IMPORTANT POINT
High Court was right in holding that the burden of showing that her land was not a private forest but a rubber plantation was on the appellant and the appellant had failed to establish her claim.

Headnote:Kerala Private Forests (Vesting and Assignment) Act, 1971-Section 2(f)-Meaning of private forest-Section 3-Vesting of private forest in State-Lands used principally for cultivation of certain items including rubber excluded from it-Appellant claiming exclusion on ground that her lands contain rubber plantations-Appellant failing to prove that the principal object was to cultivate the land for rubber plantation-High Court rejecting her claim for exclusion-Appeal to Supreme Court-Whether High Court was right? (Yes)-Appeal dismissed.
Held : From the material placed before the High Court and also before us, it appears that there is no evidence in regard to the destruction of the rubber plantation due to fire. There is, however, material to show that the appellant has been cultivating tapioca. Further, the High Court recorded a finding that there was no evidence indicating that the appellant had intention to cultivate the land which only meant cultivation of rubber plantation. There is also nothing on record to show that absence of rubber plantation was for short period and that the land was in the process of rubber plantation. For these reasons, we are of the view that the High Court is right in holding that the burden of showing that the land was not a private forest was on the appellant and the appellant had failed to establish her claim. On the above facts, we are unable to hold that the appellant established that the lands were used principally for cultivation of rubber plantation, so, we do not find any valid ground to interfere with the order under challenge. The appeal is, accordingly, dismissed but, in the circumstances of the case, without costs. (Paras 9 to 12)

ORDER

In this appeal, the order of a Division Bench of the High Court of Kerala in M.F.A. No. 513 of 1985, dated October 3, 1990, is brought under challenge.

2. The proceedings arise out of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short, the Forest Act ) which came into force on May 10, 1971. Section 3 of the Forest Act is a vesting section which says, inter alia, that notwithstanding anything contained in any other law for the time being in force, or in any contract or other document with effect on and from the appointed day (10.5.1971) the ownership and possession of all private forests in the State of Kerala shall by virtue of that 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 forest shall stand extinguished. This provision is subject to sub-sections (2) and (3) of Section 3 with which we are not concerned here.

3. For understanding the scope of this provision, it is necessary to examine the definition of the expression private forest in clause (f) of Section 2 of the Forest Act. The relevant provision of the definition reads as under:

"(f) "private forest" means

(1) in relation to the Malabar district referred to in sub-section (2) of section 5 of the State reorganisation Act, 1956 (Central Act 37 of 1956)-

(i) any land which the Madras Preservation of Private Forest Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding-

(A) land 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.

4. A plain reading of the definition, extracted above, shows, inter alia, that if any land is under the Madras Preservation of Private Forest Act, 1949 (Madras Act 27 of 1949) before the appointed day, it would be a private forest. From the scope of the private forest are excluded lands, inter alia, which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and also those lands which are used for any purpose ancillary to cultivation of such crops or for preparation of the same for the market. For exclusion of the land from the application of the Act as not being private forest, it is not necessary that the land should be in actual cultivation of rubber, tea, coffee, etc. at all times. It is enough to prove that it is used principally for the cultivation of rubber, tea, coffee, etc. There should be continuity in cultivation of rubber, tea, coffee, etc. to prove principal use; and absence of cultivation for short periods due to clear felling or other ancillary purposes would not militate against the principal use of the land for cultivation of rubber, tea, coffee, etc.

5. The appellant claims to be the owner of an extent of 17.74 acres of land in R.S.No.12/11 of Vedakkethara village in Alathur Taluk (referred to as the disputed area ) and that it contains rubber plantation therein.

6. On the ground that the authorities under the Forest Act were not allowing her to enter the disputed area (17.74 acres), the appellant filed an application under Section 8 of the Forest Act before the Forest Tribunal for a declaration that the said area did not vest in the State as a private forest and that it was a part of the rubber estate. The Forest Tribunal found that the disputed area was not a private forest, and, accordingly, granted declaration to the appellant holding it to be rubber plantation. That finding was challenged in the High Court by the respondent-State. A Division Bench of the High Court deemed it fit to remand the matter to the Forest Tribunal to enable the appellant to lead further evidence to establish that the disputed area was principally used as r

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2003 Supreme(SC) 153

IMPORTANT POINTHigh Court was right in holding that the burden of showing that her land was not a private forest but a rubber plantation was on the appellant and the appellant had failed to establish her claim.

IMPORTANT POINT
High Court was right in holding that the burden of showing that her land was not a private forest but a rubber plantation was on the appellant and the appellant had failed to establish her claim.