IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 MFA.No. 1379 of 2001() -------------------------------- OA.18/2000 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS --------------------- 1. KUNJUVELLA, W/O. AYYAVU, THOTTUNGAL HOUSE, CHEMBUKKAD, KUTHANNUR, ALATHUR. 2. KARUPPUNNII, S/O. KUNJUVELLA, THOTTUNGAL HOUSE, CHEMBUKKAD, KUTHANNUR, ALATHUR. 3. GANGADHARAN, S/O. AYYAVU, THOTTUNGAL, KARADIYAMPARA, KUTHANNUR, ALATHUR TALUK. 4. SWAMINATHAN, S/O. AYYAVU, THOTTUNGAL, KARADIYAMPARA, KUTHANNUR, ALATHUR TALUK. BY ADV. SRI.D.KRISHNA PRASAD RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REP.BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKODE, PALAKKAD. BY GOVERNMENT PLEADER SRI.M.P.PRAKASH(SPL. ) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2008 , THE COURT ON THE SANME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.1379 OF 2001 (D) ----------------------------------- Dated this the 8th day of February, 2008 J U D G M E N T KOSHY,J. Appellants were in possession of 2 acres and 10 cents of land situated in Survey No.225/3 in Kuthanur-II Village of Alathur Taluk of Palakkad District. When their possession was interfered by forest officials, they approached the Forest Tribunal for a declaration that it is not a private forest as defined under the Kerala Private Forests (Vesting and Assignment) Act and they alternatively contended that if it is a private forest, they are entitled to get exemption under Sections 3(2) and 3(3) of the Act. Under Section 3(1) of the Kerala Private Forests (Vesting and Assignment) Act, all private forests in Kerala as on the appointed date (10.5.1971) are automatically vested with the Government. Issue of notification after demarcation is only procedural. But for the application of Vesting Act, the land in dispute must be a private forest as defined under the Act. Private forest is defined under Section MFA.1379/01 2 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, 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 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 MFA.1379/01 3 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; It defines private forest in Malabar areas as any land covered area under the M.P.P.F. Act or a forest including wooden enclaves. Section 2(f) (1) reads as follows: “(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)-” Admittedly, the area in question is situated in erstwhile Malabar area. The tribunal found that the area in question is not covered under the M.P.P.F. Act. Thereafter, with regard to the MFA.1379/01 4 question whether the property was forest or wooden enclaves, the tribunal has considered the matter at paragraphs 28 and 29 which was as follows: “28. Ext.C1 is the report of the Commissioner which gives the state of the property on 28.10.2000. Sitting in 2001 gleaming through Ext.C1 the state of the property as on 10.5.1971 has to be found. The Commissioner noticed that the property was divided into compartments and symptoms of cultivation. He did not see any tree growth in the property. The forest species seen in the property were less than one year which is cultivated by the respondents recently. PW1 deposed that the varambas (ridges) in the property and the compartmentalisation of the property evidences cultivation. According to him Kesavan used to cultivate the land with tapioca, black gram etc. and after the purchase they also used to cultivate the property. But PW2 gave evidence that That evidence shows that the compartmentalisation was after Ext.A1. That is after the appointed day. In view of the specific admission of PW2 that Kesavan did not do anything in the property reliance cannot be placed on the evidence given by PW3 that he knows the schedule property and it was used by Kesavan for cultivation. MFA.1379/01 5 According to PW1, wife and children of Kesavan are living and he has not asked them the rent issued by the landlord. 29. It was argued by the counsel for the applicants that something can be grown in the property which is evidenced by the cultivation. That shows hat it is not a waste land. There is no evidence to show that the schedule property was wooded or a forest on 10.5.1971 as such the applicant is entitled for the declaration.” The above discussions will show that the scheduled property was not a forest or wooden area. Hence it is not a private forest as defined under the Vesting Act. The Commissioner's report would further show that when commissioner visited the property, he did not see any forest trees and only some one year old trees were found in the above property. So even though vesting came into force also their possession was disturbed by forest officials. Commissioner inspected the property after two decades of appointed date. Commissioner report also shows that it was not a forest or wooden enclaved area. But after holding so, the tribunal did not accept the case, as burden is on the applicant to prove that it is not a private forest. One cannot prove the negative factor with positive MFA.1379/01 6 evidence. But it is proved that scheduled properties have no forest trees and the area is not a forest and it is not covered by M.P.P.F. Act. Only if it is a private forest, question of exemption arises. But if the area is not a private forest, it is not vested in the Government and appellants are entitled to declare the scheduled area as not a vested forest and forest officials cannot interfere in the possession of the land. Tribunal did not consider the issue whether it is a private forest or not. Question of providing exemption under Sections 3(2) and 3(3) under the Act arises only if it is a private forest. In the above circumstances, we remand the matter to consider the questions whether land involved is a private forest so as to vest in the Government on the appointed day and even if it is vested whether appellants are entitled to exemption under Sections 3(2) or 3(3) of the Act. Parties are allowed to adduce further evidence with regard to these aspects. Parties may appear before the tribunal on 2.4.2008. Appeal allowed by way of remand. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.1379 OF 2001 (D) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 8th February, 2008