State of Kerala v. Suresh Babu and others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.HARIPRASAD & THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943 MFA.No.118 OF 2020 [AGAINST THE ORDER DATED 25.09.2015 IN O.A.NO.29/2010 ON THE FILE OF THE COURT OF THE KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS)TRIBUNAL, PALAKKAD] ## APPELLANTS/RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, TRIVANDRUM. 2 THE CUSTODIAN (ECOLOGICALLY FRAGILE LANDS) AND PRINCIPAL CHIEF CONSERVATOR OF FORESTS (EXTW) FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014. BY ADV. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## RESPONDENTS/APPLICANTS: 1 SURESH BABU, AGED 40 YEARS S/O. LATE C.GOPALAN, GOPISADANAM, AYINAMPADAM, NEMMARA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT678 508. 2 SAKUNTHALA AGED 75 YEARS W/O. LATE RAJAN, KOTTAKKALVEEDU, THEKKETHARA AMSOM, MELARCODE VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT678 703. 3 UNNIKRISHNAN AGED 75 YEARS S/O. LATE RAJAN, KOTTAKKALVEEDU, THEKKETHARA AMSOM, MELARCODE VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT678 703. 4 RAVI AGED 75 YEARS S/O. LATE RAJAN, KOTTAKKALVEEDU, THEKKETHARA AMSOM, MFA(FOREST) NO.118 OF 2020 2 MELARCODE VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT-678 703. 5 PARVATHY AGED 75 YEARS D/O. LATE RAJAN, KOTTAKKALVEEDU, THEKKETHARA AMSOM, MELARCODE VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT-678 703. 6 SHAJI AGED 75 YEARS D/O. LATE RAJAN, KOTTAKKALVEEDU, THEKKETHARA AMSOM, MELARCODE VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT-678 703. R1 BY ADV. SRI.KALEESWARAM RAJ R1 BY ADV. SRI.VARUN C.VIJAY R1 BY ADV. KUM.A.ARUNA R1 BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA(FOREST) NO.118 OF 2020 3 ## JUDGMENT ## Dated this the 24th day of March 2021 ... ## A.Hariprasad, J. Heard the learned Special Government Pleader for the appellant and the learned counsel appearing for the respondent. 2. The appeal is filed against the order passed by the Kerala Forest (Vesting and Management of Ecological Fragile Lands) Tribunal, Palakkad in O.A.No.29 of 2010. This appeal is filed with a delay of 1787 days. 3. We heard the arguments with respect to the grounds for delay condonation as well as the merits of the appeal. 4. The case of the respondents/applicants before the Tribunal is that, an extent of property ad-measuring 2 acres 82 cents in Survey No.1/1/1/ [old Survey No.17A/2A and 3A) in Alathur Village has not been vested in the Government of Kerala under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (in short ‘the Vesting Act’). This contention of the applicant was affirmed by this Court as per the judgment in M.F.A.No. 322 of 1978 and thereafter, the 2[nd] applicant was cultivating the property. He planted rubber trees in the property so as to convert it MFA(FOREST) NO.118 OF 2020 4 into a plantation. Slaughter tapping of old rubber trees was also done during the year, 2004 itself. At that time, when it was about to be replanted, the State declared the property as ecologically fragile land under the provisions of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2005 (in short, ‘EFL Act’). The appellant/State contended that, the property is an ecologically fragile land and it is surrounded by a vested forest on two sides. Thereafter, Ext.B1 notification was issued in respect of certain lands. In that notification, the lands belonged to the applicants were not included. Therefore, an erratum notification was published on 3.7.2010. According to the contentions of the appellant/ State, the land in dispute is vested in Government from the appointed day of the E.F.L. Act ie. on 2.6.2000. The 1[st] applicant is a purchaser of the property as per Ext.A2 dated 11.10.2004. According to the State, the property was not available for purchase as it was already vested in the State on the appointed day. 5. Before the Tribunal, Exts.A1 to A13 were produced by the appellants/respondents and Exts. B1 to B5 were produced by the respondents/appellants. RW1 testified on behalf of the rival parties. Ext.C1 is the Commission Report. MFA(FOREST) NO.118 OF 2020 5 6. In respect of the delay, the averments in the affidavit would show the following aspects. _“Para.3: The impugned order in the above case was passed on 25.09.2015 and application for the certified copy was filed on 26.09.2015, the copy was ready on 31.10.2015 and date notified to receive the copy was on 31.10.2015. The copy of the order was delivered on 09.11.2015. After the procedure formalities the District Special Government Pleader (EFL) as per letter dated 15.12.2015 forwarded the file to the Forest Range Officer, Alathur and the Ranger officer submitted the file before the Divisional Forest Officer, Nenmara. The DFO after the procedure formalities as per letter dated 07.01.2016 forwarded the file to Advocate General Office with request to file appeal. Thereafter, the file is submitted before the then Special Government Pleader (Forest) to examine the scope of Appeal._ _4. During May, 2016 then Special Government Pleader (Forests) had demitted his office and the new Special Government Pleader (Forests) assumed charge during August 2016. Since there was several pending matters, the pendency of the file of the present case in the Advocate General Office, went unnoticed. Subsequently, the Divisional Forest Officer, Nenmara vide letter dated 24.04.2017, took up the matter with the Advocate General office. While so, the file got misplaced among old pending cases for hearing and went missing. Thereafter, the Chief Conservator of Forest and Custodian of Vested Forest vide letter dated 11.06.2020 has directed the ACF and Liaison Officer of Forest Liaison Office to submit the prioritized list of pending EFL OA has been received from the Circle Office, Palakkad and report the stage of said cases. Accordingly a list has been prepared and found that the appeal is so far not filed in this case. In the 3[rd] Week of August, 2020 Chief Conservator of Forest and Custodian of Vested Forest personally visited the Liaison Office and directed Liaison Officer to take immediate steps to file appeal in long pending EFL matter. Thereafter, intensive search was had in the Advocate General Office, Liaison Office and Special Government Pleader’s Office and after considerable search, the file was found out from one of the several other old files which were taken from the Section for preparation for hearing and thus it was retrieved from_ MFA(FOREST) NO.118 OF 2020 6 _another case bundle from the office of the Special Government Pleader (Forests) during 1[st] week of September, 2020._ _5. Further due to the workload of the Special Government Pleader’s Office relating to preparation of appeals of several other pending cases as there was backlog of cases, of which several had to be completed on priority basis due to connected cases filed for restoration and contempt cases, the present matter could not be taken up on emergency basis. Accordingly in the second Week of September, 2020 the file is submitted before the Senior Government Pleader attached with Special Government Pleader (Forest) for examining the scope of appeal. Thereafter, the Senior Government Pleader perused the file and several rounds of discussions were carried out through telephone with officers concerned and found that there is scope for appeal. Thereafter preliminary draft was prepared on 16.10.2020 and draft was finalized on 22.10.2020. Further time was taken for approval and necessary procedures in the Advocate General Office and for complying with the procedures in filing the appeal including getting the signature of the officers concerned.”_ The reasons stated for condonation of delay is strongly opposed by the respondents/applicants by filing an objection. According to them, the reasons mentioned are not sufficient to condone the delay. 7. We carefully perused the written submission by the learned counsel for the respondents wherein strong reliance is placed on various decisions rendered by the Hon’ble Apex Court in the matter of condonation of delay referable to Section 5 of the Limitation Act. Recently, the Hon’ble Supreme Court in State of West Bengal v. Soroj Kumar Mondal and Ors[(2020)7 SCC 263] MFA(FOREST) NO.118 OF 2020 7 has made an observation that the Government has no right to walk into the Court as and when they want even if other matters are pending. It is based on this point, the learned counsel for the respondents raised a contention that, the explanation given by the officer for not preferring the appeal on time, cannot be accepted. Per contra, the learned Special Government Pleader contended that, the reasons stated are genuine and there was no intentional latches on the part of either the officers or the Government Pleader concerned in filing the appeal. Having regard to the matters mentioned in the aforesaid paragraphs, we find that though there can be certain deficiencies in the averments, we do not find any reason to hold that the delay of 1787 days was intentional. The explanation offered to some extent, can be justified when considering the events transpired during this period. Therefore, we find, there is sufficient cause for condoning the delay. 8. Regarding the merits of the matters in dispute involved in this appeal, we find no legal justification for attacking the well reasoned order passed by the MFA(FOREST) NO.118 OF 2020 8 Tribunal. The Tribunal has considered the oral and documentary evidence adduced before it. It also considered the reports submitted by the E.F.L. Committee constituted under Rule 17 of the E.F.L. Rules. From paragraph 8 onwards, the Tribunal has considered the merits of the matter with reference to the report of the E.F.L. Committee and the Commissioner’s report. It is specifically seen by the Tribunal, with the materials on record that, there is no reason to hold that the land in question is predominantly supporting any natural vegetation as it required under Section 2(b) of the E.F.L. Act. The Tribunal has made the following observations in paragraphs 10 and 11, which are extracted hereunder: _Para.10. An Advocate Commissioner visited the property and he filed Ext.C1 report. He noted that there are vested forest on the northern and eastern sides of the application schedule property. PW1 denied that fact. But in the application itself the eastern and northern boundaries are shown as vested forest. So there cannot be any dispute to that fact. So one of the ingredients to attract the definition of ‘Ecologically Fragile Land’ is established. Then the question is whether it is a forest land. As per Ext.A4, the property is exempted from vesting in the Government under the Act 26/1971. As per_ MFA(FOREST) NO.118 OF 2020 9 _the present Act ie. Act 21/2005 the definition of ‘forest’ in Section 2(c) is that forest means any land principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognized etc..The commissioner noted rubber trees planted in the property and only one teak tree and 6 neem trees in the property. So it is evident that the land is not principally covered with naturally grown trees. Ext.A9 report submitted by the alleged Ecologically Fragile Land Committee also shows that the property is not principally covered with naturally grown trees. As stated earlier, they opined that the property cannot be included as ecologically fragile land. It is stated in it that about 100-120 rubber plants are now surviving in the area and that the area is devoid of naturally grown trees and undergrowth, other than the rubber plants. It is also stated in it that on a thorough and careful perambulation of the entire area they could not find any stumps of old tree growths. It is also stated that the absence of tree growths, stumps and shallow soil depth with rocky out crops are clear indication that there was no tree growths and vegetation in the property. The Committee visited the property on 14.11.2007. So the commission report and Ext.A9 support the contention of the applicants._ _11. There is a contention for the respondents that after obtaining title deed by the 1[st] applicant in the year 2004, he cut down the trees in it and planted rubber plants and he was booked with an offence under the Kerala Forest Act. As pointed out by the learned Special_ MFA(FOREST) NO.118 OF 2020 10 _Government Pleader, the question to be decided is, on the appointed day ie. on 02.06.2000 what was the nature of the property. Of course at present the property is principally covered with rubber plants and not naturally grown trees. The question is what was the position on 02.06.2000. In Ext.A3 order it is stated that the applicant in that case contended that the lands are dry lands cultivated with black gram etc. On the other hand the respondents contended that the entire area is coppice forest containing several forest species and the area has never been brought under cultivation. It is also stated that according to PW1 in that case, he and his brothers cultivated the lands and raised paddy seedings in the property and they were personally cultivating the land. Even though discussion in an order or judgment cannot be as such taken as evidence, in the circumstance that no other reliable evidence is available, the said discussion can be looked into. More over the said observations of the Forest Tribunal is found a place in the judgment of the Hon’ble High Court. In the absence of any other reliable evidence, basing on Exts. A3 and A4 it can be found that as on 02.06.2000 the application schedule property was not principally covered with naturally grown trees and undergrowth. In such circumstances, it cannot be said that the application schedule property would come within the purview of ecologically fragile land as defined in Section 2(c) of the Act 21/2005. So the point is found in favour of the applicants.”_ MFA(FOREST) NO.118 OF 2020 11 Having regard to the facts and circumstances borne out from the records and after hearing the learned counsel on both sides and also after considering the written submissions of the learned counsel for the respondents, we are of the view that, the impugned order passed by the Tribunal is factually and legally correct and no interference is required. Therefore, we dismiss the appeal finding that there is no merit in the appeal. Sd/- A.HARIPRASAD JUDGE Sd/- ZIYAD RAHMAN A.A. JUDGE pkk