MFA (Forest) No.35/2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 16TH DAY OF AUGUST 2019 / 25TH SRAVANA, 1941** ## **MFA.No.35 OF 2014** **AGAINST THE JUDGMENT IN OA 2/2011 DATED 31-01-2014 OF THE TRIBUNAL FOR EFL CASES/ADDITIONAL DISTRICT COURT, KOZHIKODE** ## **APPELLANTS:** - **1 E.GOPINATHA KURUP S/O. RAYARA KURUP, AGED 72 YEARS,'ADHARA' KALLINGAL LANE, THRISSUR VILLAGE, P.O. THIRUVAMBADI, PIN-680022.** - **2 PATTATHIL RATHY AGED 65 YEARS** - **W/O. GOPINATHA KURUP, 'ADHARA' KALLINGAL LANE, THRISSUR VILLAGE, P.O.THIRUVAMBADI, PIN-680022.** - **3 PATTATHIL AJITH KUMAR AGED 41 YEARS** - **S/O. GOPINATHA KURUP, 'ADHARA' KALLINGAL LANE, THRISSUR VILLAGE, P.O.THIRUVAMBADI, PIN-680022.** - **4 PATTATHIL DEEPA AGED 38 YEARS** - **D/O. GOPINATHA KURUP, 'ADHARA' KALLINGAL LANE, THRISSUR VILLAGE, P.O.THIRUVAMBADI, PIN-680022.** MFA (Forest) No.35/2014 ## -:2:- **5 PATTATHIL MANOJ KUMAR AGED 44 YEARS S/O. GOPINATHA KURUP, 'ADHARA' KALLINGAL LANE, THRISSUR VILLAGE, P.O.THIRUVAMBADI, PIN-680022. (APPELLANTS 1 TO 4 ARE REPRESENTED BY THE POWER OF ATTORNEY HOLDER MANOJ KUMAR THE 5TH APPELLANT).** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.M.DEVESH SRI.K.C.KIRAN SMT.MEENA.A. SRI.SAJU.S.A SRI.VINOD RAVINDRANATH SRI.VINAY MATHEW JOSEPH** ## **RESPONDENTS:** **1 THE GOVERNMENT OF KERALA REP. BY THE SECRETARY TO THE GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS VESTED IN GOVT. (THE PRINCIPAL CHIEF CONSERVATOR OF FOREST) FOREST HEAD QUARTERS, VAZHUTHAKKADU, THIRUVANANTHAPURAM.** **BY ADV. SRI.NAGARAJ NARAYANAN SPL. G.P. FOR FOREST** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 8.08.2019, THE COURT ON 16.8.2019 DELIVERED THE FOLLOWING:** MFA (Forest) No.35/2014 -:3:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the petitioners in OA No.2/2011 challenging an order passed by the Tribunal for Ecologically Fragile Land cases, Kozhikode denying the exemption sought for by the petitioners. 12 Hectares of land in Sy.No.89/19A was notified as Ecologically Fragile Land by notification dated 30/10/2008 u/s 3 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as the Act). Petitioner's case is that the aforesaid land forms part of 92.98 acres of tea and coffee plantation held by them. They got title to the property between 1994 and 1998 as per separate sale deeds which were marked as Exts.A1 to A14. Exemption had been sought for _inter alia_ contending that the 12 hectares which has been notified as Ecologically Fragile Land is principally planted with coffee and tea long before 2/6/2000. The respondents objected to the claim for exemption _inter alia_ contending that the property is surrounded by vested forest on MFA (Forest) No.35/2014 -:4:- three sides and is not principally planted with tea or coffee and the property is an Ecologically Fragile Land full of wild bushes and trees. 2. In order to prove the claim of the petitioners, they relied upon the oral testimony of PW1, who is the 5[th] petitioner in the case and placed reliance upon Exts.A1 to A65 documents. On behalf of the State, RW1, the Range Forest Officer was examined and they relied on Exts.B1 to B6 documents. Exts.C1 to C4 are the reports of which Exts.C2 and C4 are the reports of the expert submitted to the Advocate Commissioner. Ext.C5 is the survey sketch with reference to Sy.No.89/19A of Mananthavady village. An erratum notification had been published on 3/12/2011 (Ext.B5) stating that the EFL is with reference to two items of property, one having an extent of 9.4800 hectares and the other 0.9200 in the same survey number. 3. It is argued by the learned Senior counsel Sri.T.Krishnanunni that the Court below had placed reliance on the Advocate Commissioner's report which itself would indicate that the Advocate Commissioner had not prepared the report after verifying the entire property involved in the notification. The MFA (Forest) No.35/2014 -:5:- Advocate Commissioner had only taken sample survey of 10 cents of land which were divided as A, B, C and D plots in different areas. The plot A itself contained 128 tea plants which were planted at an approximate distance of of 3x3 feet. The plants were of different age groups and were of different age groups. It was of 13 to 18 years of age. Plot D contained 45 coffee plants at a distance of 3 x 3 feet. The Advocate Commissioner opined that as per the experts, age of the coffee plants were between 3 to 15 years. As far as plots B and C are concerned, the Advocate Commissioner did not notice any tea, coffee or plantation crops. There are various other species of trees including silver oak which had been taken note of by the Commissioner. 4. The main contention urged by the appellants is that the Advocate Commissioner ought to have verified the entire property and should not have placed reliance upon bits of property and only 4 plots had been verified from among a total extent of 30 acres. 5. On the other hand, learned Special Government Pleader for (Forests) Si.Nagaraj Naryanan while supporting the MFA (Forest) No.35/2014 -:6:- judgment of the Tribunal argued that there is no evidence to indicate either from the Commissioner's report or from the expert's report that the property was principally planted with coffee or tea which is the main contention urged by the appellants while claiming exemption from notification. 6. In order to claim exemption, the appellants will have to prove that the property was principally cultivated with any of the plantation crops specified under Section 3 of the Act. Learned senior counsel has placed before us the judgment dated 4/9/2018 in MFA No.125/2016 wherein a Division Bench of this Court in which one among us (myself) was a party has placed reliance on an earlier Division Bench judgment in _**Ammukunhi Amma v. State of Kerala**_ [2016 (3) KHC 52] and observed that in order to claim the property as plantation, it has to be shown that the property was principally cultivated with coffee (in that case) in at least 50% of the area in question. As rightly pointed out by the counsel for appellants, notification was issued on 30/10/2008 and if at all there was any cultivation or plantation, the appellants were kept out of enjoyment and they were unable to maintain the same. Therefore, the case has to be considered taking into MFA (Forest) No.35/2014 -:7:- account the fact that the appellants were not in a position to maintain the property if at all there was any plantation. As already stated, though PW1 in his evidence had stated that it is a plantation and has produced Exts.A50 to A64 documents to prove payment of plantation tax, admittedly he was having other properties and therefore, payment of plantation tax by itself will not prove that he was cultivating coffee or tea, as the case may be, in the notified area. The question to be considered is whether there is evidence that the property was principally cultivated with coffee or tea. Looking at the Commissioner's report, four plots were identified by the Advocate Commissioner for verification as agreed by appellants as well as the officers of forest department. The report was prepared in the presence of experts as well. They have also given their independent reports. The experts found that out of 163 flowering plant species, there are 79 species of trees and 78 non medicinal plants. They could not notice predominance of any plantation crops. From the Advocate Commissioner's report it is evident that on three sides of the property, it is vested forest and there are various species of forest trees in the property as well. One of the contentions urged is that the entire property MFA (Forest) No.35/2014 -:8:- had not been verified by the Advocate Commissioner. When large extents of land are to be verified to find out the tree species or the plantation, the normal method is random verification, which is done by selecting test plots as a criteria. This is an accepted procedure and the Advocate Commissioner did not commit any error in doing so especially in a case where the land is a hilly and of undulating terrain and the boundaries are not clearly demarcated from the adjoining forest land. It could be seen that out of 4 plots identified by the Commissioner, two plots did not even have any plantation crops. Only in plot A and D there were tea and coffee respectively and that too cannot be treated as a principal form of plantation. If there were other areas where more plantation was visible, the appellants could have pointed out the same to the Advocate Commissioner which has not been done. The property was admittedly barren land in the year 1994 when it was purchased by the appellants. They would have attempted to plant the area after purchasing the same. As already stated, in order to prove cultivation of the property, evidence should exist to indicate that there was plantation prior to the date of vesting. The number of tea plants and coffee plants which existed in the MFA (Forest) No.35/2014 -:9:- plots marked as A and D is not sufficient enough to indicate that the property was principally planted with the said crops. The appellants could not also point out that any other area in their possession which had been notified is cultivated with either tea or coffee. 7. Under such circumstances, we do not think that the Court below had committed any error in denying exemption. However, in view of the erratum notification, the O.A. can apply in respect of 10.4 hectares alone. The appeal is hence dismissed. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/N.ANIL KUMAR** Rp //True Copy// **JUDGE** PS to Judge