M/S. N.A. Plantations Panathady Village, Hosdurg Taluk, Kasaragod District v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 4TH DAY OF JUNE 2018 / 14TH JYAISHTA, 1940 **OP(FT).No. 2 of 2018** AGAINST THE ORDER IN I.A.NO.150/2017 IN O.A.NO.15/2014 OF THE DISTRICT JUDGE, KOZHIKODE. ## PETITIONER M/S. N.A. PLANTATIONS PANATHADY VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, A PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER, N.A.MOHAMMED, RESIDING AT NALAPAD HOUSE, 23RD MANGARATH ROAD, BANGALORE 25. BY ADVS.SRI.SHIRAZ ABDULLA SRI.A.DINESH RAO ## RESPONDENTS: 1. STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY, FOREST AND WILD LIFE DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF ECOLOGICAL FRAGILE LAND (PRINCIPAL CHIEF CONSERVATOR OF FORESTS) FOREST HEAD QUARTERS, VAZHUTHAKAD, THIRUVANANTHAPURAM 695 010 3. DIVISIONAL FOREST OFFICER, KASARAGOD, VANASREE COMPLEX, VIDYA NAGAR, UDAYAGIRI, KASARAGOD. 4. DISTRICT COLLECTOR CIVIL STATION, KASARAGOD. 5. FOREST RANGE OFFICER, MAVUNGAL, KANHANGAD, KASARGOD DISTRICT. 6. BIJU KRISHNA K.C. ADVOCATE COMMISSIONER, UPENDRAMAHAL BUILDING, HOSDURG, KANHANGAD 671 315. R1 to R5 BY GOVERNMENT PLEADER SRI.SUNIL KUMAR KURIAKOSE BY SRI.SANDESH RAJA.K., SPL. G.P. (FOREST) THIS OP (FOREST TRIBUNAL) HAVING BEEN FINALLY HEARD ON 04-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(FT).No. 2 of 2018 (R) ## APPENDIX ## PETITIONER'S EXHIBITS - EXT.P1 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 3/12/1981 IN M.F.A NOS.259/1979 AND 335/1979 - EXT.P2 A TRUE COPY OF THE JUDGMENT IN M.F.A. NOS.432/1985 AND 437/1985 PASSED BY THIS HON'BLE COURT. - EXT.P3 A TRUE COPY OF O.A.NO.15/2014 ON THE FILE OF THE TRIBUNAL FOR THE KERALA FOREST AND (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LAND) KOZHIKODE. EXT.P4 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE FOREST DEPARTMENT. - EXT.P5 A TRUE COPY OF REPORT FILED BY THE 6TH RESPONDENT COMMISSIONER. EXT.P6 A TRUE COPY OF PLAN FILED BY THE 6TH RESPONDENT COMMISSIONER. - EXT.P7 A TRUE COPY OF THE OBJECTION TO THE COMMISSIONER'S REPORT AND PLAN. - EXT.P8 A TRUE COPY OF THE DEPOSITION OF THE ADVOCATE COMMISSIONER - EXT.P9 A TRUE COPY OF IA. NO.150/2007 IN OA NO.15/2014 BEFORE THE FOREST TRIBUNAL, KOZHIKODE. - EXT.P10 A TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE DIVISIONAL FOREST OFFICER, KASARAGOD. - EXT.P11 A TRUE COPY OF ORDER DATED 5TH JANUARY 2018. ## RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ ## **A.M.Shaffique & P. Somarajan, JJ.** **---------------------------------------------------O.P.(FT) No.2 of 2018 (R)** **---------------------------------------------------Dated this the 4[th] day of June, 2018** ## **JUDGMENT** ## **A.M. Shaffique, J.** This original petition had been filed by the petitioner, who claimed exemption of the lands notified under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as 'EFL Act'). The petitioner claims exemption on the ground that the entire area is a plantation. An Advocate Commissioner was deputed who had filed a report before the Forest Tribunal. The Advocate Commissioner, in his report, produced certain plans as well. In the report it is stated that in certain areas there is scattered plantation and details of those plantation are also mentioned in the report. 2. The petitioner filed an application and sought for deputing the Advocate Commissioner once again to measure ## **O.P.(FT) No.2 of 2018 (R)** :: 2 :: out the area where plantation is situated. The said application had been dismissed by the Tribunal as per Ext.P11 order dated 5.1.2018. The Tribunal found that the total area notified was 154.0347 hectares to which there was no dispute. Two plans were appended along with the report - C3 showing extent of EFL as 5.7568 hectares and the other C4 showing extent as 148.2674 hectares in survey 291 part. However, the total extent is shown in the plans though the area of each shaded portion is not given. The Tribunal found that since the extent is not disputed, there is no necessity to remit the commission report and plans for finding out the area of each shaded portion in C3 and C4 sketches. 3. The main contention urged by the learned counsel for the petitioner is that the application was specifically filed to submit a fresh report and plan incorporating the measurements and extent of the areas specifically demarcated and shown in different colours by the Advocate Commissioner. In Ext.P5 report, it is stated that there are certain areas covered by ## **O.P.(FT) No.2 of 2018 (R)** :: 3 :: coffee plants which was specifically marked in brown colour in the plan. Further it is stated that there is a number of ditch or trench-like structures (coconut basins) in a systematic pattern in the north-eastern portion of the disputed land resembling remnants of once existed coconut palms which is also marked in green colour. The Commissioner counted the coconut basins as 70. Further, it is mentioned in paragraph 10 of the report that the Advocate Commissioner noticed scattered presence of coffee, pepper, cashew plants and silver oak in the area marked in the northern portion of the disputed property which is coloured in red. 4. The only request made by the petitioner was to measure the areas shown in the Advocate Commissioner's plan as brown, green and red as mentioned in paragraphs 6, 8 and 10 of the report. 5. The above application has been opposed by the Government which resulted in the impugned order. ## **O.P.(FT) No.2 of 2018 (R)** :: 4 :: 6. The learned counsel for the petitioner submits that when the Advocate Commissioner had noted that certain plantations existed in the property, in order to claim exemption ascertaining the extent of the area is required for a proper adjudication of the case. On the other hand, the learned Government Pleader appearing on behalf of the respondent/State submitted that the cultivation originally situated in the property is scattered and therefore the exact area cannot be measured. It is further contended that there is no provision to remit back the report of the Advocate Commissioner. 7. After hearing learned counsel for the parties, we find that though a request is made by the petitioner to remit the report and plan to the Advocate Commissioner, as held by this Court in _**Francis Assissi v. Sr.Breesiya (2017 (1) KLT 1041)**_ , there is no necessity or requirement to set aside the report of the Advocate Commissioner. However, taking into consideration the facts of the case, it is always open for the ## **O.P.(FT) No.2 of 2018 (R)** :: 5 :: Court to obtain additional report from the Advocate Commissioner. Therefore, it is rather clear that there is no legal bar in the Court/Tribunal directing the Advocate Commissioner to make available additional facts. In such circumstances, when the petitioner claims that certain areas are to be exempted from the provisions of EFL Act, necessarily adjudication is required to find out whether the area is planted or not. Now that the Advocate Commissioner had given a plan showing different colours to indicate that, in those areas some plantations existed, it is all the most necessary for the Tribunal to consider the extent of the property in order to arrive at a conclusion as to whether the said area requires to be exempted or not. In the said circumstances, we are of the view that the Tribunal ought to have directed the same Advocate Commissioner to file an additional report on such matters as has been requested by the petitioner. ## Accordingly, the Original Petition is allowed. (i) Ext.P11 order is set aside. ## **O.P.(FT) No.2 of 2018 (R)** :: 6 :: - (ii) The Tribunal is directed to depute the same Advocate Commissioner to measure the properties which had been marked in the plan with the colours brown, green and red, as requested by the petitioner and shall dispose of the matter as expeditiously as possible. It shall be open for both parties to file necessary work memo. **A.M. Shaffique Judge** **P. Somarajan Judge** ahz/