MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 (Glen Leven Estates (P) Ltd. v. State of Kerala and Others)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## _**C.R.**_ # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944 OP(FT) NO. 4 OF 2015** **AGAINST THE ORDER IN OA 12/2014 DATED 10.07.2015 OF ADDITIONAL DISTRICT JUDGE AND FOREST TRIBUNAL FOR EFL CASES** ## **KOZHIKODE** ## **PETITIONER/APPLICANT:** M/S.GLEN LEVEN ESTATE(P)LTD VARAYAL P.O., MANANTHAVADY, WAYANAD - 670 644 REPRESENTED BY ITS MANAGING DIRECTOR, P.C.IBRAHIM S/O.MAMMU, PADINHARAYIL HOUSE, WAYANAD DISTRICT. BY ADVS.SRI.BIJU ABRAHAM SRI.B.G.BHASKAR ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001. - 2 CHIEF CONSERVATOR OF FORESTS AND CUSTODIAN OF ECOLOGICALLY FRAGILE LAND THIRUVANANTHAPURAM - 695 001. - 3 DIVISIONAL FOREST OFFICER NORTH WAYANAD DIVISION MANANTHAVADY, WAYANAD - 670 644. BY ADV SRI..BIJU ABRAHAM (CAVEATOR) SRI.M.K.S.MENON SRI. NAGARAJ NARAYANAN, SPL GOVERNMENT PLEADER THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 27.10.2022, ALONG WITH MFA (FOREST).1/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA(Forest) No.1 of 2016 & O.P(FT) 4 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 THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944 MFA (FOREST) NO. 1 OF 2016** **AGAINST THE ORDER IN OA 12/2014 DATED 10.7.2015 OF FOREST** ## **TRIBUNAL, KOZHIKODE** ## **APPLICANTS/RESPONDENTS:** - 1 STATE OF KERALA REP. BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. - 2 THE CHIEF CONSERVATOR OF FOREST AND CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS THIRUVANANTHAPURAM. - 3 THE DIVISIONAL FOREST OFFICER NORTH WAYANAD DIVISION, MANANTHAVADY. BY ADV SRI.M.P.MADHAVANKUTTY, SPL. GOVT. PLEADE ## **RESPONDENT/APPLICANT:** GLEN LEVEN ESTATES, VARAYAL, MANANTHAVADY, PIN670 644, REPRESENTED BY ITS MANAGING DIRECTOR P.C.IBRAHIM. BY ADVS.SRI.BIJU ABRAHAM& B.G.BHASKAR FOR CAVEATOR SRI.NAGARAJ NARAYANAN, SPL. GOVERNMENT PLEADER THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 27.10.2022, ALONG WITH OP(FT).4/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **3** _**C.R.**_ **K.VINOD CHANDRAN & C. JAYACHANDRAN, JJ ----------------------------------------------------------------M.F.A.(Forest) No.1 of 2016 & O.P (F.T) 4 of 2015 ---------------------------------------------------Dated this the 27[th] October, 2022** ## **J U D G M E N T** ## **K. Vinod Chandran,J** The State impugn the order of the Forest Tribunal which absolve the scheduled property from vesting under the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003 (for brevity, the EFL Act). The OP(FT) seeks compensation, by way of damages, for the period the petitioner was divested of the beneficial enjoyment of the B scheduled property; illegally, under one pretext or other. The Tribunal found that there was earlier a notification under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity, the Assignment Act) with respect to larger extent of lands within which was comprised the very same land. The subject land, with an additional ten acres, together and more fully described as A schedule in the application, was absolved from vesting under the Assignment Act by the Forest Tribunal, which MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **4** was confirmed in appeal by this Court. By virtue of the said declaration and the dictum in _State of Kerala v. Kumari Verma 2011 (1) KHC 502_ there cannot be any subsequent vesting under the EFL Act, especially since the owners/applicants were not permitted to put the land to beneficial use. From the various proceedings taken by the petitioner under the Assignment Act, the writ petition filed for restoration of properties, and the multiple litigation against the attempt of the department to prevent the applicants from putting the property to beneficial use, it was found that the declaration under the Assignment Act, having absolved the entire A schedule property (123 acres) from vesting under that earlier Act; the B schedule property (113 acres) does not fall under the definition of ecologically fragile lands, as on the appointed day under the EFL Act; ie: 02.06.2000. The Tribunal consequent to such declaration, issued an order of mandatory injunction directing the respondents to put the applicant in possession of the B schedule property, but rejected the claim for compensation. 2. Arguing for the appellant State, learned Special Government MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **5** Pleader Sri. Nagaraj Narayanan pointed out that the property was handed back to the applicant in the year 1995. There was no cultivation carried on in the property after the applicant obtained possession of the same and hence, the property became an ecologically fragile land as defined under the EFL Act as on the appointed day and there was no cultivation discernible in the property. Answering the contention of the applicant that the order issued under the Kerala Preservation of Trees Act, 1986, prevented the applicant from carrying out any cultivation, the learned Special Government Pleader took us through the said enactment. The prohibition of cutting of trees in notified areas, as seen under S.5, by the proviso clearly excludes pruning of any tree as required for ordinary agricultural or horticultural purposes. The applicant was cultivating cardamom in the said property as claimed by them in the proceedings under the Assignment Act. The existence of trees do not prevent cardamom cultivation which in fact requires shade for proper growth. There was also no prohibition in cultivating pepper in the property and for such purposes pruning of trees was permissible **6** MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 under the Act. 3. The contention raised is only to wriggle out of the requirement of cultivation, that too the property being principally cultivated with specified long duration crops as on the appointed day of the EFL Act. Despite the property remaining with the applicant for more than five years, there was absolutely no cultivation carried out in the property. It is pointed out that the subject lands are pristine ever green forests in the Wayanad plateau, part of the Western Ghats and a foraging ground of wild animals, reptiles and birds; rich in bio diversity. These forests are being destroyed and the EFL Act is enacted with the object of preservation of such pristine forest lands, as distinguished from the object of the Assignment Act, which was agrarian reform. The learned Special Government Pleader asserts that the order has to be overturned and in any event there is no scope for any compensation. It is also argued that the property is one which has statutorily vested in the government under the EFL Act, as per the dictum in _State of Kerala V. Unnikrishnan 2013 (2) KLT 240_ and _Government of Kerala v. Jacob Thomas Arikupuram 2019 (4)_ **7** MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 _KHC 625_ . 4. Sri. M.K.S Menon, learned Counsel appearing for the applicant/respondent herein, argues that _Kumari Verma (supra)_ is squarely applicable. The dictum in _Unnikrishanan (supra)_ and _Jacob Thomas (supra)_ is not applicable herein since the applicant never had free use of the property for the purpose of commencing cultivation despite the property being restored. The department was preventing the cultivation in the property and the applicant was before courts against such illegal, obstinate and consecutive preventive measures taken by the officers of the department. The learned Counsel also relies on the decisions of this Court in _Abdul Rahiman v. District Collector 2009 (4) KLT 485_ and _Mohammed v. State of Kerala 1986 KLT 681_ . It is also urged that _Kumari Verma (supra)_ followed the dictum in _Bhavani Tea and Produce Co. Ltd v. State of Kerala and Others 1991 (2) SCC 463_ . 5. The various proceedings with respect to the scheduled land is evident from the order and we have looked at the judges papers of the various proceedings, which we thought were relevant. A larger extent MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **8** including the scheduled properties were notified under the Assignment Act in the year 1976, pursuant to which the applicant approached the Forest Tribunal with O.A No.148/1976. The O.A was allowed by the Forest Tribunal and an appeal filed as M.F.A No.542/1978 was dismissed by this Court in the year 1981. Admittedly, the Forest Department did not restore the property to the possession of the applicant and eventually the applicant filed W.P. No.14133/1994 and Contempt of Court Case No. 158/1995 before this Court. The property then, was restored to the applicant on 24.6.1995, immediately after which the Forest Department proposed a notification under the Preservation of Trees Act. A communication dated 04.01.1996 was issued to the applicant, which was challenged in O.P No.4353/1996, in which O.P., it was declared that the Preservation of Trees Act is not applicable to the subject property. The Communication produced as Ext. P4, in that original petition, which we saw from the judges papers, clearly prohibited felling of trees in the area and ordered _status quo_ maintenance of the tree growth in the restored lands. The draft of the notification MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 ## **9** proposed was also produced as Ext. R3(c) by the respondents. Hence, despite restoration there was clear interdiction of felling of trees in the property. 6. The Forest Department unsuccessfully prosecuted an appeal before this court as W.A No.1449/2003 and an SLP before the Hon'ble Supreme Court (SLP 1380/2007), the last of which stood dismissed on 10.4.2013. The applicant also approached the Munsiff's Court, Mananthavady with O.S No.17/2007, seeking an injunction against the forest officials, in which the application for temporary injunction stood dismissed. The applicant approached the Sub Court with a CMA in which a temporary injunction was granted as per order dated 18.7.2007. It was while these proceedings were going on that the 3[rd] appellant issued notice dated 9.8.2004 demanding possession of 113 acres out of 123 acres, which order was challenged by the applicant in W.P.C No.25801/2007, wherein, _status quo_ was ordered. The department also filed W.P.C No.25867/2007 on the very next day of the order in CMA, challenging the same and obtained an order of _status quo_ . The applicant then sought MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **10** amendment of WPC 25801/2007, incorporating a challenge to the constitutional validity of the EFL Act, which writ petition itself eventually stood dismissed by order dated 17.11.2014, directing the applicant to approach the Tribunal. Thus the applicant was before the Forest Tribunal. 7. Admittedly, the B schedule property in the instant OA was absolved from the Act of 1971, which at least demonstrates that as on the appointed day of that Act, the property was eligible for exclusion on the ground of cultivation being carried on. Though the property was absolved from vesting as declared by the Forest Tribunal, the same was not handed over to the applicant for 14 long years. Later, the land was handed over on 24.06.1995, immediately after which there was a communication dated 04.01.1996, proposing notification under the Preservation of Trees Act, against which again the applicant had approached this Court. It is only reasonable to assume that the applicant was not able to carry out any cultivation for reason of the various proceedings against the land initiated by the Forest Department. Having unleashed the might of the State against the MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **11** particular land, it cannot be contended by the very same State that there were enough loop holes in the enactment under which the notification was issued, to carry out certain cultivation in the property. 8. We are of the definite opinion that it is not for the State to determine or propose the nature of the cultivation to be carried on in the property restored to its rightful owners. It does not also lie in the mouth of the State to contend that even when due compliance of the Preservation of Trees Act is made, the applicant could have commenced the cultivation, which they claimed to have been carrying on as on the appointed day of the Assignment Act, viz: cardamom. For a long 14 years, the applicant was not allowed to enter the property and immediately after the same was restored to its possession, a communication was was issued prohibiting cutting of trees and maintenance of _status quo._ In fact it is clear from the communication produced as Ext. P4 in O.P. No. 4353/1996 that the same was issued when the owners attempted clear felling for commencing coffee cultivation. The communication clearly indicates **12** MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 that the Forest Range Officer addressed the owner on being made to understand that they are preparing the restored land for coffee cultivation after clear felling the under growth and smaller trees in the land. This clearly indicates the intention of the owner and the interdiction made by the State through its Officers. The communication dated 04.01.96 in O.P.No.4353 of 1996 as Ext.P4 is extracted hereunder: _- O.A.148/76 Exhibit P 4 O.Jayarajan, Peria Forest Range Officer, Forest Range Officer, Mananthavady Dt.4-1-96 Peria, Manamthavady._ _The Managing Director, Glen Leven Estate Ltd, Varayal P.O., Thalapuzha_ _Sir,_ _Sub:- Area in O.A.148/76 handed over to the petitioner on 24-6-95 Ref:- Mahazar dtd. on 24-6-95._ _I am made to understand that you are preparing the restored land for coffee cultivation after clear felling the under growths and the smaller trees of the land even before receiving the finally approved sketch of the area. It is also understood that the trees already felled from the area are being utilised as firewood in the adjacent Tea estate._ _I am to inform you that the restored land involved in O.A.148/96 is already proposed for_ MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **13** _notification Under Section 5 of Kerala Preservation of Trees Act, 1986. Hence you are requested to maintain the status quo of tree growth of the land as restored to you. Felling of trees should not be carried out in the area without prior sanction of the authorised officer as required by Section 5 of KPT Act. Copy of the notification will be served to you immediately after the gazette publication.”_ ## _Yours faithfully,_ _Sd/Forest Range Officer Peria Range, Niravilpuzha_ 9. The entire land having been covered with natural vegetation in the preceding 14 years, when the applicant was divested of the possession of the property, obviously cultivation could not have been commenced on the mere restoration being effected, without effective use of the land being permitted by the owners. On the above reasoning, it has to be found that _Kumari Verma (supra)_ applies squarely to B scheduled property and the State cannot take advantage of its own wrong. 10. _Kumari Verma (supra)_ found so in paragraph 24, extracted herein below: 24. The lands in dispute in these two appeals are not lands **14** MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 falling within any notified “Reserved Forest” under the Kerala Forest Act; nor are they demonstrated to be “Protected Forests” under the abovementioned Act. They are excluded from the purview of the expression “private forest” under the Kerala Private Forests (Vesting and Assignment) Act, 1971 on the ground that they are lands which are principally used for cultivation of cardamom immediately before the appointed day under the abovementioned Act, i.e. 10.5.1971, though they would have otherwise satisfied the definition of “private forests” under the above mentioned Act, a finding which is confirmed by the highest Court of this country. Therefore, these lands cannot be treated as ecologically fragile lands merely because they are lying contiguous to or encircled by a reserve forest or a vested forest. [underlining by us for emphasis] 11. _Unnikrishnan (supra)_ noticed _Kumari Varma_ (supra) but distinguished it. The subject land in _Unnikrishnan_ was also declared to be exempted from vesting under the Vesting Act of 1971, which declaration stood affirmed by this Court. The land was also restored to the respondent on 12.01.2000 and when the EFL Act came into force, again a notification was issued declaring the vesting of the land under that Act, which was challenged before the Tribunal and a declaration obtained, which was assailed by the State before the High Court. The Division Bench found, as was found by the **15** MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 Tribunal in this case; which is stated above, that there are three ingredients to be satisfied to declare a land to be one possible of vesting under the EFL Act. It was found that when admittedly the land was notified under the Vesting Act of 1971, despite the declaration of exemption granted by the Tribunal, it is a forest land. The Division Bench found that for want of better evidence, the boundaries of the properties as seen from the notification has to be accepted which shows the land to be bounded on three sides by vested forest. Thus, finding that the first & second ingredients are satisfied, on the last ingredient, _Kumari Varma_ (supra) was noticed and the same was distinguished. It was found that _Kumari Varma_ 's case dealt with a notification under Section 4(1) of the EFL Act which is in relation to the definition of ecologically fragile land under Section 2(b)(ii) of the EFL Act. It was also found that _Kumari Varma_ (supra) in paragraph 14 recognizes a distinction in so far as the classification of lands as ecologically fragile lands under sub clause (i) and (ii) of Section 2(b). 12. We find that there is a distinction of the classification under MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **16** sub clause (i) and (ii) of Section 2(b) as found in _Kumari Varma (supra)._ But we are are unable to agree with the distinction drawn on facts, from _Kumari Varma (supra)_ especially looking at the definition of ecologically fragile land. First, we have to notice that _Kumari Varma_ was not a case falling under Section 2(b)(ii) as is evident from paragraph 14 of _Kumari Varma_ which is extracted herein below; which paragraph was specifically noticed in _Unnikrishnan_ (supra). It can be seen from the above that under R.2(b) (i) lands falling within the description contained thereunder become ecologically fragile lands by virtue of the operation of the law, though such an operation of law itself depends upon - the existence of certain facts. On the other hand, sub s.(ii) of S.2(b) envisages that any land can be declared to be as an ecologically fragile land by the Government by notification in the Gazette under S.4. Under what circumstances and in what manner such a declaration can be made need not be examined, as admittedly it is not the case of anyone of the parties before this Court that the lands in question, in these two appeals, fall under the said category. For the present it is sufficient to notice that there can be two categories or classes of lands which can be called ecologically fragile lands within the meaning of the 2003 Act. ## [ _underlining by us for emphasis_ ] MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **17** 13. The dictum in _Kumari Varma (supra)_ hence applies squarely to Section 2(b)(i) of the EFL Act which was the factual foundation of both _Kumari Varma_ & _Unnikrishnan (supra)_ . We would in this context also refer to the relevant definition clauses under the EFL Act, which are as below: 'S.2(b) (i) any Forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest of a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation; and (ii) any land declared to be an ecologically fragile land by the Government by notification in the Gazette under Section 4. S.2(c) “forest” means any land principally covered with naturally grown trees and undergrowth and includes any forest 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, arecanut or cashew or any other sites of residential building and surroundings essential for the convenient use of such buildings.' 14. From the definition of forest, as available in Section 2(c), lands, which are cultivated principally with certain specified, long duration crops, other sites of residential buildings and MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **18** surroundings essential for the convenient use of such buildings, have been exempted. While interpreting sub clause (i) of Section 2(b), the definition in Section 2(c) has to be super imposed on the word 'forest land' used in that section. Hence, every forest land or portion thereof held by any person, lying contiguous to or encircled by a reserved or vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation, would stand included under the definition of EFL; if and only if, the land is not one in which one of the specified crops is principally cultivated. We are hence of the opinion that _Kumari Varma_ (supra) and the dictum therein applies squarely in cases where the subject lands were declared to be exempted under the Act as cultivated lands and despite such declaration, the same was not restored to the owners till the EFL Act came into force or the owners prevented from carrying on cultivation; as in the instant case. It was in that circumstance, the Division Bench in _Kumari Varma_ (supra) held that after depriving the owner, possession and thus the right to cultivate, the State cannot take advantage of its own wrong to assert presence of natural tree MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **19** growth and under growth, for the purpose of bringing the land under the EFL Act. 15. _Unnikrishnan (supra)_ and _Kumari Varma_ (supra) are coordinate Benches, the former preceding the latter. The facts in _Kumari Varma_ (supra) specifically apply to Section 2(b)(i) of the EFL Act, but _Unnikrishnan_ having not correctly noticed the facts; we are of the respectful opinion that we are not bound to follow the subsequent decision. We garner support from the decision in _National Insurance Company Ltd. v. Pranay Sethi (2017) 16 SCC 680_ which found that a later coordinate bench holding differently from the earlier one cannot be taken as a binding precedent. It was held by the Constitution Bench of the Hon'ble Supreme Court that a decision will be _per incuriam_ when any provision in a statute, rule or regulation was not brought to the notice of the Court and also if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a coequal or larger Bench. 16. In _Unnikrishnan (supra)_ the learned Judges went on to find that the land was restored on 12.1.2000 and though the **20** MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 respondent was in possession of the said lands for a period of 9 years, there was no attempt to carry out any cultivation. It was also found that but for the oral evidence that the forest officials prevented him from cultivating the lands, there is no evidence except that self serving one. We fully agree with the said proposition in _Unnikrishnan (supra);_ which proposition on facts was not applicable in _Kumari Varma (supra)_ and is not applicable in the instant case too. As in _Kumari Varma (supra)_ the State herein also refused restoration of the property for a long 14 years and eventually, when it was restored in 1995, immediately put one or other spoke in the attempts made by the applicant/owner to cultivate the property. It is based on this illegality and the wrong perpetrated by the State, that now attempt is made to assert vesting under the EFL Act, for reason of natural growth having abounded in the lands. The attempt of the owner to commence cultivation is also evident from the communication issued by the department, soon after the restoration, which speaks of the preparations for cultivation, by the owner, which motivated the Department to order _status quo_ maintenance of the MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **21** tree growth in the property. We find no reason to upset the findings of the Tribunal, declaring the B schedule property to be absolved of the vesting under the EFL Act. 17. True the applicants were divested of possession of the land for a long period, but however proceedings were pending before the various courts. The Tribunal rightly found that the EFL Act does not empower the Tribunal to grant compensation for dispossession of the property. We find no reason to consider the aspect of compensation in the original petition, especially in an appeal from the order of the Tribunal. The entire A schedule property in which is comprised B schedule property found to be not a forest land vested with the government under S.3(1), is upheld. The B schedule property shall be restored to the possession of the applicant within a period of three months by the custodian as mandated under Section 11(4) of the EFL Act. The MFA and the original petition stands dismissed. Sd/- ## **K.VINOD CHANDRAN, JUDGE** **Sd/-** ## **C. JAYACHANDRAN, JUDGE** uu MFA(Forest) No.1 of 2016 & O.P(FT) 4 of 2015 **22** ## **APPENDIX OF OP(FT) 4/2015** PETITIONER EXHIBITS P1: A TRUE COPY OF THE MEMORANDUM OF O.A 12/2014 ON THE FILES OF DISTRICT COURT, KOZHIKODE AND FOREST TRIBUNAL UNDER THE KERALA FORESTS (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) ACT, 2003. P2: A TRUE COPY OF THE ORDER IN O.A 12/2014 DATED 10/7/2015 OF THE DISTRICT COURT, KOZHIKODE AND FOREST TRIBUNAL UNDER THE KERALA FORESTS (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) ACT, 2003.