MFA (EFL) No. 124 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944 MFA (FOREST) NO. 124 OF 2013** **AGAINST THE ORDER in OA 3/2010 DATED 03.05.2013 OF TRIBUNAL FOR** **ECOLOGICALLY FRAGILE LANDS CASES,KZD.** ## **APPELLANTS/RESPONDENTS:** 1 THE GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS VESTED IN GOVERNMENT (THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS), FOREST HEDQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY SRI.NAGARAJ NARAYANAN, SPECIAL GOVERNMENT PLEADER (FOREST) ## **RESPONDENTS/PETITIONERS:** 1 KALLINGAL HAMSA, KALLENGAL HOUSE, JESSY ESTATE ROAD, P.O.PILAKKAVU, MANALODDY, WAYANAD (DIST)-670645. 2 AYAMED KOYA THANGAL, KANHAJI HOUSE, JESSY ESTATE ROAD, P.O. PILAKKARA, MANALODDY, WAYANAD (DIST.)670645. 3 MUNEERA, D/O. ANDRU, KANHAJI HOUSE, JESSY ESTATE ROAD, P.O. PILAKKAVU, MANALODDY, WAYANAD (DIST.)670645. 4 C.H. ALIKOYA THANGAL, S/O. MUHAMMED KOYA, CHIRAKANTHODY, P.O. PILAKKAVU, MANALODDY, WAYANAD (DIST)-670645. BY ADVS.SRI.K.M.FIROZ SRI.BEJOY M.S. RAJ SRI.V.MIDHUN SREE MOHAN SRI.P.SHIJU THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(E.F.L.)No.124 of 2013 **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------M.F.A.(FOREST)No.124 of 2013 ------------------------------------------Dated this the 05[th] day of January, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The State is aggrieved with the judgment of the Tribunal, under S.10 of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity, the EFL Act). The applicants, who are the respondents herein, claimed absolute ownership, possession and enjoyment of 3.50 acres of land, with respect to which the 4[th] petitioner had obtained purchase certificate under the Kerala Land Reforms Act. The 4[th] petitioner transferred 2.90 acres to the other applicants, and ever since, they have been enjoying the same by cultivating the lands. The applicants claimed cultivation of coconut, arecanut, tapioca, plantains, ginger and paddy even before 2.6.2000; the appointed day under the EFL Act. The applicants approached the Divisional Forest Officer, North Wayanad, to exclude the land from vesting, which was declined. The M.F.A.(E.F.L.)No.124 of 2013 **3** respondents asserted that the above land is comprised within an extent of 1.2150 hectares of land in Sy.No.89/18A1A1B3E in Mananthavady village, notified as ecologically fragile land on 30.10.2008. The scheduled land is encircled by forest lands and predominantly supports natural vegetation as on the appointed day. A natural waterhole is present in the above land which is habituated by wild animals. It was also contended that even as per the purchase certificate, the 4[th] applicant owned only 3 acres and there cannot be a claim raised for an extra 50 cents. The land was asserted to be flush with forest species trees and it is part of a grass land ecosystem supporting the flora and fauna in the area. 2. The Tribunal raised two issues regarding the right of the applicants to invoke S.10 of the EFL Act and whether the property is an ecologically fragile land. The Tribunal first considered the issue as to whether the scheduled property is an ecologically fragile land. Having found the land to be not coming within the definition of ecologically fragile land, it was held that the subsequent transfer to the applicants would be insignificant and the applicant was entitled to invoke Section 10. This was on the premise that under S.4(3) of the M.F.A.(E.F.L.)No.124 of 2013 **4** EFL Act, the restriction in change of ownership applies only to ecologically fragile lands. We are afraid S.4(3) does not apply at all. S.3 of the EFL Act speaks of vesting in the government, of ecologically fragile lands as defined under the Act; which occurs statutorily. S.4 empowers the Government to declare a land as ecologically fragile, by notification on the recommendation of an advisory committee appointed under S.15 of the Act. Sub-section 3 of S.4 applies only to such lands notified under S.4 and has no application in so far as the vesting under S.3. True, the applicants have obtained possession of lands long after the appointed day under the EFL Act, as per Exts.A2 to A6. However, the 4[th] applicant who was the vendor in the said documents had obtained purchase certificate Ex.A1 regarding the scheduled land, specifically 3 acres. The purchase certificate, under S.72 K of the Kerala Land Reforms Act is conclusive proof of title. The applicants who are subsequent purchasers can definitely invoke S.10 under the EFL Act, but however, has to establish the exclusion claimed, for the purpose of a declaration under Section 10, based on the status of the land as existing on 2.6.2000, the appointed day under the EFL Act. We garner support for the above proposition from M.F.A.(E.F.L.)No.124 of 2013 **5** _Parameswara Sastrigal v. State of Kerala (2008 (2) KLT 461)_ ; which decision, though under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity, the Vesting Act), applies squarely in so far as the EFL Act also. 3. The next question is on the declaration in so far as the scheduled land being excluded under the EFL Act. The Tribunal, as we noticed, placed reliance on Ext.C4 report of the Commissioner, which is accompanied with Ext.C6 observations submitted by the expert who also inspected the properties. The learned Special Government Pleader (Forest), however, took us to Ext.C3 report of another Expert. Ext.C3 is prepared by a Scientist with the Water Management (Agri) Division, CWRDM, Kozhikode, whose area of expertise is water resource engineering. On inspection of the property, he has reported that the terrain is hilly and undulating, forms part of a larger water shed, which is predominantly forest. The lower portions are marshy and there are small water channels found. There is also a pond of irregular shape with a diameter of approximately 10 to 15 meter, along the boundary adjacent to the access from the road, from which a small stream flows across the road through a culvert. Another stream of M.F.A.(E.F.L.)No.124 of 2013 **6** almost the same size runs through the eastern boundary of the property, in which water is released from the catchment area, within the forest, upstream. The land use of the site was mainly found to be grass with few small trees standing scattered in the field. The Expert, in Ext.C3, confessed his lack of knowledge with respect to the rare and endemic nature of the trees. 4. Ext.C6 is the report filed by an Expert Botanist who also physically inspected the disputed land. In Ext.C6, it was reported that the disputed land can be easily demarcated from the adjoining forest lands, the boundaries of the forest lands being well marked with _jandas_ (cairns) and a man made trench existing along the west, north and eastern boundaries of the property. The whole area was reported to be lying barren except for the margin, close to the trenches, adjoining the forest lands. The plants seen were found to be normally found in plantations, forest, waysides and wastelands which does not include any rare endangered and threatened category. It was also reported that the nature of the land is wet and there are signs of agricultural activities carried out in the land during the past, clearly indicated by mounds of sand heaped, for planting crops such as M.F.A.(E.F.L.)No.124 of 2013 **7** tapioca and yam. The land was reported to be barren except for bushes and small trees along its border. 5. The definition of ecologically fragile land takes in any forest land or portion thereof lying adjacent to or encircled by a reserved, vested or other forest owned by the Government and predominantly supporting natural vegetation. The definition of forest as seen from S.2(c) means land principally covered with naturally grown trees and undergrowth, including any forest statutorily recognised and so declared, except those cultivated with long duration crops specified therein. We have seen that both the experts reported that the disputed land lies barren and there is scanty presence of trees. True, there is a pond situated in the land from which a stream runs into a nearby culvert. The definition of land under S.2(d) includes rivers, streams, its origin and other water bodies. The definition of ecologically fragile land; Section 2(b) uses the composite term of 'forest land' and requires it to be predominantly supporting natural vegetation, meaning naturally grown trees and undergrowth. In so far as the disputed land in the above case; it lies barren and there are also indications of cultivation having been carried out in the property, using human skill M.F.A.(E.F.L.)No.124 of 2013 **8** and labour. We hence find no reason to interfere with the order of the Tribunal but make it clear that the declaration would only apply to the land covered by Ext.A1 purchase certificate. We also notice that the document produced as Ext.A1 before the Tribunal is termed to be a photocopy but the original is available in the records. We direct the Registry to return the original produced to the respondent's Counsel after retaining a photocopy. The MFA stands dismissed with the above direction. Sd/- K.VINOD CHANDRAN, JUDGE Sd/- C.JAYACHANDRAN, JUDGE uu