Chungath Ummer and Chungath Hairunnisa v State of Kerala and Custodian of Ecologically Fragile Lands

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940** **MFA.No. 52 of 2013** **AGAINST THE ORDER/JUDGMENT IN OA 7/2010 of TRIBUNAL FOR EFL CASES,(I ADDL.DISTRICT COURT), KOZHIKODE** ## **APPELLANTS/APPLICANTS:** **1 CHUNGATH UMMER S/O.ABDULRAHIMAN,AGED 63 YEARS, KAPPIKALATHIL, THAVINHAL AMSOM, THINDUMMAL DESOM, MANANTHAVADI TALUK, TALAPOYA P.O., WAYANAD DISTRICT, REPRESENTED BY CHUNGATH HAIRUNNISA, THE SECOND APPELLANT AND POWER OF ATTORNEY HOLDER, AGED 40 YEARS, RESIDING AT KAPPIKALATHIL, THAVINHAL AMSOM, THINDUMMAL DESOM, MANANTHAVADI TALUK, TALAPOYA P.O., WAYANAD DISTRICT.** **2 CHUNGATH HAIRUNNISSA AGED 40 YEARS,D/O.CHUNGATH UMMER, RESIDING AT KAPPIKALATHIL, THAVINHAL AMSOM, THINDUMMAL DESOM, TALAPOYA P.O., MANANTHAVADI TALUK, WAYANAD DISTRICT** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENTS/RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT,THIRUVANANTHAPURAM.** **MFA. 52 & 55/2013** 2 **2 THE CUSTODIAN FOR ECOLOGICAL FRAGILE LANDS VESTED IN GOVERNMENT (THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, FOREST HEAD QUARTERS, VAZHUTHAKAD, THIRUVANANTHAPURAM.** **BY ADVS.** **SRI.NAGARAJ NARAYANAN SPL. G.P. FOR FOREST** ## **OTHER PRESENT:** **GP-SRI.K.P MADHU GP-SRI. HASHIR** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2018, ALONG WITH MFA.55/2013, THE COURT ON 26.10.2018 DELIVERED THE FOLLOWING:** **MFA. 52 & 55/2013** 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940** **MFA.No. 55 of 2013** **AGAINST THE ORDER/JUDGMENT IN OA 7/2010 of TRIBUNAL FOR EFL CASES (I ADDL.DISTRICT COURT), KOZHIKODE** ## **DATED 11-01-2013** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM.** - **2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS AND CHIEF CONSERVATOR OF FORESTS, FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM.** ## **BY ADVS.** **SRI.NAGARAJ NARAYANAN SPL. G.P. FOR FOREST** ## **RESPONDENTS/APPLICANTS:** **1 CHUNGATH UMMER S/O.ABDULRAHIMAN, KAPPIKALATHIL, THAVINHAL AMSOM, THINDUMMAL DESOM, TALAPOYA P.O., MANANTODY TALUK, WAYANAD DISTRICT, (REP. BY 2ND PETITIONER, THE POWER OF ATTORNEY HOLDER) PIN: 670 644.** **MFA. 52 & 55/2013** 4 **2 CHUNGATH HAIRUNNISA, D/O.CHUNGATH UMMER KAPPIKALATHIL, THAVINHAL AMSOM, THINDUMMAL DESOM, TALAPOYA P.O., MANANTODY TALUK, WAYANAD DISTRICT - 670 644.** **BY ADVS. SRI.K.M.FIROZ SRI.S.KANNAN** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2018, ALONG WITH MFA.52/2013, THE COURT ON 26.10.2018 DELIVERED THE FOLLOWING:** **MFA. 52 & 55/2013** 5 ## **JUDGMENT** _Ravikumar, J._ The judgment dated 11.1.2013 in O.A.No.7 of 2010, an application filed under section 10(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity, 'EFL Act '), passed by the Tribunal for EFL cases is under challenge in these appeals. It was filed by the appellants in the former appeal contending that they are the owners in possession and enjoyment of 15 acres of land comprised in RS.No.1/1B of Thavinjal village in Mananthavadi Taluk of Wayanad District and it was wrongly notified as ecologically fragile land as per notification bearing No.EFL-1134/2006 dated 30.10.2008 and published in the Kerala Gazette No.47 dated 25.11.2008. They challenged the said notification and sought for consequential reliefs. As per the impugned order, the Tribunal, allowed the application in part, as hereunder:- In the result, it is declared that 9.74 acres comprised in 1/1B of Thavinjal village of Mananthavadi in Wynad district clearly shown in Ext.C6 as Plot A and B is not vested with the Government and those portions of the lands is **MFA. 52 & 55/2013** 6 deleted from the Notification No.EFL 1-1-134/06 dated 30.10.2008 published in the Kerala Gazette No.47 dated 25.11.2008 as Sl.No.8. Parties shall bear their respective costs. 2. The former appeal is filed by the applicants therein challenging the said judgment to the extent it confined the order to delete only 9.74 acres comprised in the aforesaid survey number from the said notification or in other words, to the extent the Tribunal declined to order deletion of 5.26 acres comprised in the said survey number from the aforesaid notification and thereby virtually, confirming the notification notifying the said extent as ecologically fragile land. The latter appeal is filed by the State of Kerala and the custodian of the ecologically fragile lands and Chief Conservator of Forests challenging the said judgment seeking to set it aside to the extent it orders for deletion of 9.74 acres comprised in the said survey number from the aforesaid notification dated 30.10.2008 published in the Kerala Gazette No.47 dated 25.11.2008. In the said circumstances, we heard the above appeals jointly and they are being disposed of by this common judgment. For the sake of convenience, **MFA. 52 & 55/2013** 7 the parties are referred to hereafter in this judgment in accordance with their rank and status in O.A.No.7/2010, unless otherwise specifically mentioned. Evidence in this case consisted of the oral testimonies of PW1 and PW2 and Exts.A1 to A46, on the side of the applicants. On the side of the respondent, RW1 was examined and Exts.B1 to B4 were marked. Exts.C1 to C13 are Court exhibits. 3. We have heard the learned counsel appearing for the applicants as also the learned Special Government Pleader appearing for the respondents. Evidently, various contentions unsuccessfully raised before the Tribunal were reiterated before us by both sides. Before adverting to the said contentions, it is only appropriate to refer to the case of the applicants. 4. Briefly stated, the case of the applicants is as follows:- The application schedule property having an extent of 15 acres of land comprised in R.S.No.1/1B of Thavinjal Village in Mananthavadi Taluk of Wayanad District originally belonged to one Narikkutty Valappilekandy Mahadevan by virtue of jenmam deed No.1426/1947 of SRO, Thalassery. The same was then converted into **MFA. 52 & 55/2013** 8 garden land and he obtained registration from Tea Board. After his demise, the land in question devolved upon his legal heirs namely, Yasodha, Raveendran, Rajendran, Saseendran and Vanaja. Later, Yasodha died and her right over the property had devolved upon her four children viz., Raveendran, Rajendran, Saseendran and Vanaja. Prior to that, the Tea Board registration was changed in the names of Yasodha and her children. In the year 1993, as per partition deed No.266/1993 of SRO, Mananthavadi, the said property was partitioned and the property allotted to the share of Saseendran was purchased by the applicants as per Exts.A1 and A2. In fact, as per Ext.A1, the first applicant purchased an extent of 8 acres and as per Ext.A2, the second applicant purchased an extent of 7 acres. The properties covered by Exts.A1 and A2 together constitute the application schedule property. Exts.A1 and A2 are of the year 1993. Thus, the applicants became the absolute owners in possession and enjoyment of the application schedule properties having an extent of 15 acres. After its purchase, the applicants are in supersession and enjoyment of the same without any obstruction or hindrance from **MFA. 52 & 55/2013** 9 anybody. It is while so that the second respondent issued Ext.B1 notification in terms of the provisions under section 3(1) of the Act and thereupon published it in the Kerala Gazette, copy of which was marked as Ext.B2. 5. According to the applicants, eversince their acquisition of absolute ownership of the application schedule property, they are in peaceful possession and enjoyment of the same without any obstruction or hindrance. The application schedule property is not a forest land as defined under EFL Act. The EFL Act is unconstitutional. The entire extent of application schedule property got no characteristics of ecologically fragile land. Ext.B1 notification is not valid for failure of complying with the mandatory under the EFL Act inasmuch as there was no provisions recommendation from the advisory committee constituted under section 15 of the EFL Act. 6. The respondents herein had refuted the claims and contentions in their written statement. They contended thus:- Ext.B1 notification is valid and it was issued strictly in **MFA. 52 & 55/2013** 10 accordance with law. The requirement to get recommendations of the advisory committee constituted under section 15 of the EFL Act before declaration of any particular piece of land as ecologically fragile and to issue notification in that regard, is required only for declaring such land as ecologically fragile under section 4 of the EFL Act and that such a procedure is not at all to be followed for notifying lands vested in the Government in the Gazette under section 3 of the EFL Act. 7. The applicants had challenged the constitutional validity of the EFL Act before the Tribunal. True that the Tribunal had gone into that question and repelled the challenge. At the same time, we are at a loss to understand how the constitutional validity of EFL Act can be challenged before the Tribunal for EFL cases when the Tribunal itself is a creature of the said Act. Needless to say that in such circumstances, we could not entertain such a contention touching constitutionality of EFL Act in an appeal filed under section 11 of the EFL Act. The said section provides an appeal against the judgment of the EFL Tribunal on an application filed under section 10(1) of the **MFA. 52 & 55/2013** 11 EFL Act and therefore, we will proceed to consider the merits of the appeals, in accordance with law. 8. We will now, consider the tenability of the contention regarding the validity of Ext.B1 notification for the failure to obtain recommendation from the advisory committee constituted under section 15 of the EFL Act, before issuing the same. In that regard, it is only apposite to refer to sub section (3) of section 15 of the EFL Act and it reads thus:- “The Committee shall identify lands which are ecologically fragile and recommend to the Government for the declaration of such lands under section 4 as ecologically fragile.” Thus, evidently, section 15(3) of the EFL Act mandates for recommendation of the advisory committee for declaration of lands as ecologically fragile lands under Section 4 of the EFL Act. However, there is nothing in section 15 or any other provisions of the EFL Act which mandates for placing the matter before the advisory committee to obtain recommendation before issuing a notification under section 3 of the EFL Act regarding vesting of any particular **MFA. 52 & 55/2013** 12 land as ecologically fragile land. In that context, it is worthwhile to extract sub-section 2 of section 3 of the EFL Act and it reads thus:- “The lands vested in the Government under sub section (1) shall be notified in the Gazette and the owner shall be informed in writing by the custodian and the notification shall be placed before the Advisory Committee constituted under ” . Section 15 for perusal (emphasis added) A glance at section 4 of the EFL Act will make the said position more clear and it reads thus:- **4.Power to declare ecologically fragile land** .--(1) The Government shall have power to declare by notification in the Gazette, any land to be ecologically fragile land on the recommendation of the Advisory Committee appointed for the purpose under Section 15 of this Act. (2) No declaration under sub-section (1) shall be made without giving the owner a notice of thirty days for being heard. (3) No person shall change the legal or physical status or ownership of the land proposed to be declared as an ecologically fragile land after the notice issued under subsection (2). (4) With effect from the date of declaration of any land as ecologically fragile land under sub-section (1), the **MFA. 52 & 55/2013** 13 ownership and possession of the land or any other form of right over it, shall subject to the provisions of this Act, stand transferred to and vested in the Government tree from all encumbrance and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date. A bare perusal of sections 3(2), 4 and 15(3), of the EFL Act would reveal that what is to be done under section 3(2) of the EFL Act is nothing but notifying the lands vested in the Government in the Gazette and then place the notification before the advisory committee for perusal whereas under section 4 declaration by notification in the Gazette any land to be ecologically fragile land has to be made on the recommendation of the advisory committee. In the light of the aforesaid provisions, it is abundantly clear that there is no merit in the contention of the applicants that Ext.B1 notification is invalid because of the failure to place and obtain recommendation from the advisory committee constituted under section 15 of the EFL Act before issuing notification under section 3(2) of the EFL Act. 9. Bearing in mind the aforesaid positions of law and based on the aforesaid conclusions, we will proceed to consider the tenability **MFA. 52 & 55/2013** 14 of the rival contentions raised by the parties in support of their respective grounds of challenge against the judgment dated 11.1.2013 in O.A.No.7 of 2010. As noticed hereinbefore, the Tribunal had partly allowed the said original application and declared that out of the 15 acres of land comprised in R.S.No.1/1B of Thavinjal Village in Mananthavadi Taluk of Wayanad District, an extent of 9.74 acres, clearly shown in Ext.C6 as plot A and B, is not vested with the Government and those portions of the land is to be deleted from Ext.B1 notification published as per Ext.B2 and ordered accordingly. The respondents are challenging the aforesaid judgment to the extent it allowed the above mentioned O.A. on the aforesaid lines. 10. We will firstly deal with the latter appeal filed by the respondents in the O.A, carrying the challenge against the direction to delete 9.74 acres from Ext.B1 notification. The core contention of the respondents is that the Tribunal had failed to properly appreciate Exts.C1 report and C6 plan. It is the contention that as per Ext.C1 report, the Commissioner had reported that no private land or agricultural land was seen on the boundaries of the petition schedule **MFA. 52 & 55/2013** 15 property and the application schedule property is enclosed with forest lands. So also, it is contended that going by the report therein, the presence of wild animals in the application schedule property was noted during the time of inspection. The definition of “ecologically fragile lands” mentioned in Section 2(b) of the EFL Act was not properly appreciated while considering the contentions, by the Tribunal. Furthermore, it is contended that in order to get the benefit of exclusion provided under Section 2(c) of the EFL Act, the land in question must be one principally cultivated with crops of long duration as on the appointed day viz., on 2.6.200 and no evidence in that regard was adduced by the applicants and this fact was not properly appreciated by the Tribunal. It is also the contention that the non-examination of Commissioner and Expert by the applicants ought to have been taken note of and that they were denied opportunity to cross-examine the Commissioner as also the Expert to bring out the truth contained in the report. Lastly, it is contended that the Tribunal had failed to properly appreciate the fact that the burden to establish that the disputed property is not an ecologically fragile land was not **MFA. 52 & 55/2013** 16 discharged by the applicants. It is raising such contentions that the respondents are mounting challenge against the judgment to the extent the application was allowed. It is a fact that the respondents had not raised any contention that the applicants are not the owners of the application schedule property. So also they had not denied the title of the applicants over the application schedule property. Evidently, the only contention is that since 2.6.2000, the application schedule property is ecologically fragile land. Per contra, the learned counsel appearing for the applicants countered such contentions and contended that there is absolutely no infirmity or illegality in the impugned judgment whereby and whereunder the Tribunal made a declaration as aforesaid in respect of 9.74 acres comprised in the above mentioned survey number. It is the submission that the declaration and consequential order for deletion of that much extent from the purview of Ext.B1 notification is the outcome of proper appreciation of the evidence in the light of the relevant provisions of the EFL Act and the settled position of law. The learned counsel further submitted that Ext.C1 report and Ext.C6 plan would go to **MFA. 52 & 55/2013** 17 show that plot A and B having an extent of 9.74 acres are planted with tea having shade trees and in such circumstances, the Tribunal had taken note of the definition of 'forest' in Section 2(c) of the EFL Act to order deletion of those portions from the purview of Ext.B1 notification. It calls for no interference, it is submitted. 11. The question is whether the aforesaid grounds raised by the respondents are sufficient to upturn the findings of the Tribunal as regards the aforesaid extent of 9.74 acres covered by Ext.B1 notification. It is to be noted that certain grounds raised by the appellants are, in a sense, mutually annihilative. From ground 'G', it is evident that the respondents got a grievance that the Tribunal had failed to appreciate the fact that the Commissioner and the Expert were not examined by the applicants therein/respondents herein. The tenor of the said contention would suggest that they are canvassing the position that, in such circumstances, Exts.C1 report and C6 plan ought to have been accepted in toto. Even while contending thus, they raised a further grievance therein that they were denied the opportunity to cross-examine the Commissioner and also the Expert **MFA. 52 & 55/2013** 18 to bring out the truth contained in the report. Evidently, the report was submitted by the Advocate Commissioner appointed by the Tribunal and the inspection was conducted after putting notice to the respondents. The factum of preparation of plan by the Taluk Surveyor and report by the expert who assisted him during such inspection also forms part of the reports submitted by the Advocate Commissioner. Evidently, the Commissioner after inspection of the application schedule property submitted interim report, additional report and then final report before the Tribunal and the report of the Expert and the plan prepared by the Taluk Surveyor, were also produced along with the same. The fact that he was assisted during such inspection by the Taluk Surveyor who prepared Ext.C6 plan and also by an expert is also made part of the report. There is nothing on record which would reveal that the applicants or the respondents had raised any objection against the report and sought to remit the same. In the circumstances, non-examination of the Advocate Commissioner by itself cannot be a reason for any of the parties to contend that the report ought not have been relied on. In the contextual situation, the decision of a Division **MFA. 52 & 55/2013** 19 Bench of this Court in **Abdul Nazar v. Iyyathumma [2016 (2) KLT 668 (DB)]** assumes relevance. Going by the decision, once the Commissioner appointed by the court inspected the property after issuing notice to the parties and a report has been filed, it will form part of the record and the Court can rely on that report for the purpose of arriving at a finding in the proceedings even without examining the Commissioner. In the decision in **Retnamma and others v. Mehaboob (2013 (2) KLT 648)** , this Court held that mere fact that a plan was produced along with a Commission report it would not make such plan admissible under Order 26 Rule 10 of the Code of Civil Procedure. At the same time, it was held that if the survey plan is used by the Commissioner to explain anything in his report, it can be admitted in evidence, as part of the Commission report and to that extent. In the light of the said decisions, the findings of the Tribunal arrived at, without examining the Commissioner relying on the report and the plan, cannot be said to be illegal or impermissible in law inasmuch as the Advocate Commissioner had explained the nature of the plots A to D by relying on and with reference to Ext.C6 plan as **MFA. 52 & 55/2013** 20 also the report of the Expert produced along with the report. 12. A perusal of the impugned order would reveal that the Tribunal, after going on through Exts.C1 report and C6 plan, found that plot A and B (marked as such in the plan) are planted with tea cultivation. It is the said recital which remained unchallenged that formed the basis for the conclusion that 9.74 acres of land in the aforesaid survey number are planted with tea cultivation. Obviously, the details regarding the crops were sufficient to enable the Tribunal to arrive at the conclusion regarding the state of affairs as on the appointed day. It is based on that conclusions and findings arrived at, placing reliance upon those documents, that a declaration and consequential direction to delete the said extent from the purview of Ext.B1 notification was issued by the Tribunal. Despite the said fact, a perusal of the pleadings in the appeal would reveal that nothing was mentioned about the said recital in the Commissioner's report. In other words, there is no contention for the respondents that the factum about tea cultivation on plots A and B was not mentioned in the report. In such circumstances, if all the reports submitted by the **MFA. 52 & 55/2013** 21 Advocate Commissioner, the report of the Expert and C6 plan are to be accepted in toto, as contended by the respondents, no error in conclusion or error in law, perversity or illegality could be attributed to the impugned judgment to the aforesaid extent of 9.74 acres of the application schedule property covered by plots A and B. There is nothing on record which would reveal that the respondents raised objection against the Ext.C1 report and sought to set it aside, in accordance with law. In view of the decisions referred supra viz., in **Abdul Nazar** 's case and **Retnamma** 's case, no grievance could be raised against non-examination of the Commissioner and the Expert. The plan prepared by the Taluk Surveyor as also the extent of assistance of the Expert were specifically referred to in the reports submitted by the Commissioner and those portions were rightly relied on by the Tribunal. In such circumstances, the plan produced along with the Commissioner report and the report of the expert would be admissible. Section 2(c) of the EFL Act defining 'forest' is worthy to be extracted in the context of the recitals in the report of the Advocate Commissioner and C6 plan. The said provision reads thus:- **MFA. 52 & 55/2013** 22 "forest" means land any principally covered with naturally grown trees and undergrowth and includes any forests and declared as statutorily recognised reserved forest, protected forest or otherwise, but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of residential buildings and surroundings essential for the convenient use of such buildings. Going by the definition of 'forest' under Section 2(c) of the EFL Act, the word 'forest' would not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber etc. In the light of the fact that in Ext.C1 report and C6 plan, plots A and B were seen planted with tea having shade trees and considering their age revealed from the evidence on record, we do not find any reason to hold that the Tribunal had committed any error, either in law or facts warranting interference as relates the declaration made in respect of 9.74 acres comprised in survey No.1/1B of Thavinjal Village in Mananthavadi of Wayanad District shown in Ext.C6 plan as **MFA. 52 & 55/2013** 23 plot A and B to the effect that the said extent is not vested with the Government and those portions are to be deleted from Ext.B1 notification published in Kerala Gazette No.47 dated 25.11.2008. In the said circumstances, the latter appeal must fail. 13. We will now consider the contentions raised by the applicants in the former appeal to mount challenge against noninterference with Ext.B1 notification as relates the balance extent of 5.26 acres comprised in Re-survey No.1/1B of Thavinjal Village in Mananthavadi of Wayanad District. The main ground of attack against the impugned judgment in that regard is that the Tribunal had gone wrong in not holding Ext.B1 notification as invalid for the failure in obtaining recommendation from the Advisory Committee constituted under Section 15 of the EFL Act. We have already extracted sub-section (3) of Section 15 as also sections 3(2) and 4 of the EFL Act. It is evident from the same that the identification of land which are ecologically fragile and to effect recommendation by the Committee is required only for declaration of such lands under Section 4 of the EFL Act as ecologically fragile. Admittedly, Ext.B1 **MFA. 52 & 55/2013** 24 notification was issued in terms of Section 3(1) of the EFL Act and not under section and admittedly, the same was published in the Kerala Gazette. The provisions under sub-section (2) of Section 3 of EFL Act, as extracted earlier, would reveal that it contemplates only placement of the notification before the Advisory Committee constituted under Section 15 for perusal after notifying the same in the Gazette. Referring to the aforesaid contentions we have already found that there is absolutely no merit in the said contention of the applicants in view of the undisputed and indisputable position that the impugned notification was not made under section 4 of the EFL Act. In such circumstances, it can only be said that the Tribunal has rightly repelled the said contention. 14. Before adverting to the further contentions, it is only relevant to refer to the following aspects:- PW1 was examined before the Tribunal to establish that the application schedule property is a tea garden. He would depose that only some shade trees are available in the disputed land and it is a pucca tea garden with no forest species. On the side of the applicants **MFA. 52 & 55/2013** 25 Ext.A5 was produced. It is a certificate issued to change the ownership of Koomanmala tea estate having registration No.B-32 in favour of the applicants' predecessors. However, as held by the Tribunal the certificate does not show the survey number or the village wherein the said tea garden is situated. Despite the claim that the applicants are paying basic tax, plantation tax, dues in respect of the employees before the Welfare Board none of such receipts revealing payment of tax in respect of tea garden in the property covered by Exts.A1 and A2 were produced. The Tribunal had relied on a decision of this Court in **State of Kerala** v. **Alexander (1993 (1) KLT 4).** Going by the said decision, in order to get the benefit under Section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 it is for the applicant to prove that he is the owner and further that there was personal cultivation in the land prior to the appointed day. Furthermore, going by the decision, the said fact should be proved with solid and definite evidence. It was also held further that mere statement by the party could not form the basis for entering a finding in his favour. As noticed hereinbefore, in the case **MFA. 52 & 55/2013** 26 on hand, virtually, no cogent evidence was adduced by the applicants to establish that the entire extent of the application schedule property are cultivated with crops of long duration or that it is predominantly cultivated with crops of long duration. In this context, it is to be noted that the lands covered by plots C and D belong to the second applicant under Ext.P2 (Document No.2158/93). True that the first applicant is her father. Merely because some part of plot B also cultivated with crops of long duration could and would absolve the second respondent from the burden to show that the plots C & D were cultivated with crops of long duration such as tea, rubber, coffee, as on the appointed day viz.., 2.6.2000. Merely because she joins with her husband viz., the first applicant, cannot be a reason that would absolve her from the burden. As a matter of fact, except the reports of the Commissioner, Ext.C6 plan as also Ext.C9 report of the Expert, which are court exhibits, nothing is on record which would indicate the state of affairs viz., the nature of the application schedule property. But, certainly, the commission was taken out by the applicants. In Ext.C9 report, the reports of the Commissioner and also the Expert, it **MFA. 52 & 55/2013** 27 was specifically pointed out that no plants were found in the plots marked as C and D in Ext.C6 and that in the area covering a large extent viz., 5.26 acres of land, tea plants or in that matter any crops of long duration is not seen and planted and at the same time, the plots are predominantly covered with undergrowth, bushes and some trees. In fact, going by the report, the said extent of land is dominated by weedy bushes, climbers and small trees, as specified in Table 3(a) of the report. Against the reports of the Advocate Commissioner, the expert and also Ext.C6 plan, no objection is seen raised by the applicants. In fact, if they doubt the correctness of those documents, it would be annihilative to their own interest as it is based on such documents that the Tribunal ultimately declared 9.74 acres out of the total extent of 15 acres comprised in Re-survey No.1/1B of Thavinjal village in Mananthavadi Taluk of Wayanad District as not ecologically fragile lands. The applicants cannot be heard to contend that they were prevented from cultivating the aforesaid extent of 5.26 acres especially in view of the fact that such plantations are seen in 9.74 acres. Though the learned counsel relied on the decision of a **MFA. 52 & 55/2013** 28 Division Bench of this Court in **State of Kerala v. Kumari Varma (2011 (1) KLT 1008),** there is nothing on record which would reveal that a portion of the application schedule property comprised in plots C & D was excluded from the purview of the expression 'private forest' under the Private Forest (Vesting and Assignment) Act, 1971. At the same time, the evidence on record is to the effect that plots C and D are covered with underground bushes and going by Ext.C1 report, the Commissioner noticed old dung of elephants in plots C and D evidencing the fact that wild animals are used to visit the plot. When such pieces of evidence are available on record and the second applicant could not adduce evidence to establish that the said plots are also principally cultivated by crops of long duration such as tea, coffee, rubber etc. the applicants cannot contend that the impugned judgment to the extent it pertains to 5.26 acres comprised in Resurvey No.1/1B of Thavinjal village in Mananthavadi Taluk of Wayanad District is illegal and liable to be interfered with. We have already found that the challenge of the constitutional validity of the Act got no merits. At any rate, in such circumstances, we do not find **MFA. 52 & 55/2013** 29 any reason to interfere with the rejection of the said challenge by the Tribunal. For the aforesaid reasons, we find no substance in the challenge against that part of the impugned judgment whereby the Tribunal had declined to interfere with Ext.B1 notification covering an extent of 5.26 acres of land comprised in Re-survey No.1/1B of Thavinjal village in Mananthavadi Taluk of Wayanad District. In the result, both the appeals have to fail and consequently, they are dismissed. In the circumstances, the parties have to bear their respective expense. **Sd/-** ## **C.T.RAVIKUMAR** **JUDGE Sd/-** ## **K.P.JYOTHINDRANATH** **JUDGE** spc/