IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 MFA.No. 6 of 1999(A) ------------------------------ OA.5/1996 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS: ------------------- 1. KALLAR MADATHIL VISHNU NAMBISSAN, S/O. LATE H.GOPALAKRISHNA BHATT, KALLAR MADAM, KALLAR, KASARAGOD (DIST). 2. K.M.DROWPATHIYAMMA, W/O. NARAYANAN NAMBISSAN, KALLAR MADAM, KALLAR , P.O. RAJAPURAM, KANHANGAD, KASARAGOD DT. 3. KALLAR MADATHIL PARAMESWARA NAMBISSAN, S/O. LATE GOPALAKRISHNA BHATT, DO. DO. BY ADV. SRI.K.V.SOHAN SRI.K.RAJEEV SRI.B.PREMNATH (E) RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP.BY CHIEF SECRETARY, TRIVANDRUM. 2. THE CUSTODIAN OF VESTED FORESTS. BY SPL.GOVERNMENT PLEADER SRI.M.P.PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON ON 27/05/2008, ALONG WITH MFA. 654 OF 1999 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.Nos.6 and 654 OF 1999 ------------------------------------- Dated 27th May, 2008 JUDGMENT Koshy,J . Appellants in M.F.A.No.6 of 1999 filed applications before the Forest Tribunal contending that 6.76 hectares of land (16.70 acres) of land in their position in Resurvey No.292 of Panathady Village, Hosdurg Taluk is not vested in the State under the Kerala Private Forests (Vesting and Assignment) Act (in short 'the Act'). Tribunal found that the entire area of 16.70 acres claimed are private forests. Tribunal also found that the entire land was covered under the Madras Preservation of Private Forests Act (MPPF Act). After local inspection and after considering the commission report, the Tribunal found that there are only three arecanut trees in the disputed property and there is no evidence of cultivation. It was also found that there were remnants of an old building, but, whether it is very old or not cannot be ascertained as only some remnants were there, even though the claimants stated that their labourers used to stay in that building. After considering the evidence and after local inspection, Tribunal also found that there is no difference between the disputed area and nearby areas surrendered. A road is going through the middle of the property. According to the MFA.6 & 654 /1999 2 Tribunal, there was no cultivation and no intention to cultivate can be gathered. Private forests in Kerala are vested in the Government under section 3(1) of the Act. Only if the land is under personal cultivation, owners can claim exemption under section 3(2) of the Act. If there is valid documents of title and intention to cultivate on the relevant date, owners can claim exemption under section 3(3) also. Here, the Tribunal found that there was no cultivation and there is no evidence of any intention to cultivate the property at the relevant time, but, at the same time, it is also found that earlier, 25 acres of land including this area was held as parambas by the Land Board. In the land ceiling case, claimants' father claimed that 25 acres of land including the area in question was a private forest covered under the MPPF Act. If it is a private forest, it cannot be included in the land ceiling area. But, on the assumption that it was a paramba, the claim of the appellants was not accepted and taking this land into account, appellants were compelled to surrender 8.30 acres of land. In the circumstances, Tribunal using equitable powers directed the State to release 8.30 acres of land. This finding is questioned by the State also. We are of the opinion that once it is found that the land is a private forest, it will automatically vest in the Government under section 3(1) of the Act. The finding that the land was covered under the MPPF Act was not seriously questioned in the appeal filed by the MFA.6 & 654 /1999 3 claimants. If it is covered under the MPPF Act, District Collector's permission was necessary for cultivation. No such permission was also obtained by the claimants. For transfer also permission was necessary. In any event, it is pointed out by the Government Pleader that notification after demarcation of the property under section 6 was published in the Gazette and proper publications in the newspapers were also done in the year 1977. Application was filed in the year 1996 only. Under Rule 3 of the Kerala private Forests (Tribunal) Rules, 1972 an application under Section 8 shall be in Form `A' and shall be presented to the Tribunal within 60 days from 6th August, 1981 or from the date of publication of notification under sub- rule(2) of Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974, whichever is later. This was explained saying that even if no notification is published, within two months of the knowledge or obstruction by the forest officials, claim can be filed. But, in this case, publication of notification is not disputed and hence the applications are time barred. It is true that the State did not accept the plea of the claimants' father that it was a private forest in the land ceiling proceedings. But, at the same time, even claimants' predecessor claimed the disputed land as a private forest. Claimants were not able to prove that it was cultivated or there was intention to cultivate the land on the relevant date. In these MFA.6 & 654 /1999 4 circumstances, by using equitable powers Tribunal cannot grant equal extent which was surrendered by the claimants from the private forest to the claimants as under section 3(1) of the Act all private forests are vested in the Government. In the above circumstances, Tribunal ought to have dismissed the applications. Hence, we allow M.F.A.No.654 of 1999 filed by the State and dismiss M.F.A.No.6 of 1999 filed by the claimants. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks