Nirmala Namboodiripadu, Preethi and Maya vs State of Kerala

Thottathil B. Radhakrishnan, J.—This appeal is filed by the claimants in three Original Applications filed before the Forest Tribunal. The plea before the Tribunal was that the land involved in the Original Applications were not private forests, for the purpose of the Madras Preservation of Private Forests Act, 1949 (hereinafter referred to as "the MPPF Act") and, therefore, for the purpose of Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as the "KPF (V&A) Act"). The further contention is that even if the property is covered under the provisions of those enactments, the notification issued by the competent authority does not take in the lands involved in the Original Applications. It is contended still further that in the event of it being held that the provisions of the KPF(V&A) Act apply on the basis of a notification duly issued, the applicants are entitled to the benefit of either among sub-sections (2) or (3) of Section 3 of that Act, since the land was held by their predecessor in interest under his personal cultivation and/or that the owner held it under a valid registered document, which is Exhibit A1 partition deed and as on the appointed day, had the intention to cultivate it. Considerable arguments were addressed to show that the MPPF Act does not apply and the land is not a private forest as defined under that Act. For one thing, the coverage under the MPPF Act and the consequent coverage under KPF(V&A) Act would apply only if the land is part of a total extent of 100 acres lying contiguously, which could be treated as private forest, though it is not necessary that the entire holding should be with one person or family. It was also pointed out by the learned counsel for the appellants that materials on record indicate that the land was under the personal cultivation and it could even be treated as garden land for the purpose of Kerala Land Reforms Act, 1963. We would not comment on that aspect of the argument now, since we do not proceed to consider that issue having regard to the nature of the order that would be passed hereunder. Similarly, we also leave open the plea that the claimants were eligible to the benefit of sub-section (3) of Section 3 of the KPF(V&A) Act.

The first issue that has to be addressed is as to whether the land claimed by the claimants is covered by a notification issued under the KPF(V&A) Act. Reading of the Departmental witness, R.W.1, is sufficient to say that the categoric admission on behalf of the Department is that the properties of the claimants are not covered by the notification issued. If that were so, there was no requirement to file an Original Application and the applicants were compelled to file such application only because of some obstruction caused by the Forest officials under the guise of the notification which was then issued. We have read the departmental witness; R.W.1, say that an erratum notification was issued on 8.10.2003, that is long after the commencement of the proceedings before the Tribunal. Obviously, therefore, the land in question was not involved in the notification in relation to which the claimants claimed exemption and decision by the Tribunal. In the light of the aforesaid, having found that the lands involved in the appeal and the claim petitions from which it arises were not covered by a notification duly issued under the KPF (V&A) Act, the appeal is allowed and the Original Applications are allowed, declaring that the lands claimed by the claimants in the Original Applications are not covered by the notification mentioned i n the Original Applications (Exhibit B1). We clarify that the applicants will be at liberty to seek remedy, if necessary, against the aforesaid erratum notification and also that all questions including the plea that the land is not covered by the provisions of the MPPF Act and consequentially no coverage under the KPF(V&A) Act as also the protection claimed under sub-section (2) and/or sub-section (3) of Section 3 are left open. The land will be restored, if it is held by the Department exclusively under Exhibit B1 notification. That will be done within a period of one month from now. Appeal ordered accordingly. No costs.