Kerala High Court
State Of Kerala vs K.C.Purushothaman on 7 January, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:635
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
MFA (FOREST) NO. 52 OF 2019
AGAINST THE ORDER DATED 29.09.2018 IN OA NO.20 OF 2010 OF
FOREST TRIBUNAL, KOZHIKODE
APPELLANTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO THE
GOVERNMENT OF KERALA,THIRUVANANTHAPURAM.
2 CUSTODIAN OF VESTED FORESTS,
ARANYA BHAVAN,FOREST COMPLEX,OLAVAKKOD,PALAKKAD.
BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST
RESPONDENT/APPLICANT/ADDITIONAL RESPONDENTS:
1 K.C.PURUSHOTHAMAN (DIED)
S/O CHELLAN,KALTHUR HOUSE, THONDARNAD AMSOM,DESOM,
MATTILAYAM.P.O,VELLMUNDA(VIA),
MANANTHAVADY,WAYANAD DISTRICT-670731.
2025:KER:635
M.F.A.(Forest) No.52 of 2019
-: 2 :-
2 T.M.VIJAYA BHARATHI
W/O.LATE K.C.PURUSHOTHAMAN, KALATHOOR,198,
NIRAVILPUZHA,THONDERNAD VILLAGE,
MATTILAYAM .PO.,WAYANAD
3 ARUN GOUDAM.P
S/O.LATE K.C.PURUSHOTHAMAN , KALATHOOR ,198,
NIRAVILPUZHA ,THONDERNAD
VILLAGE,MATTILAYAM.P,O,WAYANAD
4 ASHIN GOUTHAM.P ,
S/O.LATE K.C.PURUSHOTHAMAN,KALATHOOR ,198
NIRAVILPUZHA ,THONDERNAD VILLAGE
MATTILAYAM.PO, WAYANAD.
BY ADV ATHIRA A.MENON
THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON
07.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ.
= = = = = = = = = = = = = = = = = =
M.F.A. (Forest) No.52 of 2019
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Dated this the 7th day of January, 2025
JUDGMENT
Sathish Ninan, J.
The State is in appeal challenging the order of the
Forest Tribunal, declaring the OA schedule property as
not a private forest under the Kerala Private Forests
(Vesting and Assignment) Act, 1971 (hereinafter referred
to as "the Vesting Act") and further that, if at all it
is a vested forest, the applicant is entitled for
exemption under Section 3 (2) of the Vesting Act.
2. The OA schedule property has an extent of 5
acres. The applicant claims to have obtained the
property under Ext.A1 Marupattam Deed in the year 1963.
The applicant claims that the property has ever since
been under cultivation with various crops. It was
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contended that the Madras Preservation of Private
Forests Act, 1949 (MPPF Act) did not apply to the
property since it does not lie contiguous to any forest
land. It was also claimed that the property is liable to
be excluded under Section 2(f)(1)(i) of the Vesting Act.
Further, the benefit under Section 3 (2) of the Act was
claimed.
3. The claim of the applicant was denied by the
respondents by filing a counter statement.
4. The OA was originally allowed by the Tribunal
as per the order dated 25.06.2014, holding that the
property is not a private forest. On appeal by the State
as M.F.A. No.128 of 2014, this Court set aside the
judgment and remanded back the matter to the Tribunal
for fresh disposal. It is thereafter that the present
impugned order has been passed.
5. We have heard Shri.Nagaraj Narayanan, the
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learned Special Government Pleader (Forest) on behalf of
the appellant and Shri.V.V. Surendran and Smt.Athira A.
Menon, the learned counsel on behalf of the respondent.
6. Ext.B1 is the notification, which includes the
O.A. schedule property. The claim of the applicant is
that the property is not a private forest for the reason
that the MPPF Act does not apply and also that the
property is liable to be excluded in terms of clauses A,
B, C and D of Section 2(f)(1)(i) of the Vesting Act. Law
is well settled that the burden is on the applicant to
prove that the property is not a vested forest. [see: State
of Kerala v. Balagopal [1986 KLT SN 17]; State of Kerala v. Kunhiraman
[1990 (1) KLT 382]; State of Kerala v. Chandralekha [1995 (2) KLT 152
(F.B.)]; and State of Kerala and another v. Popular Estates and another
[(2004) 12 SCC 434].
7. A reading of the impugned order shows that the
Tribunal has proceeded as if the burden is on the
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respondent to prove the necessary ingredients to attract
the provisions of the MPPF Act and also the Vesting Act.
The Tribunal held, "a distinct understanding of Section
2(f)(1) and 2(f)(1)(i) of the vesting Act leads to
hypothesis that there is an initial burden on the
respondent department to prove the conditions mentioned
in Section 2(f)(1) and 2(f)(1)(i). Then only the
applicant is bound to plead and prove "exclusions" as
contemplated under last word in Section 2(f)(1)(i) of
the Vesting Act". Therefore, the entire process of
analysis of the materials by the Tribunal was erroneous.
The Tribunal held that the State has failed to prove
that the MPPF Act applied to the application of the
schedule property and hence it is not a private forest
under the Vesting Act. The finding is to be set aside
and we do so.
8. The claim of exclusion under clauses A, B, C
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and D of Section 2(f)(1)(i) of the Vesting Act was held
to have been not proved by the applicant. However, the
Tribunal proceeded to find that the applicant is
entitled for the benefit of exemption under Section 3(2)
of the Vesting Act. To hold so, the Tribunal has relied
on the payment of basic tax by the applicant and also
the fact that the property was covered with lemon grass.
We find that the Tribunal has failed to consider the
crucial issue as to whether as on the appointed day
namely, 10.05.1971, the property was under cultivation,
which alone would qualify for exemption under Section
3(2) of the Vesting Act. Therefore, the finding of the
Tribunal that the applicant is entitled for benefit
under Section 3(2) of the Act is also liable to be set
aside and we do so. Considering the fact that a totally
erroneous approach was adopted by the Tribunal in
disposing of the OA, including on the issue of burden of
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proof, we are of the opinion that an opportunity could
be granted to the applicant to establish his case. The
parties could be afforded opportunity to adduce further
evidence.
9. Resultantly, the order impugned is set aside
and the matter is remanded back to the Tribunal for
disposal de novo.
The parties to appear before the Tribunal on
16.01.2025.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
yd
