Sulochana and others v. State of Kerala and The Custodian of Vested Forests

M.F.A.(FOREST)169/2005 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944 MFA (FOREST) NO. 169 OF 2005** **AGAINST THE ORDER IN OA 3/2002 OF FOREST TRIBUNAL, KOZHIKODE APPELLANTS:** 1 SULOCHANA, W/O.V.NARAYANAN (LATE), VELUTHEDATH HOUSE, P.O. KATTIPPARA,, (VIA) THAMARASSERY, KOZHIKODE. 2 SINDHU V. DO. V. NARAYANAN -DO- -DO-. 3 SABEESH V. SO. V.NARAYANAN -DO- -DO-. 4 SAJU V. SO. V. NARAYANAN -DO- -DO-. BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY,THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE,, PALAKKAD DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST, GOVERNMENT PLEADER THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(FOREST)169/2005 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A.[FOREST] No.169 of 2005 -------------------------------------Dated this the 8[th] day of November, 2022** ## **J U D G M E N T** ## **Jayachandran, J** **1.** A concluded issue as regards burden of proof under the Kerala Private Forests (Vesting and Assignment) Act, 1971 ['Vesting Act', for short] has been raked up in this appeal. In the order impugned, the Tribunal, relying upon a Bench decision of this Court in **State** **of Kerala v. Kunhiraman** [1990(1) KLT 382], casts the burden on the applicants to prove that the petition schedule property is not a private forest as on 10.05.1971, which proposition requires a re-look is the submission of the learned counsel for the appellant. In this regard, learned counsel relied upon the following two unreported Bench decisions of this Court: 3 ## M.F.A.(FOREST)169/2005 (i) Judgment dated 17.08.1990 in **Augusty and** **others v. State of Kerala** [M.F.A.360/1985]. (ii)Judgment dated 02.01.2008 in **State of Kerala** **v. P.Krishna Pillai and others** [M.F.A.166/2002]. **2.** Heard Sri.V.V.Surendran, learned counsel for the appellants and Sri.Nagaraj Narayanan, learned Special Government Pleader [Forests]. Learned Special Government Pleader relied upon one unreported Bench decision of this Court, a Full Bench decision and also a judgment of the Honourable Supreme Court to oppose the proposition regarding burden of proof canvassed by the learned counsel for the appellant, to which, detailed reference will be made herein below. **3.** We will first address the legal issue raised. Of the decisions placed before us, the first in point of time is an unreported Bench decision of this Court dated 10.01.1986 in **State of Kerala v. Balagopalan** [M.F.A. 12/1980 dated 10.01.1986], relied on by the learned Special Government Pleader. In terms of Section 8(3) of the Act, the Division Bench held that M.F.A.(FOREST)169/2005 4 the one who put forward a claim that the property in question is not a private forest, or that it stands excluded by virtue of the provisions of the Act, should establish such claim, thus casting the burden squarely on the claimant [see paragraph no.11 of the judgment]. **4.** The Bench decision in **Balagopalan** supra was quoted with approval by another Division Bench of this Court in **Kunhiraman** supra. **Kunhiraman** again held that the burden is on the claimant to prove that the land in question was not a private forest as on the appointed date. **5.** The next decision is another unreported Bench decision in **Augusty** supra, relied upon by the learned counsel for the appellants. The Division Bench found in paragraph no.9 of the judgment that, whether the disputed property is a private forest under the Madras Preservation of Private Forests Act, 1949 ['M.P.P.F. Act', for short] is a fact, which could be proved by the forest officials with reference to the records M.F.A.(FOREST)169/2005 5 kept by them, wherefore, the burden is upon such officials to produce reliable documentary evidence to establish such fact. Here, it is noteworthy that, **Augusty** and **Kunhiraman** supra were neither noticed nor referred to in **Balagopalan** supra. **6.** The 4[th] decision is by a Full Bench of this Court in **State of Kerala v. Chandralekha** [1995(2) KLT 152 (F.B)], the relevant findings of which are extracted herein. “Section 8 makes the position clear that it is for the person who claims that the land is not a private forest or that the private forest has not vested in the Government to apply before the Tribunal for decision of the dispute. From a reading of the Section, it is apparent that the person who prefers a claim before the Tribunal that the property is not private forest or that it has not vested under the Vesting Act has the burden to establish his case. As he alone can produce necessary evidence in support of his case, it can never be held that the onus of proof is on the State to prove that the land in question is a private forest. As the owner of the land has to prefer his claim 6 ## M.F.A.(FOREST)169/2005 before the Tribunal that the land is not private forest or that the private forest has not vested in the Government, he has necessarily to establish that claim as he alone is in possession of data and materials to prove his case. The burden is squarely upon him to substantiate his claim. In _State of Kerala v. Kunhiraman (1990(1) KLT 382)_ a Division Bench of this Court held that the burden is on the claimants to prove that the land in question was not private forest on the appointed day.” **7.** The last decision brings in the seal of approval by the Hon'ble Supreme Court on the issue. In **State of** ## **Kerala and Another v. Popular Estates and Another** [2004(12) SCC 434], the Supreme Court held, in paragraphs 12 and 15, that it was for the claimant to prove that the properties in respect of which relief is sought for were not private forest as defined under the Act. **8.** In the light of the authoritative pronouncements in **Popular Estates** and **Chandralekha,** there exists no room for any doubt that the burden to prove that the disputed property is not a private forest as defined ## M.F.A.(FOREST)169/2005 7 under the Act, or for that matter, to prove the exclusions to Section 2(f) of the Act or the exemptions in Section 3(2) or 3(3) of the Act, squarely lies on the applicant. Point concluded accordingly. **9.** Coming to facts, the specific case propounded by the applicant was that the scheduled property was part of 3.50 acres of land, which belonged to Mallissery Kovilakam. One Antony obtained verumpattom rights over the said property on 16.04.1958 as per an oral lease. Antony sold his rights over 2.50 acres to one George in the year 1978, which was purchased by the first applicant from the said George in the year 1983. The scheduled property having an extent of 2 and 35½ acres is part and parcel of the said 2.50 acres. Antony planted the entire 3.5 acres with cashew, pepper, mango and jack, besides cultivating seasonal crops. According to the applicant, the scheduled property is not a private forest and M.P.P.F. Act did not apply to the same. There are no forest specie growth ## M.F.A.(FOREST)169/2005 8 in the property. There was no notification made or published. On such premise, the applicants sought a declaration that the scheduled property is not private forest and alternatively, for exemption under Section 3(2) of the Vesting Act. **10.** Counter affidavit was filed by the Divisional Forest Officer contending that the schedule property has been notified as a private forest as per V.F.C. item no.116 under notification dated 08.07.1977. The same was part of an extent of 184 hectares of land, which vested with the Government. Applicants have no right or title to the scheduled property, which was bounded on all sides by forest, except at the western side. As a matter of fact, the first applicant encroached into the forest area, in respect of which, a case has been booked against him. **11.** The evidence in the case consists of Exts.A1 to A16, supported by the oral evidence of PW1, on the part of the applicants. No evidence, oral or documentary, whatsoever was adduced by the M.F.A.(FOREST)169/2005 9 respondent/department. Commission reports and plans were marked as Exts.C1 to C4. **12.** On an analysis of the facts, evidence and probabilities of the case, the Tribunal found that the scheduled property was a private forest and that, applicants could not establish their claim for exclusion under sub-clauses (A) to (D) to Section 2(f) (1)(i) of the Vesting Act. The Tribunal found that the applicants purchased the property by virtue of Ext.A1 document only in the year 1983 and that, they had no right over the disputed property as on 10.05.1971. Relying upon the judgment of this Court in **Koya v.** **State of Kerala** [1987(1) KLT 830] the claim for exemption under Section 3(2) of the Act was rejected. The course followed in respect of the claim under Section 3(2) of the Act relying upon **Koya** supra is not proper, according to us. The judgment in **Parameswara** **Sasthrikal K.S. v. State of Kerala and Others** [2008(2)KHC 434] unequivocally held that an assignee of the land can also claim the benefit of sub-sections M.F.A.(FOREST)169/2005 10 (2) or(3) to S.3 of the Act, if the predecessor-ininterest was entitled to get exemption as on the appointed day. Therefore, the dismissal of the claim under Section 3(2) of the Act holding that the applicants had no right in the property as on 10.05.1971 cannot be sustained. **13.** Coming to the question whether the scheduled property is a private forest, the Tribunal found that the applicants failed to discharge their burden to establish the same. The applicants could not establish that the schedule property was one to which the provisions of M.P.P.F Act would not have applied immediately before the appointed day. Out of the exclusions under sub-clauses (A) to (D) of Section 2(f)(1)(i) of the Act, the Tribunal identified that the applicants' claim was under clause (C), in as much as, the applicants claim that Antony, being one among the predecessors-in-interest, had planted the entire 3.5 acres of land - of which the schedule property was a part - with cashew, pepper, mango and jack. M.F.A.(FOREST)169/2005 11 Clause (C) speaks of the requirements of the property being principally cultivated with cashew or other fruit bearing trees or agricultural crops. The Tribunal found that the oral lease in favour of Antony in the year 1958 claimed by the applicants was not proved at all. There was no document or rent receipts, which would vouch such factual premise pleaded in the original application. **14.** It was found that PW1 is oblivious to the state of affairs with respect to the scheduled property prior to 1983. The applicant took no pains to examine Antony or any other predecessor, or for that matter, anybody who had knowledge about the state of affairs of the scheduled property prevailing as on 10.05.1971. Exts.A1 to A16 documents pertain to the period after 10.05.1971, thus serving no purpose to prove the title/cultivation of the scheduled property as on the appointed date. The Tribunal went to the extent of finding that PW1 would not have been born as on 10.05.1971. Since the original application was of the M.F.A.(FOREST)169/2005 12 year 2002, the Commissioner's report also would not lend any support as regards the property being held by the predecessor of the first applicant, as an owner under his personal cultivation, as on the appointed day. The Tribunal noticed that going by the narration in Ext.A1 document of the year 1983 - the title deed of the first applicant - the property was lying as a barren land without any improvements. On such premise, the Tribunal repelled the claim under sub-clause (C) to Section 2(f)(1)(i) of the Act. Analyzing the facts pleaded and evidence adduced, we are unable to take any exception to the above findings of the Tribunal. **15.** Although we found that the dismissal of the claim under Section 3(2) relying upon **Koya** supra was not proper, the same set of reasons for rejecting the claim under sub-clause (C) to Section 2(f)(1)(i) would hold good to reject the claim under Section 3(2) as well, where the requirements is again that of the property being held by the 'owner under personal cultivation'. For the claim under Section 3(2) as 13 ## M.F.A.(FOREST)169/2005 well, there is complete dearth of evidence. Therefore, we confirm the rejection of the claim under Section 3(2) of the Act, though for different reasons. **16.** In the result, this appeal fails and the same is dismissed. The parties will bear their respective costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN** **JUDGE** ``` Sbna/ ```