands. The oral evidence of PW.1 is also not quite sufficient. There was no attempt made by the appellant to measure out the scheduled properties with the aid of any survey plan to establish his case that they are part of erstwhile Seethargundu Estate. The argument advanced by the learned counsel for the appellant is that, without resort to any survey measurements or Exts.A1 to A3, the scheduled properties could be shown to be part of Seethargundu Estate with the assistance of Ext.A13 judgment in M.F.A. Nos.574 of 1989 and 106 of 1990. It could be seen from paragraph No.14 of M.F.A. No.138/2006 -:10:- Ext.A13 judgment that Seethargundu Estate covered an extent of 1027 acres ascertained on the basis of Ext.A12 plan prepared in that case and further, the estate had been cultivated with coffee and cardamom plants as early as in 1945, i.e., much prior to the coming into force of M.P.P.F Act,1949. In Ext.A13 judgment, it was held that, out of 919 acres claimed in O.A.No.573 of 1976 by Karuna Plantation Limited, 83.99 acres of land alone were vested private forests. The remaining part of the estate owned by the Karuna Plantation was found to be not private forest. As a matter of fact, Ext.A13 does not indicate anywhere that the scheduled properties had been a part of erstwhile Seethargundu Estate at any point of time. No convincing evidence was adduced by the appellant to establish that the disputed properties were part of Seethargundu Estate.
11. Appellant's case is that, out of 1009 acres covered by Exts.A1 to A3 documents, there is a balance 90 acres in the Company's possession and scheduled properties form part of that. This case does not appear to be convincing and probable. On the other hand, respondents' case that the scheduled properties are part of neighbouring Palakapandy Estate seems to be more probable and convincing. In paragraph No.8 of Ext.A13 judgment, there is reference to Palakapandy Estate, claimed to be owned by Sri. K.V.Lakshmanan. In Ext.A7 Field Register, there is mention of Sri. K.V.Lakshmanan, as being the occupant of M.F.A. No.138/2006 -:11:- Palakapandy Estate situated in R.Sy. Nos.164/5 & 164/6 which correspond to old survey Nos.861/5 and 861/6. This document sufficiently indicates that scheduled properties did not form part of Seethargundu Estate. This is further reinforced by Ext.A4 M.O.U., dated 17.07.2003 on the basis of which the litigations between the predecessor of appellant and Palakapandy Estate (M/s. Green Acres Private Limited) were settled and Ext.A5 compromise decree followed. Karuna Plantation Limited had brought O.S. No. 106 of 1999 and O.S.No.442 of 1997 in Munsiff Court, Chittur, claiming rights over the scheduled properties as against M/s. Green Acres Private Limited, which were later compromised in A.S. Nos.6 & 7 of 2000 between parties before the District Court, Palakkad. In Ext.A4, M.O.U executed between parties, there is clear admission that the scheduled properties are part of Palakapandy Estate and rights and possession held by Palakapandy Estate were released in favour of Karuna Plantation Limited after acceptance of adequate amount of consideration. These documents certainly will support the case of the respondents that the scheduled properties were not covered by Exts.A1 to A3. In that event, obviously appellant cannot fall back upon and avail the benefit of Ext.A13 judgment to contend that M.P.P.F. Act did not apply to scheduled properties as if they were under any cultivation prior to 14.12.1949. So also mere testimony of PW.1 that M.F.A. No.138/2006 -:12:- properties were cultivated with cardamom and coffee prior to coming into force of vesting Act No.26 of 1971 is not convincing. No independent evidence in this respect has been brought forth in support of PW.1.
12. But the fact remains that the appellant's Company has become the owner of the scheduled properties, subsequent to compromise of all the litigations with Palakapandy Estate and execution of M.O.U. containing the acknowledgement of receipt of consideration and admission that M/s. Green Acres Private Limited has relinquished its interests in respect of 18 acres under dispute. Therefore, the finding of the learned Tribunal that the appellant has no locus standi cannot be upheld as legal and proper. Exts.A4 and A5 sufficiently establish that the appellant's Company is the owner of scheduled properties.
13. Nonetheless the appellant's contention that the properties are part of the Seethargundu Estate was not yet proved. It is also pertinent to note here that the litigations with Palakapandy Estate came into vogue after final decision was taken in M.F.A. Nos.574 of 1989 and 106 of 1990. The appellant's explanation for Karuna Plantation Limited not raising any claim in Ext.A13 proceeding with respect to the purported reminder 90 acres out of 1009 acres is that Ext.B1 notification did not seek to cover up the entire 1009 acres of land held under Ext.A2 sale deed. This is factually incorrect because Ext.B1 notification M.F.A. No.138/2006 -:13:- refers to old survey No. 861 which as per the survey records corresponds to R.Sy. Nos.164/5 and 164/6. Old survey No.861 contains seven sub divisions and scheduled properties comprised in Sy.No.164/5 and 164/6 are therefore part of them as borne out from Ext.A11 letter dated 16.01.2004 issued from Mini Survey Office, Thiruvananthapuram. So it is futile to contend that 90 acres were kept out of Ext.B1 notification and later notified as private forests by Ext.B2 subsequent notification. It appears from Ext.B2 notification that it was intended only to be a clarification for omission of the survey numbers in scheduled properties. It is also noteworthy that Ext.A11 is not sufficient evidence to support appellant's case that scheduled properties are part of its estate since they became part of the estate only after Ext.A5 compromise decree dated 31.07.2003 came to be passed. In any view of the matter, appellant's Company failed to establish that its predecessors had cultivated the scheduled properties with cardamom and coffee before the vesting Act No.26 of 1971 came into force. In the circumstances, we do not find any valid ground to interfere with the conclusion arrived by the learned Tribunal holding that appellant was not entitled to have scheduled properties to be declared as non private forests though we disagree with the finding in the impugned order that scheduled properties were not owned by the appellant's M.F.A. No.138/2006 -:14:- Company.
In the result, this appeal fails and is dismissed. All pending interlocutory applications will stand closed.
Sd/-
A.HARIPRASAD,JUDGE Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy//
P.A.To Judge