IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 MFA.No. 11 of 2005 ------------------- OA.11/2000 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): -------------- MRS.K.C. PADMAKSHY, D/O. BHARGAVI AMMA KOCHINGAM PARAMBIL HOUSE, THEKKENARIYAD VILLAGE AMBALAPUZHA TALUK, ALLEPPEY DISTRICT. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE & ADV.SRI.K.MOHANA KANNAN RESPONDENT(S): --------------- 1. STATE OF KERALA, NOTICE FOR WHOM MAY BE SERVED ON THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD. BY GOVERNMENT PLEADER (SPL – FOREST) SRI.M.P.PRAKASH. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A. No. 11 of 2005-E - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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.