Islahul Muslimeen Mahalu Committee v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 MFA (FOREST) NO. 137 OF 2007** ## **OA 3/2005 OF FOREST TRIBUNAL, KOZHIKODE DTD.18.1.2007** ## **APPELLANT/PETITIONER:** ISLAHUL MUSLIMEEN MAHALU COMMITTEE, PUTHIYAPADY, P.O.TATAMALA (VIA), MANANTODDY, WAYANAD DISTRICT, REPRESENTED BY SECRETARY, M.KOMU, S/O.SAIDALAVI, MANTHIKKARA (H), P.O.TATAMALA, WAYANAD DISTRICT. BY ADV DR.K.B.MOHAMEDKUTTY (SR.) ## **RESPONDENTS/RESPONDENTS:** 1 THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKODE, PALAKKAD. 3 THE MANAGER, TATAMALA ESTATE, P.O.TATAMALA, WAYANAD DISTRICT. ## **OTHER PRESENT:** SRI.NAGARAJ NARAYANAN- SPL.G.P **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A (Forest) No.137 of 2007 ..2.. ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------M.F.A (Forest) No.137 of 2007 ------------------------------------------------------------Dated this the 21[st] day of November, 2022 ## **JUDGMENT** ## C.Jayachandran, J. This appeal is directed against the Order of the Forest Tribunal, Kozhikode in O.A.No.3/2005 dated 18.1.2007, as per which, the applicant's claim for declaration that the scheduled property is not a private forest under Act 26 of 1971 was declined. The aggrieved applicant is the appellant. ## 2. Facts in brief :- The scheduled property has an extent of 2.84 hectares comprised in Re. Sy. no. 170/3 of Kanjirangad Village. The scheduled property is part of 5 acres of land given to the applicant Mahal Committee by the English and the Scottish company in the year 1957 for the purpose of a graveyard, to bury the dead bodies of the labourers of Thattamala Estate, who belong to Islam religion. The applicant Mahal Committee was established by the said company in Thattamala Estate. M.F.A (Forest) No.137 of 2007 **==> picture [22 x 8] intentionally omitted <==** Although the extent given was 5 acres, some extent was surrendered for formation of road and some, trespassed by the local people. The scheduled property is the extent remaining out of the said 5 acres. The land was being used as a graveyard ever since 1957 and the same is not a private forest, to which the Madras Preservation of Private Forests Act, 1949 ('the M.P.P.F.Act', for short) did not apply immediately prior to the appointed day under Act 26 of 1971. On such premise, the petitioner sought for a declaration in the lines indicated in paragraph no.1 of this judgment. 3. The Divisional Forest Officer, Wayanad filed counter affidavit contending that the scheduled property is a vested forest, forming part of VFC item no.112 covered by notification no. 4713/77/B dated 8.7.77 by the Custodian of vested forest. The applicant has no right, title or interest in the scheduled property. The northern boundary of the scheduled property is vested forest. The office bearers of the applicant committee committed trespass into the forest land, in respect of which incident, a case, O.R.No.3/2002, was registered against them, which pends consideration before the J.F.C.M. court, M.F.A (Forest) No.137 of 2007 **==> picture [22 x 8] intentionally omitted <==** Mananthavady, as C.C.No.293/2003. On such premise, the respondent sought for dismissal of the O.A. 4. On an analysis of the facts, evidence and probabilities of the case, the Tribunal found that the applicants failed to establish that the scheduled property is a land to which the M.P.P.F. Act would not have applied immediately prior to the appointed date. The Tribunal found that the scheduled property is a private forest which vested with the Government in terms of Act 26 of 1971. 5. We primarily find that the conclusion of the Tribunal as regards applicability of the M.P.P.F. Act cannot be sustained. The M.P.P.F. Act, 1949 applies to all private forests in the Districts of Malabar and South Kanara, having a contiguous area exceeding 100 acres by virtue of Section 1(2)(i) of the Act. The specific case put forward by the respondents in the counter affidavit is that the scheduled property was part of the property demarcated and surveyed under VFC item no.112, covered by Ext.B1 notification and Ext.B2 sketch. The Tribunal found that the total extent of land included in Sy.no.170/3 shown in Ext.B1 under VFC item no.112 was only 16.30 M.F.A (Forest) No.137 of 2007 **==> picture [22 x 8] intentionally omitted <==** hectares. However, the Tribunal, in the absence of necessary pleading, endeavored to calculate the total extent of land covered by several bits coming under VFC item no.112, to find that the total extent under the said item comes to 102 hectares, a course not sustainable, in the given circumstances. There is no pleading in the counter affidavit to the effect that the scheduled property forms part and parcel of a 'malavaram' (slope of a hill), having an extent of more than 100 acres, which is lying contiguously. Nor is there any such claim propounded in the chief examination of RW1, the Forest Range Officer. It could thus be seen that there was neither any pleading nor proof that the scheduled property is part of a private forest having a contiguous area exceeding 100 acres, wherefore, the exercise made by the Tribunal, to calculate the total extent of land coming under various bits to VFC item no.112, can hardly be sustained in law. 6. However, the reversal of the said finding is of little consequence in so far as the ultimate outcome of the O.A is concerned, inasmuch as, the applicant committee failed to establish that the scheduled property is not a private forest M.F.A (Forest) No.137 of 2007 **==> picture [22 x 8] intentionally omitted <==** within the meaning of Section 2(f)(1)(ii) of the Vesting Act. As per the said Section, any forest not owned by the Government, to which the M.P.P.F. Act, 1949 did not apply, including waste lands which are enclaves within wooded areas is a private forest. This component of the definition of private forest is rightly answered by the Tribunal in paragraph no.10 of the impugned order by relying upon a judgment of the Apex Court in State of Kerala v. Anglo-American Direct Tea Trading Company [1980 KLT 215]. In that case, the Hon'ble Supreme Court held that the term 'private forest' applies to lands other than those on which human skill, labour and resources have been spent for agricultural operations. That apart, Section 2(f)(1)(ii) speaks about any forest not owned by the Government. The term 'forest' is not defined in Act 26 of 1971. Section 2A of the M.P.P.F. Act defines 'forest' as including waste or communal land containing trees and shrubs, pasture land and any other class of land declared by the State Government to be a forest by notification. Primarily, we endorse the finding of the Tribunal that the applicant/appellant failed to establish that the scheduled property is not a forest as envisaged in Section 2(f) M.F.A (Forest) No.137 of 2007 ..7.. (1)(ii) of the Vesting Act. 7. Secondly, we note the facts found in Ext.C1 commissioner's report, the relevant portion of which are extracted hereinbelow: “3. The O.A. schedule property is occupied with large number of trees and measures approximately 3 acres in area. Except the western side all other sides of the schedule property is bounded by a canal (ക�ടങ� ). The Canal is digged for the purpose of protecting the area from the trespass of animals. The whole OA schedule property is occupied by forest trees, wild shrubs and wild grass with a height about 6 feet.” The above findings would conclusively establish that the scheduled property is impressed with the characteristic features of a forest. On the said impressions recorded, it has to be found that the claim of use as a burial ground also cannot be sustained. We say this quite conscious of the fact that an ancillary use as contemplated under clause (D) of Section 2(f) (1)(i) of the Vesting Act is not attracted on the use projected; M.F.A (Forest) No.137 of 2007 **==> picture [22 x 8] intentionally omitted <==** which in any event has to be urged by the employer, the holder of the lands, and not by the appellant herein. We therefore find that the scheduled property is a private forest as defined under Section 2(f)(1)(i) of the Vesting Act and the claim for exclusion under clause (A) to (D) of Section 2(f)(1)(i) and exemption under Section 3(2) & (3) of the Vesting Act cannot be declared. In the light of the above finding, the declaration sought for in the O.A. cannot be allowed. We therefore confirm the Order of the Tribunal and dismiss the appeal, relegating the parties to bear their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** skj