M.F.A.(F).54, 55 and 56 of 2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944** **MFA (FOREST) NO. 54 OF 2015** **OA 26/2010 OF KERALA FOREST (VESTING AND MANAGEMENT OF** **ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, PALAKKAD DTD.30.3.2015 APPELLANT:** SUNNY SAMUEL, S/O.P.C.SAMUEL, AGED 57 YEARS, PANDIYALAKKAL, VEZHUPPOOR, RAROTH, P.O.THAMARASSERY, KOZHIKODE 673 573. BY ADVS. T.SETHUMADHAVAN (SR.) DEEPA NARAYANAN K.JAYESH MOHANKUMAR VANDANA MENON M.P.MADHAVANKUTTY ## **RESPONDENTS:** 1 THE GOVERNMENT OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF ECLOGICALLY FRAGILE LANDS, VESTED IN GOVT.(THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS), FOREST HEAD QUARTERS, VAZHUTHAKKADU, THIRUVANANTHAPURAM. BY SRI.NAGARAJ NARAYANAN SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 16.01.2023, ALONG WITH MFA (FOREST) Nos.55/2015 & 56/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(F).54, 55 and 56 of 2015 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944 MFA (FOREST) NO. 55 OF 2015** **OA 25/2010 OF KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, PALAKKAD DTD.30.3.2015 APPELLANT:** DALIYA RESORTS PVT LTD., REPRESENTED BY MANAGING PARTNER SUNNY SAMUEL, S/O.P.C.SAMUEL, AGED 57 YEARS, PANDIYALAKKAL, VEZHUPPOOR,RAROTH P.O, THAMARASSERY, KOZHIKODE - 673 573. BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SMT.DEEPA NARAYANAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON ## **RESPONDENTS:** 1 THE GOVT. OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF KERALA, THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS VESTED IN GOVT.(THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS) FOREST HEAD QUARTERS, VAZHUTHAKKADU, THIRUVANANTHAPURAM. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 16.01.2023, ALONG WITH MFA (FOREST).Nos.54/2015 AND 56/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(F).54, 55 and 56 of 2015 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944 MFA (FOREST) NO. 56 OF 2015** **OA 24/2010 OF KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, PALAKKAD DTD.30.3.2015 APPELLANT:** VALSAN S/O. UDAYAMVEEDU KUNHIRAMAN, THARAVOOR AMSOM, KIDANGOOR DESOM, KIDANGOOR P.O., ALUVA. BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SMT.DEEPA NARAYANAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON ## **RESPONDENTS:** 1 THE GOVT.OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS, VESTED IN GOVT. (THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS), FOREST HEAD QUARTERS, VAZHUTHAKKADU, THIRUVANANTHAPURAM. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 16.01.2023, ALONG WITH MFA (FOREST).Nos.54/2015 AND 55/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(F).54, 55 and 56 of 2015 4 ## **[CR]** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A[F].Nos.54, 55 and 56 of 2015 -------------------------------------Dated this the 16[th] day of January, 2023** **J U D G M E N T** ## **Jayachandran, J.** **1.** Three original applications, O.A Nos. 24, 25 and 26 of 2010, were filed under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act 2003 ['EFL Act', for short] before the Special Tribunal, Palakkad. All the O.As were dismissed by impugned common order dated 30.03.2015. M.F.A.56/2015 is carried from the dismissal of O.A.No.24/2010, M.F.A 55/2015 from O.A.25/2010 and M.F.A 54/2015 from O.A.26/2010. The aggrieved applicants are the appellants. ## **2. Facts** Except for the pleadings tracing the title, the pleadings in all the three O.As are similar. We will M.F.A.(F).54, 55 and 56 of 2015 5 first deal with the particular facts tracing the title in each O.A, hereunder: ## O.A.No.24/2010 The scheduled property having an extent of 8 acres, which remains unsurveyed of Akambadam Village, Nilambur was part of the large extent of land which belonged to Poyyapurath Padmini Kettilamma of Kottayam Kovilakam, as jenmi. One Kunhali Haji and another took the land on oral lease long before 1963 and cultivated the same. The land, even at that time, stood cleared, devoid of any trees, bushes and undergrowth. One Mariam and Mary took the land on lease from the said Kunhali and another and continued cultivation. As per Exts.A1 to A4 title deeds of the year 2000, the applicant Valsan obtained the scheduled property. ## O.A.No.25/2010 The extent of the scheduled property is 13.98 acres of the same village. Here also, the title upto M.F.A.(F).54, 55 and 56 of 2015 6 Kunhali and another is the same. From them, one Appachan, Thomas, Mary, Chandi, Annakutty and Thomas took the scheduled property on lease and continued agricultural operations therein. They, as also, the applicant got purchase certificates from the Land Tribunal, Manjeri. The said 6 persons sold their leasehold rights over the property to the applicant, Daliya Resorts Private Limited, as per Ext.A25 to A30 documents of the years 2002, 2003 and 2007. ## O.A.No.26/2010 The extent of the scheduled property is 7 acres, again of the same village. Here also, the title upto Kunhali and another is the same. One N.K.Joseph took the land on oral lease from them and cultivated the land. As per Exts.A63 to A65 title deeds of the year 2000, one Gopalakrishnan purchased the scheduled property. He executed Ext.A83 will bequeathing the scheduled property in the name of the applicant, Sunny Samuel. M.F.A.(F).54, 55 and 56 of 2015 7 ## **3. Common Pleadings** : The scheduled properties are not ecologically fragile lands as defined under the E.F.L Act. The lands were brought under cultivation with tapioca, plantain, seasonal crops, arecanut, coffee, cardamom etc. long before 02.06.2000, the date on which the E.F.L Act came into force. Much before 1963, the lands were cultivated with the above referred crops. The lands have no characteristic features of an ecologically fragile land. The land is free of trees and undergrowth and hence not ecologically fragile. The scheduled properties are grassy lands, devoid of any tree. On such premise, a declaration was sought for in all the O.As that the scheduled properties are not ecologically fragile lands. **4.** The Divisional Forest Officer concerned filed written statement contending inter alia as follows: The scheduled properties are ecologically fragile lands in terms of notification no. EFL-10-1406/2010 M.F.A.(F).54, 55 and 56 of 2015 8 dated 21.04.2010 and the same is vested with the Government as part of 34 acres collectively. The properties are situated in survey no.1293 as per the vesting notification and presently remain as unsurveyed land of Akambadam village, Nilambur Taluk. The scheduled properties are lying contiguous to vested forests known as Ex-Manjeri Kovilakam Pantheerayiram (12000) malavaram. The properties are full of grass, with scattered growth of forest trees like vatta, veetti, nelli and other shola trees. The area is part of grass land eco-system and hence, ecologically very important. The area is home to number of animals: ungulates, carnivorous, rodents, lizards and snakes, besides representing rich avi-fauna. The grass land patches served as crucial corridor for movement of native animals, besides being an elephant corridor as well. The disputed property is the catchment area of kuravanpuzha and chembothithodu. The land was not subject to any kind of cultivation. The buildings in the land are constructed unauthorisedly for the M.F.A.(F).54, 55 and 56 of 2015 9 purpose of tourism. The land is situated 1500 feet above MSL. There exists a variety of naturally growing grass species and scattered trees in the scheduled properties. It is not necessary to have tall and thick tree vegetation to make an area ecologically fragile. The natural vegetation of certain types of forests may not contain any tree growth. On such premise, the respondents sought for dismissal of O.As. **5.** All the three O.As were jointly tried. The evidence consists of Exts.A1 to A91, supported by the oral evidence of PW1 to PW3 on behalf of the applicants. Exts.B1 to B3 were marked through RW1, the Divisional Forest Officer concerned. The Commissioner's report and sketch were marked as Exts.C1 and C1(a) respectively. **6.** The Tribunal found that the construction of sheds and modification of buildings were done after the appointed day and that the property, being hilly M.F.A.(F).54, 55 and 56 of 2015 10 and embedded with grass, answers the definition of 'forest'. Similarly, grass of medicinal variety found in the entire property would amount to natural vegetation, though the grass were found to be grown in a scientific manner. It was found that the cultivation claimed in the O.As were not established in evidence. On such premise, the three original applications were dismissed. **7.** Heard Sri.T.Sethumadhavan, learned Senior Counsel and Adv.M.P.Madhavankutty on behalf of the appellants and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests). Perused the records. **8.** Learned senior counsel assailed the impugned judgment by pointing out that existence of trees is a necessary requirement in terms of Section 2(c) of the E.F.L Act to constitute a forest, which is conspicuously absent in the scheduled property as reported by the Commissioner. A decision of this M.F.A.(F).54, 55 and 56 of 2015 11 Court in **State of Kerala v. C.Sivan** [MANU/KE/3508/2022] was relied upon in support of the above contention. If the scheduled properties are not 'forest' as per Section 2(c), the same cannot answer the definition of an 'ecologically fragile land' vide Section 2(b). Learned senior counsel then attacked the finding of the Tribunal that the scheduled properties predominantly support natural vegetation. The grass found in the scheduled property was reported to be grown in a scientific and systematic manner; by the Commissioner, wherefore, the same cannot amount to natural vegetation. Emphasis was made on the expression 'natural vegetation' as employed in Section 2(e) of the Act. It should have been found in the attendant facts and circumstances that the grass found in the scheduled property was cultivated for extracting 'pulthailam' and the same never occurred naturally on the land. It was pointed out that the expression 'naturally grown' was not originally there in the EFL ordinance, but was subsequently incorporated in M.F.A.(F).54, 55 and 56 of 2015 12 the Act, which is a conscious act done after due deliberation, having much significance. Finally, learned counsel submitted that the notification under the E.F.L Act itself was precipitated by a public agitation over a resort being set up in the scheduled properties, as could be seen from Ext.A89 series documents, unmindful of the fact whether the property answers the requirements of an ecologically fragile land in accordance with the E.F.L Act. **9.** Per contra, learned Special Government Pleader argued in support of the impugned common order. It was pointed out that the finding as regards the construction of sheds and modification of the buildings were done after the appointed day cannot be assailed in any respect. The cultivation claimed in the O.As have not been proved. The burden of proof is invariably on the applicants to establish that the scheduled properties are not an ecologically fragile one as on 02.06.2000, which legal position is vouched by the judgment of a M.F.A.(F).54, 55 and 56 of 2015 13 Division Bench of this Court in **Government of Kerala v. Jacob Thomas Arikupuram** [2019(4) KHC 625]. The applicants having failed to discharge their burden cannot assail the well considered judgment of the Tribunal. Absence of trees would not loom large, in as much as, abundant undergrowth in the form of grass were found and reported by the Commissioner. It was also argued that Ext.C1 reporting the state of affairs prevailing as on 2014 cannot be relied upon by the applicants to establish that the scheduled property was not an ecologically fragile land, the requirement of law being the state of affairs prevailing as on 02.06.2000. The learned Special Government Pleader sought for dismissal of the appeals. **10.** Having heard the learned counsel appearing on both sides, we cannot approve the course adopted by the Tribunal to dismiss the O.As. We are in complete agreement with the finding of the Tribunal as regards the exemption based on cultivation, M.F.A.(F).54, 55 and 56 of 2015 14 envisaged in Section 2(c) of the E.F.L Act. The applicants specifically pleaded cultivation of tapioca, plantains, seasonal crops, arecanuts, coffee, cardamom etc as on the date of vesting, 02.06.2000 and much prior to that. However, they could not adduce any satisfactory evidence in support of the same, except the interested testimonies of PW1 and PW3, which we cannot reckon in view of the dictum laid down in **State of Kerala v. Alexander** [1993 KHC 168]. PW2, who claims to be the owner of the property on the immediate southern boundary of the scheduled properties, only speaks of cultivation of medicinal grass, orange and lime in the properties, in respect of which we find no supporting pleading. The applicant in O.A.No.24/2010 obtained title over the properties only on 12.06.2000 vide Exts.A1 to A4, admittedly after the date of vesting, 02.06.2000. The applicant in O.A.No.25/2010 got title to the scheduled property only in the year 2002, 2003 and 2007 vide Exts.A25 to A30. Similarly, the applicant in O.A.No.26/2010 M.F.A.(F).54, 55 and 56 of 2015 15 got title to the property vide Exts.A63 to 65 only on 26.08.2000, which again is subsequent to the date of vesting. Therefore, for the purpose of exemption under Section 2(c), the cultivation, if any, of the prior owners of the applicants is to be looked into. Of course it is pleaded that the cultivation afore-referred were conducted by the prior owners much before the year 1963. However, there is no proof in support of the same. We therefore fully concur with the findings of the Tribunal as regards the disentitlement of the applicants for exemption under Section 2(c). **11.** However, the same cannot automatically result in dismissal of the O.As. To establish a vesting under the E.F.L Act, it has to be proved that the disputed property answers the definition of an 'ecologically fragile land' in terms of Section 2(b) of the Act. As per Section 2(b), any forest land which is lying contiguous to or encircled by a reserved forest, a vested forest or any other forests and which M.F.A.(F).54, 55 and 56 of 2015 16 predominantly supports natural vegetation is an ecologically fragile land. We are not concerned with lands which are declared ecologically fragile in terms of Section 2(b)(ii) of the Act in the given facts. Section 2(c) defines 'forest' as any land principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognized and declared as reserve forest, protected forest or otherwise. However, lands which are used principally for the cultivation of long duration crops specified in Section 2(c) are exempted, which we have already found that the applicants are not entitled to. **12.** The word 'natural' as occurring in the expression 'natural vegetation' in the definition of ecologically fragile land under Section 2(b), as also, in the expression 'naturally grown trees' as employed in the definition of 'forest' under Section 2(c) is of seminal importance in adjudging whether the disputed land is an ecologically fragile one or M.F.A.(F).54, 55 and 56 of 2015 17 not. We specifically notice that in the E.F.L Ordinance of the year 2001, the requirement as regards the existence of trees were not qualified and prefixed by the expression 'naturally grown'. This was subsequently added when the E.F.L Act was promulgated in the year 2003, which assumes great significance, especially in the peculiar facts and circumstances of the case at hand. Before specifically addressing the particular facts, we notice that in order to constitute a 'forest' in terms of Section 2(c) of the Act, the land should be principally covered not only with trees, but also undergrowth, with a condition super added that such trees and undergrowth should be 'naturally grown'. Simultaneous with this, we also notice that as per the definition of an 'ecologically fragile land' vide Section 2(b), the forest land should predominantly support vegetation, which again is natural vegetation. **13.** With the above prelude, we will address the M.F.A.(F).54, 55 and 56 of 2015 18 facts which are established in evidence, to ascertain whether the scheduled properties are ecologically fragile or not. We would straight away refer to Ext.C1 report of the Commissioner. In the context of natural vegetation and naturally grown trees, the following findings of the Commissioner are relevant and extracted herebelow. “On my visit I could find only a few number of trees in the schedule property. The major portion of the properties are covered with grass. And that too those that are permitted to be grown in a scientific manner. Those grass are medicinal verity grass and there I found a permanent “Steam Distillation Unit” to extract oil from the grass. In between the grass, I found lime and orange plants planted.” **==> picture [446 x 12] intentionally omitted <==** 'natural vegetation' as contained in the definition clause in Section 2(b). The findings extracted above has been repeated by the Commissioner in answer to question nos.2 and 8 as well. The question is M.F.A.(F).54, 55 and 56 of 2015 19 whether the grass which covers the major portion of the scheduled properties amounts to natural vegetation or not. Three aspects loom large in this regard. The first is that the grass found in the properties was found grown in a scientific manner. The second aspect is that the grass found was of a medicinal variety and the third, the existence of a steam distillation unit, which according to the Commissioner, is for extracting oil from the grass. All the three parameters referred above would converge to the conclusion that the grass found in the scheduled properties are not naturally or spontaneously grown, but the result of human labour and intervention, thus not answering the requirement of 'natural vegetation'. In as much as the disputed property does not predominantly support natural vegetation, the same cannot be held to be an ecologically fragile land. **15.** Now, coming to the requirement of the land being principally covered with naturally grown trees and M.F.A.(F).54, 55 and 56 of 2015 20 undergrowth, we are again certain in our minds that the mandate is not satisfied to qualify the disputed land as a forest, under Section 2(c). The finding of the Commissioner that there are only a few number of trees in the scheduled property substantiates that the requirement of land being principally covered with naturally grown trees is not satisfied. In this regard, we may profitably refer to one of our decisions in **State of Kerala v. C.Sivan** [MANU/KE/3508/2022] where, we held in paragraph no.8, that lands which are principally covered with naturally grown trees and undergrowth alone would answer the definition of 'forest' and 'forest land' as defined in the Act and that, absence of trees would take the land away from the definition of forest. The definition also warrants undergrowth over and in addition to naturally grown trees. In the instant facts, as found already, the existence of grass of medicinal variety, that too grown in a scientific manner would not answer the requirement of naturally grown undergrowth. M.F.A.(F).54, 55 and 56 of 2015 21 **16.** Thus, going by the available evidence, the scheduled property is not established to be an ecologically fragile land in terms of Section 2(b) r/w section 2(c) of the EFL Act. **17.** We are also not quite happy with the manner in which the Tribunal dealt with Ext.A6 letter issued by the Joint Secretary (Law) to the Divisional Forest Officer concerned. The same letter is seen produced as Ext.A62 in O.A.25/2010 and Ext.A78 in O.A.No.26/2010. The letter deals with the notification under the E.F.L Act proposed in respect of 34 acres, of which the scheduled properties form part. Referring to a report, the letter points out that, 14 acres is grass land without any tree growth and the same will not apply to the definition of forest and therefore, will not vest under Section 3(1) of the Act. Ext.A6/A62/A78 has been wished away by the Tribunal treating the same as an internal communication between the Law Department and the Forest Division concerned, which course cannot be M.F.A.(F).54, 55 and 56 of 2015 22 approved. Ext.A6 throws light into the state of affairs prevailing in the scheduled property before issuance of the notification under the E.F.L Act, which according to us has some significance. Upon perusing the impugned common order, the finding in paragraph no.18 that, grass is an undergrowth and that scheduled property would attract the definition of forest in as much as it is hilly and embedded with grass, cannot be sustained. We also cannot approve the logic of the Tribunal in accepting the argument of the learned Special Government Pleader that since the property lie at a height of 1053 meters above the sea level, there could only be few trees therein, for, the definition of forest under Section 2(c) does not permit of such an interpretation. In the result, we find that the scheduled properties does not answer the requirements of an ecologically fragile land as defined in Section 2(b), r/w Section 2(c) of the E.F.L Act, even when M.F.A.(F).54, 55 and 56 of 2015 23 we find that the applicants failed to prove the exemption on the basis of cultivation claimed in the O.As. Consequently, this appeal is allowed, setting aside the impugned order and declaring that the scheduled properties are not ecologically fragile lands. We leave the parties to bear their respective costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN JUDGE** Sbna/