Intent to cultivate is critical for determining private forest classification under the Act; evidentiary gaps warrant reconsideration by the tribunal.

J U D G M E N T

KOSHY,J.

Appellants filed an application before the Forest Tribunal under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, for a declaration that 25 acres of land in Re- Survey No.289/A1 of Kattussery Village of Alathur Taluk, Palakkad District is not a private forest. In the alternative also they pleaded that they are entitled to exemption under Sub sections 2 and 3 of Section 3 of the Act. Tribunal found that land was situated in Malabar area and it is covered under the M.P.P.F. Act. Tribunal also found that appellants have got valid title over the property. But according to the tribunal, even though they had valid title deed, they were not able to prove that they were having intention to cultivate the property on the appointed day, even though at the time of Commission report, there were some cultivation. All lands were devolved on the MFA.782/01 2 appellants predecessor by Ext.A1 deed dated 20.12.1965. The above deed was executed by one Sri.K.V.John to Basuradevi, mother of the appellants. Further case of the appellants is that Basuradevi has declared this land in the ceiling area as on 1.1.1970 on the basis of the Land Reforms Act, 1964. If this was a private forest, there was no need for including this land in the ceiling area as private forests are exempted for the purpose of ceiling area under the L.R.Act, 1964. Basuradevi had no other property and only 15 acres of land were allowed and 10 acres were surrendered being excess land. Balance is only 15 acres. Forest officials themselves allowed the claim with regard to 6.62 acres out of balance 15 acres. Hence dispute is regarding only 8.38 acres of land. The first question is whether the land is a private forest vested under the Act. Only if the land is a private forest as defined under the Act, the land is vested under Section 3(1) of the Act. If this land was considered by the Government as not a private forest for the purpose of ceiling area, according to the appellants this cannot be treated to be a private forest at all. But unfortunately appellants did not produce the Land Board's order which is a MFA.782/01 3 public document. On perusal of the above only one can understand whether the 15 acres of land in question was included in the direction. We are of the opinion that for considering the matter on merit, production of the above is necessary to understand the contentions of the parties. If the land is a private forest on the appointed date, it will not vest with the State under Section 3(1) and appellants need not prove the exemption.

2. Assuming that it is a private forest, since title of the land is accepted, if there is intention to cultivate, they are entitled to get benefits under Section 3(3). According to the appellants, Exts.A2(a), A2 (b) and A2(c) are the certificates and receipts to show that they have obtained loans from the Agricultual Co-operative Bank and Sahakarana Karshika Vikasana Bank for developing the land and for making kayyalas etc. Admittedly at the time of Commission report, there was a house inside the property wherein karyasthan of the appellants family was staying. But from the commission report, only very few domestic trees were available in the place which was MFA.782/01 4 having age up to the appointed day. But Commission report shows that there are no forest trees on the appointed day. The question is whether there was intention to cultivate or not on the appointed day. Based upon the decision of the Supreme Court in Joseph v. State of Kerala (2007 (3) KLT 144 (SC)) it was agreed that since part of the land, that is, 6.62 were cultivated and not private forest, intention to cultivate can be gathered, for the other part also. That aspect was not considered. In fact that decision was not available for the tribunal. The observations of the tribunal in paragraph 39 is not consistent with the decision of the Supreme Court. According to the appellant, commission report would show that there is no differen