M.F.A.(Forest) Nos. 1, 5 & 10 of 2011 (State of Kerala v. K. Sankaran Namboodiri Pad and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA,** ## **1944** ## **MFA (FOREST) NO. 1 OF 2011** ## **AGAINST THE ORDER/JUDGMENTOA 11/2008 OF LAND TRIBUNAL,** ## **PALAKKAD** ## **PETITIONERS:** - 1 STATE OF KERALA REPRESENTED BY SECRETARY, FOREST DEPARTMENT,THIRUVANANTHAPURAM. - 2 CONSERVATOR AND CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS, VAZHUTHAKKAD, THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER SRI NAGARRAJ NARAYANAN ## **RESPONDENTS:** - 1 K.S.SANKARAN NAMBOODIRIPAD S/O.K.C.SANKARAN NAMBUDIRIPAD, KOZHISSERI MANA,, SHORNUR, PALAKKAD DISTRICT.679121 - 2 K.S.ASHTAMURTHI S/O. -DO-. - 3 SREEDEVI ANTHARJANAM W/O.K.C. SANKARAN NAMBUDIRIPAD -DO- - 4 SAVITHRI ANTHARJANAM, W/O. K.S ASHTAMURTHI -DOBY ADV SRI.P.JAYARAM THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 30.11.2022, ALONG WITH MFA (FOREST).5/2011, 10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.F.A.(F) Nos.1, 5 &10/2011** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944 MFA (FOREST) NO. 5 OF 2011 AGAINST THE ORDER/JUDGMENTOA 13/2008 OF FOREST TRIBUNAL,** ## **PALAKKAD** ## **PETITIONERS:** - 1 STATE OF KERALA, REPRESENTED BY SECRETARY, FOREST DEPARTMENT, THIRUVANANTHAPURAM. - 2 CONSERVATOR OF CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS AND CHIEF, CONSERVATOR OF FORESTS(E&TW), VAZHUTHAKKAD THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER SRI NAGARAJ NARAYANAN ## **RESPONDENT:** M.P.NARAYANAN, NO.5, DHANALAKSHMI COLONY, VADAPALANI, MADRAS.600026 BY ADV SRI.P.JAYARAM THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 30.11.2022, ALONG WITH MFA (FOREST).1/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.F.A.(F) Nos.1, 5 &10/2011** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944** **MFA (FOREST) NO. 10 OF 2011 AGAINST THE ORDER/JUDGMENTOA 12/2008 OF FOREST TRIBUNAL,** ## **PALAKKAD** ## **PETITIONERS:** - 1 STATE OF KERALA REPRESENTED BY SECRETARY, FOREST DEPARTMENT,, THIRUVANANTHAPURAM. - 2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS AND CHIEF CONSERVATOR OF FOREST(E&TW), THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER SRI NAGARAJ NARAYANAN ## **RESPONDENT:** P.RAVI NAMBUDIRIPAD S/O. RAVI NAMBUDIRIPAD, PANA MANA,, POST CHERUTHURUTHY, THRISSUR DIST. BY ADV SRI.P.JAYARAM **THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 30.11.2022, ALONG WITH MFA (FOREST).1/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A.(F) Nos.1, 5 &10/2011** **4** ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ---------------------------------------------** **M.F.A.(Forest) Nos. 1, 5 & 10 of 2011 --------------------------------------------Dated this the 30[th] November, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** Three OAs were disposed of by a common order against which the State is in appeal. We shall deal with the cases separately since the original applicants are different and they claim exclusion and exemption under the Vesting Act, on different properties. ## _**O.A No.11/2008**_ 2. In O.A 11/2008, the property scheduled has an extent of 10.26 hectares lying in Survey No. 38/2 of Shornur-II Village. Earlier O.A 607/1974 was filed before the Land Tribunal by the predecessors of the applicants for exemption of 29.769 hectares in which is comprised the land scheduled in the instant application. The Tribunal by order dated 22.04.1987 granted exemption to 28.74 hectares under S.3(3) of the Kerala Private Forest (Vesting and Assignment) Act, (for brevity 'Vesting Act') which was challenged in MFA No.306/1988, which also ## ## **5** stood dismissed on 12.10.1993. The possession of the lands involved in O.A No. 607/1974 was restored on 28.11.1998 after notifying the area under S.5 of the Kerala Preservation of Trees Act, 1986. The present litigation arose on the assertion made by the Forest Department that the land, then stood vested in the Government as on 2[nd] June 2000 under the Kerala Forest(Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000; followed up with the Act of 2003 (EFL Act). A notification dated 21.04.2001 was also issued under the Ordinance in which the survey numbers were wrongly shown. According to respondents there is regeneration of sandalwood and other forest species trees and the area is covered with such trees and thick undergrowth. The land was also alleged to be contiguous to vested forests and forming a water-shed for the entire locality; also rich in wild life biodiversity. 3. The 2[nd] applicant gave evidence as PW1 and the Forest Range Offer as RW1; both having testified in consonance with their pleadings. The Tribunal placed heavy reliance on the Commission Report which indicated nine residential buildings _(kudiyiruppus)_ in the ## **M.F.A.(F) Nos.1, 5 &10/2011** **6** application scheduled property which were also electrified. A well existed in the application scheduled property along with 75 rubber trees aged 4 to 6 years standing in the middle of application scheduled property. A pathway having 18 feet width runs through the middle of the application scheduled property towards north and then runs towards the eastern boundary. It was also noticed that shrubs including thorny shrubs with a height of 2 to 3 meters were found grown in a portion of the application scheduled property. There were no trees other than the aforesaid rubber trees standing in the property, according to the commission report. The Department though filed an objection against the commission report, the Commissioner was not sought to be examined nor was any contra evidence adduced to substantiate the pleadings of, there being forest species trees existing in the land. 4. We fully agree with the Tribunal that Ext.C1 commission report does not indicate that the land is principally covered with naturally grown trees or it predominantly supports natural vegetation. As per the commission report there are 9 houses in the property ## **M.F.A.(F) Nos.1, 5 &10/2011** **7** belonging to _kudikidappukars_ (statutory tenants) and there is clear indication of rubber plantation in the middle portion of the land. Admittedly, the agricultural activities were interfered with, by the Department, earlier under the Vesting Act. Despite exemption having been granted, the property was not restored to the possession of the applicant immediately. The judgment of the High Court dismissing the appeal of the State and confirming the order of the Tribunal was on 12.10.1993. Admittedly the properties were handed over only on 28.11.1998 simultaneous to which a notification was issued under S. 5 of the Kerala Preservation of Trees Act, 1986, including the subject property. On 21.4.2001 a further notification was published under the EFL Ordinance. Hence, despite the handing over, there was frustration of agricultural activity in the property. We specifically garner support from _**2011(1) KLT 1008 State of Kerala v. Kumari Varma**_ in which it is held that the Government having not restored the properties, exempted under the Vesting Act, till the notification issued under EFL Ordinance or Act; cannot then take advantage of its own default to contend that, in the ensuing years there is natural growth in the said ## ## **8** property changing its characteristic from a cultivated land to a naturally grown forest. 5. In the present case, we notice that the land was restored in the year 1998 simultaneous to which there was a notification issued under the Kerala Preservation of Trees Act which interdicted the applicants from carrying on any cultivation in the property. Soon after, in the year 2001 the notification under EFL Ordinance was also published. Despite this, in an inspection carried out in the property in the year 2009, the Commissioner noticed 75 rubber trees planted in the middle portion of the property. There were also nine _kudikidappukars_ settled in the property. Hence obviously the land was not an EFL land possible of vesting under the EFL Ordinance or the subsequent enactment. We find no reason to interfere with the order in OA 11/2008. ## _**O.A12/2008**_ 6. The above OA was concerned with 3.03 hectares lying in Sy.No. 38/3 and 37 of Shornur-II Village obtained on lease from Kozhissery Mana in1958. The above property was also notified under ## ## **9** the Vesting Act against which an application was filed as O.A No.1165/74 before the Forest Tribunal. It was asserted by the Department that the whole area lies contiguous to _Anthimalankadu_ Bit I (VFC item No.74) , having more than 250 hectares extent. The O.A was allowed and the MFA filed against the declaration of exemption was unsuccessfully challenged by the State in MFA No.107/1978. Similar to the earlier application there was a notification under the EFL Ordinance, which gave rise to the present proceedings. Here, there was no contention taken by the Department at any point of time that the land was restored to the applicants after the exemption granted. The MFA filed by the State was rejected by judgment dated 22.06.1984, after which by notification dated 21.04.2001 the notification under the EFL Ordinance was brought out. The commission report submitted in the above application was marked as Ext.C2, which clearly shows that there were no trees existing in the property and that shrubs including thorny shrubs with a height of 2 to 3 meters stood in the property. As in the first case, here also, despite an objection being filed to the commission report, there was neither a prayer for examining the Commissioner nor ## ## **10** was any contra evidence adduced. The property, despite this, was lying without any natural grown trees and did not have the characteristics of forest even at the time of notification or inspection by the Commissioner. _**Kumari Varma** (supra)_ applies squarely insofar as the absence of cultivation being only by reason of the lands having not been restored after it was declared to be exempted by the Tribunal, which order also stood confirmed by this Court in an appeal. Despite the land left to waste, there is no regeneration of trees or natural growth of forest species, thus giving the land any characteristic of a forest. The findings of the Tribunal in O.A 12/2008 and consequent declaration regarding its exemption under EFL Ordinance and the subsequent enactment is not liable to be interfered with. ## _**O.A 13/2008**_ 7. This O.A is concerned with 4.0469 hectares lying in 37pt of Shornur-II village, also obtained on lease from Kozhissery Mana in 1958. As in the other O.As the aforesaid property was notified under the Vesting Act, but exempted in O.A. No. 1117/1974, by the Forest Tribunal confirmed in MFA No. 89/1978, by this Court. In this case the ## **M.F.A.(F) Nos.1, 5 &10/2011** **11** contention taken by the respondent was that though steps were taken to restore the property, due to the EFL Ordinance of 2000 coming into force, the property stood vested in the Government on 02.06.2000. Like in the other cases, the notification relied on was of 21.04.2001. It was asserted by the Department that the whole area lies contiguous to _Anthimalankadu_ Bit I (VFC item No.74) , having more than 250 hectares extent. It was also asserted that the natural vegetation existing in the property along with forest species and its lie, contiguous to other vested forests makes it a watershed for the entire locality, rich in wild life biodiversity. 8. Ext.C3 was the Commission report filed in the above case to which, though an objection was filed, no contra evidence was adduced nor the Commissioner examined before Court. The scheduled property had Shornur Kurukkan Colony Municipal Road running along the western and southern sides of the scheduled property. Towards east, at about 100 meters is placed _Kudiyiruppus_ and private lands. The scheduled property lies in a slope which at the southern portion is at a higher level. The southern portion at a higher plane is a rocky area and **12** in the other portions intermittent growth of shrubs including thorny shrubs with a height of 2 meters were seen. There was absolutely no trees existing in the property as per the categorical observation in the commission report. _**Kumari Varma** (supra)_ applies to the above case also and the very same reasoning in O.A No. 12/2008 applies in this case too. The order of the Tribunal in O.A No. 13/2008 also stands upheld. The appeals are dismissed affirming the orders of the Tribunal in all the above cases, leaving the parties to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** jma