Kerala High Court
Mrs. K.C.Padmakshy vs State Of Kerala - Notice For Whom May on 22 June, 2012
Bench: Thottathil B.Radhakrishnan, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 22ND DAY OF JUNE 2012/1ST ASHADHA 1934
MFA.No. 162 of 2011 ( )
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OA.11/2000 of FOREST TRIBUNAL, KOZHIKODE
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APPELLANT(S)/APPELLANT:
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MRS. K.C.PADMAKSHY, D/O. BHARGAVI AMMA,
KOCHINGAM PARAMBIL HOUSE, THEKKENARIYAD VILLAGE
AMBALAPUZHA TALUK, ALLEPPEY DISTRICT, REP. BY P/A
HOLDER SRI. KANNAN, S/O. MUTHU, THONIPPALLAM(H)
PULLADI KALAM, MANHAPRA P.O., ALATHUR TALUK, PALAKKAD DIST.
BY ADVS.SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
SRI.T.SETHUMADHAVAN
SRI.PUSHPARAJAN KODOTH
SRI.K.JAYESH MOHANKUMAR
SMT.VANDANA MENON
SMT.ANJU P.NAIR
RESPONDENT(S)/RESPONDENTS:
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1. STATE OF KERALA - NOTICE FOR WHOM MAY
BE SERVED ON THE CHIEF SECRETARY, GOVT. OF, KERALA
THIRUVANANTHAPURAM.
2. THE CUSTODIAN OF VESTED FORESTS,
OLAVAKKODE, PALAKKAD DISTRICT.
BY SPL.GOVT PLEADER SRI.M.P.MADHAVANKUTTY
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON
15-06-2012, THE COURT ON 22/06/2012 DELIVERED THE FOLLOWING:
tss
Thottathil B.Radhakrishnan
&
K.Vinod Chandran, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = M.F.A.No.162 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of June, 2012.
Judgment Thottathil B.Radhakrishnan, J.
1.This appeal is against an order passed by the Forest Tribunal adjudicating an application under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The applicant is the appellant.
2.The claim petition was initially dismissed. That led to M.F.A.No.928 of 2011. The matter was remitted to consider the question whether the petition schedule property was, in fact, cultivated with cardamom as contended by the appellant because the fact that she had title to the property was established by documents. The question that had to be thereafter considered was whether "there was personal cultivation by the MFA162/11 -: 2 :- appellant".
3.Following that remand, P.W.1 was examined on behalf of the applicant. R.W.1 was examined on behalf of the establishment. The claim was again dismissed. That led to MFA.No.11 of 2005 by the applicant. In that appeal, reference was made to the Commissioner's report and the applicant sought for an opportunity to adduce better evidence in the wake of the fact that P.W.1's evidence was wholly insufficient as he was a young boy at the relevant time.
4.Ultimately, the applicant gave evidence as P.W.2 and her power of attorney holder was examined as P.W.3. The evidence of another forest officer was also recorded as R.W.2. By the impugned order, the Tribunal held that the evidence tendered after remand does not, in any manner, lead to the finding that the appellant is entitled to the reliefs sought for by her. The deposition of the appellant as P.W.2 and the testimony of her power of attorney holder as P.W.3 were considered and it was held MFA162/11 -: 3 :- that the appellant is not entitled to the benefit of either among sub-sections 2 or 3 of section 3 of the Act. This is under challenge.
5.The learned counsel for the appellant, also citing the decision in Joseph v. State of Kerala [2007(3) KLT 144(SC)] and that in Parameswara Sastrigal v. State of Kerala [2008(2) KLT 461(FB)], argued that the Tribunal having found in this round that the applicant has established that she was the owner of the property under a registered document of title and she had the intention of cultivating the same as on the appointed day, her claim ought to have been allowed at least to the extent that could be held by a family in terms of the provisions of the Kerala Land Reforms Act, 1963 and therefore, the exemption to the extent available in Section 3(3) of the Act ought to have been granted and the Tribunal's view that the applicant failed to prove that the total extent of land held by her is within the ceiling limit as applicable to her under Section 82 of the Kerala Land Reforms Act. MFA162/11 -: 4 :-
6.Per contra, the learned Special Government Pleader for Forest Department argued that the finding in the impugned order that the applicant had intention to cultivate as on the appointed day is unsustainable and the question of giving her the benefit of Section 3(3) does not arise on the materials on record.
7.Before proceeding further, we may recall that the initial order of remit was extended to prove that the applicant held the lands under her personal cultivation. Obviously, the claim then was sought to be sustained on the basis of sub-section 2 of section 3. The second order of remand was made because the evidence tendered through P.W.1 who was hardly 14 or 15 years of age at the relevant time, was insufficient to speak about the state of affairs. After that remand, the applicant tendered evidence as P.W.2. Her power of attorney holder was examined as P.W.3.
8.Since the impugned order is one dismissing the claim of the applicant, the State is entitled to MFA162/11 -: 5 :- object to the findings contained in that order, to the extent it is against its interest, while answering the appeal filed by the applicant. For that reason, we need to examine all the relevant issues.
9.Ext.A1 deed in favour of the applicant was obtained on 1st February, 1969. The appointed day for the purpose of vesting in terms of the Act is 10.5.1971. It appears from Ext.A1 that the intention stated therein is to plant rubber. It would appear that the land was earlier in the possession of the applicant's husband and it is following that, the sale was taken on 1.2.1969 after his demise in 1966. The testimony of the applicant as P.W.2 even with corroboration by the testimony of her son P.W.1 would clearly show that there is no evidence of activity of cultivation at any time before or after Ext.A1 sale deed or on the appointed day. It was some time long thereafter, that is to say, in 1996, that P.W.1, the son of the applicant went over to the property and thereafter, was allegedly obstructed by the forest officials. MFA162/11 -: 6 :- It was only in 1995 that the original application, O.A.No.67 of 1995 was filed. That original application was, ultimately, dismissed for default on 16.2.1998 after an order of remand. It was thereafter that P.W.3 was brought in as the power of attorney holder by executing the power of attorney on the strength of which, the present original application was filed. The testimony of the applicant as P.W.2 contains no material to hold that there was any intention for cultivation that is even shown to have existed at least on the basis of probable inferences. The testimony of the power of attorney holder as P.W.3 is mere hearsay and he had no opportunity to meddle with the affairs of the property at any time. Nothing is on record to show that he was entrusted even to take care of the property. Now, in Ext.A1 document of sale dated 1.2.1969, the intention that is expressed is to cultivate rubber and convert into a rubber plantation. Cardamom cultivation was carried out on that land earlier and that was turning to be a loss. When the Commissioner visited the property on 29.11.2003, he did not notice any rubber plant but MFA162/11 -: 7 :- only cardamom plants and wild trees. Those plants, as stated by the Commissioner, could have been those which were planted and not mere natural and wild sprouts. At the same time, there is no shred of material to evidence any cultivation of cardamom by the applicant either by herself or through her son or through any other person, including the power of attorney holder.
10.The learned Special Government Pleader referred to the judgment of this Court in M.F.A.No.78 of 1983 dilating on the scope of the provisions in section 3. Sub-section 2 of section 3 refers to "personal cultivation". No evidence of that being available on record, the argument is that the applicant, who owned the private forests in question under a valid registered document, had the intention to cultivate, as on the appointed day. We look at that issue, reminding ourselves of the principles in Joseph's case (supra). If the purpose of Ext.A1 is followed, outright it can be seen that there is no case even of any rubber sapling having been planted. There is no case of any continued MFA162/11 -: 8 :- cultivation of cardamom. There is no shred of legal evidence to hold so. If it is assumed that there is continued cultivation of cardamom, that too, in a large extent of 100 acres or even a lesser extent of 20 acres (that being the limit available if the applicant is restricted to be with reference to the KLR Act), no material is placed to disclose the agricultural activity in relation to cardamom. There is nothing to show any agricultural activity having been initiated by the applicant, her husband or her children. No returns under Agricultural Income Tax Act are produced. Cardamom cultivation of such nature could be registered. Even if it is not, the usual course of business of running a cultivation of the extent of 100 acres or even 20 acres could be reflected by accounts maintained by the applicant. Even if she was getting it done through somebody else, including a karyasthan (Manager) as P.W.3 may claim to be, maintenance of accounts and availability of such material would be there. No such materials being available, we are unable to sustain the findings which are rendered in favour of the applicant by the Tribunal in the MFA162/11 -: 9 :- impugned order.
11.Following the aforesaid, even if we are to hold that the limit available under the provisions of the KLR Act would be 20 acres, we see no foundation to issue any order in favour of the appealing applicant, since the basic ingredients for exemption in terms of the Vesting Act are not substantiated.
In the result, the appeal fails. The same is accordingly dismissed. No costs.
Thottathil B.Radhakrishnan, Judge.
K.Vinod Chandran, Judge.
Sha/210612