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2022 Supreme(Online)(KER) 29022
HIGH COURT OF KERALA
K VINOD CHANDRAN, C. JAYACHANDRAN, JJ
STATE OF KERALA – Appellant
Versus
ABDUL RAHMAN – Respondent
OP(FT)/3/2022
SRI.NAGARAJ NARAYANAN, SPL. GOVERNMENT PLEADER
The EFL Act's criteria for determining ecologically fragile land does not mandate expert testimony on ecological significance in adjudicating claims for land vesting.
Headnote:
Ecology - Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act - Sections 2(b), 3(1), 10 - The court upheld the Tribunal's orders regarding expert evidence on ecological sensitivity and clarified the statutory framework for determining ecologically fragile lands under the EFL Act.
Fact of the Case:
The State challenged the Tribunal's refusal to allow expert ecological testimony concerning land declared as ecologically fragile under the EFL Act, arguing it was critical to understanding the land's ecological status.
Finding of the Court:
The court found no valid explanation for the delay in contesting the Tribunal's orders and that the ecological significance was not a requisite for determining the land's status under the EFL Act.
Issues: Whether the Tribunal erred in denying the State's applications for expert testimony and the legal implications of the ecological significance of the land under the EFL Act.
Ratio Decidendi: The court concluded that the EFL Act does not require assessment of ecological significance in disputes over land status and emphasized the importance of timely procedural compliance.
Final Decision: The original petition is dismissed in limine with reservations.
JUDGMENT
K.Vinod Chandran, J.
The original petition is filed by the State against Exts.P5 & P8 orders of the Tribunal appointed under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 [for brevity, 'EFL Act']. The learned Special Government Pleader (Forests) Sri.Nagaraj Narayanan first responded to our query, regarding delay in approaching this Court with a challenge against Ext.P5, as due to the pandemic situation. It is argued that the Tribunal has shut out the best evidence by refusing to depute an expert to report on the ecological sensitivity of the area by Ext.P5 and also by Ext.P9 order rejecting the further prayer made by the Government for examining an expert to speak on such ecological factors unique to the area in which the land is situated. It is urged that it was the bounden duty of the applicants to ensure that a proper report of inspection is filed by a Commissioner appointed, especially when the factors required to be looked into by the Tribunal also relates to the fragile ecological status of the land on which a declaration is sought. The learned Special Government Pleader would urge us to admit the original petition, stay the proceeding before the Tribunal and after hearing the parties, allow the prayer to depute an expert to report on the ecological factors or at least examine the expert witness proffered by the State to testify on the same.
2. We need to first look at the proceedings as revealed from the exhibits produced in the original petition. The respondents herein were applicants before the Tribunal under S.10 of the EFL Act seeking a declaration that the scheduled land having an extent of 8.81 Acres in Tarur-II Village of Alathur Taluk, of Palakkad District is not an ecologically fragile land. A commission was taken out by the applicants, the report of which along with the sketch prepared is found at Ext.P1. There was then an application filed by the applicants for amendment, in the pleadings and also in the relief portion. Insofar as the pleadings are concerned, the applicants sought to incorporate an additional pleading regarding O.A.No.5 of 2001 disposed of by the Forest Tribunal, Kozhikkode on 24.01.2003. In the relief portion two additional prayers were sought to be incorporated; one, of the disputed property not having vested under S.3(1) of the EFL Act, thus its ownership and possession not being transferred to the Government and the other to declare that the judgment in O.A.No.5 of 2000 is still in force and not extinguished. The Tribunal, by Ext.P2 order, found that the amendment sought in the pleadings and the prayer as to the land being not vested in the Government does not materially alter the nature and characteristics of the original application and no prejudice will be caused to the respondent; which amendments stood allowed. However, the declaration sought regarding the earlier O.A, in the relief portion, was rightly found to be not possible by the Tribunal in deciding a dispute under S.10 of the EFL Act.
3. While matters stood thus, the State along with the Custodian filed Ext.P3 application to carry out a scientific study through an expert, as to the ecological significance of the scheduled property, which had not been dealt with by the Advocate Commissioner in Ext.P1 report. The applicants resisted the same with Ext.P4 objections pointing out that the aspects sought to be brought forth by a scientific study are not at all germane to the adjudication under the EFL Act. The Tribunal dismissed the application by Ext.P5, on 30.09.2020. The State rested contend after that and in November 2021 after almost an year, filed Ext.P6 application seeking to receive the report of a scientific expert and summon him as a witness to testify on the ecological importance of the property. The Tribunal dismissed the application by Ext.P8 terming the application to be a colourable one and a sheer abuse of the process of Court.
4. Having anxiously considered the orders imp
