M.F.A (Forest) Nos.33, 43 & 53 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 MFA (FOREST) NO. 33 OF 2013** **AGAINST THE ORDER DATED 30.06.2012 IN O.A.NO.48/2009 OF** ## **FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REP.BY THE PRINCIPAL SECRETARY, FOREST & WILDLIFE DEPARTMENT, THIRUVANANTHAPURAM** - **2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT.** **BY SRI.NAGARAJ NARAYANAN, SPL.G.P.[FOREST]** ## **RESPONDENT/APPLICANT:** **KUNHAN @ KUTTAN NAIR, S/O.KUNHIMALU AMMA, PARAMAYIL, PATTATHU, SREEKRISHNAPURAM, OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN-679513 BY ADV SRI.SIVAN MADATHIL** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 01.02.2023, ALONG WITH MFA (FOREST) NOS.43/2013 & 53/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A (Forest) Nos.33,43 & 53 of 2013 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944** ## **MFA (FOREST) NO. 43 OF 2013** **AGAINST THE ORDER DATED 30.06.2012 IN O.A.NO.47/2009 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, FOREST & WILDLIFE DEPARTMENT, THIRUVANANTHAPURAM.** - **2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT.** **BY SRI.NAGARAJ NARAYANAN, SPL.G.P.[FOREST]** ## **RESPONDENTS/APPLICANTS:** - **1 BABU, S/O.LATE KUNHULAKSHMI AMMA, AMBALAKKAT, ANGADIPPURAM, PERINTHALMANNA TALUK, PIN-679 321.** - **2 PRAMEELA, D/O.LATE KUNHULAKSHMI AMMA, -DO- -DO-** - **3 REMA, D/O.LATE KUNHULAKSHMI AMMA, -DO- -DO-** - **4 JAYA, D/O.LATE KUNHULAKSHMI AMMA, -DO- -DO-** - **5 SURESH, S/O.LATE KUNHULAKSHMI AMMA, -DO- -DO-** - **6 GOVINDA KUMAR, S/O.LATE KUNHULAKSHMI AMMA, -DO-DO-** ## **BY ADV SRI.SIVAN MADATHIL** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 01.02.2023, ALONG WITH MFA (FOREST) NOS.33/2013 & 53/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A (Forest) Nos.33,43 & 53 of 2013 3** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 MFA (FOREST) NO. 53 OF 2013** **AGAINST THE ORDER DATED 30.06.2012 IN O.A.NO.49/2009 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, FOREST & WILDLIFE DEPARTMENT, THIRUVANANTHAPURAM** - **2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT.** **BY SRI.NAGARAJ NARAYANAN, SPL.G.P.[FOREST]** ## **RESPONDENT/APPLICANT:** **RATNAVATHI AMMA, D/O.KUNHIMALU AMMA, VITHANOTTIL, KARKADAMKUNNU VETTATHOOR, MALAPPURAM, PIN.679326** **BY ADV SRI.SIVAN MADATHIL** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 01.02.2023, ALONG WITH MFA (FOREST) NOS.33/2013 & 43/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A (Forest) Nos.33,43 & 53 of 2013** **4** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------M.F.A (Forest) Nos.33, 43 & 53 of 2013 ------------------------------------------Dated this 1[st] of February, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The appeal arises from a common order of the Forest Tribunal in three original applications filed under S.8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971, (for brevity, the Vesting Act). The applicants are closely related, being siblings and the children of a sister (O.A.No. 47/2009). The application scheduled properties lie contiguous and the title is claimed under Ext.A1 deed. The properties were comprised in a larger extent belonging _jenmam_ to _Vettekkara Devaswom,_ which was outstanding in the possession of the _tharavadu_ of the applicants by way of a _kanam_ demise of the year 1939. By Ext.A1, the family members partitioned the properties and item No.14 in the 'D' schedule to the deed was allotted to the share of _Kunhulakshmi Amma,_ the mother of the siblings. In O.A.No.47/2009, 2.53 acres comprised in Sy.Nos.2/2, 77/1 and 77/2 is scheduled being item No.14 in the 'D' schedule to Ext.A1. Item No.17 in 'A' schedule of Ext.A1 was **M.F.A (Forest) Nos.33,43 & 53 of 2013** ## **5** allotted to the share of the applicant in O.A.No.48/2009; an extent of 2 acres and 53 cents comprised in Sy.Nos.2/1,2/2,77/1 and 77/2, scheduled in O.A.No.48/2009. Item No.14 in 'E' schedule of Ext.A1, again an extent of 2.60 acres comprised in Sy.Nos.2/1, 2/2, 77/1 and 77/2 were allotted as the share of the applicants in O.A.No.49/2009; scheduled therein. The properties are lying as a garden land known by the name _Maringodan Malamparamba._ It was asserted that there was cultivation of fugitive and dry crops in the properties as on the appointed day. Soil Conservation Scheme was implemented in the property by constructing bunds running from east to west in different levels. It was contended that the properties do not have the characteristics of a forest as on the appointed day or afterwards and do not contain any forest species trees. The property also is not covered under the Madras Preservation of Private Forest Act, 1949, (for brevity, the MPPF Act) and there was no notification published in accordance with the statutory rules. The applicants in the alternative claimed exemption under S.3(2) and (3) of the Vesting act. 2. The respondents however claimed that the disputed property is part of a huge _Malavaram_ (slope of a hill) covered by the MPPF Act included as V.F.C. item No.86 in a notification of the year 1979. **M.F.A (Forest) Nos.33,43 & 53 of 2013** **6** The respondents also disputed the title, cultivation as on the appointed day and the lie of the property, which according to them was a full grown forest. The application was also resisted on the ground of limitation. 3. The Tribunal framed issues on limitation, the lie and nature of the property and the entitlement to the declaration for exemption. The Tribunal found that there can be no limitation, since there was no notification published as per the statutory rules. As far as the contention of coverage under the MPPF Act, the Tribunal found that though the properties are situated in the Malabar district, the total extent of the _Malavaram_ as indicated in Ext.B1 notification is only 33.94 hectares and hence, not a part of a large extent of more than 100 acres, which alone attracts S.1 of the MPPF Act. On the question whether the scheduled properties come under the definition of S.2(f)(1)(ii) of the Vesting Act, it was found that the commission report indicates the property to have no characteristics of a forest and though it remained uncultivated, there were signs which clearly indicate cultivation having been carried out earlier, in the said properties. The Tribunal granted the declaration, against which, the present appeals are filed. 4. We heard Sri. Nagaraj Narayanan, learned Special Government Pleader (Forest), appearing for the State and Sri. Sivan **M.F.A (Forest) Nos.33,43 & 53 of 2013 7** Madathil, learned Counsel for the respondents. Sri. Sivan Madathil relied on three decisions to uphold the order of the Tribunal; _State of Kerala v. - Moosa Haji 1984 KLT 494, State of Kerala v. Anglo American Direct Tea Trading Co.Ltd 1980 KLT 214,_ both decisions of this court and a decision of the Hon'ble Supreme Court in _State of Kerala and Another v. Pullangode Rubber & Produce Co.Ltd (1996) 6 SCC 92._ 5. On the ground of limitation, we find the Tribunal to have rightly held the application to be maintainable. The publication was not made in accordance with the statutory rules and there was nothing to refute the sole testimony of the applicants that they were made aware of vesting only much later, when the forest officials interfered with the possession and enjoyment of the applicants. On the question of whether the lands are covered under the MPPF Act, as rightly found by the Tribunal, Ext.B1 notification produced in the case; after survey and demarcation, indicates a total extent of only 33.94 hectares. RW1, the Forest Range Officer, Ottappalam, testified that there was another hill namely _Paattimala Malavaram_ lying contiguous with _Maringodan Malavaram_ and the total extent would be 146 hectares, thus bringing the entire extent under the MPPF Act. However, there was no pleading to that effect in the counter affidavit filed by the forest officials. The copy of **M.F.A (Forest) Nos.33,43 & 53 of 2013** **8** a notification produced by the respondents also showed only 33.94 hectares and RW1 conceded that even the notification does not show _Paattimala_ on the boundaries of the scheduled properties as seen from Ext.B1 notification. There is absolutely no reason to find the scheduled properties to be covered under the MPPF Act. 6. In considering the lie and nature of the property and whether it has the characteristics of the forest, the Tribunal relied on _- State of Kerala v. Anglo American Direct Tea Trading Co.Ltd 1980 KLT 214_ . It was declared by a Division Bench of this Court that in the context in which the term ' _private forest'_ was used in the Vesting Act, it applies to lands other than those on which human skill, labour and resources have been spent for agricultural operations. The Division Bench also noticed that there was no definition of forest in the Vesting Act which requires the common parlance meaning to be adopted. 7. With the above principle in mind, the Tribunal looked at the commission reports marked as Exts.C1, C1(a), C2, C2(a), C3 and C3(a). The applicants were found to have held the properties under a registered deed which is produced as Ext.A1. The Commissioner identified the properties scheduled in the application with the help of the Taluk Surveyor, that too with reference to the title deed. PW1 who **M.F.A (Forest) Nos.33,43 & 53 of 2013** **9** manages the properties on behalf of the applicants testified that the properties lie as a _paramba_ which description is available in the title deed as against the various items of property, which are fully described herein above. The Commissioner noticed that the four boundaries of the properties lying contiguously, were also _parambas_ and not forest lands. There were bunds constructed in the property running from east to west on different levels, to prevent soil erosion. PW1 also testified before Court that these bunds noticed by the Commissioner in his report were intended for soil conservation. Exts.A2 and A3 of the year 1969 and 1970 indicates the Director of Soil Conservation, Trivandrum, having permitted payment of amounts for soil conservation works to be carried on in the property, as a loan. The stone built bunds according to the Commissioner were at different levels of the properties at a distance of 10-20 meters. PW2, a neighbouring owner of the scheduled property also testified that he has direct knowledge about the property and the cultivation carried on therein for the last 30 years. RW1, the Forest Range Officer also admitted the bunds constructed in the property for agricultural purposes. It is in that context that though the properties were found to be lying uncultivated, there was found clear intention to cultivate as on the appointed day of 10.5.1971, just prior to which A2 and **M.F.A (Forest) Nos.33,43 & 53 of 2013** **10** A3 proceedings were issued. 8. The report of the Commissioner further categorically found that the scheduled property does not have any characteristics of a forest. It was hence the finding of the Tribunal that the scheduled properties do not come within the definition of private forest under S.2(f)(1)(ii) of the Vesting act. The question of exemption hence was not examined. Since the finding was categoric in so far as the scheduled properties were not lying as forest lands, which is based on evidence adduced, we find no reason to interfere with the order of the Tribunal. Appeals would stand dismissed upholding the findings of the Tribunal and affirming the declaration granted of the scheduled lands being not forest lands under the Vesting Act. The parties are left to suffer their respective costs. ## **Sd/-** ## **K.VINOD CHANDRAN, JUDGE** **Sd/-** ## **C.JAYACHANDRAN, JUDGE** **uu**