Kerala High Court
State Of Kerala vs Mammi Haji on 24 September, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:71161
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2025 / 2ND ASWINA, 1947
MFA (FOREST) NO. 90 OF 2018
AGAINST THE ORDER DATED 31.12.2016 IN OA NO.6 OF 2012 OF
FOREST TRIBUNAL, KOZHIKODE
APPELLANTS/RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL
SECRETARY, FOREST & WILDLIFE, THIRUVANANTHAPURAM.
2 CUSTODIAN OF VESTED FORESTS, ARANYABHAVAN, FOREST
COMPLEX, OLAVAKKODE, PALAKKAD.
BY ADV SHRI.NAGARAJ NARAYANAN, SPL. G.P. (FOREST)
ADV.SHRI.ARAVIND V. MATHEW, GP
RESPONDENT:
MAMMI HAJI
S/O.MAMMED HAJI, PARAKAL HOUSE, KALLADIPATTA,
PATTAMBI VIA, PALAKKAD.
BY ADVS.
SRI.M.P.MADHAVANKUTTY
SRI.NAVEEN RADHAKRISHNAN
THIS MFA (FOREST) HAVING COME UP FOR HEARING ON 24.09.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
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M.F.A. (Forest) No.90 of 2018
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Dated this the 24th day of September, 2025
JUDGMENT
Sathish Ninan, J.
The application under Section 8 (3) of the Kerala
Private Forests (Vesting and Assignment) Act, 1971
(hereinafter referred to as "the Vesting Act") was allowed
by the Tribunal, holding that the disputed land is not a
private forest vested in the Government under Section 3 (1)
of the Act.
2. The application schedule property has an extent of
2.24 acres. It is situated in Sy.No.101/4 of Ongallur-I
Village of Ottappalam Taluk. The applicant purchased the
property under Ext.A1 Sale Deed dated 26.06.1989. The
property was thereafter converted into a rubber plantation.
Long prior to that, and even as in the year 1971, the
property was a Paramba (Purayidam) with fugitive cultivation
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and seasonal crops. Alleging obstruction of enjoyment of the
property by the forest officials on the claim that it is
vested in the Government under the Vesting Act, the original
application was filed before the Tribunal.
3. The State contended that the application schedule
property is part of a malavaram, known as 'Kanayamkunnu',
which is included in VFC item No.67 and has been notified as
a vested forest under the Vesting Act. It was contended
that, as on 10.05.1971, there was no cultivation in the
property and it was a forest.
4. The Tribunal found that the total extent of the
malavaram is only 23.4 acres and hence, the Madras
Preservation of Private Forests Act, 1949 (hereinafter
referred to as 'the MPPF Act') does not apply, and
consequently it does not fall within the definition of
'private forest' under Section 2(f)(1)(i) of the Vesting
Act. The Tribunal also noted that the document of title
relating to the property describes the nature of the
property as 'Paramaba'. The Tribunal also noticed that the
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Commissioner could not notice any forest growth in the land
and reported the property to be a rubber plantation. The
Tribunal proceeded to hold that the land is liable to be
exempted under Section 3 (2) of the Vesting Act.
5. We have heard Shri.Nagaraj Narayanan, the learned
Special Government Pleader (Forest) on behalf of the
appellant-respondent and Shri.P. Madhavankutty, the learned
counsel for the respondent-applicant.
6. It is conceded before us by the appellant that the
extent of the malavaram of which the application schedule
property forms part is less than 100 acres and hence, the
MPPF Act does not apply. Consequently, the property does not
fall within the definition of 'private forest' under Section
2(f)(1)(i) of the Vesting Act. The learned Special
Government Pleader however would contend that the property
satisfies the definition of 'private forest' as defined
under Section 2(f)(1)(ii) of the Vesting Act. The definition
reads thus;
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"(f) "private forest" means-
(1) in relation to the Malabar district referred to in sub-section (2) of
Section 5 of the States Reorganisation Act, 1956 (Central Act 37 of 1956)-
xxxx xxxx xxxx
(ii) any forest not owned by the Government, to which the Madras
Preservation of Private Forest Act, 1949 did not apply, including waste
lands which are enclaves within wooded areas."
According to the learned counsel, the property is a "forest"
and hence, falls within the definition of "private forest".
7. The learned counsel for the respondent-applicant
would, on the other hand, contend that, such a contention
based on Section 2(f)(1)(ii) was never raised before the
Tribunal and that the case set up was one based on Section
2(f)(1)(i). He further contended that Ext.A1 title deed of
the applicant and Ext.A11 its prior document, which is of
the year 1948, describe the property in question as
'Paramba' and not as forest land. Therefore, it could not be
a forest under Section 2(f)(1)(ii) and a private forest
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under the Vesting Act. He would further contend that, since
the property does not fall within the definition of 'private
forest' under the Vesting Act, the question whether the
applicant is entitled to the benefit of Section 3 (2) of the
Vesting Act does not arise at all.
8. As pointed out by the learned counsel for the
respondent-applicant, it appears that a contention based on
Section 2(f)(1)(ii) is not seen urged before the Tribunal.
Under the Section, any "forest" not owned by the Government
would be a private forest. Therefore, the question is
whether as on the appointed day, namely, 10.07.1971, the
application schedule property was a "forest".
9. Ext.A1 title deed of the applicant and Ext.A11 its
prior title deed describe the nature of the property as
'Paramaba'. The learned Special Government Pleader, relying
on the judgment of this Court in Ram Bahadur Thakur Pvt. Ltd. v.
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State of Kerala and another [1980 KLT 215] argued that, the mere
mentioning of the nature of the property as 'Paramba' need
not necessarily mean that it is not a forest. Though the
assignment under Ext.A1 was for agricultural purposes, there
is nothing to indicate that the property was under
cultivation pursuant thereto and that as on the appointed
day, namely, 10.05.1971 it was not a forest.
10. Even going by the case of the applicant, the
property was converted as rubber plantation only after they
purchased the property in the year 1989. As to what was the
nature of the land as on the appointed day (10.05.1971),
there is no evidence. As was noticed above, the contention
based on Section 2(f)(1)(ii) was not projected for
consideration before the Tribunal. The applicability of the
said provision is not in dispute. The contention is that it
is not a forest falling within Section 2(f)(1)(ii). Whether
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the property in question is a forest under Section 2(f)(1)
(ii), has not been considered by the Tribunal. In the
impugned judgment, the consideration was only based on
Section 2(f)(1)(i) of the Vesting Act.
11. The Tribunal entered a finding that the applicant
is entitled to the benefits of Section 3 (2) of the Vesting
Act. The said finding is entered solely on the description
in Ext.A1 and Ext.A11 regarding nature of the property as
'Paramba' and on the report of the commissioner regarding
the existence of rubber plantation. Neither the applicant
nor his vendor were examined though admittedly the burden of
proof is on the applicant. There is no material to find that
the property was under the personal cultivation as on the
appointed day. Hence, the said finding is liable to be set
aside and we do so.
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12. In the circumstances as above, we are of the
opinion that the matter could be remitted to the Tribunal
for fresh consideration. Parties could be afforded
opportunity to adduce evidence.
In the result, the appeal is allowed. The impugned
order is set aside. The matter is remanded back to the
Tribunal for disposal de novo, after raising an issue
whether the application schedule property is a forest
falling within Section 2 (f)(1)(ii) of the Vesting Act.
Parties to appear before the Tribunal on 13.10.2025.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
yd
