Thankappan v. State of Kerala and The Custodian of Vested Forests

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944** **MFA (FOREST) NO. 89 OF 2015** **AGAINST THE ORDER IN OA 9/2010 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANT:** THANKAPPAN, S/O.UNNIAPPAN, PUTHUKULAMPARAMBIL, VANDAZHY, PALAKKAD DISTRICT. BY ADV SRI.A.R.GANGADAS ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE CUSTODIAN OF VESTED FORESTS ARANYABHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD-678002. ## **OTHER PRESENT:** NAGARAJ NARAYANAN- SPL.G.P THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A(F).89/2015 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A[F].No.89 of 2015 -------------------------------------Dated this the 8[th] day of January, 2023** ## **J U D G M E N T** ## **Jayachandran, J.** Under challenge in this appeal is the order of the Forest Tribunal, Kozhikode in O.A. No.9 of 2010, which dismissed an application under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The aggrieved applicant is the appellant. ## **2.** The Facts: The scheduled property has an extent of 0.0743 hectares in Survey no.551 of Vandazhi-I Village. One V.N.Santha Neythiar had jenmom right over 2 acres of land, of which the scheduled property was a part. The scheduled property, along with other items, is in the enjoyment of the applicant. The property was 3 ## M.F.A(F).89/2015 being cultivated with various fruit bearing trees like mango, tamarind and rubber ever since the applicant obtained verumpattom rights over the same. The age of the rubber trees is around 40 years and the tamarind trees, more than 40 years. The forest officials interfered with the possession of the applicant on 09.12.2009, claiming that the property is a vested forest under the Vesting Act. The property was never a forest at any point of time. No notification in terms of Rule 2A of the Vesting Rules was issued. The property was not governed by the Madras Preservation of Private Forest Act ['the M.P.P.F. Act', for short]. The same is bounded by private lands. Premised on the above assertions, the applicant sought for a declaration that the scheduled property is not a private forest under the Vesting Act and alternatively, for exemption under Sections 3(2)and 3(3) of the Act. **3.** The Divisional Forest Officer filed counter statement contending that an offence was booked 4 ## M.F.A(F).89/2015 against the applicant on 21.04.2009 as O.R. No.9/2009 for illegal felling of rubber tree from the disputed property, which is the vested forest. The records in that case would reveal that the applicant was aged 61 years as on 2009, wherefore, he was a minor, aged 16 years, as on 01.04.1964. Purchase certificate in terms of the Kerala Land Reforms Act will be issued only to those who have attained majority. Therefore, the claim based on issuance of purchase certificate cannot be sustained as the same is not a valid document. Secondly, the transaction of the schedule property in favour of the applicant made after the appointed day, 10.05.1971, is null and void. The scheduled property is part of 'Mapilappotta Malavaram', which was notified as V.F.C. item No.226, coming under Nellikkalidam Section of Alathur range. The entire malavaram extends to 37.15 hectares, which vested with Government vide notification no.1383/1977 dated 10.10.1977. The applicant was never in possession of M.F.A(F).89/2015 5 the scheduled property. The obstruction alleged as against the forest department is only to get over the limitation. The scheduled property supports tree growth such as rosewood, irul, annakkara, tamarind, pathiri etc, aged 20-40 years. The land is similar with shrub jungle, adjoining Mapilappotta Malavaram. On 04.05.2008, another crime was registered against the applicant as O.R. No.7/2008 for illegal felling of 3 rosewood trees from the scheduled property. The scheduled property supports thick natural vegetation with lot of invaluable tree species. On such premise, the respondents sought for dismissal of the O.A. **4.** The evidence in this case consists of Exts.A1 to A23, supported by the oral evidence of the applicant, as PW1. On behalf of the respondents, Exts.B1 to B3 were marked and the Forest Range Officer concerned was examined as RW1. The Commissioner's report and plan were marked as M.F.A(F).89/2015 6 Exts.C1 and C2 respectively. **5** . On an analysis of the facts and evidence, the Tribunal found that the applicant failed to adduce necessary evidence to establish that the scheduled property is not a vested forest as defined under Section 2(f)(1)(i) of the Vesting Act. He also failed to prove that he is the owner of the scheduled property, besides failing to adduce any credible evidence to show the personal cultivation as on 10.05.1971. On the strength of the above findings, the Tribunal dismissed the O.A. **6.** Heard Sri.A.R.Gangadas, learned counsel for the appellant/applicant and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests). Perused the records. **7.** The Tribunal raised three issues; firstly, on the issue of limitation; secondly, whether the scheduled property is a private forest or not; and M.F.A(F).89/2015 7 thirdly, with respect to the exemption under Section 3(2) and 3(3) of the Vesting Act. On limitation, the Tribunal found that the respondents failed to adduce adequate proof as regards the notification to be made in terms of Rules 2 and 3 of the Vesting Rules, 1974, in respect of which finding, no exception can be taken. **8.** On the question whether the scheduled property is a private forest or not, the Tribunal, at the first instance, found that the scheduled property was not governed by the M.P.P.F. Act, since the total extent of the Mapilappotta malavaram, of which the scheduled property was a part, is only 37.15 hectares as per Ext.B1 notification. As per Section 1(2)(i) of the M.P.P.F. Act, the Act applies only to private forests in the Districts of Malabar and South Kerala having contiguous area exceeding 100 acres. We, therefore endorse the finding of the Tribunal as regards the non-applicability of the M.P.P.F. Act, which takes us to the second limb of 8 ## M.F.A(F).89/2015 the definition of 'private forests' in terms of Section 2(f)(1)(ii) of the Vesting Act. As per the said section, any forest not owned by the Government, to which the M.P.P.F. Act did not apply, including waste lands which are enclaves within wooded areas are also private forests. The Tribunal correctly took note of the dictum laid down by this Court in **State of Kerala v. Anglo American Direct Tea Trading Company Ltd** [1980 KLT 215] that, in the absence of a definition of the term 'forest' in the Vesting Act, the general meaning of the term, as used in common parlance, has to be taken. Thus reckoned, whether the scheduled property would answer the requirements of 'forest' is the next question. **9.** Ext.C1 report throws adequate light into this aspect, which speaks of as many as 22 different varieties of trees standing in the scheduled property, all of which are forest species, except M.F.A(F).89/2015 9 rubber, which is only 6 in number, having an approximate age between 30-35 years. The extent of the scheduled property is 0.0743 hectares, corresponding to 18 cents. A reference to the nature of the trees standing in the scheduled property, as also, to their approximate age, many of which between 40-50 years, would make it amply clear that the scheduled property has the characteristic features of a forest; and not that of a cultivated land. That apart, in order to establish the cultivation of mango, tamarind and rubber claimed in the scheduled property, no evidence is forthcoming, except the interested testimony of the applicant/PW1. The burden of proof to establish that the scheduled property is not a private forest in terms of the definition under the Vesting Act is squarely on the applicant **[See 1).State of Kerala** v. **Thomas [1987(1) KLT 530], 2). State of Kerala** v. **Kunchiraman [1990(1) KLT 382], 3). State of Kerala** v. **Chandralekha [1995(2) KLT 152(F.B.)] and (4)State of Kerala and Another** v. **Popular Estate and Another** M.F.A(F).89/2015 10 **[(2004)12 SCC 434]** . Similarly, **State of Kerala v. T.J. Alexander** [1993 KHC 168] held that, personal cultivation claimed should be proved by the applicant based on solid and definite evidence, which fact, cannot be found on the basis of shaky and dubious materials. Again, in **State of Kerala v. Thomas** [1987(1) KLT 530], it was held that a mere assertion by the applicant who claims exemption will not be sufficient. We are therefore in perfect agreement with the finding of the Tribunal that the appellant failed to establish that the scheduled property is not a private forest as defined under Section 2(f) of the Vesting Act. The declaration sought for in this regard was rightly rejected by the Tribunal. **10.** The surviving claim is for exemption under Section 3(2) of the Vesting Act. We straight away notice that the applicant has no claim under Section 3(3); nor is he claiming under a registered document 11 ## M.F.A(F).89/2015 of title executed prior to the appointed day, supported with a plea of 'intention to cultivate'. **11.** As correctly taken note of by the Tribunal, three ingredients are to be established in respect of a claim under Section 3(2). Firstly, the property should have been held by the applicant as an owner. Secondly, the scheduled property should be under his personal cultivation as on the date of vesting; and thirdly, the applicant was not in possession of any land in excess of the ceiling limit prescribed under the Kerala Land Reforms Act, 1963. **12.** Coming to the first ingredient of holding the property as an owner, the applicant relies upon Ext.A23 purchase certificate, which is in respect of 2 acres of land comprised in resurvey no.297/2 of Vandazhi-I Village. Here, we should immediately notice that the claim, as originally espoused in the O.A, was in respect of 40 cents of land comprised in survey no.551/12. The Commissioner found in Ext.C1 M.F.A(F).89/2015 12 report that the property as claimed by the applicant could not be identified and that the extent which was shown to be in his possession was only 0.0743 hectares in resurvey no.551. Immediately thereupon, the applicant sought for an amendment of the O.A seeking the extent and the survey number to be corrected at par with the Commissioner's report, a conduct, which we can hardly approve. Had it been a case of a trivial difference in respect of a survey number or the sub division number alone, it could possibly be held that the amendment sought for was bonafide. However, an applicant, who claims to be in possession of the scheduled property and who is indulging in agricultural activities therein cannot be heard to say that the extent of the property was not 40 cents, but only 18 cents. Such conduct even suggests that the applicant has little knowledge about the scheduled property, especially of its extent, which prejudicially affects his claim for title, as also, cultivation. Be that as it may. M.F.A(F).89/2015 13 **13.** As regards the claim which has been limited to 18 cents, we notice that the same is comprised in re-survey number 551, as found by the Commissioner in Ext.C1 report and depicted in Ext.C2 plan. It is pertinent to note that on the immediate northern side of the so-called scheduled property lies the property belonging to the applicant, having an extent of 0.6490 hectares in survey no.540/5. More importantly, the property on the immediate southern side of the scheduled property is vested forest comprised in survey no.551. The Tribunal found that no document has been produced by the applicant in support of his title claimed over the scheduled property in re-survey number 551. Ext.A23 purchase certificate is in respect of 2 acres of land in old survey no.297/2. True, the Tribunal found that the re-survey number corresponding to the old survey no.297/2 is 551. However, there is vast difference in the extent available in Ext.A23 certificate and the extent of 18 cents now claimed by the applicant. M.F.A(F).89/2015 14 Yet another important aspect established vide Exts.A4, A11 to A14 and A17 to A19 land tax receipts is that the same pertains to 0.6490 hectares of land in survey no.540/5, of which the applicant is admittedly the owner. This property is the one lying contiguous to the scheduled property, on its northern side. Other land tax receipts produced does not refer to any survey number or extent. The fact that the scheduled property is lying contiguous to the said 0.6490 hectares alongside its northern boundary, the difference in the re-survey number of the said 0.6490 hectares and that of the scheduled property, the fact that the scheduled property is also lying contiguous to the vast vested forest alongside the southern boundary of the scheduled property, which bears the same re-survey number with that of the scheduled property, all would indicate the possibility of an encroachment into the vested forest, as argued by the learned Special Government Pleader. In the M.F.A(F).89/2015 15 fore-cited facts and circumstances, we cannot, but approve the finding of the Tribunal that the applicant failed to establish that he is the owner of the scheduled property. **14.** As regards cultivation claimed, we have already found that, except the scanty presence of 6 rubber trees, no cultivation, whatsoever, could be seen by the Commissioner. The Tribunal found that, no independent witness was examined to prove the cultivation. The entry in Ext.A20 'Adangal Extract' describing the property as 'അസ�ര പഞ', by itself, is incapable of suggesting an inference that the scheduled property was under the personal cultivation of the applicant as on the appointed day. That apart, the Tribunal also found that the re-survey number claimed is not reflected in Ext.A20 extract. The copious existence of trees of forest species, coupled with their age indicated in Ext.C1 report, would lead us to the irresistible conclusion M.F.A(F).89/2015 16 that the applicant failed to establish the cultivation claimed over the scheduled property. Finally, no proof is adduced to show that the applicant is not in possession of any land in excess of the ceiling limit. We find no merit in this appeal and the same is therefore dismissed, confirming the order impugned of the Tribunal. The parties are left to suffer their respective costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN** **JUDGE** Sbna/