IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 MFA.No. 166 of 2002(D) --------------------------------- OA.6/2001 FOREST TRIBUNAL, KOZHIKODE. .................... APPELLANTS/RESPONDENTS: -------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY CHIEF SECRETARY,THIRUVANANTHAPURAM 2. CUSTODIAN OF VESTED FORESTS,ARANYA BHAVAN,FOREST COMPLEX,OLAVAKKOD. BY SPL.GOVT.PLEADER (FORESTS) SRI. M.P. PRAKASH. RESPONDENTS/ APPLICANTS: -------------------------------------------- 1. P.KRISHNA PILLAI, S/O.NEELAKANDAN PILLAI, NILAMBUR AMSOM DESOM OF ERNADU TALUK. 2. BROTHER DAMODARAN PILLAI, DO.DO. 3. BROTHER SASIDHARAN PILLAI, DO.DO. 4. BROTHER GANGADHARAN PILLAI, DO.DO. 5. SISTER TAMARAKSHY,DO.DO. 6. SISTER VALSALA,DO.DO. BY ADV. SRI.D.KRISHNAPRASAD. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 868/2002 IN M.F.A. NO. 166/2002 DISMISSED SD/- J.B.KOSHY, JUDGE. 02/01/2008. SD/- K.HEMA, JUDGE. //TRUE COPY// prv. J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.166 OF 2002 ------------------------------------- Dated 2nd January, 2008 JUDGMENT Koshy,J . Respondents herein claimed that 12 acres in Nilambur amsom desom, Edakkara Village of Ernad Taluk of Malappuram District lying in Survey No.1350 is not private forest and Forest Department is disturbing their possession. According to the appellants, the above land is a vested forest under Section 3(1) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (in short `the Act'). It is also stated that it is part of a large extent of land. Originally, it was given to Gwalior Rayons for bamboo cultivation. It is the case of the claimants (respondents) that the land was cultivated even at their father's time till 1985. Thereafter, forest authorities prevented them from cultivation. Section 3(1) of the Kerala Private Forests (Vesting and Assignment) Act shows that all private forests in Kerala are automatically vested in the Government from the appointed date, i.e., 10.5.1971. Therefore, to vest the land, it should be a private forest as defined under the Act. The Forest Tribunal in the impugned order has taken pain to consider whether this land was demarcated by the Government as private forest and notified by Exts.B1 and B4 (signed by two different officers) and found that it was not proved that this property was already demarcated. MFA.166/2002 2 If the land is a private forest, it is automatically vested in the Government under Section 3(1) of the Act whether it is demarcated and notified as vested forest. But, for vesting, it should be a private forest as defined under the Act. 2. Admittedly, the area in question is situated in erstwhile Malabar District in Madras State. A private forest is defined under section 2(f) of the Act as follows: “2.(f) “private forest” means- (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 of 1956)- (i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed 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.” Therefore, to become a private forest, it should be proved that it is a MFA.166/2002 3 land covered by the Madras Preservation of Private Forests Act (Madras Act XXVI of 1949). Now, we will come to the definition of `forest' under the above Act. Section 1(2) of the Madras Preservation of Private Forests Act, 1949 provides that it applies to private forests in the districts of Malabar and South Kanara having a contiguous area exceeding 100 acres and `forest' is defined under section 2(a) as follows: “2. (a) `forest' includes waste or communal land containing trees and shrubs, pasture land and any other class of land declared by the (State) Government to be a forest by notification in the (Kerala Government Gazette). Explanation.- For the purposes of this clause, `communal land' means any land of the description mentioned in sub-clause (a) or sub- clause (b) of clause (16) of Section 3 of the Madras Estates Land Act, 1908 (Madras Act 1 of 1908);” So, to be a forest, it should be declared by the Government to be a forest by notification either by the erstwhile Madras Government or by the Kerala Government. Admittedly, no such notification was published. In the appeal memorandum even though it was stated that in 1949 there is such a notification, it is not produced so far. Tribunal also found that except 10 year old bamboo clusters, there was no other forest trees in the area. There were four wells also and MFA.166/2002 4 the boundaries include property of one Abdullah and some parambas and it is not continuous to any forest area notified under M.P.P.F Act . In the absence of any notification as mentioned under section 2(a), it cannot be a forest owned by private parties and covered under the Madras Preservation of Private Forests Act. Therefore, there is no automatic vesting under section 3(1). Since the land is not automatically vested under section 3(1), the Act itself is not applicable. In view of the above, the Tribunal held that interference by the Forest department was not correct. We see no ground to interfere in the above. The appeal is dismissed. J.B.KOSHY JUDGE K.HEMA JUDGE tks