IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &

THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 16^TH DAY OF FEBRUARY 2023 / 27TH MAGHA, 1944 MFA (FOREST) NO. 56 OF 2014 AGAINST THE ORDER IN OA NO.39/2011 DT 30.01.2014 OF THE FOREST TRIBUNAL KOZHIKODE APPELLANTS/PETITIONERS:

1 SARADHA W/O. NARAYANAN CHETTIAR, PALAKKAL @ KALLINGAL HOUSE, KADAMBUR AMSOM, VADAKKUMPURAM DESOM P.O., KADAMBUR, AMBALAPPARA, OTTAPPALAM TALUK.

2 GOKULDAS S/O. SARADHA, PALAKKAL @ KALLINGAL HOUSE, KADAMBUR AMSOM, VADAKKUMPURAM DESOM P.O., KADAMBUR, AMBALAPPARA, OTTAPPALAM TALUK.

BY ADVS.

SRI.P.R.VENKATESH SMT.ASHA P.KURIAKOSE RESPONDENTS:

1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, (FOREST & WILD LIFE), GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.

2 CONSERVATOR OF FOREST CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKODE, PALAKKAD-678 002.

BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 16.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

::2::

K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.

-------------------------------------------

M.F.A (Forest) No.56 of 2014 -------------------------------------------

Dated this 16^th February, 2023

JUDGMENT

K.Vinod Chandran, J.

The appeal is from an order of the Forest Tribunal under the Kerala Private Forest (Vesting & Assignment) Act, 1971 (for brevity 'the Vesting Act'). The applicants are mother and son who claimed under one Narayanan Chettiar who was the husband and father of the applicants. The properties scheduled had janmam in Thekkiniyedath Keerangattu Mana who conceded kanam rights, based on which in 1961 a partition was effected, in which was allotted Item No.1 in the schedule to Narayanan Chettiar. Item No.2 in the schedule was allotted to the share of the brother of Narayanan Chettiar who died issueless and on his death a partition was effected in the year 1971 between his brothers. Narayanan Chettiar also obtained purchase certificate. In the year 2009 the properties devolved on the applicant. The applicants contended that the scheduled property lies as a garden land, cultivated with dry crops as on 10.05.1971 and has absolutely no characteristics of a forest. The boundaries are also garden lands and the scheduled properties were ::3::

brought under cultivation prior to 1971. Alternatively declaration of exemption from vesting under S.3(2) & (3) were also claimed. 2. The Divisional Forest Officer, Palakkad alleged that the scheduled property forms part of a huge malavaram called Koonanmala, which vested with the Government under S.3(1) and was notified as on 10.10.1979. The scheduled property was asserted to be a typical forest area having predominant tree growth of forest species clearly attracting the provisions of the Vesting Act. It was stated to be a land governed under the Madras Preservation of Private Forests Act, 1949 (for brevity 'the MPPF Act'). The title, possession and cultivation in the property as claimed by the applicants were disputed. It was further alleged that the applicants are trying to encroach into forest areas and grab properties for themselves. While resisting the claim of exemption a preliminary objection regarding limitation was also raised.

3. The Tribunal raised the issues on limitation, lie and nature of property and the entitlement of a declaration of exemption under S.3(2) or (3). The Tribunal found limitation in favour of the applicant and held that the application is maintainable, despite the delay occasioned. It was found that the application scheduled property is governed by the MPPF Act, especially when no contra evidence was urged and the notification clearly showed the vested area having an extent of 478.78 ::4::

hectares. The Tribunal first considered the claim of exclusion under clauses (A) to (D) of S.2f(1)(i) and found it to be not sustainable. Exemption under S.3(2) & (3) was also declined despite finding clear title on the applicant.

4. T