V.K. Balakrishnan v. State of Kerala and The Custodian of Vested Forest

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944 MFA (FOREST) NO. 2 OF 2011** **Against the order dtd.28.6.2010 of the Forest Tribunal, Kozhikode in O.A.No.2/2008** ## **APPELLANT/APPLICANT:** V.K.BALAKRISHNAN, AGED 67 YEARS, S/O.PILATHOTTATHIL KUNHIRAMAN PANICKER, "ANJALI", KUNNUMMAL AMSOM, VATTOLI DESOM, P.O.VATTOLI, VATAKARA TALUK, KOZHIKODE. BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA ## **RESPONDENTS/RESPONDENTS:** 1 THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, STATE OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD DISTRICT-678002. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 30.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A.(Forest).No.2 of 2011 ..2.. ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------M.F.A.(Forest).No.2 of 2011 ------------------------------------------------------------Dated this the 30[th] day of November, 2022 ## **JUDGMENT** ## C.Jayachandran, J. Landed property having a small extent of 22.7 cents, over which the applicant/appellant asserted title, is the subject matter of this appeal. Claiming title, the applicant sought for a declaration in O.A. No. 2/2008 that the scheduled property is not a private forest; with an alternative prayer for exemption under Section 3(2) or 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ('the Vesting Act' for short). As per the impugned order dated 28.6.2010, the Forest Tribunal, Kozhikode dismissed the O.A, finding that the applicant failed to establish the title claimed, as also, his entitlement for exemption under Section 3(2) or 3(3) of the Vesting Act. 2. Heard Sri.Firoz.K.M., learned counsel for the appellant and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forest). Perused the records. M.F.A.(Forest).No.2 of 2011 **==> picture [22 x 8] intentionally omitted <==** 3. Learned counsel for the appellant submitted that the scheduled property having an extent of 22.7 cents forms part of 2.05 acres of land purchased by the applicant vide Ext.A1 document of the year 2004 and therefore, the allegation of the respondent Department that the scheduled property, being forest land, has been encroached upon by the applicant/appellant is wholly baseless. The recitals in Ext.A1 document would clearly indicate the derivation of title as claimed in the O.A., which the Tribunal ought to have taken stock of. It should have been noticed by the Tribunal that, except the oral lease in favour of Vallanad Stephen, all other documents were registered documents, specifically made mention of in Ext.A1, wherefore, the presumption in favour of registered documents should have been reckoned, to find a legitimate title on the applicant/appellant. The Tribunal seriously erred in not relying upon the facts reported in the commission report, especially regarding the cultivation in the scheduled property. At any rate, the Tribunal could not have discounted the existence of a building, with Panchayat number assigned, having an electric connection too. According to the M.F.A.(Forest).No.2 of 2011 **==> picture [22 x 8] intentionally omitted <==** learned counsel for the appellant, the order impugned cannot be sustained in law. The same is liable to be set aside, with the prayers in the O.A. allowed. 4. Per contra, learned Special Government Pleader argued to sustain the order impugned, which according to him, assigns reasons aplenty to dismiss the O.A. The fact that the title claimed by the applicant is not established, particularly with reference to the state of affairs prevailing as on the appointed day, is one single and sufficient reason to disallow the declaration prayed for, as also, to refuse the exemptions claimed. According to the learned Special Government Pleader, the order impugned warrants no interference. 5. Having heard the learned counsel appearing on both sides, we cannot but endorse the findings of the Forest Tribunal in the impugned order. The applicant sets up title in the O.A. as follows: The scheduled property, along with other large extent, originally belonged to one Janaki Amma, with jenmom M.F.A.(Forest).No.2 of 2011 **==> picture [22 x 8] intentionally omitted <==** right, who gave the same to one Vallanad Stephen by virtue of an oral lease of the year 1960. He left a Will bearing no.57/1998 of the S.R.O., Thodupuzha constituting his wife Annamma Stephen as the legatee. Annamma Stephen, who obtained rights under the Will, pursuant to the death of Vallanad Stephen, assigned the large extent of property - of which the scheduled property was a part - to one Oruviyil Ali, as per document no.1607/2004 of the S.R.O., Kavilumparam, who in turn assigned the same to the applicant as per Ext.A1 document of the year 2004. 6. As against the derivation of title claimed above, the only document produced is the applicant's title deed, Ext.A1 of the year 2004. Going by the above averments, the owner of the scheduled property as on the appointed day, i.e 10.5.1971, was Vallanad Stephen, who got rights over the property by virtue of an oral lease in the year 1960. The Will executed by him was of the year 1998 and therefore, he was the owner as on the appointed day. However, no evidence, oral or documentary, whatsoever, was adduced in support of the M.F.A.(Forest).No.2 of 2011 ..6.. above facts. The solitary oral evidence in support of the O.A. was the one offered by the applicant, as PW1. As held in State of Kerala v. C.J.Alexander [1993 (1) ILR Kerala 731] the interested version of the applicant, in the absence of other relevant evidence, will be of no avail. 7. Another aspect frowned upon by the Tribunal is the dichotomy regarding the survey number pleaded in the O.A. originally and the one amended pursuant to Ext.C1 commission report. In the original application, the scheduled property is stated to be comprised in Old Sy. no. 36/3, corresponding to Re. Sy. no.108/2 of Maruthomkara Village. However, the commissioner reported in Ext.C1 that the property inspected by him is comprised in Old Sy. no. 33/2A, corresponding to Re. Sy. no.107/1, of the same Village. The applicant thereupon filed I.A. No. 95/2009 to amend the O.A, so as to make the survey numbers in conformity with Ext.C1 report and the same was allowed. We are persuaded to dilate more in this regard, as we notice that this is a usual practice being followed in many Original Applications before the Forest Tribunal. M.F.A.(Forest).No.2 of 2011 ..7.. 8. Learned counsel for the appellant contended that original applications in many a times will be filed in a hurry, when there occurs a precipitate interference by the forest officials, wherefore, the parties may not get adequate time to ascertain the specific particulars of the scheduled property, like the survey number, etc. Therefore, an amendment may become necessary, once the correct survey number is revealed pursuant to the commissioner's inspection and report, which will be based on revenue records as well. 9. We cannot endorse the submission made by the learned counsel for the appellant for more than one reason. First of all, to take recourse to the due process of law by submitting to the jurisdiction of a court of law is a serious affair, where the parties are expected to take reasonable efforts in stating true and correct particulars before the court. It is always open for the parties to cross-check the particulars like survey numbers, etc. from the revenue records, as available in the Village office concerned. Secondly, even assuming that the parties, on account of their alleged hurry, did not get adequate time to ## M.F.A.(Forest).No.2 of 2011 ..8.. ascertain the same, the same should be done within a reasonable period from the date of filing of the O.A., which effort can be taken much before filing an application for issuance of a commission. Seeking an amendment after filing the commissioner's report – indeed a piece of evidence – to make the pleadings in conformity with the facts reported in the commission report, may sometimes expose lack of bonafides on the part of the applicant, especially having regard to the jurisdiction conferred under the Vesting Act, where possible encroachment into the forest land, oblivious of the particulars of such land like survey number etc., cannot be discounted as a mere theoretical possibility. 10. In Tildesley v. Harper [(1878) 10 CD 393] Bramwell L.J. held that the parties seeking amendment must not be acting malafide and that the application to amend must be bonafide and made in good faith. In Rameshkumar Agarwal v. Rajmala Exports (P) Ltd. [2012 (5) SCC 337] the Hon'ble Supreme Court held that while deciding an application for amendment, ordinarily the court must not refuse bonafide, legitimate, M.F.A.(Forest).No.2 of 2011 **==> picture [22 x 8] intentionally omitted <==** honest and necessary amendments and should never permit malafide and dishonest amendments. In Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe [1995 (5) SCC 347] the Hon'ble Supreme Court held that amendments to pleadings should not be allowed to make the original pleadings conform to evidence produced. 11. We therefore hold that an amendment of the pleadings, pursuant to a commission report, to make the pleadings in conformity with the report, should be scrutinized seriously and the same is liable to be allowed only if bonafides are writ large on the application. We may hasten to add that wherever discretion is afforded to courts in the matter of allowing or refusing an application, the requirement of bonafides - thereby meaning absence of malafides - is to be read into the judicious exercise of discretion. Be that as it may. 12. Coming back to the facts, we also endorse the findings of the Tribunal vide its discussion in paragraph no.10 that the respondent's contention of a possible encroachment cannot be M.F.A.(Forest).No.2 of 2011 ..10.. rejected. As regards the existence of the building in the scheduled property, the Tribunal found that the building number as discernible from Ext.A7 ownership certificate and Ext.A9 ration card are different. Ext.A7 refers to the building bearing no.M.P. III/224, whereas the building referred to in Ext.A9 is one bearing no.277 in Ward no.3. Again, the building number as per Ext.C1 commission report is VII/204 and the number indicted in the door of the building is C-3-200. That apart, the period referred to in Ext.A7 ownership certificate is 1997-98, whereas the period of supply referred to in Ext.A9 ration card is 2002-2006. Premised on the above facts, the Tribunal found that the existence of the building in the scheduled property as on the appointed day is not proved, with which finding, we fully concur. 13. The finding that the applicant/appellant failed to establish his title, which we had already endorsed, will hold good to reject the exemption sought for under Section 3(2) or 3(3) of the Vesting Act, for, both the sections require the applicant to hold the property as an owner, which in the case of Section M.F.A.(Forest).No.2 of 2011 **==> picture [28 x 8] intentionally omitted <==** 3(3) should be under a valid registered document of title executed before the appointed day. We find no merits in the appeal and the same is therefore dismissed, relegating the parties to bear their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** skj