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.
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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:
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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
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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.
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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
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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.
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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.
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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
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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
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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.
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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."
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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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