State of Kerala v. Vasanthakumar and Chandralekha (MFA(Forest) Nos. 13 & 19 of 2011)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 1[ST] DAY OF DECEMBER 2022 / 10TH AGRAHAYANA,** ## **1944** **MFA (FOREST) NO. 13 OF 2011** **AGAINST THE ORDER IN OA 6/2008 DATED 30.10.2010 OF FOREST** **TRIBUNAL, PALAKKAD** ## **APPELLANTS/RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA,, THIRUVANANTHAPURAM. 2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS AND PRINCIPAL CHIEF CONSERVATOR OF FORESTS, (E&TW), THIRUVANANTHAPURAM. BY SRI. NAGARAJ NARAYANAN, SPL. GOVERNMENT PLEADER (FORESTS) ## **RESPONDENTS/APPLICANTS:** VASANTHAKUMAR, S/O P.T.PAPPIKUTTY AMMA, KIZHAKKE KALAM, KULAKKAD, CHERPULASSERY,, OTTAPALAM TALUK.679503 THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 01.12.2022, ALONG WITH MFA (FOREST).19/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.F.A.(F) Nos.13 & 19 of 2011** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 1[ST] DAY OF DECEMBER 2022 / 10TH AGRAHAYANA,** ## **1944** **MFA (FOREST) NO. 19 OF 2011** **AGAINST THE ORDER IN OA 7/2008 DATED 30.10.2010 OF FOREST** ## **TRIBUNAL, PALAKKAD** ## **APPELLANTS/RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA,, THIRUVANANTHAPURAM. 2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS AND PRINCIPAL CHIEF CONSERVATOR, OF FORESTS (E & TW), THIRUVANANTHAPURAM. BY SRI.NAGARAJ NARAYANAN, SPECIAL GOVERNMENT PLEADER (FORESTS) ## **RESPONDENT/APPLICANT:** CHANDRALEKHA D/O.VIJAYALAKSHMIKUTTY AMMA,, VADAKKE KALAM, KULAKKAD, CHERPULASSERY,, OTTAPALAM TALUK. BY ADV SRI.VINOD KUMAR.C THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 01.12.2022, ALONG WITH MFA (FOREST).13/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.F.A.(F) Nos.13 & 19 of 2011** **3** **C.R.** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------M.F.A.(Forest) Nos. 13 & 19 of 2011 --------------------------------------------Dated this the 1[st] day of December, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** Adjacent properties owned by sisters, were the subject matter of the applications filed under S.10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity, the EFL Act), claiming declaration that the subject lands are not ecologically fragile lands and not liable to be vested under that Act. There were two original applications filed by the son and daughter of the sisters, in which, PW1, the applicant in O.A.No.6/2008 alone was examined on behalf of both the applicants. A single commission was taken out for inspection of both the properties. We dispose of the appeal against the common order of the Tribunal, by this judgment. 2. The application scheduled property in O.A No. 6/2008 measured 4.548 hectares, comprised in Sy.No.47/1 of Vellinezhi **M.F.A.(F) Nos.13 & 19 of 2011** **4** Village, belonging to the applicant and other co-owners; his siblings. They obtained the scheduled property under a partition deed, after the order passed by the Forest Tribunal, Palakkad in O.A.No.129/1975, in which the very same property was found to be exempted under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity, the Vesting Act). Later, again the same property was notified as ecologically fragile land which gave rise to the above proceedings. O.A.No.7/2008 was concerned with 5.9490 hectares lying in Sy.No.47/1 and 2 of Vellinezhi village belonging to the applicant and her brother. The said property was also earlier notified under the Vesting Act, against which the predecessor in interest filed O.A. No.130/1975 before the Forest Tribunal, Palakkad, which stood allowed. It was contended that the properties are lying as a dry land without any natural vegetation and whatever vegetation available is the result of human effort. Both the properties were lying adjacent, but however, not lying contiguous to or enclosed by reserved or vested forest. 3. The D.F.O., Palakkad, filed a written statement in both the cases and admitted the earlier proceedings before the Tribunal at **M.F.A.(F) Nos.13 & 19 of 2011** **5** Palakkad. It was urged that despite the subject lands being private forest, they were granted exemption under S.3(2) of the Vesting Act. Later, since the very same lands were found to have vested under the EFL Ordinance of 2000, which was later replaced by the EFL Act, it cannot be said that the exemption is concluded by the earlier proceedings. The notification dated 8.12.2006 under the EFL Act published in the Gazette dated 30.1.2007, was relied upon. It was asserted that the area is a forest land with large number of valuable trees like _teak, vatta_ etc. and there is regeneration of different forest tree species in the area which also supports a variety of wild life including rodents, wild boar, birds and reptiles. These aspects give it the characteristics of a forest land, with lush growth of natural vegetation, providing ecological support to the wild life prevalent in the area. The application scheduled property is bounded on three sides by vested forest and on the south by a road. The boundary description of both the properties are incorrect and hence the identity is not clear, asserts the State. 4. Learned Special Government Pleader (Forest) Sri.Nagaraj Narayanan emphasizes the issue of identity of the property relying on **M.F.A.(F) Nos.13 & 19 of 2011** **6** _**Hamsa Haji vs. State of Kerala [(2006) 7 SCC 416]**_ in which the Hon'ble Supreme Court had emphasized the necessity to properly identify the property on which an exemption is claimed under the Vesting Act, which equally applies under the EFL Act. It is pointed out that there was no cultivation carried out in the property after the earlier order of the Tribunal and it now supports wild life and natural vegetation, which makes it an ecologically fragile land. The learned Special Government Pleader would point out that the Division Bench decision in _**State of Kerala v. Kumari Varma 2011(1) KLT**_ _**1008**_ , cannot have any application, especially when there is no pleading to the effect that the applicants were prevented from cultivation, after the earlier order of the Tribunal. It is argued in opposition to the dictum in _Kumari Varma_ (supra), that it amounts to a legislation by the Court, which frustrates the object of the EFL Act. The EFL Act has been brought out, to ensure preservation of forest lands, in sharp contrast to the object under the Vesting Act, which was agrarian reform. Hence, when the land has been converted to a forest land, for reason of no cultivation having been carried out, it statutorily vests in the Government _de hors_ the reason **M.F.A.(F) Nos.13 & 19 of 2011** **7** for the absence of such cultivation. The dictum in _Kumari Varma_ (supra) unnecessarily encumbers and restricts the object of the EFL Act and goes against the very intention of the enactment, which is preservation of forest land as on the appointed day. It is also argued that in the present case, there is no dispossession or absence of restoration after the earlier order under the Vesting Act or an overt act of the department prohibiting cultivation, pleaded and in that circumstance, there can be no claim raised of cultivation having not been carried out only for reason of dispossession under the Vesting Act. The learned Special Government Pleader would argue for setting aside the orders and rejecting the original applications. 5. We do not accept the argument of the learned Special Government Pleader that _Kumari Varma_ (supra) amounts to judicial legislation, infringing upon the powers of the legislature and restricting the scope and ambit, as also to the object of the EFL Act. The EFL Act defines ecologically fragile lands, and hence there is no scope for adopting or accepting the meaning of ecologically fragile lands as normally or scientifically understood. Ecologically fragile land has been defined in S.2(b) of the Act as any forest land or **M.F.A.(F) Nos.13 & 19 of 2011** **8** portion thereof, held by any person, lying contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Government, which also predominantly supports natural vegetation. The meaning forest also has been defined under clause (c) of S.2 which defines it as, those lands principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognized and declared as reserved, protected or otherwise; but excludes such lands which are principally used for the cultivation of crops of long duration such as teak, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew and any other sites of residential building and surroundings essential for the convenient use of such buildings. The exclusion hence is for lands in which there is human habitation and cultivation of specified crops using human skill and labor. The said exclusion in the definition of forest has to be super imposed in the 'forest land', appearing in the definition of ecologically fragile lands. True, S.4 empowers the Government to declare by notification in the Gazette, any lands as ecologically fragile lands on the recommendation of an Advisory Committee appointed under S.15 of the Act. In such recommendation being made, and in **M.F.A.(F) Nos.13 & 19 of 2011** **9** bringing out a notification, there could be a consideration of the ecologically fragile nature of the land as understood in the normal parlance and also in scientific terms. However, we are not concerned in the present case with such a land on which a declaration is made under Section 4. 6. Neither were their Lordships concerned with a land wherein a declaration was made under S.4, in _Kumari Varma_ (supra) _._ In _Kumari Verma_ the distinction in S.3 and S.4 of the EFL Act was specifically brought out in paragraph 14 and it was observed that they were not concerned with the land on which a notification was brought out under S.4. Their Lordships held that when exemption is granted under the Vesting Act, if the land was not restored by the Custodian after the exemption or exclusion has been declared by the Tribunal, it would inure to the benefit of the applicants/owners of the land, while considering the aspect of vesting under the later EFL Act. Here, we have to specifically notice S.8 of the Vesting Act, which empowers the Tribunal to decide disputes as to whether any land is a private forest or not and whether such private forest or any portion thereof has vested in the Government or not. The provision also enables a person **10** who claims that his land is not a private forest or that the private forest has not vested in the Government, to apply before the Tribunal for adjudication of the dispute. Sub-section (3) of S.8 also mandates that, if no appeal is preferred against the decision of the Tribunal within the period specified or such appeal has been dismissed by the High Court, the Custodian shall as soon as may be after the period specified for appeal or after the date of the order of the High Court, restore possession of such land or private forest or portion, to which the declaration is applicable, to the person who was in possession immediately before the appointed day. Hence, it is the statutory duty of the Custodian to restore the possession of lands on which a declaration is made by the Tribunal, when either no appeal is preferred within the specified time or the appeal preferred has been dismissed by the High Court. It is in this context that _Kumari Varma_ (supra) held that the Government having not restored the possession of the lands to the owner; with the enactment of the EFL Act, there cannot be a vesting, merely because of the lands having been left to waste or for natural growth of vegetation having occurred in those lands, during the period between the dispossession under Vesting **11** Act, of 1971 and the appointed day, under the EFL Act, which is 02.06.2000. 7. On the enactment of the Vesting Act, there was statutory vesting of the private forests as defined thereunder and when the disputes were agitated before the Tribunal, the forest department officials interdicted persons in occupation of such lands from cultivation and also interfered with their possession. Oftener than ever, it is these interference from the forest officials that leads to applications being filed before the Tribunal constituted under that Act. The lands remained with the State and were left to waste or left to the vagaries of nature, which alone resulted in those lands being again converted to forest lands in which natural vegetation grew unhindered. If the lands on which a declaration was made by the Tribunal were restored within time, necessarily there would be the aspect of cultivation to be examined, since the owners who had possession of lands could have sought exemption under the EFL Act, if and only if they had resumed cultivation in the said lands. It is on the above reasoning that _Kumari Varma_ (supra) held that the State having declined to restore the lands on which a declaration was made **M.F.A.(F) Nos.13 & 19 of 2011** **12** by the Tribunal; upon the enactment of the EFL Act or the earlier ordinances, could not have taken up a contention of the land, being devoid of cultivation, which circumstance arose only because of the dispossession of the rightful owners to whom restoration was not carried out. Restoration, as we noticed, is a statutory mandate, on the declaration of exclusion or exemption made by the duly constituted Tribunal's orders having attained finality, the appeal period having expired or by dismissal of an appeal before the High Court. Having thus declined to obey the statutory mandate, the State cannot rely on its own wrong of deprivation, of possession and enjoyment of such lands, to accuse the owners of having not cultivated the said lands. The absence of cultivation in that context would have to be inferred to be only by reason of the deprivation of possession of such lands, despite a declaration made by the statutory Tribunal, against which no appeal was filed or the appeal filed, stood rejected. However when the lands have been restored, the burden is on the owners/applicants to prove cultivation or otherwise establish the circumstances which prevented them from cultivation; the last of which would have to be proved as against the State or its officials, failing which no such **13** inference could arise. 8. Coming to the facts of the instant case, both the original applications referred to the earlier proceedings under the Vesting Act and produced the order of the Forest Tribunal granting exemption under the Act. True, there was no pleading as to the restoration having not been effected. However, it has to be noticed that there is clear admission in the statement filed by the Division Forest Officer which is almost identical in both the cases. The statements made in paragraph 4 is as follows: _“Though the area in question forms part of Private forest, the Hon' Forest Tribunal granted declaration exempting the land from vesting under section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. Accordingly the department was taking all the steps to restore the land. Survey, section 5 notification, etc. are only the part of the process as per section (8) of the Act. Before effecting restoration of the land the respondents have to complete many administrative formalities which are time consuming process taking sufficient time at various levels. In the meantime the area was vested in Government consequent to the promulgation of Kerala Forest_ **M.F.A.(F) Nos.13 & 19 of 2011** **14** _(Vesting and Management of Ecologically Fragile Lands) Ordinance 2000 which was replaced by “The Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003” (21/2005) which was deemed to have come in to force on the 2[nd] day of June 2000.”_ It is also admitted that OA 129/1975 relating to land scheduled in O.A.No.6/2008 was allowed by the Forest Tribunal on 7.10.1977, on which date itself O.A.No. 130/1975, relating to the scheduled land in O.A.No.7/2008, also stood allowed. Appeals filed by the respondent State stood dismissed in 1983. The above facts clearly indicate that the lands which were scheduled in both the earlier OAs were not restored to the possession of the respective owners till the appointed day under the EFL Act, under which the identical lands are now asserted to have vested. 9. As to the evidence led, PW1 the applicant in O.A.No.6/2008 deposed in consonance with his pleadings and also the pleadings in O.A.No.7/2008. He specifically testified that the earlier OAs were allowed declaring the lands to be exempted under S.3(2) of the Vesting Act. There was cultivation as on 10.5.1971. and from 1974 **M.F.A.(F) Nos.13 & 19 of 2011** **15** onward, the forest officials prevented agricultural operations in the wake of the new enactment. It was also deposed that despite the dismissal of the appeals filed before the High Court, in 1983, the lands were not restored to the owners. He also spoke about a writ petition having been filed and the forest officials having declined restoration thus denying possession and enjoyment of the lands. He specifically spoke of there being no characteristics of an ecologically fragile land found in the scheduled property and the total absence of any wild life in the locality. In fact, in cross examination, it was reiterated that after the order of the Forest Tribunal, the properties were not restored to the owners; which is admitted by the respondent. 10. Ext.C1 is the commission report filed before the Tribunal. Both the properties were lying together. The boundaries of O.A.No.6/2008 were noticed as follows; on the east the property in O.A.No.7/2008, on the south, _Kulakkad Mala_ , west _Lakshamveedu_ colony and portions of _Kulakkad Mala_ , north _Kulakkad - Pothakkad_ road. The southern and western boundaries of the land scheduled in O.A.No.7/2008 is similar to that noticed above. On the west is the property in O.A.No.6/2008 and on the east, a rubber plantation and **M.F.A.(F) Nos.13 & 19 of 2011** **16** house belonging to Ramakrishnan and portions of _Kulakkad Mala._ There is no dispute raised as to the identity of the property which was inspected in the presence of forest officials, a sketch of which was also drawn up and submitted before the Tribunal as Ext. C1(a). 11. As to the nature of the properties and vegetation, the Commissioner reported that the land lies sloping from the south to the north and both properties lie contiguously. On the north, after the _Kulakkad-Pothakkad_ road, there are a number of residential houses. There are also coconut and arecanut plantations, situated about 7 to 8 feet below. There was no cultivation carried out in the subject land at the time of inspection, which is inconsequential going by the dictum in _Kumari Verma_ (supra). The report indicates thick undergrowth of grass and shrubs, naturally sprouted in the property and there were only scanty presence of trees. Starting from the road, on the northern boundary, for about 1 km, there are no trees, but near to the southern boundary, there are some trees like _vatta, teak, pullani, chadachi, mula, kazhani, vaka_ etc., which have an approximate age of 10 years. The Commissioner also noticed a three feet granite wall on the eastern and western boundaries of the **M.F.A.(F) Nos.13 & 19 of 2011** **17** properties, lying as one whole. 12. As per the work memo of the department, two issues were to be verified, (i) the boundaries which has already been stated and (ii) the characteristics of the land, making it an EFL and the contiguity to vested forests. The Commissioner stated categorically that on the southern boundary, there is a hill called _Kulakkad,_ but it cannot be said to be a vested forest. When proceeding to the north, there are only shrubs and there is no characteristics of a forest found in the land which only has scanty presence of trees. As far as the wild life present in the area, the Commissioner reported only the presence of a few monkeys on the roof of the nearby house. 13. We are of the opinion that the facts disclosed definitely makes applicable the dictum in _Kumari Varma_ (supra). The lands were alleged to be vested under the Vesting Act, against which the predecessors-in-interest of the applicants approached the Forest Tribunal constituted under that Act. The Tribunal allowed the applications, granting declaration under S.3(2) in both the OAs. The appeal filed by the department before the High Court also was rejected in 1983. There was no restoration of the lands to the owners **M.F.A.(F) Nos.13 & 19 of 2011** **18** despite the rejection of the appeals by the High Court and the statutory mandate which enjoins the Custodian to restore the lands to the owners thereof was not, admittedly, complied with. It has come out in evidence that from 1974, the owners were prevented from carrying on agricultural operations and land was lying waste from 1974 till the inspection of the Commissioner which was carried out in 2009. Obviously, there would be no remnants of cultivation but however there is no regeneration of trees detected, depriving the land of any characteristic of a forest, as required under the definition of forest under the EFL Act. We find no reason to interfere with the common order passed by the Tribunal in the two O.As. We reject the appeal filed by the Government and leave the parties to suffer their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** **Sd/-** ## **C.JAYACHANDRAN, JUDGE** uu