Restoration of property under statutory provisions must occur despite ecological claims if original ownership rights are established.

JUDGMENT

K.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 scheduled property belong to one K.S. Noor Mohammed, from whom the husband of the 1^st applicant and the father of the applicants 2 to 9 purchased it in the year 1982. The original owner K.S.Noor Mohammed filed an application under S.8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity 'the Vesting Act'). In OA No.206/1976, the Tribunal granted exemption from vesting, which was confirmed by the High Court. 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. However, the forest officials refused to restore the property, upon which a Contempt of Court case was filed in the year 2000. After about one year, the forest officials issued a letter to the applicants to the effect that restoration would not be possible since the EFL Ordinance No. 6/2000 came into force. Again, the predecessor- in-interest of the applicants approached the High Court with an original petition in which a Commissioner was deputed to carry out inspection of the property. The Commissioner filed a detailed report showing a plantation of teak trees which was planted by the predecessor-in- interest. It was asserted that there is no natural vegetation or undergrowth available in the property and that in any event, the natural growth was only by reason of the owner being divested of the possession and enjoyment of the property.

2. The Divisional Forest Officer, Nenmara, contended that the land scheduled in the application is part of a larger extent of 1.1615 hectares in Sy.No.46/1 and 72/1 of Thenkurissi village. It was admitted that the property was the subject matter of the earlier OA under the Vesting Act and it was claimed that no restoration could be effected for reason of the EFL Ordinance having come into force. It was asserted that there was no cultivation in the land prior to 1.6.2000, the appointed day under the EFL Act and the land is predominantly covered with natural vegetation and thick undergrowth, with vested forest on its boundaries.

3. State of Kerala v. Kumari Varma 2011(1) KLT 1008 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, which confirmed 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 natural 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 of the possession and denied restoration 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 prope