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. 69 of 2001(B) --------------------- OA.38/1995 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT: ----------- P.J.KURUVILA,S/O.JOSEPH, PUTHANKADUPPIL POST KANJIRAPPALLI, ANCHILUPPA, KOTTAYAM DISTRICT. BY ADV. SRI.M.C.JOHN RESPONDENTS: ------------- 1.THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY, TRIVANDRUM. 2.THE CUSTODIAN OF VESTED FORESTS CUSTODIAN'S OFFICE OLAVAKKODE, PALAKKAD DISTRICT. BY ADV. SRI.M.P.PRAKASH, SPL.GOVT.PLEADER (FOREST) FOR R1 AND R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.69 OF 2001 (B) ----------------------------------- Dated this the 8th day of February, 2008 J U D G M E N T KOSHY,J. This appeal is filed against the order in O.A.No.38/1995 on the file of Forest Tribunal, Kozhikode. The above judgment is a common order where the tribunal disposed of the application filed by the petitioner's daughter-in-law also which was numbered as O.A.No.40/1995. It has come out in evidence that the land involved in this case was governed by the provisions of the M.P.P.F. Act. Their predecessors purchased the property from Malayalam Plantations Limited, a company engaged in the plantation business of rubber, tea, cardamom etc. The earliest documents are numbered as 1864/1970 and 1866/1970. That documents itself shows that permission was granted from the District Collector under the M.P.P.F. Act for selling and cultivating the property. Under Section 3(1) of the Kerala Private Forest (Vesting and Assignment) Act, all private MFA.69/01 2 forests vested with the government unless exemption under Sections 3(2) or 3(3). Private forest is defined under Section 2 (f) 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 purpose 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 crops and MFA.69/01 3 (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. 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;” According to the claimants, this property was cultivated when the Act came into force, and therefore, it is exempted under Section 2(f) (1) (i) (C) and (D) of the Act. Therefore it is exempted though it is covered under the M.P.P.F.Act. They got a further contention that even if it is not exempted they are entitled to get benefit under Sections 3(2) and 3(3). The tribunal exhaustively considered all the evidence and found that Malayalam Plantations sold an extent of 937.57 acres of land on the basis of agreement dated 10.1.1968 to various MFA.69/01 4 persons. Petition filed by his daughter-in-law was allowed as it was a cultivated land. It is the contention of the petitioner that adjacent lands were also declared as cultivated lands and not private forest. With regard to petitioner's claim for 11 acres, only 3 acres of land was allowed as exempted and claim regarding balance 8 acres of land was rejected. With regard to the above, tribunal has relied on the Commission report. Since the respondent accepted that the three acres of land are not private forest, dispute was only regarding the blue shaded portion in Ext.C4 plan produced by Commissioner. Tribunal considered the contentions in paragraphs 31, 32 and 33 which is as follows: 31. Ext.C4, the plan shows the property involved in this case. The property shows in yellow shade is a portion of the schedule property which the respondents does not claim to have vested in the Government. The dispute is with regard to the plot shown in blue shade i.e. Plot B in Ext.C4. The respondents contends that plot B in Ext.C4 is vested in the Government under the provisions of Act 26 of 1971. 32. In Ext.C3 the commissioner reported that the plot shows in yellow shade in Ext.C4 is not a vested forest. 33. RW1, the Range Officer, deposed that MFA.69/01 5 the forest department has no dispute with regard to the property shown in yellow shade in Ext.C4 as it is not a vested forest. Their dispute is only with regard to the property shown in blue shade in Ext.C4. From the report of the commissioner marked as Ext.C3, Ext.C4 plan and from the evidence given by RW1, I find that yellow shade property in Ext.C4 is not a vested forest.” The above shows the nature of the contentions of both parties with regard to the disputed property. Tribunal has considered the evidence in detail and found that on the date when the Act came into force, out of the 11 acres only 8 acres were not cultivated and cardamom plantation was first registered only in 1974. There is no dispute that Exts.A12, A15, A16 to 21 etc. very clearly show that the land in dispute is a pacca cardamom plantation after 1974 and only question is whether there was intention to cultivate on the appointed day. Tribunal also found that petitioner has valid title deed. Then the question is whether petitioner is entitled to get benefit under Section 3(3) if the land was purchased with the intention to cultivate. Tribunal found that since it was not cultivated on the date of coming into force of the Act, it cannot be stated that they are entitled to get exemption. But learned counsel cited decision in MFA.69/01 6 State of Kerala v. Pullangode Rubber and Produce Co. Ltd. (1999 (3) KLT 334 (SC) holding that when except a small portion, balance was cultivated, one can presume that there was intention to cultivate. It is the contention that petitioner's relatives purchased large extent of adjacent land (small portions each) and dispute is only regarding balance 8 acres of land and all surrendered lands are cultivated private lands. Cultivation itself was started in 1964. These facts invariably shows that there was intention to cultivate on the appointed date, that is, in 1971. In this connection, we also refer to the decision of the Supreme Court in Joseph v. State of Kerala (2007 (3) KLT 144 (SC)) wherein the Supreme Court considered the question how intention to cultivate can be gathered from the evidence. Cultivation of part of the land manifested intention to cultivate the entire land purchased. In fact it was fully cultivated by 1974. It is the case of the petitioner that even now the plantation fees are paid by him and evidence is also adduced to show that for number of years, he is paying tax. Admittedly, claimant has got title deed over the property and there is no dispute regarding identification of MFA.69/01 7 property. In the above circumstances, we remand the matter for further consideration of the question whether petitioners are entitled to get benefit of exemption under Section 3(3) of the Act as the decision of the Apex Court reported in Joseph's case was not available earlier. Hence, we remand the matter. Both parties are allowed to adduce further evidence also. 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.69 OF 2001 (B) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 8th February, 2008