MFA (Forest). Nos. 68, 69 & 73 of 2017

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941 MFA.No. 68 of 2017 AGAINST THE ORDER IN OA 10/2015 of TRIBUNAL FOR ECOLOGICALLY FRAGILE LANDS CASES,KOZHIKODE. DATED 18-03-2017 ## APPELLANTS/RESPONDENTS: - 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. - 2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS VESTED IN GOVERNMENT (THE PRINCIPAL CHIEF CONSERVATOR OF FOREST) FOREST HEAD QUARTERS, THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## RESPONDENT/APPLICANT: HARIKRISHNAN K, S/O. SANKARANKUTTY, KOTTARATHIL HOUSE, IRINGALAKKUDA AMSOM DESOM, IRINGALAKKUDA TALUK, TRICHUR DISTRICT - 680 121. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2019, ALONG WITH MFA.69 & 73 of 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MFA (Forest). Nos. 68, 69 & 73 of 2017 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941 ## MFA.No. 69 of 2017 AGAINST THE ORDER IN OA 9/2015 of TRIBUNAL FOR ECOLOGICALLY FRAGILE LANDS CASES, KOZHIKODE. DATED 18-03-2017 ## APPELLANTS/RESPONDENTS: - 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS VESTED IN GOVERNMENT (THE PRINCIPAL CHIEF CONSERVATOR OF FOREST) FOREST HEAD QUARTERS THIRUVANANTHAPURAM BY ADV. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## RESPONDENT/APPLICANT: ASHA.S.MENON D/O. N.SASIDHARAMENON,'LAKSHMI' PESHKAR ROAD,IRINGALAKKUDA AMSOM DESOM,MUKUNDAPURAM TALUK, TRICHUR DISTRICT PIN-680 121 BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2019, ALONG WITH MFA.73 & 68 of 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 MFA (Forest). Nos. 68, 69 & 73 of 2017 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941 ## MFA.No. 73 of 2017 AGAINST THE ORDER IN OA 11/2015 of TRIBUNAL FOR ECOLOGICALLY FRAGILE LANDS CASES, KOZHIKODE DATED 18.03.2017 ## APPELLANT/RESPONDENTS: - 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA,THIRUVANANTHAPURAM. - 2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS VESTED IN GOVERNMENT (THE PRINCIPAL CHIEF CONSERVATOR OF FOREST) FOREST HEAD QUARTERS,THIRUVANANTHAPURAM. BY ADV. GOVERNMENT PLEADER ## RESPONDENT/APPLICANT: E.RENEESH S/O.E.MOIDEENKOYA,EDATHIL HOUSE, FLORICAN HILL ROAD, KARAPARAMBA, KOZHIKODE-10. BY ADVS. SRI.B.KRISHNAN NAGARAJ NARAYANAN SRI.NAGARAJ NARAYANAN SRI.R.PARTHASARATHY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2019, ALONG WITH MFA.69 & 68 of 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 4 MFA (Forest). Nos. 68, 69 & 73 of 2017 ## **JUDGMENT** ## _**Annie John, J.**_ The above appeals have been filed against Common Order dated 18.03.2017 in OA.No.10/2015 of the EFL Tribunal, Kozhikode by which the disputed land was found not an Ecologically Fragile Land vested in the Government. The land in dispute comprises mainly of evergreen and semi evergreen eco-system, which is having great ecological value to the eco-system and biodiversity and the disputed land is having the same vegetation status as the adjoining and surrounding forest lands. The learned Tribunal failed to advert to documents produced by the State or objections of the State to the report of the Advocate Commissioner and expert botanist and didn't 5 MFA (Forest). Nos. 68, 69 & 73 of 2017 properly consider the said reports and thus wrongly found that the disputed land is not EFL. 2. The ground as urged by the appellant is that the impugned order is bad in law since the learned Tribunal has miserably erred in failing to consider any of the documents or evidence tendered by the State and Forest Department and marked as Exts.B1 to B7. The learned Tribunal had miserably erred in blindly following Ext.C1 report of the Advocate Commissioner and Ext.C3 report of the Expert. Actually the disputed land contains the source of natural grown trees. Ext.C3 Expert report is incomplete. Further, the species trees, in which the pepper vines are seen to be climbing, which are recorded in Ext.C3, are mostly natural and MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [7 x 10] intentionally omitted <==** pucca forest species trees and not exotic shade trees or trees meant for pepper vine cultivation. The finding of the Advocate Commissioner is that the disputed land is situated very close to the old Vythiri town is against facts. The learned Tribunal failed to see that the disputed land is part of 100 Hectare notified Ecologically Fragile Land. The boundary description of the notified Ecologically Fragile Land shows that it is covered by forests on its northern, eastern and western boundaries. The sale documents relied on by the applicants shows that the disputed land is surrounded by forests and it is encircled by Ecologically Fragile lands. The appellants have not established the fact that the disputed land is Ecologically Fragile Land. On the ground as MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [7 x 10] intentionally omitted <==** stated above, the appellant prays for setting aside the order dated 18.03.2017 in OA.No.10/2015 of the Court of the Tribunal for EFL Cases/ Ist Addl. District Judge, Kozhikode. But, that OA was dismissed and the appeal was allowed. 3. In all these cases, the application schedule properties originally belonged to one M.Salim, who acquired tenancy right over the properties under the partition deed No.1517/1970. He assigned the property to one Muhammed as per document No.2346/1976 of SRO, Vythiri. Later, he purchased jenmam right over the properties from Alliyil Edam Tharwad, which was the jenmi of the properties as per assignment deed No.1812/1978 of SRO, Vythiri. Subsequently, Muhammed assigned the properties to M.Sethumadhava Kurup and MFA (Forest). Nos. 68, 69 & 73 of 2017 8 M.Ravindra Kurup as per assignment deed No.448/1993 of SRO, Vythiri. They assigned the property to one T.P.Vijayan as per document No.1640/2000 of SRO, Vythiri. On the death of T.P.Vijayan, his right in the property devolved upon his wife and children namely; V.Ajitha, T.P.Lakshmi, T.P.Radha, V.Vigith, V.Vibith and V.Abith. Subsequently, they assigned a portion of their property to the applicant in OA.No.9/2015 as per assignment deed No.1240/2007 and release deed No.1666/2009, another portion to the applicant in OA.No.10/2015 as per assignment deed No.1234/2007 and release deed No.1663/2009, and yet another portion to the applicant in OA.No.11/2015 as per assignment deed No.1235/2007 and release deed No.1670/2009. MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [7 x 10] intentionally omitted <==** 4. All these properties were cardamom and coffee plantations much before the appointed day with respect to which, cardamom registration certificate Nos.CRC 16/SW/77 and 4/SW/95 were issued. The entire properties were known as Krishnapriya Estate. After the purchase of the properties as per the assignment deeds referred to above, the applicants have been in possession of the application schedule properties separately. Meanwhile, a notice under Section 3(2) of the Act-2003 dated 20.11.2014 has been served on the applicants in OA Nos.9 & 11/2015 on 12.12.2014, and the applicant in OA.No.10/2015 on 10.12.2014 by the DFO, South Wayanad intimating that hundred hectares of land including the application schedule properties are MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [13 x 10] intentionally omitted <==** vested in the Government under Section 3(1) of the Act-2003 as per Notification No.EFL 10311/2013 dated 26.10.2013 published in Gazette No.48 dated 03.12.2003. According to the applicant, the action of the custodian is illegal, arbitrary and unwarranted. It is also disputed that the application schedule properties can never be termed as Ecologically Fragile Lands. The properties were exempted from vesting under the provisions of the Kerala private Forests (Vesting and Assignment) Act-1971 (Hereinafter referred to as 'the Act,1971') as it was not a forest. Therefore, the respondents are now from the same estopped treating very properties as Ecologically Fragile Lands vested in Government. MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [13 x 9] intentionally omitted <==** 5. It was also alleged that there is no forest land contiguous or adjacent to the application schedule properties. Except shade trees, there are no other forest species trees available in the application schedule properties. There is no stream also flowing through the application schedule properties. It does not provide habitat or wildlife. The application schedule properties are surrounded by developed properties belonging to private land holders. There was no wilful abandonment of the disputed plantation by the applicants at any point of time. By stating these facts, the appellants have prayed to set aside the impugned order of the Tribunal. 6. After taking the contentions and the MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [13 x 9] intentionally omitted <==** written statement filed by the appellant therein, the Tribunal has found that these application schedule properties are not Ecologically Fragile Land vested with the Government and to set aside the impugned Notification No.EFL 10-311/2013 dated 26.10.2013 published in Gazette No.48 dated 03.12.2013. The appellant had filed a joint written statements wherein it was contended that these application schedule properties come under the definition of “Ecologically Fragile Land” for which the applicants have no manner of right. Further, the respondents would not able to succeed in proving that any cultivation was made in the property as on 02.06.2000. 7. On the side of the applicants, one witness was examined as PW1 and Exts.A1 to A39 MFA (Forest). Nos. 68, 69 & 73 of 2017 13 were marked. On the side of the appellants, RW1 was examined and Exts.B1 to B7 were marked. The report and plan of the Commissioner and the report of the Expert have been marked as Exts.C1 to C3. The appellants have not disputed the title lease obtained by the applicants with respect to the plaint schedule property. According to the appellants/respondents, the application schedule properties predominantly support natural vegetation and there are no coffee or cardamom plantation as claimed by the applicants. But these facts has been disputed by the respondent/applicant. 8. In order to establish the nature of the property, the respondents/ applicants have filed an application to appoint a commissioner MFA (Forest). Nos. 68, 69 & 73 of 2017 14 and Expert. Accordingly the application was allowed. The Commissioner, who inspected the property has filed Ext.C1 report and Ext.C2 plan and the expert who was deputed to assist the commissioner filed Ext.C3 report. 9. On perusal of Ext.C1 report, it was evident that the properties of the applicants are marked in Ext.C2 plan as plots A, B, C and D. It was stated that the plots A and D constitute the application schedule property in OA.No.10/2015, plot B constitutes the application schedule property in OA.No.9/2015 and plot C constitutes the application schedule property in OA.No.11/2015. The appellants have not disputed the identity of the properties as pointed by the commissioner in Ext.C2 plan. In the commission MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [13 x 10] intentionally omitted <==** report, the commissioner has stated that the entire property was found cultivated with coffee at equal distance of ten feet from one plant to another. He has also noted pepper-vines. According to him, the coffee plants seen were aged not less than nineteen years. He could also find two huge water tanks-one each in plots A and C. He did not see any streams originating from these properties. 10. In fact the application schedule properties, which are situated in the middle of the to one properties belongs Moideenkoya. Further, he has noted a line building having fourteen segments. It was further reported that properties are not seen contiguous or encircled by reserved forest. MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [13 x 10] intentionally omitted <==** 11. It is further reported that this property is a well developed land by using human skill and labour and the property was cultivated for more than 20 years. The expert, who accompanied the Commissioner, had reported that they could able to find coffee plants aged between 8 and 19 years planted at equal distance. It was also reported that there were pepper vines in abundance apart from wild trees like vayanavu, kattucheru, Parakam etc. The respondents/applicants have not disputed the existence of wild trees in the properties. According to the respondents, the wild trees are maintained in the properties to provide shade to the coffee garden and to use as support for pepper vines. The appellants have objected the MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [13 x 10] intentionally omitted <==** same by stating that the observations made by the Commissioner as well as the expert are incorrect. Only for the reason that an objection has been filed by the respondents/applicants to the reports of the Commissioner and the expert, the report filed by them cannot be ignored. 12. The only question to be considered is whether the claim of the respondents/applicants that the property is not an ecologically fragile land vested in the Government, is acceptable or not. The appellants have contended that the land in question is an 'ecologically fragile land' vested with the Government. In support of the respondents' claim that the property in dispute is not ecologically fragile land vested with the Government, they had proved it with cogent and MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [13 x 10] intentionally omitted <==** convincing evidence. On the side of the respondents/applicants, the applicant in O.A.No. 11/2015 was examined as PW1. He has reiterated the case as alleged in the petition. On the side of 39 documents were respondents/applicants, marked as Exts.A1 to 39. Exts.A17 is the agricultural income tax assessment order. Ext.A27 is the kshemanidhi. Exts.A30 and A33 to A36 are plantation tax receipts. Ext.A37 is the cardamom registration certificate. Exts.A38 and A39 are agricultural income tax assessment orders to show that much before the appointed day, the application schedule properties were under cultivation. When the appellant was examined as RW1, during cross examination, he had admitted that he had cultivated the on properties MFA (Forest). Nos. 68, 69 & 73 of 2017 19 16.03.2016 onwards i.e., much after the appointed day. Nobody was examined on the side of the appellants to establish that as on the appointed day, there was no cultivation as stated by the respondents. The respondents/applicants have produced documents to support their case that they were in possession of the property even prior to the appointed day. They have also established that the property has coffee plantation in equal distance along with other pepper vines in abundance and also proved that the man skills were used for developing the properties. It is also reported by the Commissioner that there is a line building in the property with two big tanks fixed inside the property. Therefore, on the strength of the MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [13 x 10] intentionally omitted <==** evidence adduced on the side of respondents/applicants, we have no hesitation to hold that the properties were not ecologically fragile land vested with the Government. In this connection, it is very important to examine the definition of 'ecologically fragile lands' as defined in Section 2(b) of clause (i) of the Act ## 21 of 2005 and it reads thus: “(b)”ecologically fragile lands” means-- (i) any forest land or any portion thereof 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 and predominantly supporting natural vegetation” ## Section 2(c) of the Act defines 'forest' thus: “(c) “forest”means any land principally covered with naturally grown tress and undergrowth and includes any forests statutorily recognised and declared as reserved forest, protected forest or otherwise, but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, areacanut or cashew or any other site of residential buildings and surroundings essential for the convenient use of such buildings;” ## From the above, it is clear that in order to MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [13 x 9] intentionally omitted <==** declare the land as 'ecologically fragile land' and to notify under Section 3(2) of the Act, the following conditions are to be complied with : 1. It should be a forest land. 2. the land or any portion thereof should be lying contiguous or encircled by a reserved forest or vested forest, or any other forest, and owned by the government. 3. the land should predominantly support natural vegetation. 13. The learned Government Pleader has relied on the decisions in _**Ammukunhi Amma and others v. State of Kerala and others**_ [2016 (3) KHC 52] and _**State of Kerala and others v. N. Rajagopal**_ [2018 (5) KHC 128]. In _**Ammukunhi,**_ it is held that that non-furnishing of evidence with MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [13 x 9] intentionally omitted <==** regard to the employment of labourers, details of sale of cardamom to prospective customers for export from the huge extent of land is fatal in proving that the disputed lands were principally being cultivated as on the appointed day. In _**N. Rajagopal,**_ it is held that unless there is evidence of at least half the usual number of plants per acre of the respective species, the area could not be considered as principally planted with those crops. 14. According to the learned counsel for the respondents/claimants, mere lack of maintenance of the plantation is not sufficient to treat a property as ecologically fragile land. To canvass his argument, he would rely upon the Judgment of the Hon'ble Supreme Court reported in 23 MFA (Forest). Nos. 68, 69 & 73 of 2017 _**Bhavani Tea & Produce Company Ltd. v. State of Kerala [1991(1) KLT 666]** ._ In the said decision, it is held thus: “We are of the view that mere abandonment would not convert an area into a forest unless the owner has decided to do so or the appropriate authority has notified it to be so. Mere visual test would not be enough. The decision of the owner could, of course, be expressed or implied”. 15. It is true that there was lack of proper maintenance of the cultivation and appearance of the properties is that of a forest. But, that appearance is not sufficient. In this context, it is relevant to note the judgment of this Court in _**State of Kerala v. Kumari Varma [2011 (1) KLT 1008]**_ . Relying upon the dictum laid down in Bhavani Tea's case (supra), the Court observed that “mere visual test would not be enough to notify a land as ecologically fragile land. So, I find that the custodian is not justified in 24 MFA (Forest). Nos. 68, 69 & 73 of 2017 issuing the impugned notification under Section 3(1) of the Act-2003 notifying the application schedule properties as ecologically fragile lands vested in the Government”. 16. The respondents have got a case that there are no forests contiguous to the application schedule properties, nor the application schedule properties are encircled by reserved forests and therefore, the application schedule cannot be treated as properties ecologically fragile lands vested in the Government within the meaning of Section 2(b)(1) of the Act. It is reported by the Commissioner that there is no forest adjoining to the application schedule properties. But, the case of the respondents/applicants is that there are MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [13 x 10] intentionally omitted <==** forests on the boundaries of 100 hectares of land notified as ecologically fragile land under the impugned notification. In support of their contentions, they have produced Ext.P1 notification. It was argued by the learned counsel for the respondents/applicants that there is no forest adjoining the application schedule properties; but Ext.P1 proves that there are forests. From the evidence, it is proved that as on the appointed day, the application schedule properties predominantly support cultivation like coffee and pepper. There is sufficient evidence to prove that the application schedule properties cannot be vested with the Government under Section 3(1) of the Act. Accordingly, the court below has set aside Ext.P1 notification to the MFA (Forest). Nos. 68, 69 & 73 of 2017 **==> picture [13 x 10] intentionally omitted <==** extent of application schedule properties and declared that the application schedule properties are not ecologically fragile lands vested in Government under Section 3(1) of the Act and the impugned notification No. EFL 10-311/2013 dated 26.10.2013 with respect to the application schedule properties was set aside. 17. On going through the evidence and the arguments on either side, we do not find any ground to interfere with the findings of the court below and it is only to be confirmed. Accordingly, MFAs are dismissed. sd/- **K. HARILAL,JUDGE.** sd/- **ANNIE JOHN,JUDGE.** _Rkm/Rv_ MFA (Forest). Nos. 68, 69 & 73 of 2017 27