Dakshayani v. State of Kerala and Custodian of Vested Forests, MFA (Forest) No. 52 of 2006-E

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 25TH DAY OF JULY 2013/3RD SRAVANA, 1935 ## MFA.(FOREST) No. 52 of 2006 ( ) ----------------------------------------------- (AGAINST THE ORDER/JUDGMENT IN OA 10/2004 of FOREST TRIBUNAL, KOZHIKODE DATED 30-09-2005) ............................................... APPELLANT(S)/APPLICANT: -------------------------------------- SMT.DAKSHAYANI, AGED 49 YEARS, W/O.MALAYIL BHASKARAN, ELUMBLASSERY P.O. KARAKKURUSSI (VIA), OTTAPPALAM TALUK PALAKKAD DISTRICT. BY ADV. SRI.K.P.BALAGOPAL ## RESPONDENT(S):RESPONDENTS: ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE PALAKKAD. BY SRI.MADHAVANKUTTY, SPL. GOVERNMENT PLEADER FOR FOREST. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** --------------------------------------------- M.F.A.(FOREST) No.52 of 2006-E ----------------------------------------Dated, this the 25[th] day of July, 2013 ## J U D G M E N T ## K.M.Joseph, J. Appellant challenges the order passed by the Forest Tribunal, Kozhikode in O.A.No.10/2004. By the said order, the application filed by the appellant/petitioner under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act (the 'Act' for short) came to be dismissed. The case of the appellant in brief is as follows: The petition schedule property and other properties belonged in jenm to Elumblassery Moopil Sthanam. Petitioner's father Sankunni obtained verumpattam right over the properties including the petition schedule property. He obtained purchase certificate from Land M.F.A.(FOREST) No.52 of 2006-E 2 Tribunal. On partition under document No.2061/1981, the property shown in the K schedule to the document was allotted to the petitioner. The said property is inclusive of the petition schedule property. Ever since the acquisition of the property, it was put under seasonal cultivation such as ginger, turmeric etc. Rubber was also planted. The disputed property was not a private forest. It did not vest in government. The provisions of the Madras Preservation of Private Forests Act (the MPPF Act for short) did not apply to the disputed property. The petitioner and her predecessors did not possess lands exceeding the ceiling limit. There was no due publication of any notification. 2. Respondents in the counter affidavit contended that the petition schedule property is part of a private forest measuring 160.85 hectares vested in M.F.A.(FOREST) No.52 of 2006-E 3 government. Before vesting, the area was governed by the erstwhile MPPF Act. The disputed property is comprised in a huge malavaram called Pombra malavaram. The disputed land is included in VFC item No.80 in notification No.D-1383/77 dated 10.10.79. The notification was duly published including in two Malayalam dailies. The petitioner has no title to the disputed property. The land was not put under any cultivation. The area is having very good growth of various trees like rosewood, irul, vaka, mutty, vatta, sindooram etc. The attempt of the petitioner is to grab forest land on the strength of an invalid document executed 10 years after the vesting of the property in government. The petition is barred by limitation. 3. Petitioner's husband was examined as Pw1 . Exts.A1 to A10 were marked on the side of the M.F.A.(FOREST) No.52 of 2006-E 4 appellant. There is no evidence on the side of the respondents. The report and plan filed by the Advocate Commissioner was marked as Exts.C1 and C2. The Tribunal found that the appellant had failed to prove that the MPPF Act did not apply to the petition schedule property immediately before the appointed day. The Tribunal also did not find any merit in the contention based on Section 3(2) of the Act finding that there was no cultivation before 10.5.1971. As far as Section 3 (3) is concerned, the Tribunal found that only the owner of the property as on 10.5.71 can claim exemption under Section 3 (2) of the Act. It is a case where Ext.A1 document relied on by the appellant is dated 28.7.81 much after the appointed date. Aggrieved by the order of the Tribunal, the appellant is before us. M.F.A.(FOREST) No.52 of 2006-E 5 4. We heard the learned counsel for the appellant and learned Special Government Pleader. 5. Learned counsel for the appellant contended that the petition schedule property is not forest and the MPPF Act do not apply. It is submitted that, the notification was not produced. It is also contended that there was seasonal cultivation done. It is submitted that, therefore, the appellant is entitled to the benefit of Section 3 (2) of the Act. 6. Per contra, learned Government Pleader would submit that, no case is made out for interference. 7. We may notice the reasoning of the Tribunal. The Tribunal finds that the respondents contended that the MPPF Act apply to the petition schedule property and that the schedule is part of private forest measuring 160.85 hectares. The burden M.F.A.(FOREST) No.52 of 2006-E 6 of proof is on the appellant. Appellant has examined her husband as Pw1. The witness admits as Pw1 that Pombra malavaram exists. He deposed that he does not know whether the total extent is 400 acres. More importantly, he would depose that the he does not know whether the disputed property is comprised in the said malavaram. No earnest effort was taken by the appellant to prove that the disputed property did not lie contiguous with other forest areas exceeding 100 acres. It is further stated that Commissioner was not asked to report whether the disputed property lay contiguous with forest areas of 100 acres or whether the property was comprised in the malavaram. Exts. C1 and C2 shows that the disputed property shares boundaries with vested forest, it is stated. 8. The Tribunal also considered the case of the M.F.A.(FOREST) No.52 of 2006-E 7 appellant as to whether it is not a private forest based apparently on clause (c ) to Section 2 (f) (1) (i) of the Act. It is found that the evidence of Pw1 is not sufficient. More over, it is found that no case is set up to prove that lease was granted orally. Verumpattam lease is referred to in the 'K' schedule to Ext.A1 partition deed. It is only at the time of trial it was stated that the lease was oral. More importantly, it is found that, as per the petition the case of the appellant is that, the property belonged in jenm to Elumblassery Moopil Sthanam and petitioner's father Sankunni obtained verumpattam right. But, Pw1 has given evidence to the effect that original lessee was appellant's grandfather Krishnan and appellant's father inherited the said right. Contradiction was found between pleadings and evidence. As to what is the rent is not disclosed. It M.F.A.(FOREST) No.52 of 2006-E 8 is found that the appellant even failed to prove that the disputed property is portion of the property shown in the 'K' schedule to Ext.A1. Exts.A2 to A9 in fact are tax receipts earliest of which is Ext.A2 in the year 1984. Ext.A10 purports to be the possession certificate dated 3.2.2005. Ext.C2 is the survey plan. 9. As found by the Tribunal, the appellant, in our view, has failed to discharge her burden and to show that the property was not private forest or that the MPPF Act did not apply. No doubt, we notice that, the notification is actually produced along with the counter. But, it is not marked in evidence. Merely because the notification is not produced, we cannot hold that there is no vesting. 10. As far as the claim that there is cultivation, the only evidence is the evidence of the M.F.A.(FOREST) No.52 of 2006-E 9 husband of the appellant. We would think that, there is no basis made out for accepting the case of the evidence tendered by Pw1. It may be true that, in the reexamination he has said that the malavaram is 1 km away. We remind ourselves that it has come from the mouth of the very same witness in cross examination that he does not know whether the total extent is 400 acres and whether the disputed property is comprised in the Pombra malavaram. Whatever that be, we do not think that the evidence of Pw1 is sufficient for the appellant to discharge the burden. As far as Section 3(2) and 3 (3) of the Act is concerned, once it is found that the property is covered by the MPPF Act, there is no case for the appellant that permission is obtained from the Collector. Therefore, we cannot possibly act on the same. Though we may not agree with the finding that M.F.A.(FOREST) No.52 of 2006-E 10 the person must be the owner on 10.5.1971 in view of the decision in _Parameswara Sastrigal v. State of Kerala (2008 (2) KLT 461 (FB)),_ but even proceeding on the said judgment, in the nature of the evidence and also the infirmity that there is no sanction from the District Collector, we see no merit in the said contention. The appeal is without merit. Hence, it is dismissed. (K.M.JOSEPH) JUDGE. ( A.HARIPRASAD) JUDGE. MS