IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 MFA.No. 1038 of 2002(A) ----------------------- OA.44/1999 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS/APPLICANTS IN O.A: --------------------------------------- 1. MRS. SAINABI, AGED 63 YEARS, W/O. LATE K.B.M. BADSHAH, PLUTHUKKUDI ESTATE, MUKKIL PEEDIA, P.O. MEPPADI, WYNADU DISTRICT. 2. SHEFI, AKTHAR, AGED 44 YEARS, S/O. LATE K.B.M. BADSHAH, PUTHUKKUDI ESTATE, MUKKIL PEEDIA, P.O. MEPPADI, WYNADU DISTRICT. 3. DILSHAD, AGED 42 YEARS, D/O. LATE K.B.M. BADSHAH, PUTHUKKUDI ESTATE, MUKKIL PEEDIA, P.O. MEPPADI, WYNADU DISTRICT. 4. NOUSHAD, AGED 39 YEARS, S/O. LATE K.B.M. BADSHAH, PUTHUKKUDI ESTATE, MUKKIL PEEDIA, P.O. MEPPADI, WYNADU DISTRICT. 5. ROSHAN, AGED 37 YEARS, S/O. LATE K.B.M. BADSHAH, PUTHUKKUDI ESTATE, MUKKIL PEEDIA, P.O. MEPPADI, WYNADU DISTRICT. BY ADV. SRI.V.V.SURENDRAN SRI.TOJAN J. VATHIKULAM RESPONDENTS/RESPONDENTS IN O.A: --------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY SPL. GOVERNMENT PLEADER SRI.M.P. PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.1038/2002 2 ORDER ON C.M.P.No.6356/2002 IN M.F.A.No.1038/2002 DISMISSED 15/01/2008 Sd/-J.B.KOSHY,JUDGE Sd/- K.M.JOSEPH,JUDGE TRUE COPY P.A.TO JUDGE J.B.KOSHY & K.M.JOSEPH, JJ. ------------------------------------------- M.F.A.NO.1038 OF 2002 ------------------------------------------- Dated this the 15th day of January, 2008 JUDGMENT Koshy, J. The appellants approached the Forest Tribunal contending that for a declaration that 1.33 Acres of land comprising in Kottappadi Village of Vythiri Taluk is not a private forest, and if it is a private forest they are entitled to get exemption under Section 3(2) and 3(3) of the Act. The first question to be considered is whether scheduled property is a forest as defined by the Kerala Private Forests (Vesting and Assignment) Act 1971 (In short 'Vesting Act'). The private forest is defined under Section 2(f) of the Act. The Tribunal found that it is not an area covered under the M.P.P.F. Act. As far as Malabar area is concerned to be a private forest it must be an area covered under the M.P.P.F.Act. The scheduled property is situated in Malabar area. Therefore it is covered under the definition of the private forest vested under Section 3(1) of the Vesting Act. Only if it is vested under Section 3(1), the question whether MFANO.1038/2002 2 appellants are entitled to exemption under Sections 3(2) and 3(3) will arise. Apart from the above, Ext. C1 commissioner report shows that the entire area was planted with coffee and orange. The commissioner also reported that the coffee plants area having the girth of 28 inches. That shows that coffee plants were planted much before the Act come into force. It is contended by the Government Pleader that they have produced Ext.A2 purchase certificate which shows that they have ownership of the property. They contended that they got the property from Arakkal Pathumma. Ext.A2 shows that the Harrison Malayalam Ltd. is intermediary and there is dispute regarding identification of the property. But the commissioner visited the property along with the representatives of the appellants and respondents. He identified the property and found that three sides of the property are private lands and only one side was vested forest. In Ext.C3 report, commissioner also stated that as per the plans submitted by the Government department, he is prepared to visit the place again. It was contended by the appellant that if it is not a private forest, the forest authority will not get authority to enter into the property MFANO.1038/2002 3 and question of registered title deed and intention to cultivate arises only when considering exemption under Section 3(3). The question is whether land was personally cultivated by the appellant is for consideration under Section 3(2). There is no clear finding by the Tribunal. 2. In the above circumstances, we are remanding the matter. The Tribunal shall first consider whether it is a private forest or if it is not a private forest, the forest authorities cannot interfere with the possession of the property and Tribunal can make a declaration to the fact that it is not a private forest vested under Section 3(1). If it is found that it is vested forest under Section 3(1) the Tribunal has to ascertain whether it is exempted under Section 3(2). For exemption under Sections 3(2) and 3(3), apart from proving the ingredients in the Sections, the petitioner also has to produce certificate from the revenue authorities to show that they are not possessing excess land beyond ceiling area as per the provisions of Land Reforms Act. If there is any dispute regarding the identification of the property, commissioner can be asked to visit the property with the aid of MFANO.1038/2002 4 the plan. The Tribunal shall also consider whether any fraud is involved in obtaining Exts.A1 and A2 while considering the exemption under Section 3(2) and 3(3). We are leaving the matter open but make it clear that it is for the parties who pleads that Exts. A1 and A2 certificates are obtained by fraud to prove the allegations. Parties may appear before the Tribunal on 25th March 2008. The appeal is allowed as above. J.B.KOSHY, JUDGE K.M.JOSEPH, JUDGE csl