MFA(FT) No.128 of 2014; MFA(FT) No.129 of 2014; Cross Objection No.125 of 2017

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL &** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 8TH DAY OF DECEMBER 2017 / 17TH AGRAHAYANA, 1939** **MFA(FT)No. 128 of 2014** **-------------------------** **AGAINST THE ORDER IN OA 20/2010 of FOREST TRIBUNAL, KOZHIKODE DATED 25-06-2014** **........** ## **APPELLANTS/RESPONDENTS:** ## **----------------------** **1. STATE OF KERALA,** - **REPRESENTED BY THE CHIEF SECRETARY,** **GOVERNMENT OF KERALA,** **THIRUVANANTHAPURAM.** **2. CUSTODIAN OF VESTED FORESTS,** **ARANYA BHAVAN,FOREST COMPLEX,OLAVAKODE,PALAKKAD-2.** ## **BY SRI.NAGARAJ NARAYANAN, SPL. GOVT.PLEADER FOR FOREST** ## **RESPONDENT/RESPONDENT:** **---------------------** **K.C.PURUSHOTHAMAN S/O.CHELLEN, KALATHUR HOUSE, THONDARNADU AMSOM DESOM, MATTILAYAM P.O., VELLAMUNDA VIA, MANANTHAVADY, WAYANDBDISTRICT-670 731.** **BY ADVS. SRI.S.K.BALACHANDRAN SMT.N.D.DEEPA** **SRI.V.K.NANDAKUMARAN** **THIS MISC. FIRST APPEAL (FOREST) HAVING BEEN FINALLY HEARD ON 08-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OKB** **CR** K.HARILAL & A.M.BABU, JJ. --------------------------M.F.A.(Forest) No.128 of 2014 and M.F.A.(Forest) No.129 of 2014 and Cross Objection No.125 of 2017 --------------------------Dated this the 8[th] day of December, 2017 ## COMMON JUDGMENT ## **Harilal, J.** Since these appeals are filed on the very same ground and a common question of law, emerges for consideration in both appeals, there appeals are heard together and disposed of accordingly, by this common judgment. ## M.F.A.(Forest) No.128 of 2014 2. The appellants are the respondents in O.A. No.20 of 2010 on the files of the Forest Tribunal, Kozhikode. The aforesaid O.A. was filed by the respondents herein under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971, (for short 'the Vesting Act'), seeking _MFAs(FT).128/14, 129/14 & CO.125/17_ **:2:** a declaration that the petition schedule property is not a private forest and that the respondent is entitled to get the exemption under Section 3(2) or 3(3) of the Vesting Act. The parties are referred to as in the original application. 3. According to the averments in the application, the application schedule property, having an extent of 05 acres situated in Sy.No.19 of Thondarnad Village, Mananthavady Taluk, Wayanad District belonged to him and he is in exclusive possession and enjoyment of the said land. It is further alleged that originally the application schedule property belonged to one Puraloth Kunhi Mammed Haji, who orally transferred the property to the applicant before 1963 and from 1963 onwards the land was in his possession and he was doing cultivation in the property. Later on, an unregistered marupattam deed was also executed by the said Kunhi Mammed Haji, in his favour on 30[th] August, 1963. The application schedule property is not a forest land, as contemplated under the Vesting Act, as on the appointed day and the property was in his personal cultivation and continued to be so, till the date of filing the application. According to him, the entire _MFAs(FT).128/14, 129/14 & CO.125/17_ **:3:** property is now fully covered with plantations like coconut tree, arecanut, coffee, pepper vines, medical crops etc. The property does not have characteristics of forest and the M.P.P.F. Act is not applicable to the land. It was possessed and cultivated by the applicant and his predecessor for cultivation and they have actually cultivated the same from the period before 1963. But, recently, the respondent Forest officials made an attempt to obstruct the peaceful possession of the property just prior to the filing of the application. It is also averred that there had been no valid and proper notification. With the above averments, the applicant sought for a declaration, as referred above. 4. The respondents/State of Kerala and others filed counter affidavit, denying the entire averments and claims in the application. According to the respondents, the application schedule property forms a part of huge 'malavaram' known as “Peradasserymala Elamala” having an extent of 16.36 hectares and the said 'malavaram' was notified as a vested forest, as per notification No.4713/77B dated 08.07.1977. The application schedule property falls _MFAs(FT).128/14, 129/14 & CO.125/17_ **:4:** in VFC item No.103 in the said notification. It is further contended that there was no cultivation in the property as on 10.05.1971 and the application schedule property was a vested forest, as on 10.05.1971. The marupattam deed is not a registered one and has no legal validity and the documents produced by the applicant do not relate to the application schedule property. The application schedule property was not under the personal cultivation of the applicant before the appointed day and the said land was a private forest, as contemplated under Section 2(f)(1) of the Vesting Act, as on the appointed day. In the absence of any kind of cultivation under Section 3(2) and registered deed required under Section 3(3) of the Vesting Act, the application schedule property was a private forest, as on the appointed day and the said land is not entitled to get exemption under Sections 3(2) or 3(3) of the Vesting Act. ## M.F.A.(Forest) No.129 of 2014 5. The appellants are the respondents in O.A.No.21/2010 on the files of the Forest Tribunal, Kozhikode and this appeal is filed challenging the legality _MFAs(FT).128/14, 129/14 & CO.125/17_ **:5:** and correctness of the impugned order allowing the aforesaid O.A. in part by the tribunal. The respondent herein has filed Cross Objection No.125/2017 in the above MFA challenging the findings, whereby the Forest Tribunal rejected the claim of the respondent with respect to 3.69 acres of property. The aforesaid O.A. was filed under section 8 of the Kerala Private Forests (Vesting and Assignment) Act 1971 (for short “the Vesting Act”) seeking for a declaration that the petition schedule property is not a private forest and that the applicant is entitled to get the benefit of section 3(2) or 3(3) of the Vesting Act. The parties are referred to as in the O.A. 6. According to the applicant, the application schedule property having an extent of 9.33 acres comprised in Sy.No. 164 of Thondarnad Village, Mananthavady Taluk, Wayanad District belongs to him and he is in exclusive possession of the said property. Originally the said property belonged to one K.V. Alikutty Haji and he orally transferred the property to the applicant before 1969 and thereafter he was in possession of the said property and was doing cultivation. Later on, an _MFAs(FT).128/14, 129/14 & CO.125/17_ **:6:** unregistered 'marupattam' was also executed by Alikutty Haji in his favour on 13.11.1968. The application schedule property is not a forest land as on the appointed day and the property was in his personal cultivation and continued to be so till the filing of the application. The application schedule property is fully covered with plantations like coconut tree, arecanut, coffee, pepper vines, etc. and an old house with a well is also situated in the property. The applicant is residing in the said old house with his family. Thus the property does not have the characteristics of a forest and the MPPF Act was not applicable to the said land. The applicant and his predecessor possessed the said land for cultivation and they have actually cultivated the same. Now recently the forest officials had made an attempt to obstruct the peaceful possession of the property just prior to the filing of the application stating that the property is vested with the Government under the Vesting Act. Further it is contended that even if the said property is a private forest, the property is liable to be exempted under section 3(2) or 3(3) of the Vesting Act. On the aforesaid ground the applicant prayed for a declaration _MFAs(FT).128/14, 129/14 & CO.125/17_ **:7:** that the application schedule property is not a private forest and even if it is a private forest the property is liable to be exempted under section 3(2) or 3(3) of the Vesting Act. 7. The respondents filed a counter affidavit denying the averments in the application and opposing the claim for a declaration that the application schedule property is not a private forest. According to the respondents, the application schedule property forms part of a huge 'malavaram' known as “Peradasserymala Elamala” having an extent of 77.14 hectares and the said malavaram was notified as vested forest as per notification No.4713/77B dated 8/7/1977. The application schedule property falls in VFC item No.105 in the said notification. According to them, proper notification was published as per the Vesting Act and Rules. Further, it is contended that there was no cultivation in the property as on 10.5.1971 and the application schedule property is a vested forest. The marupattam relied on by the applicant is not a registered document and the same has no legal validity and it does not relate to the application schedule property also. They _MFAs(FT).128/14, 129/14 & CO.125/17_ **:8:** specifically denied the averment that the application schedule property was under the personal cultivation of the applicant before the appointed day. Thus, the applicant is not entitled to get a declaration that the property is not a private forest. So also, the property is not liable to be exempted under section 3(2) or 3(3) of the Vesting Act. The respondents, on the above premise, prayed for the dismissal of the application. 8. On the rival pleadings both parties adduced evidence which consists of the oral testimony of PW1 and RW1 and the documentary evidence Exts.A1 to A42, B1, B2 and C1 to C3. On appreciation of the aforesaid evidence the tribunal allowed the application in part holding that 4 acres and 54.3 cents of land out of 8.23 acres of property scheduled in the application is not forest and hence it is not a private forest within the meaning of section 2(f) of the Vesting Act and therefore the applicant is entitled for a declaration that the said property is not a vested forest in the Government under section 3(1) of the Vesting Act. That apart, it was also held that out of 8.23 acres, 3.69 acres which is described as 'A' plot in the commission report is a _MFAs(FT).128/14, 129/14 & CO.125/17_ **:9:** private forest vested with the Government under section 3 of the Vesting Act. The Cross Objection is filed by the applicant, against the aforesaid finding of the tribunal rejecting his claim with respect to 3.69 acres stated above. The legality and correctness of the findings whereby the tribunal allowed the application in part have come up in this Appeal and Cross Objection. 9. Heard the learned special Government Pleader for Forest and the learned counsel for the respondent – cross objector. 10. The thrust of the arguments advanced by the learned special Government Pleader is that the Forest Tribunal went wrong by conducting an enquiry contrary to the scheme under sections 2 and 3 of the Vesting Act. According to the learned special Government Pleader, no enquiry was conducted by the tribunal as contemplated under the Vesting Act to find out whether the application schedule property is a private forest or not. The enquiry conducted by the tribunal goes contrary to the decision of the Full Bench of this Court in **State of Kerala and** _MFAs(FT).128/14, 129/14 & CO.125/17_ **:10:** **another v. K.C. Moosa Haji and others (1984 KLT 494)** . It is also contended that the subject matter of the application was a land falling under section 2(f)(i) of the Vesting Act. But, the tribunal went wrong by conducting an enquiry relying on the unreported decision in MFA.3/2007 **K.M. Abdu v. State of Kerala** wherein the subject matter of the application was a land falling under section 2(f)(1)(ii) of the Vesting Act. In short, the tribunal was carried away by a decision which was not applicable to the instant case and the enquiry was wrongly conducted on the basis of the said decision only. 11. On the other hand, the learned counsel for the respondent advanced arguments to justify the findings of the tribunal. According to him, the application schedule property has no characteristics of a forest and the enquiry contemplated on the basis of the decision of this Court in **K.M. Abdu v. State of Kerala** is justifiable. Further, it is contended that the finding of the tribunal is justified by Ext.C1 report which would show the personal cultivation made by the applicant. _MFAs(FT).128/14, 129/14 & CO.125/17_ **:11:** 12. On an analysis of the impugned order passed by the tribunal, we find that the tribunal has held an enquiry as to find out whether the application schedule property is a forest as defined in various dictionaries like Webster's New World Dictionary, Encyclopedia Vol.10, Random House Dictionary, Black Law Dictionary, etc. The tribunal further held that in view of the definition of 'forest' in various dictionaries, land having the features and characteristics of a forest as defined in various dictionaries alone would constitute a forest and unless the land is a forest it could not be a private forest contemplated under section 2(f)(1)(i) of the Vesting Act. 13. Going by the Vesting Act, we find that private forest is seen specifically defined and the same reads as follows: “2. In this Act, unless the context otherwise requires (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 _MFAs(FT).128/14, 129/14 & CO.125/17_ **:12:** 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 of 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 purposes 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 crop (D) sites of buildings and lands _MFAs(FT).128/14, 129/14 & CO.125/17_ **:13:** 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.” 14. On an analysis of section 2(f) we find that the land which would fall under the private forest is categorised as given below: (1). The property situated in Malabar District to which MPPF Act 1949 applied immediately before the appointed day, excluding the lands falling under (A) to (D). (2). Any forest, not owned by the Government, in the Malabar District, to which MPPF Act 1949 did not apply including waste lands, which are _MFAs(FT).128/14, 129/14 & CO.125/17_ **:14:** enclaves within the wooded areas. (3). The property situated in the remaining area in the state as referred to sub-section (2) of section 2(f). To attract the definition of the term “private forest” as defined under section 2(f)(1)(i) of the Vesting Act in respect of the lands situated in Malabar District the following conditions are to be satisfied: (1). The land should be one to which MPPF Act 1949 applied before the appointed day, i.e. 10.5.1971 and (2). The land should not be one falling within any of the exclusions mentioned in sub-clauses A to D. In order to attract the MPPF Act the land in question must have been part of a contiguous area exceeding 100 acres and an exemption is granted to the land which was brought under fugitive or other cultivation prior to 14[th] December, 1949 by an owner or any person claiming under him. In the instant case, admittedly the property is situated in erstwhile Malabar District. Therefore, the first question to be considered is whether the application schedule property would fall under the private forest _MFAs(FT).128/14, 129/14 & CO.125/17_ **:15:** defined under section 2(f)(1)(i) of the Vesting Act. In this enquiry, if it is found that the application schedule property was one to which the MPPF Act, 1949 had been applied immediately before the appointed day and not excluded under (A) to (D), certainly, the land is a private forest. But, here, we find that the tribunal has not conducted any enquiry to find out whether MPPF Act was applicable to the application schedule property. If it is found that the MPPF Act was applicable to the application schedule property, the next question which ought to have been considered by the tribunal is whether the application schedule property would fall under any of the exceptions provided under clauses A to D of section 2(f)(1)(i) of the Vesting Act. It is needless to say, no such enquiry was conducted in this regard. 15. In the above context, we further find that the Full Bench decision of this Court in **State of Kerala and another v. K.C.Moosa Haji [1984 KLT 494]** assumes relevance and significance. In this decision, the Full Bench held that with reference to lands in Malabar area to which the MPPF Act applied on the appointed day, if the land was _MFAs(FT).128/14, 129/14 & CO.125/17_ **:16:** shown to be a private forest on the date on which the MPPF Act came into force, it will continue to be a private forest even though it had actually ceased to be a forest unless one or other of the exclusions in clauses A to D of the definitions applied. It was further held that the question is not whether there was a forest in existence in 1971; but, whether there was any land in 1971 to which the MPPF Act was applicable in 1949 and continued to be under its coverage till 1971. 16. In the light of the definition of section 2(f)(1)(i) of the Vesting Act and the decision of this Court in **K.C.Moosa Haji** 's case (supra) we find that the tribunal absolutely went contrary to the scheme under section 2(f) (1)(i) of the Vesting Act and the decision of this Court and erroneously conducted an enquiry on the basis of the meaning of 'forest' in various dictionaries. In short, the tribunal has conducted an enquiry on the basis of an incorrect understanding as regards the definition of 'private forest'. In the light of the decision in **K.C.Moosa Haji** 's case (supra), we have no hesitation to hold that even if the disputed land has no characteristics or features of a _MFAs(FT).128/14, 129/14 & CO.125/17_ **:17:** forest as defined in various dictionaries referred to by the tribunal, that land also would fall under 'private forest' as defined under section 2(f)(1)(i) of the Vesting Act, if the MPPF Act was applicable to that land before the appointed day and the land does not fall under the clauses (A) to (D) of the said section and thereby once it was a private forest. 17. The above view is supported by the decision of this Court in **Menon A.K. and others v. State of Kerala and others [2013 (3) KHC 200]** , wherein this Court held as follows: “The only question is whether the MPPF Act was applicable to the said land in 1949. If that be so and if it continued to apply to the land up to 10.5.1971, that land will be a private forest for the purpose of the Vesting Act unless it falls under the exclusion (A) to (D) of section 2(f) (1)(i). The fact whether there was a forest in existence as on 10.5.1971 is not all a material aspect”. So it can be safely concluded that the fact whether the land falling within the dictionary meaning of the word 'Forest' was in existence as on 10.5.1971 is not at all a material aspect. The alteration of nature or character of the land before 10.5.1971 will have no effect in the application of Vesting _MFAs(FT).128/14, 129/14 & CO.125/17_ **:18:** Act, in respect of that land. In the light of the above decision also we find that in order to fall within the ambit of 'private forest' as defined in the Vesting Act the characteristics and features of forest as defined in various dictionaries are not required and there cannot be any enquiry on the basis of such dictionary meaning. The decision laid down by another Division Bench of this Court in **Abdu** 's case (supra) had no application in the instant case, particularly when the application schedule property is one falling under section 2(f)(1)(i) of the Vesting Act and the disputed property in the above decision was one falling under section 2(f)(1)(ii). In other words, the tribunal placed reliance on a decision which was not applicable to the instant case and conducted enquiry on the basis of the proposition laid down in that decision. We make it clear that the decision in **Abdu** 's case (supra) is obitter with respect to the property falling under section 2(f)(1)(i) of the Vesting Act. 18. In the above analysis, in M.F.A.(Forest) No.128 of 2014, we find that the entire findings, whereby the Tribunal declared that the application schedule property is _MFAs(FT).128/14, 129/14 & CO.125/17_ **:19:** not a “private forest” within the meaning of Section 2(f) of the Vesting Act are illegal and unsustainable. 19. In M.F.A.(Forest) No.129 of 2014, we find that the entire findings, whereby the tribunal declared that 4.54 acres of property is not a private forest, are illegal and unsustainable. Even though 3.69 acres of property was found as a private forest, that finding is also illegal and unsustainable, on the reason that the above finding was also arrived at in an erroneous enquiry, conducted contrary to the enquiry contemplated under section 2(f)(1)(i) of the Vesting Act. 20. Consequently, the impugned orders passed by the tribunal in both original applications are set aside and the Original Applications are remitted back to the tribunal for fresh enquiry as contemplated under section 2(f)(1)(i) of the Vesting Act. The tribunal shall dispose of the applications afresh, after conducting a proper enquiry as detailed above and affording an opportunity to both parties in both original applications to adduce further evidence. The tribunal shall dispose of the Original Applications, _MFAs(FT).128/14, 129/14 & CO.125/17_ **:20:** within a period of six months from the date of receipt of a copy of the judgment. 21. In the result, M.F.A.No.128 of 2014, M.F.A.No.129 of 2014 and Cross Objection No.125 of 2017 filed in M.F.A.No.129 of 2014 are allowed. The parties in both original applications are directed to appear before the tribunal on 12.03.2018. **Sd/-** (K.HARILAL, JUDGE) **Sd/-** (A.M.BABU, JUDGE) okb/dst //True copy// P.A. to Judge