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 10TH JUNE 2008 / 20TH JYAISHTA 1930 MFA.No. 50 of 2003() ---------------------------- OA.40/1999 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT/ APPLICANT: ------------------------------------ MADHAVAN, AGED 75 YEARS, S/O. KUNJAPPAN, THACHANAMKOTTIL, PAZHAMPALAKODE AMSOM, THARUR VILLAGE, ALATHUR, PALAKKAD DISTRICT. BY ADV. SMT.JEENA JOSEPH RESPONDENTS/ RESPONDENTS: ----------------------------------------------- 1. CHIEF SECRETARY TO GOVT. OF KERALA, TRIVANDRUM. 2. CUSTODION OF VESTED FOREST, OLAVAKODE, PALAKKAD. BY SPL.GOVT. PLEADER (FOREST) SRI.M.P.PRAKASH - R1 & R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.No.50 OF 2003 ------------------------------------- Dated 10th June, 2008 JUDGMENT Koshy,J . Appellant and his sons approached the Forest Tribunal claiming that three acres and 80 cents of land are in their possession and ownership and they were cultivating the same with tapioca, gingelly, peas, black gram and cashew trees and their possession is being interfered by the forest authorities and, therefore, they want a declaration that it is not a private forest and even if it is a private forest it is exempted under section 3(2) and 3(3) of the Kerala Private Forests (Vesting & Assignment) Act ( in short `the Act'). Tribunal found that the property in question is not covered under the Madras Preservation of Private Forests Act (MPPF Act). Then the question is whether it is a private forest or not. 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 Reorganization Act, 1956 (Central Act 37 of 1956)- (i) any land to which the Madras Preservation of MFA.50/2003 2 Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before this 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. 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 the wooded areas. (2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands are enclaves within wooded areas. MFA.50/2003 3 Explanation.- For the purpose of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs.” Admittedly, these are properties in Malabar area. If it is not covered under the M.P.P.F. Act, it can be a private forest only if it is a forest including waste land which were enclaves within wooded area on the relevant date. So, the question whether it is a forest or enclaves within wooded area is a matter to be considered. If it is a private forest, whether there is notification or not, it will automatically vest in the Government under section 3(1) of the Act, unless claimant is able to prove that the land in question is exempted under section 3(2) and 3(3) of the Act. Claimant's main contention is that it is not a private forest at all. The land records also show that it is a private land (parambas), but, it relates only to 98 cents of land. Therefore, only question raised is with regard to the 98 cents of land. They produced possession certificate in respect of the land. So, the whole question is whether the land in question (98 cents of land) wherein cashew trees are found by the Commissioner is a private forest or not. If it is not a private forest as defined under section 2(f) (1)(ii), it will not vest in the Government as it is not an area covered under the M.P.P.F. Act. MFA.50/2003 4 That aspect was not considered by the Tribunal because ownership, cultivation etc. for claiming exemption under section 3(2) or 3(3) need not be looked into. If the land is not vested under section 3(1), possession of the parties cannot be disturbed. Therefore, we set aside the order of the Tribunal with regard to 98 cents of land claimed by the appellant. Tribunal should find whether it is a private forest or not as defined under the Act on the relevant date. If the answer is yes, then Tribunal should consider whether claimant is entitled to exemption under Section 3(2) or 3(3) of the Act . If it is not a private forest as defined under the Act, declaration should be given to that effect. Both parties are free to adduce evidence to prove the above. Parties shall appear before the Tribunal on 5.8.2008. The appeal is allowed by way of remand. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks