IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN &

THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 7^TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946 MFA (FOREST) NO. 53 OF 2022 AGAINST THE ORDER DATED 26.09.2018 IN OA NO.21 OF 2010 OF FOREST TRIBUNAL, KOZHIKODE APPELLANTS/RESPONDENTS:

1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO TE GOVERNMENT OF KERALA THIRUVANANTHAPURAM, G.P.O, PIN - 695001

2 THE CUSTODIAN OF VESTED FORESTS OLAVAKKODE P.O.,PALAKKAD DISTRICT, PIN - 678002 BY ADV.NAGARAJ NARAYANAN, SPL. GP (FOREST)

M.F.A.(Forest) No.53 of 2022 RESPONDENT/APPLICANT:

ANDREW PADIKKA, 82 YEARS, LABOURER, S/O ABDULLA, PADDIKKA HOUSE, THONDARNADAMSOM, KUNHOMEDESOM, KUNHOME P.O., MANANTHAVADY, WYANAD DIST, PIN - 670731 BY ADVS.

S.K.BALACHANDRAN T.P.GEORGE K.M.BIJU N.D.DEEPA THIS MFA (FOREST) HAVING COME UP FOR FINAL HEARING ON 07.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ.

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Dated this the 7^th day of January, 2025

JUDGMENT

Sathish Ninan, J.

The State is in appeal challenging the order of the Forest Tribunal, holding that the application schedule property is exempted from vesting under Section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as “the Vesting Act”). 2. The application schedule property has a total extent of 9.33 acres. The property has been identified in Ext.C2, Commissioner's sketch as plots A, B, C, D and E marked therein. The applicant claimed that the property is under his personal cultivation by raising various crops. The applicant claimed to have obtained the property under Ext.A1 agreement dated 13.11.1968. He has constructed a residential house in the property and is residing there with his family.

3. The respondent filed a counter statement contending that the property is a vested forest notified as VFC item No.105 in the notification dated 08.07.1977. It was claimed that the property was not under cultivation during the relevant period and that the property is a forest containing trees of various forest species.

4. The application was originally allowed in part by the Tribunal as per order dated 25.06.2014, declaring that plots B, C, D and E in Ext.C2 plan are not private forest vested with the Government under the Vesting Act. This Court in M.F.A.No.129 of 2014 set aside the order and remanded the matter back to the Tribunal. After the remand, the Tribunal held that, though the property is a forest under the Vesting Act, the property is liable to be exempted under Section 3(2) of the Vesting Act.

5. Before this Court the only challenge is whether the application schedule property is liable to be exempted under Section 3(2) of the Vesting Act. The applicability of the Madras Preservation of Private Forests Act, 1949 (MPPF Act), that it is a 'forest' as defined under the Vesting Act and also that the application schedule property is not liable to be excluded under Section (2)(f)(1)(i) of the Vesting Act, are not under challenge.

6. To get exemption under Section 3(2) of the Vesting Act, the applicant has to prove that as on the appointed day namely, 10.05.1971, the property was under personal cultivation. The Tribunal relying on Ext.C3 Commissioner's report noted that, in the property, there existed 480 coffee plants, 60 jack fruit trees, 63 mango trees, 94 arecanut trees, 7 coconut trees, 137 pepper plants and 36 cashew trees. Pertinently, the age of the trees/cultivation have not been mentioned in Ext.C3. An expert Commissioner was not taken out to assess the age. As noticed above, the point relevant for finding whether the property is liable to be exempted under Section 3(2) of the Vesting Act is the nature of the property as on 10.05.1971. The mere fact that, when the Commissioner visited the property in the year 2013, there existed certain cultivation, is not sufficient. The crucial issue