IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 MFA.No. 156 of 2004() --------------------- AGAINST THE ORDER DATED 21/07/2003 IN 224/76, 361/76 & 362/76 IN OA.223/1976 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): RESPONDENTS: -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, EASTERN CIRCLE, OLAVAKKODE, PALAKKAD DISTRICT. BY GOVERNMENT PLEADER M.P.PRAKASH RESPONDENT(S): --------------- 1. VAZHAYIL KOMBI KUNHANI, W/O. C.P. KUNHI ABDULLA, POLIKKOOL, P.O. NADAPURAM, BADAGARA (APPLICANT IN O.A.223/76). 2. P.P. KUNHI ABDULLA HAJI (DIED). 3. AYSHA HAJJUMMA, W/O. KUNHABDULLA HAJI, PUTHANPEEDIKAYIL, NADAPURAM, BADAGARA. 4. SOOPI HAJI, S/O. KUNHABDULLA HAJI, DO. DO. 5. LATHEEF, S/O. DO. DO. 6. ASHARAF, DO. DO. 7. SUBAIDA, D/O. KUNHABDULLA HAJI. 8. VAHIDA, D/O. DO. 9. HARIS, S/O. DO. DO. 10. RAFEEQ, S/O. DO. DO. 11. RAHEEM, S/O. DO. (APPLICANTS IN O.A.224/76). 12. KOMBI BIYATHU, C/O. P. ALIKUTTY, ARIYARI HOUSE, P.O. PAROD, VIA NADAPURAM (APPLICANT IN OA.361/76) 13. P.P. KUNHAMMED KUTTY (DIED) PUTHENPEEDIKAYIL, P.O. NADAPURAM. 14. KUNHIPATHU, W/O. DO. DO. 15. SOOPPI, S/O. DO. DO. 16. UMMER, S/O. DO. DO. 17. SEENATH D/O. DO. (APPLICANTS IN OA.223/76). ADV. SRI.C.M.ANDREWS FOR R1,3-12,R14-17 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- M.F.A. No. 156 of 2004 --------------------------------------------- Dated, this the 17th day of December, 2009 J U D G M E N T P.R. Ramachandra Menon, J The common order passed by the Forest Tribunal, Kozhikode in OA 223/1976, 224/1976, 361/1976 and 362/1976 is under challenge in this appeal preferred by the State and the custodian of the vested forests, Palakkad District. 2. The sequence of events shows that the applicants filed the above OAs under Section 8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971, claiming the benefit of exemption under Section 3(3) of the Act. Earlier, these applications along with the OA 225 and 226/1976 were heard together and all the said applications, except the latter two, were allowed by the common order dated 24.08.1978. Aggrieved by the said order, the State filed review petitions 9/1990, 10/1990, 11/1990 and 12/1990 respectively, wherein interference was declined by the Tribunal. Met with the situation, the State filed MFA 635/1991 before this Court, wherein the impugned orders were set aside and the Tribunal was directed to consider the review petitions afresh, on MFA No.156 of 2004 2 merits. Pursuant to the remand, the review petitions were heard and allowed and the original applications were heard afresh by the Tribunal. After hearing the matter on merits, based on the evidence on record, the Tribunal arrived at a clear finding that the applications were not barred by limitation and further that the applicants were very much entitled to the exemption under Section 3(3) of the Act. Accordingly, all the applications were allowed, sustainability of which is put to challenge in this appeal. 3. The learned Special Government Pleader (Forest) submits that the appreciation of evidence and the application of law as effected by the Tribunal are not correct or proper. It is contended that the applications were barred by limitation; that the burden was very heavy on the applicants to prove the requirements contemplated under Section 3 (3) of the ‘Act’ to have had exemption and that the Tribunal has not considered Ext.P1 Taluk Land Board proceedings properly; simultaneously adding that there is some difference/discrepancy with regard to the ‘name’ as shown in Ext.P1, contending that, it is in no way related to OA 224/1976. 4. The applicants in the OAs were having about 48 acres each, in survey No.685/1A in Tariode village South Wayanad Taluk, which was a forest land. The said applicants were also having different extents of land elsewhere and as per the relevant provisions of the KLR Act, the MFA No.156 of 2004 3 applicants and their family in OA 223/1976 and 224/1976 were entitled to be in possession of 20 acres of land in each case; whereas the applicants and family in the other two cases were entitled to be in possession of 15 acres of land (in each case). After giving credit to the property owned and possessed by them, the claim was limited only to top up the figures to the permissible extent. 5. The applicants adduced evidence by examining PW1 and also by producing Ext.P1 to P19, while the opposite side examined the Forest Range Officer, Kalpetta as RW1 and produced Exts.B1 to B3. As observed by the Tribunal in paragraph 11 of the common order, RW1 stated that the disputed lands were part of the vested forest known as 'Vattam Malavaram'; that the survey and demarcation of the malavaram was over in 1976 and that it was notified as vested forest as per Ext.P1 notification dated 08.07.1977. In view of the admitted fact that the notification was issued only in the year 1977, whereas the applications were filed as early as in 1976, it was correctly held as not barred by limitation. As such, the challenge raised in this regard is devoid of any merit. 6. With regard to the eligibility to have exemption as provided under Section 3(3) of the Act and as to the burden of proof, it is true that the burden of proof is very much upon the applicants as made clear by MFA No.156 of 2004 4 the Full Bench of this Court in State of Kerala Vs. Chandralekha [1995 (2) KLT 152 (FB)]. It is for the applicant to prove that there is no excess land beyond the ceiling limit and if the State has got a case that Section 84 of the KLR Act applies, the burden of proof shifts to the Government in view of the observations made by the Apex Court in Joseph Vs. State of Kerala [2007 (3) KLT 144 (SC)]. Further, eventhough the normal rule is that clauses providing exemption have to be construed strictly, in a case where larger right is taken away, giving only ‘something’, this 'something' should be liberally construed. More so when, no objection was filed from the part of the Government alleging possession of any excess land above the ceiling limit. This being the position, the finding of the Tribunal in favour of the applicants is very much based on the pleading and evidence on record and in conformity with the provisions of the law. 7. With regard to the contention as to the absence of any valid title or possession over the disputed area and as to the intention to cultivate prior to the appointed day, i.e., on 10.05.1971, it has been observed by the Tribunal in paragraph 13 of the impugned order (referring to OA 223/1976) that the property came to the hands of the concerned applicant by virtue of Ext.P2 registered jenmom assignment MFA No.156 of 2004 5 deed dated 09.10.1969 executed by her father’s brother, followed by Ext.P3 registered surrender deed dated 21.11.1969 executed by her father. The husband of the said applicant had filed a return under Section 85(1) of the KLR Act, wherein Ext.P1 final order was passed by the Taluk Land Board, South Wayanad on 26.02.1976, which shows that, besides 47.96 acres, the applicant was having only about 5.46 acres of land in her possession. Ext.P5 proceedings of the District Collector dated 12.06.1971 reveal that the application filed by the concerned applicant under Section 3(2) of the erstwhile MPPF Act for 'clear felling' was not acted upon, as it ceased to be under consideration, in view of the Kerala Private Forest (Vesting and Assignment) Ordinance. Further, as per Ext.P4 proceedings dated 08.04.1969 of the District Collector, Kozhikode, permission was given to the assignors (father’s brother and father respectively) to assign the respective extent of land shown in Ext.P4 to the 16 persons named therein, which includes the name of the said applicant as well. Ext.P2 and P3 were executed with the permission of the District Collector, which are valid documents and as such, the applicant was held as holding the private forest under a valid and registered document executed prior to the appointed day, i.e., 10.05.1971, intending to be cultivated by her. The facts and figures have MFA No.156 of 2004 6 been meticulously analysed by the Tribunal and it was accordingly, that the said OA was allowed with respect to the assignable extent. Similar course has been pursued in the case of the applicants in the other OAs as well, as discernible from the discussion in paragraphs 14, 15 and 16 of the impugned order, which are very much in conformity with the pleadings and evidence on record. The applicants have satisfied all the three essential ingredients to claim exemption under Section 3(3) of the Act, (that they were holding the property in question under a valid registered document of title; that they had intention to cultivate the property prior to the appointed day and that they had got land only within the ceiling limit as on 10.05.1971) and the challenge raised by the appellant does not hold any water at all. 7. With regard to the submissions made by the learned special Government Pleader that Ext.P1 proceedings of the Taluk Land Board have not been properly considered by the Tribunal and there is some discrepancy in the ‘name’ as given therein, this Court is not at all impressed with the same, as no case has been built up in this regard. There is absolutely no such plea for the appellants, either before the Tribunal or even in the memorandum of appeal and no ground has been raised in this regard. On the other hand, Ext.P1 clearly shows that an extent of 47.96 acres of land in survey No. 685 of Tariyode village stood MFA No.156 of 2004 7 exempted and that there was no land to surrender in the said case. 8. In the above facts and circumstances, the finding and reasoning given by the Tribunal in the impugned common order are very much in conformity with the actual facts and figures and it is not assailable under any circumstance. The appeal fails and it is dismissed accordingly. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc