Kerala High Court · 2008

M.F.A. (Forest) No. 108/2006 3appointed day and intended for cultivation byhim, which together with other lands held by himto which Chapter III of the Kerala Land ReformsAct, 1963, is applicable, does not exceed theextent of the ceiling are applicable ;to him undersection 82 of the said Act."The Act itself was enacted as a measure of agricultural reform forassigning land to agriculturists and agricultural labourers forcultivation. The Act starts as follows:"An Act to provide for the vesting in theGovernment of private forests in the State ofKerala and for the assignment thereof toagriculturists and agricultural labourers forcultivation.Preamble:- Whereas the private forests inthe State of Kerala are agricultural lands;And whereas Government consider thatsuch agricultural lands should be so utilized asto increase the agricultural production in theState and to promote the welfare of theagricultural population in the State;And whereas Government also considerthat to give effect to the above objectives it isnecessary that the private forests should vest inthe Government;"2. Various parties including the appellant challengedthe validity of the Act and the Kerala High Court struck down theAct as unconstitutional in the decision reported in Gwalior RayonsSilk Mfg. (Wvg.) Co. Ltd. and others v. State of Kerala (1972 KLT M.F.A. (Forest) No. 108/2006 4628), but, in appeal, the above view was reversed by the SupremeCourt in State of Kerala v. Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd.(1973 KLT 896). After the decision of the Hon'ble Supreme Court,Forest authorities started taking action for getting possession of theland. The original applications were filed by the appellants asapplication Nos.242 and 243 of 1974 before the Forest Tribunalunder section 8 of the Act. According to them, 1534.40 acres ofland called 'Popular Estate' are cultivated with various agriculturalcrops like cardamom, rubber etc. are not liable to be vested undersection 3 (1) of the Act. Exts.A11 and A14 are the counterstatements filed by the State in O.A.Nos.242 and 243 of 1974 filedby the appellants before the Forest Tribunal, Kozhikode. Theappellants had contended in O.A.No.242 of 1974 that out of213.806 hectares involved in O.A. No.242 of 1974, an extent of209.88.6 hectares was registered area, registration as plantation inrespect of the balance 80.36 hectares was pending and 3.92hectares was uncultivated area consisting of roads and buildings. InO.A. No.243 of 1973, it was contended that out of the total extent of406.84.44 hectares involved in the application, an extent of 398.544hectares were planted area, that there was no natural growth in thearea, that 148.5 hectares was registered plantation and application M.F.A. (Forest) No. 108/2006 5for registration was pending for the remaining area. In Exts.A11andA14 counter statements, the State admitted that in O.A. No.242of 1974, 181.45 acres were cardamom plantations and 16.96 acreswere rubber plantations. The rest of the area was contended to bevested. In O.A. No.243 of 1974, the State admitted that a portion ofthe property was planted prior to 10.5.1971 and that survey isrequired to fix the correct extent under plantations. According tothe appellants, the entire area is not private forest as defined underthe Act on the day when the Act came into force and even if it is aprivate forest, it is liable to be exempted under sections 3 (2) and 3(3) of the Act. The un-planted area is also necessary for theancillary use of the estate. There are buildings and roads also. ACommissioner was appointed by the Forest Tribunal to inspect theentire area. Ext.A6 preliminary report of the Commissioner dated15.1.1976 submitted by the Advocate Commissioner shows somedetails of the areas cultivated and areas uncultivated. TheCommissioner indicated the necessity to survey the area and fix thecorrect extent under plantations. The Commissioner found thatmost of the areas are cultivated with cardamom, rubber etc., thata small area is forest and that it is not possible to visit the entirearea. Hence, the Commissioner recommended that detailed survey M.F.A. (Forest) No. 108/2006 6of the land was necessary as most of the land was situated in hillsand private surveyors were not able to complete the work. A surveywas carried out in the month of February, 1976 by the forest andother government officials and the work continued for about onemonth. After one and a half years of the filing of the report of theAdvocate Commissioner, the State Government on 8.7.1977 issueda notification No.4713/77 notifying an extent of 100 hectares (247acres) as private forest. This was on the basis of the surveyundertaken by the Forest Department independently. Theinspection which had been stopped since the Forest survey was alsobeing done simultaneously was recommended on 1.9.1977. On1.9.1977, the Range Officer submitted Ext.A4 memo before theAdvocate Commissioner which states that 100 hectares alone isvested in the Government. Since the claim of the Government asprivate forest was only 100 hectares of land which are admittedlyprivate forest, there was no necessity to pursue the application andthe claim petitions were dismissed. No detailed arguments wereaddressed regarding balance land because as per the forest surveyonly 100 hectares of land were private forest, but, while disposing ofthe application, without any material, a passing observation wasmade by the Forest Tribunal that various officials may not have M.F.A. (Forest) No. 108/2006 7conducted proper survey due to influence of 'magic money'. But, inview of the observations, Vigilance conducted an investigation andfound that there is no basis for such allegation.3. Even after the decision of the Forest Tribunal, whenthe forest officials interfered in the possession and cultivation of theappellant, they filed two civil suites as O.S.Nos.69 and 71 of 1987before the Munsiff's Court seeking permanent injunction against theState from taking possession. During the pendency of the suits,Custodian issued a notification (Ext.A27) in respect of 324 hectaresof land belonging to the appellant demarcating as vested privateforest by the Custodian of Vested Forests. Then, the civil suits wereallowed to be withdrawn (Exts.A22 and A25 judgments) and theappellant filed writ petition O.P.No.7498 of 1987. That wasdismissed in view of the available alternate remedy of filingapplication before the Forest Tribunal. Hence, O.A.Nos.28 and 29 of1988 were filed before the Forest Tribunal under section 8 of theAct. Appellant also filed an appeal against the judgment dismissingthe O.P. No.7498 of 1987. Writ appeal No.165 of 1989 wasadmitted on condition that appellants withdraw their O.A. pendingbefore the Forest Tribunal. Thus O.A.Nos.28 and 29 of 1988 werewithdrawn, but, finally the writ appeal was dismissed holding that M.F.A. (Forest) No. 108/2006 8appellant has got alternate effective remedy by filing application tothe Forest Tribunal under section 8 of the Vesting Act. Accordingly,O.A.Nos.166 and 167 of 1990 were filed before the Forest Tribunal.Against Ext.A1 judgment in writ appeal, Civil Appeal No.200 of 1991was filed before the Hon'ble Apex Court and the above was disposedof directing the Tribunal to consider the question of validity of thenotification as notification is issued only as a consequence ofdemarcating the land as vested private forest on the appointed dayand also directed the Tribunal to dispose of the application byExt.A2 judgment (Popular Plantations and another v. State of Keralaand others (1991 Supp (2) SCC 720). Meanwhile, appellants alsofiled O.P. No.4751 of 1993 challenging the validity of the notificationdated 22.7.1987. The Forest Tribunal dismissed t O.A.Nos.166 and167 of 1990 holding that earlier decision relates to only 100 acres ofland and, therefore, Custodian can issue a fresh notification inrespect of other land. Against the above M.F.A.No.72 of 1993 wasfiled before this Court. That appeal and writ petition filed wereallowed by a common judgment by which it was held that Ext.A27notification is valid only in respect of 100 hectares of vest forestand notification in respect of other land was invalid. Therefore, theCustodian of Vested Forest was directed to demarcate the land and M.F.A. (Forest) No. 108/2006 9boundaries of the extent of 155.90 acres of land under section 6 ofthe Act and restore possession of the extent of the properties to theappellant. While deciding the case, apart from the earlier decisionof the Forest Tribunal and 1977 notification demarcating 100hectares of land, the Division Bench also relied on the order of theTaluk Land Board (Ext.A51) in the land ceiling case. The DivisionBench in the above judgment ordered as follows:"30. Accordingly we uphold thenotification Ext.A27 (Ext.P1 in the O.P.) so far asit relates to the 155.90 acres of land which wasshown as forest in Ext.A51 order of the TalukLand Board and declare that the notification inrespect of the remaining area is illegal andinvalid. The notification is quashed to the aboveextent."The decision of the High Court was challenged before the Hon'bleSupreme Court. The Hon'ble Supreme Court in Civil Appeal No.7111of 1999 set aside the judgment of this Court and remanded thematter to the Tribunal (State of Kerala and another v. PopularEstates and another - (2004) 12 SCC 434) with the followingobservations: "..... The scheme of the Act is that uponthe Act coming into force, all private forestswould vest in the State Government. Thedemarcation of the forests under section 6 ofthe Act is merely a consequential act and thevesting is not postponed depending on the said M.F.A. (Forest) No. 108/2006 10act. If anyone claims that his land had notvested in the State Government, section 8 of theAct gives remedy of moving the Forest Tribunalwith full details. The Forest Tribunal would thenadjudicate the dispute and decide as to howmuch of the land claimed by the applicant wasnot vested forest. It is only upon suchdetermination that the State would be divestedof the vested forest. In the instant case, theburden of establishing that certain disputed landwas not vested forest rested squarely upon therespondents before the Forest Tribunal. Therespondents would succeed or fail on the meritsof their own case of showing that the land fellwithin the exempted category...... The only thing now permitted to bedone in the said applications is to try theapplications on merits and decide the claims ofthe respondents in accordance with the law inthe light of the evidence already led before theForest Tribunal."Land ceiling proceedings under section 85 (9A) of the Kerala LandReforms Act is not a res judicata and is not binding on the ForestTribunal as such. It is only a piece of evidence. If the land is aprivate forest on the appointed day, that is, on 10.5.1971, it willautomatically vest in the Government even if no notification isissued demarcating the land as private forest under section 6 of theAct and if it is not a private forest as on 10.5.1971, the land will notvest in the Government and parties can challenge the notification.Therefore, the whole question to be decided was whether the land M.F.A. (Forest) No. 108/2006 11covered by Ext.A27 notification was a private forest on theappointed day (10.5.1971) or not. If the land is a private forest andis vested in the Government under section 3 (1), then the onlyquestion to be decided is whether the land is exempted undersection 3 (2) or 3 (3). The notification issued under rule 2A (2) ofthe Kerala Private Forests (Vesting and Assignment) Rules, 1974 bythe custodian is only a consequential act of demarcation afteridentifying and measuring the private forest as provided undersection 6 of the Vesting Act.4. On remand, the Tribunal found that the land wascovered by the M.P.P.F. Act. Ext.A37 title deed refers to thepermission of the District Collector obtained by the seller to sell theproperty covered by the said document. Therefore, at paragraph 8,it was found that the property was covered under the M.P.P.F. Act,but, even if the land is covered by the M.P.P.F. Act, it will beexcluded from the purview of 'private forest', if it falls under any ofthe exclusions (A) to (D) to section 2 (f) (1) (i) of the Vesting Act,and the land will not come under the definition of 'private forest'.Hence, it will not vest with the Government.In this connection, werefer to the definition of 'private forest' as defined under section (2)(f) of the Vesting Act as follows: M.F.A. (Forest) No. 108/2006 12"(f) 'private forest' means --(1) in relation to the Malabar districtreferred to in sub-section (2) of section 5 ofthe State Re-organisation Act, 1956(Central Act 37 of 1956) --(i) any land to which the MadrasPreservation of Private Forests Act,1949 (Madras Act XXVII of 1949),applied immediately before theappointed day excluding --(A) lands which are gardens ornilams as defined in the Kerala LandReforms Act, 1963 (1 of 1964);(B) lands which are usedprincipally for the cultivation of tea,coffee, cocoa, rubber, cardamom orcinnamon and lands used for anypurpose ancillary to the cultivation ofsuch crops or for the preparation of thesame for the market. Explanation:- Lands used for the construction ofoffice buildings, godowns, factories, quarters forworkmen, hospitals, schools and playgroundsshall be deemed to be lands used for purposesancillary to the cultivation of such crops;(C) lands which are principallycultivated with cashew or other fruitbearing trees or are principallycultivated with any other agriculturalcrop and (D) sites of buildings and landsappurtenant to and necessary for theconvenient enjoyment or use of, suchbuildings; M.F.A. (Forest) No. 108/2006 13(ii) any forest not owned by theGovernment, to which the MadrasPreservation of Private Forests Act,1949 did not apply, including wastelands which are enclaves withinwooded areas. (2) in relation to the remainingareas in the State of Kerala, any forest notowned by the Government, including wastelands which are enclaves within woodedareas.Explanation:- For the purposes of thisclause, a land shall be deemed to be awaste land notwithstanding the existencethereon of scattered trees or shrubs;"It is the definite contention of the appellant that as on the appointedday the land was cultivated with cardamom, coffee, rubber andother agricultural crops, buildings and lands appurtenant thereto,but, the Tribunal did not accept the same because PW5 who wasexamined to prove the cultivation was only in possession ofdocuments and partners of the firm were not examined. Thedocumentary evidence was not sufficient to prove that it was a landprincipally cultivated with rubber, cardamom, coffee or otheragricultural crops. It was also found that the order of the TalukLand Board has no evidenciary value. On these findings, theTribunal rejected the application. This appeal is filed against theabove order. M.F.A. (Forest) No. 108/2006 145. First we will come to the order passed by the TalukLand Board under the land ceiling proceedings. Under Chapter IIIof the Kerala Land Reforms Act, 1963, restriction on ownership ofthe land in excess of the ceiling area was made, but, for calculatingthe ceiling area, private forest and plantations were excluded. Rule6 of the Land Reforms Ceiling Rules requires that any personclaiming exemption from the provisions of Chapter III of the Actshould furnish details of the land to the Land Board. Under rule 9Athe statements submitted are verified by the Taluk Land Boardthrough the Tahsildar or such other officer (authorised officer) fortheir correctness. The verification report is to be sent to the TalukLand Board. The Board has power to call for information from anyofficer of Government for the purpose under rule 9. The authorisedofficer (statutory officer) has to visit the places, conduct localinspection and Taluk Land Board has to make a draft statement asper rule 10 after considering the reports from the officer. The TalukLand Board has to publish the draft statement under the rules andthe declarants can file objections to the draft statement under rule13. Ext.A50 dated 24.1.1979 is the draft statement of the lands tobe surrendered issued by the Taluk Land Board, Hosdurg in theceiling proceedings relating to the predecessor-in-interest of the M.F.A. (Forest) No. 108/2006 15appellants. This was followed by Ext.A51 order of the Taluk LandBoard dated 4.11.1980. The order shows that 247 acres (100hectares) out of the total extent of 1534.40 acres are vestedforests, 533 acres are under Cardamom cultivation, 120 acres areunder rubber plantation, 457 acres are under coffee plantation and155.90 acres are disputed lands. But, nature of land means 17.5acres are covered by roads and buildings. The dispute was onlyregarding the 155.90 acres of land. The proceedings of the TalukLand Board are governed by statutory provisions which provides foractual physical verification of the property. After physicalverification, it was found that 1127.50 acres of land was convertedto plantation before 1.1.1970. In this connection, we refer toExt.A51 order of the Taluk Land Board. With regard to objection 7,it is stated as follows:"Objection 7: The firm owns an extent of1530.40 acres of land in Maloth village. The landwas part of private forests coming within thepurview of the M.P.P.F. Act. Out of 1530.40acres, an extent of 1127.50 acres has beenconverted into plantations coming under theexempted category. The balance extent of402.90 acres is not containing any plantationscoming under exempted category and as suchthe authorised officer has classified the land asother dry Out of this 402.90 acres, an extent of247.00 acres has been taken away as vestedforest by the Forest Department. The remaining M.F.A. (Forest) No. 108/2006 16area of 155.90 is not containing plantations. Theadvocate for the statement giver has producedthe certified copy of the documents by whichthey acquired the properties in Maloth villageand also the certified copy of the orders of theForest Tribunal and copy of the order of the HighCourt to prove that the land measuring 1530.40acres are private forests as on 1.4.1964 and alsothat they were subject matter of cases beforethe Forest Tribunal which has found that 100hectares is vested forest. He, therefore, arguedthat the entire land falls under the exemptedcategory as they were either private forest orplantations converted from private forest as on1.1.1970 and that these lands are beyond thescope of the KLR Act. Since the enquiry report ofthe A.O. shows that the lands were private forestas on the date of purchase and since there areno evidence that the entire extent wasclearfelled before 1.4.1964, the Taluk LandBoard is constrained to accept the aboveargument and exempt the entire areas as landsnot coming within the purview of the KLR Act."This shows that out of the 1534.40 acres, an extent of 1127.50acres was converted into plantation even before 1964, much beforethe Vesting Act came into force. Out of the 402.90 acres, 247 acres(100 hectares) was the vested forest. Dispute was only regardingthe remaining area of 155.90 acres. According to the declarant, theportion of the land was also converted as plantation even thoughauthorised officer reported that there is no evidence that it isplanted and clear felling was done before 1964. The Land Boardexcluded this portion of 155.90 acres as both private forest and M.F.A. (Forest) No. 108/2006 17plantations are exempted for the purpose of land ceiling. The pointstressed by the appellant is that the order of the Taluk Land Boardpassed after verification by the authorised officer clearly states that1127.50 acres of land was converted into plantation even in 1964and the dispute was only regarding the 155.90 acres. Admittedly,247 acres of land was private forest. At that time, State has nodispute to the proposition that 1127.50 acres in the scheduledproperty was plantation etc.6. Then, the question is how far the proceedings of theTaluk Land Board are binding on the Forest Tribunal. Certainly, it isnot a res judicata and binding as such as held by the Hon'ble ApexCourt in the remand order which relied on the decision of the ApexCourt in Kunjanam Antony by LRs. v. State of Kerala and another((2003) 3 SCC 221). The findings in the land ceiling proceedings arenot res judicata, but, it is a valid piece of evidence. The Hon'bleSupreme Court in Kunjanam Antony's case (supra) held as followsat paragraph 9:"9. There can be no doubt that the orderof the Thaluka Land Board, a statutory authority,is binding on the authorities under the LandReforms Act. So far as the proceedings underthe Forest Act are concerned, the order of theThaluka Land Board would be a piece ofevidence but it cannot be treated as binding on M.F.A. (Forest) No. 108/2006 18the authorities under the Forest Act. Unless acontrary state of affairs is shown to exist theorder of the Thaluka Land Board would have tobe given due weight."State is a party to the proceedings before the Taluk Land Board.The excess land will automatically vest with the State like privateforests vest in the State under section 3 (1) of the Vesting Act. Suchland also is intended for distribution to landless agriculturallabourers. There is no allegation that the order of the Taluk LandBoard was obtained under fraud. It was passed after considering allstatutory formalities and the Taluk Land Board has entered thefindings as per the statutory provisions. There is no case for theState that the procedure to be followed by the Taluk Land Boardwas not followed or it was obtained by fraud or by other dubiousmeans. The findings of the Taluk Land Board relates to the natureof the land as on the appointed day for the Land Reforms Act, thatis, 1.1.1970. The appointed day for the Vesting Act is 10.5.1971.There is also nothing in evidence to show that nature of the landhave changed between 1.1.1970 and 10.5.1971. Therefore, thoughthe order of the Taluk Land Board is not res judicata, it is one of theimportant evidence to be considered by the Tribunal. M.F.A. (Forest) No. 108/2006 197. Now, we will consider whether there is any otherevidence to show whether the land in question was not a privateforest as on the appointed day or was it a cultivating land or theland was intended for cultivation on the appointed day. We haveseen that there was title to the land as can be seen from Ext.A37title deed No.634/63 dated 23.5.1963, Ext.A38 title deedNo.2689/63 dated 14.8.1963, Ext.A39 title deed No.1523/64 dated4.5.1964, Ext.A40 title deed No.2745/66 dated 30.6.1966 andExts.A59 to 64 balance sheet and profit and loss account show thatthe appellant was getting agricultural income from the land inquestion before the appointed day and regular audited balancesheet and profit and loss account were prepared for the entireperiod. Notification issued on 8.7.1977 shows that the State foundthat only 100 hectares (247 acres) were private forest. Ext.A27notification dated 22.7.1987 was passed after demarcating the landunder section 6 of the Act taking that 100 hectares included in1530.40 acres of land purchased by the registered firm is alsoprivate forest and after nine years when the legal proceedings weregoing on. Ext.A65 is the account ledger for the period 1970-71which shows that cultivation was going on in the area in the accountyear 1970-71. Ext.A66 is the copy of letter of the Labour M.F.A. (Forest) No. 108/2006 20Commissioner. Exts.A69 and A70 copies of letters addressed to theProvident Fund authorities also show that there was a labour disputebetween the employees. Exts.A67 and 68 addressed to theAgricultural Income-tax Officer and Exts.A71 and A72 lettersaddressed to the Sales-tax Officer also show that there was a labourdispute in the estate starting from 1983 and production was slowdown and thereafter only Ext.A27 notification was issued in 1987.But, the documents clearly show that the entire area other than 100hectares of land earlier notified were not private forest on theappointed day, but, private forest in view of the exemptioncontained in the definition of private forest quoted earlier. Ext.A3location sketch given by the Commissioner (PW3), Ext.A4 copy ofmemorandum submitted before the Advocate Commissioner by theforest officials, Exts.A6 and A7 reports of the Commissioner etc.show that only 100 hectares in the above land were private foreston the appointed day. Ext.A7 final report of the Commissioner andExts. A8 and A9 location sketch also show the details of the surveyby the Forest Department. The area was demarcated by cairns andofficial survey party ascertained the extent by actual Theodolitesurvey. Location plan given by them has been produced by theCommissioner along with his report as Document No.2. The plan M.F.A. (Forest) No. 108/2006 21shows only the disputed area which are shown as bits 1 to 7. Theplan was marked as Ext.C3. It can be seen that there was nodispute regarding the planted areas. The cultivated areas are leftout by the survey party under instruction from the authorities whoare to demarcate the areas. Plan No.2 referred to in the reportshows the entire area as well as the seven bits regarding whichthere were disputes. Evidence of PW1, the then Range Officer, PW3Commissioner and PWs 4 and 5 also point out that the presentdisputed area covered by Ext.A27 notification was plantations onthe date when the Act came into force. The question to beconsidered is whether the land covered by Ext.A27 notification wasa private forest or not and even if it is a private forest, whether it isexempted under section 3 (1) or 3 (3), whether possession of theland was exempted as on the appointed day if it is a private forest,subsequent dissolution of the ownership due to the death of apartner and formation of another partnership with the legalrepresentatives etc. or even assignment of the land will be of noconsequence as held by the Full Bench in Parameswara Sastrigal,K.S. v. State of Kerala and others (2008 (2) ILR 371). If the land isvested in the Government as a private forest on the appointed day,the then owner of the land cannot thereafter alienate or transfer or M.F.A. (Forest) No. 108/2006 22assign the land, but, if it is not a private forest vested in theGovernment on the appointed day, there is no impediment for thetitle holder to transfer the land or assign the land and the assigneewill step into shoes of the assignor. As held by the Apex Court inBhavani Tea and Produce Co. Ltd. v. State of Kerala (1991 (1) KLT666);"34. The reverse question is involved inthis case, namely, if the land was not privateforest but plantation under the M.P.P.F. Act andwas similarly not private forest but plantation on10.5.1971, it could not, without anything more,become private forest thereafter even though itwas not under the same efficient or successfulplantation as it was earlier."In the preliminary report itself, commissioner has noticed that majorpart of the land was planted. After survey by the forest officialsExt.A7 final report was submitted. Ext.A7, the final report of theAdvocate Commissioner will clearly show that the ForestDepartment had conducted an independent survey of the area andthat the official survey party had handed over the location plan tothe Commissioner which shows only the disputed area as bits 1 to 7.The plan was marked as Ext. C3 before the Forest Tribunal. Therewas no dispute regarding the planted areas at that stage. It canalso be seen that the area was actually demarcated by cairns and M.F.A. (Forest) No. 108/2006 23that the official survey party has ascertained the extent by actualTheodolite survey. The State had not adduced any evidence tocontradict the above clear findings of the survey party and theAdvocate Commissioner. The deposition of PW5 clearly prove thecorrectness of the claim of the appellant. 8. It is also contended by the appellants, withoutprejudice to the contention that the entire land covered underExt.A27 notification are not private forest and plantations evenbefore the appointed day, that even the disputed 155.90 acres ofland was under actual cultivation and they are exempted undersection 3 (2) of the Act and further they were having valid title tothe property when the Act came into force and the intention tocultivate cannot be denied. Under section 3 (3) of the Act, if theclaimants had title to the land even an intention to cultivate theland is enough for getting exemption. Intention has to be gatheredfrom the circumstances of each case as held by the Hon'bleSupreme Court in Joseph v. State of Kerala (2007 (3) 144). TheApex Court held as follows:"16. .. .. .. .. .. For the purpose ofattracting sub-s. (3) of S. 3 of the 1971 Act, itwas not necessary that the entire area shouldhave been cultivated for arriving at a decision asto whether the owner of the land had the M.F.A. (Forest) No. 108/2006 24intention to cultivate or not. Also, it wasrequired to be considered having regard to theactivities carried on by the owner from the dayof purchase till the appointed day. For the saidpurpose, subsequent conduct of the owner ofthe land was also relevant. Development of theland by plantation of rubber plants is not indispute. The Explanation appended to S.3 (2)of the 1971 Act clearly suggests that cultivationwould include cultivation of trees or plants ofany species. Intention to cultivate by the ownerof the land, we think, has to be gathered notonly in regard to the fact situation obtaining at aparticular time but also with regard to thesubsequent conduct of the parties. If theactivity in regard to cultivation of land ordevelopment thereof is systematic and notsporadic, the same also may give an idea as towhether the owner intended to cultivate theland. The words 'intend to cultivate' clearlysignify that on the date of vesting the land inquestion had not actually been cultivated in itsentirety but the purchaser had the intention ofdoing so. Such intention on the part of thepurchaser can be gathered from his conduct inregard to the development of land for making itfit for cultivation preceding to and subsequent tothe date of vesting.17. The High Court, in our opinion,was not correct in opining that for applying S.3(3) of the 1971 Act, the cultivation of theproperty subsequent to the vesting cannot betaken into account. The High Court also was notcorrect in arriving at finding that there had beenno evidence whatsoever that the ownersintended to cultivate the land prior to 10.5.1971.As the provision contained in sub-s. (3) of S.3 ofthe 1971 Act clearly provides for exclusion ofthe operation of sub-s. (1) thereof, the same has M.F.A. (Forest) No. 108/2006 25to be construed liberally. So construed, theconduct of the parties was a relevant fact."It is true that the burden to prove that the disputed land is not aprivate forest or it is exempted under section 3 (2) or 3 (3) of theVesting Act on the appointed day is on the claimant and here byoral examination and documentary evidence they have proved andhave discharged the burden that the area covered under Ext.A27notification except 155.90 acres of land was not private forest as onthe appointed day, but, it was plantation coming within theexclusions mentioned under section 2 (f) (1) (A) to (D). There isevidence to show that 1127.50 acres of land in question areplantations and 100 hectares (247 acres) are private forest. Hence,Ext.A27 notification is set aside. But, out of 1127.50 acres of land,with regard to 155.90 acres of land, there is no claim even to showthat it was converted into plantation as on the appointed day. Eventhough at the time of Taluk Land Board proceedings, there was noclear finding that the above land was planted, the Taluk Land Boardobserved that whether that disputed land was private forest orplantation, it is exempted and there was no detailed finding. But,with regard to the above 155.90 (rounded to 156) acres of land,appellant did not discharge the burden conclusively to prove that it M.F.A. (Forest) No. 108/2006 26was a plantation on the appointed day. With regard to the above155.90 acres of land, appellants also cannot contend, in any event,that they had intention to cultivate the land and they are entitled toexemption under section 3 (3) of the Act as earlier Division Benchheld that their claim for 155.90 (rounded to 156) acres of landcannot be accepted. The above decision was not challenged bythem. Only State has challenged the above decision before theSupreme Court which resulted in remand of the matter to theTribunal. From the land ceiling proceedings, report of theCommissioner, plan etc. the above 156 acres are identifiable. So,apart from the 100 hectares (247 acres) of land already demarcatedby notification in 1977, only 156 acres of land also can bedemarcated and notified as provided under section 6 of the VestingAct and rule 2A (2) of the Kerala Private Forests (Vesting andAssignment) Rules, 1974. Since Ext.A27 notification is set aside,Custodian of Forests is directed to demarcate 156 acres of land andfix the boundaries and he can re-notify the same. Balance land M.F.A. (Forest) No. 108/2006 27should be restored to the appellants within three months from thedate of receipt of a copy of this judgment. Appeal is allowed to the above extent. J.B.Koshy Judge K.P. Balachandran Judge vaa M.F.A. (Forest) No. 108/2006 28 J.B. KOSHY ANDK.P.BALACHANDRAN,JJ. -------------------------------------M.F.A.(Forest) No.108/2006 ------------------------------------- Judgment Date: 5th December,2008