IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 RP.No. 348 of 1997(G) --------------------- AGAINST THE JUDGEMENT IN MFA.332/1986 .................... PETITIONER/RESPONDENT: ----------------- PURAKKADI DEVASWOM, REPRESENTED BY ITS MANAGER, PURAKKADI VILLAGE, WAYNAD DISTRICT. BY ADV. SRI.A.P.CHANDRASEKHARAN (SR.) SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR SRI.K.JAYESH MOHANKUMAR RESPONDENTS: APPELLANTS:- ------------- 1. STATE OF KERALA, REPRESENTED BY THE CUSTODIAN AND CONSERVATOR OF VESTED FORESTS, KOZHIKODE. 2. CUSTODIAN OF VESTED FORESTS, KOZHIKODE. BY GOVERNMENT PLEADER SRI.M.P.PRAKASH THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 13/03/2008, ALONG WITH R.P.NO.222/2001 IN MFA NO. 319 OF 1986 & O.P.NO.1771/2001, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B. Koshy & K. Hema, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P.No.222/2001 in M.F.A.No.319/1986, R.P. No.348/1997 in M.F.A. No.332/1986 & O.P. No. 1771 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of March, 2008 JUDGMENT The 1st petitioner in the original petition is the Purakkadi Devaswom, represented by its Manager. Second petitioner in the original petition is the auction purchaser of the right to cultivate the property mentioned in the schedule. The 1st petitioner in the original petition also filed review petitions to review the judgments in M.F.A.No.319/1986 and 332/1986. When the Forest officials interfered in the possession of the property in question, the petitioner Devaswom approached the Forest Tribunal for a declaration that the petition schedule property is not private forest and therefore not vested with the Government under section 3(1)of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Forest Tribunal partly allowed the application stating that plot P1 of Ext.C1 measuring 23-36 hectares and plot S of Ext.C2 measuring 0.8 hectare are not private forest. Against the award State filed M.F.A. No.332/1986 and R.P.348/97 & Con. cases -2- the petitioner filed M.F.A. No.319/1986. Both the appeals were heard together and appeal filed by the State was allowed and appeal filed by the petitioner was dismissed by this Court. The above judgment is sought to be reviewed in the review petitions. In the original petition the petitioners pray for a direction to the respondents 1 to 3 not to interfere with the right of the petitioners to cultivate the land mentioned in Ext.P1 order. 2. The judgment under review would show that counsel for the petitioner was absent at the time of hearing. Further this Court noticed in the impugned judgment that exemption was not claimed under sections 3(2) and 3(3) of the Act. This Court also noticed that admittedly the land in question is covered under the M.P.P.F. Act and therefore it is private forest and vested with the Government on the appointed day. i.e., on 10-5-1971. 3. It is true that if the land is a private forest, it is automatically vested with the Government under section 3(1) of the Act, unless the claimant proves that he is entitled to exemption under sections 3(2) and 3 (3) of the Act. If the land is not a private forest as defined in the Act, it will not vest with the Government. Here the question is whether it is actually vested with the Government under section 3(1) of the Act. It is the contention of the petitioners that the land in question is not a private forest notwithstanding that it is covered under the M.P.P.F.Act. So, the petitioner R.P.348/97 & Con. cases -3- has no claim that they are entitled to exemption under sections 3(2) and 3 (3). In Malabar area the land covered under the M.P.P.F.Act except the land specifically mentioned in column A & D is private forest. It is the contention of the petitioners that on the appointed day the entire land was cultivated with jack fruit and teak wood trees, etc. This aspect was not seen considered in the judgment under review or under the judgment of the Forest Tribunal. In the circumstances, the review petitions are allowed and the impugned judgment in the review petitions are set aside. 4. Now we have to deal with the appeals. In the Forest Tribunal's judgment the specific question, whether the land was private forest as on the appointed day and whether the appellant Devaswom is entitled to exemption of the entire land or part of the land under clause A to D of section 2f)(1)(i) was not considered, even though the Commissioner's report is available before the tribunal. In the circumstances, we are of the view that the Forest Tribunal is bound to consider the question whether it was a private forest as defined under section 2(f)(1) of the Act as on the appointed day notwithstanding that petitioner Devaswom is not claiming exemptions under sections 3(2) and 3(3) of the Act. Hence, we set aside the order of the Tribunal and allow the appeals filed by the State as well as the petitioner Devaswom. Accordingly, the matter is remanded to the Tribunal for fresh R.P.348/97 & Con. cases -4- consideration. The parties are allowed to adduce evidence before the Tribunal. 5. In view of the remand of the matter, no further orders are necessary in the original petition. Hence, the original petition is closed. 6. It is made clear that status quo in the nature of the land as on today shall be maintained till orders are passed by the Tribunal. Parties may appear before the Tribunal on 5th May, 2008. J.B. Koshy, Judge K. Hema, Judge. mn. R.P.348/97 & Con. cases -5- J.B. Koshy & K. Hema, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P.No.222/2001 in M.F.A.No.319/1986, R.P. No.348/1997 in M.F.A. No.332/1986 & O.P. No. 1771 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 13 th day of March, 2008