High Court Kerala High Court

State Of Kerala vs P.Krishna Pillai on 2 January, 2008

Kerala High Court
State Of Kerala vs P.Krishna Pillai on 2 January, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA No. 166 of 2002()


1. STATE OF KERALA,REPRESENTED BY
                      ...  Petitioner
2. CUSTODIAN OF VESTED FORESTS,ARANYA

                        Vs



1. P.KRISHNA PILLAI S/O.NEELAKANDAN PILLAI,
                       ...       Respondent

2. BROTHER DAMODARAN PILLAI,DO.DO.

3. BROTHER SASIDHARAN PILLAI,DO.DO.

4. BROTHER GANGADHARAN PILLAI,DO.DO.

5. SISTER TAMARAKSHY,DO.DO.

6. SISTER VALSALA,DO.DO.

                For Petitioner  :SPL.GOVT.PLEADER

                For Respondent  :SRI.D.KRISHNAPRASAD

The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA

 Dated :02/01/2008

 O R D E R
                              J.B.KOSHY & K.HEMA, JJ.

                               --------------------------------------

                                M.F.A.No.166 OF 2002

                                -------------------------------------

                                Dated 2nd January, 2008


                                        JUDGMENT

Ko
shy,J.

Respondents herein claimed that 12 acres in Nilambur

amsom desom, Edakkara Village of Ernad Taluk of Malappuram District

lying in Survey No.1350 is not private forest and Forest Department is

disturbing their possession. According to the appellants, the above land

is a vested forest under Section 3(1) of the Kerala Private Forests

(Vesting and Assignment) Act, 1971 (in short `the Act’). It is also stated

that it is part of a large extent of land. Originally, it was given to Gwalior

Rayons for bamboo cultivation. It is the case of the claimants

(respondents) that the land was cultivated even at their father’s time till

1985. Thereafter, forest authorities prevented them from cultivation.

Section 3(1) of the Kerala Private Forests (Vesting and Assignment) Act

shows that all private forests in Kerala are automatically vested in the

Government from the appointed date, i.e., 10.5.1971. Therefore, to vest

the land, it should be a private forest as defined under the Act. The

Forest Tribunal in the impugned order has taken pain to consider

whether this land was demarcated by the Government as private forest

and notified by Exts.B1 and B4 (signed by two different officers) and

found that it was not proved that this property was already demarcated.

MFA.166/2002 2

If the land is a private forest, it is automatically vested in the

Government under Section 3(1) of the Act whether it is demarcated

and notified as vested forest. But, for vesting, it should be a private

forest as defined under the Act.

2. Admittedly, the area in question is situated in erstwhile

Malabar District in Madras State. A private forest is defined under

section 2(f) of the Act as follows:

“2.(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 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 or 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.”

Therefore, to become a private forest, it should be proved that it is a

MFA.166/2002 3

land covered by the Madras Preservation of Private Forests Act

(Madras Act XXVI of 1949). Now, we will come to the definition of

`forest’ under the above Act. Section 1(2) of the Madras Preservation

of Private Forests Act, 1949 provides that it applies to private forests

in the districts of Malabar and South Kanara having a contiguous

area exceeding 100 acres and `forest’ is defined under section 2(a) as

follows:

“2. (a) `forest’ includes 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 in the

(Kerala Government Gazette).

Explanation.- For the purposes of this clause,

`communal land’ means any land of the

description mentioned in sub-clause (a) or sub-

clause (b) of clause (16) of Section 3 of the

Madras Estates Land Act, 1908 (Madras Act 1 of

1908);”

So, to be a forest, it should be declared by the Government to be a

forest by notification either by the erstwhile Madras Government or

by the Kerala Government. Admittedly, no such notification was

published. In the appeal memorandum even though it was stated that

in 1949 there is such a notification, it is not produced so far.

Tribunal also found that except 10 year old bamboo clusters, there

was no other forest trees in the area. There were four wells also and

MFA.166/2002 4

the boundaries include property of one Abdullah and some parambas

and it is not continuous to any forest area notified under M.P.P.F Act .

In the absence of any notification as mentioned under section 2(a), it

cannot be a forest owned by private parties and covered under the

Madras Preservation of Private Forests Act. Therefore, there is no

automatic vesting under section 3(1). Since the land is not

automatically vested under section 3(1), the Act itself is not

applicable. In view of the above, the Tribunal held that interference

by the Forest department was not correct. We see no ground to

interfere in the above.

The appeal is dismissed.

J.B.KOSHY

JUDGE

K.HEMA

JUDGE

tks