M.F.A (Forest) No.193 of 2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 MFA (FOREST) NO. 193 OF 2006** **AGAINST THE ORDER DATED 26.04.2006 IN O.A.NOS.40,41,42,43 & 44 OF 2003 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/APPLICANTS:** - **1 JAYARAMAN, S/O.LATE GOVINDAN NAIDU, 2 VENUGOPALAN, S/O.RAMAN NAIDU,** - **3 GOPALAKRISHNA NAIDU, S/O.RAMAN NAIDU,** - **4 AMMINI AMMAL, W/O.LATE CHAMI NAIDU,** - **5 K.G.VENUGOPAL, S/O.LATE CHAMI NAIDU,** - **6 KANAKA KUMARI, D/O.LATE CHAMI NAIDU,** - **7 VIJAYA KUMARI, D/O.LATE CHAMI NAIDU,** - **8 NARAYANA NAIDU, S/O.RAMAN NAIDU, APPELLANTS 1 TO 8 ARE RESIDING AT PARAKULANGARATHARA, THIRUVILWAMALA, THALAPPILLY, THRISSUR.** - **9 DHANALAKSHMI, D/O.PAPPU NAIDU,** - **10 VIJAYALAKSHMI, D/O.PAPPU NAIDU, 11 SEETHALAKSHMI, D/O.PAPPU NAIDU, APPELLANTS9 TO 11 ARE RESIDING AT PALKULANGARATHARA, THIRUVILWAMALA, THALAPPILLY, THRISSUR.** - **12 RAJESWARI, D/O.PAPPU NAIDU, 13 RAJENDRAN, S/O.PAPPU NAIDU, 14 RAJALAKSHMI, D/O.PAPPU NAIDU, 15 RAMASUBRAMANYAN, S/O.PAPPU NAIDU,** - **16 RAJU RAMAN, S/O.PAPPU NAIDU, APPELLANTS 12 TO 16 ALL ARE RESIDING AT DHARMAPURAM, TAMILNADU.** **BY ADV SRI.VINOD KUMAR.C** **2** ## **M.F.A (Forest) No.193 of 2006** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY GOVT. OF KERALA, THIRUVANANTHAPURAM.** - **2 CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN, OLAVAKKODE.** **BY ADVS.** **SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 01.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A (Forest) No.193 of 2006** **3** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------M.F.A (Forest) No.193 of 2006 ------------------------------------------Dated this 1[st] February, 2023** ## **JUDGMENT** ## **Vinod Chandran, J.** **The appeal raises a challenge against the order, which dismissed five original applications. The learned Counsel for the applicant submitted that the 8[th] respondent is no more and his interests are protected by the other appellants, since they claim under an identical partition deed and are family members.** **2. The applications are filed by family members, who claimed under Ext.A1 partition deed dated 03.06.1969. The appellants claimed that the properties scheduled, two in number, were assigned to them separately under the partition deed and they were carrying on cultivation thereon. The two items** **M.F.A (Forest) No.193 of 2006** **4** **of property scheduled in the different applications, were in Survey No.1208/4 and Survey No.1132/1, respectively, of Thiruvilvamala Village, Thalappalli Taluk, Trichur District. Item No.1 scheduled in all the applications were asserted to be planted and cultivated with miscellaneous trees for collecting green manure and rest of the land was used for fugitive cultivation. Item No.2, in all the cases, were said to be planted with palmyrah trees and cultivated with seasonal crops. It was asserted that the lands were not covered under the Madras Preservation of Private Forest Act, 1949, (for brevity the MPPF Act) and does not also answer the description of a forest. Alternatively, it was also contended that if at all the Tribunal finds the scheduled lands to be a forest, necessarily there shall be exemption granted to the scheduled properties under S.3(2) or (3) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for** **M.F.A (Forest) No.193 of 2006** **5** **brevity, the Vesting Act).** **3. The respondents contended that the entire properties come within the slope of a hill called the** _**'Malesamangalam malavaram'**_ **and are covered by the MPPF Act. It was also asserted that the applicants were holding properties beyond the ceiling limit, there was no cultivation existing in the property and agriculture cannot be carried out due to the huge undergrowth and trees existing in the property. PWs.1 to 4, were examined, respectively, the 1[st] applicant in O.A.No.41 of 2003, the 3[rd] applicants in O.A.No.40 of 2003, O.A.No.42 of 2003 and O.A.No.44 of 2003. Ext.A1 was marked. The respondent examined RW1 and marked Ext.B1. The same Commissioner appointed in the above cases filed Exts.C1 to C5 reports, which reports on the lie and nature of the separate properties scheduled in the OAs.** **4. We heard Sri.C.Vinod Kumar, learned** **M.F.A (Forest) No.193 of 2006** **6** **Counsel for the appellants and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forest) for the respondents.** **5. The Tribunal framed issues on limitation, the nature of the land and the entitlement to exemption under the Vesting Act. On limitation, it was found that there was no proof of publication of notification under the Vesting Act. The property was found to be not covered under the MPPF Act, for reason of the same existing outside the erstwhile Malabar District. However, the property was found lying in the nature of a forest land and there was no sign of cultivation carried on in the property as reported by the Commissioner. The applications were hence rejected.** **6. We find no reason to interfere with the findings of the Tribunal on limitation and on the coverage under the MPPF Act. There was no proof of a publication having been made as provided in the** **M.F.A (Forest) No.193 of 2006** **7** **statutory rules, which alone could determine the point at which the limitation commenced. As far as coverage under the MPPF Act, the Tribunal found the property not located in the erstwhile Malabar District and hence there is no reason to interfere with the said finding also.** **7. On the question of the nature of the property, the Tribunal examined the term 'any forest' as elaborated in** _**Ram Bahadur Thakur Pvt.Ltd. v. State of Kerala [2001 (1) KLJ 16]**_ **and** _**State of Kerala v. Anglo American Direct Tea Trading Co. [1980 KLT 215]**_ **. The first of the cited decisions found the use of the expression** _**'any'**_ **before** _**'forest'**_ **to be with a wider impact to bring it all lands possible of being treated as a forest land. The second cited decision found the term** _**'private forest'**_ **to be used in the Vesting Act as lands other than those on which human skill, labour and resources have been spent for agricultural** **M.F.A (Forest) No.193 of 2006** **8** **purposes. With the above principles in mind, the learned Tribunal looked at the Commission report to understand the nature of the property.** **8. The Commissioner had reported that the properties scheduled lie contiguously as one unit without any demarcation of boundaries. This was quite contrary to the contention of the applicants that the properties were partitioned in 1969 and the various branches of the family were holding it separately and cultivated their separate holdings. The Commissioner also reported that there were no symptoms of cultivation in the properties scheduled as item No.1, in which was found existing, forest trees like Irul, Marutha, Manhapavatta and filled with bushes and shrubs. Item No.2 properties also indicated forest trees like** _**Karimpana, Odukku**_ **etc. The four sides of item No.1 were having shrubs and rocky area and both the scheduled properties had rocky portions. The reliance placed by the** **M.F.A (Forest) No.193 of 2006** **9** **applicants, on the description of the property in Ext.A1, was not accepted by the Tribunal, according to us rightly so. The applicants had a duty to establish that the properties, as on the appointed day, existed as a cultivated land and only then can the description in the deed of 1969 have any relevance.** **9. The only evidence regarding cultivation was the testimony of PW1, which is an interested testimony and can be relied on only with substantive evidence. PWs.1 & 2 admitted that the Commissioner did not see any symptoms of cultivation and all the witnesses, examined on behalf of the applicants admitted the existence of rocky areas, within the scheduled lands. PWs.2 & 4 also admitted forest species trees in the disputed property. The Tribunal found that this clearly indicates that the land lies as a forest under S.2(f)(1)(ii) of the Vesting Act. We perfectly agree with the conclusions of the** **M.F.A (Forest) No.193 of 2006** **10** **Tribunal and reject the contentions of the applicants.** **10. On the exemption under S.3(2) & (3) of the Vesting Act, the Tribunal found that the disputed properties were held by the applicants, as owners under the Vesting Act; which we agree with. However, on the requirement of personal cultivation or intention to cultivate, the Tribunal found that there was nothing to prove either. The Tribunal rightly placed reliance on the commission report to find that there were no signs of agriculture having been carried out in the property, but for the interested testimony of one of the appellants. There is nothing to substantiate the contention of cultivation testified by the witnesses, who were also the applicants. We find no reason to interfere with the said findings.** **11. On the 3[rd] aspect required to be proved for a declaration of exemption, of the lands being** **M.F.A (Forest) No.193 of 2006** **11** **within the ceiling limit; the Tribunal relied on the testimony of the applicants' witnesses. We are not convinced that the testimony alone can prove that point, especially considering that the partition was effected in the year 1969, after the Kerala Land Reforms Act came into force. However, since the applications were rejected for other reasons, we need not now embark upon an enquiry on the ceiling limit.** **12. PW1, in his deposition , admits that there was no cultivation in the property for a long time. PWs.2 to 4 admit the existence of forest trees in the properties, as reported by the Commissioner. The witnesses, while admitting that there was no cultivation in the property, does not testify as to whether there was any cultivation as on the appointed day under the Vesting Act. We dismiss the original application for the reasons stated above and the 8[th] applicant's legal** ## **M.F.A (Forest) No.193 of 2006** **12** **representative having not chosen to seek for impleadment, the appeal filed by the 8[th] applicant is dismissed as abated.** **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **sp/01/02/2023**