Kerala High Court
State Of Kerala vs N.V.Vaidyanathan on 6 March, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
2025:KER:19615
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946
MFA (FOREST) NO. 128 OF 2019
AGAINST THE ORDER DATED 15.05.2018 IN OA NO.8 OF 2014 OF THE
KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE
LANDS) TRIBUNAL, PALAKKAD
APPELLANTS/RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY,
(FOREST AND WILDLIFE), THIRUVANANTHAPURAM
2 THE CONSERVATOR AND CUSTODIAN OF ECOLOGICALLY
FRAGILE LAND VAZHUTHAKKAD, THIRUVANANTHAPURAM
BY ADVS.
SRI.NAGARAJ NARAYANAN - SPL. G.P. FOR FOREST
RESPONDENTS/APPLICANTS:
1 N.V.VAIDYANATHAN, S/O. VENKITESWARA LYER,
NELLISSERY VILLAGE, VADAKKANTHARA POST,
PALAKKAD - 678 012
2 N.V. SIVARAMAN, S/O. VENKITESWARA IYER,
NELLISSERY VILLAGE, VADAKKANTHARA POST,
PALAKKAD - 678 012
BY ADVS.
SRI.P.R.VENKATESH
SRI.G.KEERTHIVAS
THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON
06.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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2
CR
JUDGMENT
Devan Ramachandran, J.
The State of Kerala and the Conservator and Custodian of
Ecologically Fragile Lands are in appeal, questioning the Final
Order of the 'Court of the Kerala Forest (Vesting and Management
of Ecologically Fragile Lands) Tribunal', Palakkad, (hereinafter
referred to as 'the Tribunal' for short), in Original Application
No.8/2014.
2. Through the impugned order, the learned Tribunal has
allowed the Original Application filed by the respondents herein,
thus declaring that the application schedule property - extending
to 11.018 hectares comprised of in Resurvey No.791/2, 795, 797/2,
793/D2, d7, 793/3 and 797/9 in Pudussery Village - is not an
'Ecologically Fragile Land'.
3. The genesis of the application made by the respondents
is in Ext.B2 letter received by them from the Office of the
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Divisional Forest Officer, Palakkad (DFO), dated 20.06.2008,
informing them that the application schedule property is an
'Ecologically Fragile Land' (EFL) and hence, vested with the
Government. They, thereupon, filed the above said Application,
seeking a declaration, as has now been allowed, on the ground,
inter alia, that the property in question is a 'Forest', manifest by
the fact that it was, in the 1970's, proceeded against under the
provisions of the Kerala Private Forests (Vesting and Assignment)
Act, 1971, which culiminated in Ext.A2 order of the learned Forest
Tribunal, Palakkad - issued common in four Original Applications,
namely, O.A.524/1976, 525/1976, 534/1976 and 535/1976 -
declaring it to be exempted, finding that it does not concede to
any of the characteristics of a 'Private Forest'.
4. The respondents allege that, even though they were
thus entitled to be restored the land on the basis of the
declarations in Ext.A2 order, the Forest Department refused to do
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so illegally; but then maliciously issued Ext.B2 letter to them,
saying that it construes to be an 'Ecologically Fragile Land'. They
contend that the actions of the Forest Tribunal in holding the
property to be 'EFL' is mendacious, solely being an attempt to
circumvent Ext.A2 order; as also Ext.A4 judgment, subsequently
obtained from this Court in WP(C)No.2996/2013 on 20.03.2014 -
whereby, they were directed to restore the property within a
period of six months.
5. In response to the Original Application, a written
Statement was filed by the appellants, wherein, in paragraph 4 of
it, the following are averred:
4. The department was taking steps to restore the
area in the above OA in view of Government Order
dated 26.09.1989. Before effecting restoration of the
land, we have to follow the administrative formalities
like surveying, fixation of boundaries, preparation of
sketch, obtaining approval and formal restoration orders
from Government, Publication of Section 5 notification
under Kerala Preservation of Trees Act, 1986 etc. were to
be fulfilled. In the meantime, the Kerala Forest (Vesting
and Management of Ecologically Fragile Land) Ordinance
was promulgated by the Government. Since the land in
question lies contiguous to vested forest, supports natural
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vegetation with predominant tree species like Kara
Veppu, Pala, Pullani, Pullamarathu etc., the same
satisfies the characteristics of an ecologically fragile land.
The property forms a part of Mayappalam Vested Forest
which is lying contiguous with other forests and VFC
item 219. The area is undisturbed and hence keeping it
as such will be advantageous for the insitu Conservation
of eco system and natural habitat. It is inhabited by wild
mammals and also venomous reptiles and endangered
birds like peacock. Not only that, this area is a treasure
of medicinal plants like Kurunthotty, Dhandappala etc.
Source of ground water, few north flowing and one west
flowing streams drain in the reservoir at foothills. Open
scrub jungle with igneous rocks outcrops, basins of water
source and supporting necessary life forms qualifies the
land to be notified as EFL. As such, the land in question
could not be restored. As such, the land is proposed to
be notified as EFL. The Custodian and the Government
have to take subsequent steps to notify the land as EFL.
The property in question was inspected and identified as
liable to be notified as EFL and accordingly, was
recommended to be notified under the EFL Act. It is
submitted that the land has been notified as Ecologically
Fragile Land under the provisions of the Kerala Forest
(Vesting and Management of Ecologically Fragile Lands)
Ordinance, 2000 (Replaced later by the Kerala Forest
(Vesting and Management of Ecologically Fragile Lands)
Act, 2003 as per Notification No. EFL10-311/2013 dated
26.10.2013 of Addl. Principal Chief Conservator of
Forests (Gazette No. 48 dated 03.12.2013, item No. 31)
and is under the absolute custody of the Forest
Department.
6. The learned Tribunal allowed the matter to trial; and
the respondents/applicants produced Exts.A1 to A5 documents as
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part of their evidence; while RW1 - a Forest Range Officer, was
examined on the part of the appellants and Exts.B1 to B2 marked
on their side. An Advocate Commissioner was appointed by the
learned Tribunal on the application of the respondents and her
Report, dated 23.05.2016, is available as Ext.C1.
7. Pertinently, while deposing as RW1, the Forest Range
Officer testified thus, in his proof affidavit:
The department was taking steps to restore the area
in the above OA in view of Government Order dated
26.09.1989. Before effecting restoration of the land, we
have to follow the administrative formalities like
surveying, fixation of boundaries, preparation of sketch,
obtaining approval and formal restoration orders from
Government, Publication of Section 5 notification under
Kerala Preservation of Trees Act, 1986 etc. were to be
fulfilled. In the meantime, the Government promulgated
the Kerala Forest (Vesting and Management of Ecologically
Fragile Land) Ordinance. Since the land in question lies
contiguous to vested forest, supports natural vegetation
with predominant tree species like Teak, Irul,
Pullamarathu, Manjap-paavatta, Kara, Veppu, Pala, Otuku,
Pullani, Edampiri, valampiri etc., the same satisfies the
characteristics of an ecologically fragile land. The property
forms part of Mayappalam Vested Forest, VFC item 219,
which is lying contiguous with other forests. The area is
undisturbed and hence keeping it as such will be
advantageous for the insitu Conservation of eco system
and natural habitat. It is inhabited by wild mammals and
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also venomous reptiles and endangered birds. Not only
that, this area is a treasure of medicinal plants like
Kurunthotty, Dhandappala, orila, moovila, Edampiri,
Valampiri etc. Source of ground water, few north flowing
and one west flowing streams drain in the reservoir at
foothills. Open scrub jungle with igneous rocks outcrops,
basins of water source and supporting necessary life forms
qualifies the land to be notified as EFL. As such, the land
in question could not be restored. As such, the land is
proposed to be notified as EFL. The Custodian and the
Government have to take subsequent steps to notify the
land as EFL. The property in question was inspected and
identified as liable to be notified as EFL and accordingly,
was recommended to be notified under the EFL Act. It is
submitted that the land has been notified as Ecologically
Fragile Land under the provisions of the Kerala Forest
(Vesting and Management of Ecologically Fragile Lands)
Ordinance, 2000 (Replaced later by the Kerala Forest
(Vesting and Management of Ecologically Fragile Lands)
Act, 2003 as per Notification No. EFL10-311/2013 dated
26.10.2013 of Addl. Principal Chief Conservator of Forests
(Gazette No. 48 dated 03.12.2013, item No. 31) and is
under the absolute custody and control of the Forest
Department. The copy of the EFL notification is already
produced before this court and that may be marked as
Exhibit B-1.
8. In his cross examination, the Forest Range Officer
asserted that there were certain naturally grown trees in the
property, along with undergrowth and shrubs; and that the officers
concerned had pointed out these to the learned Commissioner also.
He conceded that the Report of the Commissioner, namely Ext.C1,
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does not, however, contain any such observation; to which, he
feigned ignorance and then admitted that there are schools and
private properties on certain boundaries of the property in
question. A specific question was put to him whether there were
animals in the property, as asserted by him in his proof affidavit,
to which also he conceded that the Report does not say so, but
contended that this was incorrect.
9. We have examined the impugned order of the learned
Tribunal and have evaluated it on the touchstone of various
materials and evidence available on record.
10. It is beyond contest that 'Ecologically Fragile Land' has
been defined under Section 2(b) of the Kerala Forest (Vesting and
Management of Ecologically Fragile Lands) Act, 2003 (hereinafter
referred to as 'the Act' for short), as under:
(i) any Forest land or any portion thereof held by
any person and lying contiguous to or encircled by a
reserved forest or a vested forest or any other forest
land owned by the Government and predominantly
supporting natural vegetation; and
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(ii) any land declared to be an ecologically fragile
land by the Government by notification in the official
Gazette under S.4;
11. It is also expressly conceded by Sri.Nagaraj Narayanan
- learned Special Government Pleader appearing on behalf of the
appellants, that it is only a 'Forest', or any portion thereof, held
by a person, which can come within the definitional sweep of
'Ecologically Fragile Land'; but contended that, edificed on the
evidence on record, it is luculently established that the application
scheduled property is one such. For this, he relied upon the
definition of 'Forest', as available in Section 2(c) of the 'Act', to
argue that, even the Report of the learned Advocate Commissioner
would establish that the application schedule property was
principally covered with naturally grown trees and undergrowth;
and predicated that, hence, the findings of the learned Tribunal
are in error.
12. However, in refutation, Sri.P.R.Venkatesh - learned
counsel for the respondents/applicants before the learned Tribunal,
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pointed out that, the learned Commissioner has, in Ext.C1 report,
noticed the nature and characteristics of the property as under:
2. Advocate Commissioner may record the
predominance of natural vegetation in the disputed
property such as Irul. Chadachi, dantappala,
Palakapyyyani, Kana Manjappavatta, aaval Annakkara,
Sindream, Paanal, Kurunthorti ete. T Commissioner may
also record abundance of natural tree growth with
approximate age and status of regeneration which exist
as primers, seedlings, poles, along with climbers and
lichen etc.
ഹർജി പട്ടിക വഹകളിൽ എൻ്റെ സന്ദർശന
സമയം മഞ്ഞപാവട്ട, കമ്മ്യൂണിസ്റ്റ് പച്ച, വേപ്പിൻതൈ,
അയങ്കോലം, തുമ്പിൾ, കരിമ്പന തേക്കിൻ ചെടികൾ.
കണികൊന്ന, ഒടുക്. ചടച്ചി, ദന്തപാല തുടങ്ങിയ പല വിധ
മരങ്ങളുടെ കുറ്റിചെടികൾ എൻറെ സന്ദർശന സമയം
കാണുവാൻ സാധിച്ചു. ആയതിന് സുമാർ 4 മുതൽ 5 അടി
ഉയരം ഉള്ളതായി കാണപ്പെട്ടു. 2-ാം നമ്പർ വഹകളിൽ
കരിമ്പന, മഞ്ഞപാവ തൈ എന്നിവയുടെ കുറ്റിചെടികൾ
കാണുവാൻ സാധിച്ചു. ആയതിന് സുമാർ 3 അടി മുതൽ 4
അടിവരെയുള്ള പൊക്കമാണുള്ളത്.
3. Whether the land in question is lying
contiguous to a vested forest or any other forest land
owned by the Government?
ഹർജി പട്ടിക വഹകളുടെ തെക്കുഭാഗവും,
പടിഞ്ഞാറ് കുറച്ചുഭാ ഗവും മായമ്പള്ളം ഫോറസ്റ്റിൻ്റെ
തുടർച്ചയായി വരുന്ന ഗവൺമെൻറ് ഫോറസ്റ്റ്
വഹകളാണ്. ടി വഹകളും, ഹർജി പട്ടിക വഹകളും
വേർതിരി ക്കുന്നതിനായി ജണ്ടകൾ ഉള്ളതായി എൻ്റെ
സന്ദർശന സമയം കാണു വാൻ സാധിച്ചു. 2-ാം നമ്പർ
വഹകളുടെ നാലു ഭാഗവും ഫോറസ്റ്റ് വഹ കളുമായി
യാതൊരു ബന്ധവും ഇല്ലാത്ത വഹകളാണ്.
4. Advocate Commissioner may record the
predominance of natural water sources in the OA
schedule property, where the wild animals visit to drink
water.
ഹർജി പട്ടിക വഹകളുടെ പടിഞ്ഞാറു സുമാർ
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ഏക്രയോളം വരുന്ന ജലസ്രോതസ്സ് (കുളം) ഉളളതായി
എന്റെ സന്ദർശന സമയം കാണപ്പെട്ടു. ആയതിൽ എൻ്റെ
സന്ദർശന സമയം വന്യമൃഗങ്ങൾ വെള്ളം
കുടിക്കുന്നതിനായി സന്ദർശിക്കാറുള്ളതായിട്ടൊന്നും
കാണു വാൻ സാധിച്ചിട്ടില്ലാത്തതാണ്.
6. Advocate Commissioner may please be noted
the percentage of natural vegetation in the land.
ഹർജി പട്ടിക 1-ാം നമ്പർ വഹകളുടെ 70% വും 4
മുതൽ 5 അടി ഉയരത്തിൽ പലവിധ മരത്തിൻ്റെ കുറ്റി
ചെടികൾ ഉള്ളതായും, ബാക്കി വെറുതെ കിടക്കുന്ന
ഭൂമിയുമായിട്ടാണ് എൻ്റെ സന്ദർശന സമയം കാണു
വാൻ സാധിച്ചത്. ടി വഹകളിൽ സുമാർ 30 സെൻ്റോളം
സ്ഥലം പാറ സ്ഥലമായി കിടക്കുന്നതായും കാണുവാൻ
സാധിച്ചു. 2-ാം നമ്പർ വഹകളിൽ 30% കുറ്റി ചെടികൾ
ഉള്ളതായും ബാക്കി തരിശായി കിടക്കുന്ന തായും എന്റെ
സന്ദർശന സമയം കാണുവാൻ സാധിച്ചു.
13. Sri.P.R.Venkatesh contended that, since even the
appellants do not have any case against the above findings - at
least without any evidence being led by them to such effect
through RW1 - the application scheduled property cannot be
construed, by any stretch of imagination, to be a 'Forest', or a
portion thereof, held by his clients. He argued that, on this short
ground alone, the learned Tribunal is irreproachable, qua its
findings in the impugned order.
14. There is sure force in the afore submissions of
Sri.P.R.Venkatesh because, it is the specific case of the appellants,
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in their written statement before the learned Tribunal, that the
application schedule property is supporting natural vegetation, with
predominant tree species like 'Kara', 'Veppu', 'Pala', 'Pullani',
'Pula Marathu' etc.; and further that it is inhabited by wild
mammals, as also venomous reptiles and endangered species like
peacock. They further assert that the property is a 'treasure of
medicinal plants like 'Kurunthotty', 'Dhandappala' etc; with good
source of ground water, 'few north flowing and one west flowing
streams along with open scrub jungle with igneous rocks,
outcrops, basins of water source and supporting necessary life
forms' (sic). They maintain that, all this would qualify the land to
be a 'Forest', as defined under Section 2(c) of the 'Act'; and hence
that the learned Tribunals view is in error.
15. Interestingly, the witness on the side of the appellants,
namely RW1, as said above, reiterated in his proof affidavit what
has been averred in the written statement; but adding a few more
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tree species like 'Teak', 'Irul', 'Otukku', 'Edampiri' and
'Valampiri'. He affirmed the other averments in the written
statement relating to the wild mammals, venomous reptiles and
endangered birds; and, while speaking about the area being a
'treasure trove of medicinal plants' (sic), he added 'Orila',
'Moovila', 'Edampiri' and 'Valampiri', along with the two species
that have been specifically mentioned in the written statement.
However, when he was cross-examined, he unequivocally conceded
that Ext.C1 Report does not support any of the assertions made by
the appellants and again feigned ignorance why it was so.
16. We, therefore, asked Sri.Nagaraj Narayanan whether the
appellants had filed objections to Ext.C1, to which, he answered to
the affirmative; and we have gone through the same, which is on
file. As perspicuous therefrom, apart from stating that the learned
Commissioner was wrong in not recording the presence of other
trees, undergrowth and natural growth, it confirms that Ext.C1
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report is otherwise in order.
17. This is relevant because, if the appellants had found
Ext.C1 report to be inaccurate, nothing prevented them from
seeking the same to be remitted to the learned Advocate
Commissioner; or even for it to be set aside, for a fresh report.
The admitted factum of this not having been even attempted, can
only lead to the inevitable conclusion that the assertions in the
objections were only an afterthought. This is apodictic since the
appellants did not even seek to examine the learned Advocate
Commissioner.
18. Sri.Nagaraj Narayanan, nevertheless, contended that,
Ext.C1 Report would establish his client's case, since even the
species noticed therein, namely 'Manjappaavatta', 'Veppin thai',
'Ayyankolam', 'Thumpil', 'Karimpana', 'Teak plants', 'Kanikonna',
'Odukku' and 'Chadachi' are all naturally growing trees in forest.
19. Even when we hear Sri.Nagaraj Narayanan as above,
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there is one specific aspect which he does not controvert, namely
that the Report of the learned Commissioner states that, on
16.05.2016 - the date on which it was submitted - the height of
the vegetation in the property in question was a mere 3 or 4 feet;
and that of the trees on it were not more than 4 or 5 feet. This is
crucially relevant because, 'Forest' is defined under the 'Act' as
below:
Section 2(c):
"forest" means any land principally covered
with naturally grown trees and undergrowth and
includes any forest statutorily recognized 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 buildings
and surroundings essential for the convenient use of
such buildings.
20. When this is so, we are enjoined to decide if the
learned Tribunal has erred in concluding the property to be not a
'Forest', based on the evidence available.
21. In this context, we remind ourselves the well settled
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position of law, that the burden to prove a land to be not a
'Forest' as per the 'Act' is on the applicant. (See Government of
Kerala and Another v Jacob Thomas Arikupuram and Others [2019
(4) KHC 625].
22. That said, as unmistakable from the definitions above
extracted and the declaration made by this Court in Narayana Bhat
v. State of Kerala [2018(1) KLT 34], in order for the 'Act' to
apply, the first ingredient to be established is that the land is a
'Forest'; and hence that if the applicant proves otherwise, nothing
else is required to be further proved or considered.
23. Add to the above, it also has to be established that the
property was a 'Forest' as on the date on which the 'Act' came
into force, namely 02.06.2000.
24. To discharge the burden on them, the respondents led
evidence and produced Exts.A1 to A5 documents. Though no oral
evidence was offered on their side, they moved the learned
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Tribunal for the appointment of an Advocate Commissioner, whose
report is available as Ext.C1. The inspection of the property as
evident from Ext.C1, was done by the Advocate Commissioner on
11.12.2015 and she found - as said earlier - that the vegetation
in the property was a mere 3 to 4 feet in height and that of the
trees to be only 4 or 5 feet.
25. That apart, what has been noticed in Ext.C1 are, inter
alia, 'Veppin thai' and 'Teak plant' - which means saplings or
recent growth - without any evidence being offered by RW1 that
these were naturally occurring and growing for over a decade. Not
even a whispering assertion has been made in the evidence of
RW1, that the vegetation and the trees - which were rather
nascent in growth, being only 3 to 5 feet in height - were
available in the year 2000 and that it has grown only to such
height over the next 16 years.
26. Therefore, edificed on the facts involved, it is difficult
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to even imagine that the vegetation found by the learned
Commissioner in the application schedule property are naturally
grown trees and undergrowth, which could consequently partake
to it the characteristics of a 'Forest', as defined under Section 2(c)
of the 'Act'. When the trees and the growth were found - without
objection - to be only to the aforementioned height and
resultantly conceding to a valid and rational assumption of it
occurring rather recently, one fails to fathom how the appellants
maintain that the application scheduled property is covered with
naturally grown trees and undergrowth.
27. To add to the above, the learned Advocate
Commissioner, in Ext.C1 Report, did not find the presence of any
animal, venomous snakes or such other, as has been now asserted
by RW1. Therefore, even if we travel with the appellants in their
contention that such presence would also be part of the criteria for
a land to be 'Forest' - though not so enumerated in the 'Act' - it
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would still not inure any benefit to them in the light of the
uncontested specific findings of the learned Advocate
Commissioner.
28. To paraphrase, by no stretch of imagination and looking
at it from any angle, would it render possible in the case at
hand, to find the application scheduled property to be a 'Forest',
within the definitional umbra of Section 2(c) of the 'Act'.
29. Inevitably, therefore, the respondents have discharged
their burden of proving that the land in question is not a forest;
and when we find that the ratio in Narayana Bhat (supra) would
thus come to apply, it would not require us to consider any other
factor or issue.
30. Every other argument - either for or against - becomes
irrelevant because, as we have said prefatorily, it is only a 'Forest'
or a portion thereof, held by an individual, that would come
within the purlieus of 'Ecologically Fragile Land', if the relevant
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criteria are proved and established.
31. However, solely for the purpose of completeness to our
consideration, we must say that the argument of Sri.Nagaraj
Narayanan - that Ext.A2 order of the learned Forest Tribunal
would have no bearing on the question whether the land is a
'forest' under the 'Act' is on firm footing, at least in an abstract
academic sense. The evaluations and assessments requisite and
necessary under the two Statutes are surely different; and a finding
under the Kerala Private Forests (Vesting and Assignment) Act
('Private Forest Vesting Act' for short), cannot automatically lead
to a conclusion against the property being a 'forest' under the
'Act', if the relevant criteria under the latter are found attracted.
We are supported in our view by various judgments, including
Government of Kerala and Another v. Jacob Thomas Arikupuram
and Others [2019(4) KHC 625].
32. Since we have already found that, even as per the
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unexpendable criteria under the 'Act', the property in question
cannot be construed as a 'forest' under it, it becomes irrelevant as
to how the Forest Tribunal had decided the issues under the
'Private Forest Vesting Act' in Ext.A2 order.
33. When the evidence on record thus persuades us to the
inevitable conclusion that the application scheduled property is not
a 'Forest' within the purview of Section 2(c) of the 'Act', we
cannot find any reason to interfere with the impugned order of the
learned Tribunal.
In the afore circumstances, we dismiss this Appeal, however,
without making any order as to costs.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
JUDGE
RR
