IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 MFA.No. 161 of 2004() --------------------- AGAINST THE ORDER DATED 11/12/2003 IN OA.31 & 32/2002 IN OA.33/2002 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS: RESPONDENTS: ---------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY,THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY GOVERNMENT PLEADER SRI. M.P. PRAKASH RESPONDENTS: APPLICANTS: ----------------------------------------------- 1. C.E.GEORGE, 35/1251, POTHUVAL AMBADY, WARIAM ROAD, COCHIN-16 (APPLICANT IN OA.31/2002). 2. EAPEN GEORGE, S/O. GEORGE, 35/1251 -DO- -DO- (APPLICANT IN OA.32/2002). 3. SUSAMMA EAPEN, W/O. EAPEN GEORGE, -DO- -DO- (APPLICANT IN OA.33/2002). BY SRI.V.V.SURENDRAN (COVEATOR) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. Koshy & P.N.Ravindran, JJ. -------------------------------------- M.F.A. (Forest) No. 161 of 2004 --------------------------------------- Dated this the 12th day of June, 2008 Judgment Koshy,J. Appellant/State questions the award of the Forest Tribunal dated 11.12.2003. Respondent filed an application for declaration that 15 acres of land in Survey No.686/1 of Thariyode Village, Vythiri Taluk is not a private forest vested under the Kerala Private Forest (Vesting and Assignment) Act (for short 'the Vesting Act'). Three O.As. were filed and disposed of together. The extent of land covered in the three O.As. is 15 acres. Commissioner found that originally this land was covered under the M.P.P.F. Act and by Ext.A47, permission was given by the District Collector for clear felling. It shows that clear felling has to be completed by 31.5.1969 and the planting of coffee and cardamom should be completed before 31.7.1969. Ext.A48 pass book issued by the Wayanad Co- operative Agricultural Development Bank, Panamaram shows that after the loan granted a sum of Rs.7,200/- was disbursed to them on 20.4.1970 and a sum of Rs.4,050/- was disbursed to them on 17.3.1971 for development of the plantation. Secretary of the Bank M.F.A.(Forest) No. 161/2004 2 was examined to prove the same. The tribunal found that there is a recital that the property has been clear felled and it shows that the property is one and the same. The tribunal came to the conclusion that the O.A. schedule property were coffee plantation when the Vesting Act came into force. The tribunal also considered the basic tax receipts as paramba which was in the name of the predecessor- in-interest were produced as Exts.A26 to A43. Various other evidence ranging from Exts.A45, 46, 62 to 88 were also relied on by the tribunal that this was a pucca coffee plantation even before 1971. Ext.A61 shows that there was coffee plantation during the years 1983, 1986, 1987 and 1988. Therefore, this was planted before 1971. A portion of the disputed land was acquired for the purpose of Kuttiadi Irrigation Project and Ext.X1 (a) letter issued by the Divisional Forest Officer to the Land Acquisition Officer shows the extent of the vested forest and this scheduled property was not considered as a vested right. The Land Acquisition Surveyor also found that the properties were also not included in the vested forest. The Divisional Forest Officer has stated that the area is a developed area. The Commission report also shows that the land was systematically planted. Of course, Ext.C1 commission report was taken in 2003. Before that, their possession was disrupted and M.F.A.(Forest) No. 161/2004 3 additional plant growth was there and some plantation was destroyed. The tribunal found that this was a cultivated land before 1971. 2. Section 2 (f) of the Act defines private forest. The land is situated in Malabar area and as per the definition, if the land covered under the M.P.P.F. Act is cultivated with tea, coffee, cocoa, rubber, cardamom or cinnamon, it is not covered. Section 2 (f) reads as follows: "(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 Preservatioin 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. M.F.A.(Forest) No. 161/2004 4 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 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 purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs; xx xx xx " Therefore, since the scheduled property was cultivated and planted with coffee before 1971, it will not vest under section 3 (1) as it is not a private forest as defined under the Vesting Act and even if it is M.F.A.(Forest) No. 161/2004 5 a private forest, since the property was under personal cultivation on the relevant date when the Act came into force, claimants are entitled to the benefit of section 3 (2). The fact that in one of the O.A., schedule was not made separately will not make the position different. In fact, identity of the land is not disputed. Order of the tribunal is based on evidence adduced in the case and based on finding of facts and we see no ground to interfere in the order. Appeal is dismissed. J.B.Koshy Judge P.N.Ravindran Judge vaa M.F.A.(Forest) No. 161/2004 6 J.B. KOSHY AND P.N.RAVINDRAN,JJ. ------------------------------------- M.F.A.(Forest) No.161 of 2004 ------------------------------------- Judgment Dated:12th June, 2008