Holding

The appellant failed to establish that the land was principally used for rubber plantation; consequently, the land remains a private forest and vests in the State.

Summary

The appellant claimed ownership of 17.74 acres in Alathur Taluk, asserting that the land was a rubber plantation and therefore exempt from vesting under the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Forest Tribunal initially held the land was not a private forest, but after a remand the Tribunal again declared it a rubber estate. The High Court set aside that finding, holding that the appellant had not proved the land was principally used for rubber cultivation and that the burden of proof lay on her. The State argued that the land remained a private forest and that the Thaluka Land Board order under the Land Reforms Act was not binding on the Forest Act authorities. The Supreme Court affirmed the High Court’s view, finding no evidence of continuous rubber cultivation and concluding that the appellant failed to meet the burden of proof, so the land vests in the State. The appeal was dismissed without costs.

Issues considered

Whether the land in question qualifies as a 'private forest' under the Kerala Private Forests (Vesting and Assignment) Act, 1971.
Whether the appellant discharged the burden of proving that the land was principally used for rubber plantation, thereby qualifying for exemption.
Whether an order of the Thaluka Land Board under the Kerala Land Reforms Act binds the authorities administering the Forest Act.

Legislation cited

Subjects

private forestvestingexemptionrubber plantationburden of proofland reformsforest law

Judgment

KUNJANAM ANTONY (DEAD) BY LR5. A
v.
STATE OF KERALA AND ANR.

FEBRUARY 6, 2003

[SYED SHAH MOHAMMED QUADRI AND ASHOK BHAN, JJ.] B

Kera/a "Private Forests (Vesting and Assignment) Act, 1971:

Ss. 2/( /)((i)(B) and 3-Private forest-Vesting of in State-Appellant's
claim for exclusion from vesting of in State certain land allegedly used C
principally for cultivation of rubber plantation-Rejected by High Court-
Held, High Court is right in holding that the burden of showing that the land
was not a private forest was on the appellant and the appellant had failed to
establish her claim-The material on record indicates that the appellant has
been cultivating topioca-There is also nothing on record to show that absence D
ofrubber plantation was for short period and that the land was in the process
of rubber plantation-Appellant has not established that the lands were used
Fincipally for cultivation of rubber plantation.

CIVIL APPELLATE JURJSDICTION : Civil Appeal No. 5351 of 1995.
E
From the Judgment and Order dated 03.10.1990 of the High Court of
Kerala at Ernakulam in MFA No. 513/85.

T.L.V. Iyer, and K.V. Sreekumar for the Appellants.

Ramesh Babu M.R. for the Respondents.
F
The following Order of the Court was delivered :

In this appeal, the order of a Division Bench of the High Court of
Kerala in M.F.A. No. 513of1985, dated October 3, 1990, is brought under
'· challenge. G
The proceedings arise out of the Kerala Private Forests (Vesting and
Assignment) Act, 1971 (for short, 'the Forest Act') which came into force on
May 10, 1971. Section 3 of the Forest Act is a vesting section which says,
inter alia, that notwithstanding anything contained in any other law for the

967 H
968 SUPREME COURT REPORTS rio03] I S.C.R.

A time being in force, or in any contract or other document with effect on and.
from the appointed day (10.5.1971) the ownership and possession of all
private forests in the State of Kerala shall by virtue of that Act stand transferred
to and vested in the Government free from all encumbrances, and the right,
title and interest of the owner or any other person in any private forest shall
B stand extinguished. This provision is subject to sub-section (2) and (3). of
Section 3 with which we are not concerned here.

For understanding the scope of this provision, it is necessary to examine
the definition of the expression 'private forest' in clause (t) of .Section 2 of
the Forest Act. The relevant provision of the definition reads as under:
c "(t) "p~ivate forest" means
r

(I) in relation to the Malabar district referred to in sub-section (2)
of section 5 ofthe State Reorganisation Act, 1956 (central Act 37 of + ...
1956)-

D (i) any land to which the Madras Preservation of Private Forest
Act, 1949 (Madras Act XXVll of 1949), applied immediately before
the appointed day excluding-

(A) land which are gardens or nilams as defined in the Kerala
Land Reforms Act, 1963 (I of 1964 ).
E
(B) lands which are used principally for the cultivation of tea,
coffee, cocoa, rubber, cardamon or cinnamon and lands used for any
purpose ancillary to the cultivation of such crops or for the preparation
of the same for the market."

F A plain reading of the definition, extracted above, shows, inter alia,
that if any land is under the Madras Preservation of Private Forest Act, 1949
(Madras Act 27 of 1949) before the appointed day, it would be a private
forest. from the scope of the private forest are excluded lands, inter alia,
which are used princiJally for the cultivation .of tea; coffee, cocoa, rubber,
G cardamon or cinnamon and also those lands which are used for any purpose ......
ancillary to cultivation of such crops or for preparation of the same for the
market. For exclusion of the land from the application of the Act as not being
private forest, it is not necessary that the land should be in actual cultivation
of rubber, tea, coffee, etc. at all times. It is enough to prove that it is used
principally for the· cultivation of rubber, tea, coffee, etc. There should be
H continuity in cultivation of rubber, tea, coffee, etc. to prove principal use; and
KUNJANAM ANTONY v. STATE 969
absence of cultivation for short periods due to clear felling or other ancillary A
purposes would not militate against the principal use of the land for cultivation
rubber. tea. coffee. etc.

The appellant claims to be the owner of an extelll of 17. 74 acres of land
in R.S.No.12/11 of vedakkethara village in Alathur Tal.uk (referred to as the
'disputed area') and that it contains rubber plantation therein. B
·'t On the ground that the authorities under the Forest Act were not allowing
her to enter the disputed area (17.74 acres), the appellant tiled an application
under Section 8 of the Forest Act before the Forest Tribunal for a declaration
that the said area did not vest in the State as a private forest and that it was C
a part of the rubber estate. The Forest Tribunal found that the disputed area
was not a private forest, and, accordingly, granted declaration to the appellant
holding it to be rubber plantation. That finding was challenged in the High
Court by the respondent-State. A Division Bench of the High Court deemed
it tit to remand the matter to the Forest Tribunal to enable the appellant to
lead further evidence to establish that the disputed area was principally used D
as rubber plantation. After remand, the Forest Tribunal, after giving opportunity
to the parties, came to the conclusion that the area in dispute continued to be
a· rubber estate. That finding was again challenged by the State before the
High Court in M.F.A.No.513of1985. A Division Bench of the High Court,
. .+
by order dated October 3,, 1990, set aside the finding of the Tribunal and held
that the appellant was not entitled to the exemption as the land was not E
principally used for cultivation of rubber plantation. It is this order of the
High Court which is brought under challenge in this appeal.

Mr. T.L. V. Iyer, the learned senior counsel for the appellant, has
strenuously contended that just before the vesting of the land under the Forest F
Act, proceedings were conducted under the Kerala Land Reforms Act in
which a total extent of32.74 acres of land was exempted as rubber plantation;
that order of the Thaluka Land Board had become final and would bind the
authorities under the Forest Act; therefore, the Forest Act does not apply to
the land in diSpute.
G
Mr. Ramesh Babu, learned counsel for the State, pointed out that the
appellant stated before the Tribunal, contrary to the claim for the ceiling
authorities, that the rubber plantation was destroyed by tire but no specific
date of destruction of the rubber plantation was mentioned and that when the
appellant approached the Tribunal in October 1977, no particulars of
destruction of forest by tire had been furnished. It is also brought to our H
970 SUPREME COURT REPORTS r20031 I S.C.R.

A notice that the declaration given under the Ceiling Act did not disclose any
destruction of the rubber plantation by fire; on the contrary, submitted the
learned counsel. the appellant had been cultivating tapioca in the land in
question as such. it cannot be accepted that the principal object of the appellant

B
was to cultivate the land for rubber plantation.

There can be no doubt that the order of the Thaluka Land Board, a
-
statutory authority, is binding on the authorities under the Land Reforms Act.
So far as the proceedings under the Forest Act are concerned, the order of
the Thaluka Land Board would be a piece of evidence but it cannot be treated
as a binding on the authorities under the Forest Act. Unless a contrary state
C of affairs is shown to exist, the order of the Thaluka Land Board would have
to be given due weight. From the material placed before the High Court and
also before us, it appears that there is no evidence in regard to the destruction
of the rubber plantation due to fire. There is, however, material to show that
..
the appellant has been cultivating tapioca. Further, the High Court recorded
a finding that there was no evidence indicating that the appellant had intention
D to cultivate the hmd which only meant cultivation of rubber plantation. There
is also nothing on record to show that absence of rubber plantation was for
short period and that the land was in the process of rubber plantation.

For these reasons, we are of the view that the High court is right in
holding that the burden of showing that the land was not a private forest was
E on the appellant and the appellant had failed to establish her claim.

On the above facts, we are unable to hold that the appellant established
that the lands were used principally for cultivations of rubber plantation, so,
we do not find any valid ground to interfere with the order under challenge.

F The appeal is, accordingly, dismissed but, in the circumstances of the
case, without costs.

R.P. Appeal dismissed.