State of Kerala v Sivarman

M.F.A(F).31/2016 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 27[TH] DAY OF FEBRUARY 2023 / 8TH PHALGUNA, 1944** **MFA (FOREST) NO. 31 OF 2016** **AGAINST THE ORDER IN OA 20/2012 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, FOREST AND WILDLIFE DEPARTMENT, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOR ## **RESPONDENT/PETITIONER:** SIVARAMAN, S/O. VELAYUDHAN, OOTTARAKKADU, AKATHETHARA AMSOM, PALAKKAD. BY ADVS. V.R.KESAVA KAIMAL C.DEVIKA RANI KAIMAL(D-63) THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 27.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A(F).31/2016 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A(F).No.31 of 2016 -------------------------------------Dated this the 27[th] day of February, 2023** ## **J U D G M E N T** ## **Jayachandran, J** A small extent of 28 cents comprised in Re.Sy.no.305/2 of Puthupariyaram-I village is the subject matter of O.A. No.20/2012, from which this appeal arise. As per order dated 26.05.2015, the Forest Tribunal, Kozhikode allowed the O.A, finding that the scheduled property is not proved to be a forest, wherefore, it cannot constitute a 'private forest'. The Tribunal relied upon a judgment of this Court in **Abdu v. State of Kerala** [M.F.A.No.3/2007]. It was also found that the scheduled property was cultivated with fugitive crops as on the date of vesting. Accordingly, declaration was granted that the scheduled property is not a private forest. In M.F.A(F).31/2016 3 view of the above declaration, the consideration of the claims under S.3(2) and (3) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 ['the Vesting Act', for short] does not arise was the further finding of the Tribunal. The said order is under challenge in this appeal. ## **2. The facts** : One Raghavan obtained verumpattam rights over the scheduled property from Kurdoor Madom, which had jenmom rights over the same. He, in turn, sold the scheduled property to the applicant as per Ext.A1 document of the year 1987. Three houses have been built in the scheduled property and the property was developed as a mixed garden of coconut, mango, jack fruit and tamarind. The applicant is residing in one of the houses. Claiming that the scheduled property is a vested private forest, the forest officials interfered with the possession of the applicant on 26.06.2012. The scheduled property is not a private M.F.A(F).31/2016 4 forest. Nor is there any notification declaring the scheduled property as such. The property was being cultivated with fugitive crops by the applicant's predecessor as on 10.05.1971, the date of vesting, with a residential house thereon. It is not part of any malavaram, but only a paramba. To enable cultivation, the property is developed into different compartments. The same is surrounded by private properties. The applicant hence sought for a declaration that the scheduled property is not a private forest; and alternatively for relief under S.3(2) of the Vesting Act. **3.** The Divisional Forest Officer concerned filed counter statement contending that the applicant has no title and that the claim raised is barred by limitation. The scheduled property is part of 'Dhoni Malavaram' and it was notified as such, vide V.F.C item no.32/3, Palakkad Bit. The extent of the malavaram is more than 100 acres and area is covered by the Madras Preservation of Private Forest Act, M.F.A(F).31/2016 5 1949 ['the M.P.P.F. Act', for short]. The existence of the houses and the cultivation claimed in the scheduled property are denied. The temporary sheds were constructed only to raise false claims. In the absence of any cultivation, the applicant cannot seek the benefit of the exemption under S.3(2) of the Act. Different kinds of forest trees are standing the scheduled property. The respondents sought for dismissal of the O.A. **4.** The evidence adduced consists of Exts.A1 and A2, supported by the oral evidence of the applicant as PW1 and an independent witness, PW2. On behalf of the respondents, the Forest Range Officer concerned was examined as RW1, through whom Exts.B1 and B2 were marked. The Commissioner's report and plan were marked as Exts.C1 and C2 respectively. **5.** On appreciation of the facts and evidence, the Tribunal allowed the O.A. as indicated in paragraph no.1 above. 6 ## M.F.A(F).31/2016 **6** . Heard Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) on behalf of the appellants and Sri. V.R.Kesava Kaimal, learned counsel for the respondent. Perused the records. **7.** We cannot but endorse the contentions of the Sp. Govt. Pleader as regards the course adopted by the Tribunal, which however would not make any difference in the result of the litigation, since we are allowing the O.A, but on different grounds. The Tribunal found the application of the M.P.P.F Act to the scheduled property, the correctness of which, we will have to examine in this appeal. The Tribunal then proceeded to find that the scheduled property is not a 'forest', so as to constitute a 'private forest', but was only a paramba, cultivated with fugitive crops, as claimed by the applicant. Obviously, the Tribunal toed in line with the course adopted in **K.M.Abdu** supra. As regards the exemption under Section 3(2) and 3(3), again, the Tribunal placed reliance upon **K.M Abdu** supra and found that, M.F.A(F).31/2016 7 to claim exemption, the applicant should first admit that the scheduled property is a private forest. In as much as the scheduled property was not found to be a private forest, the claim for exemption does not arise, was the conclusion of the Tribunal. We cannot accept the above findings for the following reasons. **8.** Relegating the consideration of the issue pertaining to the applicability of the M.P.P.F Act a little later, we notice that **K.M Abdu** supra was a decision rendered in a case, where the scheduled property fell under Section 2(f)(1)(ii). It appears that the Tribunal has therefore misdirected itself in following **K. M. Abdu** supra, after having found that the M.P.P.F Act applied to the scheduled property as on the appointed day. Once the Tribunal finds the applicability of the M.P.P.F Act, there is no question arising as to the lie and nature of the property or whether it lies on the field as a private forest. The Tribunal, hence, ought to have M.F.A(F).31/2016 8 ascertained whether the scheduled property falls under any of the exclusions in clauses (A) to (D) of Section 2(f)(1)(i); or whether the applicant is entitled for the exemptions under Section 3(2) or 3(3) of the Act. This exercise is not seen done by the Tribunal, wherefore, we cannot uphold its findings. We notice that the course adopted by the Tribunal is squarely in the teeth of a Bench decision of this Court in **State of Kerala v. Purushothaman** [2018(2) KLT 25], where a similar order of the Tribunal was set aside. **9.** However, the issue does not end there. We have to first see whether the scheduled property is a private forest as defined in S.2(f) of the Vesting Act. According to S.2(f)(1)(i), any land to which the M.P.P.F. Act applied immediately before the appointed day in the erstwhile Malabar district is a private forest, excluding those lands which are described in clauses (A) to (D) to S.2(f)(1)(i). M.F.A(F).31/2016 9 **10.** As per S.2(f)(1)(ii), any forest not owned by the Government to which the M.P.P.F. Act did not apply, including the waste lands which are enclaves within the wooded areas are also private forests. Admittedly, scheduled property forms part of the erstwhile Malabar district. As per S.1(2)(i) of the M.P.P.F. Act, it applies to all private forests in the districts of Malabar and South Kanara having a contiguous area exceeding 100 acres. Therefore, the primary point to be ascertained is whether the scheduled property is part of a private forest having a contiguous area exceeding 100 acres. The specific contention of the respondent/officials is that the scheduled property is part of Dhoni Malavaram, which was notified vide Ext.B1 as included in V.F.C. Item no.32/3, Palakkad Bit. It is the further claim in the written statement that Dhoni malavaram and other malavaram are lying contiguously and that, the northen boundary of Palakkad Bit is Chennathu Nair Reserve Forest, the M.F.A(F).31/2016 10 extent of which is more than 100 acres. It is therefore clear from the pleading that the Dhoni malavaram, which is lying contiguous to other malavaram - including the Chennathu Nair Reserve Forest constituting the northern boundary of Palakkad Bit - has an extent of more than 100 acres. However, a perusal of Exts.B1 and B2 documents produced by the respondent would not establish the above claim in the written statement. Primarily, we notice that scheduled property, as pleaded in the O.A., is 28 cents comprised in Re. Sy. no.305/2 of Puthupariyaram-I village. Ext.B1 notification does not speak of any such survey number; instead, the survey number stated in Ext.B1 is 1/3.1A. Of course, the area stated in Ext.B1 is 597.274 hectares, which is much more than statutory requirement of 100 acres as per the M.P.P.F. Act. The name of the village stated in Ext.A1 is Akathethara village, which, it is quite understandable that, at present the village would have been bifurcated as Puthupariyaram I, II M.F.A(F).31/2016 11 etc, though there is no proof offered in this regard by the respondent. Now, coming to Ext.B2 periphery sketch, again, we notice that there is no specific reference to the subject survey number. RW1, the Forest Range Officer would admit in cross examination that the scheduled property is not part of the malavaram by name 'Dhoni' and that, he cannot say in which item the scheduled property stood included in Ext.B2. He has no knowledge as to how the blue coloured plot is marked in Ext.B2. However, he would deny the suggestion that Ext.B2 does not pertain to the scheduled property. **11.** The cumulative effect of the above referred facts would only persuade us to hold that scheduled property has not been established to be a private forest, to which the M.P.P.F Act was applicable as on the appointed day. It is true that, going by a Full Bench decision of this Court in **State of Kerala** v. **Chandralekha** [1995(2 KLT 152(F.B.)], burden is on the applicant to establish that the scheduled M.F.A(F).31/2016 12 property is not a private forest. However, we are of the opinion that the applicant is well-nigh entitled to rely upon the documents produced by the respondents as well in his endeavour to establish that the scheduled property is not a private forest. The vesting is automatic and statutory, but the notification and the periphery sketch produced by the respondent/forest officials – in support of a specific claim that the scheduled property forms part of a huge malavaram having an extent of more than 100 acres – should be correlated and shown to be as inclusive of the scheduled property, failing which, Exts.B1 and B2 cannot be taken stock of for any purpose. Consequently, the claim of respondent officials that the scheduled property is a private forest which vested with the Government as on the date of vesting would crumble to ground, especially when RW1 was not able to say surely that the property scheduled falls within Dhoni Malavaram. M.F.A(F).31/2016 13 **12.** We also notice that the scheduled property does not fall within the definition of a 'private forest' under S.2(f)(1)(ii) as well. To enable inclusion under S.2(f)(1)(ii), the scheduled property should be established to be a forest land, in which respect also, there is absolute dearth of evidence. A perusal of Exts.C1 and C2 report would clearly indicate that the scheduled property having an extent of 28 cents is not having the characteristic features of a forest; nor is there any proof of trees or growth of forest specie. **13.** In confirming the order of the Tribunal allowing the O.A., though on different counts, we also take into account the fact that the extent of the scheduled property is only 28 cents and that, there exists as many as three dwelling house therein, as reported by the Advocate Commissioner in Ext.C1 report. M.F.A(F).31/2016 14 In the result, this appeal fails and the same is therefore dismissed. **Sd/-** **K.VINOD CHANDRAN JUDGE Sd/C.JAYACHANDRAN JUDGE** Sbna/