MFA (Forest) No. 129 of 2017

2024:KER:60129 **==> picture [58 x 57] intentionally omitted <==** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** ## **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN THURSDAY, THE 8[TH] DAY OF AUGUST 2024 / 17TH SRAVANA, 1946** **MFA (FOREST) NO. 129 OF 2017** **AGAINST THE ORDER DATED 05.06.2017 IN OA NO.36 OF 2015 OF TRIBUNAL FOR ECOLOGICALLY FRAGILE LANDS CASES,KOZHIKODE** **-----** ## **APPELLANTS/RESPONDENTS:** - **1 THE STATE OF KERALA REP. BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** - **2 THE CUSTODIAN OF VESTED FOREST, OLAVAKKODE, PALAKKAD DISTRICT(NOW THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS & THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM).** - **3 DIVISIONAL FOREST OFFICER FOREST DIVISION, KOZHIKODE.** - **4 FOREST RANGE OFFICER PERUVANNAMOOZHI RANGE.** ## **BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. (FOREST)** ## **RESPONDENTS/APPLICANTS** : - **1 A. PREMAKUMARI D/O. T.V. RAGHAVAN, POZHICKAL HOUSE, KANCHIUKULANGARA P.O, CHERTHALA-688 544.** - **2 A. PRASOBHA D/O. T.V. RAGHAVAN, VELLAPPALLY HOUSE, KANCHIUKULANGARA P.O, CHERTHALA-688 544.** 2024:KER:60129 **MFA (FOREST) NO. 129 OF 2017 -2-** **==> picture [58 x 57] intentionally omitted <==** ## **3 DILEEP KUMAR K.T S/O. T.V. RAGHAVAN, DILEEPSADANAM, KANCHIUKULANGARA P.O, CHERTHALA-688 544.(DIED)** **[IT IS RECORDED THAT RESPONDENTS 8 TO 10 ARE THE LEGAL HEIRS OF THE DECEASED 3RD RESPONDENT AS PER ORDER DATED 04/07/2019 IN I.A. NO. 1/2019 IN MFA(FOREST) NO. 129/2017]** - **4 A. PRASANNAKUMARI** **D/O. T.V. RAGHAVAN, 48/347, VRINDAVANAM, PERANDOOR ROAD, ELAMAKKARA, COCHIN-682 026.** - **5 A. SULOCHANA** **D/O. T.V. RAGHAVAN, KOLLADICKAL HOUSE, S.N.PURAM P.O, CHERTHALA-688524.** - **6 A. GIRIJAKUMARI D/O. T.V. RAGHAVAN, DWARAKA, NEAR IOC PUMB, PACOOR, VANCHIYOOR P.O, THIRUVANANTHAPURAM-695 035.** - **7 K.R. AKSHAJ S/O. K.R.RAVEENDRANATHAN, KANCHIUKULANGARA P.O, CHERTHALA-688544.** - **8 INDIRA W/O. LATE DILEEP KUMAR K.P, DILEEPDASAN, KANCHIUKULANGARA P.O, CHERTHALA-688 544.** - **9 DAYANA D/O. DILEEP KUMAR, DILEEPSANDAN, KANCHIUKULANGARA P.O, CHERTHALA-688 544.** **10 DEEPAK S/O. DILEEP KUMAR, DILEEPSADAN, KANCHIUKULANGARA P.O, CHERTHALA-688 544.** **BY ADVS. SMT.APARNA RAJAN SRI.P.RAVINDRAN SR. SRI.SREEDHAR RAVINDRAN SMT.LAKSHMI RAMADAS SMT.LIZA MEGHAN CYRIAC** **THIS MFA (FOREST) HAVING COME UP FOR HEARING ON 08.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2024:KER:60129 **==> picture [57 x 58] intentionally omitted <==** ## **SATHISH NINAN & JOHNSON JOHN, JJ.** **= = = = = = = = = = = = = = = = = = M.F.A.(Forest) No.129 of 2017** **= = = = = = = = = = = = = = = = = = Dated this the 8[th ] day of August, 2024** **J U D G M E N T** ## _**Sathish Ninan, J.**_ Order of the Forest Tribunal declaring the application schedule property as not an ecologically fragile land under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as “the EFL Act”), is under challenge by the State. 2. The application schedule property is 40.90 hectares of land described as situated in Sy. No.902(part), of Chakkittapara village. Ext.B1 notification dated 31.10.2000, was issued notifying the land as ecologically fragile land under the EFL Act. The original application has been filed seeking a declaration that the schedule property is excluded from the purview of the EFL Act. The claim is that, the 2024:KER:60129 MFA(Forest) No.129/2017 -: 2 :- property is a cardamom plantation. The property was registered as a cardamom estate as per order dated 21.05.1977. There was a proceeding in relation to the same where under, the Tahsildar cancelled the registration. The applicants approached this Court and this Court in W.A. No.325/1987, directed the Tahsildar to re-consider the issue. Thereafter, fresh proceedings were issued granting registration. 3. Subsequently there were proceedings against the property under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (the, “Vesting Act”). The applicants challenged the same before this Court in OP 467/1990. Finding that the property is a cardamom estate, it was held that it cannot be notified as a vested forest. The order was affirmed by the Division Bench in W.A. No.362/1995. Followed by the same, Ext.B1 notification dated 31.10.2000, was issued under the EFL Act. The property being a cardamom plantation, it does not fall within the definition of “forest” under EFL 2024:KER:60129 **==> picture [58 x 57] intentionally omitted <==** MFA(Forest) No.129/2017 -: 3 :- Act, and hence is not an ecologically fragile land thereunder, is the contention. 4. The Tribunal held that the property in question was a cardamom plantation and that after Ext.B1 notification the applicants were not permitted to enter the property and cultivate the same. Accordingly it was held that the property is not “forest” and consequently not an ecologically fragile land under the EFL Act. 5. We have heard Sri.Nagaraj Narayanan, the learned Special Government Pleader on behalf of the appellant and Sri.Lakshmi Narayanan R., the learned Senior Counsel on behalf of the respondents. 6. The points that arise for determination are :- _(i) Is the contention of the appellant with regard to the identity of the schedule property of any substance ?_ _(ii) Is the finding of the Tribunal that the applicants were obstructed by the officials from entering into and cultivating the property, sustainable on the materials ?_ _(iii) Does the schedule property satisfy the definition of forest and ecologically fragile land under the EFL Act ?_ 2024:KER:60129 **==> picture [58 x 57] intentionally omitted <==** MFA(Forest) No.129/2017 -: 4 :- 7. The learned Special Government Pleader raised a contention disputing the identity of the schedule property. We do not think that such a contention is available for the appellant at this stage. As was noticed, the claim of the applicants is that the property is a cardamom estate having an extent of 4.90 hectares, situated in Sy. No.902 of Chakkittapara Village. Ext.B1 is the notification under the EFL Act. Item No.41 therein is the scheduled property. The survey number is shown as 902(part) and the extent of property as 40.47 hectares. Though in the application, the survey number of the property was originally shown as 912 it was subsequently corrected as 902. As noted above, there was an earlier proceeding with regard to the registration of the cardamom plantation. Pursuant to the directions by this Court in Ext.A4 judgment in W.A. No.325/1987, the Tahsildar granted registration to the property. This was followed by proceedings under the Vesting Act. In Ext.A5 judgment in OP 467/1990, as 2024:KER:60129 **==> picture [58 x 57] intentionally omitted <==** MFA(Forest) No.129/2017 -: 5 :- affirmed in Ext.A6 judgment in W.A. No.362/1995, the property was held to be a cardamom estate and not a vested forest. It is thereafter that the present notification Ext.B1 was issued. 8. Throughout the earlier proceedings the claim was that the property is a cardamom plantation. In the present O.A. the State took out a Commission to inspect the property. There was no dispute with regard to the identity. In the light of the facts as above, it is too late for the State to now challenge the identity of the property. The point is thus answered against the appellant. 9. It is the contention of the applicants that, Exts.A5 and A6 judgments of this Court which held that the property is not a vested forest under the Vesting Act, was followed by Ext.B1 notification under the EFL Act on 31.10.2000. Thereafter they were obstructed by the officials from entering into the property. 2024:KER:60129 **==> picture [58 x 57] intentionally omitted <==** MFA(Forest) No.129/2017 -: 6 :- 10. Exts.C1 and C1(a), the reports of the Commissioner and expert obtained in the O.A. reveal that, at the time of their inspection in the year 2016, no cardamom plants could be seen in the property. It was reported that the property predominantly support natural vegetation. The photograph produced along with the report revealed the property to be a forest. 11. It is the case of the applicant that, after Ext.B1 notification in the year 2000 they were not permitted by the authorities to enter into the property. It is to be noticed that, challenging the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance No.16 of 2001 as unconstitutional, the claimants had approached this Court in O.P. 9552/2001. In the said original petition an interim order was passed on 20.03.2001, protecting the possession of the applicants over the property. Thereafter the applicants had moved IA 7048/2004 in the said original petition to restrain the State and officials from obstructing the 2024:KER:60129 **==> picture [58 x 57] intentionally omitted <==** MFA(Forest) No.129/2017 -: 7 :- applicants from conducting agricultural operations in the property. The prayer was granted as per Ext.A8 order dated 26.07.2004. Subsequently the original petition was disposed of by this Court on 24.05.2006, leaving open the right of the petitioners to challenge the EFL Act which had in the meantime come into force. 12. Thereafter the applicants filed W.P.(C) No.15010/2007, challenging the EFL Act. In the said writ petition the applicants prayed for an interim order to restrain the State and its officials from interfering with their peaceful possession and enjoyment of the property. In the writ petition, on 25.07.2007, an interim order was granted as under, _“There would be an interim direction to the respondents not to obstruct the petitioners from carrying out normal agricultural operations in the cardamom estate in the possession of the petitioners until further orders. It is made clear that apart from carrying out agricultural operations, petitioners shall not cut or remove trees, or cause any destruction to the property.”_ 2024:KER:60129 **==> picture [58 x 57] intentionally omitted <==** MFA(Forest) No.129/2017 -: 8 :- This was followed by an order dated 06.07.2009, directing the Village Officer to accept basic tax in respect of the property. The writ petition was disposed of on 15.07.2015 rejecting the challenge against the EFL Act, and relegating the applicants to the Tribunal. It is thereafter that the present O.A. has been filed. 13. From the above, what needs to be noted is that, ever since Ext.B1 notification dated 31.10.2000, there were writ petitions and writ appeals before this Court, wherein there were interim orders protecting the possession and agricultural operations of the applicants. Till the filing of the present O.A. there was no complaint by the applicants before the Court or any authorities that, disregarding and violating the orders of this Court they were kept out of possession by the officials. If there was any such obstruction, there is no reason why the applicants would not have moved this Court and sought for appropriate directions. Here it is to be noticed that, this Court had while passing 2024:KER:60129 **==> picture [58 x 57] intentionally omitted <==** MFA(Forest) No.129/2017 -: 9 :- interim orders in OP 9552/2001 and W.P.(C) No.15010/2007, took note of the contention of the applicants that they are in possession of the property. Therefore, the claim in the O.A. that, since Ext.B1 notification in October, 2000 they were kept out of possession of the property, resulting in natural growth of trees in the property, cannot be accepted. 14. The learned Senior Counsel appearing for the respondents-applicants placed strong reliance on the absence of cross-examination of PW1, when in his chief examination he had deposed about instances of obstructions allegedly caused by the officials. However, in the light of the overwhelming circumstances noticed supra, the mere absence of cross-examination regarding such incidents, by itself is not sufficient to conclude that the applicants were kept out of the property. 15. The applicants endeavour is to take shelter under the judgment of this Court in _**State of Kerala v. Kumari Varma 2011 (1) KLT 1008,**_ wherein it was held that, when the 2024:KER:60129 **==> picture [58 x 57] intentionally omitted <==** MFA(Forest) No.129/2017 -: 10 :- authorities obstruct the claimants from cultivating the property, the State cannot be heard to say that the claimants had abandoned cultivation and their intention to cultivate. However, as noticed hereinbefore, in the case at hand there is no material to find that the applicants were obstructed by the officials from entering the property. On the contrary the proceedings before this Court would indicate that the claim of the applicants throughout was that they are in possession of the property. The interim orders passed by this Court also acknowledges the same. The finding of the Tribunal that the applicants were obstructed from entering the property resulting in the natural growth, is thus unsustainable. 16. The nature of the property as revealed by Exts.C1 and C1(a) reports is that of a forest. But for the claim that the property in question is a cardamom plantation which is excluded from the definition of forest under the EFL Act, there is no other ground urged 2024:KER:60129 **==> picture [58 x 57] intentionally omitted <==** MFA(Forest) No.129/2017 -: 11 :- to claim that the property is not an ecologically fragile land. 17. The claim of the applicants that the cause for the existing nature of the property as a forest was the obstruction by the authorities, having been negatived, the declaration sought for by the applicants that the schedule property is not an ecologically fragile land under the EFL Act, is only to be rejected and we do so. The O.A. is thus liable to be dismissed. Resultantly, the appeal is allowed. The impugned order is set aside. The OA will stand dismissed. No costs. Sd/- **SATHISH NINAN JUDGE** Sd/- **JOHNSON JOHN JUDGE** kns/- //True Copy// P.S. To Judge