M.F.A. (Forest) Nos. 81 of 2015, 95 of 2015 and 3 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944** **MFA (FOREST) NO. 81 OF 2015** **AGAINST THE ORDER IN OA 24/2010 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** - 1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, (FOREST AND WILDLIFE), THIRUVANANTHAPURAM. - 2 THE CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. - SRI. NAGRAJ NARAYAN, SPL.GOVERNMENT PLEADER ## **RESPONDENTS/APPLICANTS:** - 1 GOPALAN, S/O.CHAMIYAR, MARITHODI NOCHUPULLY, PUDUPPARIYARAM, PALAKKAD DISTRICT. - 2 KARTHYANI, W/O.GOPALAN, NOCHUPULLY, PUDUPPARIYARAM, PALAKKAD DISTRICT. - 3 BINDU, D/O.GOPALAN, NOCHUPULLY, PUDUPPARIYARAM, PALAKKAD DISTRICT. - 4 SINDHU, D/O.GOPALAN, NOCHUPULLY, PUDUPPARIYARAM, PALAKKAD DISTRICT. - 5 INDU, D/O.GOPALAN, NOCHUPULLY, PUDUPPARIYARAM, PALAKKAD DISTRICT. BY ADV SRI.TOM K.THOMAS THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 11.10.2022, ALONG WITH MFA (FOREST).95/2015, 3/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA(Forest) No.81 & 95 of 2015 and 3 of 2016 **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944 MFA (FOREST) NO. 95 OF 2015** **AGAINST THE JUDGMENT IN OA 26/2010 OF FOREST TRIBUNAL,** ## **KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** - 1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, (FOREST AND WILDLIFE) THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. BY ADV SRI.M.P.MADHAVANKUTTY, SPL. GOVT. PLEADE ## **RESPONDENT/APPLICANT:** THANKA W/O.ARUMUGHAN, MARITHODI, NOCHUPULLY, PUDUPPARIYAM, PALAKKAD. BY ADV SRI.MATHEW KURIAKOSE THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 11.10.2022, ALONG WITH MFA (FOREST).81/2015, 3/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA(Forest) No.81 & 95 of 2015 and 3 of 2016 **3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944 MFA (FOREST) NO. 3 OF 2016** **AGAINST THE JUDGMENT IN OA 25/2010 OF FOREST TRIBUNAL,** ## **KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** 1 STATE OF KERALA REP BY PRINCIPAL SECRETARY(FOREST & WILDLIFE)THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD BY ADV SRI.M.P.MADHAVANKUTTY, SPL. GOVT. PLEADE ## **RESPONDENT/APPLICANT:** SATHYABHAMA W/O.KRISHNAN, MARITHODI, NOCHUPULLY, PUDUPPARIYAM, PALAKKAD BY ADVS. SRI.MATHEW KURIAKOSE SRI.MATHEW KURIAKOSE THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 11.10.2022, ALONG WITH MFA (FOREST).81/2015, 95/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA(Forest) No.81 & 95 of 2015 and 3 of 2016 **4** **C.R.** **K.VINOD CHANDRAN & C. JAYACHANDRAN, JJ ----------------------------------------------------------------M.F.A.(Forest) Nos.81 and 95 of 2015 & 3 of 2016 ---------------------------------------------------Dated this the 11[th] October, 2022** ## **J U D G M E N T** ## **K. Vinod Chandran,J** The appeals are filed from a common order of the Forest Tribunal. The respondents who were the applicants before the Forest Tribunal claimed exclusion under S.2 (f)(1)(i) of the Private Forest (Vesting and Assignment) Act, 1971 ( hereinafter, 'the Act of 1971'). Having looked at _State of Kerala v. K.C.Moosahaji 1984 KLT 494_ and _K.M.Abdu v. State of Kerala_ an unreported judgment in M.F.A. No. 3 of 2007 dated 14.3.2013, the Tribunal held that going by S.2(f) of the Act of 1971, if the Court is satisfied from the evidence produced before it that an item of property is not a forest, by its characteristics or otherwise, it can be held that it is not a private forest. In other words if an applicant before the Tribunal establishes that a property situated in Malabar district is not having the characteristics or features of a forest immediately prior to 10.05.1971, then ## MFA(Forest) No.81 & 95 of 2015 and 3 of 2016 ## **5** such land cannot be said to be a private forest under S.2 (f) of the Act of 1971. It is on this premise that the applications were considered and disposed of, which we find to be legally erroneous from a reading of the Act and also the Full Bench decision in _K.C.Moosa Haji (supra)_ . 2. It was following _K.M.Abdu_ (supra) that the learned Tribunal found that, if it is proved that a land is not a forest, then it cannot be a private forest and would not be one covered under the Madras Preservation of Private Forest Act, 1949 (hereinafter, MPPF Act). Section 2 (f) of the Act of 1971, which defines private forest by sub-clause (1) first, makes the word relatable to the Malabar district. The first requirement hence is that the private forest should be within the erstwhile Malabar district as referred to in the States Reorganization Act, 1956. A reading of S.2(f)(1)(i) would make it clear that any land to which the MPPF Act applies immediately before the appointed day, excluding those covered under clause A to D would be a private forest under the Act of 1971, if it is within the Malabar district. Again by sub-clause (ii) of Section 2(f)(1), any forest not owned by the Government to which the MPPF Act does not apply including waste lands enclosed within wooded areas would be **6** ## MFA(Forest) No.81 & 95 of 2015 and 3 of 2016 private forest under the Act of 1971 and as per sub-clause (2) of S.2(f)(1), any forest not owned by the Government including waste lands enclosed within wooden areas, located in the other parts of the State of Kerala would also come within the definition. When we look at the different clauses defining private forests; within the erstwhile Malabar district; lands to which MPPF Act of 1971 is applicable, which do not stand excluded by clauses A to D of S.2(f)(1)(i) is private forest; whether the land has the characteristics of a forest or not. Similarly forests, not owned by the Government, again within the Malabar district, on which MPPF Act does not apply including waste lands enclosed within wooded areas, would come under the definition of a private forest by virtue of Section 2(f)(1)(ii) of the Act of 1971. Hence, when we examine the exclusions at A to D, it is not merely lands having the characteristics or nature of a forest that is covered by the MPPF Act, which would fall under the definition of the Act of 1971. Any lands within the Malabar district, to which the MPPF Act applies come within the definition of forest. However, only forests, which are not covered by the MPPF Act, within the erstwhile Malabar district and those situated in the remaining areas of the State of Kerala; ## MFA(Forest) No.81 & 95 of 2015 and 3 of 2016 ## **7** would come within the definition of 'private forests' under the Act of 1971. Under section 2(f)(1)(ii) & 2(f)(2) to be private forests, it should have the nature and characteristics of a forest. When considering a land for exclusion under S.2(f)(1)(i), the said consideration is not at all relevant, especially looking at the words employed in the said provision of : 'any land' as distinguished from that employed in S.2(f)(1)(ii) and S.2(f)(2) : 'any forest'. 3. In _K.M.Abdu (supra)_ , a co-ordinate bench found otherwise and held that only a forest can be a private forest as seen from a close reading of the definition clause Section 2(f); which declaration we are unable to agree with, with due respect. Normally we would have referred the matter for consideration by a larger bench, but the same is unnecessary by reason of the binding decision of a larger bench in _K.C.Moosahaji, (supra)_ which held so regarding the very same contention: _7 . We are unable to accept this contention. S.2(f)(1) of the Vesting Act defines 'private forest' as any land, whatever be its nature or character. If the M.P.P.F. Act was applicable to the land in 1949, and if it continued to apply to it up to 10-5-1971, that land will be a private forest for the purposes of the Vesting Act. The question is not whether there was a forest in existence in 1971; it is whether there was_ MFA(Forest) No.81 & 95 of 2015 and 3 of 2016 **8** _any land in 1971 to which the M.P.P.F. Act was applicable in 1949 and continued to be under its coverage till 1971. It is common ground that the lands involved in these appeals were all private forests as defined in the M.P.P.F. Act, in 1949. Clearfelling and replanting were carried out with the permission of the District Collector. Therefore, the enquiry should be as to whether as a result of such operations the M.P.P.F. Act had ceased to apply to those areas. That will depend on the provisions of that Act, and not on the concept or even the definition of 'forest'. And our attention has not been drawn to any provision of the said Act which postulates that denudation, with or without permission, was capable of putting an end to its applicability to the denuded area. On the other hand, the First Explanation to S. l(2)(i) of the Act indicates that lands brought under fugitive or other cultivation after the 14th of December, 1949 (i.e. the date on which the Act was published in the Gazette) were to continue as private forest for the purposes of the Act, despite such cultivation. The Second Explanation further indicates that denudation reducing the forest area below 100 acres, or destroying contiguity, was not capable of taking the lands out of the definition in S. l(2)(i). Rules framed under the Act also show that except in the case of casuarina, clear-felling of trees could only have been at a height above six inches from the ground, so that the stumps were retained to allow natural regeneration. Even in the case of casuarina or other trees where natural regeneration could not be thought of, the permit-holder had to replant the area during the currency of the permit. The felled areas were to be closed even to grazing for a period of five years. In our opinion, the object of the Act was to_ **9** ## MFA(Forest) No.81 & 95 of 2015 and 3 of 2016 _preserve the private forests as forests, and one of the legislative devices adopted even in respect of areas allowed to be clear-felled was to make provision either for natural regeneration or for obligatory replanting, so that the Act continued to apply and protect or preserve such areas. It was never the intention of the legislature to permit permanent deforestation either through grant of permission by the Collector or through unauthorised felling, so that as and when anything of that kind was done to the area, it would get itself free from the constraints of the Act. Clearly, once the Act was applicable to an area in 1949, nothing done by the owners or others was capable of putting an end to such applicability to that area._ 4. In _K.M.Abdu (supra)_ the learned judges looked at Section 1(2) of the MPPF Act, dealing _inter-alia_ with the application of the enactment and the related provisions, to find that the expression used is always 'forest' and hence that enactment applies only to forests. In fact the Division Bench omitted to look at the definition of forest in the MPPF Act, Section 2(a), defines forest as including waste or communal land containing trees and shrubs, pasture land and any other land declared so by notification. The word 'communal land' is also defined in the Explanation as those lands described in sub-clauses (a) & (b) of Section 3(16) of the Madras Estates Land Act, 1908. The said sub-clauses in the ## MFA(Forest) No.81 & 95 of 2015 and 3 of 2016 ## **10** Estates Land Act indicate exclusions made, from the definition of 'Ryoti Land', of 'beds, bunds of tanks, supply, drainage, surplus or irrigation channels' and 'threshing-floors, cattle-stands, village-sites and like land, set apart for the common use of villagers'. Even these lands and any other class of land notified by the Government; which need not have the characteristics of a forest are included under the definition of 'forest' in the MPPF Act, which was omitted to be noticed by the Division Bench in _K.M.Abdu (supra)._ 5. In the instant case also clearly the claim was for exemption under Section 3 (2) & (3) of the Act of 1971 though there is a bland statement that it is not within MPPF area. There is no exclusion claimed under the specific clauses (A) to (D) of Section 2(f)(1)(i) of the Act of 1971, in the instant case. Admittedly the land is one, to which the MPPF Act applies and the nature and characteristics of the same or more specifically whether it is a forest or not, is not germane for consideration. In such circumstances, we interfere with the order impugned in the appeals and remand the same for consideration afresh. We make it clear that we have not looked into the evidence led and the Tribunal would be entitled to ## MFA(Forest) No.81 & 95 of 2015 and 3 of 2016 **11** consider the same on the basis of the declaration made in _K.C.Moosahaji (supra)._ We make it clear that the parties would not be entitled to adduce any fresh evidence. The matter shall be remanded to the court below for hearing afresh on the basis of the evidence placed on record. The matter shall be posted on 31[st] of October 2022, and if the parties require, an adjournment shall be granted for preparation; not later than one month. The matter shall be heard and orders passed within a period of three months from the date of hearing. Appeals are allowed. Parties to bear their costs. **Sd/-** **K.Vinod Chandran, Judge** **Sd/-** ## **C.Jayachandran, Judge** uu