MFA (Forest) No. 118 of 2012

M.F.A.[F]. 118/2012 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA, 1944 MFA (FOREST) NO. 118 OF 2012** **AGAINST THE ORDER IN OA 21/2008 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANT/APPELLANTS:** 1 K.BALAKRISHNAN (DIED) S/O. U.P. KRISHNA MOOTHAN, RESIDING AT UPPATH HOUSE, KARNAKI NAGAR, MEEZHMURI, KOPPAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. 2 **ADDL.A2** K.SAJINI, WIDOW OF K.BALAKRISHNAN, RESIDING AT 29/337, NEAR VALAMPIRI GANAPATHY TEMPLE, KARNAKI NAGAR, VADAKKANTHARA.P.O., MOOTHANTHARA, PALAKKAD - 678 012. 3 **ADDLA3** .KRISHNA RAJ.B. S/O.LATE K.BALAKRISHNAN, RESIDING AT 29/337, NEAR VALAMPIRI GANAPATHY TEMPLE, KARNAKI NAGAR, VADAKKANTHARA.P.O., MOOTHANTHARA, PALAKKAD - 678 012. 4 **ADDL.A4** .ROSHNI KRISHNA.B., D/O.LATE K.BALAKRISHNAN, RESIDING AT 29/337, NEAR VALAMPIRI GANAPATHY TEMPLE, KARNAKI NAGAR, VADAKKANTHARA.P.O., MOOTHANTHARA, PALAKKAD - 678 012. ADDITIONAL 2 TO 4 APPELLANTS ARE THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER ORDER DATED 23.06.17 IN IA 2086/2017 IN MFA 118/12. BY ADVS. T.C.SURESH MENON P.S.APPU K.A.ANAS A.R.NIMOD M.F.A.[F]. 118/2012 2 ## **RESPONDENTS/RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, FOREST AND WILD LIFE, THIRUVANANTHAPURAM - 695 001. 2 CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD - 678 002. BY SRI.NAGARAJ NARAYANAN, LEARNED SPECIAL GOVERNMENT PLEADER (FORESTS) ## **OTHER PRESENT:** DEEPA K.B THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 19.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.[F]. 118/2012 3 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A [F].No.118 of 2012 -------------------------------------Dated this the 19[th] day of December, 2022** ## **J U D G M E N T** ## **Jayachandran, J** **1.** As per order dated 30.04.2012, O.A.No.21/2008 preferred by the applicant seeking exclusion, as also, exemption under the Kerala Private Forests (Vesting and Assignment) Act, 1971 ['Vesting Act', for short] was dismissed by the Forest Tribunal, Kozhikode. The aggrieved applicant is the appellant. ## **2** . **Facts:** The scheduled property has an extent of 51 cents in survey no.4/26 (resurvey no.358/6) of Vadakkanthara Amsom, Palakkad. The said property originally belonged to one Narayanan Pattar and another. As per Ext.A1 kanam assignment deed of the year 1934, his rights were transferred to Venketeshwara Iyer and 4 M.F.A.[F]. 118/2012 his children. The applicant's father purchased the rights over the scheduled property by virtue of Ext.A2 jenmom assignment deed of the year 1965. While he was in possession and enjoyment of the properties, applicant's father passed away on 18.09.1985, whereafter, his wife and other children executed Ext.A3 release deed in favour of the applicant, transferring their rights over the scheduled property in favour of the applicant. The applicant's predecessors purchased the property with the intention to cultivate the land and the same was being cultivated with tapioca, black gram, plantain etc. The scheduled property is a paramba and not part of any malavaram or private forest. The land was brought under fencing prior to 1971 to protect the cultivation therein. It was being cultivated as on 10.05.1971 and thereafter. Contending also that the applicant and his family were not in possession of land in excess of the ceiling limit under the Kerala Land Reforms Act, the applicant sought for exemption under Section 3(2) and 3(3) of the Vesting M.F.A.[F]. 118/2012 5 Act. However, in the relief portion, a declaration to the effect that the scheduled property is not a private forest, as defined under the Vesting Act, is also sought for. **3.** The Divisional Forest Officer filed counter affidavit contending that the scheduled property is part of vested forest by name 'Kurichimala', which was governed by the erstwhile Madras Preservation of Private Forests Act, 1949 ('M.P.P.F. Act', for short). The property comprised in survey no. 4/26, of which the scheduled property is a part, was notified as a vested forest as per Ext.B1 notification dated 18.03.1978. The disputed area is lying contiguous with other vested forest, having an extent of 43.822 hectares. The property was not brought under any sort of cultivation as on 10.05.1971 or prior to the date of vesting. On such premise, the respondent/department sought for dismissal of the OA. M.F.A.[F]. 118/2012 6 **4.** The evidence in this case consists of Exts.A1 to A11, supported by the oral evidence of the applicant as PW1, on the part of the applicant. On behalf of the respondents, Exts.B1 and B2 were marked and the Forest Range Officer concerned was examined as RW1. The Commissioner's report and plan were marked as Exts.C1 and C2 respectively. **5.** On an analysis of the facts, evidence and probabilities of the case, the Tribunal dismissed the O.A. finding that the scheduled property is a private forest and that, applicant is not entitled to exemption under section 3(2) or 3(3) of the Vesting Act. **6.** Heard Sri.T.C.Suresh Menon, learned counsel for the appellant and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests). Perused the records. **7.** Learned counsel for the appellant argued that, M.F.A.[F]. 118/2012 7 there exists clear reference to 'michavaram' in Exts.A1 and A2 documents, which necessarily implies cultivation in the scheduled properties, which aspect was lost sight of by the Tribunal. Consequently, the Tribunal, quite erroneously, found that the applicant is not entitled to the exemption under Section 3(2) or 3(3) of the Act. It should have been noticed by the Tribunal that the scheduled property is described as a 'paramba' in the title documents, which would also rule out the department's contention that the scheduled property is part of vested forest. The Tribunal's finding that the scheduled property has not been identified by the Advocate Commissioner is clearly erroneous. The boundaries of the scheduled properties are either residential house, paramba or tarred road, which the Tribunal ought to have noticed. There was no forest species trees in the scheduled properties. The Tribunal should have placed reliance upon the evidence tendered by the applicant as PW1 is the last submission of the learned counsel for the M.F.A.[F]. 118/2012 8 appellant. **8.** Per contra, learned Special Government Pleader argued in support of the impugned order. It was pointed out that, neither the identity of the property, nor the cultivation claimed therein as on the appointed date has been established by the applicant, on whom the burden of proof lies clearly. The interested version of the applicant as PW1 is not liable to be taken stock of to grant the reliefs sought for. Reference to 'michavaram' in the title deeds would, at best, imply paddy cultivation, which is not claimed at all by the applicant in the O.A. The order impugned warrants no interference is the final submission of the learned Special Government Pleader. **9.** Having heard the learned counsel appearing on both sides and having perused the records, we find no reason to unsettle the well considered order of the Forest Tribunal. Relying upon Ext.B2 periphery sketch, the Tribunal rightly found that the M.F.A.[F]. 118/2012 9 scheduled property forms part of 'Kurichimala' notified as VFC item No.163 in Ext.B1 and that the total extent involved is 43.822 hectares, equivalent to 108.28 acres, wherefore, the M.P.P.F. Act would have applied immediately prior to the introduction of the Vesting Act. We cannot, but endorse the finding of the Tribunal in this regard. **10.** The Tribunal then considered the claim with respect to exclusions, if any, under clauses (A) to (D) of Section 2(f)(1)(i) of the Vesting Act. As a matter of fact, there is no pleading in the O.A. claiming the exclusions under clauses (A) to (D) afore-referred. The Tribunal rightly found that the applicant is not entitled to the exclusion under clauses (A) to (D). Thereupon, the Tribunal proceeded to consider the entitlement for exemptions under Section 3(2), or for that matter, under Section 3(3) of the Vesting Act. In this regard, it is relevant to note that, apart from the solitary, interested testimony of the applicant as PW1, no M.F.A.[F]. 118/2012 10 evidence, whatsoever, to prove the cultivation claimed, of tapioca, black gram and plantain, is forthcoming. As held in **State of Kerala v. Alexander** [1993(1) KLT SN 4], no relief of exemption can be granted on the interested and solitary testimony of the applicant, unless the same is supported by cogent and solid evidence. We also notice that the applicant/PW1 was aged 56 years as on the date of examination before the Tribunal, wherefore, his age as on the year of vesting (1971) should be around 15-16 years. His know-how as to the state of affairs then prevailing, as such, is not liable to be taken stock of. The legal position as regards the burden of proof on the applicant is settled by a catena of decisions, which are cited here below. **(i) Unreported decision of the High Court in M.F.A.No.12 of 1980 dated 10.01.1986.** - **(ii) State of Kerala** v. **Thomas [1987(1) KLT 530]** - **(iii)State of Kerala** v. **Kunchiraman [1990(1)KLT 382]** - **(iv) State of Kerala** v. **Chandralekha [1995(2) KLT 152(F.B.)]** - **(v) State of Kerala and Another** v. **Popular** M.F.A.[F]. 118/2012 11 ## **Estate and Another [(2004)12 SCC 434].** We are not in the least hesitant to hold that the applicant miserably failed to discharge the burden cast, in the context of the exemption claimed. **11.** We further notice that, Ext.C1 report of the Commissioner and Ext.C2 plan is of no avail to the applicant. Primarily, Ext.C1 does not refer to any cultivation being conducted in the scheduled property, leave alone the fact that, such cultivation, if any, would not vouch the state of affairs as on the date of vesting. Per contra, the Commissioner found 46 trees, which are of forest species. No relief can be granted by merely looking at the boundaries of the properties as on the dates of inspection (17.01.2009 and 17.04.2010), the legal requirement being the state of affairs prevailing as on the date of vesting. The Tribunal also found that the scheduled property has not been identified with reference to the title deeds. The side measurements as indicated in the title deeds does not tally with M.F.A.[F]. 118/2012 12 the scheduled property as depicted in Ext.C2 plan. The significance of identity of the scheduled property has been highlighted in **Hamsa Haji v. State of Kerala** [2006(7) SCC 416] in the following words: “30. We thus confirm the decision of the High Court and dismiss the appeal with costs. We hope that this judgment will act as an eyeopener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims (obviously now they are belated claims) for exemption or exclusion under Section 8 of the Act. It behoves the Forest Tribunals and the appellate court to carefully scrutinise the case of title and possession put forward by claimants as also the identities of the lands sought to be claimed, while entertaining applications under Section 8 of the Act.” [underlying by us for emphasis]. **12.** Now, coming to the contention with respect to 'michavaram', as referred to in the title deeds, we are in agreement with the argument advanced by the learned Special Government Pleader that the same may, at best, indicate paddy cultivation as on the respective dates of the title deeds. The title deed prior to 10.05.1971, the date of vesting, is Ext.A2, which is of the year 1965. Importantly, the M.F.A.[F]. 118/2012 13 applicant has no claim of paddy cultivation, either as per the pleading in the O.A. or in the evidence adduced. Therefore, that contention is also liable to be repelled. **13.** We find little merit in the appeal and the same is therefore dismissed, confirming the order impugned and leaving the parties to bear their respective costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN JUDGE** Sbna/