IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 MFA.No. 1553 of 2001() ---------------------- OA.53/1999 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS/RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD-2. BY SPL.GOVT.PLEADER SRI.M.P.PRAKASH RESPONDENTS/APPLICANTS: 1. THEKKEPPAT PISHARATH KAMALAM PIZHARASSIAR, 2. THEKKEPPAT PISHARATH LAKSHMI ALIAS AMMUKUTTY PISHARASSIAR'S DAUGHTER, DEVAKI ALIAS THANKAM PISHARASSIAR. 3. THEKKEPPAT PUZHARATH DEVAKI ALIAS THANKAM PISHARASSIAR'S SON GOPAN. 4. THEKKEPPAT PISHARATH DEVAKI ALIAS THANKAM PISHARASSIAR'S DAUGHTER JYOTHI. ALL RESIDING AT MADHAVI NILAYAM, PATTAMBI ROAD, KULAPPULLY AMSOM AND DESOM, OTTAPPALAM TALUK. BY ADV. SRI.D.KRISHNA PRASAD SRI.JOJI VARGHESE SRI.M.HARISHARMA THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.1553 OF 2001 ------------------------------------- Dated 11th April, 2008 JUDGMENT Koshy,J . In this case, the Forest Tribunal found that the scheduled property in O.A.No.53 of 1999 was not a private forest on the relevant date when the Kerala Private Forests (Vesting & Assignment) Act (in short `the Act) came into force because it was not covered by the Madras Preservation of Private Forests Act, 1949 (M.P.P.F. Act) and it was not a forest. The reason stated is that bit No.2 of Andhimahakalan kadu which was measuring 11.75 hectares and bit No.1 together will measure more than 200 acres. Under Section 1 of the Madras Preservation of Private Forests Act, to become a private forest it should exceed 100 acres in extent. But, here there is a road in between. Tribunal failed to consider explanation to Section 1 of the M.P.P.F. Act. There is no evidence that the land was cultivated when the Act came into force or thereafter and according to the claimants it was not cultivated because they were away from the land, but, in earlier document it was mentioned as parambas. The first question to be considered is whether it is coming under the M.P.P.F. Act and if it is a private forest whether claimants are entitled to get exemption under sections 3(2) or 3(3) of the Kerala Private Forests MFA.1553/2001 2 (Vesting & Assignment) Act . It was also argued that there is no notification as required in the M.P.P.F. Act. That aspect was not considered by the Tribunal. In these circumstances, we are of the opinion that it is a matter to be considered by the Tribunal on the question whether the land was covered under the M.P.P.F. Act and whether it will come as defined under section 2(f) of the Act and if it will come under section 2(f) of the Act, whether claimants are entitled to exemption under sections 3(2) or 3(3) of the Act. The impugned order of the Tribunal is set aside and we remand the matter to the Tribunal. Parties shall appear before the Tribunal on 16th June, 2008. Both parties can adduce further evidence regarding the matter. The appeal is allowed by way of remand. J.B.KOSHY JUDGE K.HEMA JUDGE tks