IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN &

THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 7^TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946 MFA (FOREST) NO. 52 OF 2019 AGAINST THE ORDER DATED 26.09.2018 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.

M.F.A.(Forest) No.52 of 2019

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 FINAL HEARING ON 07.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ.

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Dated this the 7^th 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 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 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 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 S