STATE OF KERALA Vs. MOOSA HAJI

JUDGEMENT

(1.) THESE are appeals under S. 8a of the Kerala Private forests (Vesting and Assignment) Act, 1971 (hereinafter called the'vesting act' ). The Act came into force on 10-5-1971. Its object was to provide for the vesting of private forests in the State Government, and for assignment thereof to agriculturists and agricultural labourers for cultivation, as in the opinion of the legislature, all private forests in Kerala were agricultural lands. S. 2 (f) defined 'private forest'. S. 3 provided for the vesting of the ownership and possession of all such forests in the Government, and for the extinguishment of rights, title and interests of owners and other persons. Under S. 4, vested private' forests were to be deemed to be reserve forests so long as they remained vested. S. 5 provided for summary eviction of persons found to be in unauthorised occupation of the vested areas. S. 6 provided for demarcation of the boundaries, and S. 7 for the constitution of Tribunals for the purpose of the Act. Disputes as to whether any land was a private forest or not, or whether any private forest had vested in the Government or not, had to be decided by such Tribunals; and S. 8a provided for appeals to the High Court from such decisions. S. 9 declared that no compensation was payable for the vesting or the extinguishment of the rights involved. S. 10 required the government to "reserve" part of the vested forests, and to assign or lease out the remaining part to agriculturists, agricultural labourers, scheduled Castes and Scheduled Tribes, unemployed young persons and others interested in taking up agriculture as means of their livelihood. Under S. 11 the assignment was to be completed within two years. S. 12 to 14 dealt with the powers of the Tribunal and the Custodian, bar of jurisdiction of civil courts, and indemnity. S. 15 contemplated the constitution of an "agriculturists' welfare Fund". S. 16 and 17 conferred power on the Government to remove difficulties and to make rules. S. 18 repealed the Madras Preservation of private Forests Act, 1949 and some other enactments/ Ordinances. When the validity of the Act was questioned in State of Kerala v. Gwaliyor Rayon (AIR 1973 SC. 2734)the Supreme Court understood the legislative measure as a "scheme of agrarian reform" designed to take over agricultural lands comprised in private forests, and for the settlement of poorer classes of the rural population on those lands, for promotion of agriculture.

(2.) TO appreciate the nature of the contentions raised in these appeals, it is also necessary to briefly refer to the Kerala Land Reforms act and the Madras Preservation of Private Forests Act. Though most of the provisions of the Land Reforms Act were brought into force from 1-4-1964, the ceiling provisions were given effect to only from 1-1-1970. Chapter III of the act dealt with fixation of ceiling and disposal of excess lands. The Chapter provided for the fixation of a ceiling on the extent of land a person or family could hold as on 1-1-1970, for take-over of the excess on payment of compensation and for their distribution among kudikidappukars, landless agricultural labourers and small-holders. S. 81 of the Act exempted private forests from the ceiling provisions; and in this view, the object of the vesting Act was to get at the lands comprised in such forests also for distribution, as part of agrarian reform. The basic difference between the two schemes was that while compensation was payable for excess lands taken over under the Land Reforms Act, no compensation at all was payable for the forest lands taken over under the Vesting Act. Both the enactments were directed at relieving the pressure on land which was, and is, a notorious feature of this over-crowded State.

(3.) S. 2 (f) of the Vesting Act, in so far as it is relevant for the present, reads: (f) "private forest" means (1) in relation to the Malabar district referred to in sub-section (2) of S. 5 of the States Reorganisation Act, 1956 (Central Act 37 of 1956) (i) any land to which Madras Preservation of Private forests Act, 194? (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 (I 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. " S. 3 of the Act will also be relevant to some extent, and we shall extract that also: "3. Private forests to vest in Government. (1)Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forests shall stand extinguished. (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 (I 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 or 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 area applicable to him under S. 82 of the said Act. (4) Notwithstanding anything contained in the Kerala Land reforms Act, 1963 private forests shall, for the purposes of sub-section (2) or sub-section (3), be deemed to be lands to which Chapter III of the said Act is applicable and for the purposes of calculating the ceiling limit applicable to as owner, private forests shall be deemed to be 'other dry lands' specified in schedule II to the said Act". The sections of the M. P. P. F. Act which are relevant are the following: 1 (1 ). This Act may be called the Madras Preservation of private Forests Act, 1949. (2) It applies (i) to private forests in the Districts of Malabar and south Kanara having a contiguous area exceeding 100 acres. Explanation. Nothing in this clause shall be deemed to apply to any land which was brought under fugitive or other cultivation prior to the 14th December, 1949 by an owner or any person claiming under him. but does not apply to reserved forests constituted under the Madras Forests Act, 1882 and lands at the disposal of the Government as defined in that Act. Explanation, A private forest exceeding 100 acres in extent shall not cease to be such by reason only of the fact that, in a portion thereof trees or shrubs are felled with or without the permission of the district Collector, or lands are cultivated, or rocks, roads, tanks, rivers or the like exist; nor shall the area of such forest cease to be contiguous by reason only of the existence of all or any of the aforesaid circumstances. xx xx xx 2. In this Act unless there is anything repugnant in the subject or context, (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 Fort St. George gazette. "