Sunil Kumar v. Government of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 MFA (FOREST) NO. 21 OF 2011** **OA 32/1998 OF FOREST TRIBUNAL, KOZHIKODE DTD.12.5.2010** ## **APPELLANT:** SUNIL KUMAR, S/O.VELAPPAN, RESIDING AT KADAMPADIPURAKKAL, MUTTIKULANGARA, PUDUPPARIYARAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADV.SRI.M.P.MADHAVANKUTTY **RESPONDENTS:** 1 GOVERNMENT OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM-695 001. 2 CUSTODIAN OF VESTED FOREST, OLAVAKKODE, PALAKKAD- 678002. 3 GOPINATHAN, S/O.VELAPPAN. 4 RAVEENDRANATHAN, S/O.VELAPPAN. 5 SANAL KUMAR, S/O.VELAPPAN. RESPONDENTS 3 TO 5 ARE RESIDING AT KADAMPADIPURAKKAL, MUTTIKULANGARA.P.O., PUDUPPARIYARAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT – 678594. R1 & R2- BY SRI.NAGARAJ NARAYANAN, SPL. G.P. (FORESTS) SRI.MATHEW DEVASSI **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 02.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A.(Forest)No.21 of 2011 ..2.. **“C.R”** ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------- M.F.A.(Forest) No.21 of 2011 ------------------------------------------------------------Dated this the 02[nd] day of February, 2023 ## **JUDGMENT** ## C.Jayachandran, J. The order impugned in this appeal is the one dated 12.5.2010 of the Forest Tribunal, Kozhikode in O.A.No.32/1998, as per which, the applicants' claim for a declaration that the scheduled property is not a private forest, and alternatively for exemption under Section 3(2) and 3(3) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 ('the Vesting Act' for short) was rejected. The aggrieved applicants are the appellants. ## **2.** Facts in brief: As per Ext.A1 document of the year 1951, the family property of the applicants' father was partitioned by and between himself and his brothers. The properties allotted to the share of the father were again partitioned orally by and M.F.A.(Forest)No.21 of 2011 **==> picture [22 x 9] intentionally omitted <==** between the applicants and certain properties were kept in common, which was also subsequently partitioned. Though it is pleaded that a partition agreement was executed between the 1[st] applicant's elder brother and his father, the same is not produced. After partition, the scheduled property was claimed to be in the physical possession of the applicants, where they cultivated casual crops like tapioca, ginger, etc. prior to 10.5.1971. The area will not come under the purview of the Madras Preservation of Private Forests Act, 1949 ('the M.P.P.F. Act' for short) and the scheduled property is not a vested forest. There are no forest trees or forest species therein. Alleging that the forest officials interfered with the possession of the applicants on 15.3.1993 on the claim that the scheduled property forms part of a private forest, O.A. No.49/1993 was filed before the Tribunal, which was, however, dismissed on the question of jurisdiction. When the officials extended threat again on 6.2.1998, the instant O.A. was filed, with the reliefs afore referred. M.F.A.(Forest)No.21 of 2011 **==> picture [22 x 9] intentionally omitted <==** **3** . The Divisional Forest Officer filed counter affidavit challenging the applicants' title and possession over the scheduled property and contended that the scheduled property forms part of 'Nochupalli Malavaram' admeasuring 213.52 hectares, which lies contiguously, thus governed by the erstwhile M.P.P.F. Act. Notification was published in the year 1985 as V.F.C item no.139/3 of Arimanikkadu Bit 3. The notification was duly published as well. It was contended that the present O.A. was barred by res judicata, in view of dismissal of O.A. No.49/1993, as time barred. It was further contended that the disputed property was never cultivated at any point of time. The boundaries shown in the petition was also disputed. The disputed property was claimed to have been supported with forest species trees like irul, teak, manhapavatta, pullamaruth, etc. having an age of more than 40 years, besides having heavy undergrowth. On such premise, the respondents sought for dismissal of the O.A. **4.** As per order dated 30.11.1999, the Forest Tribunal dismissed the O.A., which was challenged before this Court in M.F.A.(Forest)No.21 of 2011 **==> picture [22 x 9] intentionally omitted <==** M.F.A.No.481/2000. This Court allowed the M.F.A, recording that the blue shaded portion of Ext.C2 plan is not a private forest and remanded the matter to the Tribunal, in so far as the red shaded portion in Ext.C2 is concerned, with a direction to consider afresh whether the appellants/applicants are entitled to the exemption under Section 3(2) or 3(3) of the Vesting Act. **5.** The evidence adduced, inclusive of those adduced after remand, consists of Exts.A1 to A13, supported by the oral evidence of the 1[st] applicant/original applicant as PW1 and another witness as PW2. On behalf of the respondents, two Forest Range Officers were examined as RW1 and RW2, through whom Exts.B1 and B2 were marked. The Commissioner's reports and plans were marked as Exts.C1 to C4(a). **6.** The Tribunal found that the applicants failed to identify the scheduled property in accord with Ext.A1 title deed and to establish the cultivation claimed in the scheduled property, as M.F.A.(Forest)No.21 of 2011 **==> picture [22 x 9] intentionally omitted <==** on the date of vesting. It was found that PW1, who was aged only 32 years at the time of examination, had no direct knowledge regarding the state of affairs in the scheduled property as on the appointed day and that PW2 only vouched the oral partition of the year 1973. The age of the rubber trees reported by the Commissioner in Ext.C1 does not relate back to the appointed day, so as to claim exemption on the basis of personal cultivation, or for that matter, the intention to cultivate. On such premise, the Tribunal dismissed the O.A. **7.** Heard Sri. M.P. Madhavankutty, learned counsel for the appellants and Sri. Nagaraj Narayanan, learned Special Government Pleader (Forests). Perused the records. **8.** Learned Counsel for the appellants first contended that the documents produced, itself, would show that the scheduled property would not have been governed by the erstwhile M.P.P.F. Act. Learned Counsel specifically invited our attention to Ext.B1 notification to point out that the extent indicated as against item nos.4 and 5 therein, which pertains to the subject M.F.A.(Forest)No.21 of 2011 **==> picture [22 x 9] intentionally omitted <==** survey number of 53/3B of Puduppariyaram Village is only 1.3355 and 1.3152 hectares respectively, which is much less than the required extent of 100 acres, for the property to be governed by the M.P.P.F. Act in terms of Section 1(2)(i) of the said Act. Further, the scheduled property would not answer the definition of a private forest in terms of Section 2(f)(1)(ii) of the Vesting Act. Thus, according to the learned counsel, the scheduled property does not answer the definition of a private forest in terms of Section 2(f) of the Vesting Act and hence, liable to be declared as such. Learned Counsel also contended that the finding of the Tribunal insofar as the title of the property cannot be sustained, since Ext.A1 partition deed, supported by the oral partition in the year 1973 spoken of credibly by PW2, would establish the same in favour of the applicants. On cultivation, learned counsel submitted that the direction of this Court in M.F.A. No.481/2000, especially in the context of the decision of this Court in **Joseph v. State of Kerala** [2007 (3) KLT 144 (SC)] - specifically referred to by this Court in the remand order - has not been complied with. M.F.A.(Forest)No.21 of 2011 **==> picture [22 x 9] intentionally omitted <==** According to the learned counsel, the applicants' title has been found by this Court in M.F.A. No.481/2000 and the scope of remand was only to examine the entitlement for exemption under Section 3(2) and 3(3) of the Act. In short, the order impugned cannot be sustained and the O.A. is liable to be allowed, is the submission of the learned counsel. **9.** Per contra, learned Special Government Pleader argued in support of the impugned order, reiterating that the applicants could neither establish their title to the property, nor the exemptions claimed. The requirement of holding the property as an owner is explicit in Section 3(2) and 3(3) of the Act. It was further contended that failure to identify the scheduled property is fatal to the claim of the applicants, especially in view of the judgment of this Court in **Hamsa Haji v. State of Kerala** [2006(7) SCC 416]. Finally, it was argued that Ext.A13 proceedings of the Taluk Board itself would indicate that the applicants had lands in excess of the ceiling limit, which also cuts at the root of the claim for exemption under Section 3(2) or 3(3) of the Vesting Act. M.F.A.(Forest)No.21 of 2011 **==> picture [22 x 9] intentionally omitted <==** **10.** Having heard the learned counsel appearing on both sides, we will first address the issue of the applicability of the M.P.P.F. Act, to ascertain whether the scheduled properties are private forest or not. It is true that the extent of item nos.4 and 5 in Ext.B1 notification is only 1.3355 hectares and 1.3152 hectares respectively. However, we notice a specific contention in the written statement that the scheduled property, which has been notified as V.F.C item no.139/3, is part of Nochupally Malavaram, admeasuring 213.52 hectares and that the area is governed by the repealed M.P.P.F. Act. **11.** In this regard, we should notice the relevant provisions of the M.P.P.F. Act, as also, the Vesting Act. As per Section 1(2) (i), the M.P.P.F. Act applied to private forests in the districts of Malabar and South Kanara, having a contiguous area exceeding 100 acres. Explanation to Section 1(2)(i) is extracted hereinbelow: “[ **Explanation.-** Nothing in this clause shall be deemed to apply to any land which was brought under fugitive or other cultivation prior to the 14[th] December, 1949, by an owner or any person claiming under him;]” M.F.A.(Forest)No.21 of 2011 ..10.. After clauses (ii) and (iii) to Section 1(2) of the M.P.P.F. Act, another Explanation is seen appended to Section 1(2), which read thus: “[ **Explanation.-** A private forest exceeding 100 acres in extent shall not cease to be such by reason only of the fact that, in a portion thereof, trees or shrubs are felled with or without the permission of the District Collector, or lands are cultivated, or rocks, roads, tanks, rivers or the like exist; nor shall the area of such forest cease to be contiguous by reason only of the existence of all or any of the aforesaid circumstances]”. Both the Explanations extracted above were introduced by the Madras Act XVIII of 1954. A five judges bench of this Court in **State of Kerala** v **Moosa Haji** [1984 KLT 494] had occasion to consider the impact of the above explanations, while considering a contention - that a forest land, originally governed by the M.P.P.F. Act, which was subsequently clear felled with the permission of the District Collector, thus denuding the characteristics of a forest, will not come under the definition of a private forest under S.2(f)1(i) of the Vesting Act, for, the requirement is that the M.P.P.F Act should apply to the disputed land immediately before the appointed day under M.F.A.(Forest)No.21 of 2011 **==> picture [28 x 9] intentionally omitted <==** ## the Vesting Act, i.e. 10.5.1971. Rejecting the contention, it was held in paragraph no. 7 as follows: “ 7. We are unable to accept this contention. S.2(f)(1) of the Vesting Act defines 'private forest' as any land, whatever be its nature or character. If the M. P. P. F. Act was applicable to the land in 1949, and if it continued to apply to it up to 105-1971, that land will be a private forest for the purposes of the Vesting Act. The question is not whether there was a forest in existence in 1971; it is whether there was any land in 1971 to which the M. P. P. F. Act was applicable in 1949 and continued to be under its coverage till 1971. It is common ground that the lands involved in these appeals were all private forests as defined in the M. P. P. F. Act, in 1949. Clear felling and replanting were carried out with the permission of the District Collector. Therefore, the enquiry should be as to whether as a result of such operations the M. P. P. F. Act had ceased to apply to those areas. That will depend on the provisions of that Act, and not on the concept or even the definition of 'forest'. And our attention has not been drawn to any provision of the said Act which postulates that denudation, with or without permission, was capable of putting an end to its applicability to the denuded area. On the other hand, the First Explanation to S. 1 (2)(i) of the Act indicates that lands brought under fugitive or other cultivation after the 14th of December, 1949 (i.e. the date on which the Act was published in the Gazette) were to continue as private forest for the purposes of the Act, despite such cultivation. The Second Explanation further indicates that denudation reducing the forest area below 100 acres, or destroying contiguity, was not capable of taking the lands out of the definition in S. 1 (2)(i). Rules framed under the Act M.F.A.(Forest)No.21 of 2011 ..12.. also show that except in the case of casuarina, clear felling of trees could only have been at a height above six inches from the ground, so that the stumps were retained to allow natural regeneration. Even in the case of casuarina or other trees where natural regeneration could not be thought of, the permit holder had to replant the area during the currency of the permit. The felled areas were to be closed even to grazing for a period of five years. In our opinion, the object of the Act was to preserve the private forests as forests, and one of the legislative devices adopted even in respect of areas allowed to be clear felled was to make provision either for natural regeneration or for obligatory replanting, so that the Act continued to apply and protect or preserve such areas. It was never the intention of the legislature to permit permanent deforestation either through grant of permission by the Collector or through unauthorised felling, so that as and when anything of that kind was done to the area, it would get itself free from the constraints of the Act. Clearly, once the Act was applicable to an area in 1949, nothing done by the owners or others was capable of putting an end to such applicability to that area.” ## **(Underlined by us for emphasis)** **12** . We also notice that alienation of private forest by way of sale, mortgage, lease, etc. is permissible, but with the previous sanction of the District Collector as provided in S.3 (1) of the M.P.P.F Act. A similar provision under S.3(2) permits cutting of trees or doing any act likely to denude the forest, M.F.A.(Forest)No.21 of 2011 **==> picture [28 x 9] intentionally omitted <==** again with the previous permission of the District Collector. **13.** It could thus be seen that the first Explanation to S.1(2) (i) excludes lands brought under fugitive or other cultivation - - prior to 14 12 1949 from the applicability of the M.P.P.F Act, whereas the second Explanation clarifies that a land to which M.P.P.F Act applies - for reason of being a private forest having a contiguous area exceeding 100 acres – will not cease to be one, because of a subsequent cultivation; felling of trees or shrubs; or due to the existence of rocks, roads, tanks, etc. We bow before the proposition laid down by the five judges bench that once the Act was applicable to an area in 1949, nothing done by the owners or others was capable of putting an end to the applicability of the Act to that area. **14.** Coming to the Vesting Act, Section 2(f) defines a private forest and stipulates in clause (i) to Section 2(f)(1) that any land to which the M.P.P.F. Act apply immediately before the appointed day, save those lands which are excluded by clauses (A) to (D), will be a private forest. Apart from the exclusions M.F.A.(Forest)No.21 of 2011 **==> picture [28 x 9] intentionally omitted <==** vide clauses (A) to (D) referred above, sub-sections 2 and 3 to Section 3 provides for exemption of lands under personal cultivation and lands intended for cultivation from the purview of a private forest, which is liable to be vested in the Government by virtue of Section 3. A notification in the nature of Ext.B1 specifying the details of a private forest is stipulated in Rule 2A(2) of the Kerala Private Forests (Vesting and Assignment) Rules, 1974. It is therefore axiomatic that what is notified is only a private forest, obliterating those lands which are liable to be 'excluded' and 'exempted' as per the provisions of the Vesting Act referred above, wherefore, the extent indicated in a notification like Ext.B1 need not define the extent of the Malavaram, of which the scheduled property is claimed to be a part, having a contiguous area exceeding 100 acres. Hence to find the application of M.P.P.F Act, what is to be ascertained is the nature of the land as on 14.12.1949. Even if any part of the total extent is brought under cultivation after 14.12.1949 with the sanction of the District Collector, that does not relieve the total extent from the applicability of M.F.A.(Forest)No.21 of 2011 **==> picture [28 x 9] intentionally omitted <==** the M.P.P.F Act. However under the Vesting Act, it stands excluded from the definition of private forest. **15.** As per the dictum of a Full Bench of this Court in **State of Kerala v. Chandralekha** [1995 (2) KLT 152 (F.B.)], as upheld by the Hon'ble Supreme Court in **State of Kerala and another v. Popular Estates and another** [2004(12) SCC 434], the burden of proof invariably rests on the applicant to establish that the scheduled property is not a private forest, which burden is not seen discharged by the applicants in this case. We therefore reject the appellants' contention regarding the applicability of the M.P.P.F. Act based on the extent indicated in Ext.B1 notification. **16.** The next issue is with respect to the title and identity of the scheduled property. We straight away observe that there is no document evidencing the partition of the year 1973, except a claim of oral partition. Even in respect of the same, the solitary evidence is the oral testimony of PW2, which we are afraid is insufficient, especially taking note of the requirement M.F.A.(Forest)No.21 of 2011 **==> picture [28 x 9] intentionally omitted <==** of the law for registration of documents, the value of which is more than Rs.100/-. Based on Ext.A1 document of the year 1951, the Tribunal found that the property allotted to the applicants' father vide item 8 to schedule B is 6.57 acres in Re.Sy.no.53/3. The Tribunal found that none of the documents produced vide Exts.A2 to A13 refers to Re.Sy.no.53/3, so as to connect the documents with the scheduled property. It was also found that the Commissioner, assisted by the Taluk Surveyor, could not locate and identify the scheduled property in Ext.C2 plan on the basis of Ext.A1 partition deed, rightly so, according to us. As regards the significance of identification, the following observation in **Hamsa Haji v. State of Kerala** [2006(7) SCC 416] is relevant and extracted herebelow: “30. We thus confirm the decision of the High Court and dismiss the appeal with costs. We hope that this judgment will act as an eye-opener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims (obviously now they are belated claims) for exemption or exclusion under Section 8 of the Act. It behoves the Forest Tribunals and the appellate court to carefully scrutinise the case of title and possession put forward by claimants as also the identities of the lands M.F.A.(Forest)No.21 of 2011 **==> picture [28 x 9] intentionally omitted <==** sought to be claimed, while entertaining applications under Section 8 of the Act.” ## **[underlined by us for emphasis].** **17.** We therefore uphold the finding of the Tribunal that the applicants could not establish the title to the scheduled property, as also, its identity. We also discount the submission that this Court in MFA No. 481/2000 had already found the title in favour of the appellants. We could not deduce any such finding upon perusing the judgment. **18.** Finally, we notice from Ext.A13 proceedings of the Taluk Board that the applicants' father had to surrender an extent of 3 acres as excess land under Section 85(7) of the Kerala Land Reforms Act. It is important in this regard to note that excess lands were found and required to be surrendered vide Ext.A13, without reckoning the landed property in Re.Sy.no.53/3, under which survey number the scheduled property is included. The possibility of the applicants possessing lands in excess of the ceiling limit is very much probabilised by Ext.A13, where again we find that the applicants have not discharged their burden to M.F.A.(Forest)No.21 of 2011 **==> picture [28 x 9] intentionally omitted <==** establish the contrary. We find no illegality or infirmity in the impugned order and we confirm the same, with the result, the appeal stands dismissed, leaving the parties to bear their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** skj