State of Kerala v. Vayitri Plantations Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 MFA (FOREST) NO. 47 OF 2017** **OA 13/2014 OF TRIBUNAL FOR ECOLOGICALLY FRAGILE LANDS CASES,** ## **KOZHIKODE** ## **APPELLANT/RESPONDENT:** STATE OF KERALA REPRESENTED BY THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS (WORKING PLAN AND RESEARCH) AND CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS THIRUVANANTHAPURAM. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FORESTS ## **RESPONDENT/APPLICANT:** THE VAYITRI PLANTATIONS LTD. 472-473, K.K. NAGAR, MADURAI 625 020, REPRESENTED BY ITS DIRECTOR, ZAFAR SALIM, S/O. M. SALIM, RESIDING AT 472-473 K.K. NAGAR, MADURAI. BY ADVS. SRI.G.KEERTHIVAS SRI.P.R.VENKATESH THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(F).No.47/2017 2 ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A.(F).No.47 of 2017 -------------------------------------Dated this the 17[th] day of March, 2023** ## **J U D G M E N T** ## **C.Jayachandran, J.** The Order of the Tribunal under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 ['the E.F.L. Act', for short] allowing an application under S.10 of the said Act is under challenge in this appeal. The impugned order allowed O.A. No. 13/2014, setting aside Ext.B1 notification, which declared and notified the scheduled property as an ecologically fragile land. The aggrieved State, represented by the Principal Chief Conservator of Forests, who is also the Custodian of Ecologically Fragile lands, is the appellant. ## **2.** The Facts: The scheduled property, having an extent of 85.7998 hectares comprised in Re. Sy. nos 416/2 pt and 407/11 pt of Chundale Village, absolutely belongs to the applicant as per Ext.A1 lease deed M.F.A.(F).No.47/2017 3 of the year 1943 and Ext.A2 sale deed of the year 1970. The land is principally cultivated with coffee and cardamom. As per Ext.A3 proceedings of the Taluk Land Board, Wayanad, an extent of 400 acres were exempted as cardamom plantation, 200 acres as coffee plantation and 108 acres as tea plantation. An extent of 762.07 acres was found to be vested forest and the applicant had to surrender 100 acres pursuant to Ext.A3 proceedings. As on the date of application, the area is fully cultivated with coffee, with coffee registration certificate issued by the authority concerned. Plantation tax of Rs.62,834/ was demanded by the Village Officer in the year 2001 and the same was paid. The scheduled property is not an abandoned area. The applicant/company was not allowed to maintain the plantation in the scheduled property and the same would have been maintained properly, had there been no interference by the officials. On the north of the scheduled property lies a plantation belonging to Vengacottah estate and on its south, is a cardamom plantation belonging to one Balu and family. Another side is bounded by cardamom plantation of Sadasivan. The trees in the scheduled property are shade trees of cardamom and coffee, and not natural vegetation. There are many internal roads and M.F.A.(F).No.47/2017 4 embankments in the property. The scheduled property is not an ecologically fragile land. Ext.B1 notification dated 04.10.2000 is liable to be set aside, declaring that the scheduled property is not ecologically fragile. It was finally pleaded that the O.A. is filed in terms of the orders of the Honourable High Court in O.P. No.34320/2009 dated 17.11.2014. **3.** The respondent/State filed written statement through the Divisional Forest Officer contending that an extent of 150 hectares in old Sy.no.339pt [resurvey no.416/2pt and 407/11pt] of Chundale Village, of which the scheduled property is a part, was notified as ecologically fragile land vide Ext.B1 dated 04.10.2000, which was duly published on 31.10.2000. The land in question predominantly supports natural vegetation and dense tree growth. The same was developed as forest through series of plant succession for long years. It is bounded on all sides by forest land. The land is located on the foothills of the mountain belts of Chembra-Arunagiri forming part of the western ghats, besides being an integral part of Chembra water shed. The scheduled property is floristically rich, located at an altitude of 1062 M above MSL, with moderate to steep M.F.A.(F).No.47/2017 5 slope. Ext.B3 case study report shows that the disputed land is susceptible to land slides. The disputed property is full of natural evergreen forest with some rocky patches, which is a good habitat of birds, butterflies and mammals. There are no planted species and vegetation. The canopy of the disputed E.F.L land is similar to that of the nearby vested forest. It is not principally planted with coffee or cardamom as on the date of coming into force of the E.F.L. Act, 02.06.2000. Ext.B4 floristic study report conducted by M.S.Swaminathan Research Foundation would amplify that the scheduled property is comprised of various species of forest trees with high density and diversity. Ext.C5 study report conducted by a Researcher attached to the National Centre for Biological Sciences would show that the disputed land is unique with diversity of birds as equal to that of the national parks such as Silent Valley. Ext.B6 series photographs would clearly indicate the density and diversity of forest species in the disputed land. The applicant preferred a petition before the Custodian seeking exemption of 150 hectares from the purview of the E.F.L. Act. He also filed W.P(C).no.16590/08 before the High Court for speedy disposal of the above petition. Pursuant to the directions of the High Court, a report of the M.F.A.(F).No.47/2017 6 committee under Rule 18 of the E.F.L. Rules, 2007 was called for. Sample survey was conducted, the details of which are produced as Ext.B7. Based on Ext.B8 report of the committee, Ext.B9 order was passed by the Custodian, dismissing the applicant's petition. The documents of title relied by the applicant are denied. On such premise, the Custodian sought for dismissal of the O.A. **4.** The evidence in this case consists of Ext.A1 to A15, supported by the oral evidence of the Director of the applicant/company as PW1. On behalf of the respondent, Exts.B1 to B14 were marked through the Forest Range Officer concerned, who was examined as RW1. The commission reports and plans were marked as Exts.C1 to C7. **5.** The Tribunal discounted the scant and scattered growth of coffee plants in the scheduled property as reported in Ext.C7 report, on the premise that the applicant was prevented from entering the property pursuant to Ext.B1 notification. Exts.A6 and A7 receipts evidencing payment of plantation tax were taken stock of. Ext.A9, reckoned as a cardamom registration certificate and Ext.A10 application made to the District Collector for issuance of certified 7 M.F.A.(F).No.47/2017 copy of coffee registration certificate were relied upon to find that the scheduled property was a coffee and cardamom plantation at one point of time, which perished subsequently. The Tribunal placed reliance upon **Bhavani Tea and Produce Company Limited v. State of Kerala** [1991(1) KLT 666] and **State of Kerala v. Kumari Varma** [2011(1) KLT 1008] to allow the original petition, setting aside Ext.B1 notification. **6.** Heard Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) on behalf of the appellant and Sri.Keerthivas, learned counsel for the respondent/applicant. Perused the records. **7.** Having heard the learned counsel appearing on both sides, we cannot approve the findings of the Tribunal under the E.F.L. Act. Reliance placed by the Tribunal upon Exts.A6, A7, A8, A9 and A10 documents are of little impact in addressing the question whether the scheduled property was ecologically fragile or not. Ext.A6 and A7 documents are land tax receipts in the name of applicant/Vythiri Plantation of the year 1999. The nature and character of the disputed property for the purposes of the E.F.L. Act cannot be M.F.A.(F).No.47/2017 8 ascertained or concluded from a mere reference to a plantation in a land tax receipt. Ext.A8 is the extract of the basic tax register, which also we find to be of little use for the purpose above referred. What is more relevant are the documents marked as Exts.A9 and A10, of which, Ext.A9 has been described by the Tribunal as cardamom registration certificate. We perused Ext.A9 and we could not find any indication, whatsoever, that the same is a certificate issued by the authority competent for registration of cardamom cultivation. The word 'cardamom' does not find a place in Ext.A9. Ext.A10 is a reply issued by the State Public Information Officer indicating that the Coffee Registration Certificate no.465/43 and concerned files are not available in the office. We notice that, Ext.A9 is dated 22.08.1969 and the file referred to in Ext.A10 is a registration certificate of the year 1943, both of which cannot vouch the state of affairs prevailing as on 02.06.2000, the date on which the E.F.L. Act came into force. Even otherwise, Ext.A1 title deed of the year 1943 speaks of the nature and character of the vast extent of land, of which the scheduled property forms a part, as fully developed estates, which however, cannot be of any avail, unless such status continued and existed as on the crucial date, 2-6-2000. Another M.F.A.(F).No.47/2017 9 reasoning of the Tribunal in allowing the O.A. is that the applicant was prevented from entering the scheduled property pursuant to Ext.B1 notification of the year 2000, which explains the natural vegetation and wild growth in the scheduled property. We cannot endorse this proposition also. It is true that the applicant had canvassed such a contention in Paragraph (C) to Enclosure III, forming part of the O.A. However, the O.A. is seen filed in the year 2014. It is pleaded in the O.A. that the same is filed in pursuance of the orders of this Court in O.P.34320/2009 dated 17.11.2014. It was argued by the learned counsel for the first respondent/applicant that three writ petitions were preferred during the period from 2001-2008, of which, the first was one challenging the E.F.L. Ordinance. We cannot take stock of such contention in the absence of any pleading, much less proof, in that regard. There is no specific pleading in the O.A. as to when the forest officials interfered with the applicant's possession over the scheduled property. Unless and until there is an interference, the wastage of the scheduled property cannot be attributed to the forest officials. A commission was taken out only in the year 2015. We are therefore not convinced that the state of affairs prevailing in the scheduled property as reported by M.F.A.(F).No.47/2017 10 the Commissioner is on account of the applicant being prevented from entering into and attending the cultivation in the scheduled property. We also notice that Ext.B8 report of the committee, under S.18 of the E.F.L. Act of the year 2008, clearly depicts scant presence of coffee, and complete dearth of cardamom in the scheduled property. **8.** We will now address afresh the question whether the scheduled property is an ecologically fragile land in terms of the definition under S.2(b), r/w 2(c) of the E.F.L. Act. As per S.2(b) of the E.F.L. Act, an ecologically fragile land means, 'any forest land or portion thereof held by any person and lying contiguous or encircled by a forest owned by the Government, which predominantly supports natural vegetation'. S.2(c) defines a 'forest' as any land principally covered with naturally grown trees and undergrowth, including any forest which is statutorily recognized, but excluding lands used for principal cultivation of long duration crops specified in the section. 'Natural vegetation' is defined in S.2(e) to mean 'a growing stock predominantly of a plant species or of a number of plant species occurring naturally on the land'. M.F.A.(F).No.47/2017 11 **9.** The E.F.L. Act came into force on 02.06.2000. Ext.B1 notification is also of the year 2000. The applicant preferred a petition before the Custodian of Ecologically Fragile Lands on 08.03.2008 under S.19(3)(b) of the E.F.L. Act. Thus, the earliest document which depicts the state of affairs prevailing in the scheduled property is Ext.B8 report of the E.F.L. committee, which conducted the inspection on 26.08.2008. Ext.B8 categorically reported that the disputed land is lying contiguous to vested forests in V.F.C. item nos.94 and 95 of the Forest Division, Vythiri. The disputed property is reported to be at an altitude of 800 M above MSL, with moderate to steep slope. The committee specifically reported that the scheduled property has good natural regeneration, with closed canopy. It was found that the number of plants decreases from bottom to top, a typical characteristic feature of undisturbed evergreen forest. The report sums up with the finding that the disputed property is having absolute dominance of natural vegetation and supports diverse flora and fauna, besides having good regeneration of indigenous species. Ext.B8 therefore recommended the area to be maintained as an ecologically fragile land. M.F.A.(F).No.47/2017 12 **10.** To the same effect are the reports of the Advocate Commissioner, marked Ext.C1 to C7. In answer to point no.6 in Ext.C1, it was reported that there is no cardamom plant in the scheduled property and that several coffee plants are seen in part of the disputed area. However, the coffee plants have grown upto a height of 10-20 feet, which appears to have not been pruned, harvested or maintained for the past several years. As regards vegetation in the disputed property, the Commissioner relied upon Ext.C3 report of the expert, who accompanied the commission. The expert is a Professor attached to the Department of Botany under the University of Calicut. Ext.C3 specifically reports that most of the area has natural regeneration and that, there are several cultivated coffee plants in part of the disputed area, which are of the age between 25-40 years. The Commissioner also reported that the plants were not pruned or harvested for several years. Ext.C2 is the plan prepared by the Commissioner, the relevance of which is minimal in view of the subsequent plans, which were marked as Plan no.2 and Ext.C7, vide Exts.C4 and C6 reports. Ext.C4 is an additional commission report, wherein, Plan 2 is attached. As per Plan 2, the area where coffee plantation was found was only 7.5088 M.F.A.(F).No.47/2017 13 hectares, out of the total area of 70.9880 hectares. This was again modified by virtue of Ext.C7 revised plan, filed along with Ext.C6 report, whereunder the existence of coffee plants was reportedly found, but scattered here and there, in an area of 11.1703 hectares, which is over and in addition to the above referred 7.5088 hectares as per Plan 2. **11.** The above reports would only indicate the scanty presence of coffee in the scheduled property, with absolute dearth of cardamom, contrary to the claim pleaded in the O.A. We notice that, as per the requirements in S.2(c), the land should be used “principally” for the cultivation of long duration crops like coffee, cardamom etc, which requirement is not satisfied by the materials on record. As reported by the Advocate Commissioner, out of the total extent of 70.9880 hectares, coffee seen planted in only 7.5088 hectares, along with some coffee plants found planted here and there in another 11.1703 hectares. Having regard to the total area of the scheduled property, the above referred cultivation is grossly insufficient to construe that the disputed property is 'principally' used for cultivation of long duration crops. We take stock of two Bench decisions of this Court in M.F.A.(F).No.47/2017 14 (1) **Ammukunhi Amma and others v. State of Kerala and others** [2016 (3) KHC 52 (D.B.)] and (2) **State of Kerala v. R.Rajagopal** [2018 (5) KHC 128 (D.B)], which held that unless there were at least 'half' the usual number of plants per acre of the respective specie, the area could not be considered as principally planted with those crops, to which view, we respectfully subscribe. **12.** We also notice that decisions relied on by the Tribunal has no applicability in the given facts. We have already found the applicant's contention of being prevented from entering into and taking care of the cultivation in the scheduled property as not substantiated, wherefore, **State of Kerala v. Kumari Varma** [2011 (1) KLT 1008] is not applicable. As regards **Bhavani Tea and Produce Co. Ltd v. State of Kerala and Others** [1991 (1) KLT 666 (S.C.)], we notice that the dictum laid down by the Hon'ble Supreme Court has been understood wrongly by the Tribunal. The Hon'ble Supreme Court in paragraph no.32 initially agreed with the dictum laid down by a Full Bench of this Court in **State of Kerala v. Anglo-American Direct Tea Trading Company** [1980 KLT 215] which held that the question to be looked at was whether there was any land in 1971, to which the M.P.P.F. Act was applicable in 1949 M.F.A.(F).No.47/2017 15 and continued to be under its coverage till 1971; and not whether there was a forest in existence in 1971. The Hon'ble Supreme Court concurred with the view that once the M.P.P.F. Act was applicable to the disputed area in 1949, nothing done by the owners of the area was capable of putting an end to such applicability. In paragraph no.34, the Hon'ble Supreme Court considered a reverse question that, if the land was not a private forest but a plantation under the M.P.P.F. Act and it remained as such as on 10.5.1971, the same could not, without anything more, become a private forest thereafter, though it was not under the same efficient or successful plantation as it was earlier. However, the issue is seen concluded at the end of paragraph no.35 by leaving the situation to be governed and dependent upon individual facts, since it cannot be said that there could never be a case of a plantation land being converted to a forest by natural growth or otherwise. At any rate, the dictum laid down is not that a land exempted from the purview of the M.P.P.F. Act cannot be notified as a vested forest under the Vesting Act, as understood by the Tribunal. Moreover, under the E.F.L. Act, the status, nature and character of the disputed land as on 2.6.2000 – the date on which the E.F.L. Act came into force – is crucial. M.F.A.(F).No.47/2017 16 **13.** We also notice the _non obstante clause_ with which Section 3(1) of the E.F.L. Act commences, which eclipse the effect of all judgments, decree or order and even documents. A Division Bench of this Court in **Planters Forum v. State of Kerala** [2015 (2) KLT 783], explained the effect of the non obstante clause and clarified that, though the previous judgments or orders are relevant under S.42 of the Evidence Act and can be looked into only as a piece of evidence, the same has no binding effect and can in no way affect the vesting of an ecologically fragile land as per the E.F.L Act with effect from 2-6-2000. (See paragraphs 115 and 116). We cannot therefore uphold the impugned judgment and the same is hereby set aside. The O.A. will stand dismissed. The parties are relegated to bear their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** Sbna/skj