SULOCHANA Vs. STATE OF KERALA

JUDGEMENT

(1.) A concluded issue as regards burden of proof under the Kerala Private Forests (Vesting and Assignment) Act, 1971 ['Vesting Act', for short] has been raked up in this appeal. In the order impugned, the Tribunal, relying upon a Bench decision of this Court in State of Kerala v. Kunhiraman [1990(1) KLT 382], casts the burden on the applicants to prove that the petition schedule property is not a private forest as on 10/5/1971, which proposition requires a re-look is the submission of the learned counsel for the appellant. In this regard, learned counsel relied upon the following two unreported Bench decisions of this Court:

(2.) Heard Sri.V.V.Surendran, learned counsel for the appellants and Sri.Nagaraj Narayanan, learned Special Government Pleader [Forests]. Learned Special Government Pleader relied upon one unreported Bench decision of this Court, a Full Bench decision and also a judgment of the Honourable Supreme Court to oppose the proposition regarding burden of proof canvassed by the learned counsel for the appellant, to which, detailed reference will be made herein below.

(3.) We will first address the legal issue raised. Of the decisions placed before us, the first in point of time is an unreported Bench decision of this Court dtd. 10/1/1986 in State of Kerala v. Balagopalan [M.F.A. 12/1980 dtd. 10/1/1986], relied on by the learned Special Government Pleader. In terms of Sec. 8(3) of the Act, the Division Bench held thatthe one who put forward a claim that the property in question is not a private forest, or that it stands excluded by virtue of the provisions of the Act, should establish such claim, thus casting the burden squarely on the claimant [see paragraph no.11 of the judgment].