- (1.)The Forest Tribunal, Palakkad allowed O.A. Nos. 37, 38, 39, 40 and 41 of 1982 holding that the respondents could not establish that the lands scheduled in the Original Applications form part of private forests coming within the purview of Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act 26 of 1971). The appeal by the State and Custodian of Vested Forests is against the common order of the Forest Tribunal in the aforesaid original applications which were filed under S.8 of the Act. Altogether 37.81 acres of land has been declared as not vested forests whereby allowing the original applications. Contention of the appellants (respondents in the original applications) is that the properties scheduled in the original applications are private forests to which the provisions of the Madras Preservation of Private Forests Act, 1949 applied immediately prior to the commencement of the Kerala Private Forests (Vesting and Assignment) Act, and as such the applicants cannot claim exemption from the vesting under the Act.
(2.)The question that has been referred to this court is whether it is for the State to prove that a particular land is vested forest or it is for the applicants to prove that the land in dispute is not a vested forest. Contention of the State is that the properties scheduled in the original applications are forest lands with spontaneous growth and shrub jungle and that they were never brought under cultivation.
(3.)Learned Government Pleader submitted that respondents could not have proved a negative fact and as the applicants have to establish their case to get exemption from the vesting under the Act, it is upon them to establish their contention that the properties are not private forests. Government Pleader also submitted that the finding of the Tribunal that the areas involved do not form part of the Kottamala Malavaram having an extent of 93.5 hecters (250 Acres) and that they do not come within the purview of the M.P.P.F. Act is erroneous and unsustainable.
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