CHUNDAKKATTIL BALAKRISHNA KURUP v. State of Kerala and Custodian of Ecologically Fragile Lands

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944 MFA (FOREST) NO. 2 OF 2014** ## **AGAINST THE ORDER/JUDGMENT IN OA 3/2011 OF ADDITIONAL DISTRICT COURT, KOZHIKODE / I ADDITIONAL MACT, KOZHIKODE** ## **PETITIONER:** CHUNDAKKATTIL BALAKRISHNA KURUP AGED 68 YEARS S/O.KUNHIKRISHNAN NAMBIAR, OORALAN AND HEREDITARY TRUSTEE, POONGOTTU KAVU DEVASWOM,KRISHNA NIVAS, THALASSERY TALUK, KANNUR DIST BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.P.SAJU SRI.E.M.UNNIKRISHNAN MANJERI ## **RESPONDENTS:** 1 STATE OF KERALA REP BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, TIRUVANANTHAPURAM, PIN-695001 2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS CHIEF CONSERVATOR OF FORESTDEVELOPMENTS FOREST HEAD QUARTERS, VAZHTUHAKKAD, THIRUVANANTHAPURAM-695014 BY SRI.NAGARAJ NARAYANAN, SPECIAL G.P (FOREST) THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 16.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MFA(Forest) No.2/2014** **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------MFA(Forest) No.2 of 2014** **------------------------------------------Dated this 16[th] January, 2023** ## **JUDGMENT** ## **Vinod Chandran, J** The appellant who was the applicant before the Forest Tribunal is the senior most member of one of the five _Tharawads_ who jointly administer the _Poongottukavu Ayyappa Temple_ . The applicant claiming to be one of the hereditary trustees of the _Dewaswom_ sought exemption for temple lands ad-measuring 7.5 acres in Sy.No.61 of Kolari Village of Thalassery Taluk . The Temple is said to be a forest temple in which no daily rituals are carried out. It is claimed that devotees throng to the temple during the _Mandala_ Season and poojas are conducted only on specific days. The surrounding lands of the temple are admitted to be forest; 7.5 acres of which forest, surrounding the temple, was conceded to the ownership of the _Dewaswom_ as per the declaration granted under the Kerala Private Forest (Vesting & Assignment) Act, 1971 (for brevity 'the Vesting Act). The contention was that the temple being a forest **MFA(Forest) No.2/2014** **3** shrine, surrounding forest is an integral part of the shrine and it is illegal and objectionable to presume the same to have statutorily vested under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands ) Act, (for brevity, 'the EFL Act'). The applicant asserts that the temple is the _poonkavanam_ (play ground) of the deity and that it has to be retained as pristine virgin land to maintain the sanctity and serenity of the shrine. It is also contended that there are many monkeys in the forest area who are fed as an essential ritual of the temple. 2. The DFO Kannur however claimed that 3.03 hectares of land which is scheduled in the application is an ecologically fragile land, which stands vested with the Government as on 02.06.2000 under S.3(1) of Ordinance No.6/2000 which later stood enacted as the EFL Act. It was admitted that when there was obstruction to the enjoyment of lands, the hereditary trustees had moved this Court with Writ Petitions wherein certain directions were issued and 10 cents around the temple was excluded for the purpose of the temple. 3. The Tribunal found that there was no valid claim for exclusion from the definition of forest under the EFL Act and even according to the applicant the scheduled land lies as forest lands. The **MFA(Forest) No.2/2014** **4** nature of the land is further fortified by the expert evidence offered by PW2. It was held that even the applicant wants the land to be preserved as a forest land which purpose would be best served by the vesting under the EFL Act. 4. We heard the learned Counsel appearing for the applicant and the learned Special Government Pleader Forest for the State. 5. As was rightly observed by the Tribunal it is admitted that the scheduled land is a forest land and even the applicant wants it to be preserved as such. There is no ground of exclusion raised under the EFL Act; ie: from the definition of forest which can only be of lands principally cultivated with long duration plantation crops as specified in S.2(c) of the EFL Act. Earlier the entire 32 acres claimed by the _Dewaswom_ was alleged to have vested under the Vesting Act, upon which the trustees moved the Forest Tribunal under that Act. The specific contention before the Tribunal was that the entire 32 acres belongs to the _Dewaswom_ and the expenses for the pooja and other festivals are met from the income of the property. Even at that point, the Tribunal noticed that the property is comprised in a thickly wooded area and would be a private forest as defined under the Vesting Act. The Forest Tribunal by an order dated **MFA(Forest) No.2/2014** **5** 07.02.1976 found that the temple can be considered to be a person within the meaning of the Kerala Land Reforms Act, thus entitled to hold 7.5 acres under that Act. While conceding 7.5 acres of forest land to the temple, the balance 24.5 acres were held to be vested in the Government. The appeal filed before this Court by the State stood dismissed. 6. Later in the year 2010 two writ petitions were filed alleging invasion of possession by the officers of the Forest Department alleging the land to have vested under the EFL Act. This Court issued an order in one of the writ petitions to maintain the _Thidappally_ and also permitted a _punaprathishta_ in the temple. Even in the said order it was specifically noticed that all parties admitted that it is a forest area. The Custodian was also directed to consider the claim of the temple. Pursuant to such consideration made, the Custodian exempted 10 cents of land around the temple but failed to earmark it. A subordinate officer of the Department however took objection to the improvements carried out in the temple which was challenged in another writ petition . Both these writ petitions were heard together and by judgment dated 10.12.2010 the _punaprathishta_ carried out was upheld, which was found to be by virtue of the interim order passed in the writ petition. The rectification **MFA(Forest) No.2/2014** **6** carried out in the _Thidappally,_ providing a roofing was also found to be appropriate for the purpose of utilising the _Thidappally_ . However, the barbed fence put up by the temple authorities around the temple was found to be illegal and the same was directed to be removed. The parties were left to agitate their respective contention before the Forest Tribunal under the EFL Act, pursuant to which the present application was moved before the Forest Tribunal. 7. The Tribunal, as we observed noticed that it is the case of both parties that the application scheduled property is a virgin evergreen forest. Natural forest species trees were found in the property and the notified land had 100% natural vegetation. There was absolutely no claim that there was any cultivation carried on in the property much less cultivation of long duration crops as specified in S.2(c). Ext.C1 Commission report found the temple to be situated in a property of about 10 cents wherein a _Sreekovil, Thidappilly_ and _Bhandaram_ are situated. The respondents also admitted that 10 cents of the property along with the pathway leading thereto was exempted from Ext.B1 notification. The Commissioner sought the opinion of the expert to understand the nature of the remaining lands which was existing as a forest. The commission **MFA(Forest) No.2/2014** **7** report also clearly indicated that there was no boundary separating the vested forest from the 7.5 acres exempted under the Vesting Act and the vegetation existing was found to be one and the same. 8. The expert PW2 is an Assistant Professor of Botany, Payyannur College, Kannur who too opined that there is no differentiation on the field, between the exempted and vested forest. The vegetation was evergreen harbouring rare species of flora and fauna. The forest area was an extensive track of south Indian tropical wet evergreen type forest as is seen in the western ghats. The disputed lands contained many specie of endemic and threatened plants and animals. The expert found 88 flowering plants including 26 specie of trees and forty medicinal plants. There was absolutely no plantation crops found in any part of the disputed land. The Tribunal, according to us rightly, found that except the area where the forest shrine is situated the remaining areas are flush with naturally grown trees and undergrowth. 9. The Tribunal also considered the claim of the applicant based on the earlier order under the Vesting Act. The applicant claimed that when the Forest Tribunal Kozhikode conceded 7.5 acres to the _Dewaswom_ there was no reason to find the said property having vested **MFA(Forest) No.2/2014** **8** under the subsequent enactment. The Tribunal specifically noticed S.3(1) of the EFL Act which creates statutory vesting, notwithstanding any other law for the time being in force or any judgment decree or order of any Court or Tribunal. The exemption granted under the earlier Act has no application in considering the vesting under the later Act. The evidence tendered as also the admission made in the application clearly reveals the land to be forest land capable of being vested under the EFL Act as an ecologically fragile land. The reliance on _**State of Kerala v. Kumari Varma 2011(1) KLT 1008**_ was also considered by the Tribunal. The Tribunal noticed that in _**Kumari Varma**_ (supra) lands cultivated with cardamom alleged to have vested under the Vesting Act were declared to be exempted by the Tribunal under that Act. Despite the High Court and the Hon'ble Supreme Court rejecting the appeal filed by the State, the properties continued with the State and at the time of the later enactment, the said property was found to have vested under the EFL Act. It was in that peculiar circumstance that the Division Bench of this Court held that the owners having been denied the possession of such lands, despite a declaration by the Tribunal upheld by the higher Courts, there was no restoration carried out by the State, which also was its **MFA(Forest) No.2/2014** **9** statutory obligation. The conversion of the land, which remained as a plantation as on the appointed day under the Vesting Act, to one in which there was lush growth of naturally grown trees and undergrowth was held to be the consequence of denial of restoration to the owners. 10. There is no such peculiar situation existing in the present case and there was admittedly no cultivation carried on in the property. Pertinently it has to be noticed that under the Vesting Act, it was the claim of the _Dewaswom_ that the rituals in the temple were carried on with the income from the property; which was the reason for conceding 7.5 acres as entitled to a person under the Land Reforms Act. At the present juncture there is no such claim made by the applicant and even the _pooja_ is said to be only on certain days and months. The assertion of the applicant itself is that the surrounding lands have to be maintained as a pristine forest; which, we agree with the Tribunal, would be best served if it is found to have vested with the Government. It is in fact such pristine forest land that are vested in the Government under the EFL Act. 11. We find no reason to interfere with the order of the Tribunal but it has to be noticed that 10 cents was excluded from the notification by the Custodian himself. The 10 cents of the property will be **MFA(Forest) No.2/2014** **10** demarcated by the custodian, if not already done, with notice to the trustees of the _Dewaswom_ and the revenue officials. The pathway to the temple will also be clearly demarcated. The said exercise shall be carried out within a period of two months from the date of receipt of the certified copy of this judgment. The trustees shall be entitled to put up a fence enclosing the earmarked area which shall be done in the presence of the forest officials. It is made clear that there shall be no interference caused to the enjoyment of the earmarked property of the _Dewaswom_ and ingress and egress into the same. The appeal stands dismissed with the above reservation and direction. The parties are left to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** jma