IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 561 of 2003(E)
1. NABEESA W/O. KUNHI MOHAMMED,
... Petitioner
2. ANISH MINIR S/O. NABEESA, AGED YEARS,
3. SHABANU (MINOR) S/O. NABEESA, AGED
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. CUSTODIAN OF VESTED FOREST,
For Petitioner :SRI.D.KRISHNA PRASAD
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :04/02/2009
O R D E R
K.BALAKRISHNAN NAIR &
K.SURENDRA MOHAN, JJ.
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M.F.A.(Forest) NO. 561 OF 2003-E
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Dated 4th February, 2009.
JUDGMENT
Balakrishnan Nair, J.
The applicants before the Forest Tribunal, Kozhikode in
O.A.No.30/2000 are the appellants. The respondents therein are the
respondents in this appeal.
2. The brief facts of the case are the following: The appellants claim
possession and ownership over one acre of land in Sy.No.168/1 of
Mannarkkad – I Village, Arakkurussi Amsom in Mannarkkad Taluk,
Palakkad district. The said property is scheduled to the application. The
jenmom right over the property belonged to Kizhakkepatt Radha Amma.
K.P.Moideenkutty Sahib was a kanom right holder under the said landlord.
Kunhi Ayisumma was a lessee under the said kanom right holder. The
husband of the 1st appellant/applicant got the said property along with other
properties from Kunhi Ayisumma. The disputed property was gifted to the
1st appellant and her two minor children, as per document No.2085/87 of
MFA 561/2003 2
S.R.O., Mannarkkad dated 23.5.1987. On 1.8.2000 the officials of the
Forest Department obstructed them from carrying out agricultural
operations in the land. Therefore, the O.A was filed, praying for a
declaration that the scheduled property is not a private forest.
Alternatively, it was claimed that the property was exempted under the
provisions of the Kerala Private Forests (Vesting and Assignment) Act,
1971 (Act 26 of 1971) (hereinafter referred to as “the Vesting Act”). There
are cashew trees and tapping rubber trees in the property. So, exemption
was claimed under Sections 3(2) and 3(3) of the Vesting Act.
3. The D.F.O., Mannarkkad filed a counter statement in the O.A.,
resisting the claim of the appellants. It was submitted that the disputed
property forms part of Thathengalam Malavaram, having an extent of 1039
hectares and it comes under VFC item Nos. 1 and 38 in Sy.No.168/1 of
Mannarkkad – I Village. The above Malavaram was surveyed, demarcated
and notified in 1977. The notification was duly published long ago. So, the
application is barred by limitation. The entire Malavaram was covered by
the provisions of the Madras Preservation of Private Forests Act
(hereinafter referred to as “the Madras Act”). The property was fenced with
barbed wire in 1995 by the Social Forestry Wing of the Forest Department.
The cashew trees in the property are 7 to 12 years old and the rubber trees
MFA 561/2003 3
are aged below 10 years. There is a wild growth of trees belonging to forest
species in the property. It is a private forest vested in the Government and
the applicants are not entitled to get the benefit of Section 3(2) or Section 3
(3) of the Vesting Act.
4. The Tribunal framed the following issues for its consideration:
(1) Whether the application is barred by limitation?
(2) Whether the applicant or predecessors have right or title to the
property?
(3) Whether the property is a private forest vested in the Government?
(4) Whether the applicant is entitled for the benefit u/s.3(2) or 3(3) of
the Act?
The evidence in this case consists of the oral testimony of P.Ws.1 and 2 and
RW1. Exts.A1 to A7 were marked from the side of the applicants and
Exts.B1 to B4 were marked from the side of the respondents. The
Commissioner’s report Ext.C1 and the sketch Ext.C2 were also marked.
The Tribunal found that the applicants have no right over the property. It
was also found that the land in question is part of a private forest vested in
the Government and the applicants are not entitled to get the benefit of
Section 3(2) or Section 3(3) of the Vesting Act. The appellants attack the
said findings in this appeal.
MFA 561/2003 4
5. The learned counsel for the appellants submitted that the finding
of the Tribunal that the area in question is a private forest, is unsustainable
in law. The finding that the area is covered by the Madras Act is made
without any basis. According to him, the definition of “forest” in Section
2(a) of the Madras Act will not cover the land in question. Further, in the
absence of a notification issued by the District Collector, the area in
question is not one, which is covered by the provisions of the Madras Act.
Alternatively, it was submitted that since the Commissioner has reported
about the growing of rubber trees and cashew trees and about the absence of
trees belonging to forest species, it should be found that the appellants were
cultivating the land and they were in possession of it since 10.5.1971.
6. We heard the learned Special Government Pleader appearing for
the respondents. He fully supported the findings of the Tribunal. He made
special reference to the finding of the Advocate Commissioner, which
would show that there was no cultivation in the land as on 10.5.1971, the
appointed day on which the Vesting Act came into force.
7. The Tribunal found that Ext.B1 notification produced by the
respondents will take in the disputed property also. Ext.B2 sketch produced
by them would show that the property is part of V.F.C. item Nos.1 and 38.
The Tribunal also took note of the fact that Thathengalam Malavaram is
MFA 561/2003 5
having an extent of 1039 hectares and it is covered by the Madras Act.
Going by Section 1(2) of the Madras Act, the private forests in the district
of Malabar and South Kanara having a contiguous area of 100 acres will be
covered by the provisions of the said Act. Clause (iii) of sub-section (2) of
Section 1 of the Madras Act contemplated a notification, if a contiguous
area exceeding 100 acres covered by forest, is in other areas of Madras
State. By the amendment introduced to that clause, deleting the State of
Madras and substituting Malabar, some confusion has been created. But,
going by clause (i) of sub-section (2) of Section 1, it is clear that a
declaration or notification by the State Government is not necessary for the
applicability of the Madras Act, if private forests exceeding 100 acres are
situated in Malabar or South Kanara districts. Section 2(a) of the Madras
Act defines forest. It is an inclusive definition, which reads as follows:
“(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.”
We notice that a declaration by the State Government in the Kerala Gazette
is required only in relation to “any other class of land” not covered by the
first part of the definition. So, notification by the State Government is not
necessary to have a forest in terms of the said Act. Therefore, we find that
MFA 561/2003 6
the finding of the Tribunal that since the Malavaram has an extent of 1039
hectares, it is covered by the Madras Act, is sustainable in law.
8. The next point to be considered is whether the appellants are
entitled to get the benefit of Sections 3(2) and 3(3) of the Vesting Act.
Section 3(2) exempts land under the personal cultivation of an owner before
the appointed day. Section 3(3) exempts private forest held by the owner
under a valid title, executed before the appointed day. So, the property must
be under personal cultivation before the appointed day or should have been
held as an owner under a valid document executed before the appointed day.
Going by the evidence on record, we feel that there is no material to show
that on the appointed day, the appellants were cultivating the land or they
were holding the land as contemplated under the above said sub-sections of
Section 3 of the Vesting Act. The Commissioner’s report would show that
there was wild growth of about 20 rubber trees aged about 20 years and 26
cashew trees aged about 5 to 10 years. The case of the appellants before the
Tribunal was that they were holding the property and were in possession of
it and for the first time, the forest officials interfered with their possession in
the year 2000. The above claim is not supported by the Commissioner’s
report.
9. The learned counsel for the appellants tried to canvass that after
MFA 561/2003 7
10.5.1971, the appellants were not allowed to enter the property and
therefore, there was no cultivation. The said contention does not go with the
pleadings before the Tribunal. Before the Tribunal, as mentioned earlier,
they stated that interference from the part of the forest officials took place
only in the year 2000. Therefore, we agree with the finding of the Tribunal
that the appellants/applicants are not entitled to get the benefit of sub-
section (2) or sub-section (3) of Section 3 of the Vesting Act.
In the result, we uphold the decision of the Tribunal. We fully concur
with its reasons and conclusions. Accordingly, the M.F.A is dismissed.
K.BALAKRISHNAN NAIR, JUDGE.
K.SURENDRA MOHAN, JUDGE.
nm/