Thanka v. State of Kerala and Custodian of Vested Forests

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 27TH DAY OF JANUARY 2016 / 7TH MAGHA, 1937 ## **MFA.No. 42 of 2006** AGAINST THE ORDER IN O.A.NO.14/2004 of FOREST TRIBUNAL, KOZHIKODE DATED 30-07-2005 ## **APPELLANT** /APPLICANT: THANKA, AGED 65 YERS W/O. LATE BHASKARAN, PERAPETTI HOUSE, ATHIPOTTA TARUR, ALATHUR TALUK. BY ADV.SRI.VINOD KUMAR.C ## **RESPONDENTS/** RESPONDENTS: 1. STATE OF KERALA, REP.BY CHIEF SECRETARY, GOVT. OF KERALA,, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, OLAVAKKODE, PALAKKAD. ADV.SRI.M.P.MADHAVAN KUTTY, SPL. G.P.FOR FOREST THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ. --------------------------------------------------M.F.A. No.42 of 2006** **---------------------------------------------------** Dated this the 27[th] day of January, 2016 ## **JUDGMENT** ## C.T.Ravikumar, J. This appeal is directed against the order dated 30.07.2005 passed by the Forest Tribunal, Kozhikode in O.A.No.14/2004 which is an application filed by the appellant herein under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act 1971 (hereinafter referred for brevity as 'the Vesting Act'). 2. The appellant herein sought for a declaration that the petition schedule property was not a private forest. A further relief viz., to declare that the appellant is entitled to get the benefits under Sections 3(2) and 3(3) of the Vesting Act, was also sought for. In the petition filed under Section 8 of the Vesting Act, the appellant herein pleaded thus: The petition schedule property was item No.8 in Ext.A1 partition deed No.253/1956 of S.R.O. Alathur. It was allotted to the share of Sri.Bhaskaran, her husband and since then she was in join M.F.A.No.42 of 2006 2 possession and enjoyment of the said property. It was also pleaded that it was used for rearing Pullanthi and other bushes for green manure, for cultivation of vegetables and fugitive crops including tapioca. It was also stated therein that for the protection of crops, fences were put up with a gate on the southern side. It was also stated therein that the property was under cultivation prior to 10.05.1971 and thereafter it was held with an intention for future cultivation. Further, it was specifically stated therein that due to her adverse health the property could not be fenced or put to cultivation for the last 4 years. The appellant further took up the contention that on 05.01.2004 she was obstructed by the forest officials from doing agricultural operations in the property and that there was no notification declaring the same as a private forest and that the property was not under the purview of Madras Preservation of Private Forests Act (for short 'the MPPF Act'). True that, as an abundant caution the appellant had also sought for a declaration that she is entitled to the protection in terms of the provisions under Sections 3(2) and 3(3) of the Vesting Act and further that the family of the appellant/applicant did not possess land beyond the ceiling limit. M.F.A.No.42 of 2006 3 3. Resisting the claim for declaration as also the exemption, the respondents filed a counter affidavit contending, _inter alia_ , that an extent of 126 hectares of land under various survey numbers lying in different villages including Tarur-II of Alathur Taluk was being governed by the erstwhile MPPF Act. It was further stated by them therein, to the following effect:- The aforesaid extent of land vested in Government by virtue of Sec.3(1) of the Vesting Act and immediately after duvh vesting, the land was surveyed and demarcated. Permanent cairns were put up and the area was also notified under notification No.1383/77 dated 10.10.1979 and the same was duly published. The petition schedule property lies within the surveyed and demarcated boundary of the notified vested forest and it was locally known as 'Valliyamkunnu malavaram'. The entire Malavaram inclusive of the disputed property is in the possession, management and control of the Forest Department. The land was not brought under cultivation at any point of time prior to or after 10.05.1971. In short, it is contended therein that the appellant herein had filed application under Section 8 of the Vesting Act with the malafide intention to grab the notified vested forest. M.F.A.No.42 of 2006 4 4. Based on the rival pleadings three points were formulated for consideration by the Tribunal as hereunder:- _(i) Is the petition barred by limitation ?_ - _(ii) Had the petitioner proved that the disputed property was not a private forest as on 10.05.1971 ?_ - _(iii) Is the petitioner entitled to claim exemption u/s 3(2) or (3) of the Vesting Act ?_ 5. The first point with respect to the question of limitation was admittedly decided in favour of the appellant herein. The second point formulated for consideration viz., whether the petitioner had proved that the disputed property was not a private forest as on 10.05.1971 was found against the appellant. So also, the third point was also found against the appellant. It is in the said circumstances that the captioned appeal has been preferred. 6. We have heard the learned counsel for the appellant and also the learned Special Government Pleader (Forest). 7. The State has not preferred any appeal though the first point formulated for consideration was decided against the respondents and in the said circumstances we need not go into that question in this appeal. With respect to the second M.F.A.No.42 of 2006 5 point decided by the Tribunal the question is whether the Tribunal had gone wrong in holding that the appellant herein had failed to prove that the disputed property was not a private forest as on 10.05.1971. In other words, the question is whether the evidence on record would go to show that the appellant herein had actually proved that the disputed property was not a private forest as on 10.05.1971 ? With respect to the burden of proof on that issue there can be no room for any dispute as the said position was settled by decisions in _**State of Kerala v. Kunhiraman**_ reported in _**1990(1) KLT 382**_ and Full Bench of this Court in _**State of Kerala v. Chandralekha**_ reported in _**1995 (2) KLT 152**_ . Going by the said decisions, the burden is on the person who prefers the claim before the Tribunal to prove that the property was not a private forest or that it was not vested under the Act, with the Government. When going by the aforesaid decisions the burden to establish the same is on the applicant, there cannot be any doubt with respect to the position that the said burden cannot be said to be discharged by relying on the lapses or laches, if any, on the part of the respondents. In other words, the appellant was to discharge the said burden by herself. 8. While considering the issues involved we ween M.F.A.No.42 of 2006 6 that the definition of the term “Private forest” given under Section 2(f)(1)(i) of the Vesting Act requires reference. Section 2(f)(1)(i) reads thus :- ## _**“Private Forest** means :_ - _(1) in relation to the Malabar district referred to in sub-section (2) of Section 5 of the State Reorganisation Act, 1956 (Central Act 37 of 1956)-_ - _(i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding-_ - _(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964);_ - _(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market._ _**Explanation** .- Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops;_ - _(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and_ - _(D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;”_ 9. Thus, going by the aforesaid definition the term M.F.A.No.42 of 2006 7 `private forest' means any land to which MPPF Act applied immediately before the appointed date, which is 10.05.1971 and the exclusions have been given under Clauses A to D thereunder. Admittedly, the petition schedule property lies in Tarur-II Village of Alathur Taluk and further that the entire Alathur Taluk was within the erstwhile Malabar district. When that be the circumstances in order to successfully discharge the burden of proof it was incumbent on the appellant to prove that the disputed property was not a private forest as on 10.05.1971 because the erstwhile MPPF Act was not made applicable to the property immediately before the appointed day. It is not in dispute that the MPPF Act applied to the private forests lying within the erstwhile district of Malabar and South Kanara having a contiguous area exceeding 100 acres by virtue of Section 1(2)(i) of the MPPF Act. A specific contention was taken up by the respondents in the counteraffidavit that the disputed property was part of the Valliyamkunnu malavaram having an extent of 126 hectares. It is to be noted that the appellant has not taken out a Commission to prove that the disputed property was not part of the said Malavaram or to show that the property in question was under cultivation. Though the appellant had specifically contended in the petition filed under Section 8 of the Vesting M.F.A.No.42 of 2006 8 Act that the property in respect of which such declaration sought for, was being used for cultivation of vegetables and other fugitive crops including tapioca no evidence was let in by her to establish the said contention, apart from tendering oral evidence. In the said circumstances, it is also relevant to refer to the oral testimony of the appellant as PW1. Though she had taken up a specific contention in the petition that the property was being used for cultivation of vegetables her oral testimony would reveal that what was deposed before the Tribunal was that there was natural crop in the property. She had deposed as hereunder before the Tribunal:- " തർക വസ പറ�ബ�ണ�. പല�ഞ� ച�ട�കൾ ക�ടപ�ട�ച ക�ടകനതചക�ണ�ണ� തർക വസവ�ച� വളർത ക�ട� എന� ആധ�രത�ൽ പറഞത�. തർക സലത� വ�ഭമ�യ�ൽ ഒന� ഉണ�യ�രന�ല. പല�ഞ� ച�ട�കള�യ� വളർന��ൽകനവയ�ണ�.” 10. It is also to be noted that the case of the appellant is that the property in question was being used for cultivation of vegetables and other fugitive crops including tapioca and Pullanthi was allowed to be there for being used as a manure in respect of such cultivation. In the petition the appellant had specifically stated that the remnants of the earlier cultivation was visible and available on the land. Further it was stated therein that though the fences had withered away, the bunds of earlier fencing are still available M.F.A.No.42 of 2006 9 on the land. Despite taking up such specific contentions the appellant herein had not chosen to take out a Commission to prove the averments and contentions. As noticed hereinbefore, going by the decision of this Court in _**Kunhiraman** 's case(supra)_ as also in _**Joseph v. State of Kerala**_ reported in _**2007 (3) KLT 144 SC**_ the burden was on the appellant herein to prove that the property in respect of which he claimed declaration, as mentioned above, was not a private forest or that it was not vested under the Vesting Act. As noticed hereinbefore, the appellant had not taken out a Commission to establish the verity of the aforesaid contentions and had also failed to adduce any other piece of cogent evidence to establish her case. When that be the circumstances, the Tribunal cannot be said to have committed any flaw by holding that the appellant had failed to prove that the MPPF Act was not applicable to the disputed property immediately before the appointed day i.e., 10.05.1971. Though she canvassed the position that despite the vesting the land had been used for cultivation and that is to establish her claim under Clause (C) of Section 2(f)(1)(i) of the Vesting Act, the aforesaid discussion would reveal that she had failed to establish the said claim by adducing evidence. In fact, all the aforesaid aspects were discussed in detail by the Tribunal. In M.F.A.No.42 of 2006 10 such circumstances, we find absolutely no reason to hold that the Tribunal had gone wrong in finding that the appellant was not entitled to get a declaration to the effect that the disputed property was not a private forest as on 10.05.1971. Having scanned the evidence on record we find that the appellant herein had failed not only to establish the fact that the land in question was not part of the 'Valliyamkkunnu malavaram' having an extent of more than 100 acres in respect of which MPPF Act was applicable but also that even after vesting the property in question was being used for cultivation and thereby she is entitled to get the benefit of Clause (C) to Section 2(f)(1) (i) of the Vesting Act. 11. When the appellant-applicant had failed to establish that the disputed property was not a private forest as on 10.5.1971 or that it was not vested with the Government under the Vesting Act, in order to get a declaration as sought for it was incumbent on her to establish that she is entitled to get exemption under Sections 3(2) or 3(3) of the Vesting Act. In this context, it is to be noted that the specific case of the appellant was that the land in question was being used for cultivation. As noticed hereinbefore, even after making such a specific claim in the petition the appellant had not cared to take out a Commission to establish the same. The case of the M.F.A.No.42 of 2006 11 appellant is that the disputed land was alloted to the share of her deceased husband as per Ext.A1 partition deed. The Tribunal found that Ext.A1 would sufficiently prove that the said Bhaskaran was the owner in respect of the disputed property prior to 10.05.1971. The question to be looked into for the purpose of deciding the entitlement of the appellant to get exemption is, whether the property in question was being held under cultivation prior to or as on 10.05.1971. It is to be noted that even in Ext.P1 the disputed property has been described as reared forest. While being examined-in-chief before the Tribunal the appellant herein deposed to the effect that the growth of Pullanthi was a natural one. In other words, even according to the appellant, the vegetation available in the disputed land was only a natural growth of plants. In the absence of any evidence to the effect that the land was developed for the purpose of growing crops and also in the absence of any element to suggest that human efforts was there in that regard it cannot be said that property in question was under cultivation. The mere fact that there was natural growth in the property in question cannot be equated with a cultivation from the part of the applicant. Shortly stated, a scanning of the evidence on record would reveal that the appellant herein had failed to establish that the land in M.F.A.No.42 of 2006 12 question was under cultivation as on 10.05.1971 or prior or after that date. 12. Now, what survives for consideration is whether the appellant had succeeded in showing that there was intention to cultivate the land so as to bring it under the exemption in Section 3(3) of the Vesting Act. While considering the said aspect the decision of the Hon'ble Apex Court in _**Joseph** 's case (supra)_ has to be borne in mind. Going by the said decision, such intention to cultivate by the owner of the land has to be gathered not only in regard to the factual situation obtained in any particular point of time but also with regard to the subsequent conduct of the party. Further it was held:- “If the activity in regard to cultivation of land or development thereof is systematic and not sporadic, the same also may give an idea as to whether the owner intended to cultivate the land. The words 'intend to cultivate' clearly signify that on the date of vesting the land in question had not actually been cultivated in its entirety but the purchaser had the intention of doing so. Such intention on the part of the purchaser can be gathered from his conduct in regard to the development of land for making it fit for cultivation preceding to and subsequent to the date of vesting.” A mere perusal of the application would reveal that the appellant herself contended as hereunder: _“But for the last 4 years due to adverse health_ M.F.A.No.42 of 2006 13 _the property could not be fenced or put to cultivation and cultivation as before was attempted to be restarted in January 2004.”_ 13. As noticed hereinbefore, the appellant had failed to let in any evidence to establish that the property in question was being used for cultivation at any point of time. The case of the appellant was that it was being used for cultivation up to 2000. The said fact could have been proved by taking out a Commission to establish that the signs of cultivation or attempt to cultivate are very much available in the property in question. Having failed to bring in any evidence whatsoever the appellant cannot be heard to contend merely by relying on her oral testimony that she had actually intended to cultivate the land. It is in this context that the decision of the Hon'ble Apex Court assumes relevance. The Apex Court held that in order to canvass the position that there was intention to cultivate the property by the owner the cultivation of land or development thereof has to be systematic and not to be sporadic. 14. Having scanned the evidence, we find no reason to disagree with the findings of the Tribunal regarding the absolute absence of any intention on the part of the appellant to cultivate the property in question. When that be the circumstances, the appellant is not entitled to the exemption M.F.A.No.42 of 2006 14 available under Section 3(3) of the Vesting Act. In view of the discussion as above, this appeal must fail and accordingly, it is dismissed. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **MARY JOSEPH, JUDGE** vs