JUDGMENT :

K. VINOD CHANDRAN, J.

1. The State impugn the order of the Forest Tribunal which absolve the scheduled property from vesting under the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003 (for brevity, the EFL Act). The O.P. (FT) seeks compensation, by way of damages, for the period the petitioner was divested of the beneficial enjoyment of the B scheduled property; illegally, under one pretext or other. The Tribunal found that there was earlier a notification under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity, the Assignment Act) with respect to larger extent of lands within which was comprised the very same land. The subject land, with an additional ten acres, together and more fully described as A schedule in the application, was absolved from vesting under the Assignment Act by the Forest Tribunal, which was confirmed in appeal by this Court. By virtue of the said declaration and the dictum in State of Kerala vs. Kumari Verma, 2011 (1) KHC 502 there cannot be any subsequent vesting under the EFL Act, especially since the owners/applicants were not permitted to put the land to beneficial use. From the various proceedings taken by the petitioner under the Assignment Act, the writ petition filed for restoration of properties, and the multiple litigation against the attempt of the department to prevent the applicants from putting the property to beneficial use, it was found that the declaration under the Assignment Act, having absolved the entire A schedule property (123 acres) from vesting under that earlier Act; the B schedule property (113 acres) does not fall under the definition of ecologically fragile lands, as on the appointed day under the EFL Act i.e. 02.06.2000. The Tribunal consequent to such declaration, issued an order of mandatory injunction directing the respondents to put the applicant in possession of the B schedule property, but rejected the claim for compensation.

2. Arguing for the appellant State, learned Special Government Pleader Sri. Nagaraj Narayanan pointed out that the property was handed back to the applicant in the year 1995. There was no cultivation carried on in the property after the applicant obtained possession of the same and hence, the property became an ecologically fragile land as defined under the EFL Act as on the appointed day and there was no cultivation discernible in the property. Answering the contention of the applicant that the order issued under the Kerala Preservation of Trees Act, 1986, prevented the applicant from carrying out any cultivation, the learned Special Government Pleader took us through the said enactment. The prohibition of cutting of trees in notified areas, as seen under S.5, by the proviso clearly excludes pruning of any tree as required for ordinary agricultural or horticultural purposes. The applicant was cultivating cardamom in the said property as claimed by them in the proceedings under the Assignment Act. The existence of trees do not prevent cardamom cultivation which in fact requires shade for proper growth. There was also no prohibition in cultivating pepper in the property and for such purposes pruning of trees was permissible under the Act.

3. The contention raised is only to wriggle out of the requirement of cultivation, that too the property being principally cultivated with specified long duration crops as on the appointed day of the EFL Act. Despite the property remaining with the applicant for more than five years, there was absolutely no cultivation carried out in the property. It is pointed out that the subject lands are pristine ever green forests in the Wayanad plateau, part of the Western Ghats and a foraging ground of wild animals, reptiles and birds; rich in bio diversity. These forests are being destroyed and the EFL Act is enacted with the object of preservation of such pristine forest lands, as distinguished from the object of the Assignment Act, which was agrarian reform. The