High Court Kerala High Court

A.K.Raju vs The State Of Kerala on 16 November, 2009

Kerala High Court
A.K.Raju vs The State Of Kerala on 16 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA.No. 128 of 2006(A)


1. A.K.RAJU, S/O. LATE KUNJIRA,
                      ...  Petitioner
2. A.K.THANKAMANI, D/O. LATE KUNJIRA,
3. A.K.KASUMANI, S/O. LATE KUNJIRA,
4. A.K.RUGMINI, D/O. LATE KUNJIRA,
5. A.K.UNNIKRISHNAN, S/O. LATE KUNJIRA,
6. A.K.PREMA, D/O. LATE KUNJIRA,

                        Vs



1. THE STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. THE CUSTODIAN OF VESTED FORESTS,

3. A.K.MANIKANDAN, S/O. LATE KUNJIRA,

                For Petitioner  :SRI.P.R.VENKETESH

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :16/11/2009

 O R D E R
          P.R.RAMAN & P.R.RAMACHANDRA MENON

                   -------------------------------

                      M.F.A.No. 128 of 2006

                   -------------------------------

               Dated this the 16th November, 2009

                         J U D G M E N T

Raman, J.

Appellants-petitioners filed O.A.No.21 of 2002

before the Forest Tribunal, Kozhikode, for a declaration that the

Petition Scheduled Property is not a Private Forests vested in

Government and in the alternative for exemption under Section

3(2) and 3(3) of the Kerala Private Forests (Vesting and

Assignment) Act 26/71, herein after referred to as ‘the Vesting

Act’ for short.

2. According to the appellants, the petition

scheduled property comprised in Survey Nos.7/2A1 and 3A

(resurvey No.84/3) in Parali-I Village of an extent of 4.40 acres

was the subject matter of the lease obtained from the Jenmi

Mannuur Nayarveedu family, as evidenced by Ext.A1 lease deed

of the year 10.4.1961. Thereafter, this was under cultivation

MFA.128 of 2006.

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with various seasonal crops and that this was never a private

forest. It is also contended that in order to attract the provisions

of MPPF Act, there may be a total extent of 100 acres, and

according to them, the land on the northern side of the property

of the petitioners is a rubber plantation and beyond the northern

side of that plantation is a private forest. Therefore, if this

plantation is taken as disruption to the continuity of 100 acres,

then this land will not fall under the MPPF Act. The Tribunal

further held that the land was encroached on the northern side by

somebody, but that will not loose its continuity. But there is no

finding that the said rubber plantation was originally a part of the

Private forest governed by the provisions of the MPPF Act. As a

matter of fact, if the land in question is included in the

notification, certainly, if the rubber plantation lying north of it

would have also been included in the notification and the

outcome of treating the rubber plantation as a private forest is a

matter specifically within the knowledge of the Forest

Department. Once evidence is adduced to show that land on

the northern side is either a private forest or not, then it could be

MFA.128 of 2006.

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said as to whether the continuity of 100 acres is lost or not. In

the absence of any such attempt, it is not possible to hold that

the land in question was governed by the provisions of the MPPF

Act. Better evidence could have been adduced by either side on

this point.

3. Though the appellants have produced tax

receipts to show proof of possession, read with Ext.A1, the

Tribunal did not accept the said evidence only for the reason that

the tax receipt did not contain the recitals. But PW.1 was

examined in the case and Ext.A18 has been produced to show

that this land originally belonged to the Mannuur Nayarveedu

Tharavadu and this was included in the partition suit. In such

cases, the approach of the Tribunal should be to consider the

over all evidence adduced in the case, viz., whether originally the

owner is the lessor as contended by the petitioners; whether for

that partition, Ext.A18 could have been looked into and then to

see whether the tax receipt produced would relate to the land in

question, and whether the petitioners have got any other land

MFA.128 of 2006.

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other than this to come to the conclusion that the receipt, Ext.A1,

is the tax receipt relate to the same property or not.

4. When it is contended that the land was

cultivated with seasonal crops, the fact that it could not be

proved by any documentary evidence is not proper, because

even if the other larger extent is either a plantation or cultivation

of agricultural crops, there could be a small extent of land

left as Paramba, and for cultivation of seasonable crops in such

parambas, normally there will not be any documentary evidence

of proof. Therefore, the oral testimony can certainly be looked

into, and if the court is satisfied with such oral evidence, then

there is nothing wrong in accepting the oral evidence regarding

the nature of the cultivation that has been effected. We find

that the approach made by the Tribunal is not proper. For all

the above reasons, we find that the matter needs re-

consideration.

5. Accordingly, we set aside the impugned order.

The matter is remitted back to the Tribunal for fresh

MFA.128 of 2006.

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consideration, with liberty to the parties to adduce further

evidence. The Tribunal shall, after considering the additional

evidence, consider the matter afresh and pass final orders, in

accordance with law.

The appeal is thus allowed by way of remand. The

parties shall appear before the Tribunal on 11.1.2010.

P.R.RAMAN, JUDGE

P.R.RAMACHANDRA MENON, JUDGE.

nj.