MFA (Forest) No. 84 of 2015

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 ``` ``` MFA (FOREST) NO. 84 OF 2015 ``` ``` AGAINST THE ORDER DATED 18.08.2015 IN O.A NO.7/2010 OF THE ``` ``` FOREST TRIBUNAL, PALAKKAD ``` ## `- APPELLANT/APPLICANT :` ``` A.C CHUMMAR SON OF A.C. CHAKKU, AKKARA HOUSE, OLLUR, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI.V.M.KURIAN SRI.ISAC T.PAUL SRI.MATHEW B. KURIAN SRI.K.T.THOMAS ``` ## `- RESPONDENTS/RESPONDENTS :` ``` 1STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. ``` ``` 2THE CUSTODIAN OF VESTED FOREST APPOINTED UNDER THE KERALA FOREST VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LAND ACT, 2003 AND THE PRINCIPAL CONSERVATOR OF FORESTS, THIRUVANANTHAPURAM - 695 001. ``` ``` 3THE DIVISIONAL FOREST OFFICER NILAMBUR NORTHERN DIVISION, NILAMBUR - 679 329. ``` ``` BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ``` ``` THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MFA (F) No.84/2015** ``` - 2 - ``` K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ----------------------------------------------------------M.F.A.(Forest) No.84 of 2015 --------------------------------------------------------Dated this 17[th] day of March, 2023 ## JUDGMENT ## K.Vinod Chandran, J. The appellant is concerned with 75 acres of un-surveyed land in the Akampadam Village, obtained as per Ext.A1 deed, which is asserted to be a cardamom plantation as on 2000. The appellant having approached the High Court against the restriction of felling trees by a notification under the Kerala Preservation of Trees Act, 1986; allegedly an interference caused to the enjoyment and possession of the plantation by the Forest Officials, was relegated to the Tribunal constituted under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2005 (for short 'the EFL Act). The Tribunal rejected the claim of the applicant and hence the appeal before us. 2. The Divisional Forest Officer, Nilambur, North Division filed written statement contending that the subject property included as VFC item No. 5 & 40 is surrounded by semi- **MFA (F) No.84/2015** ``` - 3 - ``` evergreen forest. The vegetation in the property and the adjacent forest is similar, and both are inhabited by various species of carnivores and herbivores. Even earlier, the area was notified under Section 5 of the Kerala Preservation of Trees Act and on the enactment of the EFL Act it qualifies as an ecologically fragile land capable of statutory vesting under the Act. Interference to the possession and enjoyment was caused only when the applicant attempted clearing of trees, which was prohibited under the Kerala Preservation of Trees Act, 1986. There are a number of forest species trees in the property, which lies at a height of 3000 feet above mean sea level with an average slope of 30[0] . The area is rich in biodiversity and is a habitat for various species of flora and fauna and it supports natural vegetation which exists predominantly in the property. 3. The Tribunal found that despite the title deed having described the property as a cardamom estate and a registration having been obtained with the Cardamom Board, there is nothing to show principal cultivation of cardamom. An expert, PW2 who is said to have visited the property in 2004 though first stated that the entire property is a cardamom plantation, in cross- **MFA (F) No.84/2015** ``` - 4 - ``` examination he said that he visited only 2 fields out of the total 6 fields. The Advocate Commissioner who visited the property at the instance of the respondent noticed only 5 cardamom trees but there were trees existing of age 60-80 years. While the adjacent properties had thick trees, the Commissioner could not notice any such trees in the disputed land. State of Kerala v. Kumari Varma [2011(1) KLT 1008] was held to be not applicable in the facts of the case, since evidently there was a cardamom plantation existing which had been abandoned by the applicant and the probability was that it stood as an abandoned plantation on 02.06.2000, the appointed day under the EFL Act, especially since there was no specific evidence to understand the state of affairs as on that date. Reliance was placed on the observation in Ext.A13 judgment that the land is a virtual forest. Ext.A12 counter affidavit filed by the Divisional Forest Officer, South Nilambur and Ext.A11 order of the Divisional Forest Officer, North Division were rejected peremptorily. The application was rejected on the above reasoning . 4. Shri.K.T.Thomas, the learned Counsel for the appellant took us through the various documents which indicates that after **MFA (F) No.84/2015** ``` - 5 - ``` Ext.A1 deed, the property was constantly under cultivation and specifically relies on the various documents indicating remittance of plantation tax. Specific reference is made to Ext.A12 where the Divisional Forest Officer had found cardamom plantation, especially after a physical inspection. The statement in Ext.A13 judgment was not a finding and was just a casual observation. Admittedly, there was interference caused to the possession of the land and it was not surprising that the land was found to be existing in an abandoned state, the Forest Officials having taken over the property. The Commission was taken out by the Forest Department and it is unbelievable that there were only 5 cardamom trees existing in the property. The Commissioner's testimony in fact indicates that the land does not lie as a forest land. 5. Shri.Nagaraj Narayanan, the learned Special Government Pleader (Forests) emphasizes the report of the Commissioner that there were only 5 cardamom trees existing in the property. Though the physical inspection carried out by the Commissioner was in 2015, if there was a cardamom plantation existing as of 2000 definitely there would be more plants seen in **MFA (F) No.84/2015** ``` - 6 - ``` the property. It is pointed out that there can be no reliance placed on the various documents to find the existence of a cardamom plantation for which there should be some physical evidence. State of A.P. v. M/s. Star Bone Mill & Fertiliser Co. [2013(9) SCC 319] is relied on to buttress the above contention. It is pointed out that Ext.A12 was by the Divisional Forest Officer and there can be no concession by anybody other than the Government or the Custodian insofar as the nature of the land being a forest land or otherwise, under the EFL Act. It is pointed out that the Tribunal on probabilities have found the land to be existing as an ecologically fragile land on the appointed day under the Act. When there are two reasonable views possible, the original authority having taken one such view, it is not proper for the appellate authority to substitute the reasonable view taken by the first authority. It is asserted that the land lies as a forest land and is capable of vesting under the EFL Act. 6. The application was filed in the year 2010 and prior to that the applicant had approached the High Court with a writ petition, wherein the petitioner sought for cutting and removing large number of trees for the purpose of converting the plantation **MFA (F) No.84/2015** ``` - 7 - ``` from that of cardamom to rubber, since the former crop was not viable financially. The learned Single Judge first noticed that from the application, the petitioner seems to have only a possession certificate towards title and the extensive number of trees shown in the list attached, establishes beyond doubt that the land is a virtual forest. We have to first notice that insofar as the title, petitioner had produced Ext.A1 before the Tribunal, which is not seriously disputed by the respondent Forest Authorities. We called for and perused the Judges Papers of the writ petition wherein also the sale deed was produced as Ext.P1. As for the observation regarding the property being a virtual forest, the issue did not arise before the learned Single Judge and there is no consideration of any material other than the number of trees sought to be cut and removed. In fact, the specific contention of the applicant was regarding the felling of trees, requested for conversion of the plantation from cardamom to rubber; the first of which requires a number of shade trees intermingled with the crop. The only hurdle for carrying out the conversion was by reason of the notification under the Preservation of Trees Act, which prohibited the cutting of trees. In **MFA (F) No.84/2015** ``` - 8 - ``` this context, we also notice the counter affidavit filed in the above writ petition by the Divisional Forest Officer, South Nilambur. It was categorically stated that the area was a cardamom plantation and has cardamom registration, but due to mismanagement plants are seen only in isolated patches. It is obvious that the non maintenance of the plantation was on account of the desire to convert the cultivation from cardamom to rubber; which however was later to the appointed day. 7. The notification under Section 5 of the Kerala Preservation of Trees Act is produced which was dated 26.11.1985. The counter affidavit in the writ petition resisted the prayer for cutting of trees on grounds of creation of environmental problems like soil erosion, landslide etc. while the applicant required cutting off trees for the purpose of planting rubber. The respondent Forest Department alleged that it was with intention to earn profit on the sale of timber and dispose the land after cutting it into small pieces. In this context, we also have to notice Ext.A11 order of the Divisional Forest Officer dated 19.04.2004. Ext.A12 was pursuant to a permission sought for cutting 35 miscellaneous trees standing in an area of 36.44 hectares of **MFA (F) No.84/2015** ``` - 9 - ``` cardamom estate. The Divisional Forest Officer is said to have made personal inspection and verification through the Range Officer, Edavana and it was convinced that a cardamom plantation, notified under Section 5 of the Kerala Preservation of Trees Act was existing. Forty trees mentioned in the list were found to be either dead or deceased, which were allowed to be felled with the further condition that the timber would not be removed from the stump site without obtaining transmit permit under the Preservation of Trees Rules and an equal number of felled trees of the same species are planted in the area. Even the total number of trees sought to be felled was not fully allowed. 8. It is very evident from the notification itself that from 1985 the notification under the Preservation of Trees Act was in force and there would have been caused difficulties to properly maintain the land; but in 2004 on a physical inspection, the Divisional Forest Officer has found a cardamom plantation existing in the property; atleast to such extent enabling it to be called a cardamom plantation, which is the requirement of principal cultivation. Obviously, there cannot be cardamom planted in every inch of the property and it is common knowledge **MFA (F) No.84/2015** ``` - 10 - ``` that cardamom requires shade trees and that explains the trees present in the property. We do not find any concession having been made under the EFL Act by the Divisional Forest Officer through the order passed under the Preservation of Trees Act. The order passed under that enactment is by a statutory authority empowered to pass such order and it cannot be treated as a concession made under the EFL Act. The empowered authority had made the said order after a physical inspection and the same cannot be rejected lightly as a concession made. 9. In this context, we look at the documents placed on record. Ext.A7(a) to (f) are very relevant, the first of which is a notice dated 25.03.1982, of assessment and demand under the Kerala Plantation (Additional Tax) Act, 1960 for 75 acres of cardamom; which was immediately after the purchase of the property by the applicant in 1981. Ext. A7(b) is again a notice of assessment and demand under the very same enactment for the 5 year period between 1996-1997 to 2000-2001, for the yielding cardamom plants found appropriately in 38.4544 hectares of land. Ext.A7(c) is a notice issued by the Plantation Deputy Tahsildar dated 01.12.2000 intimating the physical inspection to **MFA (F) No.84/2015** ``` - 11 - ``` be conducted in the plantation land on 05.12.2000. Ext.A7 (d), (e) and (f) are receipts of remittance of plantation tax on 17.08.2000, 21.06.2001 and 29.11.2002. Ext.A10 likewise is the remittance of plantation tax on 29.11.2002. These documents clearly indicate the presence of a plantation and also the remittance of plantation tax before, through and after the appointed day. Ext.A8 again is the pre-assessment notice for the year 2000-2001 under the Agricultural Income Tax Act. We would not place any reliance on the same since the notice has been issued in 2009, after the dispute between the Forest Department and the applicant commenced. Ext.A8 even if assumed as one procured after the dispute commenced, ExA7 series of documents cannot be said to be procured by the applicant. 10. Ext.A9 is a building tax receipt dated 22.10.1984. Ext.A2 is a location plan issued by the Village Officer, Akampadam on 28.06.2001 showing the cardamom estate enclosed by reserve forests. The Tahsildar, Manjeri has issued Ex.A3 certificate dated 03.02.1986, that the land is registered as a cardamom estate on which there is a ban imposed on cutting and removing the standing trees. Ext.A4(b) is the proceedings of **MFA (F) No.84/2015** ``` - 12 - ``` the Director/Deputy Director of Cardamom Board sanctioning subsidy to the applicant, the date of which is shown as 06[th] May without the year; which year is available in the number issued to the proceedings, seen as 1984. Ext.A5 is the certificate issued by a Retired District Town Planner dated 28.01.1979 making an assessment of the expenses for construction of labour lines, road and implementation of irrigation and soil conservation systems. The cumulative inference possible from the aforesaid documents is that the property was remaining as a plantation before, through and after the appointed day under the EFL Act. 11. We are not convinced that the probability as stated by the Tribunal is one which arises from the evidence placed before the Tribunal. We find no application of the decision cited by the learned Special Government Pleader, in M/s. Star Bone Mill & Fertiliser Co. (supra,) s ince here the acceptance of tax and the assessment made is not put forth as a claim to title, which stands proved by Ext.A1, on which no substantial dispute is raised. True that the adjudication of dispute under the EFL Act, is based on the nature and lie of the land as on the appointed day of vesting, which is 02.06.2000. In an application filed in the year 2010 the **MFA (F) No.84/2015** ``` - 13 - ``` adjudication can only be on probabilities. We have seen that as early as in the 1986, there was a notification issued under the Preservation of Trees Act but despite that cultivation was being carried on and in any event cardamom requires shade trees. The maintenance of the plantation would also require old and deceased trees to be felled and removed and here the applicant after the appointed day wanted to convert the plantation to that of rubber, for which the land had to be cleared of standing trees. The applicant was also before the authorities and this court seeking the cutting of trees. The payment of plantation tax in all the years prior to and some years after the EFL Act is a clear pointer to the fact that there was a cardamom plantation existing in the property as on the appointed day. The documents referred are issued by the tax officer of the revenue department who is enjoined with the task of inspecting and assessing plantation tax, the Village Officer who prepared the sketch after the location visit and even the Forest Official who granted sanction for felling under the Preservation of Trees Act. 12. Now we have to look at the Commission Reports filed by the Commissioner. In Ext.C1(a) report the Commissioner **MFA (F) No.84/2015** ``` - 14 - ``` speaks of a steep climb for about 1.5 Kms which had to be undertaken to reach the disputed land. There is hence no question of selling land after breaking it into small plots. In the land, was a very old building the number of which was not discernible. On the southern and north-eastern side coffee plants were seen. There were cairns on the starting point of the property and coffee plants were planted along the sides in a row, which were yielding and there were also seen ripe coffee berries. The age of the trees was assessed to be 30 years and there were ornamental bush plants on both sides of the road found to be pruned and cut into different attractive shapes. An old building was seen in the property which was a room used for drying cardamom and coffee which was in a dilapidated condition. A jackfruit tree and two guava plants were seen planted around the building. There was a clear passage to the northern side and there were said to be P.V.C pipes laid along the road. However, since there was apprehension of elephants emerging, the inspection had to be wound up. 13. The further inspection report was filed as Ext.C1 wherein the earlier reference to coffee plants were observed to be **MFA (F) No.84/2015** ``` - 15 - ``` germinated in a natural way through scavengers, as stated by the respondent's Counsel. This is quite contrary to the earlier observation that the coffee plants were seen planted along the side of the path in a row with yielding coffee berries on it. Be that as it may, in Ext.C1, silver oak trees were found standing along with the coffee plants having age of 30-35 years. Cement benches and seats were found in front of the building and the surrounding area of the building had fruit bearing trees like guava, lemon, fancy plants and green bush plants. The roads seen towards north and to the south-west were stated to be roads for easy assess to the internal area of the cultivated portions. There were also pebbles and stones laid on the road to prevent soil erosion. 14. The representative of the appellant is said to have shown the Commissioner 5 plants of cardamom and there were no other crops in the said area. This is the statement relied on by the Special Government Pleader and also the Forest Tribunal. Admittedly, from the year 2006, there was obstruction to maintenance and the property was inspected in the year 2015 by the Commissioner. The applicant had also nurtured a desire to convert the plantation to one of rubber. The Commissioner also **MFA (F) No.84/2015** ``` - 16 - ``` speaks of bushes having surrounded the building which also was available in the other parts of the land. The Commission Report spoke of number of trees in the property of intermediate growth with creepers and small shrubs around it. The trees in the undergrowth were found to be lean, tall and shooting especially due to the shade of the old trees standing in the vicinity. The portion of the back of the building was also having coffee plants and there was a wide pathway in the east-west direction. Broken P.V.C pipes were seen in the area and a small stream proceeded in the east-west direction, from which water was sourced with a cast iron hose of 4 inch width. There were regular laying of P.V.C pipes of 4 inch width to carry water and at a distance there were lateral and parallel pipes laid having 3 inches width. The pipes were seen laid for quite a long distance and the Commissioner noticed a 2 inch G.I Pipe being used at the outlet into a mud bund. There was even a pipe laid of 1 inch width to take water into the Adivasi Colony lying on the slope. All these are clear indication of human labour and skill having been employed in the property. The fact that the applicant found cardamom to be not feasible financially and intended conversion of plantation to that of **MFA (F) No.84/2015** ``` - 17 - ``` rubber explains the scanty presence of cardamom plants; which intention is clear from the writ petition filed seeking for felling the trees in the property. However, this does not deter us from falling back upon the documentary evidence to find cardamom plantation as on the appointed day. 15. The Commissioner noticed coffee plants all over the property. The Commissioner specifically noticed the size of the trees and the gap between them were much more in the adjoining forest land, which also had teak trees in abundance; totally absent in the disputed land. Even going by the report of the Commissioner, the land was not existing as a forest land and the trees existing in the property were obviously shade trees, even spaced, which is essential for cardamom cultivation. The presence of 5 trees of cardamom alone cannot be fully accepted also when the Commissioner indicates that the inspecting party did not proceed higher up into the property and also in areas where there were thick shrubs and creepers. 16. From the various documents produced before us and from the description of the property by the various authorities, as available from the documents which are also proximate to the **MFA (F) No.84/2015** ``` - 18 - ``` appointed day, we are convinced that the 75 acres owned by the applicant was not lying as an ecologically fragile land at the time of the appointed day under the EFL Act. We find no reason to uphold the order of the Tribunal and we set aside the same and allow the application filed under Section 10 of the EFL Act. It is declared that the scheduled property is not capable of vesting under the EFL Act as an ecologically fragile land. The appeal stands allowed, leaving the parties to suffer their respective costs. Sd/- K.VINOD CHANDRAN, JUDGE Sd/- ## C.JAYACHANDRAN, JUDGE SMA