K. Subramanian v. State of Kerala and 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. 40 OF 2014** ## **AGAINST THE ORDER IN OA 14/2010 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANT:** K.SUBRAMANIAN S/O.LATE K.S NAMBOODIRIPAD,KOZHISSERI MANA, SHORNUR, OTTAPALAM TALUK, P.O SHORNUR 679 121 BY ADVS. V.R.KESAVA KAIMAL C.DEVIKA RANI KAIMAL(D-63) ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, FOREST AND WILD LIFE, P.O THIRUVANANTHAPURAM 695 101 2 CUSTODIAN OF VESTED FOREST ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD, P.O OLAVAKKODE 678 002 BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **OTHER PRESENT:** SPL.GP(FOREST)-SRI.NAGARAJ NARAYANAN 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).40/2014 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A[F] No.40 of 2014 -------------------------------------Dated this the 21[st] day of February, 2023** **J U D G M E N T** ## **Jayachandran, J.** An application under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ['the Vesting Act', for short] was dismissed by the Forest Tribunal, Kozhikode by the impugned order in O.A.No.14/2010. The Tribunal found that the scheduled property was a private forest, governed by the Madras Preservation of Private Forests Act, 1949 ('M.P.P.F.' Act, for short), without qualifying for exclusions provided under clauses (A) to (D) of S.2(f)(1)(i) of the Vesting Act. As regards exemption under S.3(3), though the Tribunal found that the appellant/applicant derived title under a M.F.A(F).40/2014 3 valid registered document executed before 10.05.1971, the applicant failed to establish that he had necessary intention to cultivate the property as on the appointed day. Besides, the requirement of the applicant not holding the property in excess of the ceiling limits under the Kerala Land Reforms Act was also found against. Accordingly, exemption sought for under S.3(3) was declined. The said order is under challenge in this appeal. **2.** The Facts: The scheduled property having a total extent of 5 acres, of which, 3 acres is comprised in Sy.no.1/1 and the remaining 2 acres, in Sy.no.1/5 of Shornur Village, along with other items belonged to Kozhisseri Mana in jenmom. The scheduled property was allotted to the share of one Narayanan Namboodiripadu, vide item 10 to schedule E of Partition Deed no.718 of 1961 of the S.R.O, Pattambi. Upon his death, his rights over the M.F.A(F).40/2014 4 scheduled property devolved upon his children namely, the applicant, Shankaran Namboodiripadu and Narayanan Namboodiripadu. The present application is filed representing the cause of the co-owners as well. The scheduled property is not a private forest, but only a dry land. There is no natural forest vegetation therein. Nor was the property governed by the MPPF Act. The surrounding properties are also parambas and households. The scheduled land was cultivated with fugitive crops by the applicant's predecessor-in-interest as on 10.05.1971. He possessed the same with the intention to cultivate. He was not in possession of any land in excess of the ceiling limit. On such premise, the applicant sought for exemption under S.3(2) and 3(3) of the Act. It was also contended that, there was no proper notification under Rule 2(A)(2) of the Vesting Rules. **3.** The Divisional Forest Officer filed counter affidavit contending that the disputed property M.F.A(F).40/2014 5 forms part of a huge malavaram by name 'Anthimalankad' Bit-I (spoken of as 'Anthimahakalankadu' in evidence). The same was notified as a private forest after demarcation as V.F.C.item no.74 dated 18.03.1978. An erratum notification correcting the omission in survey numbers was issued on 25.11.2009. It was duly published also. The applicant had not produced any authorization to represent other co-owners as well. The disputed property is a typical forest area, with growth of forest trees. It was private forest as on 10.05.1971. The scheduled property is bounded on three sides with vested forest. On such premise, the respondents sought for dismissal of the O.A. **4.** The evidence in this case consists of Exts.A1 to A5 supported by the oral evidence of applicant as PW1 and another/PW2. The Forest Range Officer concerned was examined as RW1, through whom, Exts.B1 to B3 were marked. The Commissioner's report and M.F.A(F).40/2014 6 plan were marked as Exts.C1 and C1(a). **5.** on analysis of the facts and evidence, the Tribunal dismissed the O.A., for the reasons and considerations already adverted to above in paragraph no.1 of this judgment. **6.** Heard Sri.V.R.Kesava Kaimal, learned counsel for the appellant and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) on behalf of the respondents. We perused the records. **7.** The first question to be addressed is whether the scheduled property is a 'private forest' in terms of its definition under S.2(f) of the Vesting Act. 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 M.F.A(F).40/2014 7 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 'Anthimalankadu' Bit-I. Ext.B1 is the notification produced by the respondents and vide serial no.99, the property which vested with the Government as a private forest, including the scheduled property, has a total extent of 133.39 hectares. As per Ext.B3 erratum notification, the land comprised in Sy.nos.1/1 and 1/5 of Shornur-I village were also included as a vested forest under V.F.C.item no.74. This aspect was spoken to by RW1, the Forest Range Officer concerned. There is no quarrel that the scheduled property is situated in the erstwhile Malabar district. The northern and western boundaries of the scheduled property as per Ext.A1 title deed, as also, Ext.C1 commission report are vested forests. In Ext.B2 periphery sketch of the forest department, the scheduled property stands included. The cultivation of the land, if any, after M.F.A(F).40/2014 8 1949 is of no moment. The legal position was expatiated by a five Judges Bench of this Court in **State of Kerala v. Moosa Haji** [1984 KLT 494 (FB)] in the following words: “We are unable to accept this contention, Section 2(f)(1) of the Vesting Act defines 'private forest' as any land, whatever be its nature or character. If the MPPF Act was applicable to the land in 1949, and if it continued to apply to it up to 10/05/1971, that land will be a private forest for the purposes of the Vesting Act. The question is not whether there was a forest in existence in 1971; it is whether there was any land in 1971 to which the MPPF Act was applicable in 1949 and continued to be under its coverage till 1971.....” 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 9 ## M.F.A(F).40/2014 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 aforereferred 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 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). We therefore confirm the finding that the scheduled property is a private forest. **8.** 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 M.F.A(F).40/2014 10 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 are different and distinct. We will therefore consider whether the applicant is entitled to exemption under either of the two sections. **9.** As regards the claim under Section 3(2) of the Vesting Act, all what is seen pleaded in the O.A. is cultivation of fugitive crops, without specifying the particular specie of crop cultivated. On examination of PW1, the applicant would claim that the scheduled property was cultivated with tapioca from olden times and also during 10.05.1971. PW2, a person who was a labourer under the applicant and who claimed to have worked in the scheduled property, had gone one step further to state that the scheduled property was being cultivated with 'plantains' and 'poola'. Significantly, the cultivation claimed by the applicant was not stated M.F.A(F).40/2014 11 by PW2 in his evidence and cultivation deposed of by PW2 is not referred to by PW1. It has been elicited in cross examination that, PW2 is residing in the land which was given to him by the applicant, as jenmi. The evidence adduced by PW2 has not inspired confidence in the mind of the Forest Tribunal, with which finding, we cannot take any exception. In so far as the evidence adduced by PW1 is concerned, we notice that, to substantiate a claim under Section 3(2), the interested testimony of the applicant is not sufficient (see in this regard, **State of Kerala v. Alexander** [1993 KHC 168]). Now coming to Ext.C1 report of the Advocate Commissioner, the same would lend no support, whatsoever, to the claim of the applicant as regards cultivation. The Commissioner upon inspection of the scheduled property found that there is no cultivation, whatsoever, in the scheduled property and that, there is not even any sign of cultivation. The net result of the above discussion is that, there is no tangible evidence M.F.A(F).40/2014 12 before the Court in support of the cultivation claimed in the O.A. The claim under S.3(2) is therefore repelled. **10.** What remains is the claim under Section 3(3) of the Vesting Act, where, the 'intention to cultivate' looms large. We endorse the finding of the Tribunal that the applicant is claiming title under a registered document executed prior to the appointed day. The applicant claims title under Ext.A1, a partition deed of the year 1961, as per which, the applicant's father Narayanan Namboodiri got title to the scheduled property, vide item no.10 to schedule E of the document. Pursuant to his death, the scheduled property, along with other items, devolved upon his children namely, the applicant, Shankaran Namboodiri and Narayanan Namboodiri. The applicant claims that the O.A. is preferred on behalf of other co-owners as well. We are satisfied of the primary requirement under Section 3(3) to have the title under registered document executed prior to the M.F.A(F).40/2014 13 appointed day. However, as regards the intention to cultivate, we find serious dearth of evidence. The Honourable Supreme Court in **Joseph and another v. State of Kerala** [2007(10) SCC 414] held thus as regards intention to cultivate. 'Intention to cultivate by the owner of the land, we think, has to be gathered not only in regard to the fact situation obtaining at a particular time but also with regard to the subsequent conduct of the parties. If the activity in regard to cultivation of land or development thereof is systematic and not sporadic, the same also may give an idea as to whether the owner intended to cultivate the land. The words ‘intend to cultivate’ Clearly signify that on the date of vesting the land in question had not actually been cultivated in its entirety but the purchaser had the intention of doing so. Such intention on the part of the purchaser can be gathered from his conduct in regard to the development of land for making it fit for cultivation preceding to and subsequent to the date of vesting.' M.F.A(F).40/2014 14 Even a liberal construction as to the intention to cultivate would not come to the rescue of the applicant in the given facts. True, it is pleaded in the O.A. that the properties were held with the intention to cultivate the scheduled property in future also, which claim is simultaneous with the claim as regards actual cultivation of the scheduled property claimed as on the appointed day. However, there is no whisper, whatsoever, in the evidence adduced by PW1 as regards his intention to cultivate the scheduled property. Nor did PW2 speak of such an intention, which, ofcourse, is not a matter for PW2 to depose. The Commissioner who visited the property during 2011 could not find any cultivation or signs thereof in the scheduled property. The relevant findings are extracted herein. 'സർവവ്വേ നമ്പർ 1/1 ൽ ഉൾപപ്പെട്ട വഹകളളിൽ എപന്റെ സന്ദർശന - - 7 , 7 സമയതത്ത് 6 വർഷവതത്തോളളം പത്തോയമമുള്ള ശശീമപകത്തോന്നയമുളം 5 വർഷളം പത്തോയളം വരമുന്ന റബ്ബർപകത്തോട്ട മരങ്ങളമുമത്തോണത്ത് കത്തോണത്തോൻ . സത്തോധളിചളിട്ടമുള്ളതത്ത് ഭഭൂരളിപകളം പവദേശങ്ങളളിൽ വമൽ പസ്ത് ത്തോവളിച M.F.A(F).40/2014 15 . മരങ്ങളത്തോണത്ത് വളർന്നത്ത് നളിൽകമുന്നതത്ത് ഈ വഹകളളിൽ കമുറചത്ത് പത്തോഴമരങ്ങളമുളം തഭൂന പളിരളിചമു കളിടകമുന്ന കമുറചത്ത് മമുൾപചടളികളമുളം . കത്തോണപപ്പെട്ടമു വഹകളളിൽ അടളികത്തോടമുകൾ ഇലലത് തമുളം വനഭഭൂമളിയളിൽ ഉണത്തോവമുന്ന തരതളിലമുള്ള മരങ്ങവളത്തോ പചെടളികവളത്തോ ഇലലത് തത്തോണത്ത്.' The same is the situation with respect to the property in Sy.no.1/5. We are therefore of the opinion that, there is complete dearth of evidence to infer the intention on the part of the applicant to cultivate the scheduled property, either based on the state of affairs prevailing as on the appointed day, or based on the prior or subsequent conduct of the applicant. **11.** The finding of the Commissioner that there is no undergrowth or trees of a forest species in the scheduled property cannot enure to the benefit of the applicant. As per the definition of a private forest, 'any land' to which the M.P.P.F. Act applied as on the date of vesting will be a private forest, unless it qualifies for any of the exclusions in M.F.A(F).40/2014 16 clauses (A) to (D) of S.2(f)(1)(i) of the Vesting Act. 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/