Point of Law: 'Forest', which speaks of lands which are principally covered with naturally grown trees and undergrowth and includes any recognized, declared, protected or otherwise forest land.

JUDGMENT :

K.Vinod Chandran, J.

The applicant before the Tribunal is a Company concerned with the vesting of 40 hectors of the 150 acres purchased by the Company as per Annexure-A1 in the year 1993. The entire properties were exempted under the Kerala Land Reforms Act by the Taluk Land Board, Vythiri by Exts.A2 and A3 proceedings. The applicant purchased 150 acres of well developed coffee plantations and maintained and nurtured it all these years. The applicant had been paying plantation tax and land revenue for the properties. For the purpose of internal reorganization the land was divided into three sections the Vythiri Habitats, Vythiri Resorts and Vythiri Farms respectively covering 75, 25 and 50 acres, which lands are registered as plantations. The applicant has also established a hotel complex with club house, rooms, cottages, swimming pool, ayurvedic centre etc for promoting international tourism without disturbing, changing or altering the nature and character of the land as a coffee plantation. Building permits were obtained from the Vythiri Panchayath in the years 1993-94 and 1999-2000. There are regular workers working in the plantation and staff to man the offices.

2. It was while the applicant was in peaceful enjoyment of the said properties that the Forest Officials interfered with their possession and physically prevented them from carrying on agricultural operations in the land alleging vesting under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity 'the EFL Act'). Since 2000, the applicant was not able to carry out normal activities and maintenance in the existing plantation. The applicant asserted that the scheduled property is not an ecologically fragile land as defined under the EFL Act . It was also contended that an application filed before the Custodian under Section 19(3)(b) of the EFL Act stood rejected which was also challenged in the Original Application.

3. The joint written statement filed by the 1st and 2nd respondents alleged that 40 hectors of the purchase made under Ext.A1 stood notified by notification dated 04.10.2000 and gazetted on 31.10.2000. Survey was carried out and after demarcation the actual extent of ecologically fragile land was found to be 39.6383 hectors which stands vested in the Government. The area was asserted to be on the western ghats, part of a larger extent of southern tropical evergreen and semi evergreen forests in the South Wayanad and Kozhikode Forest Divisions. The vegetation in the application scheduled property are predominantly forest species and there are many rivulets and streams running through the property, flowing into one of the major tributaries of the Kabani river. The land supports wildlife, birds, butterflies and endemic plants. The coffee plantation in the area is spartan and there is no principal cultivation, which alone can exclude the land from vesting. The various plant species available in the area was detailed which are common to evergreen forests. The respondents claimed the land to be an ecologically fragile land which is vested statutorily under the EFL Act.

4. The Tribunal framed issues as to whether the notified land comes within the definition of ecologically fragile land and whether a declaration under the EFL Act for exemption is possible. The Tribunal found that Ext.B1 copy of the notification includes approximately 39.2460 hectors and the definition of forest as seen from the EFL Act indicates it to be one covered with trees and undergrowth. The burden to prove that the application scheduled property does not attract the definition of forest and also EFL land, were found to rest squarely on the applicant relying on State of Kerala v. Alexander [1993 (1) KLT S.N.4 Case No.4]. The Commissioner’s report clearly indicated that the subject lands, come under the definition of an ecologically fragile land. As far as the notification issued under the ordinance, which was sought to be de-notified under Se