To qualify as ecologically fragile, land must predominantly support natural vegetation as defined in relevant legal statutes.

J U D G M E N T

Jayachandran, J.

O.A.2/2008 of the Forest Tribunal, Palakkad preferred by the applicant under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act , 2003 [for short, 'the E.F.L Act'] was allowed, declaring that the application schedule property is not an ecologically fragile land. The aggrieved Custodian of Forests, along with the State, are the appellants herein.

2. Facts:

The applicant is the absolute owner of the scheduled property having an extent of 50 cents, forming part of 2.50 acres [1.0117 hectares] in Survey no.64 of Ambalapara-II Village as per title deed no.7908/2004. Without adhering to the requirements under Section 3 (1) and (2) of the E.F.L Act, the applicant was issued with a communication dated 17.09.2007, which purports to be a declaration that the scheduled properties are ecologically fragile lands under the E.F.L Act. The application scheduled property is not an ecologically fragile land, but only a paramba, with the classification and nomenclature as dry land. There is no natural vegetation in the property, except the vegetation which resulted from human effort and skills. The scheduled land is not lying contiguous to or encircled by reserved or vested forest. There is no predominant natural vegetation and the disputed land would not answer the definition of Section 2 (b), r/w 2(c) of the E.F.L Act. The land was principally cultivated with seasonal dry crops and subsequently by teak and other trees. The scheduled property is bounded on all the four sides by private lands. The applicant is not in possession of any land in excess of the ceiling limit under the Kerala Land Reforms Act. Premised on the above pleadings, the applicant sought for a declaration that the scheduled property is not an ecologically fragile land as defined under the E.F.L Act. The applicant also sought for restoration of possession.

3. The Divisional Forest Officer concerned filed counter statement admitting that O.A.499/1975 filed in respect of 2.50 acres of land, of which the scheduled property is a part by the petitioner's mother was allowed, granting exemption under Section 3 (2) of the Kerala Private Forests (Vesting and Assignment) Act , 1971 [for short, 'the Vesting Act']. Although the forest department was taking steps to restore the land, for which, several administrative formalities have to be completed, the land became vested with Government under the E.F.L Ordinance 2000, subsequently replaced by the E.F.L Act, 2003. As per Ext.B2 notification dated 15.05.2001, the disputed land was notified as an ecologically fragile one, vide item no.29. The scheduled property is a forest land, with large number of valuable trees like teak, banyan, karivaka, paala, kannan vaka, cashew etc. The boundary description in the O.A are not correct, which does not tally with the actual boundaries. On such premise, respondent sought for dismissal of the O.A.

4. The applicant was examined as PW1. On behalf of the respondents, Exts.B1 to B3 were marked through the Forest Range Officer concerned. The Commissioner's report was marked as Ext.C1.

5. The Tribunal, upon appreciation of the facts and evidence, found that the scheduled property, which stood exempted from the Vesting Act as per orders in O.A.No.499/1975, was not restored back to the possession of the applicant. The Tribunal placed reliance upon the Ext.C1 report of the Commissioner to find that, stone walls have been put upon the eastern, southern and western boundaries of the scheduled properties and that, the property was planted with teak trees of the age varying between 10 and 50 years. There was no naturally grown trees and undergrowth. Nor was there any predominant natural vegetation. The Tribunal found that the scheduled property is not an ecologically fragile land in terms of the definition under Section 2 (b) of the E.F.L Act and allowed the O.P declaring the same.

6. Sri.Nagaraj Narayanan, learned Special Government Pleader (Fores