M.F.A.(FOREST).110/2020

M.F.A.(FOREST).110/2020 1 ## **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. 110 OF 2020** **AGAINST THE ORDER IN OA 23/2008 OF THE COURT OF KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL,** ## **PALAKKAD** ## **APPELLANTS/RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2 CUSTODIAN (ECOLOGICALLY FRAGILE LANDS) AND PRINCIPAL CHIEF CONSERVATOR OF FORESTS (EXTW), STATE OF KERALA, THIRUVANANTHAPURAM BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **RESPONDENT/APPLICANT:** M.K. UNNI NETHIYAR, D/O PARIJATHA NETHIYAR, KAMAKSHINILAYAM, KALLAMPADAM P O, MELARKKODE, PALAKKAD, PIN-678703. BY ADV SRI.M.C.JOHN THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 27.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(FOREST).110/2020 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A.(FOREST) No.110 of 2020 -------------------------------------Dated this the 27[th] day of October, 2022** ## **J U D G M E N T** ## Jayachandran, J. The State of Kerala, along with the Custodian under The Kerala Forest [Vesting and Management of Ecologically Fragile Lands] Act, 2003 (Act 21 of 2005 for short), are the appellants. They assail the award dated 21.12.2019 in O.A. No. 23 of 2008, as per which, an application under Section 10 of Act 21 of 2005 was allowed, declaring that the schedule property is not an ecologically fragile land and directing the respondents in the O.A. (appellants herein) to restore possession of the schedule property to the applicant. **2.** The brief facts may be summarized thus: Along with the other co-owners, the applicant is the owner of the schedule property by virtue of the order ## M.F.A.(FOREST).110/2020 3 in O.A. No. 11 of 1997 of the Forest Tribunal, Kozhikode. During evidence, title was also traced in the decree in O.S.No.56/1966 of the Sub Court, Palakkad, as also, to the order in final decree I.A.No.392/1969. The scheduled property is not an ecologically fragile land as defined under Act 21 of 2005. The same is a 'paramba', coming under the classification 'dry lands'. The scheduled property would not answer the definition of 'forest land' under Section 2(c) of the Act. There is no natural vegetation in the property. The vegetation is nothing but the effort of human skill and labour. The land in question is not lying contiguous to, or encircled by reserve or vested forest. It is principally cultivated by fugitive crops. The property in question is bounded on all the four sides by private holdings and the same is on a plain surface. The applicant and other co-owners are not in possession of lands exceeding the ceiling limit under the Kerala Land Reforms Act. On such premise, the applicant sought for declaration in the lines already M.F.A.(FOREST).110/2020 4 indicated above. **3.** The respondents (appellants herein) filed statement contending _interalia_ that the applicant has not produced any record/document to prove title to the scheduled property and that the order of the Forest Tribunal in O.A. No. 11 of 1997 pertains to 1.80 acres only, as against an extent of 20 hectares claimed in the Original Application. The subject property is a forest land, with forest trees like Irul, Manjapavatta, Karimpana etc. The secondary growth are lying contiguous with the other vested forests. It was considering the nature of the property that notification was issued under Act 21 of 2005 by the 2[nd] appellant, the Principal Chief Conservator of Forests. The land in question is part of Kadukamkunnanu Malavaram and it is lying contiguous with vested forest. There is no cultivation in the schedule property. Nor is there any development or buildings in the property. The applicant's claim that he is a co-owner along with others of the schedule property as ## M.F.A.(FOREST).110/2020 5 per orders in O.A. No. 11 of 1997 is denied. On such premise, respondents sought for dismissal of the O.A. **4.** The extent of the scheduled property, i.e. 20 hectares in survey nos.1/8A 1A and 739/A, was later amended, limiting the claim to 1.23 acres of land in survey no.739/A/2A1A1. **5** . The Tribunal, after elaborate discussion, allowed the O.A. as per the order impugned, finding that there exists no forest trees in the schedule property so as to hold that the same is predominantly supporting natural vegetation; and that the boundaries of the property are either parambas or kudiyiruppus. The Tribunal also relied upon the judgment of a Division Bench of this Court in **State of Kerala** v. **Kumari Varma** [2011(1) KLT 1008]. **6.** Heard Sri.Nagaraj Narayanan, learned Special Government Pleader [Forests] and Sri.M.C.John, learned counsel for the respondent. Perused the records. **7.** The crucial question to be decided is whether the scheduled property answers the requirements of an ## M.F.A.(FOREST).110/2020 6 'ecologically fragile land' as defined in Section 2(b) of Act 21 of 2005. Interpreting the definition of an ecologically fragile land under Section 2(b)(1) of the Act, the Tribunal culled out the following ingredients: “(a) it should be a forest land; (b) the land or any part thereof should be lying contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Govt, (c) the land predominantly supports natural vegetation.” Of the three ingredients, the Tribunal found in favour of the department, the second ingredient alone, while finding ingredients (a) and (c) in favour of the applicant. The finding in respect of ingredients (a) and (c), both, stem from the conclusion that there exists no evidence to show that the scheduled property predominantly supports natural vegetation. The definition under Section 2(b) starts with “any forest land or any portion thereof”, which takes us to the definition of 'forest' under section 2(c). The first ## M.F.A.(FOREST).110/2020 7 limb of Section 2(c) defines forest as, any land principally covered with naturally grown trees and undergrowth. It could thus be seen that the most relevant criterion under Section 2(b) and (c) of the Act is that the land should be 'predominantly supporting natural vegetation' or 'principally covered with naturally grown trees and undergrowth'. 'Natural vegetation' is defined in Section 2(c) to mean 'a growing stock predominantly of a plant species or of a number of plant species occurring naturally on the land'. **8.** On facts, the Tribunal found that the schedule property is essentially a paramba, as could be seen from Ext.A3 allotment schedule in O.S. No. 56 of 1966 of the Sub Court, Palakkad. A reference to that litigation is relevant in this regard. O.S. No. 56 of 1966 was a partition suit. As per the final decree, I.A. No. 392 of 1969 in the said suit, 'X' schedule property was allotted to the share of the applicant and others, of which, the schedule property is shown as M.F.A.(FOREST).110/2020 8 plot no. C-15 to Ext.A4 plan attached to the final decree. It is also pertinent to note that the subject property scheduled in the O.A. was the very subject matter of an earlier O.A. No. 11 of 1997, preferred by the mother of the present applicant. As per the order dated 27.04.1999 of the Forest Tribunal, Kozhikode, the said O.A. was allowed, granting exemption to the scheduled property under Section 3(3) of the Kerala Private Forest [vesting and Assignment) Act, 1971. It is relevant to note that the property scheduled in the instant O.A, with the amended extent, is the property scheduled to the earlier O.A. as well, so that there exists no confusion with respect to the identity of the property. No serious controversy was raised before us with respect to the identity of the property, though a contention in this regard is seen raised and discussed in the impugned order. **9.** We repeat, the property has been described as a paramba in Ext.A3 allotment schedule to the final decree in O.S.No.56 of 1999, which essentially points ## M.F.A.(FOREST).110/2020 9 to the nature of the land in question. Secondly, we note that, in the commission taken in the earlier O.A. 11 of 1997, the Commissioner did not find any trees of a forest species in the schedule property, as taken note of at the beginning in paragraph no.12 of the order dated 27.04.1999. We also notice that the said order in O.A. No. 11/1997 has become final by the dismissal of M.F.A. No.72 of 2000, vide judgment dated 11.04.2008. Thirdly, in the instant case also, a commission was taken out, where again, no natural vegetation of a predominant nature, or natural growth of trees and undergrowth was reported, except some shrubs and undergrowth. The Tribunal found that the schedule property is not one which predominantly supports natural vegetation, to which finding, we fully concur, the state of affairs being as noted above. **10.** The Tribunal also found that the existence of some shrubs and small plants in the property is due to non-cultivation or non-enjoyment of the property by the applicant, since the property was not restored to the M.F.A.(FOREST).110/2020 10 owner by the forest department, _dehors_ dismissal of M.F.A. No.72 of 2000, a finding to which no exception can be taken. The Tribunal rightly relied upon the Bench decision of this Court in **Kumari Varma** supra and distinguished **State of Kerala** v. **Unnikrishnan [2013(2) KLT 420].** While **Kumari Varma** supra is on all fours to the given facts, **Unnikrishnan** supra doesn't apply, in as much as the scheduled property was not restored to the possession of the applicant in the given facts. **11.** We find no reason to deviate from the well considered order of the Forest Tribunal, Palakkad impugned herein. In the result, this appeal fails and the same is dismissed. **12** . Before parting with the case, we notice the mandate under Section 11(4) of Act 21 of 2005, whereby the Custodian stands obliged to restore possession of the schedule property to the owner, once the High Court decides that the land in question is not an ecologically fragile land. Sub-section 4 to Section 11 employs the language “as soon as may be”. We, 11 ## M.F.A.(FOREST).110/2020 therefore, direct the second appellant to comply the above mandate by restoring the schedule property to the possession of the applicant/owner, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. **sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN** **JUDGE** ``` Sbna/ ```