MFA (Forest) No.5 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944** **MFA (FOREST) NO. 5 OF 2017** **AGAINST THE ORDER DATED 30.04.2016 IN O.A.NO.9/2011 OF** **THE KERALA FOREST TRIBUNAL ,PALAKKAD** ## **APPELLANTS/RESPONDENTS:** - **1 THE PRINCIPAL SECRETARY TO GOVERNMENT FOREST AND WILDLIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND CUSTODIAN, ECOLOGICALLY FRAGILE LANDS, THIRUVANANTHAPURAM.** - **3 THE PRINCIPAL CHIEF CONSERVTOR OF FOREST [WILDLIFE], THIRUVANANTHAPURAM.** - **4 THE DIVISIONAL FOREST OFFICER NILAMBUR NORTH DIVISION.** - **BY SRI.NAGARAJ NARAYANAN, SPL.G.P. [FOREST]** ## **RESPONDENT/APPLICANT:** **FRANCIS MATHEW, S/O.FRANCIS, POOVATHINKAL HOUSE, WARD NO.XVI/97, PALA P.O, KOTTAYAM.** **BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.F.A.(F) No.5 of 2017 2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------M.F.A.(F) No.5 of 2017 --------------------------------------------Dated this the 10[th] March, 2023** ## **JUDGMENT** **K.Vinod Chandran, J.** **In the application under S.10 of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 [for brevity, 'the EFL Act'], declaration was sought with respect to 14.85 Acres in Pallippadam village, Nilambur Taluk. Applicant purchased 83.36 acres as per Ext.A1 document of 1968. The applicant also has sought for permission under the Madras Preservation of Private Forest Act, 1949 [for brevity, 'the MPPF Act'] to cut the trees in the property for the purpose of turning it into a rubber plantation. However, the respondents interfered with his** ## **M.F.A.(F) No.5 of 2017 3** **possession under the Kerala Private Forests (Vesting & Assignment) Act, 1971 (for short ‘the Vesting Act') and the cultivation could not be commenced. An application filed under the Vesting Act resulted in 15 Acres being exempted under S.3(3) of the Vesting Act; finding an intention to cultivate. However, the respondents did not restore the lands and it was only after initiation of contempt proceedings that the lands were restored in 1995. Immediately thereafter, an order was issued under the Kerala Preservation of Trees Act, 1986 [for brevity, 'the Preservation of Trees Act'], prohibiting cutting of trees from the property. The property, having remained with the Forest Department, was outgrown with bamboo and cultivation could not be commenced without clearing the property. The property was then alleged to have been vested under the EFL Act.** ## **M.F.A.(F) No.5 of 2017 4** **2. The respondent resisted the application contending that even after the restoration in 1995, no cultivation was commenced in the property till the EFL Act came into existence. The land was thickly wooded and had an abundance of natural vegetation, which prompted the invocation of the Preservation of Trees Act. It was also asserted that the land lies contiguous to vested forest and was eminently qualified to be notified under the EFL Act.** **3. The Tribunal raised the solitary issue of whether the land can be considered to be an ecologically fragile land under the EFL Act. The applicant examined himself as PW1 and marked Exts.A1 to A12 documents. RW1, the Range Forest Officer, was examined and marked Exts.B1 to B3. The Commissioner appointed by the Court was examined as CW1 and marked Ext.C1 commission report. The** ## **M.F.A.(F) No.5 of 2017 5** **Tribunal found that 60% of the property was covered by bamboo and there was a tarred road laid through the middle of the property, on which public transport including KSRTC buses were plying and on the southern boundary there was a cultivated land and on the eastern boundary, a rubber plantation. It was held that the land became a bamboo forest only because of the refusal of the Department to permit cutting of trees and bring to fruition the intention of the applicant to cultivate the land with rubber. It was also found that there was no predominant natural vegetation in the property as is required under the definition under the EFL Act. The Tribunal found that the property is not an ecologically fragile land, against which the appeal is filed.** **4. Learned Special Government Pleader** ## **M.F.A.(F) No.5 of 2017 6** **[Forest] Sri.Nagaraj Narayanan vehemently argued for the position that the Preservation of Trees Act does not prohibit a cultivation in the property. It is pointed out from the provisions of the Act that regular pruning of trees is not prohibited and the cultivation of any plantation crop, which requires shade trees definitely could have been commenced by the applicant. It is also argued that this is a case where the applicant did not contest the order issued under the Preservation of Trees Act. The Learned Special G.P draws a distinction insofar as the order under the Preservation of Trees Act being subjected to a challenge and other cases where the owners succumbed to such orders, without demur. The learned Special Government Pleader argued that this was one case where the order was not challenged and the growth of natural vegetation in the property, which continued even after restoration brings the** ## **M.F.A.(F) No.5 of 2017 7** **land within the definition of an ecologically fragile land.** **5. Sri.N.N.Sugunapalan, learned Senior Counsel appearing for the respondent, sought to uphold the order of the Tribunal specifically relying on** _**State of Kerala v. Kumari Varma [2011(1) KLT 1008]**_ **. It is pointed out that even at the earlier instance, the intention on which exemption was granted, was for commencing a rubber plantation. However, the Vesting Act and the interference caused there under disabled the applicant from following up with the intention, despite the Tribunal under the Vesting Act exempting 15 acres out of the total 83.36 acres. The land was not restored to the applicant's possession. When it was restored in the year 1995, the forest officials followed it up with a prohibition from cutting trees, which again** ## **M.F.A.(F) No.5 of 2017 8** **disabled the applicant from cultivating the land with rubber. In fact the Preservation of Trees Act came in the year 1986 and M.F.A.No.439 of 1979 was dismissed in 1985. If the properties were restored in due time, there could have been a rubber plantation commenced in the exempted lands. It is also pointed out that the applicant had challenged the order passed under the Preservation of Trees Act, which was rejected by a learned Single Judge and a Division Bench; which order came after the EFL Act came into force. The facts are eminently suited to apply** _**Kumari Varma**_ **[supra] is the forceful argument.** **6. Admittedly, the applicant purchased 83.36 acres by Ext.A1 document of the year 1968, subsequent to which he also obtained permission to clear the land for the purpose of raising a rubber plantation; due sanction having been obtained under** ## **M.F.A.(F) No.5 of 2017 9** **the Madras Preservation of Private Forests Act, 1949. However, before commencing agricultural operations, the Vesting Act came into force and the applicant approached the Tribunal, which granted exemption to 15 acres, out of the larger extent. The State filed appeal before the High Court, in which the specific contention taken was that another 20 acres of property was exempted as rubber plantation and in that circumstance the applicant cannot retain the 15 cents, on which exemption is granted under the Vesting Act, for reason of it exceeding the ceiling limit under the Land Reforms Act. Ext.A2 is the judgment in M.F.A.No.439 of 1979, which rejected the contention of the State, noticing that the authorities under the Land Reforms Act could even now proceed against the applicant for surrender of such extents of land exceeding the ceiling limit. The exemption granted** ## **M.F.A.(F) No.5 of 2017 10** **by the Tribunal under S.3(3) of the Vesting Act, finding intention to cultivate, was affirmed but leaving liberty to proceed for determining the ceiling under the Land Reforms Act.** **7. The proceedings of the Taluk Land Board under the Land Reforms Act is produced as Ext.A3, wherein the entire 83.36 acres purchased as per Ext.A1 was exempted by the Land Board on the ground of the land lying as a private forest. At first blush, the findings of the High Court and the Land Board may sound incongruous. However, it has to be noticed that the High Court exempted the land from vesting under the Vesting Act on the ground of intention to cultivate. The said judgment was passed in 1985 and as per the reservation in the appellate judgment, the Taluk Land Board proceeded against the applicant, who is the declarant in Ext.A3. The Taluk Land Board exempted the** ## **M.F.A.(F) No.5 of 2017 11** **properties, because as on that day the property was lying as a private forest. It is pertinent to notice that even if the lands were cultivated, as per the intention professed before the Tribunal, the land would be converted into a rubber plantation, which again is entitled to exemption from the ceiling limit under the Land Reforms Act.** **8. There was no further challenge from the order in the MFA and it was the bounden statutory duty of the Custodian to restore the property as soon as possible, after the appeal filed against the declaration of the Tribunal under the Vesting Act, is dismissed by the High Court; as per S.8(3) (b) of the Vesting Act, which obviously was not done in the present case. In that circumstance** _**Kumari Varma**_ **[supra] squarely applies, especially since the land was restored to the applicant only in the year 1995; which was followed up immediately** ## **M.F.A.(F) No.5 of 2017 12** **with a prohibition issued from cutting trees.** **9** _**. Kumari Varma**_ **[supra] was a case in which cardamom plantations were taken over by the State under the Vesting Act. Despite the Tribunal, the High Court and the Hon'ble Supreme Court holding the lands to be excluded as a cardamom plantation, the State refused to restore possession to the rightful owners. The cardamom plantations were laid to waste without any maintenance and there was regeneration of natural vegetation bringing back the nature of the land to one of a forest land. Till the EFL Act came into force, the land was not restored and on the coming into force of that enactment, the State issued notification declaring the land to be an EFL land, considering the lie, nature and appearance of the land as on the appointed day under the EFL Act. The said notification was interfered with by a Division** ## **M.F.A.(F) No.5 of 2017 13** **Bench of this Court in** _**Kumari Varma**_ **[supra], specifically finding that the regeneration of natural vegetation and conversion of the cardamom plantation into a forest land was only because of the wrong committed by the State in retaining possession of the lands despite concurrent declarations by the Courts that it was excluded from the earlier enactment; Vesting Act, as a cardamom plantation.** **10. We specifically notice that in the present case the restoration was granted before the EFL Act came into force, and that too in the year 1995. Admittedly, the land was a private forest and was exempted under the Vesting Act on the ground of finding a clear intention to cultivate. The Tribunal and the High Court concurrently found the lands to be eligible for exemption under the Vesting Act, but the land was not restored for** ## **M.F.A.(F) No.5 of 2017 14** **long. Only after contempt proceedings were initiated, the land was restored, that too in the year 1995. Immediately thereafter, a notification was issued under the Preservation of Trees Act. It is not correct to say that the applicant did not challenge the order issued under the Preservation of Trees Act. The applicant, by O.P.No.8209 of 1995, challenged the notification dated 28.02.1989 issued under S.5(1) of the Preservation of Trees Act. A learned Single Judge of this Court rejected the claim by judgment dated 18.10.1996. The applicant promptly challenged the same before the Division Bench. The Division Bench, in W.A.No.1906 of 1996, by judgment dated 27.02.2002, rejected the appeal finding that the rejection of permission to cut bamboo clusters was perfectly in order. As contended by the learned Special G.P, rubber plantation could not have been commenced after the** ## **M.F.A.(F) No.5 of 2017 15** **order under the Preservation of Trees Act, but even before that the exemption was declared and still the land was not restored to the applicant. The challenge made against the order of the Preservation of Trees Act reached finality only after the EFL Act came into force. In such circumstance, the State, as held in** _**Kumari Varma**_ **[supra], cannot rest contend on its own wrong or rather, the illegal act of not having restored the lands despite the dismissal of the appeal by the High Court; which was a statutory obligation on the part of the Custodian.** **11. From the commission report, the Tribunal has found that 60% of the land was covered by bamboo and there were forest species trees having 35 to 60 years; the exact number of which trees having not been specified by the Commissioner. There is also a road going through** **M.F.A.(F) No.5 of 2017 16** **the property used by the public. The land also cannot be termed to be ecologically fragile for reason of the lush presence of bamboo, since it occurred only due to the illegal act of the State.** **We hence, on the reasoning supplied by us, confirm the order of the Tribunal that the land is not one capable of being vested under the EFL Act. The appeal would stand dismissed, leaving the parties to suffer their respective costs.** **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **sp/12/03/2023** ## **M.F.A.(F) No.5 of 2017 17** ## **APPENDIX** **PETITIONERS' EXHIBITS:ANNEXURE A1 - TRUE COPY OF PHOTOGRAPHS. ANNEXURE A2 - COPY OF SAMPLE SURVEY PLOTS.**