IMPORTANT POINTS
Court below had committed grave error in discarding the expert opinion and arriving at a conclusion based on the mere fact that the trees would have been destroyed due to lack of proper maintenance- The Tribunal found that the number of coffee plants in the property was comparatively less-If the land is intensively cultivated with coffee plants, there would have been 64 plants in an area of 10 cents -The land was principally cultivated with coffee, as on the date of vesting, the number of coffee plants would have been more than what is reported by the Advocate Commissioner- May be some leverage could have been given to the percentage of destruction for non maintenance- But still the number of plants found in the sample plots measuring 10 cents each are far less than what could be seen in a normal coffee plantation.

Shaffique, J.

State and its authorities are in appeal challenging order dated 31/8/2016 in OA No.6/2009 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal, Kozhikode.

2. This is the third round of litigation and presently our concern is only with reference to two items of property which are described as plots D and E marked in Ext.C2(a) plan.

3. The short facts relating to the case are as under:-

A large extent of property belonging to one Sri.P.Narayanan Nair was notified as vested forest under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as the 1971 Act). Narayanan Nair sought for exemption and ultimately by a decision in MFA No.24/1980, the High Court directed restoration of 80 acres of land comprised in Sy.No.175 of Kavilumpara village. Pursuant to the said order, 80 acres in Re.Sy.Nos.276/1 and 276/2 were put in possession of Narayanan Nair. According to the applicant, Narayanan Nair started cultivation in the year 1981 itself. Narayanan Nair died and his rights devolved on his legal heirs including the applicant. On partition among the legal heirs, the scheduled property was allotted to the share of the applicant. Despite an order granting clear-fell, the same could not be done in full on account of directions issued by the Supreme Court in SLP No.5731/2002. In the meantime, invoking the powers u/s 3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance 6/2000, which was later promulgated as the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as the 2003 Act), 80 acres of land comprised in Re.Sy.No.175 of Kavilumpara village was notified and vested in the Government as ecologically fragile land. Application was filed by the applicant seeking exemption on the ground that the land was principally cultivated with rubber, coffee, areca, cardamom and pepper wines.

4. Before the Tribunal, applicant was examined as PW1 and he relied upon Exts.A1 to A16. The commission report was marked as Ext.C1 and the plan as Ext.C1(a). Respondents relied upon the evidence of RW1 and Exts.B1 to B9. The Tribunal dismissed the application. The matter was taken to the High Court and the High Court remitted the matter back for fresh consideration. Pursuant to the remand order, the Tribunal appointed a new commission. Ext.C2 is the report and Ext.C2(a) is the plan. The Commissioner was examined. PW1 was recalled and examined and by judgment dated 29/4/2013, it was found that plots B and C marked in Ext.C2(a) plan are not ecologically fragile lands vested in the Government.

5. Applicant preferred MFA No. 98/2013 and by judgment dated 3/8/2015, the matter was again remitted back to consider the case of the applicant with respect to plots D and E. In respect of the other properties, the finding of the Tribunal was upheld. After remand, the only question was regarding plots D and E in Ext.C2(a) plan. In fact, before remand, the High Court had also appointed an Advocate Commissioner to inspect the plot along with experts and to file a report. Ext.C4 series is the final report, location sketch and report of the experts. No further oral evidence was adduced by the applicant. Range officer of Kuttiadi range was examined as RW2.

6. The Tribunal after considering the evidence declared that the plots marked as D and E in Ext.C2(a) plan and Ext.C4(a) location sketch are not ecologically fragile lands vested in Government.

7. Being aggrieved by the aforesaid order, this appeal is filed by the State inter alia contending that there is absolutely no evidence to support the argument that the property in question was planted either with coffee or pepper wine and the Tribunal completely erred in arriving at a finding that the properties are not ecologically fragile land.

8. On the other hand, learned counsel appearing for the respondent/applicant supported the Tribunal's view and contended that there