P.C. James v. State of Kerala and Ors.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944** **MFA (FOREST) NO. 19 OF 2016** **AGAINST THE ORDER IN OA 15/2009 OF THE KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, PALAKKAD** ## **APPELLANT/APPLICANT:** P.C.JAMES, S/O. P.J.CHACKO, MANAGING PARTNER, GEMINI PLANTATIONS, MUTHALAMADA, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.T.K.SANDEEP SRI.GEORGE SEBASTIAN ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF FOREST AND WILDLIFE, SECRETARAIAT, THIRUVANANTHAPURAM, PIN-695001. 2 THE CUSTODIAN (ECOLOGICALLY FRAGILE LANDS) AND CHIEF CONSERVATOR OF FORESTS (DEVELOPMENT), FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN-695014. BY ADVS. SRI.NAGARAJ NARAYANAN, SPL.G.P. (FORESTS) THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(F).19/2016 2 ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ** **-----------------------------------M.F.A(F) No.19 of 2016 -------------------------------------Dated this the 10[th] day of March, 2023** ## **J U D G M E N T** ## **C.Jayachandran, J** This appeal challenges the order of the Forest Tribunal under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2005 ['the E.F.L. Act', for short] in O.A. No. 15/2009, which dismissed an application under S.10 of the E.F.L. Act. The aggrieved applicant is the appellant. **2.** The Facts: The scheduled property, having an extent of 60 hectares, comprised in Sy.no.175/1 of Muthalamada village belongs to 'Gemini Plantations', of which, the applicant is the managing partner, under and by virtue of document no.85/1978 of the S.R.O, M.F.A.(F).19/2016 3 Palakkad. The scheduled property, along with other items, belonged to Vekunnad Kovilakam. In the year 1962, the Raja of Kovilakam leased out 783 acres of unsurveyed forest land in favour of Kumaraswamy Gownder, after obtaining permission under the Madras Preservation of Private Forests Act, 1949 ['the M.P.P.F Act', for short]. A suit for partition ensued before the District Court as O.S. No. 1/1964 in respect of the Kovilakam properties. It is averred in the O.A. that, one Thirumalaswamy Gownder joined the proceedings before the District Court, however, without stating as to how he obtained interest in the scheduled property from Kumaraswamy Gownder. It is then averred that the said Thirumalaswamy Gownder had assigned his leasehold rights in favour of Gemini Plantations as per document no. 85/1978 of the S.R.O, Palakkad. The lease was being renewed in favour of Gemini Plantations. The property was ultimately allotted to the share of Chandrika Sreedhara Varma and others in M.F.A.(F).19/2016 4 the final decree proceeding. The jenmom right was also got assigned in favour of Gemini Plantations. The applicant thus got title to the scheduled property. Pursuant to notification of the property under the E.F.L. Act, the applicant represented to the Chief Conservator of Forests to denotify the same, which was dismissed as per order dated 18.06.2009, which is challenged in the O.A. The lease of the properties by the Raja of the Kovilakam in favour of Thirumalaswamy Gownder was for developing the land as an estate and he planted the entire 400 acres with cardamom, a large extent of which was later converted as coffee plantation with the permission of the Sub Collector, Palakkad. Estate bungalows and workers quarters were erected much before 01.04.1964, 01.01.1970 and 10.05.1971. The property was developed as a cardamom and coffee estate, which status continued as on the date of commencement of the E.F.L. Act as well. On such premise, the applicant sought for a declaration that M.F.A.(F).19/2016 5 the scheduled property is not an ecologically fragile land as defined under the E.F.L. Act. He also sought for restoration of the scheduled property to the applicant. **3.** The Divisional Forest Officer concerned filed a detailed written statement, the essential contentions of which, relevant for the disposal of the appeal, are as follows: The scheduled property is part of Nelliyampathi Hills, situated at Periyachola in Thekkadi section of Kollengode Forest Range, lying adjacent to the Parambikulam Wild Life Sanctuary. The title set up by the applicant is denied. The scheduled property has the characteristic features of an ecologically fragile land, with predominant natural vegetation, identical to that of the surrounding forests and encircled by semi ever green and ever green natural forest. Ext.B1 notification was issued on 26.08.2000 declaring the scheduled property as an ecologically fragile land. The same was duly published in accord M.F.A.(F).19/2016 6 with the Statute. There was no plantation in 783 acres of land, which includes the scheduled property. The entire vast area is lying as a forest with thickly wooded natural vegetation, having no cultivation at all. The applicant's predecessor sold several portions of the said land to numerous persons without the permission of the District Court, which was seized of O.S.No.1/1964 and without obtaining prior permission under the M.P.P.F. Act, which documents are illegal and null and void. Documents exhibited as 8 to 11 in O.A are void documents. The scheduled property is not a plantation, but a forest and a habitat for several endangered flora and fauna. Pursuant to the application under S.19(3)(b) of the E.F.L. Act, the committee constituted under Rule 18 inspected the property and submitted report, which finds that the extent of ecologically fragile lands in the hands of Gemini Plantations is more than the 60 acres scheduled in the O.A. On such premise, the M.F.A.(F).19/2016 7 respondents sought for dismissal of the O.A. **4.** The evidence in this case consists of Exts.A1 to A18, supported by the oral evidence of the applicant as PW1 and two others as PW1 and PW3. On behalf of the respondents, Exts.B1 to B4 were marked, supported by the oral evidence of RW1, the Forest Range Officer concerned. Exts.C1, C1(a), C1(b) and commission reports and C2 plan were marked through RW1. **5.** On an analysis of the facts and evidence, the Tribunal found that the applicant is not entitled to the exemption under S.2(c) of the E.F.L. Act; rather he failed to establish his claim in this regard. It was therefore found that the scheduled property is an ecologically fragile land and the application dismissed. **6.** Heard Adv.George Sebastian, learned counsel for the appellant and Sri.Nagaraj Narayanan, learned M.F.A.(F).19/2016 8 Special Government Pleader (Forests) on behalf of respondents. Perused the records. **7.** The Tribunal first considered a discrepancy with respect to the survey number, originally pleaded in the O.A. as 854 part, which was subsequently amended as 175/1. The Tribunal took notice that the Sy.no shown in Ext.B1 notification is the same as shown in the O.A., ie 854 part. However, in Ext.B4 erratum notification, the survey number shown is 870 part. Ext.C1 report states that the new Sy.no. corresponding to Sy.870 part is Sy.no.175/1. It is accordingly that the survey number shown in the O.A was amended as 175/1. The Tribunal also placed reliance upon Ext.A11 extract of the basic tax register and Ext.A17 jenmom assignment deed, where the new survey number is shown as 175/1. The Tribunal accordingly found that there is no serious discrepancy as regards the survey number originally claimed and subsequently amended and that there is no dispute at any rate regarding the identification M.F.A.(F).19/2016 9 of the scheduled property, with which findings we fully concur. **8.** Then, the Tribunal by placing reliance upon Ext.C1 report of the Commissioner, as also Ext.C1(a) and C1(b) reports of the experts, found that only 10-15% area of the disputed property was cultivated with crops like coffee, pepper, arecanut etc, thus failing to answer the requirement of principal cultivation of long duration crops as per S.2(c) of the E.F.L. Act. **9.** The question as to whether the scheduled property answers the definition of an ecologically fragile land was not considered by the Tribunal. **10.** We cannot approve the course adopted by the Tribunal, though we sustain the impugned order on a different line of reasoning espoused hereunder. The Tribunal failed to address the basic question whether the scheduled property answers the M.F.A.(F).19/2016 10 definition of an 'ecologically fragile land' in terms of S.2(b) of the Act, r/w the definition of the term 'forest' as per S.2(c) of the Act. If and only if the scheduled property is established to be an ecologically fragile land as per its definition, does the question of exemption in terms of S.2(c), based on principal cultivation of long duration crops, arise. **11.** As per S.2(b) of the E.F.L. Act, an ecologically fragile land means, 'any forest land or portion thereof held by any person and lying contiguous or encircled by a forest owned by the Government, which predominantly supports natural vegetation'. S.2(c) defines a 'forest' as any land principally covered with naturally grown trees and undergrowth, including any forest which is statutorily recognized, but excluding lands used for principal cultivation of long duration crops specified in the section. 'Natural vegetation' is defined in S.2(e) to mean 'a growing stock predominantly of a plant M.F.A.(F).19/2016 11 species or of a number of plant species occurring naturally on the land'. **12.** With this prelude, we will now peruse Ext.C1 commission report, as also, Exts.C1(a) and C1(b) reports of the experts. We may straight away notice that Ext.C1(a) report of the expert is not of much significance in ascertaining the nature and status of the scheduled property. It only speaks of the scant cultivation in the scheduled property, which is relevant while considering the exemption, once it is found that the scheduled property is ecologically fragile. However, Ext.C1 report of the Commissioner and Ext.C1(b) report of the expert contains inputs about the basic question afore-referred, which, we may observe at the very outset, are at variance with each other. In Ext.C1 report, it is found that there is little undergrowth in the scheduled property, which are aged only 4-6 years. Ext.C1 also reports the existence of various trees like veetti, maruthu, venga, malayooram, vaga, chadachi, venthekku etc, M.F.A.(F).19/2016 12 which are no doubt of forest species. However, the Commissioner reports that the trees were found scattered with considerable distance in between. The scheduled property also contains bamboo clusters and creepers. Ext.C1 also refers to Ext.C1(b) report of the expert for the purpose of scientific names of various trees and creepers standing in the scheduled property. Contrary to the above, the expert attached to the Kerala Forest Research Institute, Peechi reported in Ext.C1(b) that there is dense herb and shrub vegetation in the area. Altogether 342 taxa of angiosperms were recorded, of which, 76 species were trees, 17 woody climbers, 48 shrubs and the remaining 201 herbs. According to the expert, there is floristic richness in the area, including very high medicinal plant diversity. It was also reported that regeneration of indigenous trees, characteristic of moist deciduous forest, is very high. It also indicates that agricultural crop is few in number, distributed here and there. M.F.A.(F).19/2016 13 **13.** We thus notice that there is apparent dichotomy between Ext.C1 Commission report and Ext.C1(b) report of the expert, in so far as the nature of the scheduled property is concerned. Ext.C1(b) speaks of little undergrowth, without any reference to the natural vegetation, whereas, Ext.C1(b) speaks of dense herb and shrub vegetation, including floristic richness. Here, we notice that the expert was examined as PW3, whereas, the Advocate Commissioner was not examined at all. Statutorily, the Commissioner's report forms part of the record and constitutes evidence by itself by virtue of Order XXVI, Rule 10(2) of the Code of Civil Procedure. However, sub-clause (3) to the same Rule speaks of the Court's satisfaction of the proceedings of the Commissioner. At any rate, the evidentiary value of a commissioner's report is a matter of appreciation, based on all relevant inputs, facts and circumstances. In this regard, we may profitably refer to the following observations of the M.F.A.(F).19/2016 14 Honourable Supreme Court in a recent decision in **M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit, Pachama, District Sehore and Others v. Modi Transport Service** [Civil Appeal No.1973 of 2022 dated 11.05.22]: “The commissioner so appointed does not strictly perform a ‘judicial act which is binding’ but only a ‘ministerial act’. Nothing is left to the commissioner’s discretion, and there is no occasion to use his judgment or permitting the commissioner to adjudicate and decide the issue involved; the commissioner’s report is only an opinion or noting, as the case may be with the details and/or statement to the court the actual state of affairs. Such a report does not automatically form part of the court’s opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. Hence, there is neither abdication nor delegation of the powers of functions of the court to decide the issue. Sometimes, on examination of the commissioner, the report forms part of the record and evidence. The parties can contest an expert opinion/commissioner’s report, and the court, after hearing objections, can determine whether or not it should rely upon such an expert M.F.A.(F).19/2016 15 opinion/commissioner’s report. Even if the court relies upon the same, it will merely aid and not bind the court. In strict sense, the commissioners’ reports are ‘nonadjudicatory in nature’, and the courts adjudicate upon the rights of the parties.” Therefore, when there is an apparent dichotomy between the reports of the Commissioner and the expert, no reliance can be placed on the Commissioner's report alone, in disregard of the expert's report, more so, when the expert's report is proved by examining him. Nothing is seen elicited from PW3, which would erode the veracity of the contents in Ext.C1(b) report. As a matter of fact, the dense vegetation of herbs and shrubs and the floristic richness, coupled with the scanty cultivation, reported in Ext.C1(b) is not seen challenged as such by the applicant, on whose behalf, PW3 was examined. **14.** We further notice that the respondent/forest officials have preferred a serious objection to M.F.A.(F).19/2016 16 Ext.C1 report of the Advocate Commissioner for fixing the inspection on 12.05.2011, a day before the elections were held to the Nenmara Constituency, where the Divisional Forest Officer and the Forest Range Officer were assigned election duty. A specific request was made in this regard seeking adjournment of the inspection, which was, however, not heeded to by the Commissioner. The objection also seriously dispute the omission to report the dense vegetation in the scheduled property. In the above referred factual scenario, we are of the opinion that it is unsafe to place reliance upon the findings in Ext.C1 report. **15.** Barring Ext.C1 series reports, the evidence adduced by the applicant vide Exts.A1 to A18 are not of any avail to the applicant in establishing that the scheduled property is an ecologically fragile land. Exts.A6, A7, A8, A9, A10, A15 series, A16, A17 and Ext.A18 are all documents subsequent to the date on which the E.F.L. Act came into force. Ext.A1 M.F.A.(F).19/2016 17 order is of the year 1984. Ext.A3 is a lease deed of the year 1988 and Ext.A4 of the year 1997, which were executed by the Court appointed Receiver in favour of Gemini plantations, allegedly without any sanction of the District Collector under the M.P.P.F. Act, or with the permission of the District Court, where the partition suit O.S.No.1/1964 was pending consideration. Ext.A5 letter issued by the Tahsildar is of the year 1991. We notice that these records are not pertinently relevant in ascertaining the status of the scheduled property, in view of the _non obstante_ clause contained in S.3 of the E.F.L. Act. What is pivotal is the status and nature of the property as on the date of commencement of the E.F.L. Act, i.e, 02.06.2000. **16.** The inevitable conclusion of the above discussion is that the applicant failed to establish that the scheduled property is not an ecologically fragile land as defined in S.2(b), r/w S.2(c) of the E.F.L. Act. We may recall in this context that the M.F.A.(F).19/2016 18 burden to establish the same squarely lies on the applicant, as held by this Court in **Government of Kerala v. Jacob Thomas Arikuprram and Ors.** [2019(4) KLT 1022], which burden is not seen assumed by the applicant. Rather, the materials on record are insufficient to establish that the scheduled property is not an ecologically fragile land. In as much as the same is not proved, the significance of the applicant's claim for exemption on the basis of cultivation of long duration crops reduces to a vanishing point. In the result, this appeal fails and the same is dismissed. The order impugned is confirmed, though for reasons different altogether as set out above. The parties will bear their respective costs. ## **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** Sbna/ **C.JAYACHANDRAN, JUDGE**