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.
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M.F.A.No.166 OF 2002
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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