MFA (Forest) No. 140 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944** ## **MFA (FOREST) NO. 140 OF 2012** ## **AGAINST THE ORDER/JUDGMENTOA 67/2009 OF FOREST TRIBUNAL,** ## **KOZHIKODE** ## **PETITIONERS:** - 1 MATHU AGED 71, W/O.CHAMI, PULIKAL HOUSE, KIZHAKETHARA, THENILAPURAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 2 CHANDRAN AGED 53, S/O.CHAMI, PULIKAL HOUSE, KIZHAKETHARA, THENILAPURAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. - 3 KRISHNAN AGED 50, S/O.CHAMI, PULIKAL HOUSE, KIZHAKETHARA, THENILAPURAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. - 4 MOHANAN AGED 48, S/O.CHAMI, PULIKAL HOUSE, KIZHAKETHARA, THENILAPURAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. - 5 SANTHA AGED 46, D/O.CHAMI, PULIKAL HOUSE, KIZHAKETHARA, THENILAPURAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. - 6 SARADA AGED 44, D/O.CHAMI, PULIKAL HOUSE, KIZHAKETHARA, THENILAPURAM AMSOM, ALATHUR TALUK, PALAKKAD **M.F.A.(Forest) No.140 of 2012** **2** DISTRICT. BY ADVS. SRI.P.B.KRISHNAN SRI.N.AJITH SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN ## **RESPONDENTS:** - 1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, (FOREST AND WILD LIFE) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN695001. - 2 THE CUSTODIAN OF VESTED FOREST ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD DISTRICT, PIN-678002. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 13.12.2022,** ## **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A.(Forest) No.140 of 2012** **3** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------M.F.A.(Forest) No.140 of 2012 --------------------------------------------Dated this the 13[th] December, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The applicants before the Tribunal, in this appeal, impugn the order of the Forest Tribunal under S. 8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity “the Vesting Act”); refusing to declare the property scheduled as excluded or exempted from vesting. The applicants, the legal representatives of one Chamy claimed title to 2 acres of property, which, Chamy and his brother Parameswaran obtained by a lease as per Ext.A1. Later there was a partition effected by the brothers by Ext.A2 and Chamy obtained A scheduled property in the above deed. Chamy and after his death, the applicants were holding the property, the tax receipts of which were produced as Exts.A3 and A4 series. The first applicant was examined as PW1 and defendant examined as RW1 who marked Ext.B1notification **M.F.A.(Forest) No.140 of 2012** **4** and Ext.B2 periphery sketch. Exts.C1 and C2 were the commission reports to which were appended Exts.C1(a) and C2(a) plans. 2. The Tribunal raised grounds of limitation, the status of the property and the entitlement to be exempted under the Vesting Act, as issues. The Tribunal found that the application was filed within the prescribed period of limitation and it was held that the property is one covered under the MPPF Act, but was not entitled to an exclusion under S.2(f)(1)(i)(A) to (D) or exemption under S.3(2) or S.3(3) of the Vesting Act. The Tribunal found serious discrepancy in the identity of the property and held that there can be no claim for exemption or exclusion from the definition of 'forest', as defined under the Vesting Act. 3. Learned Counsel for the applicant, Sri.P.B.Krishnan specifically pointed out that the identity of the property has been clearly established as per the commission report with reference to Ext.A2. The finding on that aspect is clearly erroneous. It is argued, it has also been established that the property was cultivated with tapioca and the Commissioners report clearly indicates such cultivation. Reliance was placed on _**Joseph v State of Kerala**_ **2007 3 KLT 144 (SC)** to argue that **5** ## **M.F.A.(Forest) No.140 of 2012** intention to cultivate can be gathered from the conduct in developing the land for making it fit for cultivation; preceding to or/and subsequent to the date of vesting. Learned Special Government Pleader Sri.Nagaraj Narayanan disputing the identity, emphasized the requirement to clearly identify the property, relying on _**Hamsa Haji vs. State of Kerala [(2006) 7 SCC 416]**_ . It is pointed out that there is nothing in the commission report which enables a declaration under S.8 of the Vesting Act. 4. According to the Commissioner item No.3 in Ext.A2 has been identified as the petition scheduled property, on the field, with reference to the title deed. The boundaries are also more or less as stated in the title deed. The Tribunal referred to the measurement shown in the property to find that it does not tally with the measurement of the plot marked by the Commissioner in Ext.C2(a) plan. But for a bland statement regarding the measurement having not tallied, the Tribunal has not explained as to how the discrepancy is discernible. The boundaries shown in Ext.C2(a) report are, east-vacant plot lying contiguous to and near _Ayyappankudam_ dam, south- applicants own **6** ## **M.F.A.(Forest) No.140 of 2012** property, west- properties of the applicant and Parameswaran, West – vacant plot. In Ext.A2, to item No.3, on the east is _Ayyappankudam_ pond, South- paddy field, west- B scheduled property and on the north Kesava Menon's land. Contrary to what the Tribunal found, we find that the boundaries in A2 tally with the boundaries noticed in the commission report. The pond on the east of the property would have been filled up in course of time. 5. The exclusion and exemption claimed has to be proved as on the appointed day of the Vesting Act. As far as the property being governed under the Madras Preservation of Private Forests Act, 1949 (for brevity “the MPPF Act”), the Tribunal rightly relied on _**State of Kerala v. Chandralekha [1995 (2) KLT 152 (FB)**_ and _**State of Kerala v. Kunhiraman [1990 (1) KLT 832],**_ wherein the burden was held to be that of the applicant who claims exclusion or exemption. In the instant case, Ext.B1 notification, in which was included the scheduled property, showed a total extent of vested forest having extent of 80 hectares called _Vellapparakkunnu Malavaram (slope of a hill)_ . The applicant also did not adduce any evidence to show that the scheduled property is not **M.F.A.(Forest) No.140 of 2012** **7** governed by the MPPF Act . 5. As to the exclusion under S.2(f)(1)(i), the Tribunal examined each of the clauses entitling exclusion from the definition of forest under the Vesting Act. Under sub-clause (A), there should be paddy cultivation, under sub-clause (B), plantation crops and under sub-clause (C), fruit bearing trees. The decisions of this Court defining agricultural crops **(** _**State of Kerala v. Amalgamated Malabar Estate Pvt. Ltd [1979 KLT 829**_ **]** and fruit bearing trees **(** _**State of Kerala v. Moosa Haji [1984 KLT 494]**_ & _**State of Kerala v. Malayalam Plantations [1980 KLT 976]**_ were referred to. The claim of the applicants was that the property was cultivated with _ginger, tapioca, plantation crops and rubber,_ but not substantiated. There was also no claim of a building existing in the property, for beneficial enjoyment of which the lands were required to be excluded; as is the requirement under sub-clause (D). The Tribunal has rightly considered the exclusion clauses and denied a declaration on that ground. 6. The pleadings in the application were with respect to cultivation of tapioca and ginger before the appointed day and after **8** ## **M.F.A.(Forest) No.140 of 2012** Ext.A2 partition in 1974, planted with cashew trees till 2007 and thereafter rubber. The Tribunal rightly found that there should be either cultivation or a clear intention to cultivate to enable a declaration of exemption under the Vesting Act. Apart from the interested testimony of PW1 there was absolutely nothing on record to show that the predecessor-in-interest of the applicant along with his brother, who possessed the property jointly as on the appointed day, cultivated the same. The reliance placed on Ext.A1 and the recital therein of tapioca cultivation cannot be accepted as that existing on the appointed day. It is true that _Joseph_ (supra) found that intention can be gathered from attendant circumstances preceding or subsequent to the vesting. Ext.A1 is a deed of 1956 and the appointed day under the Vesting Act is 10.05.1971, Merely because the deed of 1956 contained a recital as to tapioca cultivation having been carried on in the property, there can be no assumption of the same having been continued till the appointed day, which was 15 years therefrom. 7. Ext.C1 report was not referred to since another commission was appointed. Ext.C2 is relied on by the learned Counsel to **9** ## **M.F.A.(Forest) No.140 of 2012** put forth the contention of cultivation and the intend to cultivate. The report indicates a Kayyala (mud bund) on two sides of the scheduled property, east and north which is aged about 30 years. On the western side there is a fence. There were cairns seen in the portion marked as 'J' in the sketch, obviously put up by the Forest Officials. The land has been converted into platforms for rubber cultivation is the contention. Here it is to be noted that rubber cultivation in the property was a recent event and there was no pleading as to such cultivation having been carried out as on 10.05.1971. The rubber trees seen on inspection in the year 2010 were also stated to be of three years age. The rubber trees seen in the property hence do not establish cultivation as on the appointed day. The report also indicated 12 teak sprouts and one jack fruit and a tamarind tree aged 40 years. The only cultivation that could have related back to the appointed day under the Vesting Act was the solitary tamarind and jack fruit trees seen in the property; which do not establish principal cultivation of fruit bearing trees under clause (C) of Section 2(f)(1)(i) of the Vesting Act. The mud bunds reported in the commission report was also indicated to be having an age of 30 years which again was long **10** ## **M.F.A.(Forest) No.140 of 2012** after the appointed day. The mere recital of tapioca cultivation in a document of 1956 and the _kayyalas_ (mud bunds) found in 2010 relating back to 1980 cannot by themselves establish the cultivation in the property or the intention to cultivate as on the appointed day. We find no reason to interfere with the order of the Tribunal and uphold it dismissing the appeal. Parties are left to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** **jma**