State of Kerala represented by the Chief Secretary v Abdul Rahman and others (O.P.(F.T.) No. 3 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022/3RD AGRAHAYANA, 1944 O.P.(FT) NO.3 OF 2022** **AGAINST THE ORDER DATED 30.09.2020 IN I.A.NO.3/2020 AND ORDER DATED 30.06.2022 IN I.A.NOS.13/2021 & 14/2021 IN O.A.NO.8/2016 OF FOREST TRIBUNAL, PALAKKAD** ## **PETITIONERS/PETITIONERS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM, PIN – 695001.** - **2 THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS, VAZHUTHACAUD, THYCAUD, THIRUVANANTHAPURAM, PIN – 695014.** - **BY SRI.NAGARAJ NARAYANAN, SPL. GOVERNMENT PLEADER** ## **RESPONDENTS/RESPONDENTS/APPLICANTS:** - **1 ABDUL RAHMAN, S/O.LATE ABOOBACKER, ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **2 UTHAN KUTTY, S/O.LATE ABOOBACKERORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **3 ZAINABA, W/O.LATE SULAIMAN, ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **4 ALEENA, D/O.LATE SULAIMAN, ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **5 ABDUL KHADER, S/O.LATE SULAIMAN, ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **6 NOORJAHAN, D/O.LATE SULAIMAN,ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** **O.P(F.T)No.3 of 2022** **2** - **7 MUSTHAFA, S/O.LATE SULAIMAN,ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **8 AYOOB, S/O.LATE SULAIMAN,ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **9 SHAHUL HAMMED, S/O.LATE SULAIMAN,ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **10 MUHAMMED FAROOQ, S/O.LATE SULAIMAN,ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **11 BEEPATHUMMA, W/O.LATE NOOR MUHAMMEDORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **12 RAFEEQ, S/O.LATE NOOR MUHAMMEDORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **13 RAJEENA, D/O.LATE NOOR MUHAMMEDORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **14 NAFEESA, D/O.LATE NOOR MUHAMMEDORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **15 SARA UMMA, W/O.LATE HANEEFA, ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **16 ABDUL AZEEZ, S/O.LATE HANEEFA, ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **17 ZAINABA, D/O.LATE HANEEFA, ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **18 SHAHUL HAMEED, S/O.LATE HANEEFA, ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** - **19 SABEENA, D/O.LATE HANEEFA, ORUMANAKUNDU HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK, PALAKKAD, PIN – 678543.** **O.P(F.T)No.3 of 2022** **3** |**20**|**ABBASS, S/O.LATE HANEEFA, ORUMANAKUNDU HOUSE,**| |---|---| ||**VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK,**| ||**PALAKKAD, PIN – 678543.**| |**21**|**PATHUMMA, W/O.LATE AHAMED, ORUMANAKUNDU HOUSE,**| ||**VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK,**| ||**PALAKKAD, PIN – 678543.**| |**22**|**ABDUL JABBAR, S/O.LATE AHAMED, ORUMANAKUNDU**| ||**HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR**| ||**TALUK, PALAKKAD, PIN – 678543.**| |**23**|**KAMARUDHEEN, S/O.LATE AHAMED, ORUMANAKUNDU HOUSE,**| ||**VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK,**| ||**PALAKKAD, PIN – 678543.**| |**24**|**KHADEEJA, D/O.LATE AHAMED, ORUMANAKUNDU HOUSE,**| ||**VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK,**| ||**PALAKKAD, PIN – 678543.**| |**25**|**HASEENA, D/O.LATE AHAMED, ORUMANAKUNDU HOUSE,**| ||**VAVULLIYAPURAM, KAVASSERY POST, ALATHUR TALUK,**| ||**PALAKKAD, PIN – 678543.**| |**26**|**BEEPATHUMMA, D/O.LATE ABOO BACKER, ORUMANAKUNDU**| ||**HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR**| ||**TALUK, PALAKKAD, PIN – 678543.**| |**27**|**ISUMMA, W/O.LATE THANGALKUTTY, ORUMANAKUNDU**| ||**HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR**| ||**TALUK, PALAKKAD, PIN – 678543.**| |**28**|**MUHAMMEDRAFI, S/O.LATE THANGALKUTTY, ORUMANAKUNDU**| ||**HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR**| ||**TALUK, PALAKKAD, PIN – 678543.**| |**29**|**SAJITHA, D/O.LATE THANGALKUTTY, ORUMANAKUNDU**| ||**HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR**| ||**TALUK, PALAKKAD, PIN – 678543.**| |**30**|**SHEHARABANU, D/O.LATE THANGALKUTTY, ORUMANAKUNDU**| ||**HOUSE, VAVULLIYAPURAM, KAVASSERY POST, ALATHUR**| ||**TALUK, PALAKKAD, PIN – 678543.**| ## **NAGARAJ NARAYANAN-SPL.G.P** **THIS OP (FOREST TRIBUNAL) HAVING COME UP FOR ADMISSION ON 24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P(F.T)No.3 of 2022** **4** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------O.P(F.T)No.3 of 2022 --------------------------------------------Dated this the 24[th] November, 2022** ## **JUDGMENT** **K.Vinod Chandran, J.** **The original petition is filed by the State against Exts.P5 & P8 orders of the Tribunal appointed under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 [for brevity, 'EFL Act']. The learned Special Government Pleader (Forests) Sri.Nagaraj Narayanan first responded to our query, regarding delay in approaching this Court with a challenge against Ext.P5, as due to the pandemic situation. It is argued that the Tribunal has shut out the best evidence by refusing to depute an expert to report on the ecological sensitivity of the area by Ext.P5 and also by Ext.P9 order rejecting the further prayer made by the Government for examining an expert to speak on such ecological factors unique to the area in which the land is situated. It is** **O.P(F.T)No.3 of 2022** **5** **urged that it was the bounden duty of the applicants to ensure that a proper report of inspection is filed by a Commissioner appointed, especially when the factors required to be looked into by the Tribunal also relates to the fragile ecological status of the land on which a declaration is sought. The learned Special Government Pleader would urge us to admit the original petition, stay the proceeding before the Tribunal and after hearing the parties, allow the prayer to depute an expert to report on the ecological factors or at least examine the expert witness proffered by the State to testify on the same.** **2. We need to first look at the proceedings as revealed from the exhibits produced in the original petition. The respondents herein were applicants before the Tribunal under S.10 of the EFL Act seeking a declaration that the scheduled land having an extent of 8.81 Acres in Tarur-II Village of Alathur Taluk, of Palakkad** **O.P(F.T)No.3 of 2022** **6** **District is not an ecologically fragile land. A commission was taken out by the applicants, the report of which along with the sketch prepared is found at Ext.P1. There was then an application filed by the applicants for amendment, in the pleadings and also in the relief portion. Insofar as the pleadings are concerned, the applicants sought to incorporate an additional pleading regarding O.A.No.5 of 2001 disposed of by the Forest Tribunal, Kozhikkode on 24.01.2003. In the relief portion two additional prayers were sought to be incorporated; one, of the disputed property not having vested under S.3(1) of the EFL Act, thus its ownership and possession not being transferred to the Government and the other to declare that the judgment in O.A.No.5 of 2000 is still in force and not extinguished. The Tribunal, by Ext.P2 order, found that the amendment sought in the pleadings and the prayer as to the land being not vested in the Government does not materially alter the nature and characteristics of the original application and** **O.P(F.T)No.3 of 2022** **7** **no prejudice will be caused to the respondent; which amendments stood allowed. However, the declaration sought regarding the earlier O.A, in the relief portion, was rightly found to be not possible by the Tribunal in deciding a dispute under S.10 of the EFL Act.** **3. While matters stood thus, the State along with the Custodian filed Ext.P3 application to carry out a scientific study through an expert, as to the ecological significance of the scheduled property, which had not been dealt with by the Advocate Commissioner in Ext.P1 report. The applicants resisted the same with Ext.P4 objections pointing out that the aspects sought to be brought forth by a scientific study are not at all germane to the adjudication under the EFL Act. The Tribunal dismissed the application by Ext.P5, on 30.09.2020. The State rested contend after that and in November 2021 after almost an year, filed Ext.P6 application seeking to receive the report of a scientific expert and summon him as a witness to testify on** **O.P(F.T)No.3 of 2022** **8** **the ecological importance of the property. The Tribunal dismissed the application by Ext.P8 terming the application to be a colourable one and a sheer abuse of the process of Court.** **4. Having anxiously considered the orders impugned and the submission of the learned Special Government Pleader, we are not inclined to entertain the above original petition. We are not convinced that there is a suitable explanation for the delay in challenging Ext.P5 order. True, at the time Ext.P5 was passed, the whole world was reeling under the pandemic situation, but however things changed for the better and the restrictive lockdowns have also been far in between and confined to certain areas. As of now, the world has opened up completely in the last more than one year. More over, we find that there is absolutely no explanation for the delay, offered in the original petition; citing the ground of lock-downs or the Covid situation having interdicted the State from approaching this Court in the last more than two** **O.P(F.T)No.3 of 2022** **9** **years from Ext.P5 order.** **5. Further it is to be noticed that a commission was taken out in the year 2019, with notice to the respondent State and a report was filed on 18.11.2019 as seen from Ext.P1. The State, who had been actively participating in the proceeding at no point of time when the Commissioner was deputed, raised a request either before the Tribunal for deputing an expert to carry out the inspection. The State also had the right to file a work memo before the Commissioner, where a request could have been made to take the assistance of an expert, to also look at the ecological factors in the area. We see from Ext.P8 order that the State and also the applicants had filed objections to the Commissioner's report, which are not produced before this Court. The fact that they were not produced enables a presumption that even in the objection, the State did not raise the question of the expert opinion regarding the ecological significance of the area. It was much** **O.P(F.T)No.3 of 2022** **10** **later in the year 2020 that the I.A was filed to depute a scientific expert to conduct a scientific study of the scheduled property. The Tribunal found that the application filed at the fag end of the trial was an attempt to delay the proceedings.** **6. As we noticed, the State rested contend after Ext.P5 order dated 30.09.2020 and later, after more than an year in November, 2021, moved yet another application to take on record a report of a Professor of Botany and summon him as a witness, being a scientific expert to testify on the ecological importance of the property. The same also stood rejected as per Ext.P8 with the Tribunal coming down heavily on the dubious method adopted by the State.** **7. As per the applications which led to Ext.P8, it is not clear as to how and on whose instance, the expert witness sought to be summoned, prepared the report now sought to be marked in evidence. The expertise of the witness sought to be summoned or the authority under which he prepared** **O.P(F.T)No.3 of 2022** **11** **the report is not disclosed in the applications. More importantly, the inspection conducted for the purpose of preparing the report was without notice to the applicants, who are parties before the Tribunal. Again, when an application to depute a scientific expert for inspection has been rejected by the Tribunal, the said order cannot be circumvented by a subsequent application producing such an expert and a report prepared by that expert, without the junction of the Tribunal and without notice to the applicants.** **8. We have to also observe that** _**prima facie**_ **we are not convinced that the ecological significance of the land is a consideration under the EFL Act. The statutory requirements for claiming a land to be absolved from vesting under the Act as a ecologically fragile land, does not mandate an examination of the ecological significance of the land, by the Tribunal. The definition of an ecologically fragile land as found in Section 2(b) of the EFL Act brings in any forest** **O.P(F.T)No.3 of 2022** **12** **land supporting natural vegetation, lying contiguously or encircled by a reserve or vested forest and the exclusion is only of those lands on which there exists principal cultivation of long duration specified crops as delineated in subclause (c). It also includes any land notified under Section 4 which need not necessarily have the characteristics of a forest land. The ecological sensitivity could be the reigning consideration in bringing out such a notification but not when disputes are adjudicated as to whether long duration cultivation as specified is carried out, to declare the land exempted from vesting under the EFL Act. Pertinent also is the fact that the subject land was declared as not capable of being vested under the Kerala Forest (Vesting and Assignment) Act, 1971, in which event the scope of adjudication is further narrowed down as to whether the lands were restored to the possession of the owners by the State, as held in** _**State of Kerala v. Kumari Varma [ 2011 (1) KLT 1008]**_ **.** **O.P(F.T)No.3 of 2022** **13** **9. With respect to the vehement contention raised by the learned Special Government Pleader that it was the bounden duty of the applicants to seek for an expert, we can only point out that if there is arising such a mandatory requirement and the applicants have not complied with it, necessarily the Tribunal could draw adverse inference. We make it clear that these are only** _**prima facie**_ **observations which would not bind either parties, especially since the respondents/applicants were not heard in this original petition and consequently the consideration of the Tribunal should be untrammelled by such** _**prima facie**_ **observations made by us, while adjudicating the dispute as provided under the EFL Act.** **The original petition is dismissed** _**in limine**_ **with the above reservations.** **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **sp/24/11/2022** **O.P(F.T)No.3 of 2022** **14** ## **APPENDIX** ## **' - PETITIONERS EXHIBITS:** **EXHIBIT P1 COPY OF THE ADVOCATE COMMISSION REPORT DATED 18.11.2019** **EXHIBIT P2 COPY OF THE ORDER IN IA 2/2020 DATED 23.6.2020** **EXHIBITP3 EXHIBITP4** **COPY OF THE IA NO.3/2020 IN OA NO.8/2016** **COPY OF THE OBJECTION FILED BY THE APPLICANT IN IA NO.03/2020 DATED 20.8.2020** **EXHIBIT P5** **COPY OF THE ORDER DATED 30.9.2020 IN EXT.P3** **EXHIBIT P6 COPY OF THE IA NO.13/2021 IN OA 8/2016 EXHIBIT P7 COPY OF THE IA NO.14/2021 IN OA 8/2016 EXHIBIT P8 COPY OF COMMON ORDER DATED 30.6.2022 IN IA NO.13/2021 AND 14/2021 OF OA 8/2016**