IMPORTANT POINT
The court affirmed that the property in question does not qualify as 'Ecologically Fragile Land' or 'Forest' under the Kerala Forest Act, based on the evidence presented.

JUDGMENT :

Devan Ramachandran, J.

The State of Kerala and the Conservator and Custodian of Ecologically Fragile Lands are in appeal, questioning the Final Order of the ‘Court of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal’, Palakkad, (hereinafter referred to as ‘the Tribunal’ for short), in Original Application No.8/2014.

2. Through the impugned order, the learned Tribunal has allowed the Original Application filed by the respondents herein, thus declaring that the application schedule property – extending to 11.018 hectares comprised of in Resurvey No.791/2, 795, 797/2, 793/D2, d7, 793/3 and 797/9 in Pudussery Village – is not an ‘Ecologically Fragile Land’.

3. The genesis of the application made by the respondents is in Ext.B2 letter received by them from the Office of the Divisional Forest Officer, Palakkad (DFO), dated 20.06.2008, informing them that the application schedule property is an ‘Ecologically Fragile Land’ (EFL) and hence, vested with the Government. They, thereupon, filed the above said Application, seeking a declaration, as has now been allowed, on the ground, inter alia, that the property in question is a ‘Forest’, manifest by the fact that it was, in the 1970’s, proceeded against under the provisions of the Kerala Private Forests (Vesting and Assignment) Act, 1971, which culiminated in Ext.A2 order of the learned Forest Tribunal, Palakkad – issued common in four Original Applications, namely, O.A.524/1976, 525/1976, 534/1976 and 535/1976 – declaring it to be exempted, finding that it does not concede to any of the characteristics of a ‘Private Forest’.

4. The respondents allege that, even though they were thus entitled to be restored the land on the basis of the declarations in Ext.A2 order, the Forest Department refused to do so illegally; but then maliciously issued Ext.B2 letter to them, saying that it construes to be an ‘Ecologically Fragile Land’. They contend that the actions of the Forest Tribunal in holding the property to be ‘EFL’ is mendacious, solely being an attempt to circumvent Ext.A2 order; as also Ext.A4 judgment, subsequently obtained from this Court in WP(C)No.2996/2013 on 20.03.2014 – whereby, they were directed to restore the property within a period of six months.

5. In response to the Original Application, a written Statement was filed by the appellants, wherein, in paragraph 4 of it, the following are averred:

4. The department was taking steps to restore the area in the above OA in view of Government Order dated 26.09.1989. Before effecting restoration of the land, we have to follow the administrative formalities like surveying, fixation of boundaries, preparation of sketch, obtaining approval and formal restoration orders from Government, Publication of Section 5 notification under Kerala Preservation of Trees Act, 1986 etc. were to be fulfilled. In the meantime, the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Ordinance was promulgated by the Government. Since the land in question lies contiguous to vested forest, supports natural vegetation with predominant tree species like Kara Veppu, Pala, Pullani, Pullamarathu etc., the same satisfies the characteristics of an ecologically fragile land. The property forms a part of Mayappalam Vested Forest which is lying contiguous with other forests and VFC item 219. The area is undisturbed and hence keeping it as such will be advantageous for the insitu Conservation of eco system and natural habitat. It is inhabited by wild mammals and also venomous reptiles and endangered birds like peacock. Not only that, this area is a treasure of medicinal plants like Kurunthotty, Dhandappala etc. Source of ground water, few north flowing and one west flowing streams drain in the reservoir at foothills. Open scrub jungle with igneous rocks outcrops, basins of water source and supporting necessary life forms qualifies the land to be notified as EFL. As such, the land in question could not be restored. A