M.F.A (Forest) No. 90 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944** ## **MFA (FOREST) NO. 90 OF 2014** **OA 1/2012 OF TRIBUNAL FOR EFL CASES, KOZHIKODE DTD.11.11.2013** ## **APPELLANTS/RESPONDENTS:** **1 GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2 THE CUSTODIAN ECOLOGICALLY FRAGILE LANDS FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM.** **BY Sri.Nagaraj Narayanan, Special Government Pleader (Forests)** ## **RESPONDENTS/APPLICANTS:** - **1 PUTHIYA VEETTIL NARAYANAN * (DIED) ULIKKAL, P.O.MANIPPARA, NACHIAD VILLAGE, THALIPARAMBA TALUK, KANNUR-670 705.** - **ADDL.R2 KALLYANI, W/O.DECEASED NARAYANAN PUTHIYAVEETTIL, NUCHYAD.P.O., ULIKKAL(VIA), PIN- 670 705.** - **ADDL.R3 KUNJIRAMAN, S/O.DECEASED NARAYANAN PUTHIYAVEETTIL, NUCHYAD.P.O., ULIKKAL(VIA), PIN -670 705.** - **ADDL.R4 THAMPAN, S/O.DECEASED NARAYANAN PUTHIYAVEETTIL, NUCHYAD.P.O., ULIKKAL(VIA), PIN -670 705.** - **ADDL.R5 SREEDEVI, D/O.DECEASED NARAYANAN PUTHIYAVEETTIL, NUCHYAD.P.O., ULIKKAL(VIA), PIN -670 705.** - **ADDL.R6 KRISHNAN, S/O.DECEASED NARAYANAN PUTHIYAVEETTIL, NUCHYAD.P.O., ULIKKAL(VIA), PIN -670 705.** - **ADDL.R7 NARAYANAN, S/O.DECEASED NARAYANAN PUTHIYAVEETTIL, NUCHYAD.P.O., ULIKKAL(VIA), PIN -670 705.** - **ADDL.R8 HARIDASAN, S/O.DECEASED NARAYANAN PUTHIYAVEETTIL, NUCHYAD.P.O., ULIKKAL(VIA), PIN -670 705.** - **ADDL.R9 SEETHA, D/O. P.V.NARAYANAN VALIYA VEEDU, PALUKACHIPPARA, KANJILERI.P.O.,MATTANNOOR VIA, PIN- 670 702. ADDL.RESPONDENTS 2 TO 9 ARE IMPLEADED AS THE LRS OF DECEASED SOLE RESPONDENT AS PER ORDER DATED 16/01/23 IN IA 2/19 IN MFA(FOREST)No.90/2014. BY ADVS. Sri.V.JAYAKUMAR Sri.S.PRAKASAM** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A (Forest) No.90 of 2014 ..2.. ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------- M.F.A (Forest) No.90 of 2014 ------------------------------------------------------------Dated this the 23[rd] day of February, 2023 ## **JUDGMENT** ## C.Jayachandran, J. The appellants - the respondents in O.A.1/2012 before the Tribunal for EFL cases, Kozhikode – challenge the Order, which allowed an application under S.10(1) of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 ['the E.F.L. Act', for short]. The Tribunal, by the impugned Order, set aside the notification declaring the scheduled property as an ecologically fragile land. ## **2.** The Facts: The scheduled property having an extent of 5.74 acres comprised in resurvey no.1/1 of Payyavur Village forms part of 7.49 acres of land taken on lease by the applicant in the year 1963 from the jenmi, Unnaman Nair. The property was cultivated with cashew, ginger, tapioca, turmeric etc, and a M.F.A (Forest) No.90 of 2014 **==> picture [22 x 9] intentionally omitted <==** small house was constructed in the scheduled property, wherein the applicant and his family members were residing. The house was destroyed in a fire, in which the applicant's daughter aged 7 years and a female worker Janu perished. Purchase certificate was issued in favour of the applicant by the Land Tribunal, Irikkoor as per proceeding in O.A.607/1976. While so, the applicant's possession was interfered with by the respondent officials, claiming that the scheduled property is a private forest. An application preferred by the applicant under S.8 of Act 26 of 1971 was allowed in respect of 5.74 acres of land, which is the present extent. Though an appeal was preferred before the High Court as M.F.A.No.124 of 2004 and a Special Leave Petition before the Supreme Court as SLP(C) no. 32905/2010, both were dismissed. Thereupon, the petitioner filed an application under S.8(3)(b) of the Vesting Act seeking restoration of possession. While the same was pending consideration, the respondents issued notification under S.3(2) of the E.F.L Act claiming that the scheduled property is an ecologically fragile land, which vested with the Government M.F.A (Forest) No.90 of 2014 ..4.. under S.3 of the Act. It was alleged that the scheduled property is not an ecologically fragile land and that the notification was only a ruse to avoid restoration of the scheduled property. The scheduled property is principally planted with cashew, besides other seasonal crops, wherefore, it will not answer the definition of an ecologically fragile land as per the Statute. The forest officials did not permit the applicant to enter the scheduled property or to do any agricultural activity thereon when the proceedings in the O.A. under the Vesting Act was in vogue. As a result, there exists some undergrowth and wild weeds in the scheduled property, besides acacia trees planted by the first respondent. The fact situation is in the teeth of the decision of this Court in **State of Kerala v. Kumari Varma** [2011(1) KLT 1008]. On such premise, the applicant sought for an order setting aside the notification declaring the scheduled property as an ecologically fragile land. **3.** The Divisional Forest Officer filed written statement claiming that the scheduled property stands vested with the M.F.A (Forest) No.90 of 2014 **==> picture [22 x 8] intentionally omitted <==** Government by virtue of S.3(1) of the EFL Act, notified as such vide Ext.B1 notification. On account of the non obstante clause in S.3(1), the order of the Forest Tribunal under the Vesting Act cannot affect the vesting of the scheduled property under the E.F.L. Act. The property was not principally cultivated with cashew. Instead, the same is predominantly having natural vegetation, answering the definition of an 'ecologically fragile land', as also, of 'forest', as defined in the E.F.L. Act. The scheduled property is a forest land lying contiguous to a vested forest, supporting semi evergreen species, as well as wild growth. On such premise, the respondent sought for dismissal of the O.A. **4.** The evidence in this case consists of Exts.A1 to A10 marked through PW1, the applicant. Exts.B1 to B3 were marked through the Forest Range Officer concerned. **5.** The Tribunal, on analysis of the facts and evidence, found the existence of some cashew trees and the ruined basement of an old hut in the scheduled property. The applicant's contention that the scheduled property was not restored back M.F.A (Forest) No.90 of 2014 **==> picture [22 x 9] intentionally omitted <==** to his possession even after the verdict by the Apex Court was taken stock of by the Tribunal. Consequently the O.A was allowed relying upon **Kumari Varma** (supra) and Ext.B1 notification was set aside. **6.** Heard Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) on behalf of the appellants and Sri.S.Prakasam, learned counsel for additional respondents 2 to 9, who were impleaded pursuant to the death of the sole respondent. **7.** Section 2(b)(i) of the E.F.L Act defines an ecologically fragile land as any forest land held by any person and lying contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Government, which predominantly supports natural vegetation. We are not concerned in the given facts, of lands which are declared ecologically fragile under Section 4 of the E.F.L Act, dealt with in Section 2(b)(ii) of the Act. The term 'forest' is defined in Section 2(c) to mean any land principally covered with naturally grown trees and undergrowth and includes any forest M.F.A (Forest) No.90 of 2014 **==> picture [22 x 8] intentionally omitted <==** which is statutorily recognized and declared. However, lands which are principally used for cultivation of long duration crops, as are specified in Section 2(c), are excluded from the definition of forest. **8.** With the above prelude on the requirements of law, we will straight away refer to the undisputed facts. The applicant sought for a declaration in respect of the scheduled property, along with another item under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ('the Vesting Act', for short) in O.A.No.7/2001. He also claimed exemption under Section 3(2) of the Vesting Act. As per Ext.A4 order, both the declaration and the exemption sought for were granted. The respondents forest officials carried an appeal to this Court in M.F.A.No.124/2004, which however was dismissed. The respondents further carried a Special Leave Petition before the Hon'ble Supreme Court as S.L.P.(C)No.32905/2010, which was also dismissed. Thus, Ext.A4 order became final. Thereupon, the applicant moved the custodian seeking restoration of possession of the scheduled property. It was while the said M.F.A (Forest) No.90 of 2014 ..8.. application was pending consideration that Ext.B1 notification was issued declaring the scheduled property as an ecologically fragile one. **9.** We notice that the applicant's claim of the scheduled property having been cultivated with the cashew trees, ginger, tapioca and turmeric stands recognized by Ext.A4 order of the Forest Tribunal, inasmuch as exemption from vesting was also granted under Section 3(2) of the Vesting Act. Ext.A6 commission report taken in the earlier O.A. refers to the remains of a ruined basement of an old hut in the scheduled property. The specific case of the applicant is that he was living in a house set up in the scheduled property along with his family, which house was destroyed in a fire, in which the applicant's daughter and a worker by name Janu died. From the two parameters above referred, that is to say, the exemption granted under S.3(2) and the ruined basement of a hut, it is amplified that the status of the scheduled property as on the date of Ext.A4 order was not that of a forest land, but was of a cultivated land. M.F.A (Forest) No.90 of 2014 **==> picture [22 x 9] intentionally omitted <==** **10.** What remains now is the status of the scheduled property as on the date of vesting under the E.F.L. Act so as to ascertain whether the scheduled property answers the definition of an ecologically fragile land. Under ordinary circumstances the status of the scheduled property as on the date of vesting, viz. 2.6.2000, would have been decisive, especially in view of the non obstante clause contained in Section 3 of the E.F.L Act, which takes away the effect of any judgment, decree or order in respect of the disputed property. However, the legal position would be different altogether, if the disputed property is in the hands of the Forest Officials for long, thereby depriving an opportunity to continue the cultivation in such property. The specific case espoused in the O.A is that the scheduled property was not restored back to the possession of the applicant, despite Ext.A4 order becoming final, pursuant to the dismissal of the S.L.P. by the Hon'ble Supreme Court. The applicant moved the Custodian under the Vesting Act seeking restoration and Ext.B1 notification was issued when the said application was pending consideration. M.F.A (Forest) No.90 of 2014 ..10.. We notice from Ext.A4 order that the notification under the Vesting Act was issued on 08.07.1977 and the obstruction on the part of the Forest Officials was on 04.05.1987. The O.A., as it was originally filed, was of the year 1987. It could thus be seen that the applicant was deprived possession and access to the scheduled property ever since 1987, which was never restored back. **11.** We are of the definite opinion that the fact situation narrated above is squarely in the teeth of a Bench decision of this Court in **State of Kerala v. Kumari Varma** , [2011 (1) KLT 1008]. The Division Bench took note of the contention of the respondents that they were illegally deprived of the possession of the lands in question, thereby depriving their right to carry on cultivation, in which situation it is not open for the State to contend that the lands in dispute acquire the character of 'forest' by virtue of the fact that the land is covered with naturally grown trees and undergrowth. The contention that the same would amount to permitting the State to take advantage of an illegality committed by it, is also M.F.A (Forest) No.90 of 2014 ..11.. taken note in paragraph no.26 of **Kumari Varma** (supra). In recognition of the said contention, the relevant findings of the Division Bench in paragraph 29 is extracted here below. _“29. …............................................................._ _The respondent was prevented by the State to continue the cultivation by denying possession to the respondent on a wrong interpretation of the Private Forests Act, 1971. We see substantial force in the submission made by the learned counsel for the respondent that on an appropriate interpretation of the various provisions of the Act, the State cannot be permitted to take advantage of a wrong committed by it in depriving the respondent of the legal rights to cultivate the lands in dispute by wrongly invoking Kerala Private Forests (Vesting and Assignment) Act. Such an interpretation, in our opinion, is not necessarily inconsistence with the purpose sought to be achieved by the Ecologically Fragile Lands Act. ….........................”_ **12.** We further notice that Section 8(3) of the Vesting Act casts a mandatory duty on the Custodian to restore possession of the scheduled property back to the applicant, once the M.F.A (Forest) No.90 of 2014 **==> picture [28 x 9] intentionally omitted <==** appeal is dismissed by the High Court. The Custodian miserably failed in his duty, though the applicant invited his jurisdiction seeking restoration. **13.** Although, the Special Government Pleader (Forest) requested us to have a re-look of the dictum laid down in **Kumari Varma** (supra), we are in respectful agreement with the findings therein. Moreover, we are given to understand that the appeal carried by the State from **Kumari Varma** (supra) is pending consideration of the Hon'ble Supreme Court. In the light of the above discussion, the appeal is devoid of any merit and the same is therefore dismissed. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** Sbna/skj