MFA (Forest) No. 128 of 2011 against the order/judgment OA 3/2008 of Forest Tribunal, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 21[ST] DAY OF DECEMBER 2022 / 30TH AGRAHAYANA, 1944** **MFA (FOREST) NO. 128 OF 2011** **AGAINST THE ORDER/JUDGMENTOA 3/2008 OF FOREST TRIBUNAL,** ## **PALAKKAD** ## **APPELLANTS/RESPONDENTS:** 1 STATE OF KERALA CHIEF SECRETARY TO GOVERNMENT OF KERALA,, THIRUVANANTHAPURAM. 2 THE CUSTODIAN ECOLOGICALLY FRAGILE LAND) AND PRINCIPAL CHIEF CONSERVATOR OF, FORESTS (E & TW) STATE OF KERALA,, THIRUVANANTHAPURAM. BY ADV GOVERNMENT PLEADER ## **RESPONDENT/APPLICANT:** D.S.SANKAR RESIDING AT 386, KOTTAPPURAM ROAD,, THRISSUR, PIN-680 001. BY ADV M.C.JOHN SRI.NAGARAJ NARAYANAN, SPL GP THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 21.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.F.A (Forest) No.128 of 2011** **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. -----------------------------------------M.F.A (Forest) No.128 of 2011 ----------------------------------------Dated this the 21[st] December, 2022** ## **JUDGMENT** **K.Vinod Chandran, J.** **Before the Forest Tribunal constituted under the The Kerala Forests (Vesting and Management Of Ecologically Fragile Lands) Act, 2003 (for brevity 'the EFL Act') the applicant/ respondent sought for a declaration that 27 Acres lying in Survey Nos.127/F1A, 127/G1D, 127/M1C and 127/N2 of Peringottukurissi-II Village is not an ecologically fragile land. The applicant has approached the Tribunal, as one of the co-owners claiming that the land is a** _**pucca paramba**_ **with no natural vegetation and cultivation found is as a result of human effort. The four sides of the property also are cultivated lands or** _**parambas**_ **.** **2. The Divisional Forest Officer [DFO] resisted the claims alleging that 10.93 hectares in the aforesaid survey numbers of the Village was** **M.F.A (Forest) No.128 of 2011** **3** **involved in O.A.409/1981 under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for brevity, 'the Vesting Act'), and restored to the applicant as on 07.12.1998. Consequent to the notification dated 26.08.2000 under the EFL Ordinance, 10.4445 hectares of the restored land was notified as ecologically fragile land. The property lies contiguous to vested forest of** _**Choolannur Malavaram**_ **, predominantly supporting natural vegetation. The properties were found to lie in two bits. The DFO also enumerated the forest specie vegetation found in the land and asserted regeneration of a forest in the restored land, which is also a part of the catchment area of the rivers,** _**Bharathapuzha**_ **and** _**Mangalampuzha**_ **.** **3. The Tribunal having framed the sole issue of whether the scheduled property is an ecologically fragile land; found it to be not existing as such a land, liable to be vested under the EFL Act. The Tribunal, noticing the definition of ecologically fragile lands and forest, rightly** **M.F.A (Forest) No.128 of 2011** **4** **held that an EFL should be one lying contiguous to or encircled by a forest, either reserve, vested or otherwise, having predominant natural vegetation of trees and undergrowth. The exclusion from such definition would only apply for such forest lands, where there is principal cultivation of long duration crops as enumerated in the definition of 'forest'. The commission reports were also looked into and the objection of the respondents were held to be not sustainable, since they never sought to examine the Advocate Commissioner. The earlier proceedings under the Vesting Act were also noticed along with the delayed restoration. It was found that the respondents neither had a contention that the scheduled land was a forest at the time of the earlier vesting or even at the time of the present vesting, under the EFL Act. The applicants were found to have been prevented from making cultivation in the property, since the restoration was much later. Immediately after restoration, it was notified as ecologically fragile land and there** **M.F.A (Forest) No.128 of 2011** **5** **was no justification for the State to deny the owners, restoration of the property, which was declared to be not liable to be vested under the Vesting Act; which was the only reason why there was a regeneration of forest specie in the scheduled land.** **4. We heard Sr.Nagaraj Narayanan for the appellant and Sri.M.C.John for the respondent/ applicant.** **5. The findings of the Tribunal is in consonance with the reasoning in** _**State of Kerala v. Kumari Varma 2011(1) KLT 1008**_ **, by a Division Bench of this Court. In** _**Kumari Varma**_ **[Supra] similar situation arose when the Forest Department divested the owners, possession of a cardamom plantation, on allegation of vesting under the Vesting Act. The owners approached the Tribunal and successfully obtained a declaration that a cardamom plantation is not liable to be vested in the Government. The State unsuccessfully approached this Court with an appeal and also the Hon'ble** **M.F.A (Forest) No.128 of 2011** **6** **Supreme Court. Despite the Hon'ble Supreme Court having affirmed the declaration issued by the Tribunal, the property was not restored to the owners, as is statutorily mandated under S.8(3) of the Vesting Act. The property remained unattended till the appointed day under the EFL Act, ie.02.06.2000. Based on an ordinance of the year 2000, a notification was issued proclaiming the vesting of the very same lands; exempted as cardamom plantation under the Vesting Act, to have vested under the EFL Act. The argument of the State was that whatever be the cause, there is regeneration of a forest in the interregnum of the two enactments and hence the property cannot be absolved of vesting; especially when it lies as an ecologically fragile land as on the appointed day under the EFL Act. A Division Bench of this Court found that, the State having illegally divested the owners of the possession of the lands and also having not restored the properties to the owners despite a declaration of the Tribunal, cannot fall** **M.F.A (Forest) No.128 of 2011** **7** **back on such illegality to claim vesting under the EFL Act. The reasoning was that, if the property had been restored, the owners would have resumed cultivation in the said land. Of course, in cases where restoration was made and still there is no cultivation resumed, the rigor of the EFL Act cannot be digressed from. Essentially the question would be one on facts, as to whether the restoration was made in such a manner enabling the owners to resume cultivation.** **6. In the present case, admittedly the owners were divested from the possession upon the first enactment, ie: the Vesting Act. Despite the declaration of the Tribunal having been affirmed by this Court and the Hon'ble Supreme Court, the State delayed the restoration. Restoration admittedly was only on 17.12.1998 as per Ext.A6 Certificate issued by the DFO, Nenmara. However, along with the same, Ext.A4 notification dated 16.02.1998 was issued prohibiting felling of the available trees and imposing restrictive measures for the preservation** **M.F.A (Forest) No.128 of 2011** **8** **of trees and tree growth, under the Kerala Preservation of Trees Act, 1966.** **7. Learned Special Government Pleader has a contention that even under the Preservation of Trees Act, pruning of trees is permitted to facilitate cultivation and the applicants could have carried out cultivation like cardamom and pepper, which requires shade. Learned Counsel for the respondent argued that it is not for the State to decide as to what type of cultivation would be carried on in the property. In fact the specific contention of the applicants, as revealed from Ext.A3 was that they required the property to be made fit for rubber cultivation. Ext.A3 is dated 31.03.1995, long before the restoration itself. We are of the opinion that the evidence led clearly makes applicable the dictum in** _**Kumari Varma**_ **.** **8. The trees noticed by the Commissioner, who inspected the property in 2010 and 2011, show the age of trees to be between 5 to 25 years; all generated after the owners were divested from their** **M.F.A (Forest) No.128 of 2011** **9** **possession, under the Vesting Act. We fully agree with the Tribunal that after having deprived the owners of their right to carry on cultivation in the scheduled property and having unjustifiably denied restoration of possession even after the declaration issued by the Tribunal, the State cannot be permitted to take advantage of its own illegality to claim vesting under the EFL Act.** **We find no reason to interfere with the order of the Tribunal and reject the appeal leaving the parties to suffer their respective costs.** **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **==> picture [432 x 33] intentionally omitted <==** **sp/22/12/2022**