IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 MFA.No. 869 of 2001(B) ---------------------- OA.79/1998 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS: ----------- 1.M.K.HARINDRANATHAN,AGED 52 YEARS, S/O.LATE M.K.KUMARAN, SARASWATHI NIVAS, P.O.NELLIKODE, KOZHIKODE. 2.MRS.SAJEE DEVI, AGED 50 YEARS,W/O.DR.SUBRAMANIAM, 'NAYANAM', KUNNAMANGALAM, KOZHIKODE. 3.M.K.BHOOPENDRANATH,AGED 41 YEARS, S/O.LATE M.K.KUMARAN, SARASWATHI NIVAS, P.O.NELLIKODE, KOZHIKODE. 4.M.K.SARASWATHY,AGED 72 YEARS,W/O.LATE M.K.KUMARAN, SARASWATHY NIVAS, P.O.NELLIKODE, KOZHIKODE. 5.M.K.NARENDRANATH,S/O.LATE M.K.KUMARAN,SARASWATHY NIVAS, P.O.NELLIKODE, KOZHIKODE. 6.MRS.SOUDAMINI,W/O.VINAYA BHUSHAN,AGED 54 YEARS, 'VINAYA SOUDHAM', P.O.MANGATTIRI, TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.M.C.JOHN SRI.JESWIN P.VARGHESE RESPONDENTS: ------------- 1.STATE OF KERALA, REP. BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2.CUSTODIAN OF VESTED FORESTS, OLAVAKKODU, 'ARYA BHAVAN', FOREST COMPLEX, RAILWAY COLONY, OLAVAKKODE, PALAKKAD. BY GOVERNMENT PLEADER SRI.M.P.PRAKASH FOR R1 AND R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.6899/2001 IN M.F.A.NO.869/2001 DISMISSED. 25.2.2008 SD/- J.B.KOSHY, JUDGE SD/- K.HEMA, JUDGE /TRUE COPY/ J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.869 OF 2001 (B) ----------------------------------- Dated this the 25th day of February, 2008 J U D G M E N T KOSHY,J. Appellant questions the common award passed in O.A.Nos.74 to 79/1998 on the file of the Forest Tribunal, Kozhikode. Admittedly, the area is covered under the M.P.P.F. Act and situated in the erstwhile Malabar area. The title and possession of the land is also found in favour of the appellant. Question is whether the land is a private forest as defined under Section 2(f) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. According to the appellant, even though petition scheduled property was covered under the M.P.P.F Act it was cultivated on the appointed day and therefore, it is exempted. Section 2(f) defines “private forest” as follows: (f) “private forest” means- MFA.869/01 2 (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 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 MFA.869/01 3 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; Petition scheduled property is situated in Malabar area. Even if the land is covered under the M.P.P.F.Act, the land is cultivated is not a private forest at all in view of clause A to C of Section 2 (f) (1). Only if it is a private forest, burden is on the appellant to prove that it is exempted under Sections 3(2) and 3(3) of the Act. But to vest with Government under Section 3(1), first of all it has to be proved that the land in question is a 'private forest' on the appointed day. According to the claimant, Commission report itself shows that at the time of inspection along with some of the forest officials found that the area was cultivated with coffee and the Commission report shows that the coffee plants were 25 to 30 years old. The tribunal deferred from the Commission report because the girth of the coffee plants are not mentioned. But the Commission report was prepared in a joint inspection along with the forest officials. It is further stated that the documents produced to MFA.869/01 4 show that the clear felling was done with the sanction of the District Collector for cultivation and it was a cultivated land much prior to the appointed day. On going through the tribunal's order, we are of the view that tribunal did not consider the documents, commission reports and oral evidence in an objective manner. Tribunal has to first consider whether it was a private forest as defined under the Act when the Act came into force. If it is a private forest, whether claimants are entitled to get exemption under Sections 3(2) and 3(3) of the Act. Since the exercise was done, we are of the opinion that the order is liable to be set aside and matter should be reconsidered by the tribunal, and therefore, we set aside the order and remand the order for further consideration. Both parties are allowed to adduce evidence. Parties may appear before the tribunal on 9.4.2008. Appeal allowed by way of remand. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.869 OF 2001 (B) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 25th February, 2008