MFA(Forest) No.6/2020

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 12[TH] DAY OF JANUARY 2023 / 22ND POUSHA, 1944 MFA (FOREST) NO.6 OF 2020** **AGAINST THE ORDER DATED 15.11.2017 IN O.A.NO.20/2010 OF THE** **FOREST TRIBUNAL, PALAKKAD** ## **APPELLANTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, TRIVANDRUM.** **2 THE CUSTODIAN (ECOLOGICALLY FRAGILE LANDS) AND CHIEF CONSERVATOR OF FORESTS (WILDLIFE), FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.** **BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST** **RESPONDENT/APPLICANT:** **N.O.JOSE S/O LUKOSE, NEDIYUZHATHIL, ELAMKULAM, ERNAKULAM, COCHIN-682017.** **BY ADV SRI.M.C.JOHN** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MFA(Forest) No.6/2020** **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------MFA(Forest) No. 6 of 2020** **------------------------------------------Dated this the 12[th] day of January, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J** The appeal is by the State from an order under S.10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity, the EFL Act). The applicant claimed exemption over 10.19 acres comprised in Re.Sy.No1518 in Block No.55 of Pudussery East Village, purchased in 1996, as per Ext.A3 document. The said land forms part of 92 acres which was the subject matter of O.A.No.484/1974, under the Kerala Private Forest (Vesting and Assignment) Act, 1971, (for brevity, the Vesting Act). The declaration of exemption granted by the Forest Tribunal, Palakkad, was confirmed in M.F.A.No.401/1978 by this Court and also by the Hon'ble Supreme Court in C.A.No.3695/1989. Despite the applicant being found eligible and entitled to get the entire property restored, the same was not restored **MFA(Forest) No.6/2020** **3** and the Hon'ble Supreme Court directed alternate land to be conceded or compensation to be paid. It was out of the total lands restored and compensated that 10.19 acres were purchased by the applicant. The applicant claimed that the lands were personally cultivated as on 10.5.1971, as found by the Tribunal and confirmed upto the Hon'ble Supreme Court. _State of Kerala v. Kumari Varma 2011(1) KLT 1008_ hence squarely applies was the contention. 2. The Divisional Forest Officer, Palakkad, raised the ground of limitation and disputed the title and ownership over the lands. It was pointed out that the northern boundary of the property lies as a forest and the major portion of the scheduled land is a highly sensitive and fragile land notified as ecologically fragile land on 26.8.2000. The proceedings under the Vesting Act was admitted, but the same has no application in so far as the EFL Act, especially if the land as on the appointed day under EFL Act; _viz_ 2/6/2000, lies as an ecologically fragile land. The property was lying contiguous to vested forest with predominant natural vegetation and there is total absence of cultivation. The entire scheduled property, according to the State, is a thick **MFA(Forest) No.6/2020** **4** evergreen forest rich in biodiversity and sustaining wild life including migratory birds. The area is full of rare, endangered and endemic species of wild flora and fauna. 3. The learned Tribunal raised a single issue as to whether the land is ecologically fragile land or not. The Tribunal found title on the applicant based on Exts.A1 to A3 registered deeds. It was found that in the proceedings under the Vesting Act, 75 acres were found to be planted with teak, orange and soft wood, 2 acres with cashew and another 15 acres with personal cultivation. The applicant admitted his lack of personal knowledge about the nature of the property prior to his purchase, which according to the Tribunal was not a valid ground to disallow his claim. He had specifically asserted that after the purchase, he had been cultivating the said property. PW2 testified that he knew the property for more than 20 years and the predecessor-in-interest had cut and removed the trees in the scheduled property to cultivate ground nuts, which cultivation was continued by the applicant also. The Commissioner's report noticed the private properties lying on the boundaries of the scheduled land which are cultivated. It was opined by **MFA(Forest) No.6/2020** **5** the Commissioner that, on field inspection, the scheduled lands were perceived to be agricultural land lying contiguous with other agricultural lands. The scheduled property was also found to be fit for cultivation of groundnuts which was cultivated in the neighbouring properties. The evidence of RW1, Range Officer, Walayar, was found to be not substantiating the contention of the State, especially since the witness had acquaintance with the property only from 5.10.2017. There was also no objection filed to the Commissioner's report. The learned Tribunal relied on _Kumari Verma_ and _Kunhiraman P.V. v. Custodian of vested forest 2014 (4) KLT 740_ to find that the order of the Forest Tribunal under the Vesting Act was pursued by the Government unsuccessfully till the Hon'ble Supreme Court. Having failed therein, there was absolutely no reason for the respondents to now dispute the cultivation in the property and claim vesting under the EFL Act. 4. We have heard learned Special Government Pleader (Forest) Sri. Nagaraj Narayanan for the appellant State and Sri., M.C.John, the learned Counsel for the respondents. 5. The learned Special Government Pleader specifically relied on **MFA(Forest) No.6/2020** **6** the inspection report of the Committee constituted under Rule 18 of the EFL Rules, 2007, which inspection was carried out at the instance of the applicant and produced and proved by the applicant himself. The facts are fairly clear from the said inspection report which traces the title and the earlier proceedings under the Vesting Act. Under the Vesting Act, the applicant was one Parukkutty Mannadassiayar who claimed exemption over 102 acres before the Forest Tribunal, Palakkad. The Tribunal allowed the exemption and in the appeal before the High Court, the exemption granted was confined to 92 acres and the matter was remanded back for identification of the balance 10 acres found vested in the Government. The said 10 acres was demarcated and a sketch filed before the Forest Tribunal. When restoration proceedings were taken, it was found that only 8 acres are vested with the Government. An extent of 56.31 acres was restored earlier and the Government directed restoration of the balance 23.69 acres also. The Hon'ble Supreme Court, by order dated 5.9.1989, held that the appellants are entitled to restoration of 92 acres and the respondent was directed to trace out the 12 acres in the locality and make over vacant possession to the appellant **MFA(Forest) No.6/2020** **7** within four moths. It was also ordered that if any extent of property is not restored, then the short fall ought to be compensated. As per the direction, an amount of Rs.4,96,000/- was paid to the appellants being the value of 12 acres of private forest land on 31.01.2001, in lieu of the short fall. Admittedly, it is from the restored lands that the lands scheduled in the instant application was purchased by the appellant. 6. The applicant in the above case obtained the scheduled property from one Mohammed Haji, to whom the property was sold by Balagovinda Menon, who obtained the land from the applicant under the Vesting Act; Parukutty Mannadassiar. On the east, south and west, the properties were bounded by vested forest and the general appearance of the area lies continuous to a huge _Malavaram_ (slope of a hill) called _Vadassery Malavaram,_ supporting natural vegetation of moist deciduous type. The plants found in the land were forest species which were rich in specie composition and diversity, wherein no remnant of cultivation was seen. The trees found in the property were listed as Annexure II and III and there were also two streams flowing through the area one of which was perennial. As per Ext.A7 report and the analysis of vegetation, in a **MFA(Forest) No.6/2020** **8** sample plot carried out therein, showed the average number of trees per hectare to be 750. The specie composition inside the scheduled land was also found to be similar to that in the adjacent forest area. It was based on this that the Committee in A7 concluded that the area forms part of a vast wild life habitat and abounds with large number of forest tree species. It was thus the Committee recommended for the maintenance of the area as an ecologically fragile land. 7. We find no reason to interfere with the findings of the Tribunal regarding the _locus standi_ of the applicant who had purchased the land from persons who were in cultivation of the lands as on 10.5.1971; the appointed day under the Vesting Act. However, the decision under the Vesting Act cannot have any application to the statutory rigour under the EFL Act, especially when the provision of vesting under S.3 starts with a _non obstante_ clause giving the enactment full force and vigour notwithstanding any other law, judgment, decree or order of any Court or Tribunal. The only reservation can be on the facts of _**Kumari Verma**_ (supra). Therein, a cardamom plantation was alleged to have vested in the State under the Vesting Act, against which the owners successfully **MFA(Forest) No.6/2020** **9** approached the Forest Tribunal. The declaration of the Forest Tribunal was put to challenge unsuccessfully by the State, before this Court and the Hon'ble Supreme Court. During the interregnum, the property remained with the State and despite a statutory mandate on the Custodian under S.8 (3) (b) of the Vesting Act to restore the lands, if the appeal filed by the State before the High Court is dismissed, the Custodian failed so to do. The land remained with the State and the owners could not carry out any cultivation thereon. After the EFL Act came into effect, the State through the forest officials, asserted that the lands in the interregnum had been converted to a forest, by the natural growth of forest species trees and thick undergrowth, which made it an ecologically fragile land, liable to be vested under the EFL Act. The circumstance of the conversion of the cultivated land into an ecologically fragile land, was only by reason of the restoration having not been effected, despite a declaration by the Forest Tribunal of exemption under the Vesting Act. It was hence a Division Bench of this Court found that the State cannot rest contend on its own wrong, to allege vesting under the subsequent enactment. The reasoning was that, if the original **MFA(Forest) No.6/2020** **10** owners were granted restoration of the property as statutorily mandated, then definitely they could have carried out cultivation thereon and if they did not, the conversion into an land principally grown with natural trees and undergrowth would stand vested under the subsequent enactment. Having divested the owner from the possession and enjoyment of the property, the State cannot allege vesting under the subsequent enactment, was the finding. 8. The said decision does not apply to the present case, especially since there was a restoration effected by the State, atleast after the decision of the Hon'ble Supreme Court. In such circumstances, there should have been cultivation commenced in the property which was not done. 9. _Kunhiraman P.V_ (supra), the decision of a learned Single Judge, was reversed in _2018(3) KHC 768 Custodian of Vested Forest Palakkad v._ _P.V Kunhiraman._ Therein the Custodian had passed an order under the Vesting Act directing the applicant-owners, members of a _tharawad_ to survey and demarcate lands at their expense, for the purpose of exemption under the Vesting Act. However later in compliance with a **MFA(Forest) No.6/2020** **11** direction of a Division Bench to consider the handing over, the earlier order was found to be _non est._ The Division Bench in 2018(3) KHC 768 while upholding the finding that the statutory authority cannot hold so especially when the earlier order by the very same authority had attained finality, interfered with the finding of the learned Single Judge directing restoration, on the ground of the advent of the EFL Act. _Kumari_ _Varma_ (supra) was found to be inapplicable since in _Kunhiraman_ no question of a cultivated land having been taken over under the Vesting Act arose. In the instant case though the cultivated scheduled lands were taken over under the Vesting Act, the same was restored before the appointed day under the EFL Act. 10. The applicant who was examined as PW1 spoke of dry tuber crops and _modan_ , prior to 2.6.2000. It was found by the Tribunal that there was nothing worthwhile brought out in his cross examination. PW1 is the applicant in the instant case and admittedly, he was in possession of the property on 2.6.2000, having purchased it on 28.9.1996, as per Ext.A3. But, for the testimony of the applicant, there is nothing produced to show the cultivation said to have been carried on in **MFA(Forest) No.6/2020** **12** the property. The cultivation is said to have been carried on in 10.91 acres and for the purpose of exclusion under S.2(c), the land should be principally cultivated with crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew. The applicant himself does not have a case that any of these long duration crops were cultivated by him, as on the appointed day under the EFL Act. His contention is that, there was ground nuts cultivated in the property, which is not a valid ground for exclusion and in any event, does not inspire confidence since there is no substantive evidence produced to even prove that. A Division Bench of this Court in _State of Kerala v. C.J. Alexander (1993(1) ILR (Ker) 731)_ held that the interested testimony of an applicant alone cannot be relied on to find exemption. PW2 is a person who claimed to have acquaintance with the property for 10 years. He claimed that the predecessor-in-interest of the applicant cut and removed the trees in the OA scheduled property and cultivated ground nuts, after which the applicant also continued such cultivation; again not a long duration crop which would enable exemption from the definition of forest under the EFL Act. **MFA(Forest) No.6/2020** **13** 11. The Commissioner who visited the property in January 2016 filed Ext.C1 report and C1(a) sketch. The Commissioner noted that on the western boundary of the property, there is forest land and river, on the east an agricultural land, on the south, the property of Malabar cements and on the north, a PWD road. The Tribunal found that the description of the property by the Commissioner is more than enough to disturb the assertion of the respondents; quite erroneous, according to us. The definition of ecologically fragile land does not require such lands to be encircled by forest lands and it is sufficient if the land is lying contiguous to a forest land, which at least the subject land so lies, on the western boundary. Again, the mere fact that the scheduled land lies in the same plane as a nearby garden land would not enable an exemption under the EFL Act or absolve it from vesting as a garden land. Merely because the neighbouring properties were cultivated with ground nuts, cannot lead to a presumption of such a cultivation in the adjacent land also; which cultivation in any event does not enable exclusion from the definition of forest. The trees noted in the property by the Commissioner were _Pullamaruthu_ (5 in Nos.), _Veett_ i (9 in Nos.), **MFA(Forest) No.6/2020** **14** _Vellanava_ (20 in Nos.), _Chadathi_ (2 in Nos.), _Pukam_ (2 in Nos.), _Muringa_ (4 in Nos.), _Elanji, Konna, Poola_ , Tamarind and Teak (1 in No.). The property was also covered with shrubs, bushes and other small trees. 12. The Tribunal noticed the opinion expressed by the Commissioner that the land is an agricultural land which lies contiguous to the neighbouring lands, in which ground nuts are cultivated. The presence of a tamarind tree and a shed in the property was also noticed to find that there was admittedly cultivation carried on in the property. The Tribunal completely misdirected itself in so far as the forest lands which are exempted as per the definition under S.2(c) of the EFL Act are only such lands on which there is cultivation of long duration crops. Admittedly, the subject land was remaining uncultivated and were full of trees, naturally grown and with thick undergrowth as noticed by the Commissioner. The Tribunal also misdirected itself in relying on _Kumari Verma_ and _Kunhiraman P V_ ; the first of which decision is not applicable to the facts of the case and second cited one was overruled. On facts and by virtue of the specific _non obstante_ clause under the EFL Act, the earlier finding under the Vesting Act, as to the cultivation in the **MFA(Forest) No.6/2020** **15** scheduled land is quite irrelevant in the consideration of vesting under the EFL Act. It is also to be noticed that while a personal cultivation or atleast an intention to cultivate, exempted lands from vesting, under the Vesting Act; in so far as the EFL Act the exclusion from the definition of forest can only be of lands which are not principally covered with natural tree growth and undergrowth or forest lands wherein principle cultivation of long duration crops are carried out. We have seen from the evidence on record that the land is existing as a forest land with such characteristics and on which no cultivation of long duration crops was established. We find the Tribunal to have erroneously granted exemption to the scheduled land under EFL Act. We reverse the judgment of the Tribunal and reject the application filed before it. The appeal stands allowed leaving the parties to suffer their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** uu