State of Kerala v. Ayyappan N.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 21[ST] DAY OF DECEMBER 2022 / 30TH AGRAHAYANA,** ## **1944** ## **MFA (FOREST) NO. 102 OF 2012** ## **AGAINST THE ORDER IN OA 1/2009 OF FOREST TRIBUNAL, PALAKKAD** ## **APPELLANTS/RESPONDENTS:** - 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. - 2 THE CUSTODIAN ECOLOGICALLY FRAGILE LANDS FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM. - 3 THE DIVISIONAL FOREST OFFICER, PALAKKAD. - 4 THE FOREST RANGE OFFICER, OTTAPPALAM. BY SRI. NAGARAJ NARAYANAN, SPECIAL GOVERNMENT PLEADER ## **RESPONDENT/APPLICANT:** AYYAPPAN.N, S/O RAMAN, NELLIKUNNATHU HOUSE, AMBALAPARA P.O., OTTAPALAM 679 512. BY ADVS.SRI.BABU JOSEPH KURUVATHAZHA SRI.T.K.BIJU MANJINIKARA THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 21.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **M.F.A (Forest) No.102 of 2012 2** K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. -----------------------------------------M.F.A (Forest) No.102 of 2012 ----------------------------------------Dated this the 21[st] December, 2022 ## JUDGMENT ## K.Vinod Chandran, J. The appeal arises under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity, the EFL Act), filed by the State against the order of the Forest Tribunal declaring 1.5783 hectares to be not ecologically fragile lands. 2. The applicant contended before the Tribunal that earlier the property was alleged to have vested under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for brevity, the Vesting Act), against which, proceedings were taken before the Tribunal constituted under that Act. The O.A. was allowed and the applicant obtained possession of the properties and resumed cultivation. The applicant specifically contended, in the application, that mango, ginger and cashew nut were grown in the land and ¾[th] of the above ## **M.F.A (Forest) No.102 of 2012 3** land is cultivated as paddy field. While such cultivation was going on, illegally a notification was issued under the EFL Ordinance, pursuant to which, the Tribunal constituted under the EFL Act was approached. The respondents denied the cultivation and claimed that restoration was effected only on 26.2.1999, upon which the property was also notified under S.5 of the Kerala Preservation of Trees Act and later, under the EFL ordinance of 2000. It was also alleged that the area has predominant natural tree growth of forest species and lush undergrowth, as also prevalent wild life. There are also vested forest on three sides of the property. 3. The Tribunal found that on the northern boundary of the land there is a rubber estate, a cashew plantation on the western boundary, which though was alleged to be a vested forest, it was declared otherwise and had not been restored. There was also a private property on the eastern boundary. The Tribunal relied on Ext. A1, the purchase certificate issued under the Kerala Land Reforms Act and Ext.A2, the order of the Forest Tribunal under the Vesting Act and Ext.A7 certificate by which the property was restored but ## **M.F.A (Forest) No.102 of 2012 4** ordering that the trees in the land should not be cut under the Kerala Preservation of Trees Act, 1986. 4. The report of the Commissioner showed forest species trees in the property which was also reported to have contained cultivation of mango and ginger in patches to an extent of 40 cents. There were also 24 cashew trees existing in the property which has a variety of wild life, including avi fauna, especially peacock. Looking at the definition of EFL land, the Tribunal noticed that the respondent failed to substantiate the case put forth and coupled with the Commissioner's report which speaks of 40 cents having been cultivated and the earlier order of the Forest Tribunal; which did not result in restoration of the property, the scheduled land is not an ecologically fragile land. 5. Sri. Nagaraj Narayanan, learned Special Government Pleader (Forests), at the outset, pointed out that _State of Kerala v. Kumari Varma 2011(1) KLT 1008_ does not apply to the aforesaid case, since, though there was delay in restoration, the specific pleading of the applicant is that the entire property was cultivated. It is also seen ## **M.F.A (Forest) No.102 of 2012 5** from the Commissioner's report that 40 cents alone was cultivated in patches. The contention of the State is that 40 cents out of the total 1.5783 hectares cannot be said to be principal cultivation so as to exclude the property from the definition of EFL Act. 6. The purchase certificate issued under the Land Reforms Act, Ext.A1, does not at all come to the aid of the applicant. The purchase certificate is dated 11.12.1975, and the issuance of the same under the Land Reforms Act is based on the occupation as a tenant relatable to the date 01.04.1964. The present proceedings are under the EFL Act, the appointed day of which is 02.06.2000. Merely for reason of the tenant having obtained a purchase certificate of the above lands; the title to which is conclusive under S.72K, there can be no inference of a cultivation carried on in the property as on the appointed day under the EFL Act. On the same vein is the contention based on the order under the Vesting Act, Ext. A2. The appointed day under the Vesting Act is 10.5.1971, and merely because there was cultivation existing at that point of time, there cannot be an inference that the cultivation was continued over the years and was existing as on 02.06.2000. ## **M.F.A (Forest) No.102 of 2012 6** 7. _Kumari Verma (supra)_ was a case in which though a declaration of exemption was granted, on the ground of existing cardamon plantation, under the Vesting Act, the lands were not restored to the applicants despite the State having failed before the High Court and also the Hon'ble Supreme Court. When the EFL Act came into operation or rather, as on the appointed day, the land remained with the forest department and was over grown with trees and undergrowth, giving it every characteristic of a forest. The specific ground on which vesting was possible under the EFL Act, existed as on the appointed day, was the argument advanced by the State. The Division Bench found that, State having refused to restore possession to the owner, cannot rely on its own wrong to contend that the area was converted into a forest, in the interregnum; which was only by reason of the owner having been divested of the possession and enjoyment of the property. 8. In the present case, admittedly, the property was restored. The pleading as we see from the application is that though the respondent attempted to acquire the plaint scheduled property as ## **M.F.A (Forest) No.102 of 2012 7** forest land, the owners approached the Tribunal which declared the right of the owner to hold the land in possession. It has also been categorically admitted that the applicant was in possession and was carrying on cultivation. It is further averred that ¾[th] of the above land is being cultivated as paddy field, which is not evident from the Commissioner's report. 9. The Commissioner's report also speaks of vested forest on the south and west of the property, contrary to which the Tribunal has found that there is no vested forest on the boundaries. The Commissioner also speaks of the property having trees by natural regeneration which are s _andal, banyan, karimpana, nyataval, oduga, bamboo, teak, marutha, vaka, kazhani, edala_ etc. The cultivation seen is only of mango and ginger in patches to an extent of about 40cents; which definitely cannot be deemed to be principal cultivation. From the pleadings and the Commissioner's report it is very clear that _Kumari Verma_ is not applicable. 10. We hence upset the order of the Tribunal and direct that if the 40 cents in which cultivation is found can be separately identified, ## **M.F.A (Forest) No.102 of 2012 8** then and then alone there shall be a declaration confined to that extent, which is not ecologically fragile land under the EFL Act, which the Custodian would restore to the applicant. As far as the balance property is concerned, we find that the same to have vested under the EFL Act. The appeal is partly allowed with the above directions. Parties to suffer their respective costs. Sd/- K.VINOD CHANDRAN, JUDGE Sd/- ## C.JAYACHANDRAN, JUDGE uu