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. 940 of 2000() --------------------- OA.86/1998 of FOREST TRIBUNAL, PALAKKAD .................... APPELLANTS: ----------- 1.UMMER, S/O.KUNHUNNI 2.KADEEJA,W/O.UMMER 3.MUHAMMED ALI, S/O.UMMER. 4.HAMMED,S/O.UMMER, CHAKKUPURACKAL HOUSE, UPPUKULAM P.O., EDATHUNATTUKARA, MANNARGHAT. BY ADV. SRI.T.M.SUNIL SMT.S.CHITHRA RESPONDENTS: ------------- 1.STATE OF KERALA, REP. BY CHIEF SECRETARY,TRIVANDRUM. 2.CUSTODIAN OF VESTED FORESTS, OLAVAKKOD, PALGHAT. BY GOVERNMENT PLEADER SRI.M.P.PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.940 OF 2000 () ----------------------------------- Dated this the 25th day of February, 2008 J U D G M E N T KOSHY,J. Appellants approached the Forest Tribunal when possession of the petition scheduled property of the appellant was interfered by the Forest Officials. According to the appellant, the area involved is not a private forest vested under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (in short 'the Act'). They further contended that even if the area involved is a private forest as defined under the Act, they are entitled to get exemption under Sections 3(2) and 3(3) of the Act. The land admittedly is situated in Malabar area. Section 2(f) of the Act defines 'Private forest' 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, 1958 (Central Act 37 of 1956)- MFA.940/2000 2 (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 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 MFA.940/2000 3 shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs; Tribunal found that area in question in the application are not covered under the M.P.P.F. Act. Then, for vesting under Section 3(1) of the Act, it should be proved that it is a waste land which are enclaves within wooden areas. Only if it is a private forest as defined under the Act, the land will vest with the Government under Section 3(1). If it is not a private forest, it does not vest with the Government and there is no question of appellants proving that they are entitled to get exemption under Sections 3(2) and 3(3). Burden is on the appellant to prove that they are entitled to get exemption under Sections 3 (2) and 3(3). Here the first question to be considered is whether it was a private forest defined under the Act. It was found that it was not an area not covered under the MPPF Act. Then the question is whether it is forest or waste land within enclave of forest. Ext.C1 is the Commission report with Plan. The area claimed was divided into four parts by the Commissioner and found that item Nos.2 to 4 are full of forest trees, bushes etc. With regard to item No.1, Commissioner found that it was a cultivated area with rubber, pepper and MFA.940/2000 4 cashew nuts. The Commissioner visited the property along with the Advocate for the appellants as well as the Range Officer and other forest officials. Commission report shows as follows: “At the time of commissioners visit the southern portion of item No.1 (Marked green colour) in the sketch is cultivated with rubber, arecanut and pepper. The property is situated different layers, each layer is separated by Kayala. A natural stream is passing across this item in north south direction through western side. One old residential house having two rooms with sheeted roof is also seen in this portion. At the time of our visit the family and children of the applicants were staying in the house. The forest officials disputed that the house is not a residential one. The applicant showed to the commissioners the house number 1/801 and produced two Ration Cards bearing card number 294247 issued on 21.3.1992 and card number 53165 of A.R.D. 50 Ration Shop Kottupalla, Edathanattukarai. They showed another document which is the copy of the building tax assessment Register of Allanallur Grama Panchayat issued to the applicant by the Secretary of Allanallur Grama Panchayat on 15.5.1998 in which the assessment of the applicant's house for the year 1974 to 75 and 1978 to 79 are seen. In this register the house is described as “................”. After perusing these documents the commissioners are satisfied that the house seen in the OA Schedule property is a residential one.” Tribunal further found that in the southern portion of Item No.1 MFA.940/2000 5 is planted with rubber. He has found 115 rubber trees with age more than 20 years. He also found that the western portion is full of arecanut trees. He also found pepper wines bearing fruits having the age of 10 to 35 years and cashew nut trees having the age of more than 30 years. He also recorded the statement of 1st applicant that some of the rubber plants were uprooted by the forest officials. Commissioner was able to trace out the cultivation and that there were a very few trees like jack trees, anjili trees etc. (which are usually cultivated) in the area. The Commission report very clearly shows that this area (item No.1) was a cultivated area and there was an old residential house in which petitioner and family were living and it is also stated that three sides of the property are private lands and one side (Item No.2) has forest species of trees. In the above circumstances, it is clear that since it is not the M.P.P.F area, item No.1 is not at all wooden area or a waste land within wooded area. It that is so, item No.1 is not a private forest so as to vest with the Government under Section 3(1). It is true that tribunal has stated that the appellants was not able to produce the documents to show that it was a cultivated land before 1971. It is true that the payment of rent regarding the building started only from 1974. Commissioner MFA.940/2000 6 also considered the matter and found that it was an '................' earlier and petitioner and family were staying. In any event, the land covered in Item No.1 which is specifically shown and demarked in the Commission report and plan attached to it was not a private forest vested with the Government under Section 3(1). Item No.1 is having an extent of 2.88 hectors. Petitioner also produced various exhibits before this Court to show that the land was cultivated by their predecessor mother etc. and a copy of the Magistrate Court order was also produced. When they were earlier prosecuted for enchanting the forest, it was found in judgment in C.C.No.413/1997 that it was a cultivated area owned by them and it was not a forest. In any event, we are of the view that evidence produced before the tribunal including Commission report shows that item No.1 mentioned in the commission report is not a private forest vested with the Government. In that case the petitioner with family were staying even before the Act came into force. Commissioner's report would clearly shows that it was not a waste land in a wooden enclave or it is a cultivated land. There was no evidence to show that at anytime, it was a forest. In the above circumstances, we are of the view that tribunal ought have found that item No.1 marked by the Commissioner MFA.940/2000 7 was not a private forest and declaration to the same ought to have been given by the tribunal. But with regard to Item Nos.2 to 4, it is clear that it contained forest trees and it is a forest. For Items Nos.2 to 4, petitioner failed to prove that they are entitled to get any exemption under Sections 3(2) or 3(3) of the Act but it is declared that item No.1 mentioned in the Commission report considering of 2.88 hectors of land is not a private forest on the appointed day and it is not vested with the Government. The impugned award of the tribunal is modified to the above extent. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.940 OF 2000 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 25th February, 2008