IMPORTANT POINT
The court clarified that a property exempted under the Vesting Act may still be classified as ecologically fragile under the EFL Act, emphasizing the need for evidence of cultivation as of the appointed date.

JUDGMENT :

Sathish Ninan, J.

The State is in appeal challenging the order of the Forest Tribunal, declaring the application schedule property as, not an 'ecologically fragile land' under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as, “the EFL Act”), and for setting aside the EFL notification.

2. The application schedule property has an extent of 10.36 acres. It is situated in Re.Sy.Nos.578, 579, 588 and 590 of Vellamunda Village. In an earlier proceeding, the property was exempted from vesting under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as “the Vesting Act”). As on the appointed day under the EFL Act i.e., 02.06.2000, the property was planted with coffee, pepper, vanilla, etc., and hence, the property is not an ecologically fragile land, is the claim.

3. The State filed counter contending that the application schedule property is a thickly wooded area, with abundant growth of various species of forest trees. The contention that the property was planted with coffee, pepper, vanilla, etc., as on the date of appointed day, was denied. It was contended that the property predominantly supports natural vegetation and is an ecologically fragile land.

4. The Tribunal held:

i) The property, having been exempted from vesting under the Vesting Act, cannot be notified under the EFL Act.

ii) The property contained coffee, pepper, murikku, etc., and hence is not an ecologically fragile land.

iii) The notification was not placed before the Advisory Committee as required under Section 3 (2) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (EFL Act) and hence, the notification is liable to be set aside.

5. We have heard Shri.Nagaraj Narayanan, the learned Special Government Pleader (Forests) on behalf of the appellant-State, and Shri.P.Haridas, the learned counsel for the respondents-applicants.

6. We proceed to determine the correctness of the findings of the Tribunal.

7. To hold that the property having been once exempted under the Vesting Act cannot be notified under the EFL Act, the Tribunal relied on the judgments of this Court in State of Kerala v. Kumari Varma [2011 (1) KHC 502]; Kunhiraman P.V. And others v. Custodian of Vested Forest and others [2014 (3) KHC 782]; and Planters' Forum v. State of Kerala [2015 (2) KLT 783]. At the very outset, it is to be noticed that the judgment in Kunhiraman's case was overruled in Custodian Vested Forest Palakkad & ors. v. Kunhiraman P.V. & ors. [2018 (3) KHC 768] and is hence not good law. The judgments in Kumari Varma's case and Planters' Forum (supra) did not lay down the proposition as observed by the Tribunal.

8. Exemption from vesting, under Section 3 (2) of the Vesting Act, is with regard to the private forests held by an owner under his personal cultivation as on the appointed day under the Vesting Act, namely, 10.05.1971. Under the EFL Act, all ecologically fragile lands as on the appointed day thereunder namely, 02.06.2000, shall vest in the Government. Ecologically fragile lands are defined under Section 2 (b) of the EFL Act thus;

“(b) “ecologically fragile lands” means,-

(i) any Forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest of a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation; and

(ii) any land declared to be an ecologically fragile land by the Government by notification in the official Gazette under S.4;”

As per Section 2 (b)(i), the ingredients are; 1) it must be a forest land; 2) it must lie contiguous to or be encircled by a reserved forest/vested forest/ other forest land owned by the Government; and, 3) the land must predominantly support natural vegetation. The term 'forest' has been defined under Section 2 (c) thus:

“(c) “forest” means any land principally covered with naturally grown trees and undergrowth and includes a