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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4304 OF 2009 (@SPECIAL LEAVE PETITION (CIVIL)NO.250 OF 2007)

STATE OF KERALA & ORS. Appellant(s)

                       VERSUS

MANAGING TRUSTEE, ARYA VAIDYASALA Respondent(s)

O R D E R

Leave granted.

2. The  State  of  Kerala  has  challenged  the  order  

passed by the Division Bench of the Kerala High Court in  

this appeal.  The first respondent owned about 130 acres of  

land, which originally formed part of  Anakkaranam Malavaram  

to which the Madras Preservation of Private Forests Act(for  

short the 'M.P.P.F.Act) was applicable. In the year 1960,  

the first respondent got permission to fell the trees and  

use this land for cultivating medicinal plants and herbs.  

Part of the land was also used for cultivating a particular  

variety of paddy mainly to be used for medicinal purposes.  

Kerala Private Forests (Vesting and Assignment) Act, 1971  

(for short 'the 1971 Act'), which came into force in 1971,  

provides that all private forests are vested with the State  

Government.  The respondent,  filed an application before  

the Forest Tribunal contending that the land owned by the  

respondent is not covered by the 1971 Act. The Tribunal held  

that it was not a 'private forest' as the land was used for

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purpose of cultivation of medicinal plants and herbs. The  

order passed by the Forest Tribunal was challenged before  

the High Court and the High Court has also held that the  

land owned by the respondent was not  'private forest'.  

That finding has become final.

3. In the meanwhile, the Kerala State Legislature has  

passed the Kerala Preservation of Trees Act, 1986 (for short  

'the 1986 Act').  Section 5 of the 1986 Act prohibited the  

cutting of trees from forest areas.  The first respondent  

filed a Writ Petition when the appellant State authorities  

raised objection to the cutting of trees from this land.  

Before the High Court the first respondent urged that this  

was  not  a  'private  forest',  hence  the  1986  Act  has  no  

application.  The appellant State contended that this was  

an area where the M.P.P.F.Act was applicable and going by  

the definition given in the 1986 Act, the respondent is not  

entitled to cut trees without the permission of the State  

authorities.  The plea raised by the State Government was  

rejected by the High Court and the Writ Petition was allowed  

by holding that the sub-section (1) of Section 5 of 1986 Act  

would not apply to the land owned by the respondent herein.  

This is challenged before this Court.  

4. Heard learned senior counsel for the State of Kerala as  

well as learned senior counsel for the respondent.

5. Our attention was drawn to the definition of 'private  

forest' as given in the Explanation II to Section 5 of the

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1986 Act.  In the Explanation it is stated that “For the  

purpose of sub-section (1) the expression “private forest”  

means any land which immediately before the 10th day of May,  

1971  was  a  private  forest  as  defined  in  Kerala  Private  

Forest (Vesting and Assignment) Act, 1971.” Learned counsel  

appearing for the State contended that this is an area to  

which the M.P.P.F.Act was applicable and even though the  

permission was granted to fell the trees in 1960, the Act  

continue to apply to this property and therefore, it form  

part of the “private forest” as defined under the 1971 Act.  

6. We are not inclined to accept this contention for the  

reason that when it was declared by the Forest Tribunal as  

well as by the High Court that it is not a “private forest”  

and  it is difficult to hold that it continued to be a  

“private  forest”  as  it  was  allegedly  covered  by  

M.P.P.F.Act.  If it continued to be a “private forest” it  

should  have  been  vested  with  the  Government  as  per  the  

provisions of the 1971 Act.  Moreover, the “private forest”  

as defined in Section 2(f) of the 1971 Act which provides  

that “”Private Forest” means (1) in relation to Malabar  

District referred to in sub-section (2) of Section 5 of the  

State Re-organisation Act, 1956 : (i) any land to which the  

Madras Preservation of Forests Act, 1949 (Madras Act XXVII  

of  1949)  applied  immediately  before  the  appointed  day  

excluding ...

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(C) Lands which are principally cultivated with cashew or  

other fruit bearing trees or are principally cultivated with  

any other agricultural crop.”

Therefore,  it  is  not  correct  to  contend  that  

going by the definition as given in the 1971 Act  this is  a  

“private forest”.  As the Tribunal's order has become final,  

it is not possible for us to hold that it is a “private  

forest” to which the 1986 Act applied.  We find no error in  

the impugned judgment of the High Court.  Therefore, the  

appeal is dismissed.  No costs.

...............CJI. (K.G. BALAKRISHNAN)

.................J.     (P. SATHASIVAM)

.................J.     (J.M. PANCHAL)

NEW DELHI; 13TH JULY, 2009.