Kerala High Court
Government Of Kerala vs K.N.Venkateswaran on 27 February, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946
MFA (FOREST) NO. 29 OF 2017
AGAINST THE ORDER DATED 31.10.2016 IN OA NO.3 OF 2013 OF I
ADDITIONAL DISTRICT COURT, KOZHIKODE
APPELLANTS/RESPONDENTS:
1 GOVERNMENT OF KERALA
REP. BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
KERALA, THIRUVANANTHAPURAM.
2 THE CUSTODIAN
(ECOLOGICALLY FRAGILE LANDS) VESTED IN
GOVERNMENT(THE PRINCIPAL CHIEF CONSERVATOR OF
FORESTS),FOREST HEAD QUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM.
BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. (FOREST)
RESPONDENTS/APPLICANTS:
1 K.N.VENKATESWARAN
S/O.LATE K.V.NARAYANAN IYER,
T.C.23/805,'SIVAPRASAD', VALIYASALA
STREET,THIRUVANANTHAPURAM.
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M.F.A.(Forest) No.29 of 2017
-: 2 :-
2 UNNI FRANCIZ
S/O.T.K.FRANCIS, THALAPPILLIL HOUSE,B STREET,
MANANTODDY, WAYANAD DISTRICT.670 645.
3 TONNY FRANCIS
S/O.T.K.FRANCIS, THALAPPILLIL HOUSE,B STREET,
MANANTODDY, WAYANAD DISTRICT.670 645.
BY ADV SRI.P.HARIDAS
THIS MFA (FOREST) HAVING COME UP FOR HEARING ON
27.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ.
= = = = = = = = = = = = = = = = = =
M.F.A. (Forest) No.29 of 2017
= = = = = = = = = = = = = = = = = =
Dated this the 27th day of February, 2025
JUDGMENT
Sathish Ninan, J.
The State is in appeal challenging the order of the
Forest Tribunal, declaring the application schedule
property as, not an 'ecologically fragile land' under
the Kerala Forests (Vesting and Management of
Ecologically Fragile Lands) Act, 2003 (hereinafter
referred to as, "the EFL Act"), and for setting aside
the EFL notification.
2. The application schedule property has an
extent of 10.36 acres. It is situated in Re.Sy.Nos.578,
579, 588 and 590 of Vellamunda Village. In an earlier
proceeding, the property was exempted from vesting under
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the Kerala Private Forests (Vesting and Assignment) Act,
1971 (hereinafter referred to as "the Vesting Act"). As
on the appointed day under the EFL Act i.e., 02.06.2000,
the property was planted with coffee, pepper, vanilla,
etc., and hence, the property is not an ecologically
fragile land, is the claim.
3. The State filed counter contending that the
application schedule property is a thickly wooded area,
with abundant growth of various species of forest trees.
The contention that the property was planted with
coffee, pepper, vanilla, etc., as on the date of
appointed day, was denied. It was contended that the
property predominantly supports natural vegetation and
is an ecologically fragile land.
4. The Tribunal held:
i) The property, having been exempted from vesting under the
Vesting Act, cannot be notified under the EFL Act.
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ii) The property contained coffee, pepper, murikku, etc., and
hence is not an ecologically fragile land.
iii) The notification was not placed before the Advisory
Committee as required under Section 3 (2) of the Kerala Forest
(Vesting and Management of Ecologically Fragile Lands) Act, 2003
(EFL Act) and hence, the notification is liable to be set aside.
5. We have heard Shri.Nagaraj Narayanan, the
learned Special Government Pleader (Forests) on behalf
of the appellant-State, and Shri.P.Haridas, the learned
counsel for the respondents-applicants.
6. We proceed to determine the correctness of the
findings of the Tribunal.
7. To hold that the property having been once
exempted under the Vesting Act cannot be notified under
the EFL Act, the Tribunal relied on the judgments of
this Court in State of Kerala v. Kumari Varma [2011 (1) KHC 502];
Kunhiraman P.V. And others v. Custodian of Vested Forest and others [2014 (3) KHC
782]; and Planters' Forum v. State of Kerala [2015 (2) KLT 783] . At the very
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outset, it is to be noticed that the judgment in
Kunhiraman's case was overruled in Custodian Vested Forest Palakkad &
ors. v. Kunhiraman P.V. & ors. [2018 (3) KHC 768] and is hence not good
law. The judgments in Kumari Varma's case and Planters' Forum
(supra) did not lay down the proposition as observed by
the Tribunal.
8. Exemption from vesting, under Section 3 (2) of
the Vesting Act, is with regard to the private forests
held by an owner under his personal cultivation as on
the appointed day under the Vesting Act, namely,
10.05.1971. Under the EFL Act, all ecologically fragile
lands as on the appointed day thereunder namely,
02.06.2000, shall vest in the Government. Ecologically
fragile lands are defined under Section 2 (b) of the EFL
Act thus;
"(b) "ecologically fragile lands" means,-
(i) any Forest land or any portion thereof held by any person and
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lying contiguous to or encircled by a reserved forest of a vested
forest or any other forest land owned by the Government and
predominantly supporting natural vegetation; and
(ii) any land declared to be an ecologically fragile land by the
Government by notification in the official Gazette under S.4;"
As per Section 2 (b)(i), the ingredients are; 1) it must
be a forest land; 2) it must lie contiguous to or be
encircled by a reserved forest/vested forest/ other
forest land owned by the Government; and, 3) the land
must predominantly support natural vegetation. The term
'forest' has been defined under Section 2 (c) thus:
"(c) "forest" means any land principally covered with naturally
grown trees and undergrowth and includes any forest statutorily
recognised and declared as reserved forest, protected forest or
otherwise but does not include any land which is used principally
for the cultivation of crops of long duration such as tea, coffee,
rubber, pepper, cardamom, coconut, arecanut or cashew or any
other sites of residential building and surroundings essential for the
convenient use of such buildings."
Lands principally covered with naturally grown trees and
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undergrowth are forests within the definition. However,
lands principally cultivated with long-duration crops
like tea, coffee, rubber, pepper, cardamom, coconut,
arecanut or cashew, sites of residential building and
its surroundings are excluded from the definition. To
consider whether a land is an ecologically fragile land
under the EFL Act or not, what is relevant is, whether
it satisfies the definition of ecologically fragile land
as on the appointed day, namely, 02.06.2000. Merely
because a land was exempted from vesting under the
Vesting Act, it being under cultivation as on the
appointed day thereunder namely, 10.05.1971, it is not
necessary that such cultivation continued even as on
02.06.2000, which is the appointed day under the EFL
Act. So also, the land must be principally used for such
cultivation. Unless such conditions are satisfied, the
land will vest with the Government as an ecologically
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fragile land. Neither Kumari Varma's case nor Planters' Forum's case
(supra) held otherwise.
9. In Kumari Varma's case, though the subject lands were
declared to be exempted under the Vesting Act, the State
did not restore the land to the owners till the EFL Act
came into force. Under such circumstances, this Court
held that, after depriving the owner of the possession
and right to cultivate, the State cannot rely on the
presence of natural tree growth and undergrowth, and
contend that the land satisfies the definition of
"forest" under the EFL Act. In Planters Forum (supra), it was
held that the issue whether the land is used for
cultivation of long-standing crops is a fact to be
enquired into on a case-to-case basis.
10. In State of Kerala v. Kalathil Ambady (2022 (6) KLT 612) , a
Division Bench of this Court held that exemption from
vesting under the Vesting Act would not necessarily
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absolve vesting of the land under the EFL Act, though it
would be a relevant piece of evidence.
11. In Government of Kerala and another v. Jacob Thomas Arikupuram
and others [2019 (4) KHC 625], the Division Bench of this Court
held that the EFL Act is an independent enactment, not
inter-linked with the Vesting Act, the legislative
intent being quite different. To consider whether a land
is an ecologically fragile land or not, what is relevant
is its status and qualification as on 02.06.2000, which
is the appointed date under the EFL Act. It was held,
"previous history of the land will be of no use to know
whether the EFL Act applied to the land w.e.f. the
appointed date or not". It was held that the burden of
proving that a particular land is not an ecologically
fragile land is squarely on the claimant.
12. Therefore, the finding of the Tribunal that the
property in question could not be notified as
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ecologically fragile land since it was exempted from
vesting under the Vesting Act is liable to be set aside,
and we do so.
13. To hold that the application schedule property
is not an ecologically fragile land, the Tribunal noted
that the property contains coffee plants, arecanut
plants, coconut plants, lemon grass, etc., of fruit
bearing age. The Tribunal relied on Ext.C1 Commission
report and Ext.C3 report of expert. As noticed supra, it
must be proved that the land was principally cultivated
with such crops as on the appointed day.
14. In Ammukunhi Amma & ors. V. State of Kerala & ors., [2016 (3) KHC
52], this Court held that the words "principally
cultivated" would mean cultivation of at least half
(50%)of the usual number of plants per acre, of the
respective species. This view was earlier expressed by
this Court in M.F.A. Nos.48/1981, 291/1981 and 78/1983
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also. In State of Kerala & ors. V. N. Rajagopal [2018 (5) KHC 128] , this
Court, while considering the question whether "the land
is principally cultivated with crops of long duration",
took note of the fact that, if intensive cultivation of
coffee is resorted to, 64 plants could be planted in an
area of 10 cents. The learned counsel on either side
agree, that the number would depend on the variety of
coffee being planted. Anyhow, mere sparse cultivation
does not exclude the land from the purview of the EFL
Act. So also, such cultivation must have been existing
as on the appointed day.
15. A reading of Ext.C1 Commission report and
Ext.C3 report of the expert reveals that they reported
the existence of more than 100 coffee plants and a few
other trees in the entire extent of 10.36 acres. So
also, their age has not been ascertained. Whether the
land is principally cultivated has also not been
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ascertained.
16. If, as on the appointed day, the property was
principally cultivated with crops of long duration,
necessarily, there would be evidence to substantiate the
same. However, no such materials are available on
record. In Ammukunhi Amma (supra), this Court held that to
prove that the land was "principally being cultivated as
on the relevant date", the applicants could produce
records relating to maintenance of property, regarding
engaging of labourers, payment of wages, purchase of
manures, pesticides, etc., and records relating to
transportation expenses, sale of crops, satisfaction of
taxes under various heads including agricultural tax,
etc., during the relevant period. A mere bald submission
without proof was held to be insufficient.
17. The Tribunal has not entered a positive finding
that the property is principally cultivated with long
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duration crops and that such cultivation was in
existence as on the appointed day. Without entering such
a finding, it could not have been held that the
application schedule property is not a forest and an
ecologically fragile land under the EFL Act. The finding
of the Tribunal that the property is not an ecologically
fragile land under the EFL Act cannot be sustained. It
is liable to be set aside, and we do so.
18. Evidently, the Tribunal has not considered the
relevant aspects. We are of the opinion that an
opportunity could be granted to the applicants to
substantiate their claim that, as on the appointed day
the application schedule property was principally
cultivated with crops of long duration, like coffee and
pepper.
19. The learned counsel for the applicants would
urge a further contention that, the definition of
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'forest' under the EFL Act excludes sites of residential
buildings and the surroundings necessary for its
convenient use. The Commissioner noted the existence of
a pond and a residential building. The existence of a
building having been proved, at any rate, the site of
such building with the surrounding area essential for
its convenient use, is liable to be excluded, it is
argued. Here also, as was indicated earlier, the age of
the building has not been brought out in evidence. It is
the position obtaining as on the appointed day, which is
relevant. The applicants could be given opportunity to
adduce evidence on the said aspect also.
20. Before this Court, the applicants filed
applications seeking leave to amend the Original
Application and to adduce additional evidence to the
effect that the crops/trees in the property were
destroyed in the year by Forest officials, setting it on
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fire. We have dismissed the applications as per a
separate order passed on this day. It is clarified that
the same is not liable to be re-agitated before the
Tribunal after the remand.
21. The next contention is with regard to the non-
compliance with Section 3(2) of the Act, for failure to
place the EFL notification before the Advisory
Committee. It is not disputed that the vesting of
ecologically fragile land in the Government under
Section 3 is automatic and not dependent on the
notification and it being placed before the Advisory
Committee. Vesting under Section 3 is not dependent on
the same, but is automatic. There could be erratum
notifications including or excluding properties. In
P.Murukankutty v. Amarnath Shetty, 2007 (1) KHC 29 , it was held that no
notification is necessary for vesting under Section 3 of
the EFL Act and that the vesting is automatic if the
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land qualifies the requirements under the EFL Act.[See
also: Planters Forum (supra) and Prime Land Holdings Pvt.Ltd. v. Govt. of
Kerala 2023 (2) KHC 30]. Therefore, the failure to place the
notification before the Advisory Committee is not fatal
and does not invalidate the notification. The finding to
the contrary entered by the Tribunal is liable to be set
aside and we do so.
22. Incidentally, it is noticed that, even as per
the description of the property in the title deed of the
applicants and also in the schedule description to the
Original Application, the eastern, western and northern
boundaries are, vested forests. Therefore, what remains
to be considered is only, whether the Original
Application scheduled property is excluded from the
definition of 'forest' under the EFL Act.
23. Resultantly, the appeal is allowed. The order
impugned is set aside. The matter is remanded back to
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the Tribunal for fresh disposal after affording
opportunity to both sides to adduce further evidence.
Parties to appear before the Tribunal on
13.03.2025.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
yd
