MFA (Forest) No. 57 of 2013

**CR** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 17[TH] DAY OF JANUARY 2023 / 27TH POUSHA, 1944** ## **MFA (FOREST) NO. 57 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OA 1/2008 OF THE KERALA FOREST** **(VESTING AND FMANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, KOZHIKODE/ADDITIONAL DISTRICT COURT, KOZHIKODE / I** ## **ADDITIONAL MACT, KOZHIKODE** ## **PETITIONERS:** - 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM. - 2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS AND CHIEF CONSERVATOR OF FORESTS FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY SRI NAGARAJ NARAYANAN SPECIAL GOVERNMENT PLEADER(FOREST) ## **RESPONDENTS:** - 1 GEORGE JACOB, S/O.THOMAS CHACKO, RESIDING AT 259, 3RD CROSS, IST MAIN, DOMALLUR, BANGALORE-560 071. - 2 CHACKO CHACKO, PLAKKATTU HOUSE, MAMMOODU.P.O., CHANGANASSERY, KOTTAYAM. 686 553. - 3 JOJI JACOB, PLAKKATTU HOUSE, MYLAPRA.P.O., PATHANAMTHITTA-689 671. - 4 ANTO JACOB, PLAKKATTU HOUSE, ADOOR.P.O., PATHANAMTHITTA-691 523. (DIED) ADDL RESPONDENTS IMPLEADED. - 5 MATHEW JACOB, PLAKKATTU HOUSE, KALATHIPADY.P.O., KOTTAYAM. 686 010. MFA(F) 57/2013 2 - 6 SHAJI JACOB, PLAKKATTU HOUSE, EDAMON.P.O., RANNI, PATHANAMTHITTA-691 307. - 7 ROSAMMA DEVASSIA, NEDUMATTAM HOUSE, PAKALAMATTAM.P.O., KURUVILANGADU, KOTTAYAM. 686 642. - 8 BETTY PRINCE, PUDUMA HOUSE, VAKAYAR.P.O., KONNI, PATHANAMTHITTA. 689 698. - 9 LISSY BOBY, CHERUKKADAVU HOUSE, THIRUTHY.P.O., CHANGANASSERY, KOTTAYAM. 686 535. - 10 MERCY CHACKO, PALAKKUNNEL HOUSE, MAMMOODU.P.O.,KOTTAYAM DISTRICT. 686 553. - 11 KUNJIMOL THOMAS, W/O.LATE THOMAS JACOB, PLAKKATTU HOUSE, PAYYANAMAN, PATHANAMTHITTA DISTRICT. 689 692. - 12 JACOB, S/O.LATE THOMAS JACOB, PLAKKATTU HOUSE, PAYYANAMAN, PATHANAMTHITTA DISTRICT. 689 692. - 13 LISA PRAVEEN, D/O.THOMAS JACOB, ALAPPATTU PALATHINGAL, AVENUE ROAD, THRISSUR. 680 001. - ADDL.R14 CLARAMMA ANTO,W/O.SHRI.ANTO JACOB PLAKKAT HOUSE, OMALLUR.P.O., PATHANAMTHITTA -689 647. - ADDL.R15 SHRI.JACOB ANTO,S/O.SHRI.ANTO JACOB, PLAKKAT HOUSE, OMALLUR.P.O., PATHANAMTHITTA- 689 647. - ADDL.R16 SMT.LEENA ANTO,D/O.SHRI ANTO JACOB, PLAKKAT HOUSE, OMALLUR.P.O., PATHANAMTHITTA- 689 647. THE LEGAL REPRESENTATIVES OF THE DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 14 TO 16 AS PER ORDER DATED 21.8.19 IN IA NO.1953/2018. **THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MFA(F) 57/2013 3 **CR** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. -------------------------------------M.F.A.(Forest) No.57 of 2013 ----------------------Dated : 17[th] January, 2023 JUDGMENT** ## **K.Vinod Chandran, J.** The Tribunal by the impugned order, in an application made before it under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity 'the EFL Act'), set aside Ext.A22 order of the Custodian, and remanded the matter to the Custodian to consider the matter afresh, without reference to Ext.A21 report and confining the consideration to the question as to whether the predecessor-in-interest of the applicants were cultivating coffee plants in the land under valid authority as provided under Sec.3(2) of the Ordinance 6/2000. 2. In the O.A, evidence was led and when the matter was taken up for hearing, the applicants filed I.A 49/2012 challenging the rejection of an application filed before the Custodian under Sec.19(3) (b) of the EFL Act. The Custodian, based on a report of the Committee constituted under Rule 18 of Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Rules, 2007 (for brevity 'the Rules of 2007'), Ext.A21, rejected the petition which sought de-notification of the lands, MFA(F) 57/2013 4 notified under the Ordinance. The application itself was filed in the year 2006 after Act 21 of 2005 was enacted, which was the EFL Act. The Tribunal found that the Custodian has to consider the issue _de hors_ Ext.A21 report and remanded the matter relying on **Majeed v. State of Kerala (2012 1 KLT 965)** . 3. At the time of the application itself, the EFL Act had come into force and there was statutory vesting of such lands defined as ecologically fragile lands under Sec.2(b) (i) , which statutorily occur as per Section 3(1) of the EFL Act, the appointed day of which was 2.6.2000. It is trite that vesting as per Sec.3(1) occurs statutorily, is automatic and does not depend upon a notification even under the Act. The Ordinance of 2000 under which the notification was brought out, is no more in force and the transitory provision preserves the rights and liabilities accrued or incurred there under and permits continuation of the legal proceedings and remedies available, in so far as they are not inconsistent with the provisions of the Act. As per the EFL Act, Sec.10, which was invoked by the applicants, requires the resolution of disputes raised before the Tribunal which relates to whether the land notified stands vested or not, as an ecologically fragile land. The Tribunal relied on **Majeed** (supra) wherein it was declared that when a notification is issued under the Ordinance, the consideration as to whether the notification is proper or not under Sec. 19(3)(b), has to be looked at based on the definition of MFA(F) 57/2013 5 ecologically fragile land in the Ordinance and the nature of lands vested under the Act, can only be those, clearly enabled vesting under the Ordinance. 4. At the outset it has to be observed that, the Tribunal does not sit in appeal of the order of the Custodian under Section 19(3)(b) and the cited decision is in a Writ Petition under Article 226 of the Constitution of India; which power the Tribunal lacks. **Majeed** (supra) was almost in similar circumstances wherein the writ petitioner had moved an application under S.19(3)(b) of the Act before the Custodian, for de-notifying their lands, on the ground that the entire land was a cardamom plantation, which cannot be vested under the Government as per the Ordinance. The declaration in the said judgment was specifically noticing the different definitions of 'forest' as occurring in the Ordinance and the EFL Act. As per the Ordinance, 'ecologically fragile land' was defined as forest land lying contiguous or encircled by reserved forest, vested forest, or forest owned by Government, predominantly supporting natural vegetation, which is the identical definition in the EFL Act also. However the definition of 'forest' in the Ordinance took within its ambit all lands covered with trees and undergrowth including statutorily recognised to designated as reserved, protected or otherwise lying as forests. In the EFL Act there was a further exclusion provided from the definition of 'forest'; lands which were principally cultivated with MFA(F) 57/2013 6 specified long duration crops and sites of residential buildings. Such an exclusion was available in the Ordinance in sub-clause (2) of Clause 3; being lands cultivated with coffee and cardamom held by an owner under valid registration for the plantation, raised after obtaining due permission from legally competent authorities. The reasoning in **Majeed** (supra) was that while the EFL Act specifically provided for principal cultivation of long duration crops for the purpose of exclusion, the Ordinance requires mere cultivation of coffee or cardamom. 5. We are unable to agree with the aforesaid proposition, especially in the context of lands which were absolved under the Ordinance, were to be cultivated with coffee or cardamom, in the nature of a plantation raised with due legal permission obtained. A scanty presence of some plantation crops or minimal areas of the total land being cultivated with plantation crops, would not enable such exclusion being granted and there should be substantial cultivation even under the Ordinance for the purpose of excluding lands from vesting. The words employed in the definition under the EFL Act, of principal cultivation of crops of long duration, was employed, as an abundant caution. The intention in the Ordinance, is also very clear and what was sought to be absolved from vesting, was those plantations of coffee and cardamom raised with due sanctions required. This also has to be understood in the context of the intention behind the Ordinance and the subsequent MFA(F) 57/2013 7 enactment; which was environment protection, enabling exemption from vesting only to plantations. While in the Ordinance, only two long duration cops were specified, in the Act many more were included. 6. Now we look at S.19 of the EFL Act which validates the actions taken under the earlier Ordinance and makes transitory provisions. There were four Ordinances before the enactment, which were respectively Ordinance No. 6 of 2000, 8 of 2000, 3 of 2001 and 16 of 2001. All these Ordinances contained provisions, validating the actions taken or deemed to have been taken under the earlier Ordinances. Sec.19 of the Act, referred to the last of such Ordinances which, by virtue of the transitory provisions in the earlier Ordinances, validated all actions taken or deemed to have been taken under the earlier Ordinances. Sec. 19(1)(a) provides that all ecologically fragile lands vested in the Government under the Ordinance, shall be deemed to be vested under the Act, if it is not inconsistent with the provisions of the Act. The declaration in **Majeed** (supra) was insofar as a cardamom or coffee cultivation, even if not substantially or principally cultivated in the land, being absolved from vesting under the Ordinance, thus putting at naught the notification under the Ordinance. If the interpretation was so, definitely the consequence would also be an exclusion from vesting, since only lands vested validly under the Ordinance, would be enabled of being deemed to have vested under the enactment, if the vesting also is consistent with the MFA(F) 57/2013 8 provisions of the Act. 7. For example, a tea plantation was not absolved from vesting in the earlier Ordinance which was exempted when the statute came into force. Hence when the Act comes into force, an owner of a tea plantation which was notified under the Ordinance, would be entitled to seek for exclusion from vesting under the Act before the Custodian. Likewise, if a land was not validly vested under the Ordinance and it could be vested under the provisions of the Act, the notification issued under the Ordinance will necessarily have to be withdrawn. However in that circumstances, Sec.19(3)(b) comes into play and the Custodian, _suo motu,_ is empowered to revise and issue a notification, in accordance with the provisions of the Act _._ As we noticed, the interpretation given to the provision in the Ordinance, so as to absolve lands cultivated with cardamom or coffee, however scanty the cultivation be, without the requirement of the lands being cultivated substantially or principally with such plantation crops; with due respect cannot be accepted. What is exempted from vesting under the Ordinance, were plantations of coffee and cardamom raised with due permissions from the authorities; which plantations can only be lands cultivated, substantially or principally with coffee or cardamom. 8. In **Majeed** , as in this case, the invocation of R.18 of the Rules of 2007 by the Custodian, was found to be improper, since the same MFA(F) 57/2013 9 could apply only to applications under R.17. While it was held that the Custodian has the jurisdiction to make an enquiry, the invocation of the statutory provision, which was not available on the date of the application, was found to be bad. With due respect, we cannot agree with the aforesaid declaration also, especially looking at the facts that arise in this case, which we find to be identical to that in **Majeed** , except for the fact that, in **Majeed,** the claim of the owner who approached the Custodian under Sec. 19(3)(b) was that the entire land notified under the Ordinance was a cardamom plantation. 9. In the present case, Ext.A21 is the note on joint inspection carried out by the Divisional Forest Officer, Kozhikode, the Working Plan Officer, Kozhikkode and the Technical Assistant of the Conservator of Forests and Ext. A22 is the order passed by the Custodian. When the Custodian is empowered to make an enquiry, as has been held in **Majeed** (supra), it is also competent for the Custodian to carry out such enquiry through an authorised officer or team of officers of the Forest Department. In that circumstances merely because R.18 was invoked, does not set at naught the proceedings since the report is one filed by the Officers authorised by the Custodian, who also carried out physical inspection of the lands in the presence of the owners. The note on joint inspection also brings out the nature and status of the lands with field inspection details. MFA(F) 57/2013 10 10. The owners had obtained orders from the High Court in an Original Petition under Article 226 permitting agricultural operations to be carried out without cutting or removing trees from the land in question. A later writ petition seeking direction to carry out cutting and removal of shrubs etc., was directed to be considered as and when such applications are filed, based on which the Conservator of Forests directed the team of Officers to carry out an inspection of the lands and file a report. The field inspection details in the report are as below: “The area appears to be a portion of Moist Deciduous type of Forests. Some of the natural tree species found in the area are Sleichera oliosa, Ficus sp, Cinnamomum sp, Machilus sp, Macaranga sp, Mallotus sp, Polyalthiya fragrance, Elaeocarpus sp, Strich nos nuxvomica, Antiaris toxicaria etc. Some portion is densely wooded and other area is densely covered with seedlings, saplings, poles etc of various tree species and with climbers, bushes and under growth. Signs of cultivation carried out for the past 10-15 years are not seen in the area. It is a habitat of wild elephants, deers, reptiles, birds etc and it is rich in Bio-diversity. It is a part of the catchments of the stream called “Kodappady thodu” which drains into “Thottilpalam puzha” which in turn drains into Kuttiady puzha. Rocks and granite boulders are seen in many portions. Total number of trees and pole crops are found to be more than 3000 per ha, in some portions, besides a lot of seedlings and saplings. Almost entire area, expect 3 small patches are seen MFA(F) 57/2013 11 covered by thick natural vegetation with luxuriant regeneration. Of the 3 patches, one patch of about 0.20-0.30 ha, have some old Coffee plants, of about 2-3 meters in height, without maintenance for past many years. About 35 Arecanut trees of about 15-20 years old are seen in another patch and about 25 Arecanut trees of the same age are seen in the third patches. These 3 patches together appear to have about 0.60 ha in extent. Major portion of the land is with steep slope. The land is a part of western ghat. It is susceptible to land slides, soil erosion etc. The entire area is predominantly with thick natural vegetation. The land is contiguous to Govt. Forestland that supports good tree growth and other Natural regeneration. Therefore the land qualifies the criteria of Ecologically Fragile Land as per section 3(1) of the Act, 21 of 2005. 14 photographs of the area at different locations are enclosed.” 11. Ext.A22 relied on this field inspection report and found that the entire area is predominantly existing with thick natural vegetation and that there was only scanty presence of coffee, which plants were only of 2 to 3 meters height, remaining without any maintenance that too only in an extent of 0.20 to 0.30 hectares out of a total of 34.40 hectares, owned by the applicants, notified as vested. As we see from the above extract from Ext.A21, the arecanut trees having age of 15 to 20 years are seen only in two patches, which together have only a total extent of MFA(F) 57/2013 12 0.20 to 0.30 hectares and the three patches, including that in which young coffee plants were seen had a total extent of 0.60 hectares. The inspection of the land carried out by the DFO, the Technical Assistant and the Working Plan Officer, who are senior officers of the Department. Merely because the members of the team were also the members constituted under R.18; for that reason alone, cannot be said to be illegal or irregular. The factual aspects noted in the report are above reproach and capable of acceptance as a report filed on due authorisation of the custodian. We find the decision in **Majeed** (supra) to be not good law. 12. Viewed in the above context, we have to look at the notification which was produced as Ext.B1 dated 31.10.2000. Obviously the same is under Ordinance 8 of 2000 and there being no coffee plantation as such, existing even at the time of the Ordinance and the notification; there is proper vesting of lands under the Ordinance. The scheduled lands, hence are deemed to have vested under the Act also, since such vesting is perfectly in accordance with the provisions of the EFL Act. Here we have to observe that, even if it were otherwise, the Custodian is empowered to revise and issue a fresh notification in accordance with the provisions of the EFL Act under Sec. 19(3)(b); which we find in this case to be not required. We hence remand the matter for consideration afresh based on the evidence led before the Tribunal. 12. We make it clear that there is no further scope for any MFA(F) 57/2013 13 evidence, especially since Commissions have been taken out and reports filed. We remind the Tribunal that the factual situation of cultivation would have to be decided as on the appointed day, which is 02.06.2000. The case shall be restored to the files of the Tribunal and only since there was no appearance for the respondents/applicants before the Tribunal in this Court, we direct the Tribunal to issue notice to the respondents and after affording an opportunity for hearing, dispose off the matter. We find the impugned order in IA 49/2012 to be erroneous and illegal and set aside the same, along with the other orders of remand passed by the Tribunal, impugned in this appeal. We direct the Tribunal to restore the matter to its file and consider the issue in accordance with law, as provided under Sec.10 of the EFL Act, _de hors_ the observation made by us herein regarding Ext.B1 notification; which only is with respect to its validity under the Ordinance. The appeal stands allowed, with the above observations and directions. Parties are left to suffer their respective costs. **==> picture [85 x 12] intentionally omitted <==** ## **K.VINOD CHANDRAN, JUDGE** ## **Sd/-** ## **C.JAYACHANDRAN, JUDGE** **Mrcs/jma**