IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 MFA.No. 276 of 2001(B) ---------------------- OA.45/1993 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS/RESPONDENTS IN THE O.A.: ----------- 1.STATE OF KERALA, REP. BY CHIEF SECRETARY TO GOVT. OF KERALA, TRIVANDRUM. 2.CUSTODIAN & SPECIAL OFFICER, VESTED FORESTS COMMITTEE, CALICUT (NOW OLAVAKKODE CIRCLE, PALAKKAD – 2) BY SPL.GOVERNMENT PLEADER SRI.M.P.PRAKASH RESPONDENTS: ------------- 1.MRS.EATHAMMA DOMINIC, W/O.DOMINIC, MUKKADA HOUSE, NALUNNAKAL (PO), VAKATHANAM, KOTTAYAM DISTRICT. 2.THRESSIAMMA, W/O.THOMAS, -DO- 3.DR.ROY J. MUKKADA, S/O.DR.JOYKUTTY MUKKADA, -DO- 4.SHERRY GEORGE, S/O.DR.GEORGE MUKKADA DO. BY ADV. SRI.P.R.VENKETESH FOR R1 TO R4 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & A.K.BASHEER, JJ. ------------------------------- M.F.A.NO.276 OF 2001 (B) ----------------------------------- Dated this the 10th day of March, 2008 J U D G M E N T KOSHY,J. Respondents in this case approached the Forest Tribunal contending that 100 acres mentioned in the petition schedule property are not private forest and Forest officials are preventing them from cultivation. It was found that even though 100 acres were claimed, on measurement, land in question was only 94.26 acres of land. Before the tribunal, appellants filed written statement, wherein, it is stated that respondents claimants have legal possession over the petition scheduled property and respondent Officers are not interfering in the peaceful enjoyment of the property in respect of the rubber plantation and regarding the disputed area, it is stated as follows: “The eastern side of the petition scheduled property is a steep narrow valley embedded with precipice rocks and trees with the Kombuthookki River in full spate cascading down uproariously into the Valiapuzha in its lower reaches. The western bank of this river carries various species of trees with an extent of about 2.65 hectares MFA.276/01 2 which has been notified as Vested Forest by the Government. The petitioners claim that this area to be a part of the petition schedule and says that they are treating this as their wind belt. We could also see the survey stones laid by the Forest Department on the western boundary of this stretch of land. We could see that Teak species are planted inside this area in rows of twos and threes. The rows are symmetrical and the trees are of similar age group. The petitioners claimed that these Teak trees are planted by them. We could see cut stumps of Teak trees having a girth of about 35 to 50 inches and that many of them had coppice growth. Teak trees are also seen planted along the boundary and we could see cut stumps of Teak trees in this area also.” The above written statement shows that dispute raised by the appellant before the tribunal is only with regard to 2.65 acres of land. According to the pleadings of the appellants, only 2.65 acres of land in the petition scheduled property are private forest vested with the Governmnent under Section 3(1) of the Kerala Private Forest (Vesting & Assignment) Act, 1971. Even after the evidence, in the argument also, dispute is raised only with regard to 2.65 acres. There were three Commission reports Exts.C1, C2 and C3. In the Commission report, it was found that apart from the teak trees planted, there were various forest trees also in the MFA.276/01 3 2.65 acres of land. That was near the river and according to the claimants, it is wind belt area. In the Commission report dated 27.9.1996, it is stated as follows: “The eastern side of the petition scheduled property is a steep narrow valley embedded with precipice rocks and trees with the Kombuthookki River in full spate cascading down uproariously into the Valiapuzha in its lower reaches. The western bank of this river carries various species of trees with an extent of about 2.65 acres which has been notified as Vested Forest by the Government. The petitioners claim that this area to be a part of the petition schedule and says that they are treating this as their wind belt. We could also see the survey stones laid by the Forest Department on the western boundary of this stretch of land. We could see that Teak species are planted inside this area in rows of twos and threes. The rows are symmetrical and the trees are of similar age group. The petitioners claimed that these Teak trees are planted by them. We could see cut stumps of Teak trees having a girth of about 35 to 50 inches and that many of them had coppice growth. Teak trees are also seen planted along the boundary and we could see cut stumps of Teak trees in this area also.” It is further found that the plan also shows that more than 1/4 th of the land was still having rubber plantation. The balance is having cashew and arecanut apart from the teak planted in 2.65 acres. Tribunal found that that 2.65 acres of land is MFA.276/01 4 necessary for wind belt cultivation as land is situated in a wind belt area near the river. 2. Section 2 (f) defines 'private forest' 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 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. 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 purpose ancillary to the cultivation of such crops; (C) lands which are principally cultivated with cashew or other fruit bearing MFA.276/01 5 trees or are principally cultivated with any other agricultural crops 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;” Even though the land in question is covered under the M.P.P.F. Act as the title itself shows the same as they obtained lease after getting permission from the District Collector. Only the entire scheduled area was a rubber plantation as on the appointed day, that is, 10.5.1971. Claimants also produced Ext.A6 certificate issued by the Rubber Board. It shows that 40 hectares of land are planted during 1963 to 1966. Rubber Board is a statutory authority and rubber trees were also found MFA.276/01 6 by the Commissioner. Part of the land was cultivated by rubber and some of the rubber was later slaughter tapped and other trees like arecanut, cashew were planted as rubber trees in certain areas of the land are not economical. Therefore, on the appointed day, as per the definition the petition scheduled land was excluded from the definition of private forest as mentioned in Section 2 (f) (1) (i) B and C of the Act. If it is not a private forest, it will not vest with the Government under Section 3(1) of the Act. After the written statement was filed, subsequent notifications were issued after demarcating property as private forests. Notifications after demarcation will not change the nature or character of the property. Even if no notification is published after demarcating the property, if the land in question is a private forest, it will automatically vest with the Government under Section 3(1) of the Act. If it is not a private forest, it will not vest. Therefore, question is whether disputed land is a private forest as on the appointed day, 10.5.1971. If the Government notify the land as private forest after demarcating the land the owner can approach the Tribunal within six months for getting a declaration that it is not a private forest. Here it was clearly found by the tribunal that MFA.276/01 7 land in question will not come within the definition of private forest and disputed land was only 2.65 acres. Considering the pleadings and evidence adduced in this case, we are of the view that no interference is required in the impugned order of the tribunal. Findings of the tribunal are based on evidence and are not perverse or illegal. Hence, this appeal is dismissed. J.B.KOSHY, JUDGE A.K.BASHEER, JUDGE prp J.B.KOSHY & A.K.BASHEER, JJ. -------------------------------------------------------- M.F.A.NO.276 OF 2001 (B) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 10th March, 2008