The classification of land as 'ecologically fragile' under the EFL Act is upheld when sufficient evidence supports the environmental status, and co-sharers have standing to appeal.

JUDGMENT :

Sathish Ninan, J.

The Original Petitions challenging the notification under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as 'the EFL Act') was dismissed by the Tribunal. M.F.A.Nos.173 and 118 of 2011 are by the respective applicants in O.A.No.2 of 2007 and O.A.No.15 of 2008. M.F.A. (Forest) Nos.125 and 136 of 2017 are by third parties. They claim to be sharers in the property along with the applicants.

2. The property involved has an extent of 90 acres. It originally belonged to the Tavazhy of Devaki @ Ammukutty Nethiyar under Jenmom Assignment Deed No.2994/1940. On her death, the property vested with the members of her family, 45 in number. The property was notified under the Kerala Private Forests (Vesting and Assignment) Act (hereinafter referred to as 'the Vesting Act'). A few members of the family challenged the same in O.A.No.156 of 1979. After an initial round of remand, the Original Application was finally allowed by this Court as per the judgment dated09.03.1993 in M.F.A. (Forest) No.445 of 1987.

3. On the failure of the State to restore possession of the property, there was a Writ Petition before this Court followed by Contempt of Case (C) No.281 of 1997. Finally, the property was restored possession of, on 22.12.1997. Simultaneously, the property was notified under Section 5 of the Kerala Preservation of Trees Act , 1986. This was followed by the notification under the EFL Act dated 02.01.2001. The same is under challenge in the Original Applications filed by two members of the family.

4. The applicants contended that the property is not an ecologically fragile land under the EFL Act and that it is not covered with naturally grown trees and undergrowth. It was claimed that the land is principally used for cultivation of cashew. The intention to cultivate cashew was accepted by this Court in M.F.A.(Forest) No.445 of 1987. However, since the actual physical possession was not restored, the cultivation could not be continued.

5. On the evidence, the Tribunal found that the application schedule property satisfies the definition of 'ecologically fragile land' and ‘forest’ under Section 2 (b) and (c) of the EFL Act and accordingly, dismissed the Original Applications.

6. We have heard Shri.M.P. Madhavankutty, the learned counsel for the appellants in M.F.A.(Forest) Nos.125 and 136 of 2017. There is no appearance for the appellants in other appeals. We have also heard Shri.Nagaraj Narayanan, the learned Special Government Pleader (Forests), on behalf of the respondents.

7. The learned counsel for the appellants argued that, the Original Applications were filed by two co-sharers of the property for and on behalf of the other members of the family. There was a suit for partition in the family as O.S.No.102 of 2002. The final decree was passed in the suit on 20.02.2009. The appeal challenging the same as A.S.No.239 of 2009 was dismissed on 03.03.2014. Though the appellants in M.F.A. Nos.125 and 136 of 2017 had not preferred any original applications, they being co-sharers, are entitled to maintain the appeal, it is argued.

8. We do notice that this Court had granted leave to appeal pursuant to which M.F.A.(Forest) Nos.125 and 136 of 2017 were registered. There is no dispute before us that the appellants therein are also the sharers of the property. At the time when the Original Applications were filed, the suit for partition was pending. The appellants being co-sharers of the property, their appeals are liable to be considered on merits.

9. The learned counsel for the appellants submitted that, me