State of Kerala represented by the Chief Secretary to Government of Kerala & Custodian of Ecologically Fragile Lands v Kalathil Ambady S/o Kannan

CR IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944 ## MFA (FOREST) NO. 59 OF 2017 AGAINST THE ORDER/JUDGMENT IN OA 39/2015 OF TRIBUNAL FOR ECOLOGICALLY FRAGILE LANDS CASES,KZD. ## PETITIONERS: 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENTOF KERALA, THIRUVANANTHAPURAM. 2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS VESTED IN GOVERNMENT THE PRINCIPAL CHIEF CONSERVATOR OF FOREST, FOREST HEAD QUARTERS, THIRUVANANTHAPURAM. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. (FOREST) ## RESPONDENTS: KALATHIL AMBADY S/O. KANNAN, KARUVACHERRY P.O NILESHWAR, HOSDURG,TALUK, KASARAGODE - 671 314. BY ADVS. SRI.PHILIP ANTONY CHACKO SRI.P.M.SEBASTIAN THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 11.10.2022, ALONG WITH CROSS OBJECTION.19/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA(Forest) No.59 of 2017 **2** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944 CO NO. 19 OF 2018 in MFA(Forest) 59 of 2017 AGAINST THE ORDER IN OA NO.39/2015 OF THE FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL KOZHIKODE DATED 31.11.2016 ## PETITIONER: KALATHIL AMBADY,S/O. KANNAN, KARUVACHERRY,P.O. NILESHWAR, HOSDURG TALUK, KASARAGOD (DT) BY ADVS. SRI.PHILIP ANTONY CHACKO SRI.P.M.SEBASTIAN ## RESPONDENTS: - 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 2 THE CUSTODIAN OF ECOLOGICALLY FRAGILE LAND VESTED IN GOVERNMENT - (THE PRINCIPAL CHIEF CONSERVATOR OF FOREST), FOREST HEAD QUARTERS, VAZHUTHAKKAD, THIRUVANANTHAPURAM BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 11.10.2022, ALONG WITH MFA (FOREST).59/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA(Forest) No.59 of 2017 **3** ## **CR** **K.VINOD CHANDRAN & C. JAYACHANDRAN, JJ ----------------------------------------------------------------M.F.A.(Forest) No.59 of 2017 ---------------------------------------------------Dated this the 11[th] October, 2022** ## **J U D G M E N T** ## **K. Vinod Chandran,J** The appeal is preferred by the State against the order of the Forest Tribunal, Kozhikode. The application before the Tribunal was one filed under Section 10(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter 'EFL Act'). One Kunhabdulla filed O.A 144/1975 to exempt 22.50 acres of land from the purview of Kerala Private Forest (Vesting and Assignment) Act, 1971 (hereinafter the Vesting Act of 1971). Ten acres out of the total was not treated as vested, even by the department. The Forest Tribunal declared 12.5 acres to be exempted which was confirmed by this Court by order dated 05.11.1984. The representations to restore the land having fell on deaf ears, Kunhabdulla filed O.P No.3704/1992 before this Court, pending MFA(Forest) No.59 of 2017 **4** which he died. His wife and son were impleaded and the forest department took the stand that they are ready to restore 7.5 acres of land; the balance 5 acres having been excluded, being in excess of the ceiling limit under the Kerala Land Reforms Act. Based on this the OP was allowed on 07.06.1994, directing restoration to be done within two months. The restoration in effect was made only on 29.06.1997, to the legal representatives of Kunhabdulla. The applicant is said to have purchased the properties from the said legal heirs as per two documents numbered as 2321/97 dated 15.07.1997 and 2320/97 dated 16.07.1997 of SRO Neeleswaram. 2. In the instant application it was claimed that the subject land was cultivated with trees of coconut, cashew, jack, areca, rosewood etc. and after the Forest Department took possession, these trees were lost for no proper attention having been bestowed. The owner could enter the property only after restoration and after purchase of the same, the present applicant constructed Kayyalas to prevent soil erosion as also planted 300 coconut saplings, 150 cashew saplings, 50 areca saplings, 100 pepper wines, 100 rubber MFA(Forest) No.59 of 2017 **5** saplings etc. along with seasonal crops like ginger, cardamom etc. In 2006 the Forest officials prevented the workers from entering into the property and in 2007 a notice was issued by DFO Kannur stating the property has vested in the Government under the EFL Act, pointing out a notification in that respect and hence the application before the Tribunal. 3. The applicant testified that while carrying out agricultural operations the forest officials objected to irrigation of the property in October 2003 upon which the applicant sent a lawyer notice to the Forest Range Officer. There was no disturbance there after, till 2006, when notice was issued by the DFO Kannur based on the notification. The applicant asserted that the property is not an ecologically fragile land to be vested in Government under Section 3 of the EFL Act. The respondents on the other hand opposed the application pointing out that the scheduled property predominantly supports natural vegetation and therefore it is an ecologically fragile land vested under the EFL Act. MFA(Forest) No.59 of 2017 **6** 4. The Tribunal correctly found that under Section 3 of the EFL Act, to classify a land as ecologically fragile land there are three conditions to be complied with; that it should be a forest land, that the land or any portion there of should be lying contiguous or encircled by a reserved or vested forest or any other forests owned by the Government and that the land should predominantly support natural vegetation. The Tribunal noticed the decisions in _1991(1) KLT 666 Bhavani Tea and Produce Company v. State of Kerala, 2011(1) KLT 1008 State of Kerala v. Kumari Varma_ and _2014(3)KHC782 Kunhiraman P.V v. Custodian_ to find that since there is no case for the respondent that the application scheduled property was abandoned by the owner or the applicants and since there was an exemption under the Vesting Act, the application scheduled property cannot be termed as an ecologically fragile land. 5. Learned Special Government Pleader (Forest) Sri.Nagaraj Narayanan assailed the impugned judgment on the ground that _Kumari Varma_ (supra) was later distinguished and that _Kunhiraman P.V_ (supra) stood overruled by _2018(3) KHC 768_ MFA(Forest) No.59 of 2017 **7** _Custodian of Vested Forest Palakkad v. P.V Kunhiraman)_ . _Bhavani Tea_ (supra) cannot be relied on since it was only with respect to the vesting under the Vesting Act of 1971 not being possible if the land stood exempted from the purview of the Madras Preservation of Private Forest Act, 1949 (hereinafter MPPF Act), which is not the question arising herein. The learned Special Government Pleader placed reliance on _2013(2) KLT 420 State of Kerala v Unnikrishnan_ , _2015(2) KLT 783 Planters Forum v. State of Kerala_ , _2016(3) KHC 52 Ammukunhiamma v. State of Kerala, 2019(4) KLT 1022 Government of Kerala v. Jacob Thomas Arikupuram_ and _2018(5)KHC128 State of Kerala N. Rajagopal_ to assail the impugned order. It was argued that while applying the dictum of _Kumari Varma (supra)_ , it is very germane for consideration as to whether, as on the date of effect of the EFL Act, there was any cultivation carried out and the land was supporting natural vegetation especially when the lands were restored to the person who obtained the declaration under the Vesting Act of 1971. Learned Counsel Philip Antony Chacko appearing for the applicant/respondent supported the impugned MFA(Forest) No.59 of 2017 **8** order and relied strongly on _Kumari Varma_ (supra) **.** 6. We will look at the precedents first to understand the law on the subject. In _Kumari Varma_ (supra) a Division Bench considered the situation in which the respondent, who was the applicant before the Tribunal asserted that the property notified under the Vesting Act of 1971 was a cardamom plantation excluded from the definition of private forest, under that Act. After two remands, the Tribunal concluded that as on the appointed day a specified extent of area was covered by cardamom plantations and a smaller extent for ancillary purposes of the plantation, which lands stood excluded from vesting. The declaration stood affirmed up to the Hon'ble Supreme Court, concurrently. The Division Bench was considering the challenge against the further vesting under the EFL Act. The primary contention of the State was that the subject land as on the appointed day of the EFL Act was principally covered with naturally grown trees and under growth which brings it within the ambit of forest as defined under Section 2(c) of the EFL Act. The argument was also that for the last 30 years there was no cultivation MFA(Forest) No.59 of 2017 **9** in the subject land and notwithstanding the fact that the owner was deprived of possession, on a wrong interpretation under the Vesting Act of 1971, the fact situation presently makes the land an ecologically fragile land. It was also argued that the EFL Act having been enacted in furtherance of the fundamental duty under Article 51A clause (g) and the directive principles under Article 48A an interpretation which promotes the purpose of the Act; ie: protection of the environment, has to be preferred. The Division Bench rejected the contention of the State, finding that there was nothing to show that the owners had abandoned the cultivation as had been pointed out in _Bhavani Tea_ (supra). It was held that the State having deprived the owner of the possession of the land and the legal right to cultivate it cannot take advantage of its own wrong. 7. The declaration after examining the provisions is found in paragraph 24 as extracted herein 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 abovementioned Act. They are excluded from the purview of the expression “private forest” MFA(Forest) No.59 of 2017 **10** 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 abovementioned Act, i.e. 10.5.1971, 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. [underlining by us for emphasis] 8. _Unnikrishnan (supra)_ noticed _Kumari Varma_ (supra) but distinguished it. The subject land in _Unnikrishnan_ was also declared to be exempted from vesting under the Vesting Act of 1971, which declaration stood affirmed by this Court. The land was also restored to the respondent on 12.01.2000 and when the EFL Act came into force, again a notification was issued declaring the vesting of the land under that Act, which was challenged before the Tribunal and a declaration obtained, which was assailed by the State before the High Court. The Division Bench found; as was found by the Tribunal in this case, which is stated above, that there are three ingredients to be satisfied to declare a land to be one possible of MFA(Forest) No.59 of 2017 **11** vesting under the EFL Act. It was found that when admittedly the land was notified under the Vesting Act of 1971, despite the declaration of exemption granted by the Tribunal, it is a forest land. The Division Bench found that for want of better evidence, the boundaries of the properties as seen from the notification has to be accepted which shows the land to be bounded on three sides by vested forest. Thus, finding that the first & second ingredients are satisfied, on the last ingredient, _Kumari Varma_ (supra) was noticed and the same was distinguished. It was found that _Kumari Varma_ 's case dealt with a notification under Section 4(1) of the EFL Act which is in relation to the definition of ecologically fragile land under Section 2(b)(ii) of the EFL Act. It was also found that _Kumari Varma_ (supra) in paragraph 14 recognizes a distinction in so far as the classification of lands as ecologically fragile lands under sub clause (i) and (ii) of Section 2(b). 9. We are unable to agree with the said distinction drawn from _Kumari Varma_ (supra) especially looking at the definition of ecologically fragile land. First, we have to notice that _Kumari Varma_ MFA(Forest) No.59 of 2017 **12** was not a case falling under Section 2(b)(ii) as is evident from paragraph 14 of _Kumari Varma_ which is extracted herein below; which paragraph was specifically noticed in _Unnikrishnan_ (supra). It can be seen from the above that under R.2(b) (i) lands falling within the description contained thereunder become ecologically fragile lands by virtue of the operation of the law, though such an operation of law itself depends upon - the existence of certain facts. On the other hand, sub s.(ii) of S.2(b) envisages that any land can be declared to be as an ecologically fragile land by the Government by notification in the Gazette under S.4. Under what circumstances and in what manner such a declaration can be made need not be examined, as admittedly it is not the case of anyone of the parties before this Court that the lands in question, in these two appeals, fall under the said category. For the present it is sufficient to notice that there can be two categories or classes of lands which can be called ecologically fragile lands within the meaning of the 2003 Act. [ _underlining by us for emphasis_ ] 10. The dictum in _Kumari Varma_ (supra) hence applies squarely to the Section 2(b)(i) of the EFL Act. We would in this context also refer to the relevant definition clauses under the EFL Act, which are as below: 'S.2(b) (i) any Forest land or any portion thereof held MFA(Forest) No.59 of 2017 **13** by any person and lying contiguous to or encircled by a reserved forest of a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation; and (ii) any land declared to be an ecologically fragile land by the Government by notification in the Gazette under Section 4. S.2(c) “forest” means any land principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognised and declared as reserved forest, protected forest or otherwise but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of residential building and surroundings essential for the convenient use of such buildings.' 11. From the definition of forest, as available in Section 2(c), lands, which are cultivated principally with certain specified crops, other sites of residential buildings and surroundings essential for the convenient use of such buildings, have been exempted. While interpreting sub clause (i) of Section 2(b), the definition in Section 2(c) has to be super imposed on the word 'forest land' used in that section. Hence, every forest land or portion thereof held by any person, lying contiguous to or encircled by a reserved or vested forest or any other forest land owned by the Government and MFA(Forest) No.59 of 2017 **14** predominantly supporting natural vegetation, would stand included under the definition of EFL; if and only if, the land is not one in which one of the specified crops is principally cultivated. We are hence of the opinion that _Kumari Varma_ (supra) and the dictum therein applies squarely in cases where the subject lands were declared to be exempted under the Act as cultivated lands and despite such declaration, the same was not restored to the owners till the EFL Act came into force. It was in that circumstance, the Division Bench in _Kumari Varma_ (supra) held that after depriving the owner, possession and thus the right to cultivate, the State cannot take advantage of its own wrong to assert presence of natural tree growth and under growth, for the purpose of bringing the land under the EFL Act. 12. _Unnikrishnan (supra)_ and _Kumari Varma_ (supra) are coordinate Benches, the former preceding the latter. The facts in _Kumari Varma_ (supra) specifically apply to Section 2(b)(i) of the EFL Act, but _Unnikrishnan_ having not correctly noticed the facts; we are of the respectful opinion that we are not bound to follow the MFA(Forest) No.59 of 2017 **15** subsequent decision. We garner support from the decision in _National Insurance Company Ltd. v. Pranay Sethi (2017) 16 SCC 680_ which found that a later coordinate bench holding differently from the earlier one cannot be taken as a binding precedent. It was held that a decision will be _per incuriam_ when any provision in a statute, rule or regulation was not brought to the notice of the Court and also if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a coequal or larger Bench. 13. We also have to notice that though the distinction drawn in _Unnikrishnan_ (supra) was not proper, the learned Judges went on to find that the land was restored on 12.1.2000 and though the respondent was in possession of the said lands for a period of 9 years, there was no attempt to carry out any cultivation. It was also found that but for the oral evidence that the forest officials prevented him from cultivating the lands, there is no evidence except that self serving one. We fully agree with the said proposition in _Unnikrishnan (supra)_ . 14. _Kunhiraman P V_ (supra) relied on by the Tribunal was MFA(Forest) No.59 of 2017 **16** overruled in _Custodian of Vested Forest v. P.V Kunhiraman 2018(3) KHC 768_ . We need not go into the multitude of facts in the said decision. but we only notice that therein there was an exemption granted under the Vesting Act of 1971 and the land was later found to be vested under the EFL Act. _Kumari Varma_ (supra) was distinguished insofar as even after the exemption granted and direction issued in a writ petition to restore the property, the applicants who claimed exemption could not identify the property and in the meanwhile the EFL Act came into force. The Division Bench found that the land claimed by the respondents were always virgin forests, which were referred to as uncultivated jungle in an earlier Full Bench judgment of this Court in State of _Kerala v. Moosa Haji 1984 KLT 494_ . The learned Judges also noticed the Forest (Conservation) Act, 1980 which required the prior approval of the Central Government to enable use of any forest for non forest purpose. The reliance hence placed on the judgment of the learned Single Judge can have no effect as of now. 15. _Planters Forum_ (supra) held that lands which are MFA(Forest) No.59 of 2017 **17** used principally for cultivation will not be ecologically fragile land and the issue whether they are principally used for cultivation for crops is a relevant fact which has to be enquired into on a case to case basis. Noticing _Kumari Varma_ (supra), it was held that though the judgments delivered under the Vesting Act of 1971 by virtue of S.3 are relevant as a piece of evidence they are not binding as such and each case has to be decided in accordance with its own merit. 16. _Ammukunhi Amma_ (supra) was a case in which the ground raised was of a cardamom plantation and thus confining the claim to exclusion under clause (B) of Section 2(f)(1)(i) of the Vesting Act of 1971. The Division Bench relying on earlier unreported decisions of coordinate Benches held that a few stray plants and remnants of abandoned plantations cannot be treated as lands principally cultivated with plantation crops. If there were only sparse growth of plants; less than half the usual number of plants of the respective species, which could be properly, normally and scientifically cultivated per acre, then the area cannot be considered as principally planted with those crops. Therein the owners took a MFA(Forest) No.59 of 2017 **18** contention that the respondents admitted that one half of the total extent was cultivated with cardamom, thus satisfying the mandate of principal cultivation. The learned Judges looked at the counter affidavit as a whole, to find that, it was the contention of the respondents that there were no definite boundaries to identify the scheduled properties to differentiate the property claimed from other lands in the resurvey number, which forms part of other extensive vested forest lands. It was categorically found, looking at the commission report that, there was only sparse cultivation carried out in the land, which cannot be considered as principally cultivated with the specified crops. A contention raised that, at least the extent of property admitted to be plantation be excluded from the Vesting Act of 1971 was rejected looking at the particular scheme of the statute; which did not permit portions of properties to be excluded, the benefit of exclusion being conferred only if the property is principally cultivated as on the date of vesting. _N.Rajagopal_ (supra) again considered the words principally cultivated in the context of the EFL Act to further affirm the principle in _Ammukunhi Amma_ (supra) MFA(Forest) No.59 of 2017 **19** finding that the cultivation of coffee plants claimed, was over less than 50% of the area in question. It was held that there could be no conclusion arrived at that the land in question was principally cultivated with coffee at the time of vesting. 17. From the above precedents it is clear that an exemption from vesting under the Vesting Act of 1971 cannot necessarily absolve the lands from vesting under the EFL Act as on the appointed day which is 02.06.2000 though it is a very relevant piece of evidence which has to be reckoned. We also have to notice that as per the Vesting Act of 1971 principal cultivation of specified crops is required only under Clause (B) and (C) of Section 2(f)(1)(i). As far as exemption is concerned, it absolves _'… so much extent of land comprised in private forest held by an owner under his personal cultivation...'(sic-sub-section (2) of S.3)_ and _'… so much extent of private forest held by an owner under a valid registered document of title executed before the appointment date and intended for cultivation ...'(sic-sub-section (3) of S.3)_ . We reiterate, under the EFL Act, for exclusion from the definition of forest, the MFA(Forest) No.59 of 2017 **20** land should be principally cultivated with the specified crops of long duration. _Kumari Varma(supra)_ was in a unique situation where the lands were excluded as cardamom plantations which matter went up to the Supreme Court. Despite the exemption being affirmed by the Supreme Court, the lands were not restored to the owner, even when the EFL Act came into force. The State claimed naturally grown trees and undergrowth for the last thirty years, when the owners were dispossessed from the property and not allowed restoration even after declaration of exemption. 18. In the present case we see a distinction insofar as the properties were restored. Reiterating the brief facts, the exemption sought for, was to 22.50 acres of land under the Vesting Act of 1971 by the vendors of the present applicant. Over ten acres, there was no vesting claimed by the Department and out of the balance 12.5 acres, 5 acres was in excess of the ceiling area; thus leaving only 7.5 acres of land to the owners. Admittedly as per mahazar dated 21.06.1997, the Forest Department released 7.5 acres to the legal representative of Kunhabdulla, the original owner, after the declaration of the Tribunal MFA(Forest) No.59 of 2017 **21** under the Vesting Act. Immediately thereafter, in July 1997 the present applicant purchased these properties and it is his assertion that there were a number of trees including coconut and cashew trees planted in the property. We have noticed the appointed day of the EFL Act, coming in the year 2000 and the first interference claimed by the applicant is in the month of October 2003 when the forest officials objected irrigation of the crops in the property. The applicant also admits that on a lawyer notice being issued to the Forest Range Officer there was no subsequent interference till the year 2006; specifically in the month of November 2006. Hence the applicant had possession of the property prior to the appointed date and was in continuous occupation thereafter too. He has to prove that there was cultivation as on the appointed date of the EFL Act. _Kumari Varma_ (supra) has no application to the instant case. In such circumstances we set aside the order of the Tribunal and remand the matter for fresh consideration. 19. We make it clear that there is no scope for any further evidence to be adduced and the matter will have to be decided on the MFA(Forest) No.59 of 2017 **22** basis of the evidence already recorded. The Tribunal will have to decide the issue based on the observations herein above and we reiterate the caution that the principal cultivation of the land should be on the specified crops of long duration as enumerated in S.2(c) of the EFL Act and that too as on the appointed day under the EFL Act. The O.A shall stand restored to the files and the same shall be posted on 01.12.2022. The Tribunal shall, if an adjournment is sought for the purpose of preparation, grant it not exceeding one month. On the next posting date the matter shall be heard and disposed of, at any rate within three months from the date of hearing. The MFA is allowed with the above directions. Cross Objection stands dismissed. Parties shall suffer their respective costs. Sd/- **K.Vinod Chandran, Judge** Sd/- **C.Jayachandran, Judge** jma/uu