IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 MFA.No. 171 of 2004() --------------------- OA.55/1999 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): RESPONDENTS ------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY GOVERNMENT PLEADER MR. M.P.PRAKASH RESPONDENT(S): APPLICANTS ------------------------- 1. JAMES S/O. JOHN RESIDING AT KOLLIYIL HOUSE, KARAPADAM, PAYYANADAM P.O., MANNARKKAD. 2. ELIYAMMA JOHN, W/O. JOHN, DO. DO. 3. LEELAMMA, D/O. JOHN, DO. DO. 4. JOSE S/O. JOHN, DO. DO. ADV. SRI.V.M.KURIAN FOR R1 TO R4 SRI.A.V.THOMAS FOR R1 TO R4 SRI.MATHEW B. KURIAN FOR R1 TO R4 SRI.K.T.THOMAS FOR R1 TO R4 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- M.F.A. No. 171 of 2004 --------------------------------------------- Dated, this the 26th day of October, 2009 J U D G M E N T P.R. Raman, J. This appeal is by the State. Application is filed under Section 8 of the Kerala Private Forest (Vesting and Assignment) Act herein after referred to as 'Act', where the respondents' declaration that the property is not a private forest vested with the Government and claim exemption under Sections 3 (2) and 3 (3) of the Act. 2. The extent of 2 acres of land in survey No. 1/1A of Payyanadam village in Mannarkkad Taluk, Palakkad District owned by the applicant sought to be in respect of which the application is filed for the relief. 30 acres of land was taken by one Mathai on lease from one Chamiyappan Chettiar as per registered lease deed No. 1124/1953 dated 04.05.1953 as Ext.A10. Mathai in turn sold 15 acres to one Vettikkal John as per document No.575/56 on 22.03.1956. After obtaining permission from the District Collector, another extent of 15 acres was also sold by Mathai to Chacko and Mani as per document No. 2368/57 vide Ext.A7, who in turn sold the same to one Iype as per sale deed No. 2433/69. Iype gifted 4 acres to his son John and another extent of 5 acres to Joseph and another 4 acres to one Thomas and MFA No. 171 of 2004 2 retained 2 acres with Iype. After the death of son John, his 4 acres devolved upon his wife and children. First applicant James, a son of John got surrender of the rights of other heirs over 80 cents as per document No. 5041/91. This 80 cents is item No. 1 in the application. After the death of Iype, 2 acres retained by Iype was partitioned among his children as per document No. 4552/91 and sons John and Thomas has got 1 acre each. After the death of John, his one acre devolved upon his wife and children as per document No.5044/91. Other heirs surrendered their right over 80 cents to Jose and over 20 cents to James as per document No. 5040/97. This 20 cents is item No. 2 in the application. Item No. 3 is one acre which forms a portion of 4 acres obtained by John by gift which devolved on his heirs after the death of John. All these items are lying adjacent to each other and the applicants are in possession and enjoyment of the same. The applicants also contended that their lands are within the ceiling limit. According to them, the area contains cultivated and planted rubber. The area was acquired by the predecessor of applicant with intention to cultivate and plant rubber. 3. The respondent filed counter affidavit raising various contentions, what is germane for the purpose of this appeal is the issue regarding applicant's title. The Tribunal framed necessary issues for trial. MFA No. 171 of 2004 3 It found that the application is not barred by limitation or res judicata on the point as to whether the property is a portion of vested forest in the Government in the affirmative then it turned to consider the question as to whether the applicants are entitled to get exemption under Section 3(2) or 3(3) of the Act. On behalf of the applicant, PWs 1 to 3 were examined. On the side of respondent, RW1 was examined and Exts. A1 to A9, B1, B2 and C1 to C5 were also marked. 4. The Tribunal found that the property falls within the purview of MPPF Act but held that the applicants are entitled to exemption under Section 3(3) of the Act. It found that the lands are within the ceiling limit with intention to cultivate disputed land is spoken to by PW1 and PW2. It also took note that the applicants have cultivated the remaining extent with rubber to support their intention to cultivate the disputed land. Few rubber trees were also found by the Commissioner when inspecting the disputed land. On a totality of the evidence adduced had therefore found that the applicants and their predecessors had the intention to cultivate the property. 5. The appellant would contend that in the absence of any permission obtained from the District Collector, while Ext.A7 transfer is effected, no valid title passes on to the transferee and therefore Ext.A7 in so far as alienation is without obtaining the sanction from the District MFA No. 171 of 2004 4 Collector is hit by Section 3(1)(a) of the MPPF Act, and is invalid as per Section 3 (1) (b) thereof. According to him, the land is in Malavaram area so covered by the provisions under MPPF Act as held by the Tribunal. Placing reliance on the Full Bench decision reported in State of Kerala Vs. Moosa Haji [1980 (4) KLT 494 (FB)], if it was also contended that the reduction of the area or loss of contiguity by act of parties was of no consequence in this respect by virtue of Section 1 (2) (i) and the explanation clarifies this position. Reference is also made to paragraph 10 of the judgment. We have perused the Full Bench decision of this Court. There the contention was that any part of a private forest denuded of trees and undergrowth would automatically go out of the provisions of the Act. Hence if there was an extent of 120 acres of private forest in 1949, clear felling of 40 or 50 acres at any time thereafter would reduce the forest area to 80 or 70 acres, in which case the Act may have no application even to that remaining extent by reason of Section 1(2) (i). Full Bench held that as per the provision, both acreage and contiguity were essential for the application of the Act. 6. The second explanation to Section 1(2) of the MPPF Act clarifies the position that a private forest exceeding 100 acres extent shall not cease to be so by the fact that, in a portion thereof trees or shrubs are felled with or without the permission of the District Collector, or land MFA No. 171 of 2004 5 are cultivated, or rocks, roads, tanks, rivers or the like exist; nor shall the area of such forest cease to be contiguous by reason only of the existence of all or any of the aforesaid circumstances. Therefore if once the extent and contiguity is satisfied merely because a portion of the larger extent is clear felled and the nature of the land is thereafter converted, will not change the situation and will continue to be a forest land. In other words, the land will continue to be treated as forest land despite such conversion and this position has been abundantly made clear by the larger bench decision cited supra. However, we find it difficult to accept the contention that the said decision has any application to the facts of this case. 7. Admittedly the lands were transferred successfully from one person to another initially by Chamiyappan Chettiyar to Mathai by Ext.A5 and A10 documents. This was after obtaining permission since Chamiyappan chettiar had in his ownership or possession of very large extent of private forest or more than 3000 acres as evidenced by Ext.A9. Subsequently when Mathai mortgaged the property as per Ext.A6 and transfered a portion of the land by Ext.A7 to Chacko and Mani. He had obtained permission from the District Collector. But subsequently, Chacko and Mani together transferred 15 acres of land in favour of Iype vide Ext.A8. So however nothing is mentioned in Ext.A8 regarding the MFA No. 171 of 2004 6 permission if any obtained from the District Collector. However no specific plea is raised in the written statement that the transfer is invalid for, want of permission from the District Collector. Therefore there was no occasion for the respondent to contest the issue on this. Therefore we are unable to say whether there was any such permission obtained. 8. It was however contended by the respondent that no such permission is needed, since the transfer by Ext.A8 is not hit by Section 3 (1)(a) of the MPPF Act. Further as per Section 3(1) (b), the alienation will become null and void only if the same is effected in contravention of clause (a) and if the alienation is of any forest in the district of Malabar having a contiguous area exceeding 100 acres (not being a forest owned by a single person or by more than one person jointly before the commencement of MPPF Act (second amendment) Act 1954) or any portion of such a forest and is made on or after the 24th June, 1953. According to him, there is no contention by the state that the aforesaid clause has any application. 9. Special Government Pleader Sri.M.P. Prakash contended that the land is covered by the MPPF Act, this being the position, Section 3(1)(a) squarely applies and according to him if this is a land covered by MPPF Act, prior permission should have been obtained from the District Collector. In the absence of any such plea raised, before the court MFA No. 171 of 2004 7 below, the respondent herein will be prejudiced in case such contention is allowed to be raised without amending the plea. In such circumstances, proper course open is to set aside the order and remand the case enabling the appellant herein to raise such plea by way of amendment to the written statement, and after giving an equal opportunity to the respondent to put forth their contention and to adduce evidence with regard thereto. Hence the appeal is allowed by way of remand to the Tribunal for fresh consideration for the limited purpose as aforesaid. No costs. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc