Jassims Hollow Bricks and Stone Crusher Valamthottu Mattilayam, Wynad v. State of Kerala and Custodian of Ecologically Fragile Lands

M.F.A[F].163/2012 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA, 1944** **MFA (FOREST) NO. 163 OF 2012** **AGAINST THE JUDGMENT IN O.A 2/2010 OF ADDITIONAL DISTRICT** **COURT, KOZHIKODE/FOREST TRIBUNAL (EFL CASES), KOZHIKODE** ## **PETITIONER/APPELLANT:** JASSIMS HOLLOW BRICKS AND STONE CRUSHER VALAMTHOTTU MATTILAYAM, WYNAD REPRESENTED BY MANAGING PARTNER T.T KOMUKUTTY S/O. MOIDEEN HAJI MACHINGAL HOUSE P.O KANNAMANGALAM VENGARA (VIA) MALAPPURAM DISTRICT 676 318 BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA ## **RESPONDENTS:** 1 THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY GOVERNMENT OF KERALA THIRUVANANTHAPURAM 695001 2 THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS, VESTED IN GOVERNMENT (THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS) FOREST HEAD QUARTER VAZHUTHAKKADU, THIRUVANANTHAPURAM 695001 BY SRI.NAGARAJ NARAYANAN SPL. G.P. FOR FORESTS THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 04.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A[F].163/2012 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A.[F] No.163 of 2012 -------------------------------------Dated this the 4[th] day of January, 2023** **J U D G M E N T** ## **Jayachandran, J** The non suited applicant in O.A.No.2/2010 preferred under Section 10(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 ['E.F.L Act', for short] before the Tribunal for E.F.L cases, Kozhikode is the appellant. The impugned judgment dated 27.06.2012 dismissed the O.A. finding that the applicant failed to prove by satisfactory evidence that the scheduled property is not an ecologically fragile land. ## **2. Facts** The scheduled property has an extent of 15 acres comprised in resurvey no.509 of Thondernad Village, Wayanad, of which the applicant is the absolute owner. The scheduled property is not an ecologically M.F.A[F].163/2012 3 fragile land as defined in the E.F.L Act and the same is planted with coffee, pepper, areca etc, long before 02.06.2000, the date on which the E.F.L Act came into force. The scheduled property originally belonged to P.P.Yasodara and P.K.Raveendran, from whom one Mehaboob, Juraid and Faisal purchased 2 acres each, vide Exts.A13 to A15 documents of the year 1995. One Aziya Umma purchased 9 acres from the said Yasodara and Raveendran as per Ext.A17 document. As per Ext.A19 document of the year 1997, the said Aziya Umma transferred her right over 2 acres, forming part of the scheduled property, to one Fathima Shah. Similarly, as per Ext.A18 document of the year 2003, Aziya Umma transferred her rights over the remaining 7 acres to one Jasmin, vide Ext.A16 document of the year 2003, Mehabood, Juraid and Faisal above-referred transferred 6 acres - forming part of the scheduled property - to one Abdul Latheef, vide Ext.A20 document of the year 2005, Fathima Shah transferred her rights over the 2 acres above-referred to Jasmin. As per Ext.A1 M.F.A[F].163/2012 4 document of year 2007, the applicant/firm purchased the scheduled property having a total extent of 15 acres from the said Abdul Latheef and Jasmin. Besides, the original owners Raveendran and Yasodara got Ext.A2 purchase certificate issued by the Land Tribunal, Mananthody, which is conclusive proof of title. The property was brought under plantation with areca, coffee, pepper and other agricultural crops from 1967 onwards. The property was taken on oral lease by the father of the above said Raveendran and Yasodara. When the enjoyment of the scheduled property by the said Raveendran and Yasodara was sought to be interfered with by the Forest Department, O.A No.141/1975 was filed before the Forest Tribunal, Kozhikode seeking a declaration that the scheduled property is not a private forest. The O.A was allowed, challenging which judgment, the Custodian approached this Court in M.F.A 477/1978, which also was, however, dismissed. Pursuant thereto, the said Raveendran and Yasodara filed petition before the High Court seeking restoration M.F.A[F].163/2012 5 of the scheduled property, which was allowed as per orders in C.M.P No.12941/1982 in the M.F.A abovereferred, directing restoration of possession. Accordingly, the scheduled property was restored possession of in favour of Raveendran and Yasodara. The applicants' predecessors-in-interest were enjoying the scheduled property, doing agricultural operations. After purchasing the scheduled property in the year 2007, the applicant was enjoying the same until notice under Section 3(2) of the E.F.L Act was served. There is no tree of a forest specie or any natural vegetation in the scheduled property as on 02.06.2000. The petitioner is running a small quarry in 20 cents of land, forming part of the scheduled property. On such premise, the applicant sought for a declaration that the scheduled property is not an ecologically fragile land, which vested in the Government consequent to Ext.B1 notification. **3.** The Divisional Forest Officer concerned filed written statement contending that the scheduled M.F.A[F].163/2012 6 property has been notified as an ecologically fragile land as per Ext.B1 notification as the same was lying contiguous to forest land owned by the Government and predominantly supports natural vegetation as on 02.06.2000. The exemption granted under the Kerala Private Forests (Vesting and Assignment) Act, 1971 ['Vesting Act', for short] is of no moment, in view of the EFL Act introduced in the year 2000. The land vested with the Government as on 02.06.2000, whereas, the applicant purchased the same only in the year 2007. The scheduled property is a hill side and quarrying therein makes the place susceptible for soil erosion. There is no principal cultivation of the crops claimed by the petitioner. An application preferred by the applicant under Section 19(3)(B) of the E.F.L Act resulted in the constitution of the committee, which submitted the report. However, in view of the amendment to Rule 17 of the E.F.L Rules 2007, the said application was disposed of directing the applicant to approach the court. There is rich flora M.F.A[F].163/2012 7 and fauna in the scheduled property and wild animals are passing through the same from the adjacent vested forest. On such premise, that respondents sought for dismissal of the O.A. **4.** The evidence consists of Exts.A1 to A20, supported by the oral evidence of PW1 on the part of the applicant/firm. On behalf of the respondents, Exts.B1 to B6 were marked and RW1 was examined. Upon analyzing the facts and evidence, the Tribunal dismissed the O.A. essentially on the premise that the applicant failed to discharge his burden in establishing that the scheduled property is not an ecologically fragile land, or for that matter, the cultivation claimed there. **5.** Heard Sri.Firoz K.M., learned counsel for the appellant/applicant and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests). Perused the records. **6.** Learned counsel for the appellant contended that the scheduled property would not answer the M.F.A[F].163/2012 8 definition of an ecologically fragile land in terms of Section 2(b) of the E.F.L Act. According to the appellant, the burden to establish that the scheduled property is an ecologically fragile land lies upon the respondent department. It was then contended that the scheduled property has already been found as a plantation vide Ext.A3 order of the Forest Tribunal, Kozhikode in terms of the Vesting Act, which order has been confirmed by this Court by virtue of Ext.A4 judgment. In such circumstances, Section 3(1) of the E.F.L Act does not apply to scheduled property and there cannot be any vesting under the E.F.L Act. The Tribunal seriously erred in finding fault with the applicant for not taking out a commission in proof of the cultivation claimed therein. Ext.B4, report of the Forest Department itself would show that the scheduled property is cultivated with pepper and areca, besides there being a building and a quarry therein. These facts, being admitted, need not be proved is the argument of the learned counsel. Finally, learned counsel M.F.A[F].163/2012 9 pointed out that the instant facts are squarely on the teeth of the judgment of a Division Bench of this court in **State of Kerala v. Kumari Varma** [2011(1) KLT 1008]. **7.** Opposing the above arguments, learned Special Government Pleader submitted that the burden of proof is indubitably on the applicant as held and reiterated in a catena of decisions of this Court, as also, the Honourable Supreme Court. Having failed to discharge the burden, the impugned order dismissing the O.A cannot be faulted at all. The applicant did not even choose to take out a commission in proof of the cultivation claimed there. Ample evidence exists to show that the scheduled property is an ecologically fragile land. Exts.A3 and A4 orders under the Vesting Act will not impact the vesting under Section 3 of the E.F.L Act in view of the non obstante clause, with which Section 3 commences. In short, the order impugned has to be sustained is the submission of the learned M.F.A[F].163/2012 10 Special Government Pleader. **8.** Having heard the learned counsel appearing on both sides, we cannot, but, approve the order impugned of the Forest Tribunal, Kozhikode. The Tribunal, after referring to the definition of an 'ecologically fragile land' in Section 2(b) of the E.F.L Act found that the applicant/appellant failed to adduce necessary evidence to show that the scheduled property is an ecologically fragile land. The Tribunal specifically found that the burden is squarely on the applicant to establish the same. It is taken note of that the applicant had not even taken out a commission to bring before the Court the nature and lie of the scheduled property. The Tribunal addressed the question of principal cultivation, which alone qualifies for exemption under Section 3(1) of the EFL Act, in which context as well, the absence of commission report looms large, especially when cultivation of pepper, coffee and areca is specifically pleaded. There was M.F.A[F].163/2012 11 complete dearth of evidence as regards the state of affairs prevailing in respect of the scheduled property as on the date of vesting, i.e 02.06.2000 **.** The Tribunal noticed that the applicant got title over the scheduled property only in the year 2007 and obviously, he has no knowledge, whatsoever, about the state of affairs prevailing as on the date of vesting. The Tribunal also found fault with the applicant for having not examined his predecessorin-interest, or for that matter, anybody else, who had knowledge about the state prevailing in respect of the property as on the date of vesting. It is in the backdrop of the above facts taken judicial note of by the Tribunal that the O.A was dismissed. **9.** Having perused the order impugned and analyzed the reasons supporting the dismissal, we are of the definite view that, no exception, whatsoever, can be taken to the course adopted in the impugned order. **10.** We will first consider the question of burden of proof. A Division Bench of this Court in _**Govt. of**_ M.F.A[F].163/2012 12 ## _**Kerala**_ v _**Jacob Thomas Arikupuram [2019 (4) KLT 1022]**_ considered the issue of burden in the context of the E.F.L Act and held that the the same squarely vests on the applicant, with which finding we agree respectfully. We also notice that the proposition laid down in **Jacob Thomas supra** is perfectly in tune with the mandate under Section 101 of the Evidence Act. The appellant's contention to the contrary is therefore rejected. **11.** We will now straight away look into the definition of 'ecologically fragile land' as defined in Section 2(b) of the EFL Act. Primarily, an ecologically fragile land should be a forest land, which is lying contiguous to or encircled by a reserve forest or a vested forest or any other forest land owned by the Government and importantly, supported by natural vegetation, predominantly. 'Forest' is defined under Section 2(c) of the E.F.L Act as any land principally covered with naturally grown trees and undergrowth and includes statutorily M.F.A[F].163/2012 13 recognized and declared forests. Section 2(c) specifically carves out the exemption that lands which are principally used for cultivation of crops of long duration specified in the section are not E.F.L lands. **12.** It could thus be seen that as per the the definition, the applicant should essentially establish that the land in question is not an ecologically fragile land in the sense that, it is not a forest land lying contiguous to a reserve forest or that, it does not predominantly support natural vegetation. Alternatively, the applicant should establish that, he is entitled to exemption by virtue of principal cultivation of long duration crops. In the instant case, the applicant had not chosen to adduce any proof in respect of any of the two parameters referred above. We notice that, Exts.A1, A2 and A13 to A20 are title deeds in respect of the scheduled property commencing from the year 1995 to 2007, of which, Ext.A1 is the title M.F.A[F].163/2012 14 deed of the applicant. Ext.A2 is the purchase certificate issued in favour of the predecessor-ininterest of the applicant as early as on 27.07.1973. These documents are of no avail to prove the nature of the scheduled property; especially under the EFL Act. Admittedly, the applicant had not chosen to take out a commission; nor did he examine any person having knowledge about the state of affairs prevailing in the scheduled property as on the date of vesting. There is no document corresponding to the year 2000, the year of vesting, at least to look at the description of the scheduled property. In such circumstances, the findings of the Tribunal can only be confirmed as regards the burden of proof and complete dearth of evidence in respect of the pivotal parameters, in the context of ascertaining whether the scheduled property is an ecologically fragile land or not. **13.** A contention is raised by the learned counsel for the appellant based on Exts.B3 and B4. Ext.B4 is M.F.A[F].163/2012 15 the report preferred by the Forest Range Officer before the Divisional Forest Officer, in respect of the scheduled property, wherein it is stated that, a quarry is operating in the scheduled property. Besides the existence of forest species trees is also reported, along with pepper and areca. Ext.B3 speaks of as many as 11 sample plots forming part of the scheduled property, detailing the nature of the trees standing in each plot. A perusal of the same would indicate that, trees reported vide Ext.B3 are nothing but, trees of a forest specie. Again, we notice that the requirement of principal cultivation of long duration crops is not satisfied, even if the contents of Ext.B4 that pepper and areca are found in the scheduled property is taken into consideration. The Tribunal rightly placed reliance upon the judgment of this Court in **Chacko Jose v. State of Kerala and Another [1975 KLT 825]** to find that, unless there exists half of the usual number of plants per acre of the respective species, the area cannot be considered as principally cultivated ## M.F.A[F].163/2012 16 with such crop. Again, there is dearth of evidence in respect of the above aspect as well. **14.** Before parting with the judgment, we also find that the order in favour of the predecessor-ininterest of the applicant under the Vesting Act cannot inure to the benefit of the applicant to seek exemption under the E.F.L. Act. In the instant case, it is not disputed that the property has been restored back to the possession of the applicant pursuant to Ext.A5 order of this Court. E.F.L Act came into force on 02.06.2000. The state of affairs of the disputed property as on the said date is the crucial criteria to determine whether the same is an ecologically fragile land or not. That apart, we notice Section 3 commencing with a non obstante clause, which efface off the impact of the judgment or decree of the Tribunal, or for that matter, any other document. Vesting contemplated in Section 3 is _dehors_ such order, if any, of the Tribunal. M.F.A[F].163/2012 17 **15.** In the circumstances, this appeal fails and the same is hereby dismissed, confirming the impugned order and leaving the parties to bear their respective costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN JUDGE** Sbna/