State of Kerala, represented by Chief Secretary, Thiruvananthapuram and Custodian of Vested Forests, Olavakkode, Palakkad District v Rajappan, s/o Mani, Koottupatha, Thodukadu, Vavulli AMSOM, Alathur Taluk

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 10TH DAY OF JANUARY 2013/20TH POUSHA 1934 MFA.No. 117 of 2005 ----------------------ORDER IN OA.21/2001 of FOREST TRIBUNAL, KOZHIKODE ................ APPELLANTS/RESPONDENTS:: 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY SPL.GOVT. PLEADER SRI.M.P.MADHAVANKUTTY RESPONDENT/APPLICANT:: RAJAPPAN, S/O. MANI, KOOTTUPATHA, THODUKADU, VAVULLI AMSOM, ALATHUR TALUK. BY ADV. SRI.A.R.GANGADAS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Hema & P.S.Gopinathan, JJ. ---------------------------------- ## M.F.A.No.117 of 2005 ---------------------------------Dated this the 10[th] day of January, 2013 ## **JUDGMENT** ## Hema, J. The respondent herein filed an application under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ('the Act' for short) before the Forest Tribunal ('the Tribunal' for short) for a declaration that petition schedule properties are not private forest and also that the applicant (along with the person) who are in possession of the petition schedule properties prior to 10.05.1971 are entitled to the benefit under Section 3(2) of the Act. The Tribunal declared that the properties are not forest land and it is not vested in the Government under Section 3(1) of the Act. This appeal is filed against the said order. 2. As per the averments in the petition filed by applicantrespondent before the Tribunal, petition schedule properties do not attract the definition of “private forest”. They are only dry lands, devoid of any forest nature. It contains only dominantly MFA 117/05 2 fruit bearing trees like tamarind and cashew. The land is not part of any land to which Madras Preservation of Private Forests Act ('MPPF Act' for shot) applies. It is not having the characteristics of a forest. 3. The area was being put under cultivation by the predecessor in interest of the applicant prior to 10.05.1971 and for the purpose of cultivation the area was fenced also. Symptoms of cultivation are available in the land; the soil is loose in character on account of continuous cultivation. The present existing fencing is renewal of the old fencing. The fencing and cultivation were continued by the applicant ever since he got possession even prior to the sale deed itself and afterwards also. 4. The petition schedule properties originally belonged to one Karthyayini Netharamma and from her, Kuttappan and Krishnankutty had verumpattom right. In the family partition, the petition schedule properties along with other properties were set apart to the share of Krishnankutty. Out of the said properties, the petition schedule property (1.61 acres) along with fifty two cents were purchased by the applicant as per document no. MFA 117/05 3 2265/93. 5. According to the applicant, all the surrounding properties are private lands. The disputed property is demarcated by an internal fencing for giving a portion to his brother. The applicant and the predecessors in interest do not possess lands in excess of the ceiling limit. Therefore, he is entitled to the relief under Section 3(2) of the Act. The larger compound is abutting a Panchayat Road on the north and a canal on the south. 6. The appellants filed counter affidavit before the Tribunal and disputed the right, title and possession of the applicant over the petition schedule property. According to appellants, the disputed property forms part of a large extent of a forest land known as Kuthanoor-Vavulliapuram Malavaram measuring 666.90978 hectares. It is lying contiguous with other forest areas of more than hundred acres and it falls within a purview of MPPF Act. 7. The disputed property is vested in the Government, as per the provisions under Section 3(1) of the Act, since 10.05.1971. The area was surveyed, demarcated and notified as MFA 117/05 4 vested forest. The ownership and possession of the property stood transferred and vested in the Government, free from all encumbrances and the right, title and interest of the owner stood extinguished. 8. The contention that petition schedule property was cultivated by the applicant is denied by respondents-appellants. The applicant is not in possession of the property since 10.05.1971. The property was never cultivated and there are no remnants of cultivation in the disputed land. The petition schedule property was a private forest as on 10.05.1971 and the provisions of MPPF Act applies to the said property. The applicant has not produced any evidence to show that the property is not a private forest. 9. The soil is not loose in character. No cultivation is done in the property. The property is in possession of the Forest Department. The applicant cannot be said to be the owner of the property as defined under Section 2(c) of the Act and he has no locus standi to file the application. The land governed by MPPF Act cannot be alienated with prior sanction of the District MFA 117/05 5 Collector and any alienation contrary to Section 3(1)(a) of MPPF Act is illegal and void. Therefore, the applicant cannot be stated to be the owner. 10. There is no cause of action for the applicant to file the application. There is delay in filing the application and it cannot be condoned in the light of a Full Bench decision of this Court. Therefore, the Tribunal has no jurisdiction even to consider the application. The applicant is trying to encroach upon the vested forest under fabricated document and therefore, the application is liable to be dismissed, it is further contended. 11. PW1 was examined on the side of the applicant. He also marked Exts.A1 to A3 on his side. The Forest Range Officer was examined as RW1 and marked Ext.B1 on the side of the appellants. The commission report and plan were marked as Exts.C1 and C2. The Tribunal considered whether the application is barred by limitation and whether the property is a “private forest” and it vested in the Government as on 10.05.1971. It was also considered whether application is entitled to the benefit under Section 3(2) of the Act. MFA 117/05 6 12. On consideration of the rival contentions, it was held that the application is not barred by limitation (this question is not challenged in this appeal). It was also held that the disputed property is not a forest and the applicant is entitled for a declaration to that effect. Referring to Ext.A3 order, which was issued in favour of another neighbour of the applicant, the Tribunal held that the land is liable to be exempted under Section 3(2) of the Act. The order of the Tribunal is challenged in this appeal. 13. Heard both sides. Perused the records. Sri.M.P.Madhavankutty, learned Special Government Pleader strongly argued that the findings are hit by res judicata, since the earlier application filed by the applicant as O.A.No.75/94 before the Tribunal, in respect of the very same property, was dismissed, for want of notification. It was also argued that the applicant is not entitled to exemption under Section 3(2) of the Act, since the land is not principally cultivated as stated in Section 2(f)(1)(i)(C) of the Act. MFA 117/05 7 14. As per the commission report and evidence, the property was not principally cultivated either with fruit bearing trees or with any seasonal crops and hence the finding that petition schedule property is not a forest is unsustainable, in the light of the dictum laid down in **State of Kerala v. AngloAmerican Direct Tea Trading Co. Ltd.** (1980 KLT 215), it was argued. It was also strongly argued that the Act applies only to lands other than those on which human skill, labour and resources have been spent for agricultural operations. 15. Referring to the object of the Act, it was vehementally argued that a property which is not cultivated as on the commencement of the Act has to be held to be a forest. Even if it is a private holding, by virtue of Section 3(1), the said property will vest in the government and the findings to the contrary are sustainable, it is strenuously argued. 16. Learned counsel for the applicant/respondent contended that nature of the property is such that it strongly indicated that it is not a forest. As rightly held by the Tribunal, it is a compound which is bounded on all four sides by private MFA 117/05 8 holdings and a canal, it is argued. On one side, there is a Panchayat road and on the other two sides, residential properties are situated. This will be evident from the commission report and the plan and hence, the property is not a private forest, it is argued. 17. It is also submitted by learned counsel for respondent that by virtue of Ext.A3,common order of the Tribunal in another case found that the property which is lying adjacent to the applicant's property is liable to be exempted and exemption was also granted by virtue of Ext.A3. The same benefit should be given to the applicant also, it is argued. It is not correct to say that the property is not principally cultivated. It is submitted that from the commission report itself, it is clear that there are various tamarind and cashew trees in the property. The Commissioner had also that tapioca cultivation had been done in the property and therefore, Section 2(f)(1)(i)(C) will apply and the argument to the contrary are not sustainable, it is argued. 18. On hearing both sides and on going through the impugned order, we are of the view that a finding is entered into MFA 117/05 9 that applicant is entitled to exemption under Section 3 (2) of the Act, but no relief was granted under Section 3(2) of the Act. The applicant did not challenge the refusal to grant such relief. However, the finding of the Tribunal in respect of Section 3 (2) of the Act, being against the interest of the State, the finding is challenged in this appeal by the State. According to learned Special Government Pleader, the failure to challenge such finding will adversely affect appellant's right in other proceedings relating to the same property. Therefore, an interference is sought for in this appeal on such finding. 19. On going through the pleadings in the petition filed by respondent and the nature of contentions taken up by the respondent, even in this appeal, we find that the finding of the Tribunal on Section 3 (2) of the Act is totally unsustainable. According to respondent, the disputed property is a private forest and a declaration was also granted to that effect by the Tribunal. But, a reading of Section 3(1) of the Act shows that Section 3 applies only to private forests and all private forests, as on 10.05.1971, shall vest in Government. However, whatever is MFA 117/05 10 stated in Section 3(1) will not apply to lands referred to in Section 3(2) of the Act. 20. Therefore, only if the property in respect of which a claim is made under Section 3(2) of the Act is a private forest, the so-called exemption under Section 3(2) can be granted. Anyway, Section 3(1) of the Act applies only to a private forest and not to any dry land. But, respondent has no case that the property is a private forest. His case is that it is not a private forest. In such circumstances, the finding that respondent is entitled to get exemption under Section 3 (2) of the Act is not sustainable. 21. Now, coming to the finding that petition schedule property is not a “private forest”, respondent's case is that the property falls within the definition of Section 2(f)(1)(i)(C) of the Act and hence he is entitled to get a declaration that it is not a “private forest”. To enter a finding that a land falls within the exclusion (C) of Section 2(f)(1)(i), the Tribunal must be satisfied that MPPF Act applied to the land immediately prior to 10.05.1971 and the land is principally cultivated with cashew or MFA 117/05 11 other fruit bearing trees or are principally cultivated with any other agricultural crops as on 10.05.1971. 22. While PW1 was examined in court, he candidly admitted in cross-examination that he did not know whether there was such cultivation in his property as on 10.05.1971. As per Ext.A1, he owns the property only with effect from 01.01.1993, much after coming into force of the Act on 10.05.1971. PW1 also did not know whether his predecessor in interest had cultivated the property. Therefore, the applicant failed to establish that his property falls within Section 2(f)(1)(i) (C) of the Act. He, thus, failed to establish that the disputed property is not a private forest by virtue of the exclusion which he claimed under Section 2(f)(1)(i)(C) of the Act. 23. Therefore, the finding that petition schedule property is not a private forest cannot be sustained. The Tribunal only made a reference to the commission report and other evidence, but it has not addressed itself to the question as to what was the nature of the property immediately prior to the appointed day. The Tribunal has ignored admissions of the applicant which MFA 117/05 12 reveals that he was not aware whether the property was cultivated by his predecessor in interest as on the appointed day. In such circumstances, findings of the learned Tribunal cannot be sustained. 24. Arguments and counter arguments were raised on the question that the property was “principally cultivated” with Cashew and other seasonal crops, etc. Since we have already found that the applicant failed to prove that his property does not fall under Section 2(f)(1)(i)(C), as claimed by him, it is not necessary to consider the above dispute. However, the declaration granted as per the impugned order that the disputed property is not a forest vested in the Government under Section 3(1) of the Act cannot be sustained. The applicant failed to establish his claim that the property is not a private forest and also the claim under Section 3(2) of the Act. Therefore, the application is liable to be dismissed. 25. In the result, the following order is passed. - i. The impugned order is set aside. ii. O.A.No.21/2001 is dismissed. MFA 117/05 13 This appeal is allowed. Parties will bear the costs. (K.Hema, Judge) (P.S.Gopinathan, Judge) tkv