Mere Testimony Of Party Seeking Exemption U/S 3(2) Kerala Private Forest Act Insufficient To Establish That Disputed Property Was Cultivated: High Court

The Kerala High Court on Thursday held that testimony alone, of an interested party seeking exemption under Section 3(2) of Kerala Private Forest (Vesting and Assignments) Act, 1971, is not sufficient to establish that the disputed property was cultivated during a particular time.

The Act prescribes that the ownership and possession of all private forests in the state of Kerala shall stand transferred to and be vested in the Government. Section 3(2) however is an exemption clause for land comprised in private forests held by an owner under his personal cultivation.

A Division Bench consisting of Justice K. Vinod Chandran and Justice C. Jayachandran observed that grant of exemption under Section 3(2) of the Act taking stock of the applicant's case/claim only, without referring to any evidence in support thereof, is perverse and unsustainable in law.

"Adequate evidence could have been adduced by examining a labourer, who had performed some work in the subject property, in connection with the cultivation claimed. Evidence could also have been led in the form of any agricultural income tax paid or such other records indicating cultivation..."

The Court also made it clear that the state of affairs as on the cut off date should indicate, by the yardstick of preponderance of probability, that the land in question was in the cultivation of the applicant; however, the scope and ambit of the expression 'cultivation' as employed in Section 3(2) of the Act is not the same as 'spontaneous/natural growth'.

It held,

"The term 'cultivation' implies a systematic agricultural or farming activity, including tilling of the soil, sowing seeds of the particular crop, nurturing the same by supplying water, fertilizers, if any, required etc., until the crops are grown to such extent, so as to reap the produce. In the context of evidence, materials in individual support of the above facets of cultivation may not be possible/feasible."

The Court was dealing with State's appeal against an order passed by Forest Tribunal, Kozhikode which though held that the disputed property is a private forest, which vests with the Government, but also granted exemption in favour of the Respondent (original applicant) under Section 3(2) of the Act.

Special Government Pleader (Forest), Advocate Nagaraj Narayanan, averred that the impugned order is a non-speaking one and no reason other than a bald statement that the father of the respondent was cultivating in the property was given in the order. He further relied on a number of Kerala High Court decisions to contend that the burden of proof is on the respondent to prove that the cultivation in the subject property was produced by the applicant.

On the contrary, the Counsel appearing for the respondent, Advocate Mohanakannan, pointed out that there was a specific pleading in the Original Application regarding the cultivation made by the applicant's father after purchasing the disputed property in 1961.

It is shocking to note, remarked the Court, as no reason is stated in the impugned order to find the applicant is entitled to the exemption under Section 3(2) of the Act. 

After considering the contentions raised by Counsels and pursuing the impugned order, the Court sided with the contentions raised by the Special Government Pleader that granting an exemption under Section 3(2) of the Act relying on just the claim made by the applicant without referring to any evidence is unsustainable in law.

We find that the grant of exemption under Section 3(2) of the Act taking stock of the applicant's case/claim only, without referring to any evidence in support thereof, is perverse and unsustainable in law.

In the instant case, the Court observed that the spontaneous/ natural growth of 6 to 7 tamarind trees or 3 chadachikora trees doesn't fulfil the requirement provided under the Act to hold that the land in question was held by the applicant as the owner under his personal cultivation. 

Furthermore, the Court observed that for a claim under Section 3(3) of the Act, the intention for cultivation is relevant with respect to the time of purchase/transfer of the property by virtue of a registered deed.

Such intention to cultivate harbored by the purchaser/assignee/lessee should be translated into action within a reasonable time from the date of execution of the registered deed and some acts in furtherance of cultivation should have been done, observed the Court. 

On facts, the Court observed that since the applicant failed to establish any cultivation on the disputed property, then in such circumstance, any intention of the applicant's father in the year 1961 to cultivate the property would pale into significance, in consideration with the fact that no act in furtherance of such intention is established in evidence. 

Furthermore, the requirement under Section 3(1) of the Act, for holding the property under a valid registered document is not satisfied as per section 3(1) of the MPPF Act, alienation of a private forest by way of sale, mortgage, lease or otherwise without the previous sanction of the District Collector is null and void. here the applicant has no case that the disputed property was purchased with sanction of the District Collector. 

The Court thereby allowed the appeal, setting aside the impugned order. 

Case Title: State of Kerala & Anr. v. Veluswamy & Ors. 

Citation: 2022 LiveLaw (Ker) 517

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