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2023 Supreme(Online)(Ker) 47744
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K VINOD CHANDRAN, C. JAYACHANDRAN, JJ
STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM – Appellant
Versus
N.K.RAVEENDRAN S/O. MADHAVAN – Respondent
MFA (FOREST) NO. 158 OF 2012 | OA 1/2010
For the Appellants/Petitioners: SRI.NAGARAJ NARAYANAN
For the Respondents: SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL, SRI.K.V.PAVITHRAN, SRI.P.SAJU
The definition of ecologically fragile land under relevant statutes determines land use and restoration obligations.
Headnote:The appeal challenges an order from the Tribunal regarding ecologically fragile land designation. The petitioners sought a declaration that land is not ecologically fragile, which was partly granted by the Tribunal. Key laws include the Kerala Private Forests (Vesting and Assignment) Act, 1971, and the E.F.L. Act's definitions. The court determined that the properties' designations were upheld. The main issue regarded the nature of the scheduled property per E.F.L Act definitions. The court endorsed the Tribunal's decisions regarding plots A, B, and C's designations. The appeal is thus dismissed.
| Table of Content |
|---|
| 1. challenge to tribunal's designation of ecologically fragile land in appeal. (Para 1 , 2) |
| 2. counter statements about land's ecological status. (Para 3 , 4) |
| 3. arguments presented regarding the property's ecological classification. (Para 6 , 7) |
| 4. judicial analysis of the tribunal's findings on land classification. (Para 8 , 9) |
| 5. final decision to uphold the tribunal's classification and dismiss the appeal. (Para 10 , 11) |
C.Jayachandran, J.
The order in O.A. No.1/2010 of the Tribunal for E.F.L cases, Kozhikode is under challenge in this appeal. A declaration was sought for that the scheduled property, having an extent of 3 acres, is not an ecologically fragile land. As per the order impugned, the Tribunal allowed the O.A. in part, granting the declaration sought for in respect of plots A and B, as depicted in Ext.C1(a) plan, having an extent of 2.30 acres, but refusing the same in respect of plot C, having an extent of 75 cents.
2. The Facts:-
The extent of the scheduled property is 1.21 hectares comprised in Re.Sy.no.1/1B of Thavinjhal Village, Wyanad. Applicants are the children of deceased N.V.Madhavan. He filed O.A. No.22/1976 under the Kerala Private Forests (Vesting and Assignment) Act, 1971 ('the Vesting Act' for short) seeking declaration in respect of 9.40 acres of land, comprised in Re. Sy. Nos. 334/2A1, 334/2A2 and 334/2B, that the same is not a vested forest. The O.A. was allowed, challenging which M.F.A. No.181/1979 was preferred before this Court. The same was dismissed and the respondents were directed to restore possession of the said 9.40 acres of land. The respondents filed a revision as R.P. No.70/1987, which was also dismissed. Proceedings under the Contempt of Courts Act was initiated before this Court as C.C.C. No.284/1993, in which this Court passed an order to restore the disputed property within three months. Consequently, the Government, by order No.14447/E2/92 F&WLD, directed restoration. In the mean time N.V. Madhavan passed away. Out of the 9.40 acres, an extent of 3 acres could not be restored, since the same was being used as a burial ground by the Hidayathul Islam Juma- ath Committee. A substituted property having an extent of 3 acres in Re. Sy. no.1/1B of the same Village was handed over to the petitioners on 23.2.1999, which property is disputed in the O.A, from which the instant appeal arose. The scheduled property was sought to be declared as an ecologically fragile land by the respondents, whereupon the petitioners preferred a writ petition as W.P.(C)No.15151/2004 before this Court. The same was disposed of directing the petitioners to approach the Tribunal concerned. Accordingly, the present O.A. is filed seeking a declaration that the scheduled property is not an ecologically fragile land.
3. The Divisional Forest Officer filed counter statement contending that the scheduled property has been notified as an ecologically fragile land vide Ext.B1 notification dated 21.4.2001. The scheduled property predominantly supports natural vegetation and lies contiguous to Government Forest as on the date of vesting, i.e: 2.6.2000. There is no cultivation in the scheduled property and therefore the same is not liable to be declared as not an ecologically fragile land.
4. The evidence in this case consists of Exts.A1 to A4, supported by the evidence of the 2nd applicant as PW1. On behalf of the respondents, Exts.B1 to B7 were marked and RW1 and RW2 were examined. The Commissioner's report and sketch were marked as Exts.C1 and C1(a) respectively, acting upon which, the Tribunal granted reliefs, as already indicated in paragraph no.1 above.
5. Heard Sri.Nagaraj Narayanan, learned Special Government Pleader (Forest) and Sri.Adarsh Kurian on behalf of Sri.K.V.Pavithran, learned counsel for the respondents/applicants. Perused the records.
6. Sri.Nagaraj Narayanan argued that there is apparent conflict between the reports preferred by the expert commissioner and the advocate commissioner and that t
