IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 MFA.No. 739 of 2000() --------------------- OA.30/1998 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT: ----------- P.G.JOHNSON, PUTHAN PARAMBA, INCHIKUNNU, POTTASSERI AMSOM DESOM, KANHIRAPUZHA, MANNARKKAD. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS AND CONSERVATOR OF FORESTS, KOZHIKODE. BY GOVERNMENT PLEADER SRI M.P.PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K. Hema, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M. F.A.No. 739 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of April, 2008 JUDGMENT Koshy, J. Appellant filed an application before the Forest Tribunal, Kozhikode contending that 2.57 acres of land in their possession is not a private forest and not vested with the Government and even if it is a forest, he is entitled to exemption under section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Tribunal allowed the application originally, but the State questioned the same by filing an appeal M.F.A.No.545/1985. The matter was remanded and after remand the Tribunal rejected the case stating that the claim was not proved. The appellant filed MFA No.107/1991. Again the matter was remanded for considering whether the applicant was cultivating the property prior to 1971 and whether the applicant is entitled to exemption under sub-section (2) of section 3 of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The remand order reads as follows:- “..Can the Tribunal totally ignore the oral evidence given by the applicant in support of case of cultivation of the land in question with pepper, ginger, jack, mango, etc.? It cannot do MFA 739/2000 2 so summarily. There shall be proper appreciation of the entire evidence given by PW1. We are therefore not satisfied with the manner in which the Tribunal has appreciated the oral evidence in the case. We have already referred to the oral evidence tendered by PW1 and also the averments contained in the application as originally filed. The Tribunal is legally bound to examine the oral and documentary evidence produced by the appellant in support of his contention that he was cultivating the property prior to the year 1971. After hearing the arguments on both sides and perusing the impugned order, we are satisfied that the Tribunal had not appreciated the material evidence available in the case which we have referred to herein above. Therefore, the impugned revised order is set aside and we direct the Tribunal to consider the oral and documentary evidence produced by the appellant in support of the contention referred to above. We make it clear that both parties are free to adduce further evidence if any in this regard. Since the application is of the year 1980, we direct the Tribunal to pass orders expeditiously”. Therefore, question to be considered is whether the land was cultivated at the relevant time. 2. In this connection we note that the Kerala Private Forests (Vesting and Assignment) Act, 1971, hereinafter referred to as the Act, was passed for assignment of the land to agriculturist and agricultural labourers for cultivation. The private forest is defined under section 2(f) of the Act, which reads as follows:- “(f) “private forest” means-- 1) in relation to the Malabar district referred to in sub- MFA 739/2000 3 section (2) of Section 5 of the State Reorganization Act, 1958 (Central Act 37of 1958)-- 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 garden 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. Admittedly, the land in question is covered under the Madras Preservation of Private Forests Act. Even if it is covered under the Madras Preservation of Private Forests Act, 1949, lands mentioned in clauses A to C are excluded. According to the claimant, it was fully cultivated land and it was paramba. The appellant invited our attention section 2(15) of the Land Reforms Act and contend that it is not a private forest and it will not vest with the Government under section 3 (1) of the Act. Therefore, question for considering application under sub-section (2) in section 3 is not applicable. It is further provided that even if it is a private forest vested with the Government, if the land is under personal cultivation, land is exempted from vesting. If there is a registered title deed at the time when the Act came into force and MFA 739/2000 4 intention to cultivate by the owner, the land is exempted under section 3 (3)of the Act. Here the appellant was in possession of the land and he got legal possession because he obtained purchase certificate apart from the lease deed. There is no case that the purchase certificate was obtained by fraud. Even with regard to the land ceiling order, it was held by the Honourable Supreme Court in Kunjanam Antony (Dead) by Lrs. V. State of Kerala and another ((2003)3 SCC 221) that due weightage has to be given to the Taluk Land Board's order unless contrary state of affairs shown to exist. 3. The question in this dispute was only whether the land was cultivated at the time when the Act came into force. That question was to be considered by the Tribunal as per the Act. For that the commission report was obtained. Ext.C2 report filed in 1982 itself shows that the land contained rubber, pepper and other fruit bearing trees. Ext.C4 report filed in 1989 shows that the land had 240 rubber trees of more than 20 years old and 75 trees 20 years old. Ext.C6 is the Expert Commission report given on 5-10-1999, which was signed by Senior Scientist IISR Farm which notices that there were pepper vines with more than average age 31.2 years. The above would show that it was a fully cultivated area at the time when the Act came into force. Therefore, MFA 739/2000 5 the land in question is not a private forest and not vested with the Government and even if it is a private forest exemption can be granted under section 3(2) of the Act. In the earlier remand order the Tribunal was directed to consider the above aspect only. The Tribunal after finding that it was cultivated area when the Act came into force, held that the appellant was not entitled for declaration that it was not a private forest vested with the Government. Such an order is totally wrong. 4. Therefore, we set aside the impugned order and the application and the appeal are allowed. J.B. Koshy, Judge K. Hema, Judge mn. MFA 739/2000 6 J.B.Koshy & K. Hema, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M. F.A.No. 739 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 11th day of April, 2008