The State cannot assert land vesting under the EFL Act when it failed to restore the land after a prior exemption was granted.

JUDGMENT

Vinod Chandran, J The State is in appeal, aggrieved with the order of the Forest Tribunal constituted under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity 'the EFL Act'). The application was one filed under S. 10 of the EFL Act for declaration that the scheduled land is not an ecologically fragile one. The applicant purchased 10 acres from one Sankarappa Gowder in 1965 and was holding the same with cultivation carried on. Meanwhile 7 out of the 10 acres were alleged to have vested under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity 'the Vesting Act') against which O.A No.7/87 was filed before the Forest Tribunal constituted under that Act. The Tribunal in the said proceedings granted exemption from vesting which was confirmed by the High Court in MFA No. 688/1988. Despite the order of the High Court in appeal; in clear contravention of the provision for restoration in the statute, the respondent forest officials refused to restore the property. A Writ petition was filed by the applicant in which restoration was ordered. Though restoration was effected the DFO Mannarkad informed the applicant that the property is now vested under the EFL Act. The respondent asserted vesting by the subsequent enactment and claimed that the area is rich in wild life, flora and fauna. There was no cultivation existing as on the date of vesting and the rivulet situated in the property makes it a corridor for elephants and sambar deer was the further case put forth.

2. We heard Sri. Nagaraj Narayanan, the learned Special Government Pleader (Forest) and Sri. S Vinod Bhat for the respondent/applicant. The learned Counsel for the respondent relied on State of Kerala v. Kumari Varma 2011(1) KLT 1008 .

3. Kumari Varma (supra) was a case in which cardamom plantations were alleged to have vested under the Vesting Act and taken over by the Forest Department. Despite the owner having succeeded upto the Hon'ble Supreme Court; confirming the declaration of exemption granted by the Forest Tribunal, the property was not restored to the rightful owners. Subsequently when the EFL Act came into force the State alleged the land to have vested under the EFL Act; which land was then filled with naturally grown trees and undergrowth. A Division Bench of this Court found that such natural growth occurred in the property only by reason of the owners having been divested from the possession and denied enjoyment even after a declaration of exemption was granted by the Tribunal. The reasoning was that the State having denied restoration of land, despite a statutory mandate to so restore the property after the High Court has dismissed the appeal; it cannot rest upon its own wrong to claim vesting under the EFL Act, which conversion of the nature of land was only since the owner was denied permission to enjoy the property.

4. In the present case the applicant gave evidence as PW1 and clearly deposed that the area was cultivated as on the appointed day under the Vesting Act; which enabled exemption from vesting. The respondent could not shake the testimony of the witness in cross-examination. The order of the Tribunal was produced as Ext.A1 and that of the High Court confirming Ext.A1 as Ext.A2. Ext.A3 was the certified copy of the judgment of the High Court directing restoration of the land to the applicant, in the writ petition filed. Ext.A4 is a letter issued by the DFO Mannnarkad, contemporaneous to the restoration, which again prevented the applicant from cultivating the property.

5. The appointed day under the EFL Act is 02.06.2000, when admittedly the land was in the possession of the Forest Department. It is also an admitted fact that after the owners were di