Point of Law: Under EFL Act, applicant has to prove that land is principally cultivated with long duration crops or is a plantation, or beneficial enjoyment for a building, which alone can exclude it from definition of 'forest' under S.2(c) of EFL Act.

JUDGMENT :

K.Vinod Chandran, J.

Both the State and the applicants challenge the identical order of the Tribunal. The State is in appeal from the order, to the extent it allows exemption to two extents of property and the applicants challenge the denial of exemption to three other extents. The separate categorization on the basis of extent was made by the Tribunal on the basis of Ext.B3 report, filed by the Forest Department.

2. Learned Special Government Pleader (Forest), Sri. Nagaraj Narayanan submits that the reliance placed by the Tribunal on Ext.B3 produced by the respondent is completely wrong. First of all, it was only a copy produced and the constitution of the committee is not evident as also the basis on which such a report was filed. It is pointed out that, but for the reliance placed on Ext.B3, the Tribunal had found that there were no grounds for exemption of the land from the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity, the EFL Act). There was no commission taken out to establish the nature of cultivation as on the appointed day under the EFL Act. The Tribunal placed reliance on the declaration made in an application filed under S.8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity, the Vesting Act); which ought not to have been relied upon. The Tribunal then found that the adjudication under the EFL Act cannot be solely on the basis of the declaration under the Vesting Act. It was found that the scheduled property is situated in a very sensitive ecologically fragile area as revealed from the various averments made in the appeal; but refused to give credence to such claims, due to the said facts having not been substantiated by the respondents. In fact the definition of EFL is very evident from the enactment and there is no question of the respondents adducing evidence to establish the nature of the land. It is the bounden duty of the applicant to establish exclusion, with proof of the property being principally cultivated with long duration crops or existence of residential buildings with beneficial use of the appurtenant land.

3. The Tribunal's reliance on the factors to be considered by the Advisory Committee constituted under S.15, to make a recommendation for bringing out a notification under S.4, are alien to the present dispute raised; which is not based on a notification under S.4 and is purely founded on the statutory vesting under S.3. The Tribunal having found that the scheduled property is lying contiguous to reserve forest, ought not to have looked at Ext.B3 to grant exemption to bit No.1 and 2. The learned Special Government Pleader also points out that the properties under the Vesting Act were said to be comprised in Sy.No.924/1, while the larger extent on which exemption was sought under the Vesting Act is comprised in various Sy.Nos. The contention is that the properties, which were the subject of dispute under the Vesting Act and the EFL Act are not similar, especially when there were large extents of properties comprised in one Sy.No, the identity of which has also not been clearly established.

4. Learned Sr. Counsel, Sri. P. Viswanathan objected to the respondent disowning the document they produced before the Tribunal; Ext.B3. It is pointed out that if Ext.B3 report is looked into, it is very clear that there was principal cultivation of coffee in all the bits categorized in Ext.B3 on the basis of the sampling done; which reveals tea planted, interspersed with oil palm. Ext.B3 was copiously read to argue that all the extents referred to in Ext.B3 have to be granted exemption from vesting. It is specifically pointed out that no commission was taken out in the proceedings under the EFL Act, since there was a commission taken out in the application under the Vesting Act, which clearly establishes the lands having remained as a plantation. Even when the proceedings were continuing before the Tribunal constituted under the Vesti