IMPORTANT POINTS
• No empirical formula is produced by either side to show how many coffee robusta plants could be scientifically planted in an area of 10 cents, but the expert's reports would show that in some plots, number of other forest trees outweigh the number of coffee plants. As mentioned earlier, we do not think that the four sample plots taken truly represent large extent of the property. Dr. A.V. Santhosh Kumar has specifically reported the presence of forest trees, shrubs and herbs with other factors to indicate that the property is a habitat of wild animals. We find it difficult to agree with the case of the respondents that the land in question is a coffee plantation. We also find that the respondents did not produce any reliable evidence to substantiate their contentions.
• A close look at Section 10 of the EFL Act also would fortify our view. It can be seen that a person who claims that his land is not an ecologically fragile land or that such land has not vested in the Government or that compensation is not sufficient (not relevant in this case) may apply to the Tribunal for settlement of the dispute. It is crystal clear that the right to approach the Tribunal for settlement of disputes is given only to the claimant. In other words, no right or duty is cast on the Government to approach the Tribunal for settlement of disputes.

JUDGMENT :

A. HARIPRASAD, J.

1. This appeal, filed under Section 11 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (in short, "the EFL Act") by the Government of Kerala and the Custodian, Ecologically Fragile Lands and Chief Conservator of Forests, raises very important factual and legal questions relating to the application of the EFL Act to the property under dispute. And, an ancillary question, what is the legal effect, on this proceedings, of a finding rendered by a competent Tribunal under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (in short, “the Vesting Act”), that the property under dispute is not a private forest, also arises.

2. Facts, in nut shell, are thus: Respondents preferred an application under Section 10(1) of the EFL Act before the Tribunal constituted under Section 9 of the said Act. Averments therein would show that the scheduled property ad-measuring 77.50 acres (31.37 hectares) comprised in survey No.149 Part of Koodaranhi Village in Kozhikode Taluk originally belonged to Arikupurath Thomas, father of the applicants by virtue of Ext.A11. Exts.A1 and A2 documents conferred title and possession on the 1st respondent and his deceased brother Renny Thomas in respect of 55 acres of land included in Ext.A11 document. On the death of their father Thomas, they derived title in respect of the remaining extent of 22.50 acres too. Respondents contended that they planted coffee in the property and obtained a registration certificate as evidenced by Ext.A13. It is their case that the Divisional Forest Officer (in short, “the DFO”), Special Division, Kozhikode approved the land as a coffee plantation. While they were holding the property in title and possession, Forest Department made a claim that it was a private forest and it vested in the Government under Section 3(1) of the Vesting Act. The respondents, therefore, were forced to file two original applications under Section 8 of the Vesting Act before the Forest Tribunal, Kozhikode. Both the applications were allowed by the Forest Tribunal as per a common order dated 29.09.1986 (Ext.A5). It was declared that the application schedule property in its entirety was a coffee plantation, which did not vest in the Government. State preferred an appeal against the common order of the Forest Tribunal before this Court as M.F.A.No.300 of 1989. As per Ext.A6 judgment, this Court dismissed the appeal, confirming the findings of the Forest Tribunal. Pursuant to the final decision, the Custodian of Vested Forests restored possession of the entire property to the 1st respondent and his brother deceased Renny Thomas on 30.06.1994. Thereafter Renny Thomas died and his rights devolved upon respondents 2 to 4, his widow and children.

3. While the applicants were carrying on agricultural operations in the application schedule property, the DFO, Kozhikode issued a notice on 19.04.2007 under Section 3(2) of the EFL Act informing the respondents that the property had been notified on 27.03.2001 as ecologically fragile land vested in the Government. The said notification is Ext.B1. Thereupon, the respondents filed a writ petition, W.P.(C) No.19671 of 2004, praying for an order to compel the State and its officers to de-notify the land. This Court dismissed the writ petition with a direction to the 2nd respondent (the Custodian) to consider the application filed by the respondents under Section 19(3)(b) of the EFL Act. Thereafter, a three member inspection committee was constituted and they inspected the application schedule property without giving notice to the respondents, resulting in submission of a report. Again, the Custodian passed an order on 13.04.2007 declaring that the application schedule property is ecologically fragile land vested in the Government. Then again the applicants filed W.P.(C) No.31378 of 2007 before this