Padmini d/o Krishnan alias Kunhukutta Tharagan, Kannanunni s/o Krishnan alias Kunhukutta Tharagan, Krishnanunni s/o Krishnan alias Kunhukutta Tharagan v. State of Kerala and The Custodian of Vested Forests

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 16[TH] DAY OF DECEMBER 2022/25TH AGRAHAYANA, 1944 MFA (FOREST) NO. 58 OF 2012** ## **OA 25/2008 OF FOREST TRIBUNAL, KOZHIKODE DTD.9.12.2011 APPELLANTS:** 1 PADMINI D/O.KRISHNAN ALIAS KUNHUKUTTA THARAGAN. 2 KANNANUNNI S/O.KRISHNAN ALIAS KUNHUKUTTA THARAGAN. 3 KRISHNANUNNI S/O.KRISHNAN ALIAS KUNHUKUTTA THARAGAN. ALL RESIDING AT KOOTTALA OORAMCHOKKATH, CHANGOD DESOM, VEERAMANGALAM AMSOM, OTTAPPALAM TALUK. BY ADVS. SRI.A.R.GANGADAS SMT.BINDU S.CHETTUR ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.695 001. 2 THE CUSTODIAN OF VESTED FORESTS, ARANYABHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD.678 001. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON** **16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A (Forest) No.58 of 2012 ..2.. ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------- M.F.A (Forest) No.58 of 2012 ------------------------------------------------------------Dated this the 16[th] day of December, 2022 ## **JUDGMENT** ## C.Jayachandran, J. The appeal is preferred by the applicants before the Forest Tribunal, Kozhikode, challenging the order in O.A.No.25/2008, which refused a declaration that the scheduled property is not a private forest, besides holding that the applicants are not entitled to the exemptions under Sections 3(2) and 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ( 'the Vesting Act' for short). **2.** Heard Sri.A.R.Gangadas, learned counsel for the appellants and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests). Perused the records. **3.** Two points have been specifically raised by the learned counsel for the appellants. The first is against the mandatory M.F.A (Forest) No.58 of 2012 ..3.. character of Section 3 of the Madras Preservation of Private Forests Act, 1949 ('the M.P.P.F.Act', for short), especially in the context of the said Act having been repealed by virtue of Section 18 of the Vesting Act. The second point argued by the learned counsel for the appellants stems from the fact that a portion of the property has been given to 'Kolakkadanmala Vanasamrakshana Samithi' _pendente lite_ , which course adopted is not legal, besides being opposed to the purposes of the Vesting Act. **4.** We will first consider the mandate of sanction contemplated under Section 3 the M.P.P.F. Act. Section 3(1)(a) interdicts that no owner of any forest shall, without the previous sanction of the District Collector, sell, mortgage, lease or otherwise alienate the whole or any portion of the forest and Section 3(1)(b) provides that any alienation in contravention of clause (a) shall be null and void. M.F.A (Forest) No.58 of 2012 **==> picture [22 x 8] intentionally omitted <==** **5.** For a correct appreciation of the issue raised, the first thing to be ascertained is whether the M.P.P.F. Act would have applied to the scheduled property immediately before the commencement of the Vesting Act. The Tribunal found the answer in the affirmative. A specific contention of the Forest Department in its counter affidavit is that the scheduled property is part of a huge malavaram (slope of hill) known as 'Kolakkadanmala', having an extent of 133.91 hectares. Notification under the Vesting Act was issued with reference no.1383/1977 dated 10.10.1979 in respect of the whole malavaram. As per Section 1(2)(i) of the M.P.P.F. Act, the Act applies to all private forests in the Districts of Malabar and South Kanara, having a contiguous area exceeding 100 acres. Ext.B1 notification, vide serial no.115, pertains to the scheduled property, indicating vesting under the Vesting Act. Ext.B2 is the copy of the sketch showing V.F.C. item no.91, a portion of Kolakkadanmala. To the same effect is the evidence tendered by RW1 - the Forest Range Officer concerned, specifying that the scheduled property forms part of M.F.A (Forest) No.58 of 2012 **==> picture [22 x 8] intentionally omitted <==** Kolakkadanmala included as VFC item no.91. No contrary evidence is adduced by the applicants, on whom the burden of proof invariably rest. It could safely be concluded that the M.P.P.F. Act would have applied to the scheduled property immediately prior to the introduction of the Vesting Act. There was no serious dispute raised before us in this regard. **6.** Once it is found that the M.P.P.F. Act applies, then the question is with respect to the rigour of Section 3. Section 3 specifically mandates sanction from the District Collector for alienation of the whole or any portion of the forest land. The language employed is 'shall'. This, coupled with the further declaration as contained in Section 3(1)(b) of the Act to the effect that any contravening alienation shall be null and void, leaves no room for any doubt as regards the mandatory rigour of Section 3 of the M.P.P.F. Act. The only possible interpretation is that the sanction is mandatory, failing which the alienation is null and void. We specifically notice that the language employed in the statute is not voidable at the option of the M.F.A (Forest) No.58 of 2012 **==> picture [22 x 8] intentionally omitted <==** Forest Department, but void _per se_ , which renders an alienation without sanction, _non est_ in law. **7.** Admittedly, Ext.A1 document of the year 1967 in the name of the applicant's father was executed without obtaining any sanction from the District Collector and hence void. The finding of the Tribunal warrants no interference in this regard and the same is hereby confirmed. **8.** Coming to the second point, we notice the contention of the Special Government Pleader (Forests) that the 'Vanasamrakshana samithi' is constituted in major forest areas, which is directly under the aegis of the Forest Department, the samithi being headed by a Senior Forest Officer. We also notice that the purpose of such arrangement is to develop a medicinal plantation, which cannot be said to be totally unconnected with the purposes of the Vesting Act. Therefore one cannot challenge the sharing of possession with such a samithi, as a transaction _pendente lite_ . The doctrine of M.F.A (Forest) No.58 of 2012 **==> picture [22 x 8] intentionally omitted <==** _lis pendens,_ only makes the transaction subject to the result of the legal proceeding and does not _ipso facto_ render such transaction illegal or invalid. **9.** Finally, we find that the contention now raised, based on the property being given possession of to the Vanasamrakshana samithi, is neither pleaded nor canvassed before the Forest Tribunal. For the above referred reasons, the second point argued by the learned counsel should also fail. **10.** We have gone through the Commissioner's report, which clearly indicates that, on all the four sides of the scheduled property, there exists vested forests. Some portion of the property is covered by rocks. Apart from 20 cashew of the age 15-20 years, all other trees noted, namely, vaka, kaini, uppala, seemakonna, mango, palm trees, acacia, pala, etc. indicates nothing but spontaneous growth of trees of a forest nature. The Commissioner could not find any cultivation being done in the property even at the time of inspection, much less as on M.F.A (Forest) No.58 of 2012 ..8.. the appointed date. The evidence tendered is by the applicant as PW1 and one Krishnan, son of Velu as PW2. Insofar as PW1 is concerned, he has no direct knowledge with respect to the state of affairs prevailing as on the appointed day, namely, 10.5.1971. Insofar as PW2 is concerned, the deposition is to the effect that the applicant's father Krishnan was conducting fugitive cultivation of _modan_ , tapioca, etc. In crossexamination, it is elicited that PW2 purchased 2 acres of land from the said Krishnan. He even denied that the scheduled property is part of the Kolakkadanmala. The Tribunal, who had the advantage of observing the demeanor of the witness, refused to place intrinsic reliance upon the evidence tendered by PW2. **State of Kerala v. C.J.Alexander** [1993 (1) ILR Kerala 731] held thus regarding the quality of evidence required to find an exemption: _“In order to get the benefit of S.3(2), the applicant should prove that he is the owner and further, there was personal cultivation in the land prior to the appointed day. The burden is on the applicant to prove the said facts. The said fact should be proved_ M.F.A (Forest) No.58 of 2012 ..9.. _on solid and definite evidence. A finding on such facts cannot be entered on shaky and dubious materials. Mere statement by the party cannot form the basis for entering a finding in his favour. These propositions are well settled by the decisions of this Court in M.F.A.No.272 of 1977, dated 13[th] July, 1979, M.F.A.No.248 of 1977, dated 26[th] September, 1979, Chandran's case (1980 KLT 838), State of Kerala v. Kunhiraman (1990 (1) KLT 382), etc.”_ Gauged in that yardstick, we cannot find that the evidence adduced is sufficient to support the exemption under Sections 3(2) and 3(3) of the Vesting Act. Moreover, both Sections 3(2) and 3(3) mandate the requirement of 'holding a property as an owner', which in the latter case should be under a valid registered document. We have already found that Ext.A1 document of the year 1967 is null and void, wherefore, the requirement of Section 3(3) is not satisfied. So far as Section 3(2) is concerned, we have found that the applicants failed to prove that the scheduled property was held by them as an owner under their personal cultivation, or for that matter under cultivation of their father. M.F.A (Forest) No.58 of 2012 **==> picture [28 x 8] intentionally omitted <==** We find no merit in the appeal and the same is therefore dismissed. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** skj