M.F.A(Forest) No.140 of 2005

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** **MFA (FOREST) NO. 140 OF 2005** **AGAINST THE ORDER/JUDGMENT IN OA 59/1999 OF FOREST** ## **TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY,, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT. BY SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **RESPONDENT/APPLICANT:** 1 C.KUNHIKRISHNAN S/O. CHENTHY,RESIDING AT VETTUKAD,, KUNDILIYAMKONATH, MANJALUR AMSOM,, ALATHUR TALUK, PALAKKAD DISTRICT. (DIED) (ADDL. R2 TO R9 IMPLEADED) 2 SMT.MEENA LOCHANA, W/O.LATE SRI.KUNHIKRISHNAN, KUNDILIYAMKODE HOUSE, MANJALLUR, THENKURISSY. 3 RITHU VARNAN, S/O. LATE SRI.KUNHIKRISHNAN -DO- -DO4 SRI.MRITHU VARNAN, S/O. -DO- -DO5 SRI.SYAMALA VARNAN, S/O. -DO- -DO6 SRI.MEGHA VARNAN, S/O. -DO- -DO7 KUM.FAIMINA D/O.LATE SRI.KUNHIKRISHNAN, **2** ## **M.F.A(Forest) No.140 of 2005** -DO- -DO8 SRI.ANIL VARNAN, S/O.LATE SRI.KUNHIKRISHNAN, -DO- -DO9 SRI.SUNIL VARNAN, -DO- -DOTHE CAUSE TITLE IS AMENDED BY INSERTING THE NAMES OF ADDL. RESPONDENTS 2 TO 9 AS PER ORDER DATED 9.6.06 IN IA 903/06. BY ADVS. SRI.LIJU. M.P SRI.SAJAN VARGHEESE K. THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.F.A(Forest) No.140 of 2005** **3** K.VINOD CHANDRAN & C. JAYACHANDRAN, JJ. -------------------------------------------M.F.A.(Forest) No.140 of 2005 -------------------------------------------Dated this the 20[th] October, 2022 ## JUDGMENT ## K.Vinod Chandran,J. Appeal by the State against the order of the Forest Tribunal granting exemption to the scheduled properties, which was found to be coming under the purview of S.2(f)(1)(ii) of the Private Forest (Vesting and Assignment) Act, 1972 (for brevity 'Vesting Act'). The applicant contended that they purchased the schedule property as per registered deed No.1611/1982, executed by one Mohanakumar, who obtained the property as per Ext.A2. The vendor in Ext.A2 was holding the properties as a 'kanamdar' as per Ext.A3 deed No.946/1953 of SRO Kozhalmannam. The applicant contended that he is cultivating the property with sweet potato, black gram, tapioca and other seasonal crops and a portion of the property is rocky. It was also asserted that the predecessors in interest also cultivated the property and it does not come under the purview of the Madras Preservation of Private Forest Act, 1949 (for brevity MPPF Act). The **M.F.A(Forest) No.140 of 2005** **4** respondents asserted that the property is part of vested forest, called Kokkaranikunnu-Malavaram having total extent of 88.38 acres and is a private forest defined under S.2(f) of the Vesting Act. It was also contended that there was a proper notification and the application is barred by limitation. 2. The Tribunal found that the application is not barred by limitation, especially since the notification does not indicate the correct Sy. No. of the property which is scheduled. As for the claim under S.2(f), it was found, on the admission of the respondents, that the total extent of the property, in which the schedule land is comprised, is 88.38 acres and hence, MPPF Act does not apply to the said land, which act, as statutorily prescribed, applies only to extents of 100 and more acres. However, it was found that the land being rocky and comprised in a forest area, would be a waste land coming within the purview of S.2(f)(1)(ii). On the question of title, A1 to A3 deeds were relied on to find ownership on the holder of the land, the 'kanamdar' described in A3 as on the appointed day under the Vesting Act. Ext.A5 was a certificate of the Village Officer which specified that there was no ceiling case pending against the said person. On the **M.F.A(Forest) No.140 of 2005** **5** aforesaid two grounds, it was found that there is an intention to cultivate the property as spoken to by PW3, the son of the 'kanamdar', PW1, the applicant and PW2, a neighbor. 3. Learned Counsel for the applicant first submitted that it cannot at all be held that the subject land is governed by S.2(f)(1)(ii). The term forest has not been defined in the Act and necessarily the word has to be understood from the ordinary meaning assigned to it. The dictionary meaning as seen from the Oxford dictionary is a land in which there is natural growth of trees, which the subject land, did not have on the appointed day or later. When the specific inclusion of waste lands covered by wooded areas was pointed out to the learned Counsel, it was countered that the land was not a waste land and the Commission Report clearly indicates that there were quarries being carried on in the property. It is also argued that the three requirements under the Vesting Act has been satisfied and the findings of the Tribunal are unassailable on every aspect. It is pointed out that despite the fact that the applicant has not filed an appeal, for reason only of the application before the Tribunal having ended in his favor; he is all the same entitled to raise contentions against the **M.F.A(Forest) No.140 of 2005** **6** adverse findings of the Tribunal. The learned Counsel relies on _Ravinder Kumar Sharma v. State of Assam and others (1999) 7 SCC 435_ , _Susheela v. Balakrishnan 2014 (1) KLT 1004_ and _Smitha v. Krishnan 2017 (1) KLT 892_ . 4. The learned Special Government Pleader, Nagaraj Narayanan, argues that there is absolutely no evidence regarding the cultivation or the intention to cultivate. It is pointed out that in _Parameswara Sastrigal v. State of Kerala 2008 (2) KLT 461,_ a Full Bench of this Court had declared that intention to cultivate cannot merely be assumed and an inference can be drawn only if there are attendant circumstances which leads to such an inference of intention to cultivate. The Commission Report is specifically pointed out to argue that there was absolutely no cultivation in the property and there was rampant destruction of the land by conducting quarry operations. 5. We do not find any reason to interfere with the finding of the Tribunal regarding limitation. The definition of forest as found in Black's Law dictionary is ' _a tract of land covered with trees and one usually of considerable extent'_ . The definition of private forest as **M.F.A(Forest) No.140 of 2005** **7** contained in the Vesting Act specifically takes within its ambit waste lands covered by wooded areas. It cannot for a moment be assumed that if any useful commercial operations are carried out in the land, as specifically pointed out in this case regarding the conduct of a quarry, it goes out of the definition of a private forest. It is also to be noticed that the quarry carried out is much after the appointed day and pertinently the said commercial activity does not fall within the scope of the exemption or exclusion under the Vesting Act. The boundaries of the property as noticed by the Commissioner and spoken of by the witnesses for the applicant are as they exist at the time of inspection; ie: in July and August of 2000, long after the appointed day. 6. In this context, the examination of the Commission Report is very relevant. Ext.C1 Commission Report specifically indicates that the subject property is lying as a slope towards the north and most of the extent are covered with rocks. Even the application admits that a portion of the property is rocky and the remaining portion are cultivable lands. Hence though cultivable, if there is no such cultivation carried out in the property, lying contiguous to the rocky **M.F.A(Forest) No.140 of 2005** **8** portions, the entire land has to be considered as a waste land. It is also pertinent that the exclusion as provided in the Vesting Act from private forests on which MPPF Act applies, should be principally cultivated with the specified crops and there cannot be any exclusion to so much of the extent that is cultivated; as has been held in _Ammukunhi Amma v. State of Kerala 2016 (3) KHC 52._ This proposition garners further support from the distinct words employed in the exemption clauses Sections 3(2) & (3); which allows the exemption to ' _so much extent of land'_ comprised in forest lands in which personal cultivation is carried on or is intended to be carried on. The subject land is a private forest being on the slope of a hill comprised in a total extent of 88.38 acres of forest land on which S.2(f)(1)(ii) applies squarely. The claim for exclusion does not apply to S.2(f)(1)(ii). 7. The claim for exemption is specifically under S.3 (2) & (3) of the Vesting Act. Despite the contention in the application that the predecessors in interest used to cultivate the same cash crops, in the petition schedule property, there is absolutely no evidence proffered, but for the assertion in the application and the evidence of PW2 & **M.F.A(Forest) No.140 of 2005** **9** PW3. PW2 claims to have a residence near the subject property but does not possess any agricultural land nor does he proffer any explanation as to how he had the knowledge of the crops cultivated in the land by the person who was holding the property in 1971. PW3 is the son of the person who was holding the property as on 1971. Contrary to what was found by the Commissioner and admitted by the applicant itself, PW3 states that every part of the subject land was cultivable. While PW3 asserts cultivation of bengal gram and horse gram when the property was held by his father, according to PW2, the property was cultivated with green gram and black gram; clearly distinguishable from each other. Again these are interested assertions made by the witnesses, without any substantive brief. PW3 also admits in cross examination that his father died in January 1971, later to which Annexure A2 Assignment Deed was executed. Considering the totality of the circumstances, both PW2 and PW3 are not believable witnesses. 8. We have to again look at the Commission Report which speaks of the boundaries and specifically notice the quarry which is being operated on the western boundary of the property. It was also **M.F.A(Forest) No.140 of 2005** **10** noticed that there is a deep gorge in the property having depth about more than 10 feet, formed by reason of the quarrying of rock carried out in the property. As for the trees in the property, there were no cultivation or trees seen in the property. 9. The applicant has failed to prove that there is any cultivation in the property under S.3(2) of the Act specifically as on the appointed day i.e., 10.5.1971. As far as S.3(3) is concerned, it has to be noticed that even in the application the contention is that there was cultivation carried out by the predecessors in interest and also the applicant herein; at least the last a deliberate falsehood, evident from the Commission Report. 10. _Parameswara Sastrigal (supra)_ looked at how the intention to cultivate can be inferred in a land on which exemption is claimed under S.3(3). The intention cannot be one merely declared but has to be proved on the basis of the activities carried out in the property, clearly putting forth an intention to cultivate the same. The decision of the Hon'ble Supreme Court in _Joseph v. State of Kerala 2007 (2) KHC 619_ was also relied on. In the cited decision it was held that the same has to be gathered not only from the fact situation existing at a **M.F.A(Forest) No.140 of 2005** **11** particular time, but also from the subsequent conduct. The activities in the property must be systematic and not sporadic and there should be clear conduct discernible of development of land for making it fit for cultivation, preceding to and subsequent to the date of vesting. In the present case, there is no such claim raised in the application nor is the same spoken of in the testimonies or substantiated by documentary evidence. We cannot but find that the Tribunal's finding that there was intention to cultivate, is erroneous and not arising from the evidence led before it. We hence interfere with the order of the Tribunal and reverse the same and find the application, liable to be rejected; which we do in the present appeal. Appeal is allowed and the parties shall suffer their respective costs. Sd/- K.VINOD CHANDRAN, JUDGE **Sd/-** C. JAYACHANDRAN, JUDGE uu