State of Kerala represented by Principal Secretary, Forest & Wildlife, Thiruvananthapuram & Custodian of Vested Forest v. K. Ravi s/o Krishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN TUESDAY, THE 30[TH] DAY OF JULY 2024 / 8TH SRAVANA, 1946 MFA (FOREST) NO. 43 OF 2015** **AGAINST THE ORDER DATED 30.09.2014 IN OA NO.1 OF 2011 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, (FOREST & WILDLIFE), THIRUVANANTHAPURAM** - **2 CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX OLAVAKKODE, PALAKKAD-2 BY ADV.NAGARAJ NARAYAN, SPL. GOVERNMENT PLEADER** ## **RESPONDENT/APPLICANT:** **K.RAVI S/O KRISHNAN, HEAD LOAD WORKER, PAYYAKUNDU, MANGALAM DESOM, VADAKKENCHERRY VILAGE, ALATHUR TALUK, PALAKKAD DISTRICT BY ADV SRI.P.R.VENKATESH** **THIS MFA (FOREST) HAVING COME UP FOR FINAL HEARING ON 30.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN & JOHNSON JOHN, JJ.** **= = = = = = = = = = = = = = = = = = M.F.A. (Forest) No.43 of 2015** **= = = = = = = = = = = = = = = = = = Dated this the 30[th] day of July, 2024** **J U D G M E N T** ## **Sathish Ninan, J.** The order of the Forest Tribunal declaring the petition schedule property to be not a “private forest” within the meaning of Section 2(f) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as “the Vesting Act”), is under challenge by the State. 2. The petition schedule property is, 21 cents situated in Old Sy.No.117/B3 (Re.Sy.No.386/2,3,7). According to the applicant, the property originally belonged in Jenmom to Thiruvilwamala Devaswom. The property was in possession of one Rugmini Amma on Kanam right under the Devaswom. She leased out the property in favour of one Ponnumani. He assigned his right over the property to the applicant as per Ext.A1 assignment deed No.2618 dated 15.11.1991. He is holding the property as absolute owner. The property was M.F.A. (Forest) No.43 of 2015 -: 2 :- cultivated with fugitive and several other agricultural crops by its assignor. The applicant put up a thatched house in the property. The property is well protected by fencing. It does not have any characteristics of forest. Since the forest officials attempted to interfere with the peaceful possession of the property, he approached the Forest Tribunal with the application. He sought for a declaration that the schedule property is not vested forest and also that, he is at any rate, entitled to the benefits of Section 3(2) and 3(3) of the Vesting Act. 3. The respondents filed a counter affidavit contending that the schedule property is part of a large Malavaram, namely Vizhumala Malavaram, having an extent of 449.16 Hectors. The entire area was notified as a vested forest vide notification No.D1383/77 dated 29.07.1977. The application schedule property falls in VFC item No.196/5 of the said notification. It was contended that the schedule property is a forest land and that, there was no cultivation in the property as on 10.01.1971. The boundaries of the M.F.A. (Forest) No.43 of 2015 -: 3 :- property as described in the schedule was disputed. The contention of the applicant that it is not a private forest and the further claim for the benefit under Section 3(2) and 3(3) of the Act were denied. 4. The Tribunal held that the schedule property is not a forest, and hence, is not a private forest within the meaning of Section 2(f) of the Vesting Act. A declaration was granted accordingly. 5. I have heard Shri.Nagaraj Narayan, the learned Special Government Pleader (Forest) for the appellant and Shri.P.R. Venkatesh, the learned counsel for the respondents. 6. According to the applicant, the schedule property is not a ‘private forest’ under the Vesting Act. The property is admittedly situated in the Malabar area. In terms of Section 2(f) of the Vesting Act, insofar as the Malabar area is concerned, the Section provides for two categories; (1) any land to which the Madras Preservation of Private Forest Act, 1949 (MPPF Act) applied immediately M.F.A. (Forest) No.43 of 2015 -: 4 :- before 10.05.1971 and; (2) any forest not owned by the Government to which MPPF Act did not apply. In a case falling within category (1), four exclusions are provided, excluding the applicability of the Act to such lands. Reference to the same is not necessary for the present and is not being adverted to. 7. The first question to be answered is, whether the schedule property is a land to which the MPPF Act applies(ie: category one above). As per Section 1(2) of the MPPF Act, the MPPF Act applies to private forests in the Districts of Malabar if it has a contiguous area of more than 100 Acres. However, if the property was under fugitive or other cultivation prior to 14.12.1949 by the owner or any person under him, then the Act does not apply to such property. Section 2(a) of the MPPF Act defines “forest” as, “forest” includes waste or communal land containing trees and shrubs, and pasture land and any other class of land declared by the State Government to be a forest by notification in the Kerala Government Gazette. As per the M.F.A. (Forest) No.43 of 2015 -: 5 :- explanation given, the “communal land” means any land of the description mentioned in sub-clause (a) and sub-clause (b) of clause 16 of Section 3 of the Madras Estates Land Act, 1908. 8. A reading of the impugned judgment reveals that the Tribunal referred to dictionary meanings of the word “forest” and concluded that the scheduled property, which is classified in the Adangal extract as “Asthira Punja”, cannot be considered as forest. The Tribunal also referred to the Commissioner's report, which referred the existence of fruit bearing and teak trees. The Commissioner reported the existence of a house in the property and the existence of 30 residential houses nearby. The Tribunal relied on the judgment in _**K.M.Abdu v. State of Kerala (MFA 3/2017)**_ dated 14.03.2013, wherein the term “forest” was construed based on dictionary meanings and held that the MPPF Act apply only to “forest” as so understood. In _**State of Kerala and another v. Gopalan and others (2022 (6)KHC 580)**_ , K.M.Abdu’s case supra was differed from and held that “forest” has been defined in M.F.A. (Forest) No.43 of 2015 -: 6 :- S.2(a) of the MPPF Act, and that even lands which do not have the characteristics of a forest are included therein. In _State of Kerala and Another v. K.C.Purushothaman 2018 (2) KHC 118_ , a Division Bench of this Court held that the judgment in K.M.Abdu is obiter with regard to property falling under Section 2(f)(1)(i) of the Vesting Act. 9. For determining the question as to whether the MPPF Act applies to the property in question, there has to be a determination as to whether it was a private forest and was a part of contiguous area of 100 Acres when the MPPF Act came into force on 14.12.1949. The definition of “forest” under the MPPF Act has been referred to supra. It is found that the above are satisfied. However, if there has been fugitive or other cultivation in the property prior to 14.12.1949, it will not be a private forest under the MPPF Act. 10. If the Tribunal finds that it is a private forest under the MPPF Act, then the question as to whether the applicant is entitled for exceptions as mentioned in sub- M.F.A. (Forest) No.43 of 2015 -: 7 :- clauses A, B, C and D under Section 2(f)(1)(i) or he is entitled to the exemption under Section 3(2) and 3(3) of the Vesting Act, need to be considered. The applicability of the MPPF Act has not been considered by the Tribunal. The order is liable to be set aside. 11. An Advocate Commissioner was deputed to inspect the plaint schedule property. He has submitted Exts.C1 and C2 report and plan. It is seen that, though the State had preferred objections to the report, the Commissioner was not examined. In the objections filed to the O.A, the State has disputed the boundary descriptions of the property. For proper disposal of the case, it is deemed appropriate that both sides be given an opportunity to adduce further evidence. 12. The applicant places reliance on the purchase certificate issued by the Land Tribunal in the year 1971 to contend that it is an agricultural land. The property in question is described in the Adangal extract as “Asthira Punja”. Since it is found that the matter needs to be M.F.A. (Forest) No.43 of 2015 -: 8 :- remanded back to the Tribunal, it is for the applicant to urge all the above contentions before the Tribunal. 13. Resultantly, the appeal is allowed. The order of the Forest Tribunal is set aside. The matter is remanded back to the Tribunal for disposal anew. Being an Original Application of the year 2011, we are sure that every endeavor will be made for an expeditious disposal of the Original Application. Parties to appear before the Tribunal on **23.08.2024** . Sd/- **SATHISH NINAN JUDGE** Sd/- **JOHNSON JOHN JUDGE** yd