M.F.A (Forest) No.52 of 2015

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 ``` ``` MFA (FOREST) NO. 52 OF 2015 ``` ``` AGAINST THE ORDER/JUDGMENT IN O.A NO.1/2011 OF FOREST ``` ``` TRIBUNAL, PALAKKAD ``` ``` APPELLANTS/RESPONDENTS :- ``` - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY (FOREST AND WILD LIFE), THIRUVANANTHAPURAM` - `2 THE PRINCIPAL CHIEF CONSERVATOR OF FOREST CUSTODIAN OF ECOLOGICALLY FRAGILE LAND VAZHUTHACAUD, THIRUVANANTHAPURAM` ``` BY ADV GOVERNMENT PLEADER ``` ## `- RESPONDENTS/APPLICANTS :` ``` 1P.SETHUMADHAVA PISHARODY RESIDING AT "MADHAVAM", KIZHAKKEPATHU PISHARAM, THIRUNNAVAYA (PO), MALAPPURAM DISTRICT 676301 ``` ``` 2LEELAVATHY PISHARASSIAR RESIDING AT "MADHAVAM", KIZHAKKEPATHU PISHARAM, THIRUNNAVAYA (PO), MALAPPURAM DISTRICT 676301 ``` ``` 3SARASWATHY PISHARASSIAR RESIDING AT "MADHAVAM", KIZHAKKEPATHU PISHARAM, THIRUNNAVAYA (PO), MALAPPURAM DISTRICT 676301 ``` ``` 4P.RAJAGOPALA PISHARODY RESIDING AT "MADHAVAM", KIZHAKKEPATHU PISHARAM, THIRUNNAVAYA (PO), MALAPPURAM DISTRICT 676301 ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 2 ``` ``` BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN SMT.DHANYA P.ASHOKAN ``` ``` THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 01.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 3 ``` ``` K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------- M.F.A (Forest) No.52 of 2015 ------------------------------------------- Dated this the 1[st] day of February, 2023 ``` ## `JUDGMENT` ## `Vinod Chandran, J.` ``` The appeal is from an order under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2005 (for brevity ``` ``` ‘the EFL Act'). Gopala Pishardi, the father of the applicants obtained 11.64 acres in a partition of his tharavadu in the year 1952, which devolved on the applicants after his death. The property was ``` ``` situated in Survey No.101/4Part of Ongallur No.1 ``` ``` Village. Earlier, claiming exemption under Kerala ``` ``` Private Forest (Vesting and Assignment) Act, 1971 ``` ``` (for brevity 'the Vesting Act') an O.A was filed ``` ``` before the Forest Tribunal. There was a declaration ``` ``` of exemption granted by the Tribunal which was confirmed in MFA No.225/1978 by this Court. A Review Petition filed in the appeal also stood dismissed and it was held that the land could not be treated ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 4 ``` ``` as private forest within the meaning of the Madras Preservation of Private Forests Act, 1949 (for brevity ‘MPPF Act’). It was after a contempt petition was filed that the lands were restored on 27.06.1997. It was the contention of the applicants ``` ``` that with a vengeance the Forest Officials then issued a notification under Section 5 of the Preservation of Trees Act and later alleged vesting under the EFL Act. It was asserted that after ``` ``` restoration the applicants cultivated the properties ``` ``` and in December, 2009 the Forest Officials ``` ``` obstructed the peaceful possession and enjoyment. The applicants also relied on the order under the Vesting Act to show that the lands were cultivated as on the appointed day, under the Vesting Act. ``` ``` 2.The respondents raised a question of ``` ``` maintainability on the ground of limitation and denied the title, possession and identity of the property. It was asserted that the lands scheduled in the O.A liecontiguousto vested forest and supports natural vegetation of forest species, which is predominant. The land also contains thick ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 5 ``` ``` undergrowth and abundance of flora and fauna. The property also lies on the slope of Kanayamkunnu Malavaram, preservation of which is important for water and soil conservation. The area also has an abundance of wild life like wild boars, birds, reptiles and rodents. ``` ``` 3.The Tribunal raised the question of ``` ``` limitation and the nature of the property as the issues to be adjudicated. The Tribunal found that there is no proof of a notification brought out under the statutory ruleand rejected the ground of limitation. Ext.A3 order of the Forest Tribunal under the Vesting Act was relied on to find ``` ``` cultivation as on the appointed day under that Act ``` ``` and the interference caused to the possession of the ``` ``` owners. Reliance was also placed on the notification under Kerala Preservation of Trees Act which the appellants alleged prohibited them from cultivating the land. The identity was clearly found on a reference to the partition deeds and its schedules; produced as Exts.A1 and A2 wherein the descriptions were also found to be paramba, meaning garden land. ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 6 ``` ``` Despite no commission having been taken, the Tribunal on the above facts came to the conclusion ``` ``` that the scheduled land is not an ecologically ``` ``` fragile land. ``` ``` 4.The learned Special Government Pleader, ``` ``` Sri.Nagaraj Narayanan pointed out that Annexure-A4 certificate issued only indicated a proposal to notify the land under Section 5 of the Preservation ``` ``` of Trees Act. It is argued that there was no such ``` ``` notification proved and even if it was issued that ``` ``` does not prevent the owner from carrying on ``` ``` cultivation in the property after pruning the trees. The learned Special Government Pleader specifically ``` ``` tookus through the pleadings which speak of a ``` ``` cultivation having been carried on in the property ``` ``` after restoration in 1997. It was also pleaded that ``` ``` the interference to such cultivation was made by the ``` ``` officials in 2009. Hence, to prove cultivation the ``` ``` applicants should have necessarily taken out a commission in the O.A, which was filed in the year 2011. ``` ``` 5.The learned Senior Counsel Sri.N.N. ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 7 ``` ``` Sugunapalan appearing for the applicants relied on State of Kerala vs. Kumari Varma [2011(1)KLT 1008] to argue that the State having delayed restoration and again interfered with the enjoyment of the property by a notification under the Preservation of ``` ``` Trees Act, cannot rely on the regeneration of a forest by such illegal Acts depriving the owners from the possession of the property. It is pointed out from the written statement that there is admittedly a notification issued under the Preservation of Trees Act. It is also pointed out from Planters Forum v State of Kerala 2015 (2) KLT 783 a Division Bench decision of this Court which considered the effect of Kumari Varma and held that the earlier judgments under the Vesting Act could be looked into. ``` ``` 6.We have given our anxious consideration to the submissions made before us. A brief scan of the ``` ``` pleadings would indicate that, in the O.A, the applicants specifically pleaded that after restoration in the year 1997 the applicants were 'again cultivating the land', and it was during 2009 ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 8 ``` ``` December last week, that the Forest Officials obstructed the peaceful possession and enjoyment of ``` ``` the applicants, alleging vesting under the EFL Act. It is also seen from the written statement that ``` ``` after the land was restored in the year 1997, the ``` ``` area was notified under Section 5 of the Kerala Preservation of Trees Act, 1986. Hence, it has to be taken that while the respondent admitted that there was a restoration and then a notification under the Preservation of Trees Act; the specific pleading of the applicant was that after restoration they resumed cultivation and carried it on, till 2009, ``` ``` despite a notification under the Preservation of Trees Act. It is in this context, the case set up by ``` ``` the applicant and the Forest Department has to be adjudicated. ``` 7. `Kumari Varma was a case in which cardamom plantations were taken over by the State alleging vesting under the Vesting Act. The owners approached the Tribunal which granted a declaration and the challenge raised before the High Court and the Hon’ble Supreme Court by the Forest Department` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 9 ``` ``` failed. Despite a statutory obligation on the custodian to restore the properties, under Section 8(3)(b) of the Vesting Act, the State illegally retained possession of the lands till the appointed day under the EFL Act. In the interregnum there was regeneration of forest trees and undergrowth, based on which the State claimed conversion of the lands into ecologically fragile lands, which vest statutorily under Section 3 of the EFL Act. It was the specific contention of the owners that the regeneration of forest was occasioned only because they were dispossessed from the possession of the cardamom plantations. The cardamom plantations taken over by the State remained without any maintenance for long which was the sole reason for regeneration of natural vegetation in the property. The Division Bench held that the State cannot rely on its own illegal act; of having retained the property without restoring it despite an exemption from Vesting under the Vesting Act having been declared by the Forest Tribunal, to claim vesting under the EFL Act. The reasoning was that if the lands were restored, the ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 10 ``` ``` owners would have resumed and continued the cultivation upon which the lands would not have had ``` ``` the characteristic of an ecologically fragile land, as defined under the EFL Act. While bowing to the above proposition, we have to specifically observe ``` ``` that the dictum in Kumari Varma would not apply if the lands have been restored and then what is ``` ``` relevant is the status of the land as on the appointed day under the EFL Act; whether it is cultivated with such long duration crops enabling exclusion under the EFL Act. Definitely the earlier orders could be looked into but unless they are relevant it cannot regulate the adjudication under the later enactment. ``` ``` 8.In the present case the specific contention ``` ``` is as to resumption of cultivation having been effected, on the restoration of the lands in the year 1997 and the same having been continued till 2009 when the interference by the Forest Officials is alleged to have been occasioned. Hence, it was incumbent upon the applicant to take out a ``` ``` commission and convince the Tribunal that there was ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 11 ``` ``` a cultivation in the property, the age of which also could have been verified by an expert. No such attempt was made by the applicants before the Tribunal. In this context, we have to also observe that every cultivation does not offer an exclusion under the EFL Act. The ecologically fragile land under the statute is defined as a forest land or portion thereof enclosed by or lying contiguous to reserved, vested or any other forest land. The word 'forest' has been defined as one which is ``` ``` principally covered with naturally grown trees and undergrowth and includes any recognized or declared reserved forest. What is excluded from the definition of forest, are lands on which long duration crops liketea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew are cultivated and also sites of residential buildings. If there was a cultivation commenced to enable exclusion under the EFL Act, it should have been a long duration crop; one of those specified in the ``` ``` definition clause. The applicants do not have a ``` ``` specific contention regarding the crop cultivated in ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 12 ``` ``` the land. In the above circumstances, onfacts, it cannot be found that the lands are excluded from the definition of forest. ``` ``` 9.Now we come to the contention regarding a notification being mandatory under Section 4 and the ``` ``` effect of the order under the Vesting Act. The order under the Vesting Act establishes the cultivation or the intention to cultivate only as on 10.05.1971, the appointed day under the Vesting Act. As far as the EFL Act is concerned, for declaring an exclusion, the cultivation of long duration crops should be established as on the appointed day under the EFL Act, which is 02.06.2000. It is also pertinent that Section 3 of the EFL Act starts with a nonobstante clause and the vesting occurs ``` ``` statutorily notwithstanding any law for the time being in force or declared in any judgment, decree or order of any Court or Tribunal. Hence, the order of the Tribunal under the Vesting Act cannot have any application or effect on the vesting under the EFL Act except in the circumstance coming out in ``` ``` Kumari Varma. ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 13 ``` ``` 10.We have already found that the circumstance in Kumari Varma does not arise herein since the applicant pleaded that after resumption the cultivation was resumed in 1997 and continued till ``` ``` 2009. There was absolutely no evidence produced to establish the same and the applicants failed to take out a commission to ascertain the cultivation at least in 2011 on which year the O.A. was filed. If the cultivation was of long duration crops definitely there would have been remnants found, when the pleading was that cultivation was resumed in 1997 and continued till 2009, when the interference to enjoyment was caused by the respondents. The lands remained idle, with the ``` ``` Forest department only for a period of two years, ``` ``` when the O.A was filed in the year 2011. ``` ``` 11.We cannot also countenance the argument ``` ``` regarding a mandatory notification under Section 4 of the EFL Act. The EFL Act contemplates two types of vesting, one, statutory vesting, which is automatic on the Act coming into force as per ``` ``` Section 3. A notification under sub-section (2) of ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 14 ``` ``` Section 3 is only for intimation to the owner and to be placed before the Advisory Committee constituted under Section 15 for perusal. The statutory vesting, hence, does not depend upon a notification; the publication of which as per the statutory rules, at ``` ``` best determines the commencement of period of limitation to approach the Tribunal. Under Section 4 the Government has been empowered to notify any land ``` ``` to be an ecologically fragile land on the ``` ``` recommendation of the Advisory Committee under Section 15. Such notification can be of any land, even those which do not come under the definition of an ecologically fragile land. The considerations which regulate the recommendation of the Committee constituted under Section 15 are delineated under sub-section (4). The abundance of flora and fauna, ``` ``` the rare and endemic nature of flora and fauna, conservation of water resources, functioning as a corridor between two or more wild life habitats, functioning as a breeding ground for wild life and such other parameters which would enable a recommendation on the grounds of ecological ``` ``` M.F.A (Forest) No.52 of 2015 ``` ``` 15 ``` ``` sensitivity can regulate the recommendation of the Advisory Committee. Under Section 4 it is mandatory that there should be a notification on the recommendation of the Advisory Committee upon which the owners of the land also are entitled to ``` ``` compensation. In the present case, the vesting urged is under Section 3, a statutory vesting for which a notification is not mandatory. ``` ``` 12.On the above reasoning, we find that the ``` ``` Tribunal has erroneously granted a declaration of exclusion for the scheduled lands under the EFL Act. We reverse the findings of the Tribunal in the impugned order and reject the application filed before the Tribunal. ``` **==> picture [368 x 13] intentionally omitted <==** ``` parties to suffer their respective costs. ``` ``` Sd/- ``` ## `K. VINOD CHANDRAN, JUDGE` **==> picture [210 x 9] intentionally omitted <==** ## `C.JAYACHANDRAN, JUDGE` ``` SMA ```