Point of Law: The principal cultivation or existence of tea plantation, for the land to be excluded from the definition of EFL Act, has to be established as existing on 02.06.2000, the appointed day under the EFL Act.

JUDGMENT :

K.Vinod Chandran, J.

The appellant is a Company registered under the Indian Companies Act, 1913, in the year 1936. The appellant filed separate applications under S.10(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act [for brevity, 'the EFL Act'], which were rejected by the Tribunal, against which common order, the appeals are filed. The appellant claimed that the Company originally had 490 Acres planted with tea, the land having been purchased from its previous owner, as per a document of 1936 which was produced as Ext.A1. The Tea Board issued a certificate to the Company on 06.08.1979 declaring tea plantation on 150 Acres of land belonging to the Company which alone, remained with the Company after the vesting of private forests under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity ‘the Vesting Act’). The Company, at the time of the application, was said to be in possession of 99.50 Acres of land on which vesting was threatened by the DFO, North Wayanad and a notification was first issued with respect to 10 hectares. Later, an erratum notification was published alleging a further extent of 5.6900 hectares also as vested under the EFL Act. The applications were filed separately with respect to the two different extents, one originally notified and the other which was covered under the erratum notification.

2. The respondents before the Tribunal filed joined written statements raising more or less the same contentions with respect to the separate extents, both located in survey Nos.96/2, 96/4 and 96/1A1 of Thavingal Village. The lands were first notified and then surveyed & demarcated with a sketch prepared. The correct extent of the lands vested were 9.9447 hectares and 5.6900 hectares; based on which an erratum notification was published again in 2005. The properties lie contiguously to vested forests and predominantly support natural vegetation. As on 2.6.2000 the appointed day under the EFL Act the lands clearly fall under the definition of ecologically fragile lands and there is no tea plantation existing as on the appointed day.

3. The Tribunal framed two issues, as to whether the scheduled lands were ecologically fragile lands as on 02.06.2000; the appointed day under the EFL Act and whether the appellant is entitled to get a declaration; that they are not ecologically fragile, which issues were considered together. In adjudicating the dispute before the Tribunal PW1, a Director of the Company was examined who marked Exts.A1 to A6. The defence examined RW1, the Range Forest Officer, who marked Exts.D1 to D12. Commissions were taken out time and again with and without experts, thus placing before the Tribunal a number of such reports the last of which was contrary to the other reports.

4. The Tribunal noticed that as per Ext.C1 report of the Commissioner, Ext.C2 sketch and Ext.C3 report of the expert there were forest trees, plants, shrubs etc., in the property which were named in Ext.C1 report. It was categorically indicated in the report that there was no predominant cultivation of tea. At the applicant's request a further inspection was carried out by the very same Commissioner, who filed Ext.C10 report and Ext.C14 plan in O.A.No.8/2010 and Ext.C4 report and Ext.C7 plan in O.A.No.7/2011; with respect to the two separate extents. Again the Commissioner reported that the properties are not principally cultivated with tea. Yet another Expert was appointed to assist the Commissioner, after remitting the reports. The new expert filed Ext.C5 report in OA 8/2010 and Ext.C12 in OA7/2011. The expert noticed tea plants at equi-distance through out the notified lands and the age of the plants was assessed to be about 25 years. The Commissioner however did not say anything about the tea plants and the applicants filed objections again. Ext.C13 report with respect to OA 7/2011 indicated tea plants on the south-eastern portion and with respect to OA 8/2010 the Commiss