MFA (Forest) No.21 of 2016

## **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. 21 OF 2016 AGAINST THE JUDGMENT IN OA 44/2008 OF FOREST TRIBUNAL, PALAKKAD** ## **APPELLANT/RESPONDENTS:** - 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 2 THE CUSTODIAN ECOLOGICALLY FRAGILE LAND AND PRINCIPAL CHIEF CONSERVATOR OF FORESTS (WP&R), THIRUVANANTHAPURAM BY ADVS. GOVERNMENT PLEADER SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **RESPONDENT/APPLICANT:** SIVANANDAN AGED 61 YEARS S/O.CHATAHARAMI, MELEVEEDU, ANAPPARA, KOTTEKKAD AMSOM AND DESOM, PALAKKAD TALUK, PIN 678732 BY ADVS. SRI.LIJU. M.P SRI.SAJAN VARGHEESE K. THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **::2::** ## **M.F.A(Forest) No.21 of 2016** **K.VINOD CHANDRAN& C.JAYACHANDRAN, JJ. ---------------------------------------------------------M.F.A (Forest) No.21 of 2016** **------------------------------------------Dated this 23[rd] February, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The State is in appeal from an order of the Forest Tribunal declaring the application scheduled property to be not an ecologically fragile land. The applicant was concerned with 1.5400 hectares in Re.Sy.No.52/2 and 52/1A in Kottekad village. The applicant claimed that he obtained title and exclusive possession of the property as per Ext.A1partition deed in which the subject land was item No.13 in B Schedule. It was asserted that the land is not a forest land nor is it lying contiguous or encircled by forest land. The scheduled property was a garden land on which dry crops like tapioca, ground nut, pulses etc. were cultivated. There was an earlier application filed under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity 'the Vesting Act') numbered as OA No.9 of 1981 in which an appeal was filed as MFA No.659 of 1984, wherein it was held that the very same scheduled property was not liable to be vested under that Act. 2. The Divisional Forest Officer Palakkad resisted the title, identity and the cultivation asserted on the property. According to him the ## **M.F.A(Forest) No.21 of 2016** ## **::3::** survey number, extent and boundaries of the scheduled property did not tally with that shown in the title deed. The disputed property was full of forest species trees and lie contiguous to other vested forests. The same is included in the notification under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2005 (For brevity 'the EFL Act') dated 20.10.2000. The trees found in the property were listed out and it was also asserted that there is a treasure of medicinal plants available in the land which is inhabited by wild animals. The earlier proceedings under the Vesting Act and the declaration granted to the scheduled land was admitted; but the same was inconsequential in considering the vesting under the EFL Act. A committee constituted under the Act inspected the land on 03.11.2006 with notice to the applicant and recommended that the land should be retained as ecologically fragile lands. The doctrine of public trust was raised as being applicable in the present case to prevent over exploitation of the environment for which purpose the EFL Act was brought into force. 3. The Tribunal noticed earlier proceedings under the Vesting Act which is evidenced by Ext.A2. The commission report was relied on to find that the property is not lying contiguous to or encircled by forest land. The property though was filled with bushes, also had trees aged between 10 to 25 years. The specific contention of the respondent was that the ## **M.F.A(Forest) No.21 of 2016** ## **::4::** property was still in their possession despite which the Tribunal found that it did not have the characteristics of a forest which is principally covered with natural vegetation. Though the Range Officer examined as RW1 submitted that there are vested forests on the eastern, western and southern boundaries, he could not establish it by any evidence nor was the commission report effectively challenged by examining the Commissioner. Ext.B2 report of the Committee was refused to be looked into for reason of the committee members having not been examined. 4. Ext.A1 is the certified copy of the partition deed based on which the applicant approached the Tribunal under S.10 of the EFL Act. Ext.A2 is the certified copy of the judgment in MFA No. 659 of 1984 which was filed by the applicant herein. The said proceedings were admitted by the respondents also. Hence there can not be any question raised on the title as of now which also stands established by Ext.A1, a deed of the year 1962. 5. The possession of the property was admitted to be with the respondents after the possession was interfered on allegation of vesting under the Vesting Act. In fact the statement filed by the respondent clearly indicated the earlier proceedings and categorically stated that though the petitioner had applied for restoration of the property the same was not effected as formalities like surveying etc., was not over. In the above ## **M.F.A(Forest) No.21 of 2016** ## **::5::** circumstances 2011(1) KLT 1008 State of Kerala v. Kumari Varma squarely applies. 6. Kumari Varma (supra) was a case in which the forest officials interfered with the possession and enjoyment of cardamom plantations alleging it to have vested under the Vesting Act. The owners approached the Tribunal which granted a declaration of exemption on the ground of the existing cardamom plantation. The State unsuccessfully took up the matter before this Court and before the Hon'ble Supreme Court and in the interregnum restoration of possession was not granted to the owners. The plantations were left to waste without any maintenance and there was regeneration of natural trees and vegetation, giving the lands the appearance of a forest at which point the EFL Act came into existence. The forest officials claimed the property to be an ecologically fragile land which has vested in the Government. The Division Bench in Kumari Varma (supra) found that the transformation of cultivated cardamom plantation into a forest land was only by reason of the interference caused to the possession of the owners, under the Vesting Act, which was found to be illegal for which reason the Tribunal had granted a declaration. It was the statutory duty of the Custodian to restore the lands on the expiry of the appeal period, if no appeal is filed, and if appeal is filed, on its dismissal by the High Court. Against the statutory mandate the respondent officials of the State ## **M.F.A(Forest) No.21 of 2016** **::6::** held the lands till the EFL Act came into force. It was held by the Division Bench that the State cannot depend on its own wrong; the illegal act of not having restored the properties, to take the contention of transformation of such lands into forest lands and allege vesting under the new enactment. The reasoning was that if the restoration was granted, then the owners would have resumed the cultivation of plantation crops and then there would be no question of the land being converted into an ecologically fragile land. This is the only circumstance in which the judgment under the Vesting Act squarely applies and in this case that circumstance precisely arise. 7. In the present case the Tribunal also looked at the commission report. On three sides of the property there were residential compounds and garden lands. On the northern boundary it was railway land, to the north of which ran the Coimbatore-Palakkad railway track. Further north of the Coimbatore-Palakkd railway track there was the Malapuzha-Kanjikode main road. Hence the Commissioner's report clearly indicated that the property does not lie contiguous to or encircled by forest land. 8. Ext.B2 Committee report is by 3 members and what is produced is a laconic observation and recommendation, of the entire area being covered with dense growth of dry deciduous forest, surrounded by ## **M.F.A(Forest) No.21 of 2016** **::7::** vested forests, with private land on only one side. As noticed by the Tribunal none of the committee members were examined and the commission report marked in evidence was not seriously challenged. The committee report also does not show the presence of applicant or a notice having been issued before inspection. We cannot place any reliance on the committee report produced as Ext.B2. We find no reason to interfere with the order of the Tribunal, also finding Kumari Varma (supra) to squarely apply to the scheduled lands and also upholding the findings of the Tribunal regarding the Commissioner's report having clearly indicated the disputed land having no vested forest on any of its boundaries. The commission report also indicates a railway track and a road on the near vicinity of the disputed land. We dismiss the appeal upholding the order of the Tribunal and leaving the parties to suffer their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** ## **jma** ## **M.F.A(Forest) No.21 of 2016** ## **::8::** The word “Kottekad Village” in the 4[th] line of paragraph No.1 of page number 2 of the judgment dated 23.02.2023 is corrected as “Pudussery West Village” as per order in IA 1/2023 dated 11/7/2023 in MFA(Forest 21/2016. Sd/ Deputy Registrar.