Point of Law: State having deprived owner of the possession of land and legal right to cultivate it cannot take advantage of its own wrong.

JUDGMENT :

K. Vinod Chandran, J.

1. The appeal is preferred by the State against the order of the Forest Tribunal, Kozhikode. The application before the Tribunal was one filed under Section 10(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter 'EFL Act'). One Kunhabdulla filed O.A 144/1975 to exempt 22.50 acres of land from the purview of Kerala Private Forest (Vesting and Assignment) Act, 1971 (hereinafter the Vesting Act of 1971). Ten acres out of the total was not treated as vested, even by the department. The Forest Tribunal declared 12.5 acres to be exempted which was confirmed by this Court by order dated 05.11.1984. The representations to restore the land having fell on deaf ears, Kunhabdulla filed O.P No.3704/1992 before this Court, pending which he died. His wife and son were impleaded and the forest department took the stand that they are ready to restore 7.5 acres of land; the balance 5 acres having been excluded, being in excess of the ceiling limit under the Kerala Land Reforms Act. Based on this the OP was allowed on 07.06.1994, directing restoration to be done within two months. The restoration in effect was made only on 29.06.1997, to the legal representatives of Kunhabdulla. The applicant is said to have purchased the properties from the said legal heirs as per two documents numbered as 2321/97 dated 15.07.1997 and 2320/97 dated 16.07.1997 of SRO Neeleswaram.

2. In the instant application it was claimed that the subject land was cultivated with trees of coconut, cashew, jack, areca, rosewood etc. and after the Forest Department took possession, these trees were lost for no proper attention having been bestowed. The owner could enter the property only after restoration and after purchase of the same, the present applicant constructed Kayyalas to prevent soil erosion as also planted 300 coconut saplings, 150 cashew saplings, 50 areca saplings, 100 pepper wines, 100 rubber saplings etc. along with seasonal crops like ginger, cardamom etc. In 2006 the Forest officials prevented the workers from entering into the property and in 2007 a notice was issued by DFO Kannur stating the property has vested in the Government under the EFL Act, pointing out a notification in that respect and hence the application before the Tribunal.

3. The applicant testified that while carrying out agricultural operations the forest officials objected to irrigation of the property in October 2003 upon which the applicant sent a lawyer notice to the Forest Range Officer. There was no disturbance there after, till 2006, when notice was issued by the DFO Kannur based on the notification. The applicant asserted that the property is not an ecologically fragile land to be vested in Government under Section 3 of the EFL Act. The respondents on the other hand opposed the application pointing out that the scheduled property predominantly supports natural vegetation and therefore it is an ecologically fragile land vested under the EFL Act.

4. The Tribunal correctly found that under Section 3 of the EFL Act, to classify a land as ecologically fragile land there are three conditions to be complied with; that it should be a forest land, that the land or any portion there of should be lying contiguous or encircled by a reserved or vested forest or any other forests owned by the Government and that the land should predominantly support natural vegetation. The Tribunal noticed the decisions in 1991(1) KLT 666 Bhavani Tea and Produce Company v. State of Kerala, 2011(1) KLT 1008 State of Kerala v. Kumari Varma and 2014(3)KHC782 Kunhiraman P.V v. Custodian to find that since there is no case for the respondent that the application scheduled property was abandoned by the owner or the applicants and since there was an exemption under the Vesting Act, the application scheduled property cannot be termed as an ecologically fragile land.

5. Learned Special Government Pleader (Forest) Sri.Nagaraj Narayanan assailed