M.F.A.(Forest) Nos. 57 & 82 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 23[RD] DAY OF DECEMBER 2022 / 2ND POUSHA, 1944** ## **MFA (FOREST) NO. 82 OF 2011** **AGAINST THE ORDER IN OA 4/2008 OF FOREST TRIBUNAL, KOLLAM** ## **APPELLANTS:** 1 ABDUL KALAM, AGED 50 YEARS, S/O.ABDUL MAJEED, PACHAYIL VEEDU, MANKONAM,, MADAVOOR VILLAGE, THIRUVANANTHAPURAM. 2 SAJEENA AGED 37 YEARS, W/O.ABDUL KALAM, PACHAYIL VEEDU,, MANKONAM, MADAVOOR VILLAGE,, THIRUVANANTHAPURAM TALUK. BY ADVS. SRI.P.A.AHAMMED SRI.THOUFEEK AHAMED ## **RESPONDENTS:** 1 STATE OF KERALA & ORS, CHIEF SECRETARY TO GOVT OF KERALA, THIRUVANANTHAPURAM 695 001. 2 CUSTODIAN OF ECOLOGICALLY FRAGILE LAND AND CHIEF CONSERVATOR OF FOREST VIGILANCE, HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM 695005. 3 THE WILD LIFE WARDEN, SHENDURNEY WILD LIFE DIVISION, THENMALA DAM P O 691 308. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 23.12.2022, ALONG WITH MFA (FOREST).57/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(Forest) Nos. 57 & 82 of 2011 ..2.. # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 23[RD] DAY OF DECEMBER 2022 / 2ND POUSHA, 1944 MFA (FOREST) NO. 57 OF 2011** **AGAINST THE ORDER IN OA 2/2008 OF FOREST TRIBUNAL, KOLLAM** ## **APPELLANT/APPLICANT:** 1 M.K.MOHIDEEN FATHIMA @ M.K.FATHIMA, W/O. M.K.M. KHADERSHA, RAFEEKA MANZIL,, THEKKUMBHAGOM, PARAVOOR, KOLLAM NOW RESIDING AT 'NISHAD', KULATHUPUZHA, KOLLAM. 2 **ADDL APPELLANT** .M.M.BASHEER,S/O.MOHAMMEDALI, 69 YEARS, RESIDING AT NISHAD, KULATHUPUZHA P O, KULATHUPUZHA, KOLLAM – 691310 [ADDL APPELLANT IMPLEADED AS PER ORDER DATED 18.02.2021 IN I.A.1/2020 IN MFA 57/2011] BY ADV SRI.P.A.AHAMMED ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA, SECRETARY TO THE GOVERNMENT OF KERALA,, THIRUVANANTHAPURAM 695 001. 2 CUSTODIAN OF ECOLOGICALLY FRAGILE LAND, AND CHIEF CONSERVATOR OF FOREST, VIGILANCE, HEAD QUARTERS, VAZHUTACAUD 695 001. 3 THE WILD LIFE WARDENSHENDURNEY WILD LIFE DIVISION, THENMALA 691 308. BY ADVS. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 23.12.2022, ALONG WITH MFA (FOREST).82/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(Forest) Nos. 57 & 82 of 2011 ..3.. ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ------------------------------------------------- M.F.A.(Forest)Nos.57 & 82 of 2011 ------------------------------------------------Dated this the 23[rd] day of December, 2022 ## **J U D G M E N T** Jayachandran, J. **1.** Though these appeals stem from two different orders of the Forest Tribunal, Kollam, the facts, and especially the legal proposition based upon which these appeals are to be disposed of, are the same. We therefore thought it convenient to dispose of the appeals by this common judgment, but consecutively. M.F.A. No. 57/2011 is directed against the order in O.A. No. 2/2008 and M.F.A. No. 82/2011, against the order in O.A. No. 4/2008, both of the Forest Tribunal, Kollam. If the property which has been declared as not a vested forest, or exemption granted under the Vesting Act, is not restored to the person in possession, or restored with a restraint under the Prevention of Trees Act, M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [21 x 9] intentionally omitted <==** thus preventing cultivation, whether the subsequent undergrowth and vegetation can be reckoned to declare the property as an ecologically fragile one, is the question involved in these appeals. ## **2.** The facts: The property scheduled in O.A No. 2/2008, from which MFA (F) No. 57 of 2011 arise, has an extent of 5.263 hectares in survey number 936/1 of Kulathupuzha village, being part of 13 acres of land, which originally belonged to the Hereford Estate. As per sale deed dated 13.07.1932, the property was sold to Mohammed Mustafa Rawther and Khaja Mohideen Rawther. Thereafter, as per a compromise decree in a partition suit, O.S.No.26/1970, dated 05.08.1987 of the Sub Court, Kottarakkara, 13 acres of land was allotted to the share of applicant's predecessor. As per gift deed dated 02.04.1983, the scheduled property was gifted to the applicant and she was paying land tax, after effecting mutation. On a claim being raised by the ## M.F.A.(Forest) Nos. 57 & 82 of 2011 ..5.. forest department that the scheduled property is a vested forest under the Kerala Private Forests (Vesting and Assignment) Act, 1971 ['the Vesting Act', for short], O.A.25/1986 was preferred before the Forest Tribunal, Palakkad, which was allowed as per Ext.A2 order dated 06.07.1988. The respondent department carried an appeal before this Court as M.F.A.358/1989, which, however, was also dismissed vide Ext.A5 judgment, finding that the scheduled property is not a vested forest, but a plantation. Thereafter, the applicant filed Ext.A3 petition for restoration of possession and as per letter No.10796/E2/98/F&WLD dated 29.7.98 issued by the Government, direction was given to issue notification restoring possession to the applicant. However, there was inordinate delay to hand over possession, wherefore, the applicant filed O.P No.6158/2001 before this Court, which was allowed on 27.02.2001, directing the respondents to take action within two months. Despite such direction, the M.F.A.(Forest) Nos. 57 & 82 of 2011 ..6.. applicant was called for hearing only on 17.09.2001. Applicant's petition for restoration was dismissed by Ext.A7 order dated 16.05.2002, stating that the scheduled property stands vested with the Government as per Section 3(1) of the Kerala Forest Vesting and Management of Ecologically Fragile Lands Ordinance No.16 of 2001 ('EFL Act', for short). Ext.A8 notification in this regard was issued on 27.03.2001. The said order was challenged before the High Court in W.P(C).25151/2005. The same was closed vide Ext.A9 judgment dated 30.10.2006 directing the applicant to approach the Custodian for restoration, under S.19 of the E.F.L. Act. Accordingly, an application was filed on 11.11.2006. Although the officers of the respondent department conducted an inspection, no steps were taken. The applicant preferred another petition on 22.03.2007, in which, Ext.A10 order dated 25.06.2007 was issued, dismissing the applicant's claim for restoration. The order is illegal, inasmuch as the scheduled ## M.F.A.(Forest) Nos. 57 & 82 of 2011 ..7.. property is not a forest land, but a plantation, as confirmed by a Division Bench of the High Court. The applicant was prevented from cultivating the scheduled property as early as on 11.07.1986, which explains the wild vegetation and undergrowth developed in the scheduled property. Ext.P1 Commission report clearly shows the nature and cultivation, which was existing in the scheduled property. On such premise, the applicant sought to set aside Ext.A10 order dated 25.06.2007 under the E.F.L. Act. **3.** The forest department filed objection contending _inter alia_ as follows: The applicant was not in possession of the scheduled property as on the date of vesting and the same was vested with the Government as per notification issued under the Vesting Act. The findings of the Forest Tribunal in O.A.No.25/86 was mainly based on Ext.P1 Commission report, which only found some planted trees here and there in the ## M.F.A.(Forest) Nos. 57 & 82 of 2011 ..8.. property. The area was developed as a plantation only in different stages and age of the trees reported were not sufficient to show the possession of the property as on the date of vesting. Letter dated 29.7.1998 directing issuance of notification restoring possession is only a general order, not exclusively for the scheduled property. The scheduled property is in the possession of the forest department under the administrative jurisdiction of Shenduruny Wild Life Warden and considering its ecological importance, the area was notified on 27.03.2001 under Ordinance of 61/2001. Application for restoration preferred by the applicant was dismissed by the Custodian, the Conservator of Forests. The Ordinance was replaced by the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act 2003 ['the E.F.L. Act, for short]. W.P(C)NO.25151/2005 only permitted the applicant to approach the Custodian under Section 19(3)(b) of the EFL Act. On such application ## M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [21 x 9] intentionally omitted <==** being preferred, a committee constituted under S.18 of the E.F.L. Act, 2003 filed report before the Chief Conservator of Forests, acting upon which, the applicant's petition was dismissed. The disputed property is contiguous to and encircled by vested and reserve forest and predominantly covered by forest vegetation. On such premise, the department sought for dismissal of the O.A. **4.** By the impugned order, the Tribunal dismissed the O.A, holding that the scheduled property is not a plantation, but a forest, predominantly supporting natural vegetation. **5.** Heard Sri. P.Ahammad, learned counsel for the appellant and Sri. Nagaraj Narayanan, learned Special Government Pleader (Forest). Perused the records. **6.** The sheet anchor of the appellant's case is Ext.A2 order of the Forest Tribunal in O.A. ## M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** No.25/1986, which places heavy reliance upon Ext.A1 Commission report of an expert. The O.A above referred was filed by the appellant/applicant under S.8 of the Vesting Act. Then, the forest department raised a claim that the scheduled property is a private forest, which vested with the Government as per Act 26 of 1971. By virtue of Ext.A2 order, the O.A. was allowed finding that the scheduled property is not a private forest, but a plantation as on the appointed day. The Tribunal also found the applicant's entitlement for exemption u/s.3(2) and 3(3) of the Vesting Act. **7.** As per the definition of an ecologically fragile land in terms of S.2(b) of the E.F.L. Act, the following ingredients are to be established. - (i) the land in question should be a forest land or any portion thereof, held by a person. (ii) the said land should lie contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Government. ## M.F.A.(Forest) Nos. 57 & 82 of 2011 ..11.. (iii) the land should predominantly support natural vegetation. **8.** To appreciate the first ingredient, it has to be borne in mind that, to be a forest in terms of S.2(c) of the E.F.L. Act, the land should be principally covered with naturally grown trees and under growth and includes any forest statutorily recognized and declared as reserved forest, protected forest or otherwise. However, any land which is used principally for cultivation of crops of long duration specified in sub sec.(c) is excluded from the definition of forest. **9.** Ext.A2 order of the Forest Tribunal declared in unequivocal terms that the scheduled property was not a private forest, but a plantation as on the appointed day under the Vesting Act. The relevant findings in Ext.A2 is extracted herewith: “Commissioner says that “clove and arecanut do not spread through natural dispersal because clove is harvested and flown buds M.F.A.(Forest) Nos. 57 & 82 of 2011 ..12.. and arecanut are not left behind on trees for natural dispersal”. Commissioner says the crop plants mentioned found on several terraces separated by old granite bunds constructed for retaining soil against erosion down the slope. Finally Commissioner says “the presence of a regular row of casuarina trees planted in support of one of the soil conservation bunds are aged 20 to 25 years because usually casuarina is not an indigenous forest tree and occur only where planted.” The Commissioner's report especially Ext. C-2 made by an expert (page No.10) proves the case that the entire 13 acres was converted into terraces and there are old granite bunds were put up for soil conservation on the appointed day. There are Casuarina trees planted along with the soil conservation bunds which are not usually found in the forest. Commissioner also noticed large number of cloves, cinnamon, arecanut trees in the disputed property. He is also to the opinion that cloves and arecanut are not indigenous forest species and they occur only when they are planted. They also do not grow by dispersal of seeds. He is definitely of the opinion that it was a plantation and M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** subsequently neglected and attacked by growing forest growth. Yet he is definitely of the opinion that it is not a natural forest like the one surrounding it. The cloves, cinnamon and arecanuts are aged more than 20 to 22 years old which will clearly show that they were there on the appointed day. I therefore, find that the disputed property of 13 acres was not a forest but a plantation on the appointed day. It is true that there are large number of forest trees in the disputed property which are used as shade trees. There was a plantation also like clove, cinnamon and arecanut which is clearly proved by the Commissioner's report. I therefore, find that the disputed property was not a private forest and it was a plantation on the appointed day.” **10** . Of course, Ext.A2 finds in Page No.16 (paragraph no.8) that the scheduled property is surrounded by a forest and the same is adjacent to a reserve forest; but that does not satisfy the first ingredient since it is not a forest land, as understood from the separate definition of 'forest' available in the EFL M.F.A.(Forest) Nos. 57 & 82 of 2011 ..14.. Act, for reason of it being a plantation, where long duration crops are grown. **11.** In holding so, we are not oblivious of the fact that the status of the disputed land has to be looked into as on the date of commencement of the E.F.L. Act, i.e. 2.6.2000. However, here arises the question, whether the applicant was restored possession of the scheduled property after Ext.A5 judgment of the High Court in MFA No.358 of 1989, which dismissed the appeal carried by the forest department from Ext.A2 order. Unless possession has been restored to the applicant/appellant, they cannot cultivate the scheduled property, in which case, the scheduled property will be found with bushes, spontaneous under growth and natural vegetation. **12** . In this context, the following dates are relevant. Ext.A2 order of the forest tribunal was pronounced on 6.7.1988 and Ext.A5 judgment of the M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** High Court in MFA No.358/1989 (challenging Ext.A2 order) was pronounced on 5.8.1997. Thereupon, the applicant/appellant preferred Ext.A3 application for restoration. No date is seen printed in Ext.A3. However, the date 11.4.1989 is seen scribbled in Ext.A3, which is most unlikely to be true, since Ext.A5 judgment was dated 5.8.1997, much later to the said date shown. The appellant/applicant filed a writ petition before the High Court as OP No.6158/2001, which was disposed on 27.02.2001, as could be seen from Ext.A7 order. The applicant's restoration application was dismissed vide Ext.A7 dated 16.5.2002, citing the notification under the E.F.L. Act dated 27.03.2001. W.P.(C) No.25151/2005 preferred by the applicant/appellant was disposed of by the High Court as per Ext.A9 judgment dated 30.10.2006. An application in terms of S.19 of the E.F.L. Act was preferred by the applicant, as directed Ext.A9 judgment on 11.11.2006, to which a reminder was filed on 22.3.2007, (both as per M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** pleadings). As per Ext.A10 impugned order dated 31.3.2008, the appellant's application under Section 19 was dismissed. **13.** It could thus be seen that all efforts made by the appellant/applicant to get possession of the scheduled property restored to her was frustrated by the forest department by delay, laches and inaction, until Ext.A8 notification was issued under the E.F.L. Act. Even now, the scheduled property is in the possession of the department. In short, the enjoyment of the scheduled property by the applicant from 1986, a little prior to the filing of O.A No. 25/1986, to 27.03.2001, the date of Ext.A8 notification under the E.F.L. Act was prevented by the Department by not restoring possession of the scheduled property to the applicant. **14.** We are of the definite opinion that, the fact situation narrated above is squarely in the teeth of a Bench decision of this Court in **State of Kerala v.** M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** **Kumari Varma** , [2011 (1) KLT 1008], the relevant ## findings of which is extracted here below. “24. The lands in dispute in these two appeals are not lands falling within any notified 'Reserved Forest' under the Kerala Forest Act; nor are they demonstrated to be 'Protected Forests' under the above mentioned 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 above mentioned Act, i.e. 10.05.1971, 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.” **15.** The Division Bench in _**Kumari Varma supra**_ took specific note of the contention of the respondents that, they were illegally deprived of the possession of the lands in question, thereby depriving their right to carry on cultivation, in which situation, M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** it is not open for the State to contend that the lands in dispute acquire the character of 'forest' by virtue of the fact that the land is covered with naturally grown trees and undergrowth. The contention that the same would amount to permitting the State to take advantage of an illegality committed by it is also taken note in paragraph no.26 of **Kumari Varma** supra. In recognition of the said contention, the relevant findings of the Division Bench in paragraph 29 is extracted here below. “29. We reject the submission of the learned Additional Advocate General. There was no intention on the part of the respondent to abandon the cultivation of cardamom as was pointed out by the Supreme Court in para 37 of Bhavani Tea case (supra). The respondent was prevented by the State to continue the cultivation by denying possession to the respondent on a wrong interpretation of the Private Forests Act, 1971. We see substantial force in the submission made by the learned counsel for the respondent that on an appropriate interpretation of the various provisions of M.F.A.(Forest) Nos. 57 & 82 of 2011 ..19.. the Act, the State cannot be permitted to take advantage of a wrong committed by it in depriving the respondent of the legal rights to cultivate the lands in dispute by wrongly invoking Kerala Private Forests (Vesting and Assignment) Act. Such an interpretation, in our opinion, is not necessarily inconsistence with the purpose sought to be achieved by the Ecologically Fragile Lands Act. If the State is of the opinion that the land in question is such an ecologically fragile land as on today which is required to be protected, it is still open to the State to notify the land to be ecologically fragile land under Section 4 of the said Act subject, of course, following the appropriate procedure stipulated under the Act.” ## **(underlined by us for emphasis)** **16.** Although, the Special Government Pleader (Forests) requested us to have a re-look of the dictum laid down in **Kumari Varma** (supra), we are in respectful agreement with the findings therein. Moreover, we are given to understand that the appeal carried by the State from **Kumari Varma** (supra) is pending consideration of the Hon'ble Supreme Court. ## M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** **17.** We, therefore, hold that the Government, having not restored the scheduled property exempted under the Vesting Act till the notification was issued under the E.F.L. Ordinance, cannot take advantage of its own fault, to contend that there developed natural growth in the scheduled property during the interregnum, changing the property's character from a cultivated land to a naturally grown forest. Ext.A10 cannot therefore be sustained for the reasons above referred. **18.** The appeal succeeds and the impugned order and Ext.A10 are hereby set aside. **19.** Before parting with the judgment, we express our anguish over the lethargic and lackadaisical attitude of the forest department in the matter of restoring possession of the scheduled property, especially in the light of S.8(3) of the Vesting Act, which mandates restoration of possession to the applicants in the O.A. “as soon as may be” after the ## M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** date of order of High Court dismissing the appeal by the department. We are of the opinion that, employment of the term “the Custodian shall, as soon as may be ...” leaves no room for any doubt as regards the above immediate obligation and bounden duty of the Custodian, without waiting for any formal application, seeking restoration, being preferred by the applicant. We therefore direct the second respondent/Conservator to restore possession of the disputed property to the appellant/applicant forthwith. ## **20. M.F.A.(Forest) No.82/2011 (O.A.No.4/2008)** The facts in this appeal are more or less similar, but with a difference that the scheduled property was actually restored to the applicants pursuant to the dismissal of the appeals challenging the order of the Forest Tribunal, but with a restraint under the Prevention of Tress Act. ## **21. The Facts:** The scheduled property having an extent 7.26 M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** acres was earlier part of the Hereford estate. Pursuant to a notification under the Vesting Act in respect of 121.84 acres of land, 3 original applications were filed before the Forest Tribunal, Palakkad by the predecessor in interest of the applicants, numbered as O.A.s 13, 21 and 22 of 1982. The scheduled property herein was described as Item No.3 in O.A. 21/82. Relying upon the Commissioner's report, O.A.No.21/82 was allowed in part, only in respect of item-3 scheduled in O.A, finding that the disputed properties were not vested forest, but a plantation as on the appointed day. Appeals carried to the High Court, as also, to the Supreme Court, were unsuccessful. A Government Order dated 22.9.1989 was issued directing restoration of the scheduled property. Accordingly, the property was restored on 5.2.1991 to the then owner by name M.K.M. Shamsudeen. Thereupon, the applicants purchased the scheduled property by virtue of sale deed Nos.561/95 and 562/95 of the SRO, Kulathupuzha. M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** They preferred an application seeking permission to cut trees, bushes etc. to upkeep the maintenance of plantation on 23.11.1996, which evoked no response. A writ petition was filed before the High Court, in which the respondents were directed to take a decision within 3 months in the said application. While so, on 12.7.2001, the respondents issued notification declaring the scheduled property as an ecologically fragile land under the E.F.L. Act, which was communicated to the applicants on 30.8.2001. The writ petition preferred by the applicants challenging the notification was disposed of directing the applicants to work out their remedy under the E.F.L. Act. Accordingly, a representation was filed before the custodian on 25.10.2007, which however, was dismissed. After restoration in favour of the applicants' predecessor, agricultural operations were carried on, in the land. A certificate obtained from the Tahsildar dated 12.02.2006 would indicate the status of the ## M.F.A.(Forest) Nos. 57 & 82 of 2011 ..24.. scheduled property, as also, the number of trees therein. The property is surrounded by rubber estate and road; and vested forest is located on the boundary of a land adjoining the disputed property, which is owned by the predecessor of the applicants. The scheduled property was found to be a plantation and not a vested forest, which finding was confirmed by the Apex Court. On such premise, the notification issued was challenged in the O.A. **22.** The respondents resisted the application contending that the scheduled property was a vested forest and that it was surveyed, demarcated and notified under the Kerala Preservation of Trees Act, 1986. The application under the EFL Act was dismissed based on the report of the committee under Rule 18 of the EFL Rules, finding that the scheduled property is an ecologically fragile land. The tea plants found at the property were not systematically planted, but were closely grown as undergrowth. The property was in an abandoned condition. A few areca M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** plants found in the property would have been regenerated naturally. On the above premise, the respondents sought dismissal of the OA. **23.** By the impugned order, the Tribunal dismissed the O.A holding that the scheduled property is not a tea plantation, but a forest, predominantly supporting natural vegetation. **24.** As in the case of the earlier appeal, here also the parameters of consideration are not strikingly different. It has already been found by virtue of Ext.A2 order of the Forest Tribunal that the scheduled property is not a vested forest, but a plantation. The relevant findings are extracted herebelow: “32. From the Commissioner's report it will be clear that there is regular plantation of China tea in item 3 in O.A.21/82............. 33. ................ Therefore, I find that except item 3 in O.A.21/82, the rest of the areas in these three O.As are private M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** forests. 34. Point 3:- I have found that only item 3 in O.A.21/82 is planted with china tea. Since this is a plantation this is not taken as a vested forest and it will not count for ceiling area also.” That finding attained finality and the same was confirmed by the Hon'ble Supreme Court, which fact is not disputed. **25.** The only difference in facts which arise in this appeal is the factum of physical restoration of the scheduled property on 05.02.1991 in favour of the applicants' predecessor. The notification under the EFL Act came on 12.07.2001. Normally, we would have gone into the nature of the land, especially the cultivation if any therein, to address the question whether the subject land is an ecologically fragile one or not. However, we notice that the restoration of the property was subject to a restraint under the Kerala Preservation of Trees Act, 1986. It requires M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** to be noticed that the scheduled property was in the hands of the forest department way back from 1982 and it was restored to the applicants' predecessor only on 05.02.1991. To enable cultivation in the scheduled property, the applicants sought for permission to fell the trees, on which no action was taken by the department. This resulted in a writ petition being filed before the High Court and despite a direction to decide within 3 months, no action ensued. It was while so that the notification under the E.F.L. Act was issued. It is thus clear that the applicants' predecessor, as also, the applicants were virtually prevented from carrying out any effective cultivation in the scheduled property, which required felling of trees. **26.** In the above factual matrix, we are of the definite opinion that the present status of the scheduled property cannot be looked into for ascertaining whether the same is an ecologically fragile land or not. The present status of the ## M.F.A.(Forest) Nos. 57 & 82 of 2011 **==> picture [29 x 9] intentionally omitted <==** property is nothing, but the creation of the respondents and they cannot be permitted to take advantage of their own wrong. We therefore find that the facts in this appeal are also squarely in the teeth of the dictum laid down in **Kumari Varma** (supra), despite restoration; which act of restoration did not enable cultivation since there was further restraint imposed by the Department. This appeal is allowed, leaving the parties to bear their respective costs and the impugned order and Ext.A1 are hereby set aside. The second respondent/Conservator is directed to restore possession of the disputed property to the appellants/applicants forthwith. Sd/- ## **K.VINOD CHANDRAN, JUDGE** ## **Sd/-** ## **C.JAYACHANDRAN, JUDGE** _ak/Sbna_