NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8168 OF 2010

P.T. Sreenarayanan Unni & Ors.  …Appellants

versus

State of Kerala & Ors.              …Respondents

WITH

CIVIL APPEAL NO. 8433 OF 2010

J U D G M E N T

INDU MALHOTRA, J.

1. The present Civil  Appeals have been  filed to challenge  the

final Judgment and Order dated 01.01.2008 passed by the

High Court of Kerala at Ernakulam [hereinafter referred to as

“the High Court”] in MFA No. 389 of 2002.

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2. The factual matrix in which the present Civil Appeals arises

is briefly stated as under :

2.1. The Appellants through their Partnership Firm  viz.

Maduthala Plantations, purchased 100 acres of private

forest land in Survey No. 186/1A1 of Kunnathidavaka

Village vide registered Sale Deed dated 15.05.1967.

2.2. In 1971, the Government of Kerala enacted the Kerala

Private Forest (Vesting and Assignment) Act, 1971

[hereinafter referred to as “the Act”].

  Section 3 of the Act reads as follows :–

Section 3 ­ Private forests vest in Government:­ (1)  Notwithstanding anything contained  in  any other law for the time being in force, or in any contract or other document but subject to the provisions of sub­sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this 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.

(2) Nothing contained in sub­section (1) shall apply in respect of so much extent of land comprised in private  forests held by an owner under his  personal  cultivation as  is within the

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ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.

Explanation:­ For the purposes of this sub­ section, ‘cultivation’ includes cultivation of trees or plants of any species.

(3) Nothing contained in sub­section (1) shall apply in respect of so  much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and  intended  for cultivation  by him, which together with another lands held by him to  which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling area applicable to him under Section 82 of the said Act.

(4)  Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of sub­section (2) or subsection (3), be deemed to be lands to which Chapter III of the said Act is applicable and for the purposes of calculating the ceiling limit applicable to an owner, private forests shall be deemed to be ‘other dry lands’ specified in Schedule II to the said Act.

(emphasis supplied)

  As per Section 3(1) of the Act, the ownership and

possession of all private forests in the State of Kerala

vested in the State Government with effect from

10.05.1971.

  Section 3(2) provided an exemption if the land was

under personal cultivation of the owner.

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  Section 3(3) provided a further exemption if the land

was intended for cultivation, and if the extent of land

was  below  the ceiling limit  under  Section  82  of the

Kerala Land Reforms Act, 1963.

   The constitutional validity of the Act was upheld by

this Court in State of Kerala v. Gwalior Rayon.1

2.3. The 100 acres of land comprised in Survey No.

186/1A1 was private forest land, which vested in the

State Government w.e.f. 10.05.1971.

2.4. In 1975, the Forest Department took over possession of

the aforesaid land.

2.5. In 1990 i.e. 19 years after the land had vested in the

State Government, and 15 years after possession was

taken over by the Forest Department, the Appellants

filed  O.A.  No.  204/1990 under  Section 8  of the  Act

before the Forest Tribunal, Kozhikode.

   The Appellants sought a Declaration that out of the

100 acres of land in Survey No. 186/1A1, 79 acres and

68.5 cents was not private forest land. They claimed

1 (1973) 2 SCC 713.

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exemption under Section 3(2) of the Act, and submitted

that they were cultivating the land with various

agricultural crops such as rubber, coffee, cardamom,

cocoa and lemon grass.

2.6. The Tribunal appointed a Commissioner to carry out

inspection of the land.  

   The first inspection was carried out in 1993. As per

the Report submitted by the Commissioner, there was

no improvement on the land.

   The second inspection was carried out on

20.05.1995. As per the Report submitted by the

Commissioner, major portions of the land in question,

and the adjoining vested forest, was planted with

acacia trees aged approximately 8 years.

  The third inspection was carried out on 24.01.1998.

As per the Report submitted by the Commissioner, the

entire area of the land was mainly planted with acacia

and silver oaks aged 10 to 12 years.

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   As per the Final Report submitted by the

Commissioner, the property purchased by the

Appellants originally admeasured 100 acres. Out of the

100 acres, 80 acres of land vested in the State, while

20 acres of land was retained by the Appellants. Out of

the said 20 acres, 12.60 acres of land was taken by the

State as excess land under the provisions of the Kerala

Land Reforms Act, 1963.

2.7. The Forest Tribunal  vide  Order dated 11.07.2000

dismissed the O.A. filed by the Appellants.

   It was held that there was no evidence to show that

the  land  in Survey No.  186/1A1 was cultivated with

any agricultural crops prior to 10.05.1971.

  As a consequence, the Appellants were not entitled to

claim the exemption under Section 3(2) on the ground

that the land was under their personal cultivation.

2.8. Aggrieved by the aforesaid Order, the Appellants filed

MFA No. 389/2002 before the High Court.  The High

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Court vide impugned final Judgment and Order dated

01.01.2008 dismissed the Appeal.

  It was held that in view of the 3 Reports submitted

by  the  Commissioner, there  was no  evidence  of  any

cultivation on the Appellants’ property on or prior to

the date of vestment i.e. 10.05.1971. Hence, the

Appellants  were not  entitled  to  the exemption under

Section 3(2) of the Act.

  The Appellants produced a Registration Certificate

from the Rubber Board for cultivating 10 acres of land

which was issued prior to vesting. The Commissioner’s

Reports revealed that the Appellants were in

possession of 20 acres and 31.5 cents of land. Out of

the said area, 12.5 acres of land had been surrendered

as excess land under the Ceiling Act. The Appellants

were therefore, in active possession of only 7.85 acres

of land.

  The High Court held that against the claim of the

Appellants for  79 acres  and 68.5  cents  of land, the

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Appellants were entitled to get exemption under

Section 3(3) only with respect to 7.85 acres of land.

2.9. Aggrieved by  the aforesaid Judgment, the Appellants

filed the present Civil Appeals.

3. We have heard the learned  Counsel for the parties, and

perused the material on record.

3.1. The  Appellants contended that the land in  question

falls in the Malabar District. Hence, as per Section 2(f)

(1) of the Act, the land in question is not private forest

land, and could not have been taken over by the State.

   Section  2(f) of the  Act  defines  a “private forest”.

Section 2(f) is set out hereinbelow for ready reference :

“2(f) "private forest" means

(1) in relation to the Malabar district referred to in sub­section (2) of Section 5 of the State Reorganization 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).

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(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.

Explanation:­ Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used purposes ancillary to the cultivation of such crops;

(C) lands which are  principally  cultivated with cashed or other fruit bearing trees or are principally cultivated and any other agricultural crop and (D)  sites  of  buildings  and  land appurtenant to and necessary for the convenient enjoyment or use of such buildings;

(ii) any forest not owned by the Government, to which the Madras Preservation of private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.

(2) in relation to the remaining areas in the State of Kerala any forest not owned by the Government including  waste lands  which are enclaves within wooded areas.

Explanation:­  For the purpose of this clause, a land shall be deemed to be waste land notwithstanding the existence thereon of scattered trees or shrubs.”

4. The land in question falls in the  Malabar  District. As a

consequence, sub­section (1) of Section 2(f) would be

applicable in the present case.

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   As per Clause (i) of sub­section (1) of Section 2(f), “private

forest” includes any land to which the Madras Preservation of

Private Forest Act, 1949 applied prior to 10.05.1971.

However, it excludes lands which were principally under

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.

  The land in question vested in the State on 10.05.1971 i.e.

more than 48 years ago. The possession was taken over by

the State in 1975. The Courts below have arrived at a finding

of fact that there was no cultivation whatsoever on the land

in question on  10.05.1971. The  Appellants  have failed to

produce any evidence of cultivation on the land in question.

  The land in question is therefore, covered by the definition

of “private forest” under the Act, and the Act makes it clear

that all private forests in the State of Kerala would

automatically vest in the State Government with effect from

10.05.1971. The Appellants are not entitled to the

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exemptions under sub­sections (2) and (3) of Section 3 of the

Act.

  We however,  affirm the exemption granted by the High

Court under Section 3(3) with respect to 7.85 acres of land.

In light of the  aforesaid  discussion, the  Civil  Appeals  are

dismissed. All pending Applications, if any, are accordingly

disposed of.

Ordered accordingly.

.......................................J. (INDU MALHOTRA)

...…...............………………J. (SANJIV KHANNA)

New Delhi; August 16, 2019.

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