Kerala High Court
State Of Kerala vs Baburaj on 8 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:49536
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
MFA (FOREST) NO. 150 OF 2019
AGAINST THE ORDER DATED 17.03.2018 IN OA NO.31 OF 2008 OF
FOREST TRIBUNAL, PALAKKAD
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APPELLANTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF
KERALA, THIRUVANANTHAPURAM.
2 THE CUSTODIAN
(ECOLOGICALLY FRAGILE LANDS) AND PRINCIPAL CHIEF
CONSERVATOR OF FORESTS (EXTW), STATE OF KERALA,
THIRUVANANTHAPURAM.
BY ADVS.
SHRI.NAGARAJ NARAYANAN, SPL. GOVT. PLEADER (FOREST)
RESPONDENTS:
1 BABURAJ,
S/O. VELAPPANKUTTY, KALATHILVEEDU, MUTTIKKULANGARA,
PAUDUPPARIYARAM AMSOM, PALAKKAD TALUK, PIN-678 731.
2 PRADEEP KUMAR,
S/O. VELAPPANKUTTY, KALATHILVEEDU, MUTTIKKULANGARA,
PAUDUPPARIYARAM AMSOM, PALAKKAD TALUK, PIN-678 731.
2025:KER:49536
MFA (FOREST) NO. 150 OF 2019 -2-
3 AJITH KUMAR,
VELAPPANKUTTY, KALATHIL VEEDU MUTTIKKULANGARA,
PAUDUPPARIYARAM AMSOM, PALAKKAD TALUK, PIN-678 731.
4 JAYADEVAN,
S/O. MADHAVAN, KALATHILVEEDU, MUTTIKKULANGARA,
PAUDUPPARIYARAM AMSOM, PALAKKAD TALUK, PIN-678 731.
BY ADVS.
SHRI.KALEESWARAM RAJ
SHRI.U.BALAGANGADHARAN
SRI.VARUN C.VIJAY
SMT.A.ARUNA
KUM.THULASI K. RAJ
SMT.MAITREYI SACHIDANANDA HEGDE
THIS MFA (FOREST) HAVING COME UP FOR HEARING ON 08.07.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:49536
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
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M.F.A. (Forest) No.150 of 2019
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Dated this the 8th day of July, 2025
J U D G M E N T
Sathish Ninan, J.
The original application filed under Section 10(1)
(a) and (b) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003(herein after referred to as the "EFL Act"), seeking a declaration that the application schedule property is not an ecologically fragile land was allowed by the Tribunal. Challenging the same the State is in appeal.
2. The application schedule property has an extent of 6.28 hectares equivalent to 15.53 acres. The property is situated in two bits and are not contiguous. The property was notified under the EFL Act as per notification dated 30.11.2007 and published in the gazette dated 25.12.2007. In respect of the property there were earlier proceedings as OA Nos.1193/1974 and M.F.A. (Forest) No.150 of 2019 2025:KER:49536 -: 2 :- 1194/1974 under the Kerala Private Forest (Vesting and Assignment) Act(herein after referred to as the "Vesting Act"). The original applications were allowed by the Tribunal, holding the applicants to be entitled to the benefit of Section 3(2) of the said Act. The order was affirmed in appeal by this Court on 28.06.1984 in MFA 217/1978.
3. According to the applicants, after the culmination of the proceedings under the Vesting Act, possession of the property was restored to the applicants only in the year 2007. The State, having thus prevented the applicants from cultivating the property, cannot claim that the property has become forest within the purview of the EFL Act. The property is not an ecologically fragile land but is only a 'Paramba'. It is also the contention that one bit of the property does not lie contiguous to any vested forest and hence does not fall within the definition of "ecologically fragile land" under the EFL Act.
M.F.A. (Forest) No.150 of 2019 2025:KER:49536 -: 3 :-
4. The Tribunal held that, in spite of the order exempting the property from the purview of the Vesting Act, the possession of the property was not restored to the applicants and that the State having prevented the applicants from cultivating the property cannot be heard to say that the nature of the property has since changed into an ecologically fragile land. The court relied on the dictum laid down in State of Kerala v. Kumari Varma 2011 (1) KLT 1008. Accordingly the application was allowed.
5. We have heard Sri.Nagaraj Narayanan, the learned Special Government Pleader (Forest) and Sri.Kaleeswaram Raj, the learned counsel for the respondent.
6. The learned counsel for the appellant would argue that, though there was delay in passing formal orders restoring possession pursuant to the judgment in the MFA under the Vesting Act, physical possession of the property was always with the applicants. There was no obstruction by the department and it is the failure of the applicants to cultivate the property that M.F.A. (Forest) No.150 of 2019 2025:KER:49536 -: 4 :- resulted in change of the nature of the property as an ecologically fragile land. It is further argued that the materials on record evidence that the applicants had abandoned the property and the claim for restoration was made after a long elapse of 22 years.
7. Sri.Kaleeswaram Raj, the learned counsel for the respondent would on the other hand argue that the Department had all throughout asserted the possession of the property with them and hence the claim that the applicants were in possession has no substance. It was further argued that no plea of abandonment was urged before the Tribunal; if it was urged, the applicants would have got an opportunity to defend the same upon relevant materials. The very filing of the writ petition seeking restoration of possession shows that the applicants were pursuing restoration, it is urged.
8. We have considered the rival submissions and the materials on record.
M.F.A. (Forest) No.150 of 2019 2025:KER:49536 -: 5 :-
9. The Original Applications filed by the appellants claiming benefit of Section 3(2) of the Vesting Act was allowed by the Tribunal. MFA 217/1978, filed before this Court by the State was dismissed as per Ext.A7 judgment dated 28.06.1984. Going by the materials on record it appears that thereafter the applicants sought for restoration of possession of the property only in the year 2006. Ext.A9 is the communication dated 21.05.2007 given by the Department to the applicants in response to their request for restoration of possession. The reference in Ext.A9 is a request dated 25.07.2006 seeking restoration. There is no material to show that after the dismissal of the MFA on 28.06.1984 the applicants had sought for restoration of possession of the property till the request dated 25.07.2006. Going by the records, the applicants sought for restoration of possession only after lapse of 22 years since the orders under the Vesting Act. M.F.A. (Forest) No.150 of 2019 2025:KER:49536 -: 6 :-
10. It is brought to our notice that the State restored possession of the property only pursuant to the judgment of this Court in WP(C) No.10894/2007 filed by the applicants seeking such relief and followed by a contempt proceeding. A reading of the judgment dated 18.09.2007 in WP(C) 10894/2007 indicates that therein the State had raised a contention that the property is an ecologically fragile land and a notification is being issued under the EFL Act. Noticing the said contention this Court observed, "Even if the land is restored, if circumstances so warrant, the respondents are still free to issue a notification at any point of time" . We have noticed it only to bear in mind that even at that point of time the State had a case that the property is an EFL land.
11. Now the question is, whether the State having not restored possession of the property pursuant to the judgment in MFA 217/1978 under the Vesting Act, is entitled to contend that the nature of the property changed and has become an ecologically fragile land as M.F.A. (Forest) No.150 of 2019 2025:KER:49536 -: 7 :- on the relevant date. In Kumari Varma's case (supra) this Court held that the State cannot take advantage of its own act in having obstructed the applicants from cultivating the property and thereafter claim that the nature of the property has changed into an EFL land.
12. At the first blush it would appear that the principle laid down in Kumari Varma's case (supra) squarely applies to the facts of the present case. However, it is pertinent to note that, going by the materials on record, no steps were taken by the applicants since the year 1984 till 2006, ie: for a period of 22 years, to get restoration of possession of the property. If the applicants never sought for restoration of possession of property for a long period of 22 years and in between the nature of the property changed and as on the relevant date it partook the nature of an EFL land, the applicants were equally at fault. Even in Kumari Varma's case (supra) the court noticed that the principle as laid down therein may not apply in the case of abandonment of the M.F.A. (Forest) No.150 of 2019 2025:KER:49536 -: 8 :- property by the applicants. Therefore, essentially the question is whether there was an abandonment. But, as rightly contended by the learned counsel, this contention was not urged before the Tribunal and the applicants never had an opportunity to establish otherwise.
13. In M.C.Mehta v. Kamal Nath [1997 (1) SCC 388] the Apex Court held that the public at large is a beneficiary of the seashore, running water, air, forest and ecologically fragile lands, and that the State is its trustee which is under a legal duty to protect the natural resources. Therein Apex Court reiterated the "public trust doctrine". Bearing the above in mind, when the seeming inaction for a long period of 22 years to regain possession stares, we feel that this is a fit case where an issue on abandonment is to be raised and tried. Such a course is necessary for a right decision on the merits of the Original Application. M.F.A. (Forest) No.150 of 2019 2025:KER:49536 -: 9 :-
14. The argument of the learned Government Pleader that physical possession of the property had remained with the applicants and that only a formal order of restoration remained, cannot be countenanced on the face of the assertion of the State in their pleadings that they were holding possession of the property. The said argument is only to be negatived and we do so.
15. The appellant has a contention that the boundaries of the bit 1 property have not been correctly identified by the Commissioner. At one boundary is a portion of vested forest. This was omitted to be noted by the Commissioner, it is claimed. The Department had filed objections to the commission report raising such a contention. When the Commissioner was examined he deposed that the report does not reveal as to how the boundaries were ascertained. His deposition reads thus:-
"2 Bit-കളുടടെയയും അതതിർതതി എങ്ങടനെ മനെസതിലലാകതി എനന്ന് കമതിഷൻ റതിപപലാർടന്ന് പ്രകലാരയും കലാണതില."
M.F.A. (Forest) No.150 of 2019 2025:KER:49536 -: 10 :- Since as noted supra we propose to remit the matter back to the Tribunal, we are of the opinion that these issues could be permitted to be agitated leaving liberty to both sides to amend their pleadings and to adduce further evidence.
In the result, the appeal is allowed. The order impugned is set aside. The matter is remanded back to the Tribunal for disposal afresh in the light of the observations in this judgment. It is clarified that, except for having negatived the appellants contention that physical possession was all throughout with the applicants, we have not expressed either way on the other rival contentions.
Parties to appear before the Tribunal on 28.07.2025.
Sd/-
SATHISH NINAN JUDGE Sd/-
P. KRISHNA KUMAR
JUDGE
kns/- //True Copy// P.S. To Judge
APPENDIX OF MFA (FOREST) 150/2019
PETITIONER EXHIBITS
EXHIBIT P1 REPORT ON HE BIODIVERSITY AND FLORISTIC
EXPLORATION OF DISPUTED PROPERTY SUBMITTED BY POST GRADUATE AND RESEARCH DEPARTMENT OF BOTANY GOVT. VICTORIA COLLEGE, PALAKKAD.
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