State of Kerala v. M. Ravi and others (MFA Nos. 44/2017, 48/2017, 52/2017, 53/2017), High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY, THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** **MFA.No. 44 of 2017** **AGAINST THE ORDER DATED 31-12-2016 IN OA 15/2015 of THE COURT OF THE KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, KOZHIKODE.** ## **APPELLANTS/ RESPONDENTS :** **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS VESTED IN GOVERNMENT, [THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS], FOREST HEAD QUARTERS, THIRUVANANTHAPURAM]** **BY ADV. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST** **RESPONDENT/ APPLICANT :** **M.RAVI, S/O.PRM THAMBI, 'RAGAM', AMBALAMUKKU, TC 4/25, KURAVANKONAM WARD, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 003** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2019, ALONG WITH MFA.48/2017, MFA.52/2017, MFA.53/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY ,THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940 MFA.No. 48 of 2017** **AGAINST THE ORDER DATED 31.12.2016 IN OA NO.13/2015 of THE COURT OF THE KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, KOZHIKODE** ## **APPELLANTS/ RESPONDENTS :** - **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** - **2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS VESTED IN GOVERNMENT [THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS], FOREST HEAD QUARTERS, THIRUVANANTHAPURAM.** **BY ADV. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST** ## **RESPONDENTS/ APPLICANTS** - **1 K. SAROJAM THAMPI, W/O.LATE PRM THAMBI, 'ROJA MANSION' COLONY ROAD, PEROORKADA, KUDAPANAKUNNU VILLAGE, THIRUVANANTHAPURAM - 695 005.** - **2 M.RAVI.,** - **'RAGAM', AMBALAMUKKU, TC 4/25, KURAVANKONAM WARD, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 005.** **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 3 **3 M.MALLIKA, 'ROJA MANSION' COLONY ROAD, PEROORKADA, KUDAPANAKUNNU VILLAGE, THIRUVANANTHAPURAM - 695 003.** **4 M.PADMAM, D/O PRM TAHMBI, 'ROJA MANSION' COLONY ROAD, PEROORKADA, KUDAPANAKUNNU VILLAGE, THIRUVANANTHAPURAM - 695 005.** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2019, ALONG WITH MFA.53/2017, MFA.52/2017, MFA.44/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 4 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY ,THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** **MFA.No. 52 of 2017** **AGAINST THE ORDER DATED 31-12-2016 IN OA 12/2015 of THE COURT OF THE KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, KOZHIKODE** ## **APPELLANTS/ RESPONDENTS :** - **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** - **2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS VESTED IN GOVERNMENT [THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS], FOREST HEAD QUARTERS, THIRUVANANTHAPURAM.** **BY ADV. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST** ## **RESPONDENT/ APPLICANT :** **R.S.POORNIMA, D/O. M.RAVI, RAGAM, AMBALAMUKKU, T.C 4.25, KURAVANKONAM WARD, KOWIDIAR P.O, THIRUVANANTHAPURAM - 695 003.** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2019, ALONG WITH MFA.48/2017, MFA.53/2017, MFA.44/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY, THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** ## **MFA.No. 53 of 2017** **AGAINST THE ORDER DATED 31-12-2016 IN OA 14/2015 of THE COURT OF THE KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, KOZHIKODE** ## **APPELLANTS/ RESPONDENTS :** - **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** - **2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS VESTED IN GOVERNMENT,** **[THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS], FOREST HEAD QUARTERS, THIRUVANANTHAPURAM.** **BY ADV. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST** ## **RESPONDENT/ APPLICANT :** **T.R.SREEDEVI W/O M. RAVI, D/O REGHAVAN NAIR,'RAGAM', AMBALAMUKKU, T.C 4/25, KURAVANKONAM WARD, KOWDIAR PO, THIRUVANATHAPURAM - 695 003.** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2019, ALONG WITH MFA.48/2017, MFA.52/2017, MFA.44/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 6 ## **JUDGMENT** ## _**Annie John, J.**_ This appeal has been filed against the order dated 31.12.2016 in OA No. 15 of 2015, passed by the Kerala Forest (Vesting of Ecologically Fragile Lands) Tribunal, Kozhikode holding that the disputed land was found not an ecologically fragile land vested in the Government. 2. The land in dispute comprises mainly of shrub land eco system, which is having great ecological value to the eco system and biodiversity and the disputed land is having the same vegetation status as the adjoining and surrounding forest lands. 3. The learned counsel for the appellants contended that the impugned order is against law, evidence and facts of the case and the same is vitiated by errors apparent on the face of record. The learned Tribunal **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 7 has passed the order without proper consideration, nonapplication of mind and without proper reasons. The Tribunal is erred in not considering Ext.P3 photographs, Ext.B4 floristic expert study report on the disputed land, Exts.B5 and B6 expert reports as to the ecological sensitivity and the land slide susceptibility of the disputed lands and Ext.C5 report submitted by the Botanical Expert. He has further argued that the Tribunal failed to note that Ext.B4 report would state that they have recorded 80 flora species on a single day visit which showed the rich diversity of the land and that out of the 80 floristic species identified on the single day, more than 70% are Rare, Eendemic or Threatened species (RET species), showing the importance for conservation of the land and that most of the endemic species are endemic to Western Ghats, Southern Western Ghats, Peninsular India. The Tribunal has also failed to consider or advert to the details given in Ext.C5 expert report or the objections filed by the State to the expert report. The expert has not noticed that the coffee plants are planted at an equal distance or in a **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 8 systematic manner and it is also to be noted that the land was not cultivated with cardamom as on the appointed day. The findings of the Tribunal that the respondent State has to prove that there was no coffee or cardamom cultivation in the property on the appointed day also amount to the wrong application of the principles of burden of proof applied under the EFL Act since it is the burden of the applicants to prove by cogent evidence that as on the appointed day there was coffee or cardamom cultivation in the disputed property. Hence the appellant prays for setting aside the impugned order. 4. The application was filed under Section 10(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 and Rule 3 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal Rules, 2007. 5. The case of the appellant is that item No. 1 of the application schedule properties along with a larger extent originally belonged to one M. Salim by virtue of partition deed No. 1517/1970. He assigned the property to **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 9 his son Habeeb as per document No. 2349/1976 of SRO, Vythiri. Later, Habeeb purchased jenmam right over the property as per document No. 1813/1978 of SRO, Vythiri. Subsequently, Habeeb assigned the property to one M. Sethumadhava Kurup and M. Ravindra Kurup as per document No. 450/1993 of SRO, Vythiri. They assigned the property to the appellant as per document No.1629/2000 of SRO, Vythiri. The total extent so obtained by the applicant was 42.2 ares. Out of this, 29.7 acres were transferred by him to his wife T.R. Sreedevi, mother K. Sarojam Thampi and daughter R.S. Poornima as per document Nos. 470/2005 and 469/2005 respectively and the remaining extent of 12.5 acres is still in the possession of the appellant and is described in the application schedule as item No.1. 6. While the property was in the possession of the applicant, Notification No. EFL-10-311/2013 dated 26.10.2013 was issued by the custodian under Section 3(1) of the Act, 2003 stating that the property measuring one hundred hectares of land, including the application **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 10 schedule properties comprised in re-survey Nos. 410 and 412 of Chundel Village are vested in Government and the same is published in Kerala Gazette dated 03.12.2013 against serial No. 48. Subsequently, on 10.12.2014, notice was issued to the applicants by the DFO, Wayanad. According to the appellant, the act of the custodian is illegal, arbitrary and unwarranted and the property described in the schedules are coffee and cardamom plantations. The custodian had not taken the recommendation of the Advisory Committee constituted under Section 15 of the Act, 2003. Further the notification was not published in seven offices and two newspapers as provided under Rule 8 of the Rules, 2007. The application schedule property was not adjoining reserved forest and therefore, it cannot be notified as ecologically fragile lands. In fact, the application schedule property was principally used for cultivation of cardamom and coffee and therefore, it cannot be treated as ecologically fragile lands. Except shade trees for coffee and cardamom cultivation, there are no other trees in the disputed properties and there is no **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 11 streams in the properties. It does not provide habitat for wildlife. There is no wilful abandonment of the crops in the properties and therefore, the custodian is not justified in issuing the notification vesting the properties in the Government under Section 3(1) of the Act, 2003. Therefore, the appellant has filed the OA seeking a declaration that the application schedule properties are not ecologically fragile lands vested in Government and to set aside the impugned notification No.EFL-10-311/2013 dated 26.10.2013 published in Kerala Gazette dated 03.12.2014 against Serial No.48. 7. The respondents entered appearance and filed a joint written statement raising more or less the very same contentions. 8. Now the question to be considered is whether the finding of the Forest Tribunal to the effect that the plaint schedule properties are not ecologically fragile land vested with the Government is correct or not? 9. The impugned notification No. EFL.10311/2013 dated 26.10.2013 issued by the 2[nd] respondent **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 12 was set aside by the Forest Tribunal. Highly aggrieved by the same, the Government has filed the present Forest Appeal before this Court. The case of the respondent is that the application schedule properties in OA.No.12/2015 and item No. 1 of the application schedule properties in OA.No.15/2015 originally belongs to one M.Salim by virtue of partition deed No.1517/1970. He assigned his property to his son Habeeb as per document No.2349/1976 of the SRO, Vythiri. Later, Habeeb obtained jenmam right over the property from one Gopalakrishnan Nair & others as per document No.1813/1978 of SRO, Vythiri. Subsequently, Habeeb assigned the property to one M.Sethumadhava Kurup and M.Ravindra Kurup by virtue of assignment deed No.450/1993 of SRO, Vythiri. Thereafter, they assigned the property to M.Ravi, the applicant in OA.No.15/2015 as per assignment deed No.1629/2000 of SRO, Vythiri. By virtue of the said document, Mr.M.Ravi obtained title of the property measuring 42.2 acres. Thereafter, Mr.Ravi assigned a property measuring 29.7 acres to his mother, wife and daughter by virtue of document Nos.470/2005, **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 13 468/2005 and 469/2005 respectively. Ext.A2 is the certified copy of document No.1629/2000 by which Mr.Ravi obtained property measuring 42.2 acres from M.Sethumadhava Kurup and M.Ravindra Kurup. Ext.A2 is the document executed in favour of M.Sethumadhava Kurup and M.Ravindra Kurup. Ext.A3 is the certified copy of jenmam assignment deed obtained by Mr.Ravi from M/s. Vythiri Plantation Ltd. Ext.A4 is the certified copy of the document executed by M.Ravi in favour of his wife T.R.Sreedevi (the applicant in OA.No.14/2015). Ext.A6 is the certified copy of the document executed by Mr.Ravi in favour of his daughter R.S.Poornima (the applicant in OA.No.12/2015). Ext.A7 is the certified copy of the document executed by M.Ravi in favour of his mother K.Sarojam Thambi (the applicant in OA.No.13/2015. Ext.A8 is the certified copy of jenmam assignment deed executed by M/s. Vythiri Plantation Ltd. in favour of applicant in OA.No. 14/2015. Ext.A1 is the certified copy of the assignment deed in favour of M.Ravi with respect to item No.2 of the application schedule properties in **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 14 OA.No.15/2015. The Government has not raised any dispute regarding the execution of these documents as stated above. The production of all these documents would establish that the applicants had obtained title over the properties. 10. Now the question is whether the property stands in the name of the appellants will come under the definition of ecologically fragile land as on the appointed day i.e.02.06.2000. According to the applicants/ respondents, these properties have not come under the definition of “ecologically fragile land”, but cardamom and coffee plantations came into existence much prior to the appointed day i.e.02.06.2000. The appellant has denied this fact. According to them, these properties now in the hands of the respondents, which comes under the definition of “ecologically fragile land” supporting natural vegetation and there are no coffee or cardamom plantations in the properties and further they have contended that if at all there are coffee or cardamom plants in the properties, those are of spontaneous growth **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 15 and therefore, the application schedule properties are vested in the Government automatically by virtue of Section 3(1) of the Act, 2003. Ext.C1 is the commission report, Exts.C2 to C4 are the plans prepared by the commissioner appointed by the Forest Tribunal and Ext.C5 is the report filed by the expert, who assisted the commissioner. The respondent/applicants have placed Ext.C1 commission report in order to establish that their property will not come under the definition of “ecologically fragile land”. Ext.C1 is the commission report filed by the commissioner from which it is revealed that in the application schedule properties, which are marked by him as plots A, B, C, D, E, F & G, he could find coffee plants, pepper-vines, cardamom plants etc. The commissioner has also given the notation 'A' to the property owned by K.Sarojam Thambi-the applicant in OA.No.13/2015, notation 'B' to the property owned by R.S.Poornima-the applicant in OA.No.12/2015, notation 'C' to the property owned by T.R.Sreedevi-the applicant in OA.No.14/2015, and notations D, E, F & G to the properties owned by **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 16 M.Ravi-the applicant in OA.No.15/2015. The commissioner has also submitted plans with respect to all these plots which have been marked as Exts.C2 to C4. In the commission report, the commissioner has assessed the age of the coffee plants found in the properties at more than fifteen years. He has also reported that some of the coffee plants were aged about six years also. Further he has reported that the coffee plants were seen planted at equal distance in a systematic manner. He has also reported that he could find contour bunds and also he opined that from the appearance of the properties, the land is appeared to be cultivated lands where human skill and labour have been employed. He has also reported that there are wild trees in the properties also. According to the commissioner, those trees have been maintained for providing shades to the cardamom and coffee plants and as support for pepper-vines. In Ext.C5, the expert would concur with the opinion expressed by the commissioner. According to him, some of the coffee plants and peppervines are aged more than seventeen years. He has also **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 17 counted the wild trees found in the properties. As per Exts.C1 and C5 reports, the commissioner as well as the expert visited the properties on 17.04.2016. The existence of coffee plants and pepper-vines aged more than seventeen years as on the date of inspection i.e. on 17.04.2016 suggests that the land was planted with coffee and pepper-vines prior to the appointed day i.e. on 02.06.2000. 11. It is true that the appellants have filed objection to the reports of the commissioner and the expert. In the objection, it is stated that the opinion expressed by the commissioner and the expert regarding the age of coffee plants and pepper-vines is not correct. It is also stated that though the commissioner could find some coffee plants and pepper-vines in the properties, those are of spontaneous growth and cannot be attributed to human intervention. The report of the expert and the commissioner would show that coffee plants were found planted at equal distance in a systematic manner, which would prove that those trees were planted with human **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 18 efforts. Further, the appellants have not produced any evidence to establish that Exts.C1 and C5 reports are based on incorrect facts. The appellant has examined as RW1 on his side. According to him, there were no coffee or cardamom cultivation in the properties as on the appointed day. In cross examination, he had deposed that he visited the property for the first time in the year 2016 only. He admitted that he was not aware of the nature of the properties prior to that. He has assertively stated that he was not aware of the property even prior to the appointed day. So, the evidence adduced by RW1 will not help the appellant to substantiate their contention that as on the appointed day, the application schedule properties were ecologically fragile land, which is supported only natural vegetation. In order to substantiate the case of the applicants/ respondents, they have produced Exts.A1 to A7 receipts for payment of agricultural income tax. It is true that those receipts are for the period subsequent to the appointed day. The applicants have also produced Exts.A18 to A20 copies of the assessment order passed by **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 19 the agricultural income tax officer. Ext.A18 is for the assessment year 1999-2000 and it would prove that the assessment was made with respect to the property owned by Krishnapriya Estate, the erstwhile owner of the application schedule property. Ext.A19 is also with respect to the property owned by Krishnapriya Estate for the assessment year 2000-2001. The assessment to agricultural income tax with respect to the property owned by Krishnapriya Estate prior to the appointed day as evidenced by Ext.A18 assessment order supports the case of the applicants that the application schedule properties were cultivated lands prior to the appointed day. In addition to that, the respondents have also produced receipts for payment of plantation tax. Exts.A26 to A40 are the receipts for payment of plantation tax by the respondents/ applicants and their erstwhile owners in the name of Krishnapriya Estate. Ext.A26 is related to the financial year 1997-1998. Ext.A27 is for the financial year 1987-1988. Ext.A28 is for the financial year 1999-2000. All these documents cited supra will evidence that even **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 20 prior to the appointed day, the properties were cultivated with plantation crops. The learned counsel for the Government has strenuously argued that the property contains natural vegetation and therefore, it would come under the definition of “Ecologically fragile lands”. 12. The learned Government Pleader has argued that the respondent has not substantiated their right over the application schedule properties and that there is absolutely no evidence to the effect that on the appointed day, the respondent was in possession of the property. The appointed day was declared as 02.06.2000. According to the learned Government Pleader, the respondent has obtained title deed five months' after the date of the appointed day. The predecessors of the respondent were in possession of the application schedule property prior to 02.06.2000 as is evident from Exts.A1 and A2 documents. The counsel for the appellant has also pointed out that the respondent has produced Exts.A23, A24 and A25 Cardamom Estate Registration certificates dated 30.05.1995, 28.04.1977 and 28.04.1977 respectively **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 21 issued by the State Public Information Officer, Vythiri Taluk. According to the learned Government Pleader, there is no evidence to prove that the property was used for cardamom cultivation. The case of the respondent is that the property is cultivated with coffee plants. But, no details of the registration for coffee was produced by the respondent. He has argued on the strength of Ext.C1 Commission report and C5 report of the Botanical expert that the disputed property is not ecologically fragile land; but it contains natural vegetation resembling forest and Exts. C5 would reveal that there is also species and wild trees in the said disputed land. According to him, the report indicate that this is not an estate in the possession of the respondent and there is absolutely no proof regarding the cultivation with human labour. In addition to that, the respondent would have proved their possession and cultivation by producing details regarding the sale of yields as well as the labour works which was being done in the property. It is true that no such documents are forthcoming. On the other hand, the appellants' counsel **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 22 has strenuously argued that Exts.A23, 24 and 25 tax receipts do not establish that before the appointed day, he was in the possession of land and is doing cultivation therein. 13. The learned Government Pleader has placed reliance on the decision in _**State of Kerala and others v. N. Rajagopal**_ [2018 (5) KHC 128], in which it is held that unless there is evidence of 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. The learned Government Pleader further argued that no evidence is forthcoming to prove that the disputed land is principally used for the cultivation of the coffee or cardamom for a long duration. He has further argued that Exts.A1 and A2 would state that cardamom plants were totally destroyed at the time of transferring the property in the name of the successors. On verification of Exts.A1 and A2 documents, we found that it is mentioned as the deteriorated cardamom plants (നശ�ച പ��യ ഏലച�ട�കൾ). 14. Exts.A1 and A2 would definitely prove that **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 23 there was cardamom cultivation in the application schedule property. In Exts.C1 Commission report and C5 report of the Botanical Expert, it is specifically stated that the trees were planted systematically in the application schedule property. The coffee plants were found planted at equal distance in a systematic manner in the application schedule property. The learned Government Pleader has also relied on the decision in _**Ammukunhi Amma and others v. State of Kerala and others**_ [2016 (3) KHC 52], wherein it is held that non-furnishing of evidence with regard to the employment of labourers, details of sale of cardamom to prospective customers for export from the huge extent of land is fatal in proving that the disputed lands were being principally cultivated as on the appointed day. According to the learned Government Pleader, there is no evidence to prove that this property has been treated as principally cultivated property. The Commissioner in Ext.C1 Commission Report reported that the coffee trees were properly and systematically planted (approximately 6 years) in the entire area. There are no stream or rivers **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 24 originating from or passing through those plots and based on the above facts, it cannot be considered as a biodiversity rich area. He has also found a well constructed pond approximately measuring 10x8 metres which was made for watering cultivation and it was reported by the respondents that the pond was constructed about 20 years back for the irrigation purpose. The Commissioner also noted a countour bunding (കയ�ല) constructed many years ago across the plots 'ABC' in the East West direction. There were also few huge trees emanating on those bunds. It is further reported that considering the facts and circumstances and the Ext.C5 report, the areas in A,B,C,D,E and F are not predominantly supporting any natural vegetation and they do not seem to be of much ecologic value, that the coffee plants are seen planted equidistantly at a distance of 10 feet from one plant to another, and that those areas are pre-cultivated lands and appeared to be a land where human skill and labour have been spent for cultivation about 20 years ago. The date of inspection of the property was on 17.04.2016 i.e, **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 25 even prior to the appointed day, there were coffee plantation and the commission report is sufficient enough to prove that the plaint schedule property is not an ecological fragile land. 15. On the other hand, the respondents/ applicants' counsel has argued that if the land was a forest land as on the appointed day, it could be notified as ecologically fragile lands. In this connection, it is very important to note the definition of “Ecologically Fragile Land”. Section 2(b) clause (i) of Act 21 of 2005 defines “Ecologically Fragile Land” as follows :- “Any forestland or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest or a vested forest or any other forestland owned by the Government and predominantly supporting natural vegetation”. Section 2(c) of the Act defines 'forest' thus as “any land principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognized 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 site of residential buildings and surroundings essential for the **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 26 convenient use of such buildings”. 16. From the above definition, what can be discerned is that to declare a land as “ecologically fragile land”, and notify under Section 3(2) of the Act, 2003, the following conditions have to be complied with : (a). it should be a forest land; (b). the land or any portion thereof should be lying contiguous or encircled by a reserved forest, or vested forest, or any other forest, and owned by the Government; (c). the land should predominantly support natural vegetation. 17. According to the learned counsel for the respondents, mere lack of maintenance of the plantation is not sufficient to treat a property as ecologically fragile land. To canvass his argument, he would relied upon the Judgment of the Hon'ble Supreme Court reported in _**Bhavani Tea & Produce Company Ltd. v. State of Kerala [1991(1) KLT 666]** ._ It is observed in the said decision as follows : “We are of the view that mere abandonment would not convert an area into a forest unless the owner has decided to do so or the appropriate authority has notified it to be so. **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** **==> picture [12 x 8] intentionally omitted <==** Mere visual test would not be enough. The decision of the owner could, of course, be expressed or implied”. 18. It is true that there was lack of proper maintenance of the cultivation and appearance of the properties is that of a forest. But, that appearance is not sufficient. In this context, it is relevant to note the judgment of this Court in _**State of Kerala v. Kumari Varma [2011 (1) KLT 1008]**_ . Relying upon the dictum laid down in Bhavani Tea's case (supra), the Court observed that “mere visual test would not be enough to notify a land as ecologically fragile land. So, I find that the custodian is not justified in issuing the impugned notification under Section 3(1) of the Act-2003 notifying the application schedule properties as ecologically fragile lands vested in the Government”. 19. The applicants have also got a case that the notification was not placed before the Advisory Committee constituted under Section 15 of the Act-2003 as provided under Section 3(2) of the Act-2003 and this fact has not been disputed. According to the appellants, it is not **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 28 mandatory to place the notification before the Advisory Committee. It was also contended by the applicants that the notification should be published as envisaged under Rule 7(2)(3) of the Rules-2007. According to RW1, the notification has been published as required. But no evidence has been produced. According to the Government, the publication of notification having no consequences as vesting under Section 3(1) of the Act2003 is automatic. 20. So, considering the arguments on either side, we find no merit in the arguments advanced by the learned Spl. Government Pleader (Forest). The failure on the part of the custodian to place notification before the Advisory Committee and also failure to effect publication as required under Rule 7(2)(3) of the Rules, 2008 would not make the vesting illegal. Anyway, the reasons as stated above the custodian is not justified in notifying the application schedule property as ecologically fragile land vested with the Government. Accordingly, the Forest Tribunal has set aside the impugned notification and declared that the **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 29 application schedule properties are not ecologically fragile land vested with the Government. The impugned notification by EFL.10-311/2013 dated 26.10.2013 issued by the 2[nd] respondent was set aside with respect to the application schedule property. Considering all these facts, the Forest Tribunal has discussed the matter in detail and ultimately found that these properties were in custody of the applicants/ respondents even prior to the appointed day i.e. on 02.06.2000 and they have also produced documents to establish that they were in possession of the application schedule properties even prior to 02.06.2000. Ext.C1 Commission report and Ext.C5 expert opinion would establish that these properties contain cardamom, coffee and cardamom plantations and all coffee plantations were planted systematically inside the property also. So, without any human intervention, it cannot be done also. There is absolutely no evidence to prove that these properties are covered with natural vegetation only. According to the appellant, the coffee and cardamom were grown naturally inside the property. Even though they have **[MFA NOS.44/2017, MFA.48/2017, MFA.52/2017 & MFA.53/2017]** 30 taken such a contention they could be able to establish the nature of the land on or after 02.06.2000. The applicant/ respondent has substantiated the case by producing Exts.A18 to A20 and A26 to A40 that they were in possession of the property prior to 02.06.2000. So, we could not find any ground to set aside the order passed by the Forest Tribunal and we have got a considered view that the finding entered by the Forest Tribunal cannot be interfered with and therefore, it is only to be upheld. In the result, this Appeal is dismissed. Sd/- **K.HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** **Rv/ RKM**