MFA (Forest) No. 183 of 2012 (OA 32/2009, Forest Tribunal, Kozhikode)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 12[TH] DAY OF JANUARY 2023/ 22ND POUSHA, 1944** **MFA (FOREST) NO. 183 OF 2012** **OA 32/2009 OF FOREST TRIBUNAL, KOZHIKODE DTD. 31.1.2012** ## **APPELLANT/APPLICANT:** 1 SMT.LAKSHMI DEVI ***** (DIED) AGED 64 YEARS W/O. P.RADHAKRISHNAN, FORMER RESIDENT OF CHADAYATH HOUSE, MANANGHOTUPURA, NENMARA P.O., CHITTUR TALUK, PALAKKAD DISTRICT, NOW RESIDING AT SREEVALSAM, THACHAMPARA P.O., PALAKKAD-678 593, PALAKKAD DISTRICT. ***** ADDL P.RADHAKRISHNAN APPELLANT S/O.LATE E.T.NARAYANAN NAIR, AGED 82 YEARS, 2 SREEVALSAM, THACHAMPARA.P.O., PALAKKAD -678593. ADDL HARISH C.R. APPELLANT S/O.P.RADHAKRISHNAN, AGED 52 YEARS, 3 BHANSURI NEAR SRCM YOGASHRAM, THANKAM HOSPITAL ROAD, YAKKARA, NURANI.P.O., PALAKKAD - 678 004. ADDL SINDHU NANDAKUMAR, APPELLANT D/O.P.RADHAKRISHNAN, AGED 49 YEARS, FLAT NO.3A, 4 HIGHLIFE CAPITOL APARTMENTS, KANJANI ROAD, OLARIKKARA.P.O., THRISSUR - 680612. ***** THE LEGAL HEIRS OF THE DECEASED APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER ORDER DATED 14.11.2022 IN IA 1/2022. BY ADVS.ANIL D. NAIR NIVEDITA A.KAMATH J.R.PREM NAVAZ BIJU.P.K. ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, (FOREST AND WILD LIFE, THIRUVANANTHAPURAM- 695 001). 2 THE CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. -678001. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. (FOREST) **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A.(F)No.183 of 2012 ..2.. ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------M.F.A.(F).No.183 of 2012 ------------------------------------------------------------Dated this the 12[th] day of January, 2023 ## **JUDGMENT** ## C.Jayachandran, J. The order impugned is one rendered by the Forest Tribunal, Kozhikode in O.A. No.32/2009, which refused a declaration sought for, that the scheduled property is not a private forest, as also, the alternate relief for exemption under Section 3(2) and 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ('the Vesting Act' for short). The aggrieved applicant is the appellant. ## - **2.** The facts: The scheduled property has an extent of 94 cents comprised in Sy. no.148 D/3B (Re.Sy.no.463/4) of Thenkurissi - II Village, Palakkad. The scheduled property was part of the properties held by the thavazhi of the applicant's family as M.F.A.(F)No.183 of 2012 ..3.. included in schedule E to Ext.A2 partition deed of the year 1935. There was a further partition in the family as per Ext.A3 document of the year 1989, where-under, the scheduled property was allotted to the share of the applicant, vide item 4 to schedule B in Ext.A3. Earlier, the scheduled property was used for providing green manure to the adjacent paddy fields and for raising black gram, horse gram, etc. Subsequently, plantains and other seasonal crops were cultivated. The property involved in O.A. No.21/1976 is situated on the immediate northern side of the scheduled property and both properties have same features and characteristics. The forest officials trespassed into the scheduled property on 20.2.2009 claiming that it is a vested forest. The property was never a forest at any point of time. No notification under Rule 2A of the Vesting and Assignment Rules was ever issued. The property was not governed by the Madras Preservation of Private Forests Act, 1949 ('the M.P.P.F Act' for short). On such premise, the declaration, and alternatively exemption, was sought for. M.F.A.(F)No.183 of 2012 ..4.. **3.** The Custodian of Vested Forests concerned filed counter affidavit opposing the reliefs sought for. It was contended that the scheduled property is not properly identified by Exts.A2 and A3 documents and that the applicant's assignor had large extent of land in excess of the ceiling limit. The scheduled property is part of Muringamala Eratode Malavaram, having an extent of 121.46 hectares, which was notified as a vested forest vide V.F.C item no.193/1 of Ext.B2 notification. The notification was duly published as well. The disputed property is marked in Ext.B2 periphery sketch. The property supports natural vegetation like neam, teak, kazhani, acacia, manjapavatta, bamboo clusters, etc. and there exists no planted species. Ext.A3 document of the year 1989 refers to a dispute with the Forest Department in respect of the properties included in B schedule. The case mentioned therein is O.A. No.21/1976, which was allowed and the property therein was restored to the supplemental 2[nd] petitioner, who is the power of attorney holder of the present applicant. In Ext.B3 mahazar prepared in connection with restoration of the property, the M.F.A.(F)No.183 of 2012 **==> picture [22 x 8] intentionally omitted <==** southern side of the scheduled property in O.A. No.21/1976 was shown as vested forest, to which Mahazar, the additional 2[nd] petitioner is a signatory, which would establish that the scheduled property herein is a vested forest. On such premise, the respondent sought for dismissal of the O.A. **4.** The evidence in this case consists of Exts.A1 to A4, supported by the oral evidence of PW1 and PW2 on the part of the applicant. On behalf of the respondents, RW1 was examined, through whom Exts.B1 to B4 were marked. The Commissioner's report and plan were marked as Exts.C1 and C2 respectively. **5.** On an analysis of the facts and evidence, the Tribunal dismissed the O.A. finding that the scheduled property is a private forest and that the applicant failed to establish her claim for exemption under Section 3(2), or for that matter, Section 3(3) of the Vesting Act. M.F.A.(F)No.183 of 2012 ..6.. **6.** Heard Sri. Biju P.K, on behalf of Anil D.Nair, learned counsel for the appellant and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests). Perused the records. **7.** Learned counsel for the appellant invited our attention to Ext.C1 commission report to contend that the same would vouch the cultivation of the scheduled property, as claimed in the O.A. It should have been noticed by the Tribunal that the scheduled property is lying contiguously with property involved in O.A. No. 21/1976, sharing the same features and characteristics. Inasmuch as O.A.No.21/1976 was allowed and the property restored, the same course should have been followed in respect of the scheduled property as well, is the submission of the learned counsel. Ext.C1 would establish that there is no wild forest tree growth in the disputed property, which the Tribunal failed to notice. According to the learned counsel, the order impugned cannot be sustained and the declaration sought for, or at any rate, the exemption claimed ought to have been allowed. M.F.A.(F)No.183 of 2012 ..7.. **8.** Per contra, learned Special Government Pleader argued to sustain the judgment, which according to him had considered all parameters as per law. The Tribunal rightly addressed the question of applicability of the M.P.P.F Act to find the same in the affirmative; and the exclusions under Clauses (A) to (D) in the negative. The findings on the exemptions claimed under Section 3(2) or 3(3) cannot be assailed since the applicant miserably failed to establish the factual parameters therein. Learned Special Government Pleader emphasized the burden of proof being indubitably on the applicant as per the decisions of this Court, as also, the Supreme Court. **9.** Having heard the learned counsel appearing on both sides, we cannot but endorse the findings of the Tribunal in the impugned order. The Tribunal first considered the applicability of the M.P.P.F Act. There is no dispute that the scheduled property is part of the erstwhile Malabar district. Ext.B2 notification and Ext.B1 periphery sketch were relied upon to M.F.A.(F)No.183 of 2012 ..8.. find that the extent of the Muringamala Eratode malavaram, of which the scheduled property is a part, is more than 100 acres. The Tribunal also found that there was not even a suggestion in the cross-examination of RW1, the Forest Range Officer, that the scheduled property is not part of the said malavaram, with an extent of more than 100 acres. We find that no exception, whatsoever, can be taken to the said finding of the Tribunal. The Tribunal then considered the applicability of the exclusions under Clauses (A) to (D) to Section 2(f)(1)(i) of the Vesting Act. The factual premises constituting the exclusions under Clauses (A) to (D) were not pleaded at all in the O.A. Nor is any evidence adduced in that direction. As rightly pointed out by the learned Special Government Pleader, the burden of proof is invariably on the applicant to establish that the scheduled property is not a private forest, as held in the following decisions:- 1. **State of Kerala v Thomas** [1987(1) KLT 530] 2. **State of Kerala v Kunhiraman** [1990(1)KLT 382] 3. **State of Kerala v Chandralekha** [1995 (2) KLT 152 (F.B.)] M.F.A.(F)No.183 of 2012 ..9.. ## 4. **State of Kerala and Another v. Popular Estate and Another** [(2004)12 SCC 434]. **10.** We are therefore of the opinion that the finding as regards the disentitlement of the applicant for exclusions under Clauses (A) to (D) is legal, proper and liable to be upheld. **11.** Now comes the question of exemption under Section 3(2) or 3(3), which claim is specifically pleaded in the O.A. According to the applicant, the applicant and her predecessors used the scheduled property for providing green manure to the adjacent paddy fields and also for raising black gram, horse gram, etc. and subsequently, plantains and other seasonal crops were cultivated. We notice that as per the scheme of the Vesting Act, the state of affairs prevailing in the scheduled property as on the date of vesting, i.e., 10.5.1971, has to be reckoned for the purpose of exemption under Section 3(2) and 3(3). The owner of the scheduled property as on the date of M.F.A.(F)No.183 of 2012 **==> picture [28 x 8] intentionally omitted <==** vesting was the applicant's mother, since the applicant got title to the property as per Ext.A3 document only in the year 1989. The applicant did not mount the box. Instead, her uncle, who was her power of attorney holder, mounted the box. PW1 was disbelieved for the reason that he is a signatory to Ext.B4 sketch prepared in O.A. No.21/1976 at the time of restoring the property involved therein and that his version contradicts the contents of Ext.B4. As per Ext.B4, the property on the southern boundary (the scheduled property herein) of the disputed property in O.A. No.21/1976 is a vested forest and since PW1 claimed the property scheduled herein as a cultivated land, he was disbelieved. We cannot fully agree with the said reasoning of the Tribunal. However, it is sufficient for the present purpose to note that, an applicant who claims exemption under Section 3(2) or 3(3) should adduce solid evidence in support thereof and the interested testimony of the applicant, or someone on her behalf, is of no avail, as held in **State of Kerala v. Alexander** [1993 KHC 168]. We endorse the Tribunal's finding based on the description of the M.F.A.(F)No.183 of 2012 **==> picture [28 x 8] intentionally omitted <==** scheduled property in Ext.A3 document of the year 1989, as a forest (ക�ട�). We are again in conformity with the Tribunal's finding that the power of attorney holder of the present applicant was the applicant in O.A. No.21/1976 and that he chose to file the said O.A in the year 1976, whereas the present O.A. was ventured only in the year 2009. This, according to us, has a definite impact on the bonafides of the reliefs sought for in the instant O.A. The Tribunal, which had the opportunity to observe the conduct and demeanour of the witness chose to disbelieve PW2, an alleged labourer who had worked in the scheduled property, which we endorse. **12.** We perused Ext.C1 report of the Commissioner, as also, Ext.C2 plan. Ext.C1 reports that there is substantial undergrowth in the scheduled property. At the time of inspection, 72 cents of land and another 20 cents were lying separately on both sides of a road. The report also refers to the nature of the trees standing in the scheduled property, which are substantially of forest species. Only 10 -15 plantains M.F.A.(F)No.183 of 2012 **==> picture [28 x 8] intentionally omitted <==** were found, which having regard to the extent of 94 cents, cannot qualify the scheduled property as being cultivated with plantains. Two cashew trees and 8 rubber trees (alongside the boundaries) were found by the Commissioner, however, without there being any claim of such cultivation in the pleadings in the O.A. It is true that the Commissioner reported signs of tapioca cultivation. However, no relief can be granted on the strength of such a feeble finding, that too in respect of an inspection made in the year 2010, the requirement of law being the state of affairs prevailing as on 10.5.1971. In respect of the state of affairs as on the date of vesting, there is absolute dearth of evidence. **13.** As regards the claim under Section 3(3) there is neither any plea, nor any proof adduced of the intention to cultivate. The attendant circumstances does not permit of drawing an inference of such intention. Hence, the claim for exemption under S.3(3) is also unsustainable. M.F.A.(F)No.183 of 2012 **==> picture [28 x 8] intentionally omitted <==** We find no illegality or infirmity in the order impugned by the Forest Tribunal. The burden cast on the applicant is not seen discharged. We therefore confirm the impugned order and dismiss the appeal, leaving the parties to bear their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** skj