MFA (Forest) No. 148 of 2004

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIKA, 1944** ## **MFA (FOREST) NO. 148 OF 2004** **AGAINST THE ORDER/JUDGMENT IN OA 32/2000 OF FOREST TRIBUNAL,** **KOZHIKODE DATED 9.4.2003** ## **APPELLANTS/RESPONDENTS 1 & 2:** - 1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY SRI.T.JAYAN, GOVERNMENT PLEADER ## **RESPONDENTS/APPLICANT & R3 IN THE OA:** 1 RAJAN, S/O.ANDI, PERUMBAYIL KALAM, KUTHANOOR, ALATHUR TALUK, PALAKKAD DISTRICT. 2 PENNAMMA, W/O.MATHAI, (DIED), ESUVANTHAZHAVARA, MELAZHI, THOLANUR. *ADDL.R3 THOMAS, S/O.MATHAI, RESIDING AT MELAZHI, KUTHANNUR VILLAGE, THOLANAR, ALATHUR. *ADDL.R4 SAMUEL, S/O.MATHAI, RESIDING AT MELAZHI, KUTHANNUR VILLAGE, THOLANAR, ALATHUR. *ADDL.R5 KUTTIYAMMA, D/O.MATHAI, RESIDING AT MELAZHI, KUTHANNUR VILLAGE, THOLANAR, ALATHUR. *ADDL.R6 MARIYAMMA, D/O.MATHAI, RESIDING AT MELAZHI, KUTHANNUR VILLAGE, THOLANAR, ALATHUR. *ADDL.R7 JOSE, S/O.JOHN, RESIDING AT MELAZHI, KUTHANNUR VILLAGE, THOLANAR, ALATHUR. *ADDL.R8 OMANA, D/O.JOHN, RESIDING AT MELAZHI, KUTHANNUR VILLAGE, THOLANAR, ALATHUR. *THE LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS THE ADDITIONAL RESPONDENTS 3 TO 8 AS PER ORDER DATED 13.7.2010 IN I.A.NO.216/2006. BY SRI.A.R.GANGADAS SRI.M.A.SHAJI ## **OTHER PRESENT:** SRI.T.JAYAN-GP THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 25.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA (Forest) 148/2004 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. -----------------------------------MFA (Forest) No.148 of 2004** ------------------------------------- **Dated this the 25[th] day of October, 2022 J U D G M E N T** ## Jayachandran, J. 1. In the above appeal, the order of the Forest Tribunal, Kozhikkode dated 9.4.2003 in O.A No.32/2000 is under challenge. The Original Application was preferred seeking a declaration that the application schedule property is not a private forest and therefore not vested with the Government. An alternative relief seeking exemption under Sections 3(2) and 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 [hereinafter referred to as the 'Vesting Act'] was also sought for. As per the impugned order, the Original Application was allowed granting exemption under Section 3(3) of the Vesting 3 MFA (Forest) 148/2004 Act. The State, along with the Custodian of Vested Forests, Palakkad, are the appellants. 2. Heard Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) and Sri.A.R.Gangadas, learned counsel appearing for the respondents. Perused the records. 3. Having heard the learned counsel appearing on both sides, we will first address the issue whether the application schedule property having an extent of 2.65 acres is a private forest or not. As per Section 2(f) of the Vesting Act, any land to which the Madras Preservation of Private Forests Act, 1949 [M.P.P.F Act, for short] applied immediately before the appointed day, _sans_ properties excluded under subclauses (A) to (D), are private forests. The MPPF Act 4 MFA (Forest) 148/2004 applies to all private forests as contemplated in Section 2(i) to (iii) of that enactment, but excludes reserved forests under the Madras Forest Act and lands at the disposal of the Government as defined in that Act. Forest is also defined under Section 2(a) of the M.P.P.F Act. As held in **State of Kerala v. Kunhiraman [1990(1) KLT 382]** , the burden of proof to establish that the application schedule property is not a private forest lies exclusively on the applicant. No evidence is seen adduced to show that the M.P.P.F Act does not apply to the application schedule property. The question of exclusion under sub-clauses (A) to (D) to Section 2(f)(1)(i) does not arise, inasmuch as the applicant has no such pleading even in the Original Application. The cultivation of the trees/crops envisaged in the said sub-clauses are not claimed in the original application. As found in 5 MFA (Forest) 148/2004 the impugned order, the description of the property itself is _kaduparambu,_ surrounded by vested forest on the eastern and western boundaries. The northern boundary is also partly vested forest. The southern boundary is rubber estate, which was restored pursuant to an order in an original application by the Forest Tribunal. The respondent had pleaded and adduced evidence by mounting the box as RW1 to show that the disputed property is part of a large extent of _malavaram_ known as Kuthanoor–Vavulliapuram _malavaram_ lying contiguous with other forest area. In the circumstances, the only possible conclusion is that the application schedule property is a private forest as defined in the Vesting Act. 4. The surviving point is with respect to the exemptions contemplated in Sections 3(2) and 3(3) of 6 MFA (Forest) 148/2004 the Act. Both Sections, 3(2) and 3(3), mandate the applicant to establish that he holds the private forest as an owner; in the case of the latter, under a valid registered document or title executed before the appointed day. Under Section 3(2), the property should be in his personal cultivation as on the date of vesting, whereas in Section 3(3), intent to cultivate is relevant. In both cases, the total extent of property held by the applicant should not exceed the ceiling limit applicable under the Kerala Land Reforms Act, 1963. 5. Coming to the facts, the pleading in the original application as regards cultivation is only with respect to seasonal crops, without specifying the specie. It is pleaded that both the predecessor in interest as well as the applicant have actually 7 MFA (Forest) 148/2004 cultivated the schedule property. The applicant obtained title only in the year 1975 as per document no.93/1975 of the S.R.O., Coyalmannam, where again, the nature of cultivation is not pleaded at all. By virtue of document no.93/1975, the schedule property was transferred to the applicant and his father, Andi. It was also pleaded that the applicant was a member of a joint family until Act 30/1976 was introduced. Andi was not prepared to join as an applicant and hence, he was made the fourth respondent in the O.A. Thus, going by the averments in the original application, the applicant has only one-half rights over the schedule properties. 6. The crucial question is with respect to the cultivation conducted in the schedule property as on the date of vesting, namely 10.5.1971. Ext.A1 8 MFA (Forest) 148/2004 document was produced during trial, as per which, the _kanam_ rights over the schedule property is seen transferred by the wife and children of one Perumal Pillai, in favour of one Pennamma, the predecessor in interest of the applicant. The said document is numbered as 195/1970 executed on 7.3.1970. It could thus be seen that as on the date of vesting, the said Pennamma was the owner of the schedule property. However, Ext.A1 document is silent as regards any cultivation being conducted in the schedule property. The said Pennamma was not examined to prove cultivation, if any, conducted by her in the schedule property. As a matter of fact, the applicant alone mounted the box in support of the claim espoused in the O.A. and he also examined the Village Officer. The evidence of the applicant as PW1 would be of little help to prove his claim, _de hors_ and 9 MFA (Forest) 148/2004 independent of the fact that no relief can be granted solely relying upon the interested testimony of the applicant alone. Even in chief examination, PW1/applicant did not chose to specify any cultivation being done in the schedule property as on the date of vesting; nor was any specie of the tree/crop mentioned. All what is seen stated in chief examination is that after purchasing the property in the year 1975, tapioca was being cultivated, which is of no moment insofar as the exemption under Section 3(2), or for that matter Section 3(3) is concerned. In cross examination, a specific question was put to PW1 as to whether any cultivation was being conducted in the property during 1970-71, to which PW1 was oblivious. He would admit in cross examination that ' _kaduparambu'_ means a land being part of the forest, where there is no trees. Suffice to conclude that the 10 MFA (Forest) 148/2004 ## evidence tendered by PW1 is of little avail. 7. PW2 is the Village Officer concerned, whose evidence is also detrimental to the claim in the O.A. Based on records, PW2 would state that the names of Perumal Pillai or Pennamma is not seen in the basic tax register pertaining to the scheduled property. Instead, the name of one T.S.Narayana Iyer is shown an intermediary. There is reference to one register by name 'thirattu register', wherein the details of the tax collected is entered into. There also, the name of Perumal Pillai or Pennamma is not available. PW2 would specifically state that no tax was collected in the name of Thankammal, w/o.Perumal Pillai. Ext.A1 document was specifically brought to the notice of PW2, where also he would reiterate that during 1969-70, no tax was collected from Pennamma or 11 MFA (Forest) 148/2004 Thankammal, W/o.Perumal Pillai. 8. The solitary piece of evidence, which tends to support the claim in the O.A. is the Commissioner's report. However, the same only depicts the status of the schedule property as on 27.2.2001, which is hardly relevant while adjudicating a claim under Section 3(2) or Section 3(3) of the Vesting Act. Of course, Ext.C1 commissioner's report refers to certain indications/remnants of cultivation in the property. However, the said observations in the Commissioner's report was seriously assailed by the Forest Department by filing an objection. When the evidence tendered by PWs1 and 2 fail to support the claim espoused in the Original Application, no relief can be granted relying upon a Commissioner's Report, which contains certain indications here and there 12 MFA (Forest) 148/2004 suggesting cultivation, the status being that of the year 2001. At the risk of repetition, we may emphasise that the status as on the date of vesting is what matters. 9. In the light of the above discussion, we conclude that there is no evidence, whatsoever, to support the claim propounded in the Original Application. The findings of the learned Tribunal in paragraph no.9 that Pennamma 'must have purchased' and that the father of the applicant 'must have purchased' the scheduled property with intention to cultivate, to say the least, is perverse. There is no sanction of law to have such wild inferences, without there being any factual support from the facts and circumstances established by materials on record. 13 MFA (Forest) 148/2004 10. In the result, this appeal is allowed. The order impugned is set aside. The Original Application will stand dismissed. The parties shall bear their respective costs. ## **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN** **JUDGE** jg