State of Kerala v. T.R. Rajam (MFA (Forest) No.121/2016)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** ## **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN** **FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946 MFA (FOREST) NO. 121 OF 2016** **AGAINST THE ORDER DATED 31.01.2015 IN OA NO.12 OF 2011 OF KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL (ADDITIONAL DISTRICT COURT-I), PALAKKAD** ## **-----** ## **APPELLANTS/RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY SECRETARY, GOVT. OF KERALA, THIRUVANANTHAPURAM.** - **2 THE CUSTODIAN (ECOLOGICALLY FRAGILE LANDS) AND CHIEF CONSERVATOR OF FORESTS (DEVELOPMENT),FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 014** **BY SPL. GOVERNMENT PLEADER SRI.NAGARAJ NARAYANAN** ## **RESPONDENT/APPLICANT:** **T.R.RAJAM, [DIED; LRS IMPLEADED]*** **W/O. LATE A.V. SUBRAMANYA IYER MELEMADAM, ERAMANGALAM, NOCHULLY, KUZHALMANNAM, ALATHUR TALUK, PALAKKAD DISTRICT 678 702.** HEADNOTE- **MFA(FOREST) 121/2016** -: 2 :- *** ADDL. RESPONDENTS 2 TO 4** **ADDL. R2 GEETHA,** **GOKULAM, CHUNDAKKADA.P.O., KAVASSERY, PALAKKAD - 678 541.** **ADDL. R3 A.S.SUDARSAN IYER,** **H-217, PRASANTH NAGAR, FORT.P.O., THIRUVANANTHAPURAM - 695 023.** **ADDL. R4 A.S.SANTHI,** **LAKSHMI NIVAS, NOCHULLI.P.O., KUZHALMANNAM, PALAKKAD - 678702.** *** [THE LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 4 AS PER ORDER DATED 19/01/2022 IN IA 1/2019 IN MFA (FOREST) 121/2016]** **BY ADVS. SRI.GEORGE SEBASTIAN** **THIS MFA (FOREST) HAVING COME UP FOR HEARING ON 02.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN & JOHNSON JOHN, JJ.** **= = = = = = = = = = = = = = = = = = MFA (Forest) No.121 of 2016 = = = = = = = = = = = = = = = = = = Dated this the 2[nd] day of August, 2024** ## **J U D G M E N T** ## _**Sathish Ninan, J.**_ Challenging the order of the Forest Tribunal declaring the application schedule property as not ecologically fragile land, the State is in appeal. 2. The O.A. schedule property has a total extent of 10.80 acres, described in three items therein. In the year 1977, the property was notified as vested forest under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (hereinafter referred to as “the Vesting Act”). 3. The applicant is the wife of late Subramanya Iyer. The application schedule property belonged to him as per Ext.A5 assignment deed of the year 1968. The notification was challenged before the Forest Tribunal in OA 170/1980. As per order dated 04.12.1982, the O.A. MFA(Forest) No.121/2016 **==> picture [34 x 9] intentionally omitted <==** was allowed. It was held that the property did not vest with the Government since the applicant is entitled for exclusion under Section 3(3) of the Vesting Act it being intended for cultivation. The State challenged the same before this Court in MFA 24/1984. This Court set aside the order of the Tribunal and remanded the matter back for fresh disposal. Thereafter, as per order dated 09.05.1995, The Tribunal again allowed the original application. 4. Thereafter, on 17.12.2009, the State issued notification under Section 3 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as “the EFL Act”). The notification was published in the Gazette on 05.01.2010. This original application was filed on 04.04.2011 seeking a declaration that the property is not an ecologically fragile land under the EFL Act. MFA(Forest) No.121/2016 -: 3 :- ## 5. The Tribunal held that the property in question is not a “forest” as defined under the EFL Act and consequently not an ecologically fragile land under the EFL Act. Accordingly the original application was allowed. 6. We have heard Sri.Nagaraj Narayanan, learned Special Government Pleader for the appellants and Sri.M.P.Madhavankutty on behalf of the respondent. 7. The points that arises for determination in this appeal are :- - _(i) Is the finding of the Tribunal that the property in question is not a “forest” as defined under the EFL Act, correct ?_ - _(ii) Does the property in question satisfy the definition of “ecological fragile land” under the EFL Act?”_ ## 8. “Forest” as defined under Section 2(c) of the ## EFL Act reads thus:- _“(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_ MFA(Forest) No.121/2016 -: 4 :- _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.”_ The only issue in the present case is whether the property in question is principally covered with, naturally grown trees and undergrowth. That the other parts of the Section do not apply to the case at hand, is not in dispute. The Tribunal held that, the scheduled property which has an extent of 10.80 acres contains only 87 trees, and hence it cannot be held to be a “land principally covered with naturally grown trees”, to attract the definition of forest under EFL Act. 9. Admittedly, the 87 trees found in the property are “naturally grown trees”. It is important to note that, the definition of “forest” mentions not only naturally grown trees but, “naturally grown trees **and** undergrowth”. So, the presence of trees along with undergrowth is sufficient to qualify as “forest” under the EFL Act. MFA(Forest) No.121/2016 -: 5 :- 10. Exts.C1 is the Commissioner's Report. In Ext.C1 it has been reported that the entire property is covered by shrubs and bushes. It is stated, “...the whole property was seen covered by shrubs and bushes. It was also having trees like IRUL, POOMARAM, ELAVU, MANJAPAVATTA, PALM TREE, ODUKU, TEAK, etc.”. It was reported that the age of the trees vary from eight years to thirty years. The report, after referring to the number and age of the trees states, “other country wood, small shrubs were also seen to be filling up the whole area”. Thus it is evident from Ext.C1 that, apart from the 87 trees specified in the report, the entire property was filled with other country wood, shrubs and bushes. This satisfies the requirement, “principally covered with naturally grown trees and undergrowth”. Therefore the finding of the Tribunal that the property in question does not fall within the definition of “forest” under the EFL Act, cannot be sustained. MFA(Forest) No.121/2016 -: 6 :- ## 11. Section 2(b) of the EFL Act defines ## “ecologically fragile lands” thus :- _“(b) “ecologically fragile lands” means,-_ _(i) any Forest land or any portion thereof held 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 official Gazette under S.4”_ It requires the forest land to be lying contiguous to or encircled by reserved forest or a vested forest or any other forest land owned by the Government and predominantly supports natural vegetation. It has been noticed that the land in question predominantly supports natural vegetation, and the same is not in dispute. In the description of the property as given in the O.A. schedule, one of the northern boundaries is mentioned as “vested forest”. The other three boundaries are described as properties of strangers. In Ext.C1 it was noticed that the property is bounded on the northern and MFA(Forest) No.121/2016 **==> picture [34 x 9] intentionally omitted <==** western sides by vested forest. Therefore, the property in question lies contiguous to vested forest and hence falls within the definition of “ecologically fragile land” under the EFL Act. 12. The contention of the learned counsel for the respondent-applicant is that, consequent on the notification under the Vesting Act in the year 1977, the property was taken possession of by the State. Even though the O.A. was allowed by the Tribunal on 09.05.1995, the possession of the property was not restored to the applicant. The State having thus prevented the applicant from cultivating the property cannot contend that, the property is filled with naturally grown trees and shrubs and hence is a forest under the EFL Act. The State cannot take advantage of its wrong, is the argument. The learned counsel relied on the judgment of this Court in _**State of Kerala v. Kumari Varma 2011 (1) KLT 1008**_ to buttress his argument. MFA(Forest) No.121/2016 -: 8 :- 13. The learned Special Government Pleader would on the other hand rely on the judgment of this Court in State of _**State of Kerala v. R. Unnikrishnan 2013 (2) KHC 245 (DB)**_ and contend that, though possession of the property was regained by the applicant they failed to effect cultivation allowing natural growth. The land in question having thus satisfied the ingredients of “forest” under the EFL Act, it cannot be now contended otherwise, it is argued. 14. In the light of the rival arguments as above it needs to be considered whether the applicant had regained possession of the property pursuant to the order in the O.A. In the present O.A. it is pleaded that the property was not restored after the order in the earlier O.A. As PW1, the same was asserted in the chief examination, through proof affidavit. However, in the cross examination the applicant has categorically admitted that possession was restored. PW1 was asked MFA(Forest) No.121/2016 -: 9 :- “]gb tI-kv I-gn-ªv t^m-d-kv-änð \n-óv Ø-ew hn-«p Xtóm (Q)”. It was answered, “hn-«p Xóp (A).” The learned counsel for the respondent-applicant would argue that the said statement could only be considered as an inadvertent mistake made on confused facts. But on a reading of the crossexamination of PW1 in its entirety, it is evident that the statement above is not a slip of the tongue. In the cross examination she also deposed:- “ ac¨o-\n, dºÀ, Fón-h Ir-jn sN-¿p-ópïv. ho-Sp-IÄ h-ón-«pïv..... ]gb tI-kv I-gn-ªv t^m-d-kv-änð \n-óv Ø-ew hn-«p Xtóm (Q). hn-«p Xóp (A). Ip-d-¨p-Im-ew Ir-jn sN-bvXp. a-c-¨o-\n, hm-g, FÅv, I-hpMv, Fón-h Ir-jn sN-bvXp.” She also deposed that the cultivation had to be stopped because of some disputes/cases with tenant. It is evident that the witness intended, and had deposed that the property was got possession of and cultivations were made therein. 15. On the contention that possession was not restored to the applicant after the disposal of OA MFA(Forest) No.121/2016 -: 10 :- 170/1980, it is to be noticed that the OA was allowed on 09.05.1995. The notification under the EFL Act was published only on 05.01.2010, that is almost 15 years later. There is absolute absence of any evidence to show that at any time after the order of the Tribunal the applicant had taken any steps till the publication of the EFL notification to get restoration of the property. This goes a long way in concluding that possession was got restored after the O.A. Therefore, the contention that the applicant had not regained possession after the O.A, cannot be accepted. 16. Now arises the question as to whether, after having regained possession and by inaction, having stood by and allowed natural growth and undergrowth in the land, resulting in the land satisfying the definition of “forest” under the EFL Act, the applicant can be heard to say that it is not forest land. MFA(Forest) No.121/2016 -: 11 :- 17. _**Kumari Varma's case (supra)**_ , relied on by the applicant was one where the claimant was after the termination of the proceedings under the Vesting Act prevented by the authorities from entering the property. Under such circumstances it was held that the claim of the applicant that it is not a forest land cannot be rejected for the reason of existence of natural growth which had filled the land in the meantime. In the case at hand, as noticed above, OA 170/1980 was allowed in the year 1995 and the EFL notification was published only on 05.01.2010. The applicant did not cultivate the land allowing the growth of natural vegetation. A Division Bench of this Court in _**State of Kerala v. Unnikrishnan (supra)**_ held that, under such circumstances, the applicant who did not choose to cultivate the land and allowed the growth of natural vegetation cannot be heard to contend that it is not a forest land if the land satisfies the definition. The above distinction between _**Kumari Varma's case**_ MFA(Forest) No.121/2016 ## -: 12 :- and _**Unnikrishnan's case**_ was duly noted by another bench of this Court in _**Government of Kerala and Another v. Jacob Thomas Arikupuram and Ors. 2019 (4) KLT 1022**_ . We are in respectful agreement with such conclusion. 18. On the discussion as above, it could only be concluded that the application schedule property is a “forest” as defined under Section 2(c) of the EFL Act and is an “ecologically fragile land” under Section 2(b) of the EFL Act. The order of the Tribunal is liable to be interfered with. In the result, this appeal is allowed. The order of the Forest Tribunal is set aside. The OA will stand dismissed. Sd/- **SATHISH NINAN JUDGE** Sd/- **JOHNSON JOHN JUDGE** kns/- //True Copy// P.S. To Judge