The absence of trees in land classification negates its designation as ecologically fragile under the relevant Act.

JUDGMENT :

Sathish Ninan, J.

The original application seeking declaration that the application schedule properties are not ecologically fragile lands and are not vested with the Government under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2005 (hereinafter referred to as “the EFL Act”), was dismissed by the Tribunal. The applicants are in appeal.

2. The OA schedule consists of two items of properties, item 1 having an extent of 67.73 Ares situated in Survey No.1131 of Peerumedu village, and item 2 having an extent of 99.15 Ares in Survey No.1360 of Peerumedu village. The items lie together as a single holding. The properties belong to the applicants under Exts.A1 and A2 Sale Deeds of the year 2002. Exts.A3 and A4 are the basic title deeds, which are “Pattas” issued under the Land Assignment Act. A granite quarry is being conducted in the property. According to the applicants the unit had been functioning in the property since the year 1994. Ext.B1 notification has been issued notifying an extent of 15 hectares, which include the OA schedule properties, under the EFL Act. The applicants claimed that the properties are not ecologically fragile lands. It is accordingly that the original application was filed.

3. The Tribunal held that the applicants failed to establish that the property was principally used for cultivation of crops of long duration and hence is not liable to be exempted from the classification of “ecologically fragile land” under the EFL Act.

4. We have heard Sri.M.P.Madhavan Kutty on behalf of the appellants and Sri.Nagaraj Narayanan, the learned Special Government Pleader (Forest).

5. The short question for determination in the appeal is, whether the OA schedule properties which is a rocky area having an extent of 4.12 acres with only 5 trees thereon, but to a large extent is covered by wild creepers and “kattu payar” (Mucuna Bracteata), is a “forest land” and an “ecologically fragile land” as defined under Section 2 of the EFL Act. With regard to the nature of the property as noticed above, there is no dispute.

6. Before we proceed further, it would be appropriate to refer to the definitions of “ecologically fragile lands”, “forest”, and “land” under Section 2 of the EFL Act. The same reads thus :-

“2(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.”

“(c)“forest” means any land principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognised and declared as reserved forest, protected forest or otherwise but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of residential building and surroundings essential for the convenient use of such buildings.

“(d) “land” includes rivers, streams and its origin and other water bodies.”

To be an “ecologically fragile land” the property must be, (i) a forest land, (ii) it must lie contiguous to or must be encircled by a forest land, and (iii) it must predominantly support natural vegetation. It could also be a land notified by the Government under Section 4 of the EFL Act as an ecologically fragile land, in which case the above conditions need not be satisfied. To fall within the definition of “forest”, the property