IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 MFA.No. 1350 of 2002(B) ----------------------- OA.56/1999 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT: ----------- P.MOHANAN S/O. LATE P.NARAYANAN NAIR, WOODLAND ESTATE, CHELLANGODE, VADUVANCHAL VIA., WAYANAD DISTRICT BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS: ------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.M.P. No. 8049/2002 in M.F.A. No.1350/2002 Dismissed. Sd/-J.B. Koshy, Judge. 3rd March,2008 Sd/-K. Hema, Judge. mn. J.B. Koshy & K. Hema, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.No. 1350 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of Marh, 2008 JUDGMENT Koshy, J. Appellant approached the Forest Tribunal, Kozhikode for a declaration that 3.40 acres of land in Sy. No.1110/5A1 A1C of the Muppayinad Village of Vythiri Taluk of Waynad District is not a private forest. The above land was divided into three parts as A, B & C in the schedule to the application. 2. The private forest is defined under section 2(f) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, which reads 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 Reorganization 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-- MFA 1350/02 -2- 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 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.” 3. Admittedly, the property in question is situated n Malabar area. The Tribunal found that the land in question was not covered under the M.P.P.F. Act. One side of the property is river, the other side is forest and MFA 1350/02 -3- other two sides of the property are plantations owned by the claimant himself. Commissioner reported that A and B schedule properties marked as item No. C & D in the plan attached in the commissioner's report are planted with tea. According to the claimant, since coffee is found to be not profitable, he converted the coffee plantation into tea plantation. The Commissioner also noticed that in this portion there was no forest trees. According to the Commissioner, in the C schedule property A and E portions are full of wild growth trees, whereas a small portion marked as B in the plaint in C schedule property is similar to adjacent undisputed plantations owned by the claimant. So, therefore it is clear from the Commissioner's report that the property scheduled in the appendix A and B in the B portion marked in the plaint in the C schedule property are not private forests. If the above are not private forest, it is not vested with the Government also under section 3(2) of the Act. 4. The question is whether the applicant can claim title or valid possession over the land so as to maintain the application. The applicant mainly relied on Exts.A1 and A2 to claim title over the properties. According to the Tribunal, in prior title deeds one side is not shown as river. According to the claimant, immediately after the river, there is some forest land, then only the part of the property starts and that is the reason in the MFA 1350/02 -4- original title deeds the river was not shown as the boundary. He also relied on the deposition given by RW1 that in 2000 electric wire fencing was put on the boundaries of the petitioner's property by materials supplied by the department to prevent the attack from wild animals. That shows the property claimed in the application were treated by the Forest Department as possession by the claimant. Whether the claimant was having title and possession over A and B schedule properties and B portion marked in C schedule properties should be reconsidered by the Tribunal, as findings of the Tribunal are not clear. The Tribunal has not considered properly the prior title deeds, the report of the Commissioner as well as deposition of RW1. With regard to A and E marked by the Commissioner in the C scheduled property, we are of the view that no claim can be put by the petitioner as that land is full of forest trees. But with regard to the A and B schedule properties, the Tribunal should reconsider the matter whether the claimant has got title or possession over the property so as to maintain the application even though the properties are not private forest on the appointed day and they need not require to prove that they are entitled to exemption under section 3(2) or 3(1) of the Act. Hence, the matter is remanded to the Tribunal for fresh consideration. MFA 1350/02 -5- 5. In the circumstances, the Tribunal is directed to reconsider the matter and take a decision thereon. Both sides are permitted to adduce evidence regarding the question of title or possession over the land as on the appointed day. The parties may appear before the Tribunal 28-4-2008. J.B. Koshy, Judge. K. Hema, Judge. mn. MFA 1350/02 -6- J.B.Koshy & K. Hema, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A. 1350 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 3rd March, 2008