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2024 Supreme(Online)(KER) 36010
HIGH COURT OF KERALA
Sathish Ninan, P. V. BALAKRISHNAN, JJ
STATE OF KERALA – Appellant
Versus
K.T.THOMAS – Respondent
MFA (FOREST) 88/2017
ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST, ADV.SRI.ARAVIND V.MATHEW, GP, ADVS. N.K.KARNIS, MOHANKUMAR P T
The burden of proof lies on the claimant to establish that land was principally cultivated with crops to avoid classification as ecologically fragile land.
Headnote:(A) Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 - Section 10 - Disputed land claimed as cardamom plantation - Tribunal found land not an EFL - Court held burden of proof lies on claimant to show land was principally cultivated with crops on appointed date - Evidence insufficient to establish claim. (Paras 7, 10, 12)
(B) Burden of Proof - The claimant must demonstrate that the land was substantially cultivated with crops to avoid classification as EFL - Failure to provide convincing evidence leads to dismissal of claim. (Paras 7, 10)
Facts of the case:
The applicant claimed ownership of land under cardamom cultivation, asserting it was not an EFL, while the respondents contended it was part of a government-designated EFL. The Tribunal initially ruled in favor of the applicant.
Findings of Court:
The court found insufficient evidence to support the claim of cardamom cultivation, leading to the conclusion that the land is indeed an EFL.
Issues: The main issues included whether the land was forested, cultivated with cardamom, and the correctness of the Tribunal's order.
Ratio Decidendi: The court ruled that the applicant failed to prove that the land was principally cultivated with cardamom, thus affirming the classification as EFL.
Result: Appeal allowed; Tribunal's order set aside.
JUDGMENT
P.V.BALAKRISHNAN,J
This appeal is filed by the respondents, challenging the order dated 31.03.2017 in O.A.No.32/2015 passed by the Tribunal for EFL cases, Kozhikode, allowing the application filed under Section 10 of Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as 'Act').
2. The averments in the application in brief are as follows:-
The disputed land having an extent of 8.42 Acres in Re- Survey No.30 and old Survey No.1187 belong to the applicant as per document Nos.664/1972 and 2408/1976 of SRO Vythiri. The land has been brought under cardamom cultivation with human skill and labour. During 1983, when some cardamom plants were destroyed in severe drought and pest, the applicant replanted the same with cardamom plants after availing a loan from State Bank of Travancore. The disputed land is under the personal cultivation of the applicant ever since, the purchase of the same. It is surrounded by plantations and there is no contiguous forest in any of its sides. While so, the local Forest Officials disturbed the applicant's peaceful possession and enjoyment under the guise that the disputed land is an EFL vested in Government. Hence, the applicant was constrained to file a Writ OP before the High Court as W.P(C)No.10738/2006 against the respondents to declare that the disputed land is not an EFL. The land in dispute is not an EFL and it is a cardamom plantation, excluded from the definition of EFL. The Writ OP was dismissed on 17.11.2014, directing the applicant to approach the Tribunal. The Taluk Land Board has also already held that the disputed land is a cardamom plantation.
Hence, this petition.
3. The respondents filed a written statement, the gist of which is as follows:-
An extent of 100 Hectares of land in Re-Survey Nos.1186 pt, 1187 pt and 1188 pt in Vellarimala Village, Vythiri Taluk vested with the Government as EFL, under Section 3(1) of the Ordinance of 2000 and the disputed area is a part of the above EFL, which is comprised in Re-Survey No.1187 pt.The disputed property comprises of various forest tree species with high density and diversity, and supports natural vegetation and dense tree growth. The land is lying contiguous to a large extent of notified vested forests. The averment that the land has been brought under cardamom cultivation is absolutely false. The disputed land was not subjected with any cultivation and it remains as dense forest as on 2/6/2000. The disputed land was not an agricultural land and was not principally planted with cardamom. The contention of the applicant that during 1983 some cardamom plants were destroyed in severe drought and pest, is a cooked up story. The disputed land is located inside the large extent of EFL notified and all its sides are EFL.
4. The evidence in this case consists of the oral evidence of PW1 and RW1 and documentary evidence, Exts.A1 to A9, B1 to B9 and C1 to C3. The Tribunal on an appreciation of evidence on record and after hearing both sides found that the disputed land is not an EFL.
5. Heard both sides.
6. The points that arise for consideration in this appeal are: i) Whether the disputed land is a forest or part of forest land encircled or lying contiguous to forest land owned by the Government? ii) Whether the disputed land was principally cultivated with cardamom on the appointed date?
iii) Whether the disputed land is an EFL? iv) Whether the impugned order passed by the Tribunal is correct or whether the same requires any interference?
v) Reliefs and costs.
7. While considering the afore points, it would be apt to keep in mind certain settled principles of law in this area. As per Section
3(1) of the Act, notwithstanding anything contained in any other law or judgment or order of any Court or Tribunal, contract or documents, all ecologically fragile lands shall stand transferred to and vested with the Government free from all encumbrances and the vesting thus contemplated, is unconditional and a
