Leela and Chandran v. State of Kerala and Custodian of Vested Forests

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934 ## MFA.No. 96 of 2006 ---------------------ORDER IN OA.10/2003 of FOREST TRIBUNAL, KOZHIKODE .......... APPELLANTS: 1. LEELA, D/O. PAZHANAN, CHEMMANANTHONDKALAM, POTHUNDY, PALAKKAD DISTRICT. 2. CHANDRAN, S/O. PAZHANAN, CHEMMANANTHONDKALAM, POTHUNDY, PALAKKAD DISTRICT. ## BY ADV. SRI.A.R.GANGADAS RESPONDENTS: 1. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, ARANYABHAVAN, OLAVAKKODE, PALAKKAD. R1 & 2 BY SPL. G.P. (FOREST) SRI.M.P.MADHAVANKUTTY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Hema & P.S.Gopinathan, JJ. ---------------------------------- M.F.A.(Forests)No.96 of 2006 ---------------------------------Dated this the 12[th] day of November, 2012 ## **JUDGMENT** Hema, J. Appellants 1 and 2 filed an application before the Forest Tribunal for an order declaring that petition schedule properties are not private forest and also that first appellant is entitled to the benefit under Section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ('the Act' for short). There was also a prayer for restoration of the properties to first appellant, if it is taken possession of by the Forest Department. The Forest Tribunal, after taking evidence and consideration of the rival contentions, dismissed the application. Hence this appeal. 2. According to appellants, petition schedule properties belong to first appellant and it is being managed by second appellant, since first appellant is a deaf and dumb person. She is also the sister of second appellant. As per Ext.A1 partition deed, petition schedule properties were allotted to the share of first MFA 96/06 2 appellant and it is having a total extent of 5.20 acres lying in two survey number (Sy.nos.839 and 840). The petition schedule properties are not private forest, but it is dry land. 3. According to appellants, the land was taken on lease by the predecessor in interest of first appellant along with other lands for the purpose of cultivation. The properties include paddy land as well. The land was taken on lease to be used as seed bed and also to grow, nurse and protect plants and tress which can be used as green manure for the purpose of cultivation. A portion of the petition schedule properties situated on the western side and mostly comprised in Survey no.839 was earmarked for raising seedlings. Black gram was also cultivated therein. 4. Tapioca cultivation was also done in the property. Miscellaneous trees were planted and cultivated for extracting green manure. Some space was used for cultivation of seasonal crops. The cultivation started right from the beginning of the lease and continued as on 10.05.1971. The appellant and their predecessor in interest did not possess land in excess of the ceiling area and therefore, first appellant is entitled to the benefit under Section 3(2) of the Act, it is further contended. MFA 96/06 3 5. Respondents filed counter affidavit and contended that petition schedule properties are having plenty of forest growth and mostly of teak trees. It is not fit for any cultivation. The fact that there was cultivation is not correct. The petition schedule properties along with other forest properties were surveyed and demarcated by fixing survey stones in 1976 and it is protected as vested forest, free from any encumbrances and encroachments. The petition schedule properties are vested in the Government. The appellants are trying to encroach upon the vested forest and grab the vested forest and therefore, the application is not maintainable, it is further contended. 6. PW1 was examined and Exts.A1 to A13 were marked on the side of the appellants. RW1 was examined and Exts.C1 and C2 were marked on the side of the respondents. On consideration of the rival contentions, learned Tribunal found that the properties have all the characteristics of a forest. The appellants failed to prove that the disputed property was not a private forest as on 10.05.1971. The claim made under Section 3 (2) of the Act was also rejected. MFA 96/06 4 7. Heard both sides. Perused the records. Learned counsel for appellants strongly argued that in the light of the commission report, it can easily be seen that the disputed property is not forest. The commissioner reported that there are forty trees which are teak, rosewood, etc. In the light of the dictum laid down in **State of Kerala v. Anglo- American Direct Tea Trading Co.Ltd.** (1980 KLT 215), forest has a definite meaning, even though it is not defined under the Act. Forest, as per the said decision, is a larger extent of tract of uncultivated area, with trees and underwood. But, there is absolutely no whisper in the commission report that there was underwood in any portion of the property. Therefore, the finding that property is not a private forest is not correct, it is argued. 8. It is also contended that in the notification Ext.B1 as item no.60, details of a vested forest are shown. The said property lies on the eastern side of the petition schedule properties, as admitted by RW1 in his evidence. But, as per Ext.B1, on the western side of item no.60, petition schedule properties are shown as the boundary. Sy.nos.839 and 840 are also shown therein as the boundary. It is also submitted that if, MFA 96/06 5 in case, petition schedule properties are vested forest, the western boundary of the property shown as item no.60 in Ext.B1 would have been described as vested forest. 9. In the absence of doing so and in the light of the specific details shown with reference to survey numbers, it has to be held that petition schedule properties were not treated as vested forest at least at the time of issuance of Ext.B1 notification in the year 1977, it is submitted. In such circumstances, the finding in the impugned order that petition schedule properties are not private forest is to be set aside, it is argued. 10. Learned Special Government Pleader (Forests) strongly argued that none of the contentions of appellants are sustainable. It was pointed out that there is only a reference to survey nos.839 and 840 in Ext.B1 as against item no.60. But, that does not mean that it has any reference to the petition schedule properties. It is pointed out that it has not been brought out in evidence that the property referred to in Ext.B1 as the boundary in survey nos.839 and 840 are the petition schedule properties. The properties in survey nos.839 and 840 are having MFA 96/06 6 extensive area and it cannot be said that the western boundary of the property referred to in Ext.B1 as item no.60 is the petition schedule properties. Therefore, the argument raised on behalf of the appellant that Ext.B1 will support the contention that petition schedule properties are not private forest cannot be accepted, it is submitted. 11. Regarding the argument that in respect of the details in the commission report, it was strongly argued that no steps are taken by the appellants to get the commission report remitted. It is also submitted that details in the commission report will clearly show that the property in dispute is not a private forest and no cultivation is made in the property, as contended by the appellants. 12. On hearing both sides and on going going through the records, evidence and commission report, we find force in the argument raised by the learned special Government Pleader. The specific pleading of the appellants in the petition is that petition schedule properties are dry land and not private forest. But, there is nothing in the commission report Ext.C1 to show that petition schedule properties are dry land. It is also contended MFA 96/06 7 that there was cultivation of tapioca, back gram and seasonal crops in the petition schedule properties, but the commission report does not reveal anything to indicate that there is such cultivation in the properties. It is also seen from the pleadings that petition schedule properties included paddy lands, but such contention is also not substantiated by the details shown in the commission report. Therefore, appellants have not substantiated any of the contentions raised in the pleadings or in the evidence. 13. PW1, who is the second appellant, was examined in this case and he specifically stated that there was cultivation in the property. But except his interested testimony, there is nothing in the commission report to support the claim. It can also be seen that appellants have not taken any steps to get the commission report remitted for collection of additional materials in support of their case. An objection is seen filed by the second appellant to the commission report, but there is not even a prayer for remitting the commission report. 14. It is not stated in the objection to commission report that there was cultivation in the properties and that said fact was omitted to be noted by the Commissioner. In the written MFA 96/06 8 objection, it is also not contended that the property is a dry land. It is also to be noted that the Commissioner was not examined by appellants to prove the facts raised in the objection to commission report. In such circumstances, the details in the commission report have to be accepted and from the commission report, it is clear that the contentions raised by the appellants are not correct. The fact that petition schedule properties are dry land and are cultivated by seasonal crops, tapioca, black gram, etc. cannot be accepted. 15. The Commissioner has not reported whether there was underwood or not. On going through the decision reported in **State of Kerala v. Anglo- American Direct Tea Trading Co.Ltd.** (1980 KLT 215), it is clear that to constitute a forest, there has to be an extensive tract of uncultivated land with trees and underwood. But, if, as a matter of fact, appellants have a case that there was underwood and it is an omission on the part of the Commissioner to report the same, it could have been brought out in evidence. The Commissioner could have been examined or steps should have been taken to remit the commission report to report the additional fact. This was not MFA 96/06 9 done. 16. Any way, appellants failed to establish that petition schedule properties are cultivated land and dry land as contended by them and thereby, it is not a private forest. There is no reason to interfere with the said finding. As pointed out by the learned Special Government Pleader, mere mentioning of two survey numbers in the details of the boundary shown in Ext.B1 relating to the properties in item no.60 cannot be taken as a ground to hold that petition schedule properties were treated as private forest as argued by the learned counsel for appellants. In the absence of any evidence being let in or any materials being brought out from the evidence of RW1, we are not inclined to accept the argument raised on behalf of the appellants on the strength of the details shown in Ext.B1 relating to item no.60. 17. Since appellants have failed to establish that petition schedule properties are not private forest, learned Forest Tribunal was right in rejecting the prayer for declaration. In paragraph 11 of the impugned order, learned Tribunal has given cogent reasons for rejecting the prayer made under Section 3(2) of the Act. We do not find any reason to interfere with any such findings as well. MFA 96/06 10 Learned Tribunal rejected the claim since there is no evidence to prove cultivation and the ingredients of Section 3(2) of the Act. We find no reason to interfere with the findings or the impugned order. This appeal is dismissed. (K.Hema, Judge) (P.S.Gopinathan, Judge) tkv