IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 MFA.No. 60 of 2011() -------------------- OA.6/2009 of TRIBUNAL FOR ECOLOGICALLY FRAGILE LAND CASES, KOZHIKODE .................... APPELLANT(S): -------------- N. RAJAGOPAL, S/O.P. NARAYANAN NAIR, AGED 50 YEARS, BABU VIHAR, KOWDIAR, THIRUVANANTHAPURAM - 695 003. BY ADV. SMT.SUMATI DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI. RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST AND WILD LIFE, GOVERNENMENT OF KERALA, THIRUVANANTHAPURAM - 695 001. 2. CUSTODIAN OF ECOLOGICALLY FRAGILE LAND, (THE PRINCIPAL CHIEF CONVERVATOR OF OF FORESTS), FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014. 3. THE DIVISIONAL FOREST OFFICER, KOZHIKODE - 673 001. 4. THE FOREST RANGE OFFICER, KUTTIYADI, PERAMBRA, KOZHIKODE - 673508. GOVERNMENT PLEADER FOR R1-4 (SRI.T.R.RAVI) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON 09/12/2011 DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A.(Forest) No.60 of 2011 ----------------------------------------------- Dated 9th December, 2011. J U D G M E N T Joseph Francis, J. This appeal is filed by the petitioner in O.A.6/2009 on the file of the Tribunal for Ecologically Fragile Land Cases, Kozhikode. Respondents 1 to 4 herein are the respondents 1 to 4 in that O.A., which was filed by the petitioner under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as 'the Act'), praying for declaring that the land having an extent of 32.38 hectares situated in re-survey Nos.276/1 and 276/2 in Kavilumpara village of Vatakara Taluk in Kozhikode District covered by notification No.C4-21437/00, is not an ecologically fragile land and hence, the said land is not vested in the Government under the Act. 2. In the O.A., the third respondent has filed a detailed written statement, contending that there is no principal cultivation in the notified area and that the notified area is having predominant natural vegetation. The said notified land MFA 60/11 2 is the continuation of vested forest and surrounded by evergreen forest. The notified land is wildlife habitat area with wooded patches and in the said circumstances, the said land comes within the purview of ecologically fragile land, as defined in the Act. 3. Before the Tribunal, on the side of the petitioner, PW1 was examined and Exts.A1 to A16 and Exts.C1 and C1(a) were marked. On the side of the respondents, RW1 was examined and Exts.B1 to B9 were marked. The learned Tribunal, on considering the evidence, found that the petition schedule property, having an extent of 80 acres, was an ecologically fragile land, as on the appointed day and hence, the said land vested with the Government on the appointed day and as such, the petitioner is not entitled to the declaration as prayed for and the Original Application was dismissed. Against that judgment, the petitioner filed this appeal. 4. Heard learned counsel for the appellant and the learned Government Pleader appearing for the respondents. 5. Learned counsel for the appellant submitted that the petition schedule property is cultivated principally with MFA 60/11 3 rubber, coffee, arecanut and cardamom and there is a house and livestock farm and as such that property is not an ecologically fragile land vested with the Government. Learned counsel for the appellant further submitted that the cultivation in the said property is evident from Exts.A3 to A9. Learned counsel relied on the decision reported in State of Kerala v. Kumari Varma [2011(1) KLT 1008] and argued that once a portion of forest land is excluded from the purview of the forest, those 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. 6. Learned Government Pleader supported the judgment of the Tribunal and submitted that there is no evidence to show that the property in dispute is used principally for the cultivation of crops of long duration such as coffee, rubber, pepper and cardamom. 7. The case of the appellant is that the father of the appellant, late P.N.Narayanan Nair was in possession and ownership of 40.60 hectares of land comprised in re-survey No.175 of Kavilumpara village, Vatakara Taluk. When the MFA 60/11 4 respondents interferred with the free possession and enjoyment of the property owned by the father of the appellant by bringing the above extent of 100 acres within the ambit of the Kerala Private Forests (Vesting and Assignment) Act, 1971, the father of the appellant/applicant, viz., Narayanan Nair filed O.A.101/77 under the said Act before the Forest Tribunal, Kozhikode, for a declaration that 40.60 hectares of land in re-survey No.175 of Kavilumpara Village, Vatakara Taluk would not fall within the purview of the said Act. The said application was dismissed by the Forest Tribunal. Against the said order, Miscellaneous First Appeal was filed before this Court by the father of the applicant. This Court, as per judgment in MFA 24/80, directed the respondents therein to restore 80 acres of land to the possession of the appellant therein. 8. In pursuance of the said judgment, 80 acres of land in re-survey No.276/2 in Kavilumpara Village was given to the possession of the father of the applicant on 15.9.1981. Ext.A1 is the judgment of this Court directing the Government to demarcate and give 80 acres of property to the possession of the father of the applicant. The respondents therein filed a MFA 60/11 5 review petition before this Court seeking review of the judgment in MFA 24/80. However, this Court, as per Ext.A2 order dated 15.3.1989 in RP 116/84 dismissed the said petition. Ext.A3 is the sketch of the restored land, which would show that the land restored to the possession of the father of the applicant was in re-survey No.276/2. It further appears from Ext.A3 that the property in re-survey No.276/1 is vested forest. 9. It is contended by the applicant that even though this Court directed to hand over 80 acres of land in Survey No.175 of Kavilumpara Village, the property actually handed over was the property in re-survey Nos.276/1 and 276/2. According to the applicant, the land restored was in a bad condition due to the lack of maintenance. It is further contended by the applicant that the father of the applicant started cultivation in the said property during 1981-82 itself. It is contended by the applicant that out of the aforesaid 80 acres of land given to the possession of the father of the applicant as per Ext.A1 judgment of this Court, the land having an extent of 65 acres was cleared and re-planted with rubber, coffee, cardamom and arecanut. However, when the father of the MFA 60/11 6 applicant attempted to clear fell the remaining 15 acres of land, the respondents obstructed and prevented the clear felling of trees in the said land. In the said circumstances, the father of the applicant approached the Government. The Government of Kerala, as per Ext.A4 order dated 11.8.1992 permitted the father of the applicant to clear fell the remaining 15 acres of land. It is stated in Ext.A4 order that since 65 acres of land out of 80 acres of land restored to the owner had already been cleared of the tree growth, it would be more advisable to allow him to clear the remaining area also, instead of granting him another fresh area of 80 acres as proposed by the Chief Conservator of Forests. It is stated in Ext.A4 that the actual plot of land, which was restored to the possession of Narayanan Nair, the father of the applicant, was not the correct one. However, it appears from Ext.B5 order that the Government subsequently stayed the implementation of Ext.A4 order. According to the applicant, the forest department, with the support of local political workers, obstructed the father of the applicant from clear felling 15 acres of land even after passing of Ext.A4 order by the Government. In the meanwhile, the MFA 60/11 7 father of the applicant died. After the death of his father, the properties belonging to his father were partitioned among the legal heirs of the father of the applicant and in the said partition, the application schedule property was allotted to the share of the applicant. Ext.A10 is the copy of the said partition deed. Since there was obstruction to clear fell 15 acres of land, the applicant approached this Cort seeking police protection to clear fell the trees. This Court granted police protection to clear fell the trees. The respondents approached this court, by filing Writ Appeal. However, this Court dismissed the said Writ Appeal as per Ext.A11 judgment dated 2.12.1999 in W.A.2299/99. Since police protection was not granted as directed in Ext.A11, the applicant approached this Court for initiating contempt of court proceedings. Ext.A12 is the order passed by this Court in the said contempt petition. As per Ext.A12 order, this Court again directed the police authorities to afford sufficient police protection to the applicant for complying with the direction in Ext.A11. However, the said order was challenged before the Supreme Court by the respondents. 10. The Kerala Forest (Vesting and Management of MFA 60/11 8 Ecologically Fragile Lands) Act, 2003 is deemed to have come into force on 2.6.2000. Now, the question to be decided is as to whether the application schedule property was ecologically fragile land or not, on the appointed day. 11. As per Section 2(b) of the Act, “ecologically fragile land” means “(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 (ii) any land declared to be an ecologically fragile land by the Government by notification in the Gazette under Section 4”. As per Section 2(c) of the Act, “forest” means “any land principally covered with naturally grown trees and undergrowth and includes any forests 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 buildings and surroundings essential for the MFA 60/11 9 convenient use of such buildings”. 12. Regarding the 15 acres out of the 80 acres ordered to be put back in possession of the appellant's father, the learned Tribunal dealt with the same in the judgment as follows : “Now, the question to be decided is as to whether the application schedule property is an Ecologically Fragile Land or not, as defined under the Act. It is contended by the applicant that when the father of the applicant attempted to clear fell 15 acres of land out of the application schedule property having an extent of 80 Acres, the Forest Department did not permit him to do so. When the Forest Department with the support of local political workers obstructed clear felling of 15 Acres of land, the father of the applicant approached the Government. The Government as per Ext.A4 order permitted the father of the applicant to clear fell the said 15 Acres of land. Even after Ext.A4 order, the clear felling of 15 Acres of land was obstructed. Then, the applicant approached the Hon'ble High Court for police protection. The Hon'ble High Court granted police protection as per judgment in OP 4264/99. Against the said judgment, the respondents therein filed appeal. As per Ext.A11 judgment dated 2.12.1999 in WA 2299/99, the Hon'ble High Court dismissed the said appeal. Against the said order, Special Leave Application was MFA 60/11 10 filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court as per Ext.A15 order directed this court to dispose of this original application within six months from the date of Ext.A15 order. It appears that the implementation of Ext.A11 order of the Government was stayed by the Government as per Ext.B5 order. Thus, it appears from the contention of the applicant and the evidence available in this case that the applicant or his predecessor-in-interest was never permitted to clear fell 15 Acres of land out of the land given in possession of the applicant pursuant to Ext.A1 judgment. The respondents would contend that the land having an extent of 15 acres mentioned above was never planted with cardamom as stated by PW1 and that the said area is a virgin forest with abundant tree growth and natural vegetation. Ext.A14 is the report of the Village Officer, which would also show that 15 Acres of land out of the application schedule property is a land having wooded patches and lying contiguous to other vested forest. In other words, it appears from Ext.A14 report that 15 Acres of property, out of the application schedule property, remains as forest land, lying contiguous to the vested forest and having predominant natural vegetation. Ext.C1 report of the commissioner and Ext.C1(a) plan of the Taluk Surveyor would also show that an extent of 6.0705 Hectares of land is forest land, having trees and other natural vegetation. The evidence of RW1 would also show that the above extent MFA 60/11 11 of 15 acres of land was never clear felled and the said land still continues to be a virgin forest. Having carefully gone through the relevant inputs, the only inference possible is that the land having an extent of 15 Acres out of the application schedule land, still remains as a forest land, lying contiguous with the vested forest and having predominantly supporting natural vegetation and in the said circumstances, it has to be held that the abovesaid land having an extent of 15 Acres shown in Ext.C1(a) plan by the Taluk Surveyor was an Ecologically Fragile Land as on the appointed day, viz., 2.6.2000 and hence, the said land automatically vested with the Government under Section 3(1) of the Act on the appointed day.” 13. On going through the evidence on record, we find no reason to interfere with the finding of the Tribunal with regard to 15 Acres in resurvey No.276/1. As far as the decision of the Division Bench of this Court in State of Kerala v. Kumari Varma [2011(1) KLT 1008] is concerned, that was a case where the Court found that there was an area covered by cardamom cultivation which existed for a period of 25 years prior to the visit of the Commissioner and it was a case of exclusion of the land from the definition of the words 'private MFA 60/11 12 forest'. No doubt, in the judgment in MFA 24/1980 in this case, it is mentioned that it is also liable to be excluded. It is not clear whether this is a case of exclusion on the basis that the land do not fall in the purview of private forest or whether it is a case of exemption under Section 3(2) and 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. In this case, in fact, what is found is that the lands are to be excluded on the basis that lands are covered by registration. Furthermore, we notice that 15 acres included were delivered over to the party way back in 1982. No doubt, the appellant has a case that he was not permitted to carry out operations culminating in his seeking and obtaining orders of police protection in respect of 15 acres. 14. The next question to be considered is whether the appellant is entitled to get a declaration that 65 Acres in resurvey No.276/2 of remaining 80 acres is not an ecologically fragile land. For claiming exemption from that Act, the appellant has to prove that 65 acres of land is used principally for the cultivation of crops of long duration, such as tea, coffee, rubber, pepper and cardamom. In the decision reported in MFA 60/11 13 State of Kerala v. Suseeladevi Amma [1987(1) KLT Short Notes 58 (case No.80)], it was held as follows : “A land cannot be said to be used principally for growing any category of trees if the number of such trees when compared with the extent is small. It is the principal user of the plot as a whole that is to be regarded as a test.” In the decision reported in Chacko Jose v. State of Kerala and another (1975 KLT 825), it was held as follows : “Any land which is not, with reference to its normal capacity to have anyone of the above varieties of trees, used fully for that should have at least half of the number of such trees per acre to call it 'used principally'. The expression 'principally' is used in contradistinction to 'partly' or 'wholly'. So in classifying a garden as land used principally for growing any variety of trees it is reasonable to infer that the intention of the Legislature was that in such land the number of such trees should be at least half of the number of trees an ordinary acre of land can normally contain.” 15. The Advocate Commissioner, who filed Ext.C1 report and Ext.C1(a) survey sketch after inspecting the property on 1.5.2010 stated in paragraphs 3, 4 and 5 as follows : “3. The schedule property is encircled by forest. The property is situated in an altitude of 764 Meters. Most of MFA 60/11 14 the application schedule property is plantation of different crops. There is a road through the plantation (Marked as F in the plan). The total extent of the road is 0.5929 hectares. In the application schedule property 25.601 hectares of land is plantation (Marked as B, C, D and E in the plan) and 0.5 hectares is Forest (Marked as A in the plan) and the portion “A” is similar to the encircled portion of Reserve forest. There are trees in 6.0705 hectares of the application schedule property (Marked as G. H, I in the plan) this area is also similar to that of forest. Rubber, Coffee, Arecanut is seen planted systematically in the planted area of the application schedule property. There are “Kudampuli” and other trees in the planted area. The area of plantation of different crops is marked separately in the plan on my request. 4. There is a farm house in the schedule property. There are sheds near the farm house. I could see cows in one shed and there are goats in another shed. I could see ducks, dogs and rabbits in cages. There is a water tank in the property and there is water supply to the farm house. 5. The rubber trees in the application schedule property seem to be not tapped for some time. The latex found on the tapping channel was dry and dark. It seems that recently agricultural maintenance work is not carried properly in most of the area of the plantation. Respectfully submitted.” MFA 60/11 15 From the Commissioner's report, it is not clear whether the 65 Acres of property in re-survey No.276/2 is used principally for the cultivation of crops of long duration such as coffee, rubber, cardamom etc. 16. Considering the facts and circumstances of the case, we are of the view that this case has to be remanded to the Tribunal for fresh disposal, after giving sufficient opportunity to the appellant to prove the above facts. 17. Accordingly, this appeal is allowed in part. The finding of the Tribunal in O.A.6/09 on the file of the Tribunal for Ecologically Fragile Land Cases, Kozhikode that 15 acres in re- survey No.276/1 was ecologically fragile land on the appointed day, i.e., 2.6.2000 and hence the said land automatically vested with the Government under Section 3(1) of the Act, is confirmed. The finding of the Tribunal that 65 acres in re- survey No.276/2 is ecologically fragile land, in O.A.No.6/09, is set aside and the case is remanded back to the Tribunal for giving further opportunity to the applicant to prove his case. Sufficient opportunity must be given to the respondents also to prove their case, if so required. The parties are directed to MFA 60/11 16 appear before the Tribunal for Ecologically Fragile Land Cases, Kozhikode, on 28.2.2012. The parties are directed to suffer their respective costs in this appeal. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.