George T. Ninan vs State of Kerala

Antony Dominic, J.—This appeal is filed by the petitioner in W.P. (C) No. 23066/08, who is aggrieved by the judgment of the learned single Judge dismissing the writ petition.

We heard the learned counsel for the appellant and the learned Government Pleader appearing for the respondents.

Briefly stated, the facts of the case are that the appellant is the owner of 3.25 acres of land in R.S. No. 15/2 of Mundoor Village in Palakkad Taluk. On the implementation of the Kerala Private Forests (Vesting and Assignment) Act (Act 26 of 1971), the land in question was treated as vested forest. This led the appellant to file OA No. 913/74 before the Forest Tribunal, Palakkad. The said OA was disposed of by Ext. P1 order dated 28/5/1976. According to the appellant, the land was held to be a paramba with agricultural crops and hence outside the purview of Act 26 of 1971.

The order attained finality and the land was restored on 17/11/2005 and Ext. R3(a) is the receipt obtained from the appellant. It appears that in the meanwhile, he had obtained Ext. P2 patta in respect of the land and also paid basic tax and obtained a possession certificate, copies of which are Exts. P3 and P4. This, according to the learned counsel, was on the strength of Ext. P5 NOC issued by the respondents themselves.

It is stated that on 11/7/2008, the appellant made a request under the Right to Information Act and in response thereto, obtained Ext. P7 notification dated 19/5/2005 issued under Section 5 of the Kerala Preservation of Trees Act, in relation to the property owned by the appellant and exempted by Ext. P1 order of the Forest Tribunal. As a result of the prohibition thus imposed on the cutting of timber as per Ext. P7 notification, appellant filed writ petition challenging the notification. After hearing both sides, learned single Judge dismissed the writ petition mainly on the ground that despite having known about the notification from Ext. R3(a) issued as early as on 17/11/2005, the appellant had thought of challenging the same only in 2008, when he filed the writ petition. It is aggrieved by this judgment, this appeal is filed.

Learned counsel for the appellant contended that the power to issue notification as contemplated under Section 5 is only in respect of lands which are private forests, Cardamom Hills Reserve and lands which are cultivated with cardamom. Learned counsel points out that even the respondents have no case that the land falls within Cardamom Hills Reserve or that the land is cultivated with cardamom. It is stated that in view of Ext. P1 order passed by the Tribunal, the land is not a private forest also. Therefore, according to him, Ext. P7 notification issued under Section 5 of the Kerala Preservation of Trees Act is without jurisdiction and is therefore void. On this ground, counsel contended that the learned single Judge erred in declining to set aside Ext. P7.

On the other hand, learned special Government Pleader contended that despite Ext. P1 order passed by the Tribunal, the land still retains the character of private forest and he referred us to the findings of the Tribunal as contained in Ext. P1 order itself. According to him, since the land is a private forest, respondents were entitled to issue notification under Section 5 of the Kerala Preservation of Trees Act and that therefore, the learned single Judge was justified in upholding the notification.

We have considered the submissions made.

Section 2(f) of Act 26 of 1971 defines private forest thus;

2(f) "private forest" means-

(1) in relation to the Malabar district referred to in sub-section (2) of Section 5 of the State Reorganization 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.

Explanation - Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops;

(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and

(D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;

(ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.

(2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas.

Explanation - For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs."

Admittedly, the land in question is situated in the erstwhile Malabar District and therefore is a land to which the provisions of Madras Preservation of Private Forests Act, 1949 applied.

Reading of Section 2(f)(1) shows that in relation to Malabar district, any land to which the Madras Preservation of Private Forests Act, applied immediately before 10/5/1971 excluding lands which are covered by clauses (A), (B), (C) and (D) are private forests. Similarly, by virtue of Section 2(f)(1)(ii), any forest not owned by the Government, to which the Madras Preservation of Private Forests Act did not apply, including waste lands which are enclaves within wooded areas are also private forest.

In so far as this case is concerned, the appellant did not even argue that the agricultural crops that he is growing in the land are covered by Clauses (A) to (D) and instead what is contended is that he has planted teak and is also growing seasonal crops. Evidently, therefore, in such a land, he does not enjoy any of the exemptions as provided in Section 2(f) of Act 26 of 1971 and would therefore continue to be a private forest as defined in the Act. It was apparently because of this, taking note of the pleadings and the evidence that was available, in para 5 and 6 of Ext. P1 order, the Tribunal has held thus;

"5. In the counter filed by the respondents material contention taken is that the entire area now remains as a coppice forest containing teak and other miscellaneous trees aged about 6 years. In the light of the unchallenged evidence of P.W. 1 supported by documents referred above burden shifts on the respondents to establish that the area still takes the nature and character of a forest or coppice forest coming within the meaning of the Act. But this burden was not discharged for the respondents by adducing any evidence. So also there is no materials or data before me to reject the claim of the applicant that they are persons not owning or in possession of lands in excess of the ceiling area prescribed under the K.L.R. Act (Act 1/64). Applicants in the accompanying affidavit to their application and P.W. 1 in his evidence swear to the effect that as on 10.5.1971 or at any time prior to that date the applicants were not owning any land, except the disputed property, any where else. In the light of the evidence adduced by the applicants in this regard, I have no other go but to hold that the applicants are persons not holding lands in excess of the ceiling area as prescribed under the K.L.R. Act and therefore they are entitled to claim benefit of exemption of the lands from vesting under Sec. 3(2) as well as Sec. 3(3) of the Act.

In the light of my discussion above, I find the applicants are entitled to get a declaration that the application schedule lands are parambas used for raising agricultural crops even prior to the appointed day and not a forest coming within the meaning of Act 26/71. In the result, the application is allowed and the application schedule properties comprised in Sy. No. 15/2 in Mundur Village, Palghat Taluk, Palghat District is not a private forest coming within the scope and purview of Act 26/71 but an agricultural holding not liable to be vested in the Government under any of the provisions of the Act. In case, the land involved in the application schedule have already been taken possession of by the Government, the same shall be restored to the possession of the applicant."

(emphasis supplied)

Evidently therefore the benefit of exemption given to the appellant is the benefit of exemption as provided in Section 3(2) and 3(3) of Act 26 of 1971, which reads thus;

"3(2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto. Explanation - For the purposes of this sub-section, "cultivation" includes cultivation of trees or plants of any species.

(3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling are applicable to him under Section 82 of the said Act."

Reading of the above provisions show that despite the exemption from vesting as provided in Section 3(2) and 3(3), the land which is exempted would still retain the character of private forest. If that be so, for the purpose of Section 5 of the Kerala Preservation of Trees Act, even in spite of an order under Section 3(2) and (3) of Act 26 of 1971, the land can still be treated as a private forest and a notification under Section 5 could also be validly issued.

It is true that the learned counsel for the appellant relied on Exts. P8 and P9 judgments of this Court. Those were cases where the lands were held to be outside the purview of Section 2(f) and therefore were not private forests. In such a case, as rightly held by this Court, provisions of Section 5 of the Kerala Preservation of Trees Act would not have been invoked. This principle has also been held by the Apex Court in its judgment in State of Kerala Vs. Abdul Ali, . However, since the benefit of exemption enjoyed by the appellant is under Section 3(2) and 3(3), he cannot draw any support from Exts. P8 and P9 judgments or the Apex Court judgment referred to supra.

We, therefore, are unable to agree with the learned counsel for the appellant that Ext. P7 notification has been issued without jurisdiction.

Appeal fails and is dismissed.