IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 MFA.No. 179 of 2006(A) ---------------------- OA.49/2003 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): APPLICANTS ----------------- 1. K.V.RAMACHANDRAN @ CHANDU VADYAR, S/O.VISWESWARA IYER, RAMANATHAPURAM, ALAMPALLAM, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT. 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. APPELLANTS 2 TO 11 ARE RESIDING AT RAMANATHAPURAM, ALAMPALLAM, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT AND REPRESENTED BY THE POWER OF ATTORNEY HOLDER K.V.RAMACHANDRAN @ CHANDU VADYAR, THE IST APPELLANT. BY ADV. SRI.K.P.BALAGOPAL M.F.A.No.179 of 2006 : 2 : RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. BY SPECIAL GOVT. PLEADER FOR FORESTS SRI.M.P.PRAKASH. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- M.F.A.(Forest) No. 179 of 2006 ------------------------------- 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 2 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. MFA (FOREST) No.179 of 2006 3 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 4 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 5 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 MFA (FOREST) No.179 of 2006 6 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 7 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 8 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 MFA (FOREST) No.179 of 2006 9 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 10 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.