MFA (Forest) No. 108 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 27[TH] DAY OF JANUARY 2023 / 7TH MAGHA, 1944** ## **MFA (FOREST) NO. 108 OF 2014** ## **AGAINST THE JUDGMENT IN OA 6/2010 OF FOREST TRIBUNAL, PALAKKAD** ## **PETITIONERS:** - 1 STATE OF KERALA REP BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 2 THE CONSTODIAN ECOLOGICALLY FRAGILE LANDS AND CHIEF CONSERVATOR OF FORESTS(ADMINISTRATION), FOREST, HEADQUARTERS, THIRUVANANTHAPURAM BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOREST ## **RESPONDENT:** K.P. PEETHAMBARAN S/O.HYMAVATHY, CHENANGADASSIAR, KRISHNA KRIPA, KERALASSERY, PALAKKAD NOW R/A.FLAT NO 303,SRI SAI RUTHICK ENCLAVE, KONDAPUR, HYDRABAD-500022 BY ADV SRI.V.A..JOHNSON (VARIKKAPPALLIL) (CAVEATOR) THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 27.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MFA(Forest) No.108/2014** **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------MFA(Forest) No.108 of 2014 ------------------------------------------Dated this 27[th] January, 2023** ## **JUDGMENT** ## **Vinod Chandran, J** The applicant is concerned with 2.60 hectares of land in Sy.No. 463/6(old Sy.No.381/1/346/5E) of Kongad I Village. Applicant obtained the properties by Ext.A1 assignment deed and even at that point of time it was cultivated with tapioca. Later when he could not cultivate the seasonal crops, he planted acacia; is the contention. In the year 1999 the officials of the Forest Department obstructed the cultivation on the ground of vesting under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity 'the Vesting Act'), upon which the applicant approached the Forest Tribunal with OA No.60/1999. The Tribunal exempted the said properties and an appeal filed before the High Court was rejected. It was in 2007 that a notification under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity 'the EFL Act') was published, that **MFA(Forest) No.108/2014** **3** too when the applicant approached this Court with a writ petition for restoration of the properties. The applicant asserted that the scheduled property is not an ecologically fragile land and there is no natural vegetation in the property. It was also contended that the scheduled land was not encircled by reserved or vested forest and the only cultivation in the land was as a result of human skill and labour. 2. The respondent resisting the claim of the applicant specifically contended that the disputed area is a part of Mucheeri acacia plantation raised by the Forest Department in 1987 which lies contiguous to vested forest having total extent of 372 hectares and known as Ayyarmala. It was asserted that the land holds exotic trees and is a habitat for various wild animals; requiring maintenance as a pristine forest land. 3. The Tribunal raised a single issue of whether the land is ecologically fragile land or not. The evidence consisted of the testimony of one witness, each on behalf of the applicant and the respondent. The applicant marked Exts.A1 to A5 and the respondent's witness marked Exts.B1 to B5. Ext. C1 and C1(a) are the Commission report and sketch prepared and produced by the Advocate Commissioner. **MFA(Forest) No.108/2014** **4** 4. We heard Sri. Nagaraj Narayanan, learned Special Government Pleader (Forest) and Sri.V.A Johnson (Varikkappallil) appearing for the respondent. 5. The Tribunal found that any piece of land qualifies as an ecologically fragile land, if it lies contiguous to or encircled by a forest, reserved, vested or otherwise, predominantly supporting natural vegetation and when it is declared to be an ecologically fragile land by notification under S.4. It was found that the earlier application under the Vesting Act was allowed and restoration was granted to the owner only in 2012. Looking at the Commission report, it was found that there is no indication in the report that the scheduled land is predominantly covered by natural vegetation. Ext.A2 judgment under the Vesting Act was relied on to hold that the land is not a forest land ,which stood fortified by the few acacia trees existing on the scheduled land. Ext.A1 title deed also contained a recital that the land conveyed was cultivated. It was found that the mandate of law required under S.4 for publishing a notification had not been established. On the above finding the Tribunal allowed the application granting the declaration sought for under S.10 of the EFL Act. 6. We cannot but observe that the Tribunal erred on every **MFA(Forest) No.108/2014** **5** single aspect. At the outset it has to be noticed that, vesting under the EFL Act occurs by two modes; one statutorily and the other by notification on the basis of a recommendation from the Advisory Committee. An ecologically fragile land as defined under the Act, statutorily vests in the Government under S.3. An ecologically fragile land as defined under S.2(b) includes every forest land lying contiguous to or encircled by a forest, whether it be reserved, vested or other forest lands owned by the Government and predominantly supports natural vegetation. The word 'forest' is defined as any land principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognised or declared as reserved, protected or otherwise forest lands. What is excluded from the definition of 'forest' are those lands in which there is principle cultivation of long duration crops such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew and sites of residential buildings, where the appurtenant land is required for convenient enjoyment of such residential buildings. S.3, makes the vesting automatic as on the appointed day, ie 02.06.2000 and the notification under S.3(2) is required only as an intimation to the owner and to be formally placed before the Advisory Committee, merely for **MFA(Forest) No.108/2014** **6** perusal. 7. As far as the notification under S.4, there is no requirement that the land should satisfy the definition under S.2(b) of the Act. Any land can be declared as ecologically fragile land under S.4, if the Advisory Committee appointed under S.15 of the Act recommends the same. The factors which would regulate such a consideration for a recommendation by the Committee are enumerated under clauses (i) to (vi) of S.15(4). Hence a procedure is contemplated under the statute for bringing out a notification, to enable vesting, only under S.4 and not under S.3. The finding of the Tribunal that the procedure under S.4 was not established as complied with, cannot hence stand scrutiny in the present case where the vesting is under S.3. 8. The decision of the Tribunal under the Vesting Act does not at all regulate a decision under the EFL Act. The statutory vesting under S.3 of the EFL Act is a _non obstante_ clause, enabling such statutory vesting notwithstanding any other law in force or judgment, decree or order of any Court or Tribunal. The decision of the Forest Tribunal under the Vesting Act was found to regulate the vesting under the EFL Act, only in one circumstance of the owners having been dispossessed of the **MFA(Forest) No.108/2014** **7** property on the allegation of vesting under the earlier enactment and the State having retained the possession, without restoration, despite the exemption or exclusion ordered by the Tribunal; which is either not appealed against or the appeal filed, having been dismissed. _**State of Kerala v. Kumari Varma 2011(1) KLT 1008**_ was a case in which cardamom plantations were taken over by the Forest Department under the Vesting Act and later kept with them despite the declaration issued by the Tribunal having been affirmed till the Hon'ble Supreme Court. Alleging that, in the interregnum there was regeneration of forest in the cultivated lands, vesting was again asserted as on the appointed day under the EFL Act. The Division Bench of this Court held that when the owners were dispossessed from cultivated lands on the allegation of vesting under the Vesting Act, and the same was not restored till the appointed day under the EFL Act, despite a declaration of exclusion or exemption; then the State cannot rely on its own wrong to allege vesting under the subsequent enactment. 9. _**Kumari Varma**_ (supra) has no application in the present case. The specific allegation of interference to the cultivation carried on in the vested land was in the year 1999, just prior to the appointed day **MFA(Forest) No.108/2014** **8** under the EFL Act. Ext.A2 is the order under the Vesting Act which we look at only to understand the nature of the property as revealed from the Commission report therein. A reading of the order would indicate that Ext.C1, the Commission report produced in that case was pursuant to a physical inspection of the property on 03.09.2000 and 31.10.2000; quite proximate to the appointed day under the EFL Act, ie: 02.06.2000. The Commissioner spoke of having seen acacia plants in the property which are aged about 3 to 4 years. In fact, when the Commissioner was examined as PW2, the applicant had made a suggestion that the acacia trees found in the property were aged only one year, which was not denied by the Commissioner. It was found that the acacia trees were planted much after the appointed day. Though, the finding that the lands were exempted under the Vesting Act as on the appointed day under the said Act, falling on 10.05.1971, would not enable a similar assertion as on the appointed day under the EFL Act; we are persuaded by the report of the Commissioner in the earlier O.A under the Vesting Act. 10. The Commissioner in the present case noticed that there were 75 acacia trees, 35 Vatta trees, 12 palm trees, 35 Podukani trees and other country wood and undergrowth of shrubs in the property; but **MFA(Forest) No.108/2014** **9** the inspection was carried out in the year 2012. It is also evident from the Commission report that the southern boundary of the scheduled property is contiguous to forest land satisfying the requirement under S.2(b). There is no requirement that the forest land should be lands encircled by other forest lands. However we have to notice the nature of the vegetation of the property as reported by the Commissioner in the O.A under the Vesting Act. 11. The order in the earlier O.A speaks of the Commissioner having visited the property on 03.09.2000 and 31.10.2000; quite proximate to the appointed day under the EFL Act. But for the accacia trees there are no forest species trees in the property. The department has a contention that the accacia trees were planted by them. In any event acacia is not a specified long duration crop capable of being excluded from the definition of forest under the EFL Act. It was categorically found by the Tribunal, based on the Commission Report that there was absolutely no tree growth in the property and that there were mud bunds on three boundaries of the property and a fence separated the property from the vested forest on the southern boundary. Hence the scheduled land had no characteristics of a forest land as **MFA(Forest) No.108/2014** **10** defined under the EFL Act; ' _principally covered with naturally grown trees and undergrowth'._ Though the findings in the earlier order does not regulate the vesting or the adjudication under the EFL Act, the factual report of the Commissioner has relevance insofar as it clearly reports the actual nature of the property proximate to the appointed day under the EFL Act. We interfered with the various findings in the impugned order but we are of the opinion that the declaration of exemption granted by the Tribunal has to be upheld on the grounds noticed by us. The OA filed by the applicant before the Tribunal stands allowed on the grounds stated by us and hence the appeal stands dismissed leaving the parties to suffer their respective costs. Ordered accordingly. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** jma