Full Judgment
MFA No. 143 of 2007 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.HARIPRASAD & THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942 MFA.No.143 OF 2007 AGAINST THE ORDER/JUDGMENT IN OA 9/2006 DATED 30-04-2007 OF FOREST TRIBUNAL, KOZHIKODE APPELLANT/S: 1 THE STATE OF KERALA PRINCIPAL SECRETARY, (FORESTS & WILDLIFE), THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT. BY ADVS. GOVERNMENT PLEADER SRI.NAGARAJ NARAYANAN SPL.G.P. FORESTS SRI.NAGARAJ NARAYANANSPL.GOVT.PLEADERFOREST SRI.NAGARAJ NARAYANAN SPL. G.P. FOR FOREST
RESPONDENT/S: GOPALAN KONGAMPADAM HOUSE,CHULLIMADA,KANJIKODE P.O. R1 BY ADV. SRI.K.P.BALAGOPAL THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ ------------------------------------------------- M.F.A. (Forest) No. 143 of 2007 -------------------------------- Dated this the 24th day of February, 2021
JUDGMENT
P.V.Kunhikrishnan, J.
This appeal is filed by the respondents in OA No.9/2006 on
the file of the Forest Tribunal, Kozhikode. The above original application was filed by the respondent in this appeal under Sec. 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short 'the Vesting Act'). The reliefs sought for in the petition is a declaration that the petition schedule property is not a private forest within the definition under the Vesting Act and exemption is also claimed under Sec.3(2) and (3) of the Vesting Act. Hereinafter the parties are mentioned in accordance to their rank before the Tribunal.
2. The petition schedule property is shown as 4 acres of land comprised in R.Sy. No.287/4 of Pudussery Central Village, Palakkad district. The corresponding old survey number is shown as 1007/1.
3. According to the applicant, the petition schedule MFA No. 143 of 2007 3
property originally belonged in jenm to Vadassery tharawad. One Easwara Iyer obtained a leasehold right in it. He sold his right in the property to Bhageerathy Ammal in 1961 and she sold it to the petitioner in 1968. Petitioner obtained a certificate of purchase from the Land Tribunal in 1973. According to the applicant, he was in possession of the petition schedule property since 1968. The applicant contended that he cultivated seasonal cultivations such as groundnut etc. in the property. According to the applicant, since the major portion of the property is a rocky area, the applicant commenced quarrying operations in 2000. But the forest officials obstructed the quarrying operations on 2.5.06. The applicant contended that they have no right to do so and the petition schedule property was never a forest and it has no characteristics of a forest. The property was not under the purview of the MPFF Act. The applicant contended that he is not in possession of the land exceeding the ceiling limit.
4. The respondents filed a counter, in which they contended that the petition schedule property is part of the vested forest, coming under VFC, item No.218 of notification MFA No. 143 of 2007 4 No.1383/77 dated 10.10.1979. According to the respondents, the disputed property is part of 37.0853 hectares of vested forest
lying in Komuttychalla malavaram. According to the respondents, the disputed property was comprised in old survey No. 1007/1. The respondents contended that the land in the said survey number was further sub divided and the petition schedule property comes within survey No.1007/8. It is the specific case of the respondents that Bhageerathy Ammal had no right in the disputed property to sell it to the applicant. The respondents contended that the Land Tribunal had no authority to issue a certificate of purchase for forest land. It is the specific case of the respondents that the vested forest in V.F.C item No.218 consists of rocky areas and also areas having secondary growth of forest species. The contention of respondents is that the applicant
trespassed into the vested forest and started quarrying operations which were prevented by the forest officials when it came to their notice. This is the sum and substance of the contentions of the respondents.
5. To prove the case, PW1 and PW2 were examined on the MFA No. 143 of 2007 5
side of the applicant and Exts. A1 to A7 were also marked. RW1 is the witness examined on the side of the respondents. Exts.B1 and B2 are the exhibits marked on the side of the respondents. Exts.C1 and C2 are the commission report and survey plan. After going through the evidence and the documents, the Tribunal allowed the petition and declared that the petition schedule property did not vest in Government as it was not a private forest as on the date of the appointed day. Aggrieved by the above order, this appeal is filed by the respondents-State.
6. Heard the Special Government Pleader for forest and the counsel for the respondent/applicant.
7. The Special Government Pleader submitted that the
findings of the Tribunal are not correct. The Special Government Pleader submitted that the appellants filed I.A.No.4520/2016 under Order XLI Rule 27 Code of Civil Procedure to accept additional documents. According to the Government Pleader, in the light of Annexure-A1 and Annexure-A2 produced along with the above application, it is clear that the petition schedule property is vested with the Government. The learned Special
MFA No. 143 of 2007 6 Government Pleader submitted that the order passed by the Tribunal is without considering the available oral and documentary evidence.
8. The counsel for the respondent/applicant submitted
that the Tribunal after considering the entire oral and documentary evidence allowed the original application and there is nothing to interfere with the impugned order.
9. The first point to be considered is whether the petition
schedule property is private forest as defined in Sec. 2(f)(1)(i) of the Vesting Act. Sec. 2(f)(1) of the Vesting Act is attracted only if the erstwhile Madras Preservation of Private Forest Act, 1949 (for short 'MPPF Act') applied to the disputed property immediately before the appointed day as per the Act, 1971. As per Sec.1(2)(i) of MPPF Act, it applies to the private forest in the districts of Malabar and South Kanara having a contiguous area exceeding 100 acres. The respondents contended that the disputed property is comprised in V.F.C. item No. 218 of Ext.B1 notification. The total extent of land shown as vested forest under V.F.C. item No.218 in Ext.B1 is only 37.0853 hectares. So, it is clear that the
MFA No. 143 of 2007 7
total extent of land shown as forest in V.F.C item No. 218 is far below 100 acres, and therefore, MPPF Act could not have had any application to disputed property, even if it was included in Ext.B1 notification. The applicant clearly stated in his petition that the MPPF Act is not applicable to the disputed property. The said averment was not denied in the counter affidavit. Since there is no such denial it was not necessary for PW1 to depose that the MPPF Act did not apply to the disputed property. There is no case for the respondent even at the time of cross-examining PW1 that the MPPF Act applied to the disputed property. Similarly, Forest Range Officer who was examined as RW1 also did not say in his chief examination that MPPF Act applied to the disputed property. In his cross examination, he submitted that he was unaware whether MPPF Act applied to the disputed land. In the light of the above evidence, the only conclusion that is possible is that the MPPF Act did not apply to the disputed property immediately before the appointed day. Therefore, the petition schedule property was not a private forest within the meaning of Sec. 2(f) (1)(i) of the Vesting Act.
MFA No. 143 of 2007 8
10. According to Sec.2(f)(1)(ii) of the Vesting Act, private
forest means any forest not owned by the Government to which MPPF Act did not apply including wastelands which are enclaves within wooded areas. The petitioner purchased 5 items of properties under the original of Ext.A6 from Bhageerathy Ammal. Exts. A6 is dated 15.3.1968, which is long before the appointed day as per the Vesting Act, 1971. As per the recitals in Ext.A6, the properties sold thereunder were held under lease. The liability to pay rent in kind is recited. The Tribunal concluded that, it cannot be said that the properties were taken on lease with the liability to pay rent to keep them without any cultivation. In such circumstances, the Tribunal after going through the contents in Ext.A6 concluded that the properties sold under it were not forest land, but lands held under cultivation. Item No.5 in Ext.A6 is the petition schedule property. The Tribunal found that Ext.A6 suggests that the said property was not a forest when it was sold in 1968. We find no reason to interfere with the above finding of fact by the Tribunal based on the available evidence.
11. Moreover, the evidence of PW1 was also considered by MFA No. 143 of 2007 9
the Tribunal in length. After appreciating the evidence of PW1 and PW2, the Tribunal found that their evidence can be accepted in view of Ext.A6 executed long before the appointed day. The Tribunal accepted the assertion of PW1 that the disputed property was never a forest because, according to the Tribunal, the petitioner produced sufficient and satisfactory evidence to prove that the disputed property was not a forest.
12. RW1, Forest Range Officer deposed that the disputed property is having secondary growth of forest species like maruthu, chadachi, teak, dendapala, manjapavatta, aaval,
karinjali, venteak, karimaram, ennakkara etc. But in Ext.C1 report of the Commissioner, no such forest species was found by the Commissioner. The Commissioner has only seen a few shrubs and bushes. According to RW1, there was no cultivation in the disputed property as the land was incapable of cultivation. The Tribunal disbelieved his evidence because he is a person aged 36 years and may not have direct knowledge about the state of affairs as on 1971. We see no reason to interfere with the above finding. The shrubs and bushes seen by the Commissioner were
MFA No. 143 of 2007 10 relied on by the Tribunal to show that there is soil even now in a portion of the disputed property. Hence, the contention of the respondent and evidence of RW1 was rejected by the Tribunal. We see no reason to interfere with the above finding of fact by the Tribunal.
13. Admittedly, as per Ext.B1 notification, only survey No.
property was admittedly 1007/1. Based on Annexures-A1 and A2 produced along with I.A.No.4520/2016, the learned Government Pleader tried to establish his case. But, the Tribunal rejected the same contention observing that no document was produced to prove such division. Now, at the belated stage, the appellants are trying to produce certain documents under Order XLI Rule 27 CPC. The Apex Court recently in the judgment dated 12.2.2021 in Civil Appeal No.1844/2010 and Civil Appeal No.1845/2010 [Reported in LL 2021 SC 84] observed that as per the provisions of the Order XLI, the appellate court may permit additional
evidence to be produced whether oral or documentary, if the conditions mentioned in Order XLI Rule 27 are satisfied. The MFA No. 143 of 2007 11 relevant portion of the judgment is extracted hereunder :
“10.1 Even otherwise, it is required to be noted that as per the provisions of Order XLI, the appellate court may permit additional evidence to be produced whether oral or documentary, if the conditions mentioned in Order XLI Rule 27 are satisfied after the additional evidence is permitted to be produced in exercise of powers under Order XLI Rule 27. Thereafter, the procedure under
Order XLI Rules 28 and 29 is required to be followed. Therefore,
unless and until the procedure under Order XLI Rules 27, 28 and 29 are followed, the parties to the appeal cannot be permitted to lead additional evidence and/or the appellate court is not justified to direct the court from whose decree the appeal is preferred or any other subordinate court, to take such evidence and to send it when taken to the Appellate Court. From the material produced on record, it appears that the said procedure has not been followed by the High Court while calling for the report from the learned Principal City Civil Judge.”
14. In the light of the above judgment of the Apex Court,
we are not in a position to accept the additional documents produced by the appellants. Moreover, even if those documents produced along with I.A.No.4520/2016 are accepted, it will not improve the case of the appellants in the facts and circumstances of this case. The exemption claimed under Sec. 3(2) or Sec. 3(3) of the Vesting Act can be considered only if the disputed property was a private forest as on the appointed day. It is proved that it was not so. In such circumstances, that question also does not arise. The Tribunal after considering the entire oral and
MFA No. 143 of 2007 12 documentary evidence allowed the original petition. We see no reason to interfere with the order passed by the Tribunal. Accordingly, this MFA is dismissed. All pending interlocutory orders are dismissed. sd/- A.HARIPRASAD JUDGE sd/- P.V.KUNHIKRISHNAN JUDGE SKS