State of Kerala and Custodian of Vested Forests, Olavakkode v Sarasamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **& THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 16TH DAY OF AUGUST 2016/25TH SRAVANA, 1938** ## **MFA.No. 106 of 2011 ( )** **-----------------------AGAINST THE ORDER IN OA 4/2005 of FOREST TRIBUNAL, KOZHIKODE DATED 02-08-2010** ## **APPELLANTS/RESPONDENTS 1 & 2:** **----------------------------------------------------** **1. STATE OF KERALA, REP. BY CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** **2. CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT.** ## **BY SPL. GOVERNMENT PLEADER (FORESTS) SRI.NAGARAJ NARAYANAN** ## **RESPONDENTS/APPLICANTS/RESPONDENTS 4 & 5:** **--------------------------------------------------------------------------** **1. SARASAMMA, W/O.LATE GOPALAN, VADAKKAPANAKKAL HOUSE, CHULLIMADA, KANJIKKODE, PALAKKAD - 678 621.** **2. SHAYI, D/O.LATE GOPALAN, --DO--** **3. SHENU, S/O.LATE GOPALAN, --DO--** **4. SHANU, S/O.LATE GOPALAN, --DO--** **5. R.VENKITTA HARI, S/O.RADHAKRISHNAN CHETTIAR,** - **PATTIKKARA, PALAKKAD - 678 001.** **6. BALAN NATARAJKUMAR, S/O.LATE BALAGANGATHARA CHETTIYAR, 25/79, HERA, THOTTINGAL, NOORANI, PALAKKAD - 678 001.** **R1 BY ADV. SRI.P.CHANDRASEKHAR R1-R4 BY ADV. SRI.S.PRASANTH** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **VPV** ## **P.N.RAVINDRAN & A.MUHAMED MUSTAQUE, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.F.A. (Forest) No.106 of 2011 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 16[th] day of August, 2016** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ This appeal arises from the order passed by the Forest Tribunal, Kozhikode on 2.8.2010 in O.A.No.4 of 2005, an application filed by respondents 1 to 4 herein under section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as “the Vesting Act” for short) for a declaration that the petition schedule property is not a private forest vested in the Government. The brief facts of the case are as follows: 2. Respondents 1 to 4 herein as petitioners instituted O.A.No.4 of 2005 for a declaration that the petition schedule property, having a total area of 4 acres, situate in Sy.No.740/1 of Pudussery Central Village, Palakkad Taluk, Palakkad District, comprised of 50 cents purchased by the first applicant as per Ext.A1 sale deed dated 9.1.1987; 1 acre 50 cents purchased by the third applicant as per Ext.A2 sale deed dated 9.1.1987 and 2 acres purchased by Gopalan, the predecessor-in-interest of the **M.F.A.No.106 of 2011** ## **-:2:-** applicants as per Ext.A3 sale deed dated 13.10.1986 is not a private forest vested in the Government. As per the averments in the application, the petition schedule property originally belonged in jenm to the family of respondents 3 and 4. The applicants had in the application stated that as per Ext.A4 partition deed dated 31.3.1969 registered as document No.1548 of 1969 of SRO, Palakkad, executed among the family members of respondents 3 and 4, the petition schedule property was set apart to the share of the third respondent. Later as per Ext.A5 exchange deed dated 26.3.1971, the property was transferred to the fourth respondent from whom the various applicants and their predecessor-ininterest purchased it as per Exts.A1, A2 and A3 sale deeds. The applicants contended that ever since the date of purchase they are in possession of the petition schedule property, that recently on 20.1.2005 and 21.1.2005, officials of the Forest Department caused obstruction to the possession and enjoyment of the petition schedule property and therefore, they are put to the necessity of filing an application under section 8 of the Vesting Act. The applicants had in the application further stated that the petition schedule property is not a private forest as defined in the Vesting Act but only dry land and that it is not part of an area to **M.F.A.No.106 of 2011** ## **-:3:-** which the Madras Preservation of Private Forests Act, 1949 (hereinafter referred to as “the M.P.P.F. Act” for short) applied. They had further averred that the land lies interspersed among households and paddy lands and that it was devoid of any tree growth as on 10.5.1971 or immediately prior to it. It was further contended that there are 65 coconut palms and 35 mango trees in a portion of the land and that a portion was also used for the purpose of paddy cultivation. 3. Upon receipt of notice, respondents 1 and 2 entered appearance and filed a counter affidavit dated 31.10.2005 wherein they contended that there is confusion regarding the existence and identity of the three items of properties mentioned in the schedule to the application. Respondents 1 and 2 further contended that on ground, the boundaries of the disputed property are as shown below: _“North : Vested Forest_ _East : Private Land and Vested Forest in Sy.No.741 South : Thodu and Vested Forest in Sy.No.741 West : OA 29/78 schedule property.”_ Respondents 1 and 2 further contended that the actual survey number in which the petition schedule property is situate is 740/3 which was notified as a vested forest as V.F.C. item No.217/IV in notification No.D-1383/77 dated 10.10.1979. They further **M.F.A.No.106 of 2011** ## **-:4:-** contended that the total extent of land in Sy.No.740/1 is 18.53 acres, that at the time of vesting under the Vesting Act, Sy.No.740/1 was sub-divided into Sy.Nos.740/1, 740/3, 740/4, 740/5, 740/6, 740/7, 740/8, 740/9, 740/10 and 740/11. It was contended that the land in Sy.No.740/3 was notified as a vested forest as per the aforesaid notification dated 10.10.1979. Respondents 1 and 2 had in the counter affidavit further stated that for the purpose of restoring possession of land to the applicants in O.A.No.29 of 1978 on the file of the Forest Tribunal, Palakkad, Sy.No.740/3 was again sub-divided into Sy.Nos.740/3, 740/14 and 740/15. It was further contended that the area surveyed for the purpose of restoration of possession of the land involved in O.A.No.29 of 1978 to the applicants therein is in Sy.No.740/14 and therefore, it is to be presumed that the applicants in the instant case are claiming the vested forest area situate in Sy.No.740/15, the total extent of which is 5 acres, corresponding to 2.0220 hectares. Respondents 1 and 2 also contended that though in some portions of the disputed land, coconut palms and mango trees which are not more than ten years old are in existence, the land also supports natural growth of bamboo, teak, manhapavatta and other local species of trees. **M.F.A.No.106 of 2011** ## **-:5:-** It was contended that under the cover of invalid documents, the applicants have trespassed into forest land taking advantage of the shortage of forest staff. It was stated that it was only when the land was surveyed for the purpose of restoring possession of the land involved in O.A.No.29 of 1978, that the encroachment came to the notice of the officers of the Forest Department. Relying on the statement in the application that the present survey number of the land situate in Sy.Nos.740/1 is 740/15, respondents 1 and 2 further contended that the M.P.P.F. Act applied to the Komuttychalla Malavaram, having a total extent of more than 150 acres, that the petition schedule land along with the adjacent lands forming part of Komuttychalla Malavaram stood vested in the Government by virtue of the Vesting Act and that the disputed land and adjacent lands are covered by the notification dated 10.10.1979 referred to above. Respondents 1 and 2 contended that the applicants are not entitled to the relief prayed for. 4. Before the Forest Tribunal, the third applicant examined himself as PW1. The applicants also produced and marked Exts.A1 to A8. On application filed by the applicants, an Advocate Commissioner was appointed to inspect the petition schedule **M.F.A.No.106 of 2011** ## **-:6:-** property. The report submitted by him after inspection was marked as Ext.C1 and the plan accompanying it as Ext.C2. On the side of the respondents, the Forest Range Officer of Walayar Range was examined as RW1. Respondents 1 and 2 also produced and marked Ext.B1 notification dated 18.3.1978 and the periphery sketch accompanying it. After considering the rival contentions and the evidence, oral and documentary available in the case, the Forest Tribunal held that the disputed land was not a private forest as on 10.5.1971. The Forest Tribunal also held that there is no evidence to prove that the petition schedule property is included in Ext.B1 notification. The Forest Tribunal accordingly allowed O.A.No.4 of 2005 and declared that the petition schedule property is not a private forest vested in the State. The State of Kerala and the Custodian of Vested Forests have, aggrieved thereby, filed this appeal. 5. We heard Sri.Nagaraj Narayanan, learned Special Government Pleader appearing for the appellants and Sri.P.Chandrasekhar, learned counsel appearing for respondents 1 to 4. Though respondents 5 and 6 have been served, they have not entered appearance. Sri.Nagaraj Narayanan, learned Special Government Pleader appearing for the appellants **M.F.A.No.106 of 2011** ## **-:7:-** submitted that while the case set out by the applicants in the petition filed before the tribunal is that the disputed land was situate in Sy.No.740/1 and its present survey number is 740/15, the Advocate Commissioner has in his report stated that only a portion thereof having an extent of 47.4432 cents is situate in Sy.No.740/1. The learned Special Government Pleader submitted that the Advocate Commissioner has in Ext.C1 report and Ext.C2 plan stated that the rest of the petition schedule property which, according to the Advocate Commissioner, has a total area of only 277.2462 cents, is situate in Sy.No.1014/2 (old Sy.No.335/8) and 741/2 and therefore, as it has not been proved that the petitioners own anything other than 47.4432 cents of land in Sy.No.740/1, the Forest Tribunal erred in granting the relief prayed for. Relying on the decisions of this court in **State of Kerala v. Kunhiraman** [1990 (1) KLT 382] and **State of Kerala v. Chandralekha** [1995 (2) KLT 152 (FB)] and the decision of the Apex Court in **State of Kerala and Another v. Popular Estates and Another** [(2004) 12 SCC 434], learned Special Government Pleader contended that the burden of establishing that the petition schedule property is not a private forest is on the applicants and that they have signally failed to prove the said **M.F.A.No.106 of 2011** ## **-:8:-** fact. Referring to the objections dated 13.9.2007 filed by the appellants to Ext.C1 report submitted by the Advocate Commissioner, learned Special Government Pleader submitted that the Forest Tribunal has not considered the objections raised by the appellants to the Advocate Commissioner's report. Inviting our attention to the objections to the Commissioner's report, learned Special Government Pleader contended that the disputed property actually lies in Sy.No.740/3 and therefore, the statement in Ext.C1 report that the petition schedule property is situate in Sy.Nos.740/1, 741/2 and 1014/2 is incorrect. Learned Special Government Pleader also submitted that the boundaries have not been correctly taken note of by the Advocate Commissioner. Learned Special Government Pleader also contended, referring to the admission made by the third applicant examined as PW1 that he was not aware of the state of affairs immediately prior to 10.5.1971, that the applicants have not proved that the M.P.P.F. Act did not apply to the disputed land and therefore, the Forest Tribunal erred in granting the relief prayed for. Learned Special Government Pleader contended that if as on 10.5.1971 the M.P.P.F. Act applied to the disputed land, then, notwithstanding the fact that the disputed land did not **M.F.A.No.106 of 2011** ## **-:9:-** support tree growth, the land will vest in the Government on and with effect from 10.5.1971 by virtue of the provisions contained in section 3(1) of the Vesting Act. Learned Special Government Pleader also invited our attention to the report submitted by the Advocate Commissioner and pointed out that the boundaries of the petition schedule property as set out in the application and the boundaries identified by the Advocate Commissioner do not tally. Learned Special Government Pleader submitted that in such circumstances, the impugned order is liable to be set aside and the application for declaration dismissed. 6. Per contra, Sri P.Chandrasekhar, learned counsel for the applicants submitted that the Advocate Commissioner has, after inspecting the disputed land on four occasions with the assistance of the Village Officer, identified the petition schedule property and has reported that out of the petition schedule lands, 47.4432 cents corresponding to 0.1920 hectares lies in Sy.No.740/1 (old Sy.No.327/6), that 28.1694 cents corresponding to 0.1140 hectares lies in Sy.No.1014/2 and that 201.1633 cents corresponding to 0.8160 hectares lies in Sy.No.741/2, that the contention of the State even in the objections filed by it to the Commissioner's report as also in the counter to the application is **M.F.A.No.106 of 2011** ## **-:10:-** that the disputed land lies in Sy.No.740/3 which was sub divided after O.A.No.29 of 1978 was disposed of, into Sy.Nos.740/14 and 740/15. Learned counsel contended that in as much as it has been proved that the disputed land is not situate in Sy.No.740/3, the challenge by the State to the impugned order is without any merit and is liable to be rejected. Inviting our attention to Ext.C1 report submitted by the Advocate Commissioner, learned counsel for the applicants submitted that the disputed land lies contiguously on the same level, that Komuttychalla Malavaram lies about 1 km. away from the disputed land, that on the south of the disputed land, is a thodu having a depth of 10 feet and further to the south are coconut gardens and lands cultivated with plantain, that on the east is situate the property belonging to Benjamin which is cultivated mainly with paddy and sugarcane, that to the west is a thodu and further west is land cultivated with plantain, that to the north is a road and further to the north is land cultivated with paddy. Learned counsel also brought to our notice the fact that the Advocate Commissioner has reported that a dilapidated house and a water tank are situate in the petition schedule property, that the Advocate Commissioner has also referred to the existence of 27 coconut **M.F.A.No.106 of 2011** ## **-:11:-** palms aged about 15 years, 20 coconut palms aged about 10 years and 16 mango trees and therefore, by no stretch of imagination can it be said that the disputed land was land to which the M.P.P.F. Act applied immediately prior to 10.5.1971 or a private forest not owned by the Government on the appointed day, viz. 10.5.1971. Learned counsel submitted that it has come out in evidence that the disputed land is not situate in Sy.No.740/3 or 740/14 or 740/15 and therefore, the appellants cannot successfully challenge the impugned order. Inviting our attention to Ext.B1 notification, learned counsel contended that the notification does not take in the lands situate in Sy.Nos.740/1, 741/2 and 1014/2 and therefore, for that reason also, the instant appeal is liable to be dismissed. 7. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. The applicants had in the application stated that the disputed land is situate in Sy.No.740/1. They had also stated that the new survey number of the land is known to be 714/15. The boundaries of the three items of properties except the western boundary of item No.3 tally with the boundaries noticed by the Advocate **M.F.A.No.106 of 2011** ## **-:12:-** Commissioner. The Advocate Commissioner has in his report stated that the disputed land is bounded by a thodu on the south and west, on the east by Benjamin's property and on the north by a public road. RW1 has not in his deposition stated that the boundaries of the property are not as stated by the Advocate Commissioner. The relevant portion of the deposition of RW1 reads as follows: “ØíÅÜçJAí çÉÞµáÕÞX çÎÞçGÞV ÕÞÙÈ ·ÄÞ·Ä Øìµøc¢ ©Ií.åPWD Road_æa ¯Äá ÍÞ·JÞÃí ÉGßµ ØíÅßÄßæºÏîáKÄí. (Q) PWD road ¦çÃÞ ®KùßÏßÜï. çùÞÁßæa æÄAáÕÖJí 100 _ 150 ¥¿ß ÕßGßGí.” He had also stated that Komuttychalla Malavaram is approximately 500 metres away from the petition schedule property. In his chief examination he had no case that the southern, eastern and western boundaries as noticed by the Advocate Commissioner are not correct. In other words, from the materials on record, the conclusion is inescapable that the petition schedule land is bounded on the south and west by a thodu, on the north by a public road and on the east by the property belonging to Benjamin which is predominantly cultivated with paddy and further to the north of Benjamin's property is land where sugarcane is cultivated. It has also come out in evidence that a dilapidated house and a water tank are situate in **M.F.A.No.106 of 2011** ## **-:13:-** the petition schedule property. If that be so, in the absence of any evidence to show that the disputed land is situate in Sy.No.740/3, which was later subdivided into Sy.Nos.740/14 and 740/15, to which the M.P.P.F. Act applied, according to the appellants, we are of the opinion that nothing turns on the failure of the Forest Tribunal to consider the question whether the M.P.P.F. Act applied to the disputed land immediately prior to the appointed day. From the materials on record, the conclusion is inescapable that the land identified by the Advocate Commissioner was not land to which the M.P.P.F. Act applied immediately prior to the appointed day. 8. That apart, Ext.B1 notification does not refer to the lands situate in Sy.No.740/1, 741/2 or 1014/2. As per Ext.B1 notification, the lands situate in Sy.Nos.766/10, 766/11, 767/3, 767/4, 768/2, 769/5, 769/6, 769/7, 1000/3, 1000/4, 1000/5, 1000/6, 1000/7, 1000/8, 1000/9, 1004/9, 1004/10, 1004/11, 1005/4, 1006/7, 1007/8, 1007/9, 1007/10, 1007/11, 1007/12, 1007/13, 1008/5, 1008/6, 1008/7, 1008/8, 1008/9, 1009/2, 1010/9, 1010/10, 1010/11, 1010/12, 1010/13, 1010/15, 1011/9 and 1011/10 alone were notified as vested forests. Though the appellants had in the counter affidavit referred to a notification **M.F.A.No.106 of 2011** ## **-:14:-** dated 10.10.1979, for reasons best known to them, that notification was not produced. In any case, going by the location and lie of the land and the fact that no forest trees were found to be in existence at the time when the Advocate Commissioner inspected the property, we find no reason or justification to interfere with the finding entered by the Forest Tribunal that the petition schedule land was not a private forest as on 10.5.1971. Though it was contended before us that the Advocate Commissioner has not correctly identified the petition schedule property and he has not stated as to how the Village Officer identified the property, as such identification was done with notice to the appellants and in the presence of the officers of the Forest Department and as no such contention was raised in the objections filed by the appellants to the report of the Advocate Commissioner, we find no reason or justification to discard the report submitted by the Advocate Commissioner. Going by the materials on record, it cannot be said that the Forest Tribunal committed an error when it entered the finding that the disputed land is not a private forest. In the counter affidavit filed before the Forest Tribunal, the stand of the appellants was that the disputed land is situate in Sy.No.740/3 which was later **M.F.A.No.106 of 2011** ## **-:15:-** subdivided into 740/14 and 740/15. The State had no case that the land situate in Sy.Nos.740/1, 741/2 and 1014/2 having a total area of 277.2462 cents is a private forest vested in the State. They had no case that the lands situate in Sy.Nos.740/1, 741/2 and 1014/2 are lands to which the M.P.P.F. Act applied immediately prior to the appointed day, viz. 10.5.1971. In such circumstances, we are not persuaded to hold that the impugned order calls for any interference. Though it was contended that the claimants will be entitled to restoration of possession of a larger parcel of land in the event of the impugned order being upheld, in view of the fact that Ext.C2 plan has been appended to the order, the apprehension of the appellants in that regard is unfounded. The applicants will be entitled to restoration of possession of only the lands identified by the Advocate Commissioner and demarcated in Ext.C2 plan. Though it was contended before us that the applicants have not proved that they have title to the lands situate in Sy.Nos.741/2 and 1014/2, it is not a plea which the State can successfully raise in view of the fact that the State had no case that the lands situate in said survey numbers are private forests vested in the Government. We accordingly hold that there is no merit in the instant **M.F.A.No.106 of 2011** ## **-:16:-** appeal. The appeal fails and is dismissed. No costs. Sd/- **P.N.RAVINDRAN JUDGE** Sd/- **A.MUHAMED MUSTAQUE JUDGE** /true copy/ P.A. To Judge **vpv/Kav**