State of Kerala represented by its Secretary to Government, Department of Forest and Wildlife, Government Secretariat, Thiruvananthapuram; The Custodian Ecologically Fragile Lands, The Principal Chief Conservator of Forests, Forest Head Quarters, Thiruvananthapuram; The Divisional Forest Officer Kozhikode; The Forest Range Officer Kuttiadi, Perambra, via Kozhikode v. N. Rajagopal S/o P. Narayanan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY ,THE 04TH DAY OF SEPTEMBER 2018 / 13TH BHADRA, 1940** ## **MFA.No. 125 of 2016** **AGAINST THE ORDER IN OA 6/2009 of TRIBUNAL FOR ECOLOGICALLY FRAGILE LANDS CASES/1 ADDL.DISTRICT COURT, KOZHIKODE DATED 31-08-2016** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST AND WILDLIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE CUSTODIAN ECOLOGICALLY FRAGILE LANDS, THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, FOREST HEAD QUARTERS, THIRUVANANTHAPURAM.** - **3 THE DIVISIONAL FOREST OFFICER KOZHIKODE.** - **4 THE FOREST RANGE OFFICER KUTTIADI, PERAMBRA, VIA KOZHIKODE. BY ADV. SPECIAL GOVERNMENT PLEADER FOR FOREST SRI.NAGARAJ NARAYANAN** ## **RESPONDENT/APPLICANT:** **N. RAJAGOPAL S/O. P.NARAYANAN NAIR, BABU VIHAR,KOWADIAR, THIRUVANANTHAPURAM. BY ADV. SRI. LIJU. M.P SRI.SAJAN VARGHESE K.** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27.06.2018, THE COURT ON 04.09.2018 DELIVERED THE FOLLOWING:** MFA (Forest) No.125/16 -:2:- ## **J U D G E M E N T** ## _**Shaffique, J.**_ State and its authorities are in appeal challenging order dated 31/8/2016 in OA No.6/2009 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal, Kozhikode. 2. This is the third round of litigation and presently our concern is only with reference to two items of property which are described as plots D and E marked in Ext.C2(a) plan. 3. The short facts relating to the case are as under:A large extent of property belonging to one Sri.P.Narayanan Nair was notified as vested forest under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as the 1971 Act). Narayanan Nair sought for exemption and ultimately by a decision in MFA No.24/1980, the High Court directed restoration of 80 acres of land comprised in Sy.No.175 of Kavilumpara village. Pursuant to the said order, 80 acres in Re.Sy.Nos.276/1 and 276/2 were put in possession of Narayanan Nair. According to the applicant, Narayanan Nair started MFA (Forest) No.125/16 -:3:- cultivation in the year 1981 itself. Narayanan Nair died and his rights devolved on his legal heirs including the applicant. On partition among the legal heirs, the scheduled property was allotted to the share of the applicant. Despite an order granting clear-fell, the same could not be done in full on account of directions issued by the Supreme Court in SLP No.5731/2002. In the meantime, invoking the powers u/s 3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance 6/2000, which was later promulgated as the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as the 2003 Act), 80 acres of land comprised in Re.Sy.No.175 of Kavilumpara village was notified and vested in the Government as ecologically fragile land. Application was filed by the applicant seeking exemption on the ground that the land was principally cultivated with rubber, coffee, areca, cardamom and pepper wines. 4. Before the Tribunal, applicant was examined as PW1 and he relied upon Exts.A1 to A16. The commission report was marked as Ext.C1 and the plan as Ext.C1(a). Respondents relied upon the evidence of RW1 and Exts.B1 to B9. The Tribunal MFA (Forest) No.125/16 -:4:- dismissed the application. The matter was taken to the High Court and the High Court remitted the matter back for fresh consideration. Pursuant to the remand order, the Tribunal appointed a new commission. Ext.C2 is the report and Ext.C2(a) is the plan. The Commissioner was examined. PW1 was recalled and examined and by judgment dated 29/4/2013, it was found that plots B and C marked in Ext.C2(a) plan are not ecologically fragile lands vested in the Government. 5. Applicant preferred MFA No. 98/2013 and by judgment dated 3/8/2015, the matter was again remitted back to consider the case of the applicant with respect to plots D and E. In respect of the other properties, the finding of the Tribunal was upheld. After remand, the only question was regarding plots D and E in Ext.C2(a) plan. In fact, before remand, the High Court had also appointed an Advocate Commissioner to inspect the plot along with experts and to file a report. Ext.C4 series is the final report, location sketch and report of the experts. No further oral evidence was adduced by the applicant. Range officer of Kuttiadi range was examined as RW2. 6. The Tribunal after considering the evidence declared MFA (Forest) No.125/16 -:5:- that the plots marked as D and E in Ext.C2(a) plan and Ext.C4(a) location sketch are not ecologically fragile lands vested in Government. 7. Being aggrieved by the aforesaid order, this appeal is filed by the State _inter alia_ contending that there is absolutely no evidence to support the argument that the property in question was planted either with coffee or pepper wine and the Tribunal completely erred in arriving at a finding that the properties are not ecologically fragile land. 8. On the other hand, learned counsel appearing for the respondent/applicant supported the Tribunal's view and contended that there is enough evidence to prove that the areas in question were principally cultivated at the time when the notification was published. The question to be considered is, whether on the appointed date, i.e., 2/6/2000, the scheduled property was predominantly cultivated with coffee or pepper. The Tribunal has placed reliance on the Advocate Commissioner's report which was marked as Ext.C4. It was found in Ext.C4 report that after the notification, the applicant or his workers were not permitted to enter into the property. It is seen from Ext.C4 report MFA (Forest) No.125/16 -:6:- that a cross section of plots D and E were taken and subdivided into 12 sample square plots marked as plot 1 to 12 in the sketch attatched to the report. Each plot had a length and breadth of 20 metres i.e., 400 sq.metres each (10 cents). The plots were demarcated and the number of trees and its variety had been specifically stated in the report. The age of coffee plants has been roughly assessed as in the sample plots between 13 to 22 years of age. It is also observed that the coffee plants have overgrown considerably and there is wild growth of shrubs and trees. A sketch showing the sample plots and the details of the trees are also mentioned. In the report given by Dr.P.Sujanapal and K.J.Dantas, Kerala Forest Research Institute, Peechy to the Advocate Commissioner, it is observed that coffee plants are seen in the area, but most of them are in a disorganised manner, when compared to an agricultural system. Further it observed that the coffee plants of different ages are seen here and there in the area and that might be due to natural regeneration. The report also points out that among 89 species, 28 are either endemic or the species under red list categories. Dominant trees in typical evergreen forests indicate the uniqueness of the MFA (Forest) No.125/16 ## -:7:- vegetation and there are large sized endangered species like Eugenia argentia, which is a unique feature of the vegetation. The observation is that the area is predominant of natural vegetation with many endemic, rare and threatened angiosperms and medicinal plants. 9. Learned Special Government Pleader also placed reliance upon a Division Bench judgment of this Court in _**Ammukunhi Amma v. State of Kerala**_ [2016 (3) KHC 52] wherein while considering a claim for exemption under the 1971 Act, it was held at paragraphs 18 and 19 as under:- _“18. Now comes the question as to what is the meaning of the term 'principally cultivated'. Going by the very terminology, the intention of the Statute appears to be that the cultivation has necessarily to be to a substantial extent so as to make the property principally cultivated. In other words, occurrence of the cultivation here and there in a large extent of the property is not sufficient to hold that it was principally being cultivated. The factual position available in the present case will be dealt with later, and before that, what exactly is the meaning of the term and what extent of cultivation has to be there to ascertain whether it was being principally cultivated or not, are to be considered._ _19. The learned Special Government Pleader seeks to place reliance on the observations and findings made by_ MFA (Forest) No.125/16 -:8:- _another Division Bench of this Court in the common judgment dated 11/03/1988 in MFA 78 of 1983. Paragraphs 32 and 33 of the said verdict are relevant, which hence are extracted below:_ _"32. The Tribunal relied on the report of the Commissioner to find that there were coffee plants which were 15-20 years old in the disputed property. The Commissioner had seen a maximum of 50-75 coffee plants per acre in the age group of 8-12 years at the time of inspection. It is hardly possible to hold that that number is sufficient to treat the disputed area as "principally planted with coffee". Significantly, the Commissioner did not find any cardamom plants in the disputed area. Ext. C1 to C3 will therefore, indicate only that there were stray coffee plants in some portions of the disputed area. We had occasion to consider whether an area where there are only a few coffee or cardamom plants or where there are remnants of abandoned plantations could be treated as principally cultivated with such plantation crops. In our judgment in MFA No. 214 of 1981 we had refused to accept almost the same contention as is sought to be advanced by counsel for the respondents. We based our decision on the judgment in MFA No. 426 of 1982, which in turn, drew largely upon in Chacko Jose v. State of Kerala and Another, 1975 KLT 825 and Kunhahamed Koya v. Gopala Menon, AIR 1943 Mad. 1891. One of us (Sivaraman Nair, J.) had occasion to consider the question whether an area with sparse growth of coffee or cardamom could be considered as "principally planted" with those crops. With reference to the evidence of a plantation expert, it was held in MFA_ MFA (Forest) No.125/16 -:9:- _No. 48 & 291 of 1981 that unless there were at least half the usual number of plants per acre of the respective species, the area could not be considered as "principally planted" with those crops._ _33. We are therefore constrained to hold that the Tribunal was wrong in coming to the conclusion that the disputed area was either a coffee or cardamom plantation or that it was even cultivated prior to the appointed date. The existence of a few cardamom or coffee plants in the property, even prior to the appointed date, cannot induce an invariable inference that the areas in question were cardamom or coffee plantation prior to that date. That evidence is hardly sufficient to sustain a finding that the disputed area was principally planted with cardamom or coffee. The vague and general assertions found here and there in the evidence let in by the applicants were not sufficient to hold that the lands in dispute were held under the personal cultivation of the applicants entitling them for exemption under S.3(2) of the Act 26 of 1971"_ _From the above, it is seen that the finding rendered by the learned Judges in the above case was, with reference to the inference arrived at in similar situation, based on the evidence of a 'plantation expert', that unless there were at least 'half' usual number plants per Acre of the respective specie, the area could not be considered as principally planted with those crops. We are in full agreement with the above finding and reasoning and unless the pleading and evidence in the instant case establish that the above requirement is satisfied, the property cannot be held as a 'plantation', to be excluded_ MFA (Forest) No.125/16 ## -:10:- ## _from the purview of the Vesting Act.”_ 10. Now let us consider the evidence adduced by the applicant. Ext.A6 is an order issued by the Coffee Board on 23/6/1989 granting the second instalment expansion subsidy due in respect of planted area of 14 acres under the Expansion Subsidy Scheme. The year of plant is mentioned as 1985-II. Ext.A5 is another order granting subsidy. The order is dated 7/3/1991. `9,924/- has been given as subsidy for 16.54 acres of _robasta_ which is planted in the year 1987-II. Therefore, the evidence would show that the applicant had a plantation, which is planted during the second half of 1985 and 1987 and total planted area would come to 30.54 acres. In fact, in the application itself, petitioner claimed only 31 acres as coffee. The total extent of D and E would come to 18.0402 hectares corresponding to 44.57 Acres. Whereas, even according to the applicant, only 31 acres had been planted with coffee. The question is what was the situation of the coffee in terms of Exts.A5 and A6 as on the date of notification. It is also evident from the Advocate Commissioner's report that the tree area would only come to 6.0705 hectares corresponding to 15 acres. MFA (Forest) No.125/16 -:11:- In _**Ammukunhi Amma's case**_ (supra), Division Bench of this Court relied upon an earlier Division Bench judgment dated 11/3/1988 in MFA No.78/1983 wherein it is held that unless there is evidence of atleast half the usual number of plants per acre of the respective species, the area could not be considered as principally planted with those crops. 11. But what we have to consider is the position as on the date of vesting and what exactly was the nature of cultivation as on that date. It is an admitted fact that after the notification, applicants were not permitted to cater to the agricultural operations. Therefore, there is every chance of natural growth and the coffee plants getting deteriorated and wasted. 12. No doubt, there is evidence to show that atleast 31 acres of land was cultivated with coffee and the said cultivation was going on atleast from 1985-87 onwards. Plot D covers an extent of 5.6548 hectares corresponding to 14 acres and plot E having an extent of 12.3854 hectares corresponding to 30.60 acres. Apparently, from Exts.A5 and A6 and even in the petition, the claim was only for 31 acres, which was planted with coffee and therefore, the petitioner cannot take a different contention. MFA (Forest) No.125/16 -:12:- 13. There is no dispute regarding the report submitted by the experts. It is clearly indicated that they could record 89 species of higher plants of which 28 are either endemic or the species under Red List categories. As far as the natural trees enumerated in the sample plots are concerned, it could be seen that except for a few trees, most of the trees are either 20-25, 30, 40 and 50 years old and there are even trees, the age of which are 60 and even 70. Apparently these trees were in existence as on the date notified for vesting. Even assuming that coffee plants were in existence, their number is stated in Appendix III as ranging between 11 to 33 in each plot and in plot No.1-47. Appendix IV are the details of saplings and seedlings in each plot as well which further indicates a natural growth of various species. In the report of Sri.Haridasan C., his opinion is that there is wide variation in the collar girth and height among the plants within the sample plot and among plants of different sample plots as well. The minimum breadth was found to be 18 cm and the maximum 53 cm. The height was varying from 1.5 metres to 4 metres. The spacing of the plants is also different in different areas and therefore a correct assessment of the age is difficult. MFA (Forest) No.125/16 -:13:- According to him, the coffee plants in the sample plots D and E are of 13 to 22 years of age. No doubt, this report is prepared after conducting an inspection on 30/12/2015 and thereafter on 22/2/2016. In order to claim exemption, the area in question should be principally cultivated with coffee. What would have been the situation as on the date of vesting assumes importance. When we find large number of fully grown trees in the sample properties and the number of coffee plants are much less than even 50% of the area in question, it might be difficult to arrive at a conclusion that the land in question was principally cultivated with coffee at the time of vesting. It is true that the Advocate Commissioner has reported that plots D and E have overgrown considerably and there is wild growth of trees due to lack of care and maintenance. But the fact remains that in each plot, there are substantial number of trees which are aged more than 20 years. Further, respondents have a case that some of the coffee plants have come into existence due to regeneration and was not planted. 14. Taking into consideration all these factual aspects, we are of the view that the Court below had committed grave error in MFA (Forest) No.125/16 -:14:- discarding the expert opinion and arriving at a conclusion based on the mere fact that the trees would have been destroyed due to lack of proper maintenance. The Tribunal found that the number of coffee plants in the property was comparatively less. It also observed that if the land is intensively cultivated with coffee plants, there would have been 64 plants in an area of 10 cents . If as a matter of fact, the land was principally cultivated with coffee, as on the date of vesting, the number of coffee plants would have been more than what is reported by the Advocate Commissioner. May be some leverage could have been given to the percentage of destruction for non maintenance. But still the number of plants found in the sample plots measuring 10 cents each are far less than what could be seen in a normal coffee plantation. 15. Taking into account all these facts, we are of the view that Tribunal committed serious error in exempting the aforesaid land as not coming under the category of ecologically fragile land. 16. It is true that there was a coffee plantation. But there is no material to indicate that the land involved was principally MFA (Forest) No.125/16 -:15:- cultivated with coffee. Other than Exts.A5 and A6, no other documents are forthcoming to prove continuous cultivation of coffee plants until the date of vesting. Taking into account all these facts, we are of the view that the order of the court below is liable to be set aside and the petitioner is not entitled for exemption as sought for. Accordingly, this appeal is allowed. The order passed by the Tribunal in OA No.6/2009 is set aside. **Sd/-** **A.M.SHAFFIQUE Judge Sd/P.SOMARAJAN** //True Copy// **Judge** Rp PS to Judge