IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 179 of 2006(A)
1. K.V.RAMACHANDRAN @ CHANDU VADYAR,
... Petitioner
2. RAMAKRISHNAN, AGED 40 YEARS.
3. VARADARAJAN, AGED 37 YEARS.
4. NARAYANAN, AGED 34 YEARS.
5. VENKITASUBRAMANYAN, AGED 32 YEARS.
6. RAMA SHARMA, AGED 32 YEARS.
7. MURALI SHARMA, AGED 32 YEARS.
8. JANAKI SHARMA, AGED 32 YEARS.
9. SUNDARAM, AGED 34 YEARS.
10. KUMAR, AGED 32 YEARS.
11. SURESH, AGED 38 YEARS.
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. CUSTODIAN OF VESTED FORESTS,
For Petitioner :SRI.K.P.BALAGOPAL
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :07/10/2009
O R D E R
P.R.RAMAN & P.R.RAMACHANDRA MENON
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M.F.A.(Forest) No. 179 of 2006
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Dated this the 7th October, 2009
J U D G M E N T
Raman, J.
This is an appeal by the applicants who approached
the Forest Tribunal, Kozhikode, by filing O.A.No.49 of 2003,
contending that an extent of 35 cents of land purchased by them
in the year 1996, as per Ext.A1 document, is not a forest land
and even assuming that it is a forest land, they are entitled to
the benefit of Section 3 (2) and (3) of the Kerala Private Forest
(Vesting and Assignment) Act (hereinafter referred to as ‘the Act’
for short).
2. The petition scheduled property, according to
the applicants, is a part of the agricultural land owned by them.
The property originally belonged to Tirur Kachamkurichi
Devaswom. The said land was held on kanam lease by
Narayanan and others under a registered document, Document
MFA (FOREST) No.179 of 2006
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No.1047 of 1940. It is stated that the said property was
purchased in the year 1996; that the disputed property was not a
private forest; that the applicants and their predecessors-in-title
were in absolute possession of the property and they had
cultivated the same long prior to 10.5.1971; and that they
continue to cultivate the property and they intend to do so in
future also.
3. The respondent, State of Kerala, contended
that the scheduled property is vested forest notified as
Chekolkusavankadu Malavaram; that the said land was surveyed
and demarcated in 1978-79 and was notified vide notification
dated 20.5.1985; that as the survey number of the disputed
property was omitted to be mentioned in the said notification, an
erratum notification was issued; that the disputed property is in
the possession of the Forest Department; and that it was not
owned and cultivated by the applicants or their predecessors-in-
interest.
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4. In support of their respective contentions, the
first applicant examined himself as PW.1. On the side of the
respondents, RW.1 was examined and Exts.A1, A2, B1, C1 and
C2 were marked.
5. The Tribunal raised two points for consideration,
viz., whether the petitioners/applicants prove that the disputed
property was not a private forest as on the appointed day, and
whether the petitioners entitled to claim exemption under Section
3(2) or (3) of the Act.
6. As regards the first point, the evidence was
discussed and held that the land in question is not covered by the
M.P.P.F. Act, as its extent is only 35 cents. The respondents
also did not have a case that it is a land in which M.P.P.F. Act
applies. It proceeded to consider as to whether it was a forest
land as per the definition. The term “Forest” is not defined in the
Act, and following the decisions in Ram Bahadur Thakur Pvt. Ltd.
v. State of Kerala (2000 (1) KLJ 16) and in State of Kerala v.
Anglo American Direct Tea Trading Company (1980 KLT 215), it
MFA (FOREST) No.179 of 2006
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was held that in the absence of any positive evidence to show
that the applicants could not prove that it is a land on which
human skill, labour and resources have been spent for
agricultural purpose, to take it out from the expression “private
forest” as has been used in the Act, the burden to prove that it is
not a forest land is on the petitioners, as held by the decision
reported in State of Kerala v. Kunhiraman (1990 (1) KLT 382),
and it excluded that the disputed property was a private forest
within the meaning of Section 2(f)(1)(ii) of the Act.
7. Considering the second point, regarding
exemption under Section 3(2) or (3) of the Act, it was held
following the decision in Koya v. State of Kerala (1987 (1) KLT
830), that the applicants has no locus standi to claim the benefit
as they are not owners of the disputed property as on 10.5.71,
and, therefore, the question was not probed further regarding
the claim for exemption. Aggrieved thereby, the applicants
have preferred this appeal.
MFA (FOREST) No.179 of 2006
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8. Heard the learned counsel, Sri.K.P.Balagopal,
appearing on behalf of the appellants, as also the learned
Special Government Pleader, Sri.M.P.Prakash, appearing for the
respondent- State.
9. It is contended by the appellants that the land
was outstanding on kanam right with the transferor, as
evidenced by Ext.A2 document. According to them, there was a
suit for partition and final decree was passed and pending final
decree, this land along with other lands were purchased by
registered document, Ext.A1, by the petitioners and ever since
the land has been under direct cultivation by them. In support of
his contention that the land was under cultivation by the
transferor, he has placed reliance on the deposition of PW.1.
10. The respondents, on the other hand, contended
that the word “Forest” have not been defined, and the judicial
pronouncement in State of Kerala v. Anglo American Direct Tea
Trading Company (1980 KLT 215) will govern the issue as to
whether it is a forest land or not. In that context, it was pointed
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out that the term “private forest” had been used in the Act as
lands other than those on which human skill, labour and
resources have been spent for agricultural purpose. In so far as
the petitioners could not substantiate their contention by
adducing acceptable evidence to show that human skill, labour
and resources has been spent for agricultural operations, they
have not discharged their burden, and, therefore, the Tribunal
was perfectly justified in holding that the property was a private
forest.
11. It is true that property in question is not
attracted by the provisions of the M.P.P.F. Act and both sides
have agreed thereto. As per Section 2(f)(1)(ii) of the Act,
“private forest” means 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. But then, the term
‘Forest’, in the absence of any definition, we have to go by the
judicial pronouncement to understand the term ‘Forest’ within the
meaning of the Act 26 of 1971. It was held by the Division
MFA (FOREST) No.179 of 2006
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Bench in the case of State of Kerala v. Anglo American Direct Tea
Trading Company (1980 KLT 215) that the definition of the term
‘Forest’ in the context of forestry may not be a definition
appropriate for our purpose. In the context in which the term
‘private forest’ has been used in Act 26 of 1971, it is evident that
it applies to lands other than those on which human skill, labour
and resources have been spent for agricultural operations.
12. Except the ipsi dixit of the first petitioner as
PW.1, there is no other evidence adduced in this case. The
question as to whether it is a private forest relating back to the
appointed day, is a matter on which the petitioners could not
have any personal knowledge, as admittedly they have purchased
the property in the year 1996. Therefore, on a matter on which
they have no personal knowledge, the Tribunal cannot be found
fault with in not accepting the uncorroborated version of PW.1
and holding that in so far as the petitioners could not discharge
their burden, it must be deemed as private forest within the
meaning of Section 2(f)(1)(ii) of the Act. Despite the efforts
MFA (FOREST) No.179 of 2006
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made by the learned counsel for the appellants to upset the
finding of the Tribunal in this regard, we are unable to agree with
him, in the absence of any other evidence or materials placed on
record, other than the ipsi dixit of PW.1. We cannot find that the
finding on the first point rendered by the Tribunal is in any way
perverse or contrary to the evidence adduced in the case. Hence,
we confirm the said finding.
13. The second question regarding exemption
under Section 3(2) or (3) of the Act was considered in the light of
the decision in Koya v. State of Kerala (1987 (1) KLT 830),
which has since been watered down by the Full Bench decision
reported in Parameswara Sastrigal v. State of Kerala (2008
(2) KLT 461 (FB)) The Full Bench in categorical terms held that
a person in possession of the land is certainly entitled to claim
the benefit of Section 3 (2) or (3) of the Act, as the case may be,
provided he may be able to establish that as on the appointed
day, the transferor who has been in possession is entitled to the
benefit of the said provision. Therefore, the view taken by the
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Tribunal is clearly erroneous, in view of the decision of the Full
Bench, supra. Hence, we set aside the said finding of the
Tribunal.
14. The Tribunal is to consider as to whether the
petitioners are entitled to the benefit of Section 3(2) or (3) of the
Act, in the light of the Full Bench decision referred to above.
Besides the Full Bench decision, we have also considered the
other provisions of the Act in M.F.A.No.91 of 2004 while adding
to the reasons to reach the same conclusion. The Tribunal will
be governed by the above said decision in deciding the point
under consideration.
15. In the result, the appeal is partly allowed. The
matter is remitted to the Tribunal for fresh consideration as
regards the claim for exemption under Section 3(2) or (3) of the
Act. Appellants will be given an opportunity to adduce additional
evidence, if any, with equal opportunity to the respondents to
adduce the contract evidence.
MFA (FOREST) No.179 of 2006
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16. Incidentally, it was pointed out that in the
document, Ext.A1, the survey number of the present property is
not stated and contended that this may go a long way to show
that the petitioners are not the owners of the property. It is
unnecessary to consider the said contention at this stage, and
that is not a contention seen pressed in the matter also.
However, since we are remanding the matter, the petitioners are
not precluded to raise the said contention before the Tribunal.
Parties are directed to appear before the Tribunal
on 9.11.2009. No costs.
P.R.RAMAN, JUDGE
P.R.RAMACHANDRA MENON, JUDGE.
nj.