Statutory vesting under environmental law overrides previous land judgments if compliance is established.

JUDGMENT

Vinod Chandran, J The applicant is concerned with 2.60 hectares of land in Sy.No. 463/6(old Sy.No.381/1/346/5E) of Kongad I Village. Applicant obtained the properties by Ext.A1 assignment deed and even at that point of time it was cultivated with tapioca. Later when he could not cultivate the seasonal crops, he planted acacia; is the contention. In the year 1999 the officials of the Forest Department obstructed the cultivation on the ground of vesting under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity 'the Vesting Act'), upon which the applicant approached the Forest Tribunal with OA No.60/1999. The Tribunal exempted the said properties and an appeal filed before the High Court was rejected. It was in 2007 that a notification under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity 'the EFL Act') was published, that too when the applicant approached this Court with a writ petition for restoration of the properties. The applicant asserted that the scheduled property is not an ecologically fragile land and there is no natural vegetation in the property. It was also contended that the scheduled land was not encircled by reserved or vested forest and the only cultivation in the land was as a result of human skill and labour.

2. The respondent resisting the claim of the applicant specifically contended that the disputed area is a part of Mucheeri acacia plantation raised by the Forest Department in 1987 which lies contiguous to vested forest having total extent of 372 hectares and known as Ayyarmala. It was asserted that the land holds exotic trees and is a habitat for various wild animals; requiring maintenance as a pristine forest land.

3. The Tribunal raised a single issue of whether the land is ecologically fragile land or not. The evidence consisted of the testimony of one witness, each on behalf of the applicant and the respondent. The applicant marked Exts.A1 to A5 and the respondent's witness marked Exts.B1 to B5. Ext. C1 and C1(a) are the Commission report and sketch prepared and produced by the Advocate Commissioner.

4. We heard Sri. Nagaraj Narayanan, learned Special Government Pleader (Forest) and Sri.V.A Johnson (Varikkappallil)

appearing for the respondent.

5. The Tribunal found that any piece of land qualifies as an ecologically fragile land, if it lies contiguous to or encircled by a forest, reserved, vested or otherwise, predominantly supporting natural vegetation and when it is declared to be an ecologically fragile land by notification under S.4. It was found that the earlier application under the Vesting Act was allowed and restoration was granted to the owner only in 2012. Looking at the Commission report, it was found that there is no indication in the report that the scheduled land is predominantly covered by natural vegetation. Ext.A2 judgment under the Vesting Act was relied on to hold that the land is not a forest land ,which stood fortified by the few acacia trees existing on the scheduled land. Ext.A1 title deed also contained a recital that the land conveyed was cultivated. It was found that the mandate of law required under S.4 for publishing a notification had not been established. On the above finding the Tribunal allowed the application granting the declaration sought for under S.10 of the EFL Act.

6. We cannot but observe that the Tribunal erred on every single aspect. At the outset it has to be noticed that, vesting under the EFL Act occurs by two modes; one statutorily and the other by notification on the basis of a recommendation from the Advisory Committee. An ecologically fragile land as defined under the Act, statutorily vests in the Government under S.3. An e