Malayil Janardhanan s/o Late Ayyappan v. State of Kerala and Custodian of Vested Forests

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 9TH DAY OF NOVEMBER 2016/18TH KARTHIKA, 1938 MFA.No. 112 of 2005 ( ) ------------------------ AGAINST THE ORDER/JUDGMENT IN OA 24/2003 of FOREST TRIBUNAL, KOZHIKODE DATED 27-10-2004 APPELLANT(S)/APPLICANT:: ----------------------- MALAYIL JANARDHANAN S/O. LATE AYYAPPAN, MALAYIL HOUSE, ELUMBLASSERY PO, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.M.KURIAN 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. R1,R2 BY SRI.NAGARAJ NARAYANAN, SPL.G.P (FORESTS) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09-112016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N. Ravindran & Dama Seshadri Naidu, JJ.** **- - - - - - - - - - - - - - - - - - - - - -- - - M.F.A.(Forest)No.112 of 2005 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] November, 2016** ## **JUDGMENT** ## **P.N. Ravindran, J.** This appeal arises from the order passed by the Forest Tribunal, Kozhikode on 27.10.2004 in O.A.No.24 of 2003, an application filed by the appellant under section 8 of the Kerala Private Forests (Vesting and Assignment) Act,1971 (hereinafter referred to as 'the Act') for short. By that order, the Forest Tribunal dismissed the application filed by the appellant for a declaration that the petition schedule property is not a private forest vested in the State Government. The alternative prayer for exemption invoking sections 3(2) and 3(3) of the Act was also repelled. The brief facts of the case are as follows: 2. The appellant instituted O.A.No.24 of 2003 for a declaration that 1.56 acres of land situate in Sy.No.57A/1A1A of Karimpuzha-II Village, Ottappalam Taluk, Palakkad District is not land vested in the State Government under section 3(1) of the Act. He had in the alternatively prayed for a declaration that he is entitled to the benefit of sections 3(2) and 3(3) of the Act. He had in the application averred that he had acquired title to the petition schedule property as per Ext.A1 sale deed dated 28.7.1947 and that he is in actual physical MFA 112/2005 2 possession and enjoyment of the property since then. The appellant had also averred that ever since the date of sale he was cultivating the property with pepper, cashew and other cash crops. He had further averred that after the Kerala Land Reforms Act was enacted and brought into force, he had obtained Ext.A2 purchase certificate from the Land Tribunal, Sreekrishnapuram-III, that the petition schedule property was not a forest at any point of time either prior to or after 10.5.1971 and that he does not possess land in excess of the ceiling area applicable to him under the Kerala Land Reforms Act. 3. Upon receipt of notice, the State Government and the Custodian of Vested Forests entered appearance and filed a counter statement dated 28.11.2003 wherein they contended that though in the application the petition schedule property is described as land situate in Sy. No.57A/1A1A, in the document of title, the survey number mentioned is 177/4 and 173/8. They also contended that the property supports growth of forest trees like chadachi, vaka, maruthu, konna, eeran, pana, kanjiram, vatta, elavu, thanni, etc. aged 5 to 35 years. It was further contended that the petition schedule property is part of a vested forest known in the locality as 'Pombra Malavaram', that the said Malavaram had an extent of 160.8532 hectares and that on and with effect from 10.5.1971 it stood vested in the State MFA 112/2005 3 Government in terms of section 3(1) of the Act. They also contended that after the Act was enacted and brought into force, the entirety of the aforesaid Malavaram was surveyed and demarcated and a notification was also made and published by the Custodian of Vested Forests and the fact that such a notification was made and published was also published in the local newspaper dailies. The respondents also disputed the averment in the application that the applicant was cultivating the property with pepper and other cash crops. They also contended that the application is barred by limitation and prayed that the application may be dismissed. 4. Before the Forest Tribunal, the applicant examined himself as PW1. The Village Officer who was summoned to produce Exts.X1 and X2 was examined as PW2. On application filed by the applicant an Advocate Commissioner was appointed to inspect the disputed lands and the report submitted by him was marked as Ext.C1 and the plan appended to it as Ext.C2. On the side of the respondents, the Forest Range Officer was examined as RW1. Though a photostat copy of the notification referred to in the counter statement was sought to be produced and marked, in view of the objection raised by the learned counsel for the appellant to its admissibility, that document was not marked. After considering the rival contentions and the evidence oral MFA 112/2005 4 and documentary available on record, the tribunal held that as the respondents have failed to prove by documentary evidence that a notification taking in the petition schedule property was published as required under rule 2A(2) of the Kerala Private Forest (Vesting and Assignment) Rules, 1971, the contention that the application is barred by limitation cannot be accepted. Though the tribunal held that the applicant has proved his title to the petition schedule property, he having obtained title thereto as per the original of Ext.A1, he has failed to prove that Madras Preservation of Private Forest Act, 1949 (hereinafter referred to as “the MPPF Act' for short) did not apply to the disputed property. In coming to the conclusion that the applicant has title to the petition schedule property, the tribunal overruled the contention raised by the respondents that in the document of title the survey number mentioned is 177/4 and 173/8 which is different from the survey number mentioned in the schedule to the application. The tribunal thereafter proceeded to consider the question whether the appellant has made out a case for grant of relief under sections 3(2) and 3(3) of the Act and held that he has failed to discharge the burden in that regard. The application was accordingly dismissed. Hence, this appeal. 5. We heard Sri Isac T. Paul, learned counsel appearing for the MFA 112/2005 5 appellant and Sri Nagaraj Narayanan, learned Special Government Pleader appearing for the respondents. We have also gone through the pleadings and the materials on record. The finding that the appellant has title to the petition schedule property is not under challenge. The Advocate Commissioner deputed by the Forest Tribunal has after inspecting the lands with reference to the document of title, in the presence of the land owner and the officers of the respondents, identified the land as falling within the four boundaries mentioned the schedule to the application. The Advocate Commissioner has in his report, more particularly paragraph 4 thereof reported that a portion of the lands lying on the north of the disputed lands belongs to the appellant, and yet another portion belongs to his brother Vijayan. Though in the schedule to the application, the lands lying on the north are described as lands belonging to Parameswaran, RW1, the Forest Range Officer examined on the side of the respondents had in his chief examination deposed that a portion of the lands lying to the north of the disputed lands are the lands involved in O.A.No.7 of 1976 on the file of the very same Forest Tribunal and that it has been surveyed and demarcated for the purpose of being restored to the possession of the applicant in that case. It has thus come out in evidence that the lands situate on the north of the disputed lands are not private forests MFA 112/2005 6 vested in the State Government under the Act. Though the Advocate Commissioner has in Ext.C1 report stated that a portion of the land lying to the north of the disputed property is a private forest vested in the State Government, the State has conceded the fact that the said lands are involved in O.A.No.7 of 1976 and that O.A.NO.7 of 1976 has been allowed. Such being the situation, we are of the opinion that the appellant should be afforded an opportunity to prove the said fact by producing the pleadings in O.A.No.7 of 1976, the commission report, if any, in that case as also the order therein. Besides, there is also yet another reason why we are persuaded to afford an opportunity to the appellant to prove his contention that the disputed land is land to which Madras Preservation of Private Forests Act, 1971 did not apply as on 10.5.1971. The Village Officer who was examined as PW2 has in is cross examination deposed that the total extent of lands situate in Sy. No.57A/1A1A is 350 acres and 57 cents and that it comprises not only of forest land but also of lands covered by pattayams. Though it was suggested to him by the learned Government Pleader appearing for the respondents that 160.8532 hectares of private forest are situate in sy. No.57A/1A1A, PW2 stated that he does not know about it. It is clear from the evidence tendered by RW2 that the entirety of the land in Sy. No.57A/1A1A is not land vested in the State MFA 112/2005 7 Government. Such a view finds support also from the fact that O.A.No.7 of 1976 which relates to the land situate immediately to the north of the disputed land has been declared to be a land which is not vested in the State Government. Whether the declaration is that it is not a private forest or whether the declaration is that the applicant therein is entitled to exemption under sections 3(2) and 3(3) of the Act is a matter which is presently made known to us. In such circumstances, we deem it appropriate to enable the appellant to adduce evidence to prove his contention that the disputed lands are not lands to which MPPF Act applied immediately prior to the appointed day, viz. 10.5.1971. A Full Bench of this court in **State of Kerala v. Chandralekha** (1995 (2) KLT 152 - FB) held that the burden to prove that the disputed is not a private forest is on the applicant and the State does not have an obligation to prove that the disputed land was a private forest as on 10.5.1971. Therefore, for that reason also we deem it appropriate to grant to the appellant an opportunity in that regard. We however deem it appropriate to sustain the findings entered by the tribunal that the appellant has proved his title to and ownership over the petition schedule property and that the application is not barred by limitation. We accordingly allow the appeal, set aside the impugned order MFA 112/2005 8 and remand the matter to the Forest Tribunal for fresh and disposal, after affording both parties an opportunity to adduce evidence oral and documentary in support of their rival contentions. It will be open to the appellant to cause production of such documents as are necessary for the purpose of proving his contention that the disputed lands are not lands to which MPPF Act applied, viz. the records which are required to be maintained by the authorities under that Act. The parties shall appear before the Forest Tribunal in the first instance through counsel on 5.12.2016. Having regard to the fact that the application was filed in the year 2003, the Tribunal shall endeavour to dispose of the same expeditiously and in any event, withins six months from 5.12.2016. ## **(P.N. Ravindran, Judge)** ## **(Dama Seshadri Naidu, Judge)** ## **kav/**