STATE OF KERALA Vs. GOPALAN

JUDGEMENT

(1.) The appeals are filed from a common order of the Forest Tribunal. The respondents who were the applicants before the Forest Tribunal claimed exclusion under S.2 (f)(1)(i) of the Private Forest (Vesting and Assignment) Act, 1971 ( hereinafter, 'the Act of 1971'). Having looked at State of Kerala v. K.C.Moosahaji 1984 KLT 494 and K.M.Abdu v. State of Kerala an unreported judgment in M.F.A. No. 3 of 2007 dtd. 14/3/2013, the Tribunal held that going by S.2(f) of the Act of 1971, if the Court is satisfied from the evidence produced before it that an item of property is not a forest, by its characteristics or otherwise, it can be held that it is not a private forest. In other words if an applicant before the Tribunal establishes that a property situated in Malabar district is not having the characteristics or features of a forest immediately prior to 10/5/1971, then such land cannot be said to be a private forest under S.2 (f) of the Act of 1971. It is on this premise that the applications were considered and disposed of, which we find to be legally erroneous from a reading of the Act and also the Full Bench decision in K.C.Moosa Haji (supra).

(2.) It was following K.M.Abdu (supra) that the learned Tribunal found that, if it is proved that a land is not a forest, then it cannot be a private forest and would not be one covered under the Madras Preservation of Private Forest Act, 1949 (hereinafter, MPPF Act). Sec. 2 (f) of the Act of 1971, which defines private forest by sub-clause (1) first, makes the word relatable to the Malabar district. The first requirement hence is that the private forest should be within the erstwhile Malabar district as referred to in the States Reorganization Act, 1956. A reading of S.2(f)(1)(i) would make it clear that any land to which the MPPF Act applies immediately before the appointed day, excluding those covered under clause A to D would be a private forest under the Act of 1971, if it is within the Malabar district. Again by sub-clause (ii) of Sec. 2(f)(1), any forest not owned by the Government to which the MPPF Act does not apply including waste lands enclosed within wooded areas would be private forest under the Act of 1971 and as per sub-clause (2) of S.2(f)(1), any forest not owned by the Government including waste lands enclosed within wooden areas, located in the other parts of the State of Kerala would also come within the definition. When we look at the different clauses defining private forests; within the erstwhile Malabar district; lands to which MPPF Act of 1971 is applicable, which do not stand excluded by clauses A to D of S.2(f)(1)(i) is private forest; whether the land has the characteristics of a forest or not. Similarly forests, not owned by the Government, again within the Malabar district, on which MPPF Act does not apply including waste lands enclosed within wooded areas, would come under the definition of a private forest by virtue of Sec. 2(f)(1)(ii) of the Act of 1971. Hence, when we examine the exclusions at A to D, it is not merely lands having the characteristics or nature of a forest that is covered by the MPPF Act, which would fall under the definition of the Act of 1971. Any lands within the Malabar district, to which the MPPF Act applies come within the definition of forest. However, only forests, which are not covered by the MPPF Act, within the erstwhile Malabar district and those situated in the remaining areas of the State of Kerala; would come within the definition of 'private forests' under the Act of 1971. Under sec. 2(f)(1)(ii) & 2(f)(2) to be private forests, it should have the nature and characteristics of a forest. When considering a land for exclusion under S.2(f)(1)(i), the said consideration is not at all relevant, especially looking at the words employed in the said provision of : 'any land' as distinguished from that employed in S.2(f)(1)(ii) and S.2(f)(2) : 'any forest'.

(3.) In K.M.Abdu (supra), a co-ordinate bench found otherwise and held that only a forest can be a private forest as seen from a close reading of the definition clause Sec. 2(f); which declaration we are unable to agree with, with due respect. Normally we would have referred the matter for consideration by a larger bench, but the same is unnecessary by reason of the binding decision of a larger bench in K.C.Moosahaji, (supra) which held so regarding the very same contention: