IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 11 of 2005()
1. MRS.K.C. PADMAKSHY, D/O. BHARGAVI AMMA
... Petitioner
Vs
1. STATE OF KERALA, NOTICE FOR WHOM
... Respondent
2. CUSTODIAN OF VESTED
For Petitioner :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :29/06/2010
O R D E R
A.K. Basheer & P.Q. Barkath Ali, JJ.
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M.F.A. No. 11 of 2005-E
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Dated this the 29th day of June, 2010
Judgment
Basheer, J:
This appeal filed under Section 8A of the Kerala Private
Forests (Vesting and Assignment) Act 1971 is directed against the
order passed by the Forest Tribunal, Kozhikode dismissing the
application filed by the appellant.
2. Appellant filed the application before the Tribunal under
Section 8(3) of the Act contending that the petition schedule
property, having an extent of 100 acres, is not a private forest and
that it is a cardamom plantation. The specific case of the appellant
was that the petition schedule property came into her possession in
the year 1965, though the registered assignment deed was
executed in her favour by the previous owner only in the year
1969. Thus, on the appointed day viz., May 10, 1971 the plaint
schedule property was a full fledged cardamom plantation.
Alternatively it was prayed by the appellant that in the event of her
prayer for the benefit under Section 8(3) was not found to be
tenable, appellant would be at least entitled to re-claim 20 acres
out of the plaint schedule property under Section 3(3) of the Act.
3. The Original Application was initially dismissed by
the Tribunal by order dated 5/4/2001. The said order was
MFA.11/2005. : 2 :
challenged before this Court in MFA.928/2001. It was noticed by
this Court that the Tribunal had found that the appellant had got
title over the property. But since the land was governed by the
Madras (Preservation of Private Forests) Act, it was a private
forest. This Court held that since the title had been found in favour
of the appellant,the Tribunal ought to have considered the question
whether the plaint schedule property was in fact cultivated with
cardamom as contended by the appellant. It is on record that an
Advocate Commissioner was appointed by this Court in the above
appeal. The Division Bench disposed of the appeal directing the
Tribunal to consider the report of the Advocate Commissioner
regarding ” “personal cultivation by the appellant”.
4. The impugned order has been passed by the Tribunal
after considering the report of the Advocate Commissioner and the
oral testimony of Pw.1, one of the sons of the appellant and Rw.1
the Forest Range Officer, Alathur. The Tribunal has found that
the evidence available on record would not be sufficient to hold
that the plaint schedule property was planted with cardamom on or
before May 10, 1971. The Tribunal therefore held that the plaint
schedule property did in fact vest in the Government as on the
crucial day when Act 1971 was enacted.
MFA.11/2005. : 3 :
5. We have heard Sri.P.N.K.Achan learned counsel who
appears for the appellant and Sri.Prakash, learned Senior Govt,
Pleader (Forests) at length. We have also perused the lower court
records.
6. It is contended by the learned senior counsel that the
Tribunal has proceeded at a tangent while deciding the crucial
issue which was directed to be considered by this Court while
remitting the case back to the Tribunal. It is pointed out by the
learned senior counsel that the fact that the plaint schedule
property was cultivated with cardamom was never in dispute,
especially in the light of the pleadings and the other materials that
were brought on record when the case was considered by this
Court in the earlier round of litigation. What had to be decided
further was only whether the plaint schedule property was planted
with cardamom on or before the crucial date . It is true that the
Advocate Commissioner had not considered the above aspect
when he inspected the property. As is revealed from the report of
the Advocate Commissioner, the only two issues which he was
directed to consider were:
“(a) The nature and extent of cultivation of
cardamom in the OA schedule property and
MFA.11/2005. : 4 :
(b) Whether the respondents have removed
any cardamom plants or whether there is any
attempt on the part of the respondents for
removing the cardamom plants in the area
OA schedule property.”
Learned senior counsel points out that the report of the
Commissioner was accepted by this Court and the application filed
by the respondents to set aside the report was dismissed. The
Advocate Commissioner in his report had stated thus:
“..I could see cardamom plants spread
over the entire area of the O.A.
Schedule property. In areas where it is
level and plain, it is abundant. In
steep and precipitous areas the plants
are very scarce. The plants seem to
have been planted; not sporadic or
haphazard.”
The Commissioner further stated thus:
“…I examined a few plants at its
roots. The roots are aged. It withers.
MFA.11/2005. : 5 :
Then it sprouts. Due to neglect and
abandonment, the plants being ill-
nourished, ill-maintained, its growth
is stunted; yet another factor that has
impaired the growth of the plants is
the sweep and fast spreading, lush
growth of reeds all through the area.”
Placing heavy reliance on the above observations made by the
Advocate Commissioner, it is contended by the learned senior
counsel that the Tribunal was wholly unjustified in relying on
some stray sentences of Pw.1 to hold that the cardamom plants
which the Commissioner had noticed in the property were not
cultivated or planted on or before the appointed day. While
conceding that the evidence of Pw.1 may not be satisfactory
enough, since as on the appointed day Pw.1 was only a minor, it is
submitted by the learned senior counsel that the failure of the
appellant to adduce better evidence may not be allowed to stand in
her way to substantiate her case. He submits that the appellant is
prepared to examine her Power of Attorney Holder who had been
looking after the property since 1965. Learned senior counsel
MFA.11/2005. : 6 :
further submits that interest of justice demands that such an
opportunity be given to the appellant, especially since it has
already been found that the appellant has got title over the property
and also since it has been found that the petition schedule property
is planted with cardamom. According to the learned counsel, the
only question that remains to be decided is whether on the
appointed day the property stood planted with cardamom or not.
Therefore learned senior counsel prays that appellant may be
granted a further opportunity to “complete” the evidence.
7. Per contra, it is contended by Sri. Prakash, learned
Special Government Pleader that the Tribunal was wholly
justified in dismissing the application, especially since the
appellant had totally failed to establish that it was a full fledged
cardamom plantation as contended by him. He points out that the
appellant did never have a case that she had obtained a licence that
is envisaged for plantation of cardamom under the relevant statute.
The appellant also did not have a case that the plaint schedule
property was ever maintained as a plantation by employing
workers or by carrying out such activities for the upkeep and
maintenance of the said plantation. If in fact the appellant had
been doing so, some documents would have been available with
MFA.11/2005. : 7 :
her. It is further pointed out by the learned Government Pleader
that the report of the Advocate Commissioner gives no clue as to
the time when the cardamom plants were planted. Therefore the
entire burden was on the appellant to establish that these plants
were planted prior to the appointed day. Having failed to do so, it
is too late in the day for the appellant to pray for a further
opportunity.
8. In this context learned Government Pleader invites
our attention to a decision of their Lordships of the Supreme Court
in Jagadambal v. The Southern Indian Edn. Trust & Ors. (AIR
1988 SC 103). It is true that in the above decision it has been held
that a case cannot be remanded to the trial court to enable one of
the parties to make good their lapse.
9. We have carefully perused the judgment of the Apex
Court referred to above. We are afraid the factual matrix available
in this case is totally different from what was available in the
reported case. As has been noticed already, the crucial question to
be decided is whether as on the appointed day, the plaint schedule
property was planted with cardamom or not. Undoubtedly the
appellant did not adduce any specific evidence with regard to that
aspect. The Tribunal did notice that the report of the
MFA.11/2005. : 8 :
Commissioner unambiguously indicated that the plaint schedule
property was in fact planted with cardamom. But the Tribunal
“discarded” the report merely for the reason that the evidence of
Pw.1 was not at all satisfactory. The Tribunal observed that
during May 1971, Pw.1 was hardly aged 14 or 15 and therefore he
did not have competence to speak about the state of affairs as it
then existed. The Tribunal further observed that the two elder
brothers who were admittedly majors at that time might have been
better witnesses. Anyway we do not propose to make any further
observation on that aspect.
10. Having regard to the entire facts and circumstances
of the case we are satisfied that the appellant can be afforded a
further opportunity; but it can only be on terms. We are
persuaded to take the above view particularly since it has been
admittedly found that the appellant has got title over the property
and also that the plaint schedule property was found to have been
planted with cardamom as revealed from the report of the
Advocate Commissioner.
11. Keeping in view all the above facts and
circumstances the order of the Tribunal is set aside. The case is
remanded to the court below on condition that the appellant pays a
MFA.11/2005. : 9 :
sum of Rs.25,000/- as cost to the respondents. Cost shall be paid
by the appellant to the respondents on or before August 4, 2010,
failing which this order will stand recalled. If the cost is paid, the
Tribunal shall reconsider the matter and pass fresh orders in
accordance with law, after affording sufficient opportunity to the
appellant to examine her Power of Attorney Holder or such other
competent witnesses. It will be open to the respondents also to
adduce further evidence, if so advised.
12. The parties shall appear before the Tribunal on
August 10, 2010.
The order of injunction passed by this Court during the
pendency of this appeal shall remain in force for a further period
of two months from today.
The Registry shall send back the lower court records to
the Tribunal forthwith.
A.K. Basheer
Judge.
P.Q. Barkath Ali
an. Judge.