GOPALAN S/O SANKARAN EZHUTHACHAN v. STATE OF KERALA & CUSTODIAN OF VESTED FOREST

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944 MFA (FOREST) NO. 86 OF 2015** **AGAINST THE ORDER IN OA 10/2012 OF FOREST TRIBUNAL, KOZHIKODE APPELLANT:** GOPALAN, AGED 58 YEARS S/O.SANKARAN EZHUTHACHAN, PADINJARETHIL VEEDU, MELOOR, OTTAPALAM. BY ADV SRI.C.K.SREEJITH ## **RESPONDENTS:** 1 STATE OF KERALA REP. BY THE PRINCIPAL SECRETARY (FOREST & WILD LIFE) THIRUVANANTHAPURAM 695 001. 2 CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD 678 002. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A(F).86/2015 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A[F].No.86 of 2015 -------------------------------------Dated this the 21[st] day of February, 2023** ## **J U D G M E N T** ## **Jayachandran, J** Under challenge in this appeal is the order of the Forest Tribunal, Kozhikode in O.A. No.10/2012, which dismissed an application filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ('the Vesting Act', for short). The applicant/appellant sought for a declaration that the scheduled property is not a private forest, which vested with the Government under the Vesting Act; and alternatively, for exemption under S.3(2) or 3(3) of the Vesting Act. Both the prayers were rejected and the O.A was dismissed. The aggrieved applicant is the appellant. M.F.A(F).86/2015 3 ## **2.** The Facts: The scheduled property having an extent of 60 cents comprised in Sy. No. 100/1 of Ambalappara II village belongs to the applicant as per Ext.A1 document of the year 1981. The property was being cultivated prior to 1920, which continued thereafter. The character of the soil supports cultivation. The scheduled property was surrounded by lands of similar nature. It has no characteristic features of a private forest. The Madras Preservation of Private Forests Act, 1949 ['the M.P.P.F. Act', for short] does not apply to the scheduled property as on the appointed day. The scheduled property is only a parcel of dry land without any forest growth. The possession and enjoyment of the property was disturbed by the forest officials on 26.04.2012, without any enabling notification declaring the same as a vested forest. The applicant hence sought for a declaration that the scheduled property is not a private forest as defined under the Vesting Act. On M.F.A(F).86/2015 4 the strength of an additional pleading that the applicant is not in possession of any land in excess of the ceiling limit, the relief of exemption under subsections (2) and (3) to S.3 were also sought for. **3.** The Divisional Forest Officer, Palakkad filed counter statement alleging that the scheduled property is part of a huge malavaram by name 'Ananganmala', which vested with the Government by virtue of S.3(1) of the Vesting Act. The property, including the scheduled one, was notified as a vested forest, upon completion of demarcation as V.F.C. Item no.57, vide notification dated 10.10.1979. The same was duly published as well, wherefore, the original application preferred 32 years after the publication is barred by the law of limitation. The applicant is neither the owner; nor in possession of the scheduled property. The same is bounded on all sides by vested forests. The property was not cultivated as on the date of vesting. It was a private forest, to which the M.P.P.F. Act applied M.F.A(F).86/2015 5 as on the appointed day. On such premise, the respondents sought for dismissal of the O.A. **4.** The applicant got himself examined as PW1, through whom, Exts.A1 and A2 were marked. Two other witnesses were examined as PW2 and PW3 respectively. The Forest Range Officer concerned was examined as RW1, who marked Ext.B1 to B6 documents. The Commissioner's report and plan were marked as Exts.C1 and C2 respectively. **5.** The Tribunal, on analysis of the facts and evidence, found that the scheduled property is a private forest, which is not liable to be excluded under any of the clauses (A) to (D) to S.2(f)(1)(i) of the Vesting Act. The Tribunal also found that the applicant failed to establish the cultivation claimed in the property, as also the intent to cultivate, to negate the claim under S.3(3) of the Act. Based on the above findings, the O.A. was dismissed. M.F.A(F).86/2015 6 **6.** Heard Sri.Benny Jose, learned counsel for the appellant and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests), on behalf of the respondents. Perused the records. **7.** Learned counsel for the appellant contended that the Tribunal seriously erred in eschewing the evidence tendered by two independent witnesses PW2 and PW3, who spoke of the cultivation carried on in the scheduled property even prior to the appointed day. It was submitted that Ext.A2 of the year 1958 refers to cultivation in the scheduled property. Relying upon the judgment of the Honourable Supreme Court in **Joseph And Another v. State of Kerala and** **Another** [2007(10) SCC 414], learned counsel canvassed for a liberal approach while considering a claim for exemption under S.3(2) and 3(3) of the Vesting Act. The Tribunal, having found the title of the appellant's predecessor based on a registered document executed prior to the appointed day, should M.F.A(F).86/2015 7 have also found the cultivation - or atleast the intention to cultivate - to grant the relief of exemption under S.3(3) of the Vesting Act, is the final submission of the learned counsel for the appellant. **8.** Opposing the above submissions, learned Special Government Pleader argued in support of the impugned judgment. The appellant miserably failed to establish the requirements under S.3(2) and 3(3) of the Vesting Act to claim the exemption. As per Ext.C1 report of the Commissioner, the rubber trees were aged between 25-30 years, which relates back only to the year 1983; whereas, the status of the scheduled property as on 10.05.1971 has to be considered for the purpose of exemption. The order impugned warrants no interference is the submission of the learned Special Government Pleader. **9.** Having heard the learned counsel appearing on both sides, we will first examine whether the M.F.A(F).86/2015 8 scheduled property is a private forest as defined in the Vesting Act. **10.** Going by the definition, any land in the erstwhile Malabar District to which M.P.P.F. Act applied immediately before the appointed day is a private forest, excluding those category of lands which are described in clauses (A) to (D) to S.2(f) (1)(i). As per S.1 of the M.P.P.F. Act, the same applies to all private forests in the districts of Malabar and South Kanara having a contiguous area exceeding 100 acres. According to the respondents, the scheduled property is part of a huge malavaram by name 'Ananganmala'. Ext.B1 is the notification produced by the respondents and vide serial no.83, the property which vested with the Government as a private forest, including the scheduled property, has a total extent of 1015 hectares. This aspect was spoken to by RW1, the Forest Range Officer concerned. There is no quarrel that the scheduled M.F.A(F).86/2015 9 property is situated in the erstwhile Malabar district. As per Ext.C1 report, the eastern boundary is a vested forest. In Ext.B2 periphery sketch of the forest department, the scheduled property stands included. The burden of proof to establish that the scheduled property is not a private forest is squarely upon the applicant, as held by this Court in **State of Kerala v. Thomas** [1987(1) KLT 530], **State of Kerala v. Kunhiraman** [1990(1) KLT 382] and **State** **of Kerala v. Chandralekha** [1995(2) KLT 152(F.B.)], which received the seal of approval of the Supreme Court in **State of Kerala and Another v. Popular Estates and Another** [(2004)12 SCC 434]. As against the evidence afore-referred adduced by the respondents, the applicant has not adduced any evidence to establish that the scheduled property is not a private forest. The burden cast is not seen assumed. We are, therefore, in perfect agreement with the finding of the Tribunal that the scheduled property is a private forest. Besides, as rightly M.F.A(F).86/2015 10 found by the Tribunal, the applicant has no claim or pleading for any exclusion under clauses (A) to (D) of S.2(f)(1)(i). The version of the applicant that the scheduled property is a rubber plantation would not qualify for exclusion under clauses (B) to S.2(f)(1)(i), since cultivation in rubber is not established to be existing as on the appointed day, going by the age of the rubber trees reported in Ext.C1 report. We, therefore, confirm the finding that the scheduled property is a private forest as defined in the Vesting Act. **11.** We would now address the question whether the applicant is entitled to exemption under S.3(2) or 3(3) of the Vesting Act. The Tribunal proceeded on the premise that the essence of the applicant's claim for exemption is under S.3(3), with which, we are not in complete agreement. The applicant had specifically claimed exemption under S.3(2), as also, under S.3(3), albeit the requirements of both M.F.A(F).86/2015 11 are different and distinct. We will therefore consider whether the applicant is entitled to exemption under either of the two subsections. **12.** As regards the claim under Section 3(2) of the Vesting Act, all what is seen pleaded in the O.A. is that the scheduled property was being cultivated with rubber prior to 1920. The same is the situation with respect to the proof affidavit preferred by the applicant, as PW1. Ext.C1 report of the Advocate Commissioner the same would lend no support, whatsoever, to the claim of the applicant as regards cultivation of rubber as on the appointed day. The Commissioner, upon inspection of the scheduled property in the year 2013, found that there exists about 85 rubber trees of the age between 25-30 years and 4 jack fruit trees aged 30-35 years. Going by the age of the rubber trees, as reported by the Commissioner, the cultivation in rubber relates back to the year 1983 only. The version of applicant/PW1 M.F.A(F).86/2015 12 that rubber was planted in the scheduled property after he purchased the same in the year 1981 has to be read along with this. PW2, a person who claimed to have worked in the scheduled property, had gone one step further to state that the scheduled property was being cultivated with paddy, ginger and turmeric. Relevant in this context to notice that the applicant had no such claim. Analyzing the evidence of PW2, the Tribunal picked up discrepancies in his version, of compound wall on all the four sides, the rectangular shape of the scheduled property and about the Panchayath road spoken of on the western side, all belied by the contents of the Commissioner's report. PW2 also admitted that PW2 and PW3 are permanent employees of PW1. The versions of PW2 and PW3 has not inspired confidence in the mind of the Tribunal, with which finding, no exception can be taken. In so far as the evidence adduced by PW1 is concerned, we notice that, to substantiate a claim under Section 3(2), M.F.A(F).86/2015 13 the interested testimony of the applicant alone is not sufficient (see in this regard, **State of Kerala** **v. Alexander** [1993 KHC 168]). The upshot of the above discussion is that there exists no tangible evidence to establish that cultivation claimed in the scheduled property as on the date of vesting, i.e, 10.05.1971. We also notice that the applicant purchased the scheduled property as per Ext.A1 document of the year 1981 and he had not chosen to examine any of his predecessors, who were in possession of the scheduled property as on the appointed day in proof of cultivation. We reject the claim for exemption under S.3(2). **13.** What remains is the claim under Section 3(3) of the Vesting Act, where, the 'intention to cultivate' looms large. We may immediately notice that the 'intention' spoken of in S.3(3) is that of the owner, who held the disputed property under a valid registered document of title executed before the appointed day. The applicant purchased the property M.F.A(F).86/2015 14 only in the year 1981. Ext.A2 is a sale deed of the year 1958, as per which, one Madhavan Nair got title to the scheduled property, from whom, the applicant purchased the same in the year 1981. Therefore, as on the appointed date, the above referred Madhavan Nair was the owner of the scheduled property and what matters, for the purpose of S.3(3), is the intention to cultivate, if any, of the said owner. However, there is complete dearth of evidence on this aspect. Neither the applicant/PW1, nor PW2 and PW3, who were examined to vouch the cultivation in the scheduled property, spoke about the intention of the prior owner. Nor do we consider them to be competent witnesses to speak of the said aspect, which stems from the mental state of the said owner. The prior owner was admittedly not examined. We, therefore, uphold the finding of the Tribunal that the applicant is not entitled to the benefit of exemption under S.3(3) of the Vesting Act. M.F.A(F).86/2015 15 In the above referred facts and circumstances, we find no merit in the instant appeal. We dismiss the appeal, confirming the order of the Tribunal and relegating the parties to bear their respective costs. Sd/- **K.VINOD CHANDRAN** **JUDGE** Sd/- **C.JAYACHANDRAN JUDGE** Sbna/