IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 MFA.No. 554 of 2003() ---------------------------- OA.35/1999 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS/RESPONDENTS : ------------------------------------ 1. THE GOVERNMENT OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM 2. CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY SPL.GOVT.PLEADER RESPONDENTS/APPLICANTS : ------------------------------------ 1. RAMANKUTTY NAIR (DIED), S/O. KUNHIMALU AMMA, COMPANY EMPLOYEE, KADUNGOTH KALAM, ALANGAD, OTTAPPALAM TALUK. * 2. U.V.MADHAVIKUTTY AMMA (AGED 59), FLAT NO.R H.NO.1, DEVI CO-OP.SOCIETY LTD., SECTOR III KOPAR, KHAIRNEI-NAVI, MUMBAI. * 3. U.V.GOPALAKRISHNAN (AGED 37), P.B. NO.9022, EMERATES IRON AND STEEL CO, MUSAFA, ABUDABI. * 4. U.V.UDHAYAPRAKASAH (AGED 33), SON OF RAMANKUTTY NAIR, P.B.NO.5750, CONTECK ENGINEERING CO., DUBAI, UAE MFA.No. 554 of 2003 ADV. SMT.PREETHY KARUNAKARAN - R2,3&4 SRI.R.RAJESH KORMATH - R2,3&4 SMT.SANJANA R.NAIR - R2,3&4 SMT.M.R.MINI - R2,3&4 SRI.JAYKAR.K.S. - R2,3&4 SRI.RAHUL VARMA - R2,3&4 SRI.V.S.ROBIN - R2,3&4 * SOLE RESPONDENT DIED. ADDL.RESPONDENTS 2 TO 4 ARE INSERTED AS THE LEGAL HEIRS OF THE DECEASED SOLE RESPONDENT BY AMENDING THE CAUSE TITLE AS PER ORDER DATED 16.08.2004 ON I.A.NO.332 OF 2004. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. ------------------------------------------------------- M.F.A No. 554 of 2003 ----------------------------------- Dated this the 5th day of November, 2008 J U D G M E N T J.B.KOSHY,J . When forest officials interfered with the possession of the respondent in the petition schedule property admeasuring 58.7 cents alleging that it is a private forest vested in the Government under Section 3(1) of the Kerala Private Forest (Vesting and Assignment) Act (for short, 'the Act'), respondent approached the Forest Tribunal contending that the schedule property is not a private forest and hence it is not vested in the Government. He also contended that in any event he is entitled to the exemptions granted by Sections 3(2) and 3(3) of the Act. It is not in dispute that all private forests in the state as on 10/05/1971 automatically vest in the Government under Section 3(1) of the above Act. But the question is whether the schedule property is a private forest or not. Private forest is defined under Section 2(f) of the Act as follows: “1. in relation to the Malabar district referred to in sub-section(2) of Section 5 of the State Reorganisation Act, 1956(Central Act 37 M.A. C.A No. 554/ 2003 2 of 1956)- (i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointment day excluding- (A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963(1 of 1964): (B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom 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. Explanation:- Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops: (c)lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and (D)sites of buildings and lands appurtenant to and necessary M.A. C.A No. 554/ 2003 3 for the convenient enjoyment or use of , such buildings; (ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas. (2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas. Explanation:- For the purpose of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs:” 2. Tribunal found that in the application it was specifically pleaded that the area in question is not a forest covered by the M.P.P.F Act, 1949. That was not denied in the counter statment. Further no evidence was adduced by the appellant before the tribunal to prove the coverage of the land by M.P.P.F Act. Notification under that Act was also not produced. Even along with the appeal, no evidence is produced to show that the land was covered under M.P.P.F Act. M.A. C.A No. 554/ 2003 4 Tribunal also found on the basis of evidence that schedule property was not a forest or enclave within the wooden area. 3. It is argued by counsel for the respondent that if it is found the property is not a private forest as on 10/5/1971, subsequent abandonment of cultivation due to the forest officers interference will not make it a private forest liable for vesting, as vesting can take place depending on the conditions of the property as on 10/5/1971 as held by the apex court in Bhavani Tea Produce Co. Ltd. Vs. State of Kerala [1991(1) K.L.T 666]. The state of the property can be seen from the reports of the commissioner marked as Exts.C1 and C3. 4. Even though the appellant would contend in the counter that the three sides of the schedule property except north are vested forests, the commissioner reported that the property on the west is in the possession of one Bhargavi Amma, property on the east is the property of Kunnathmadam and that the property on the south is vested forest. On three sides of the property are private lands which are cultivated. Para 5 of Exhibit C1 says that the schedule property is terraced into five steps and the southern side is elevated. Commissioner M.A. C.A No. 554/ 2003 5 saw fencing on the north, west and east of the schedule property. According to the commissioner, the fencing on the east is damaged at many parts due to oldness. Commissioner reported seeing 40 teak trees and no other forest species. From Exhibit C1 and C3 what can be concluded is that the trees in the schedule property sprouted after 10/05/1971. There are no forest trees or remnants of forest trees grown on or before 10/05/1971. The respondent did not dispute the existence of terracing in the schedule property reported by the Commissioner, in their objection to the Commissioner's report. Cultivation and terracing in the property on 10/05/1971 shows human interference. In any event, even if it was a private forest, exemption under Section 3(3) also cannot be denied and intention to cultivate the land much before the relevant date is very clear. In this connection we also refer to the decision of apex court in Joseph Vs. State of Kerala [2007(3) K.L.T. 144]. Totality of evidence show that the schedule property was no available for vesting on 10/05/1971. It was not a forest or enclave of a wooden area on the relevant date. Considering above finding and facts, we are of the opinion that M.A. C.A No. 554/ 2003 6 schedule property is not a private forest that vested in the Government under Section 3(1) of the Act. Total extent of the land is only 58.7 cents. The object of the Act as seen from the preamble is to provide for the assignment thereof to agriculturists and agricultural labourers for cultivation. This is only a small extent of property, which is not a private forest as defined under the Act. Considering the pleadings and evidence adduced, we are of the opinion that no interference is required in the impugned order based on the decisions of apex court. Hence this appeal is dismissed. J.B.KOSHY,JUDGE THOMAS P. JOSEPH, JUDGE scm