IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 MFA.No. 391 of 2001() -------------------------------- (O.A.NOS.6/99, 7/99 AND 8/99 OF FOREST TRIBUNAL, KOZHIKODE) APPELLANTS: ---------------------- 1. K.J.JOSE, S/O.JOSEPH IYPE, KOCHUMUTTATH HOUSE, THIRUVIZHAMKUNNU P.O., MANNARKAD, PALAKKAD. 2. C.D.CHACKO, S/O.DAVID PUTHENVEETTIL HOUSE, THIRUVIZHAMKUNNU P.O., MANNARKAD, PALAKKAD BY POWER OF ATTORNEY HOLDER POULOSE, ANIKKOOTTATHI HOUSE, KANDAMANGALAM, KOTTOPPADAM, MANNARKAD, PALAKKAD. 3. ELSAMMA GEORGE, W/O.GEORGE KOCHUMUTTATH, THIRUVIZHAMKUNNU P.O., MANNARKAD, PALAKKAD. BY ADV. SRI.M.C.JOHN RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, TRIVANDRUM. 2. THE CUSTODIAN OF VESTED FORESTS CUSTODIAN'S OFFICE, OLAVAKKODE, PALAKKAD DISTRICT. BY SPL. GOVERNMENT PLEADER(FORESTS) SRI. M.P.PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.7035/2001 IN MFA NO.391/2001 DISMISSED 12/02/2008 SD/- J.B.KOSHY, JUDGE SD/- K.HEMA, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.391 OF 2001 () ----------------------------------- Dated this the 12th day of February, 2008 J U D G M E N T KOSHY,J. Appellants three in number challenges the common award of the tribunal passed in O.A.Nos.6/1999, 7/1999 and 8/1999. They approached the tribunal when possession of their land was disturbed by the forest officials alleging that it is a private forest. The area involved in O.A. is as follows: 4.45 Acres in O.A.6/1999 2 Acres in O.A.7/99 and 4.70 Acres in O.A.8/1999 According to the appellants, they are owners of the property as their predecessor-in-interest was possessing the land from 1962 onwards on the basis of valid title. It is their contention that it is a land not covered under the M.P.P.F.Act and it is not a private forest and even if it is a private forest, they are entitled to exemption under Sections 3(2) and 3(3) of the Kerala Private Forests (Vesting and Assingment) Act, 1971 (in short the MFA.391/2001 2 'Vesting Act'). Tribunal correctly found that the area was not covered under the M.P.P.F. Act even though land is situated in the Malabar area. It is true that if the land is a private forest as defined under Section 2(f) of the Vesting Act, it will automatically vested with the Government under Section 3(1) of the Act and Government can subsequently demarcate and notify the same. Whether demarcation is done or not, if the land is a private forest, it will automatically vest under Section 3(1), and for vesting, it should be a private forest as defined under Section 2 (f) of the Act which is 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, 1958 (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 MFA.391/2001 3 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 apartment 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; The above definition shows that in the Malabar area if property is a private forest defined under the M.P.P.F.Act or a forest inclusive of wooden enclaved area on the appointed day, it can be called as a private forest. If only the property is a private forest, it will vest in the Government. Even if it is a private forest, the claimants can by adducing evidence prove that they are entitled to exemption under Sections 3(2) and 3(3) of the MFA.391/2001 4 Act if they are owners and they are personally cultivating the land and they have got registered title or deed in their favour and they have intention to cultivate the same. The Commissioner reported that on the date of its vesting, the entire area was cultivated by rubber and estimated that the rubber was more than 25 years old. Commissioner also reported that one side of the disputed property was forest. The contention raised before us is that as the tribunal found that area is not covered under the M.P.P.F. Act and there is no evidence to the effect that it is a forest, it cannot be stated that it is a private forest vested with the Government. Only if it is private forest, burden is cast on the appellant to claim that they are entitled to get exemption under Sections 3(2) and 3(3) of the Act. If it is not a private forest, appellants are entitled to a declaration that it is not vested under Section 3(1) of the Act and there is no necessary of considering entitlement of exemption under Sections 3(2) or 3(3). According to the learned Government Pleader, the finding of the tribunal that it is not covered under the M.P.P.F. Act is not correct. After going through the evidence, commission report etc. we are of the opinion that tribunal has not considered the matter with proper prospects. Tribunal has to consider first the question whether MFA.391/2001 5 the property in question was the private forest or not so as to vest under Section 3(1) of the Vesting Act. If it is not a private forest, forest officials will not have any jurisdiction to interfere in the possession of the land and the declaration can be given by the tribunal that it is a private forest vested with the Government. If it is a private forest, again the tribunal has to analyse whether they are entitled to get exemption under Sections 3(2) and 3(3) of the Act and burden is on the claimant to prove the exemption. Since these facts were not considered systematically by the tribunal, we remand the matter for further consideration by the tribunal. Both parties are allowed to adduce additional evidence. Parties may appear before the tribunal on 7.4.2008. With the above observations this appeal is allowed by way of remand. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.391 OF 2001 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 12th February, 2008