STATE OF KERALA Vs. VELUSWAMY

JUDGEMENT

(1.) The State, as well as, the Custodian of the vested forest, Palakkad are the appellants in this Miscellaneous First Appeal. The order under challenge is the one passed by the Forest Tribunal, Kozhikode dtd. 17/12/2003 in O.A.No.25 of 2001. The sole respondent herein preferred the Original Application under Sec. 8 of the Kerala Private Forest (Vesting and Assignments) Act, 1971 for a declaration that the property scheduled therein is not a private forest and not vested in the Government; and in the alternative, for exemption under Ss. 3(2) and 3(3) of the Act. By the impugned order, the Tribunal found that the disputed property is a private forest, which vests with the Government. However, the Tribunal also found that the applicant is entitled to exemption under Sec. 3(2) of the Act.

(2.) Heard Sri.Nagaraj Narayanan, learned Special Government Pleader (Forest) and Sri. Mohanakannan, learned counsel for the respondent. Perused the records.

(3.) Learned Special Government Pleader submitted that the order under challenge is a non speaking one. No reason other than a bald statement that the father of PW1 was cultivating the property - a self serving statement - is seen reckoned in the impugned order to find that the applicant is entitled to exemption under Sec. 3(2) of the Act. Learned Special Government Pleader submitted that, all what is available in the property is 7 tamarind trees and 3 Chadachikora trees, the former aged between 50 - 60 years and latter between 30-35 years. The Commissioner found that, there are no signs of any cultivation in the property. This has been taken judicial note of in paragraph no.10 of the impugned order. However, in disregard of the above referred circumstances, the Tribunal, without stating any reason, found that the applicant is entitled for the exemption. It is also pointed out that, no record, whatsoever, to show the cultivation in the subject property was produced by the applicant, albeit his version in cross examination that, he is possessed of such records. Learned Special Government Pleader emphatically stressed on the burden of proof to pin point that the same unequivocally is on the applicant only, in support of which proposition, he relied upon the following decisions: