W.P.(C) Nos.8128 of 2010 & 24849 of 2015

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 21ST DAY OF AUGUST 2017/30TH SRAVANA, 1939 ## WP(C).No. 8128 of 2010 (O) --------------------------AGAINST THE ORDER DATED 21.12.2009 IN IA NO.1717/2009 IN IA NO.1519/2000 IN IA NO.469/1980 IN OS NO. 26/1965 of SUB COURT, OTTAPPALAM ## PETITIONERS: ------------- 1. JACOB V.ELIAS, S/O.ELIAS, PARAPPATHKUZHIYIL, KILIMANGALAM VILLAGE,, THALAPPALLY TALUK, REPRESENTED BY POWER-OF-ATTORNEY HOLDER THOMAS MATHEW, S/O.K.M.MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 2. ANITHA THOMAS, W/O.THOMAS MATHEW, SHORNUR, OTTAPPALAM TALUK, REPRESENTED BY POWER-OFATTORNEY HOLDER THOMAS MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 3. ANNAMMA MATHEW, W/O.MATHEW, SHORNUR, OTTAPPALAM TALUK, REPRESENTED BY POWER-OFATTORNEY HOLDER THOMAS MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 4. P.V.SUGATHAN, S/O.PONNARASSERI VASU, KORATTIKARA DESOM, KADAVALLUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. 5. SINDU, W/O.SURESHKUMAR, THANISSERY DESOM, MANAMALASSERY VILLAGE, MUKUNDAPURAM TALUK. 6. ANITHA ROY, W/O.ROY KURIAN, TRIPUNITHURA VILLAGE, KANAYANNUR TALUK, REPRESENTED BY POWER-OFATTORNEY HOLDER THOMAS MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 7. A.J.RAICHAL, W/O.ELIAS, PARAPPATHKUZHIYIL, KILIMANGALAM VILLAGE, THALAPPILLY TALUK, REPRESENTED BY POWER-OF-ATTORNEY HOLDER THOMAS MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPPALAM TALUK, PALAKKAD DISTRICT. WP(C).No. 8128 of 2010 (O) 2 8. V.K.JOSEPH, S/O.KURIAKOSE, PARATHKUZHIYIL HOUSE, KILIMANGALAM VILLAGE, THALAPPILLY TALUK, REPRESENTED BY POWER-OF-ATTORNEY HOLDER THOMAS MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 9. V.K.MONCY, D/O.KURIAKOSE, KURUMALA VILLAGE, THALAPPILLY TALUK,, REPRESENTED BY POWER-OFATTORNEY HOLDER THOMAS MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 10. SANJEEVKUMAR, S/O.KALLADA RAMAKRISHNAN, MANAMALASSERI VILLAGE, MUKUNDAPURAM TALUK. 11. SANTHOSHKUMAR, S/O.KALLADA RAMAKRISHNAN, MANAMALASSERI VILLAGE, MUKUNDAPURAM TALUK. 12. SURESHKUMAR, S/O.KALLADA RAMAKRISHNAN, MANAMALASSERI VILLAGE, MUKUNDAPURAM TALUK. 13. P.R.SUSHEEL KUMAR, S/O.RAMAN MASTER, PANASSERY VILLAGE, THRISSUR DISTRICT. BY ADVS.SRI.S.SREEKUMAR (SENIOR ADVOCATE) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.AJAY BEN JOSE SRI.MANJUNATH MENON RESPONDENTS: - -------------- 1. VALSALA AMMA , AMBAT NIVAS, WEST FORT ROAD, PALAKKAD. 2. KUNHI MOIDEEN HAJI, (WRONGLY SHOWN AS KUNHIMON HAJI), PALAKKURISSI PUTHEN PEEDIKAKKAL, VALLAPPUZHA AMSOM DESOM, P.O.VALLAPPUZHA, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 3. HAMZA, THADATHIL HOUSE, KULAPPULLY AMSOM DESOM,, P.O.KULAPPULLY, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 4. ALI ALIAS MUTHU HAJI, PARAYARAKUNDIL HOUSE, VALLAPPUZHA AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 5. MAMMY HAJI, S/O.KUNNATH MOIDEENKUTTY, VANIYAMKULAM AMSOM, PULACHITHARA DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. - WP(C).No. 8128 of 2010 (O) 2 6. MOHANDAS, S/O.PEECHI RAMAN MASTER, PANANCHERI VILLAGE, HARIPPAKUNNUR DESOM, THRISSUR TALUK. ## ADDL.R7 AND ADDL.R8 ADDL.R7. BHARATHAPUZHA SAMRAKSHNA SAMITHI (REG. NO.C.A.234/05), PATTAMBI, PALAKAD REPRESENTED BY ITS SECRETARY INDIANUR GOPI. ADDL.R7 IMPLEADED AS PER ORDER DATED 19.07.2017 IN IA NO.9491/2010. ADDL.R8. K.V.NAIDU, S/O.K.C.NAIDU, GROUND FLOOR, DOCTORS GREW APARTMENT, 1ST MAIN ROAD, RMP 2ND STAGE, DOLLARS COLONY, BANGALORE-94. ADDL.R8 IMPLEADED AS PER ORDER DATED 19.7.2017 IN IA NO.8020/2015 ADDL.R7 BY ADV. SMT.DAISY A.PHILIPOSE R2, R3, R4 & R5 BY ADV. SRI.SANTHEEP ANKARATH R6 BY ADV. SRI.P.A.HARISH ADDL.R8 BY ADVS. SRI.P.BABU KUMAR SRI.VISHNU BABU R1 BY ADV. SRI.R.RAJESH KORMATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.08.2017 ALONG WITH WP(C) NO. 24849/2015, THE COURT ON 21-08-2017, DELIVERED THE FOLLOWING: WP(C).No. 8128 of 2010 (O) ## APPENDIX ## PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF JUDGMENT DATED 29.10.2003 IN CRP.1786/2003 EXT.P2 TRUE COPY OF JUDGMENT DATED 23.11.2004 IN WP(C).33830/2004 EXT.P3 TRUE COPY OF JUDGMENT DATED 4.11.2008 IN RFA.244/2005 EXT.P4 TRUE COPY OF JUDGMENT DATED 13.1.2009 IN RP.1363/2008 IN RFA.244/2005 EXT.P5 TRUE COPY OF AFFIDAVIT AND PETITION IA NO.1717/2009 FILED BY THE PETITIONERS BEFORE THE SUB COURT, OTTAPPALAM EXT.P6 TRUE COPY OF COUNTER STATEMENT FILED BY 9TH RESPONDENT IN IA NO.1717/2009 EXT.P7 TRUE COPY OF COUNTER AFFIDAVIT FILED BY GOVERNMENT IN IA 1717/2009 EXT.P8 TRUE COPY OF ORDER DATED 21.12.2009 IN IA 1717/2009 IN IA 1519/2000 IN IA 469/1980 IN OS 26/1965 OF SUB COURT, OTTAPPALAM ## RESPONDENTS' EXHIBITS: EXT.R8(a) TRUE PHOTOCOPY OF THE AGREEMENT EXECUTED BETWEEN IMPLEADING 8TH RESPONDENT AND THE PETITIONERS 1, 2, 3 AND 6 IN WP DATED 4.9.2008 EXT.R8(b) TRUE PHOTOCOPY OF THE AGREEMENT EXECUTED BETWEEN IMPLEADING 8TH RESPONDENT AND THE PETITIONERS5 AND 126 IN WP DATED 17.11.2008 EXT.R8(c) TRUE PHOTOCOPY OF THE AGREEMENT EXECUTED BETWEEN IMPLEADING 8TH RESPONDENT AND THE 6TH RESPONDENT IN WP DATED 4.9.2008 EXT.R21(a) TRUE PHOTOCOPY OF THE JUDGMENT IN OA NO.304/74 OF THE FOREST TRIBUNAL, PALAKKAD, DATED 11.5.1977 EXT.R21(b) TRUE PHOTOCOPY OF THE JUDGMENT IN MFA NO.291/77 OF THIS COURT DATED 6.1.1981 //TRUE COPY// ## **“C.R.”** ## **A.HARIPRASAD, J.** **-------------------------------------W.P.(C) Nos.8128 of 2010 & 24849 of 2015** **-------------------------------------Dated this the 21[st] day of August, 2017** ## **COMMON JUDGMENT** These petitions are offshoots of an original suit, which itself has a chequered history. For better understanding of the legal issues involved, I shall narrate the brief facts borne out from W.P.(C) No.8128 of 2010. 2. O.S.No.26 of 1965 was filed before the Sub Court, Ottapalam for partition of the properties belonged to Kavalappara Mooppil Sthanam. Large extent of properties, as various items, had been included in the suit. Pending the suit, a Receiver was appointed for management of the estate and he took over possession of the properties. Thereafter, a preliminary decree for partition was passed on 30.10.1979. I.A.No.469 of 1980 was filed by the plaintiffs for passing a final decree in terms of the preliminary decree. There are seven petitioners and sixtyseven respondents in the final decree application. Some of them are the assignees of sharers and some others are the legal representatives of sharers. Petitioners are the 2 WP(C) Nos.8128/2010 & 24849/2015 assignees from sharers. 3. One of the items of property sought to be divided is having an extent of 136.09 acres comprised in survey Nos.289/2, 3 and 4; 290/1 and 2; 298/2, 3 and 4; 26/1 and 1/IA situate in Kulappully, Shornur I and II Villages of Palakkad District. 4. Declaring the said property as a private forest, the Forest Department took possession of the same under the provisions of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (in short, “the Vesting Act”). Receiver then filed an application, O.A.No.304 of 1974, before the Forest Tribunal, Palakkad (in short, “Tribunal”), constituted under the Vesting Act, claiming that the land was not a private forest. Tribunal allowed the original application. That decision was challenged by the State Government before this Court in M.F.A.No.291 of 1977. This Court by judgment dated 06.01.1981 dismissed the Government's appeal and confirmed decision of the Tribunal. A review petition filed by the Government as R.P.No.155 of 1984 was also dismissed by this Court. On 22.04.1998, the Forest Department handed over possession of the said land to the Receiver appointed by the court. 5. As per the terms of the preliminary decree passed in the suit, this particular item of property was directed to be divided into 75 equal shares. Out of that, 65 ½ shares are to be allotted to the petitioners herein. One share is to be allotted to the 1[st] respondent. She is a family WP(C) Nos.8128/2010 & 24849/2015 3 member and a sharer in the partition suit. Remaining 8 ½ shares are to be given to the respondents 2 to 5. Except the 1[st] respondent, all the sharers, who were entitled to shares in the property as per the preliminary decree, assigned their sharers either in favour of the petitioners or the respondents 2 to 5. Thereafter, those persons got themselves impleaded in the final decree proceedings on the strength of the assignment deeds. Petitioners are interested only in this item of property included in the suit. 6. Since there are large number of properties involved in the suit and the petitioners are not interested in any property other than the above mentioned item, they filed I.A.No.1519 of 2000 to pass a final decree in respect of this particular item of property and to allot 65 ½ sharers out of 75 shares to them as one lot. An advocate commissioner deputed to divide the property submitted his report on 19.10.2000. After filing the commission report and plan, the 1[st] respondent filed an objection to the same. Thereafter, the court below dismissed the final decree application, which was challenged before this Court in C.R.P.No.1786 of 2003. This Court directed the lower court to restore the final decree application to file and dispose the same within a time limit. Ext.P1 is copy of the order passed in C.R.P.No.1786 of 2003. 7. As directed by this Court, the advocate commissioner again visited the property and filed another report and plan. 1[st] respondent again filed an application to set aside the report and plan and that application was WP(C) Nos.8128/2010 & 24849/2015 4 dismissed by the trial court. So, she filed W.P.(C) No.33830 of 2004 challenging that order, which resulted in Ext.P2 judgment. Thereafter the parties adduced evidence and the final decree was passed on 11.01.2005. 8. Final decree order was challenged in R.F.A.No.244 of 2005 by the 1[st] respondent. Ext.P3 is the copy of judgment in R.F.A.No.244 of 2005. Review petition filed against Ext.P3 judgment by the 1[st] respondent was dismissed as per Ext.P4 judgment. 9. Thereafter, the final decree was engrossed on non-judicial stamp paper. Even at that time the property remained in the custody of the Receiver. Therefore, the petitioners filed I.A.No.1717 of 2009 in the final decree application for issuing a direction to the Receiver to hand over possession to them of the respective plots allotted under the final decree. Ext.P5 is the said application. 1[st] respondent filed a counter statement stating that she had preferred an appeal against Ext.P4 before the Supreme Court. However, the 1[st] respondent did not succeed. 10. Meanwhile, an attempt was made by the State Government to get themselves impleaded. But it was not allowed. Still, the court ordered notice in the matter to the Government Pleader. Ext.P7 is the copy of the counter statement filed by the Government Pleader in I.A.No.1717 of 2009 filed by the petitioners seeking delivery of possession. In Ext.P7, the State Government's stance was that the suit property had been vested in the Government under the provisions of the Kerala Forest (Vesting and 5 WP(C) Nos.8128/2010 & 24849/2015 Management of Ecologically Fragile Lands) Act, 2003 (in short, “the EFL Act”). Petitioners would contend that the lower court on an erroneous consideration of the matter dismissed I.A.No.1717 of 2009. A copy of that order is produced as Ext.P8. That order is under challenge in W.P.(C) No.8128 of 2010. 11. Pending the suit, the Forest Department issued notification No.EFL.12-252/06 dated 31.10.2008, drawing power from Section 3(2) of the EFL Act, declaring that the above mentioned 136.09 acres vested with the Government. Ext.P5 is the notification, which is under challenge in W.P.(C) No.24849 of 2015. Petitioners in the above writ petition contended that the property is still _custodia legis_ . Receiver is bound to protect the interests of the parties and the property. Petitioners were under firm belief that the Receiver might have taken steps to set aside Ext.P5 notification. Only when W.P.(C) No.8128 of 2010 came up for hearing, the petitioners realised that the Receiver had not taken any step to challenge Ext.P5. Any laches or delay on the part of the Receiver cannot be attributed to the petitioners. They canvass for a position that Ext.P5 is per se void and will not bind their rights over the property. 12. In W.P.(C) No.8128 of 2010, Bharathapuzha Samrakshana Samithi filed I.A.No.9491 of 2010 to get themselves impleaded as additional 7[th] respondent in the writ petition. That petition has been allowed. According to the intervenor, the property in dispute was always a 6 WP(C) Nos.8128/2010 & 24849/2015 forest and the petitioners have no right to get the same delivered in terms of the decree passed in the above suit. 13. Heard Sri.S.Sreekumar, learned Senior Counsel appearing for the petitioners in both the writ petitions. In W.P.(C) No.8128 of 2010, Sri.R.Rajesh Kormath, learned counsel appearing for the 1[st] respondent, Sri.Santheep Ankarath, learned counsel appearing for respondents 3 to 5, Sri.P.A.Harish, learned counsel appearing for the 6[th] respondent, Smt.Daisy A.Philipose, learned counsel appearing for 7[th] respondent and Sri.P.Babu Kumar, learned counsel appearing for 8[th] respondent are also heard. Sri.Sandesh Raja. K., Special Government Pleader (Forest), who appears for the respondents in W.P.(C) No.24849 of 2015, is also heard. 14. As stated above, common questions arise in both these cases. Although the challenge in W.P.(C) No.8128 of 2010 is against Ext.P8 order, passed by the Sub Judge, Ottapalam in the above suit, dismissing I.A.No.1717 of 2009 seeking delivery of possession, the result would depend on the virus of Ext.P5 notification challenged in W.P.(C) No.24849 of 2015. 15. 1[st] respondent's specific contention is that the land in dispute is a forest. Name of the property is “Anthimahakalankotta valarthukadu”. It is an admitted case that pending the suit, the Forest Department issued a notification under Section 3(1) of the Vesting Act declaring that 136.09 acres of land vested in the Government with effect from 10.05.1971. In this WP(C) Nos.8128/2010 & 24849/2015 7 context, it will be apposite to refer to some relevant provisions in the Vesting Act. From Section 2(a) of the Vesting Act, it can be seen that the “appointed day” means “10[th] day of May, 1971”. Section 2(f) is relevant for our purpose which defines “private forest” in the following terms: _“(f) “private forest” means-_ _(1) in relation to the Malabar district referred to in sub-section (2) of Section 5 of the States Reorganisation Act, 1956 (Central Act 37 of 1956) -_ _(i) any land to which the Madras Preservation of Private Forest Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding-_ _(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964);_ _(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market._ _**Explanation** .- Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops;_ 8 WP(C) Nos.8128/2010 & 24849/2015 _(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and_ _(D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;_ _(ii) any forest not owned by the Government, to which the Madras Preservation of Private Forest Act, 1949 did not apply, including waste lands which are enclaves within wooded areas._ _(2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas._ _**Explanation** .-For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs.”_ It is relevant to note that the land in question, situate in Palakkad District, was a part of erstwhile Malabar District, to which Madras Preservation of Private Forest Act, 1949 (in short, “MPPF Act”) applied. Section 3 of the Vesting Act is also important in this regard, which reads thus: ## _“_ _**Private forests to vest in Government.** -(1)_ _Notwithstanding anything contained in any other law for the time being in force, or in any_ 9 WP(C) Nos.8128/2010 & 24849/2015 _contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day. The ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished._ _(2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto._ _**Explanation** .-For the purposes of this sub section, “cultivation” includes cultivation of trees or plants of any species._ _(3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the_ 10 WP(C) Nos.8128/2010 & 24849/2015 _ceiling area applicable to him under Section 82 of the said Act._ _(4) Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of sub-section (2) or subsection (3), be deemed to be lands to which Chapter III of the said Act is applicable and for the purposes of calculating the ceiling limit applicable to an owner, private forests shall be deemed to be “other dry lands” specified in Schedule II to the said Act.”_ Section 8 of the Vesting Act deals with settlement of disputes by the Tribunal constituted under Section 7. 16. Ext.R21(a) in W.P.(C) No.8128 of 2010 is the order passed by the Tribunal in O.A.No.304 of 1974. It can be seen from Ext.R21(a) that the Receiver approached the Tribunal claiming that the land was not a forest vested in the Government as per the Vesting Act. It can also be seen that the parties raised a claim only under Section 3(2) of the Vesting Act and that alone was considered by the Tribunal. 17. On a plain reading of Section 3(1) of the Vesting Act, it will be clear that with effect from the appointed day, the ownership and possession of all private forests in the State of Kerala stood transferred to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person in any private forest stood WP(C) Nos.8128/2010 & 24849/2015 11 extinguished. But this vesting is subject to Sub-sections (2) and (3) of Section 3 of the Vesting Act. 18. Sub-section (2) of Section 3 of the Vesting Act clearly says that so much extent of land comprised in private forests held by an owner under his personal cultivation, as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (in short, “the KLR Act”) or any building or structure standing thereon or appurtenant thereto, will not be vested as provided in Sub-section (1) of Section 3. It is clear that the land which is exempted from vesting under Sub-section (2) of Section 3 of the Vesting Act is a private forest. However, that private forest would be exempted, if it was held by its owner under personal cultivation and if it fell within the ceiling limit prescribed under the KLR Act. It is therefore definite that what is intended to be exempted in Sub-section (2) of Section 3 of the Vesting Act is nothing but a private forest. More precisely, a person seeking exemption under Section 3(2) of the Vesting Act cannot dispute the nature of land as a forest. 19. Sub-Section (3) of Section 3 of the Vesting Act deals with another situation. It says that vesting as provided under Section 3(1) would not take place in respect of so much extent of private forest held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him did not exceed the limit of ceiling area applicable to WP(C) Nos.8128/2010 & 24849/2015 12 him under Section 82 of the KLR Act. It is pertinent to note that the Receiver never put forward a claim before the Tribunal by invoking Section 3(3) of the Vesting Act. 20. The expression “intended for cultivation” occurring in Subsection (3) of Section 3 of the Vesting Act has been interpreted by the Supreme Court in **Joseph v. State of Kerala (2007 (3) KLT 144)** . It clearly signifies that on the date of vesting the land, it had not actually been cultivated, but the owner had the intention of doing so. Such intention has to be gathered from his conduct in regard to the development of land for making it for cultivation preceding and subsequent to the date of vesting. However, in this case, nobody has ever raised a contention that they made any preparation manifesting their intention to cultivate the land either preceding or subsequent to vesting. 21. Cardinal distinction between Sub-Sections (2) and (3) of Section 3 of the Vesting Act is that Sub-section (2) deals with actual personal cultivation by the owner of a land, which fell within the category of private forest and in Sub-section (3), he should hold the property by virtue of a title deed and evince intention to cultivate. In Sub-section (2) of Section 3, something more than an intention to cultivate should be established. In otherwords, personal cultivation of the property at the time of vesting must be established. It has been held in many decisions that the WP(C) Nos.8128/2010 & 24849/2015 13 burden is on the applicant to prove the facts required to establish a ground under Section 3(2) of the Vesting Act. 22. Sri.Sandesh Raja and Sri.Rajesh Kormath contended that the exemption granted by the Tribunal in respect of the disputed property as per Ext.R21(a) produced in W.P.(C) No.8128 of 2010 was based on a wrong premise. According to them, the Tribunal did not consider the contentions raised by the estate Receiver in the correct perspective. Even from Ext.R21(a) order, it will be evident that the Receiver contended before the Tribunal that the land in question was a private forest. It was further contended that out of 15 sharers in the family, 8 were heads of the families and therefore they were entitled to hold 15 acres of land under the KLR Act and others were entitled to hold 7.5 acres each. On a calculation, it was found that the estate was entitled to hold the entire disputed land. In Ext.R21(a) order itself, it has been mentioned by the Tribunal that the claimant's witness admitted that the land formed part of a forest coming under the MPPF Act. In this context, it is profitable to consider the definition of “forest” under the MPPF Act. Section 2(a) of the said Act defines “forest” in the following terms: _“(a) 'forest' includes waste or communal land containing trees and shrubs, pasture land and any other class of land declared by the State Government to be a forest by notification in the Kerala Government Gazette._ 14 WP(C) Nos.8128/2010 & 24849/2015 _**Explanation** .-For the purposes of this clause, 'communal land' means any land of the description mentioned in sub-clause (a) or subclause (b) of clause (16) of section 3 of the Madras Estates Land Act, 1908 (Madras Act 1 of 1908)”._ MPPF Act was enacted to prevent indiscriminate destruction of private forests and interference with customary and prescriptive rights therein. It is forcefully argued by the learned counsel that the order passed by the Tribunal proceeded on the footing that the land in dispute was a private forest even at that time. Only on the reason that none of the sharers were holding lands in excess of the ceiling area prescribed under the KLR Act, it was declared as exempted. Further observation in Ext.R21(a) would show that the petitioners/claimants did not urge before the Tribunal that the property was intended to be cultivated. A careful reading of Ext.R21(a) order passed by the Tribunal would show that the applicant before it never raised a contention that they were personally cultivating the land as essentially required under Section 3(2) of the Vesting Act. Whatever that be, the exemption granted by the Tribunal was confirmed by this Court as per Ext.R21(b) judgment in M.F.A.No.291 of 1977. Parties and their representatives are therefore legally estopped from contending that the exemption granted by the Tribunal in respect of the disputed land was wrong, because the order passed by the Tribunal has become final. 15 WP(C) Nos.8128/2010 & 24849/2015 However, nature of the contentions raised by the parties, as reflected from the order of the Tribunal, are relevant for decision of this case. It will be unambiguously clear, if we read Ext.R21(a) order passed by the Tribunal, that the parties contested the case admitting that the disputed property was a private forest falling under the MPPF Act. But for invoking Section 3(2) of the Vesting Act, it would have been vested in the Government. State could have contended before this Court that the Tribunal did not consider Section 3(2) of the Vesting Act in the correct perspective and in the light of the pleadings and evidence placed before it. Nevertheless, such a contention cannot be raised now, as Ext.R21(b) judgment of this Court has become final. Notwithstanding that fact, the contentions raised by the parties in the previous proceedings will be relevant for deciding whether the provisions under the EFL Act will apply to the land in question. 23. Sri.S.Sreekumar strongly contended that Ext.P8 order passed by the learned trial Judge and Ext.P5 notification challenged in W.P.(C) No.24849 of 2015 are unsustainable in the light of the Division Bench decision of this Court in **State of Kerala v. Kumari Varma (2011 (1) KLT 1008)** . Facts which led to the decision are thus: A notification under Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974 read with Section 6 of the Vesting Act was published declaring that an extent of 348 acres of land in a particular survey number, which belonged WP(C) Nos.8128/2010 & 24849/2015 16 to father of the respondent in the case, to be a private forest and consequently possession and ownership of the same was vested in the Government under Section 3(1) of the said Act. Respondent's father filed an application before the Tribunal challenging legality of the notification. The case put forward by the applicant was that the said property was a cardamom plantation and therefore it could not have been declared as a private forest under the Vesting Act. The application was dismissed initially on the ground that it is barred by limitation. An appeal was preferred before this Court challenging the order and it was allowed. The matter was remitted back to the Tribunal for a fresh disposal. Tribunal once again dismissed the application declining the prayer for exemption. Again, it was challenged before this Court in appeal. The appeal was once again allowed with certain directions to the Tribunal. As directed by this Court, the Tribunal again examined the matter and came to the conclusion that a portion of the land was a cardamom plantation and therefore the said land was liable to be exempted. Aggrieved by the finding of the Tribunal, both the State Government and the respondent approached this Court in separate appeals. During the pendency of litigation, the EFL Act was enacted and notified. 24. Before dealing further with **Kumari Varma** 's case, I shall take note of the following provisions under the EFL Act. Long title of the EFL Act 17 WP(C) Nos.8128/2010 & 24849/2015 shows that it was intended to provide for the vesting in the Government of ecologically fragile lands in the State of Kerala and for the management of such lands with a view to maintaining ecological balance and conserving the bio-diversity. ## 25. 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 reserve forest or 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”_ The definition of “forest” in Section 2(c) is also relevant which is quoted hereunder: “(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 long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of_ 18 WP(C) Nos.8128/2010 & 24849/2015 _residential building and surroundings essential for the convenient use of such buildings.”_ 26. Section 3 of the EFL Act is the provision enacted for vesting ecologically fragile lands in the Government. It reads thus: _“_ _**Ecologically fragile lands to vest in Government** .- (1) Notwithstanding anything contained in any other law for the time being in force, or in any judgment, decree, or order of any court or tribunal or in any custom, contract or other documents, with effect from the date of commencement of this Act, the ownership and possession of all ecologically fragile lands held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumbrances, and the right title and interest of the owner or any other person thereon shall stand extinguished from the said date._ _(2) The lands vested in the Government under sub-section (1) shall be notified in the Gazette and the owner shall be informed in writing by the custodian and the notification shall be placed before the Advisory Committee constituted under Section 15 for perusal.”_ Section 4 of the EFL Act deals with power of the Government to declare by notification in the Gazette any land to be ecologically fragile land on the WP(C) Nos.8128/2010 & 24849/2015 19 recommendation of the Advisory Committee appointed for this purpose under Section 15. Owners of the lands vested by virtue of a notification under Section 4 of the EFL Act are eligible for compensation of vesting under Section 8 of the EFL Act. It is pertinent to note that no compensation will be payable in respect of lands vested in the Government under Section 3 of the EFL Act. 27. Coming back to **Kumari Varma** 's case, in paragraph 14 the following observations are made: _“It can be seen from the above that under R.2(b)(i) lands falling within the description contained thereunder become ecologically fragile lands by virtue of the operation of the law, though such an operation of law itself depends upon the existence of certain facts. On the other hand, subs.(ii) of S.2(b) envisages that any land can be declared to be as an ecologically fragile land by the Government by notification in the Gazette under S.4. Under what circumstances and in what manner such a declaration can be made need not be examined, as admittedly it is not the case of anyone of the parties before this Court that the lands in question, in these two appeals, fall under the said category. For the present it is sufficient to notice that there can be two categories or classes of lands which can be called ecologically fragile lands within the meaning of the 2003 Act.”_ 20 WP(C) Nos.8128/2010 & 24849/2015 The reason for arriving at the decision has been mentioned in paragraph ## 24. It reads thus: _“The lands in dispute in these two appeals are not lands falling within any notified “Reserved Forest” under the Kerala Forest Act; nor are they demonstrated to be “Protected Forests” under the abovementioned Act. They are excluded from the purview of the expression “private forest” under the Kerala Private Forests (Vesting and Assignment) Act, 1971 on the ground that they are lands which are principally used for cultivation of cardamom immediately before the appointed day under the abovementioned Act, i.e. 10.5.1971, though they would have otherwise satisfied the definition of “private forests” under the abovementioned Act, a finding which is confirmed by the highest Court of this country. Therefore, these lands cannot be treated as ecologically fragile lands merely because they are lying contiguous to or encircled by a reserve forest or a vested forest.”_ 28. Noticing the prominent fact that the property was a cardamom plantation even before the commencement of the Vesting Act, this Court ruled against the State Government by holding that the State prevented the parties in doing cultivation by denying possession on a wrong interpretation of the Vesting Act. On this reasoning, it was observed that the State Government cannot be permitted to take advantage of a wrong committed WP(C) Nos.8128/2010 & 24849/2015 21 by it in depriving the respondent the legal rights to cultivate the land by wrongly invoking the Vesting Act. On this basis the case was decided against the State Government. 29. Learned Special Government Pleader and the learned counsel appearing for the 1[st] respondent contended that the decision in **Kumari Varma** 's case is pending consideration in appeal before the Supreme Court. It is their further submission that the decision can be distinguished on facts, because in the case on our hand, it is admittedly a private forest, whereas the land in **Kumari Varma** 's case was a cardamom plantation before the appointed day under the Vesting Act, viz., 10.05.1971. 30. Regarding the submission by the learned Special Government Pleader that **Kumari Varma** ’s case is pending in appeal before the Supreme Court, Sri.S.Sreekumar relying on **Adbu Rahiman v. District Collector, Malappuram (2009 (4) KLT 485)** argued that the Single Judges are bound by a decision of a Division Bench even if it is stayed by the Supreme Court as it constitutes a binding precedent. The ratio in the decision reads thus: _“The learned Single Judge should not have ignored the two Division Bench decisions on the ground that in the appeal filed against one of the said decisions before the Apex Court, there was a stay against it. Even when a decision of Division Bench of this Court is stayed by the Apex Court, the_ 22 WP(C) Nos.8128/2010 & 24849/2015 _learned Single Judges of this Court are bound to follow the decision of the Division Bench, as it continues to be a binding precedent for them. The interim order of stay only relieves the concerned parties from obeying the judgment under appeal.”_ Judicial propriety therefore does not permit me to ignore the principles laid down in **Kumari Varma** ’s case. 31. Another Division Bench of this Court in **State of Kerala v. Unnikrishnan (2013 (2) KLT 420)** after considering the dictum in **Kumari Varma** ’s case took a slightly different view. Facts would show that the Custodian of ecologically fragile lands authorised under the EFL Act challenged an order passed by the Tribunal constituted under the EFL Act, whereby the Tribunal declared that the land belonging to the respondent, which was declared as ecologically fragile land under Section 3(1) of the EFL Act, is not an ecologically fragile land and therefore not vested in the Government. The land involved in the case was originally declared as a private forest under the Vesting Act. Affected party challenged the said notification before the Tribunal. Tribunal held that the land is a private forest, but found that the claimant was eligible for exemption from vesting under Section 3(3) of the Vesting Act. State preferred an appeal before this Court which was dismissed by judgment dated 04.11.1982. By the said judgment, the land in question was restored to the respondent on WP(C) Nos.8128/2010 & 24849/2015 23 12.01.2000. Subsequently, when the EFL Act came into force, the State Government published a notification in the Gazette declaring that the land in question vested with the Government as ecologically fragile land. That notification was challenged before the Tribunal constituted under the EFL Act. After trial, the Tribunal allowed the application declaring that the land was not an ecologically fragile land. The State Government seriously opposed the findings of the Tribunal before this Court. It was urged before this Court that the land in question is a private forest and since the same is bounded on three sides by vested forests and the said land predominantly supported natural vegetation, which are the necessary ingredients for bringing the land within the purview of ecologically fragile land under Section 2(b)(i) of the EFL Act, the land is vested with the State by virtue of Section 3(1) of the EFL Act. Per contra, learned counsel for the party respondent relying on **Kumari Varma** ’s case contended that the party respondent could not cultivate the land only because the authorised officials prevented him from doing so and therefore, there cannot be any presumption that the respondent did not have any intention to cultivate the land and had abandoned cultivation on the land. 32. After considering the relevant provisions in the EFL Act and noticing that three sides of the disputed property were bounded by vested forest, this Court held in paragraph 12 as follows: 24 WP(C) Nos.8128/2010 & 24849/2015 _“Apart from all that, to satisfy the third ingredient of the definition of ecologically fragile land, what is necessary is not that the land should contain natural vegetation. But what is necessary is that the land should be one which predominantly supports natural vegetation. There can be forest lands which do not support natural vegetation, which are outside the purview of the definition of 'ecologically fragile land'. Rocky lands are lands which do not support natural vegetation. In this connection, it must be noted that under the Vesting Act, for a property to be a private forest in the erstwhile Malabar District, it need not necessarily be a forest at all._ ## _xxxxxxx_ _Other forest lands would naturally support natural vegetation. In other words, if the private forest is one which lies contiguous to forest land, in which natural vegetation will grow up on its own, the same would be ecologically fragile land coming within the definition under S.2(b)(i). The fact as to whether the owner had cultivated the same or had intention to cultivate the same or was prevented from cultivating the land are irrelevant to decide whether the land predominantly supports natural vegetation. In fact the word 'predominantly' suggests that if the major part of the land supports natural vegetation, even if the other part does not,_ 25 WP(C) Nos.8128/2010 & 24849/2015 _the same would satisfy the ingredient of the definition. The very fact that the Commissioner has reported that the property comprises of various species of forest trees would prove beyond any reasonable doubt that the land in question predominantly supports natural vegetation.”_ 33. A learned Single Judge of this Court in **Kunhiraman v. Custodian of Vested Forest (2014 (4) KLT 740)** considered the above decisions. In that case a notification issued under the EFL Act was under challenge inter alia other issues. Regarding the issues raised under the EFL Act, the learned Single Judge relying on **Kumari Varma** 's case held that in the absence of a finding that the lands in question were either “reserved forests” under the Kerala Forest Act or “protected forests” under the said Act, such lands, if excluded from the purview of “private forests” under the Vesting Act, could not be treated as ecologically fragile lands merely because they were lying contiguous to or encircled by a reserve forest or a vested forest. Learned Single Judge had noticed **Unnikrishnan** 's case too. I am afraid, the learned Single Judge in **Kunhiraman** 's case did not mention any specific reason to differ from the dictum in **Unnikrishnan** 's case. Moreover, both sides submitted that the decision is pending in an intra-court appeal. 34. Yet another decision to be noticed is **Planters Forum v. State** 26 WP(C) Nos.8128/2010 & 24849/2015 **of Kerala (2015 (2) KLT 783)** . In that case, among other questions, the legislative competence of the State Government to enact EFL Act was questioned. The question raised therein pertinent to this case reads thus: _“VIII. Whether S.3(1) in so far as it overrides judgments/orders of Forest Tribunal and High Court rendered in the context of the 1971 Act are void and inoperative since authority to override the judgments is not possessed by the Legislature and whether judgments/orders of Forest Tribunal and High Court rendered in the context of the 1971 Act declaring properties of petitioners as plantation are irrelevant while considering the issue as to whether land of the petitioners are Ecologically fragile land or not?”_ Answer to the above question can be seen spread over in paragraphs 104 to 119. It was held that the judgments delivered under the Vesting Act are not binding in a proceeding under the EFL Act, but their relevancy as a piece of evidence under Section 42 of the Evidence Act, 1872 cannot be impeached. It was further held that the judgments delivered under the Vesting Act can be looked into and each case has to be decided in accordance with its own merit. 35. Having understood the legal position emerging from the aforementioned binding precedents by three Division Benches of this Court, I shall marshal the facts and apply the legal principles to the 27 WP(C) Nos.8128/2010 & 24849/2015 available set of facts. 36. As mentioned in the previous paragraphs, it cannot be disputed that the land in question was a private forest coming within the fold of MPPF Act. The discussions in Ext.R21(a) order passed by the Tribunal would show that the parties plainly admitted before it that it was a private forest even before the appointed day under the Vesting Act. Further, the exemption was granted by the Tribunal under Section 3(2) of the Vesting Act finding that the land in question was a private forest. As pointed out by the learned counsel for the 1[st] respondent, none of the party respondents or their predecessors or the estate Receiver had raised a contention before the Tribunal that at any point of time the property was under personal cultivation of the owners as required in Section 3(2) of the Vesting Act. If we apply the well settled legal position, reiterated in **Planters Forum** , that an order passed by the Tribunal in a proceeding under the Vesting Act will be relevant under Section 42 of the Evidence Act for deciding this case, it can be seen that the property in dispute was a private forest and remained to be so even on the date of commencement of the EFL Act. The petitioners' contention, based of **Kumari Varma** 's case, that by the action of the State Government they were prevented from cultivating, cannot be accepted in the established fact situation that they never ventured to cultivate the land at any point of time. 28 WP(C) Nos.8128/2010 & 24849/2015 37. My attention has been drawn to Ext.P5 erratum notification, Vol.LIII dated 25.11.2008, whereby the mistakes crept in the notification No.C4-21437/2000 dated 20.10.2000 have been clarified. It can be seen from the schedule to the notification that the property in dispute lies in two parts. One part is bounded by vested forest on three sides and vested forest is the boundary on one side of the other part. The schedule is quoted hereunder for clarity: **==> picture [435 x 359] intentionally omitted <==** **----- Start of picture text -----**<br> Boundaries<br>1 2 3 4 5 6 7 8 9 10 11 12 13<br>Shornur I 1/1A pt. 13.0090 Kulappully Vested Vested Vested<br>Pattambi Forest Forest Forest<br>Shornur II 290/1 Pt, PWD Road<br>290/2 Pt,<br>292/3 Pt,<br>293/3 Pt, Private Land Private Private Vested<br>289/2 Pt, 42.0645 Land Land Forest<br>289/3 Pt,<br>289/4 Pt,<br>298/2 Pt,<br>298/3 Pt.<br>District Taluk Range Locality Village<br> Sl.No.<br>Forest Division Sy.No with sub division North East South West<br>Extent in Hectares (approx.)<br>100 Palakkad Ottappalam Palakkad Ottappalam Anthimalankadu-Bit I<br>**----- End of picture text -----**<br> 38. On reverting back to the definitions of “ecologically fragile lands” in Section 2(b) and “forest” in Section 2(c) of the EFL Act, the WP(C) Nos.8128/2010 & 24849/2015 29 following facts could be glaringly seen. “Ecologically fragile land” means any forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserve forest or a vested forest or any other forest land owned by the Government. Such land must be predominantly supporting natural vegetation. Definition of “forest” under the EFL Act shows that it 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. 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 sites of residential building, etc., has been expressly excluded. A conjoint reading of Sections 2(b) and 2(c) of the EFL Act and the facts borne out from the records would clearly show that the land in question lies contiguous to vested forest and going by the finding in Ext.R21(a), it is a private forest predominantly supporting natural vegetation. Facts revealed from the records, therefore, unequivocally establish that the land in question squarely falls within the definition of ecologically fragile land in Section 2(b) of the EFL Act. In the light of unchallengeable facts, the principle in **Kumari Varma** 's case is factually distinguishable and therefore totally inapplicable to this case and for the same reason, the decision in **Kunhiraman** 's case also cannot be applied. I respectfully agree with the WP(C) Nos.8128/2010 & 24849/2015 30 view taken by a Division Bench of this Court in **Unnikrishnan** 's case, especially considering the similarity in facts. 39. The challenge regarding Ext.P5 notification in W.P.(C) No.24849 of 2015 is unsustainable for the aforementioned factual and legal reasons. A Division Bench of this Court, in **Planters Forum** , clearly held that the EFL Act is fully covered by Entry Nos.17A and 17B of List III and Entry Nos.18 and 42 of List II of the Constitution of India. The principles in the above decision and the facts revealed in this case clearly show that Ext.P5 notification, challenged in W.P.(C) No.24849 of 2015, was issued in exercise of the powers vested with the State Government, as the essential conditions for declaring the land as ecologically fragile land have been satisfied. Therefore, challenge against Ext.P5 is unsustainable. 40. Smt.Daisy A.Philipose appearing for the intervenor also supported the case of the 1[st] respondent and contended that the land remained a forest even prior to the Vesting Act and the petitioners have no right to take delivery of the same in a partition final decree. Having regard to the arguments advanced and the factual and legal positions discussed above, I find both the writ petitions are devoid of any merit. Remedy of the petitioners is to approach the Forest Tribunal concerned, constituted under Section 10 of the EFL Act, in accordance with the law. To this extent, I agree with the observations in Ext.P8 order in WP(C) Nos.8128/2010 & 24849/2015 31 W.P.(C) No.8128 of 2010, passed by the Sub Judge, Ottapalam. Writ petitions are dismissed accordingly. ## **A. HARIPRASAD, JUDGE.** **cks**