Nabeesa W/O. Kunhi Mohammed vs State Of Kerala, Represented By ... on 4 February, 2009

Kerala High Court

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

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.

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