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2023 Supreme(Ker) 101
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.Vinod Chandran, C. Jayachandran, JJ.
State Of Kerala Chief Secretary, Thiruvananthapuram - Appellant
Vs.
Murali, Kuthanoor, Alathur, Palakkad - Respondent
MFA (FOREST) NO. 42 Of 2005
Decided On : 07-02-2023
Advocate Appeared:
For the Appellant : Sri.Nagaraj Narayanan, Spl. G.P. For Forest
For the Respondent: Public Prosecutor Sri.Vinod Kumar.C
Point of Law: For exempting land under S.3(2) of Vesting Act there should be personal cultivation in land as on 10.05.1971.
Headnote:
Kerala Private Forest (Vesting and Assignment) Act, 1971 - Section 3(2) - Madras Preservation of Private Forest Act, 1949 – Property - Impleaded as legal representative - Appeal is filed against common order of Tribunal in two OAs field by father and son - Father is applicant who is no more and hence applicant in other OA is impleaded as legal representative – Any land covered under MPPF Act, even if not lying with characteristics of a forest would come within definition of a private forest under Vesting Act - Para 7.
Finding of the Court: Applicants were not owners as on appointed day under Vesting Act since they obtained ownership and possession of property only by Ext.A2 in year and Ext.A3 in year 1985 - As Court noticed from final decree court also do not see any title on scheduled land, which are said to be included in G schedule in Ext.A1, petitioner in final decree application, from whom applicants are said to have purchased property - Land in Sy.No. was excluded and it could as well be for reason that it is a private forest or that it is not owned by Viswanathanunni Achan; latter of which is possible inference looking at allotment of G schedule property as per Ext.A1 to 7th respondent - On above reasoning court find absolutely no ground to uphold order of Tribunal – Court set aside impugned order and reject application filed before Tribunal.
Result: Appeal allowed.
JUDGMENT :
K.Vinod Chandran, J.
A single appeal is filed against the common order of the Tribunal in two OAs field by the father and son. The father is the applicant in OA No.28/2001 who is no more and hence the applicant in the other OA is impleaded as the legal representative. The applicants were concerned with two extents of property, 65 cents and 1.42 acres in R.S No.539 in Kuthanoor-I Village, Alathur Taluk, Palakkad District. It was the case of the applicant that the properties were set apart to the share of Viswanathanunni Achan in G schedule of the final decree of OS 23/1946; which was concerned with the partition of properties in the family of Kuthannur Padinjare Naduvath. Viswanathanunni Achan assigned the property in OA 28/2001 to the deceased applicant therein and his son obtained the property in OA 27/2001 from the another assignee of Viswanathanunni Achan. The title of the applicants is evident from A2 and A3, the tax receipts issued to the respective properties as per Ext.A4 (a) to (d) and Exts.A5 (a) to (c). Exts.A6 to A9 are proceedings of the Taluk Land Board, Alathur issued in the ceiling proceedings as against Viswanathanunni Achan. The proceedings indicate that though the property in Survey No. 539Pt was treated as vested, it was excluded when re-fixation was granted as per Ext.A9. The applicants claimed that they were cultivating the lands and that their predecessor-in-interest were entitled to exemption under S.3(2) & (3) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for short 'the Vesting Act'). The Divisional Forest Officer, Nemmara, claimed that the scheduled property forms part of Nallekavu Bit II Malavaram having a contiguous area of more than 100 acres falling within the purview of the Madras Preservation of Private Forest Act, 1949 (for short 'the MPPF Act'). The land was surveyed and demarcated as VFC item No. 224/11 in 1976 and published as per notification dt. 11.01.1977 and gazetted as on 18.03.1978. Though the survey number had not been included in the notification an erratum notification is published.
2. The Tribunal raised question of limitation, nature of properties and entitlement to exemption. On the ground of limitation, it was found that the OAs are maintainable. Looking at the order of the Taluk Land Board in the year 1976, it was found that if the land was a private forest it would not have been included in the ceiling proceedings. The plan submitted by the Commissioner as per Ext.C2 was also looked into to find that the properties are lying with bunds on the east, south and west. It was found that the disputed land does not lie as a forest and hence, not liable to be vested under the Vesting Act. The proceedings of the Taluk Land Board were also relied on to find that that the scheduled property held by Viswanathanunni Achan was not in excess of the ceiling limit.
3. We heard Sri. Nagaraj Narayanan, Special Government Pleader (Forest) appearing for the State and Sri.C Vinod Kumar appearing for the respondents.
4. We find no reason to interfere with the finding of the Tribunal that the OAs are maintainable especially since the survey number of the property was not available in the notification. However it has to be noticed that the vesting does not depend upon the notification and the nature and status of the property as on 10.05.1971, the appointed day under the Vesting Act, is relevant. If they are lands covered under the MPPF Act or lie as forest lands within the Malabar District or forests in other areas of the State, then the vesting occurs statutorily as on the appointed day, unless excluded or exempted under the Vesting Act. The Commissioner has visited the property in the year 2002 long after the appointed day under the Vesting Act. The Commissioner reported that the properties contain only few palmirah trees and on the three sides there are some shrubs and thick undergrowth, which separates the scheduled properties from vested forest on its outer margin on all
