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HIGH COURT OF KERALA
K VINOD CHANDRAN, C. JAYACHANDRAN, JJ
STATE OF KERALA – Appellant
Versus
D.S.SANKAR – Respondent
MFA (FOREST) 128/2011
Ecological - Fragile Land - Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003; Kerala Private Forests (Vesting and Assignment) Act, 1971 - The court concluded that the land in question did not meet the criteria for ecological fragility as defined under the relevant statutes, emphasizing the necessity for evidence of natural vegetation and the characterization of land for its restoration under the law.
Fact of the Case:
The applicant sought a declaration that 27 acres of land is not ecologically fragile, resisting claims from the Divisional Forest Officer, who argued that the land had been notified as fragile. The land had a history of prior vesting under the Vesting Act and later restoration.
Finding of the Court:
The Tribunal determined that the scheduled property did not qualify as ecologically fragile land under the EFL Act, taking into account definitions, previous proceedings, and the lack of evidence supporting the respondent's claims about the land's condition.
Issues: Whether the scheduled property is ecologically fragile land under the EFL Act, considering its declared agricultural nature and the prior vesting and restoration of the land.
Ratio Decidendi: The court held that the property in question did not meet the legal definition of ecologically fragile land, as it lacked predominant natural vegetation and had significant prior cultivation, thus invalidating claims to its classification as such under the EFL Act.
Final Decision: The court rejected the appeal and upheld the Tribunal's ruling, allowing the applicant's claim.
JUDGMENT
K.Vinod Chandran, J.
Before the Forest Tribunal constituted under the The Kerala Forests (Vesting and Management Of Ecologically Fragile Lands) Act, 2003 (for brevity 'the EFL Act') the applicant/ respondent sought for a declaration that 27 Acres lying in Survey Nos.127/F1A, 127/G1D, 127/M1C and 127/N2 of Peringottukurissi-II Village is not an ecologically fragile land. The applicant has approached the Tribunal, as one of the co-owners claiming that the land is a pucca paramba with no natural vegetation and cultivation found is as a result of human effort. The four sides of the property also are cultivated lands or parambas.
2. The Divisional Forest Officer [DFO]
resisted the claims alleging that 10.93 hectares in the aforesaid survey numbers of the Village was involved in O.A.409/1981 under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for brevity, 'the Vesting Act'), and restored to the applicant as on 07.12.1998. Consequent to the notification dated 26.08.2000 under the EFL Ordinance, 10.4445 hectares of the restored land was notified as ecologically fragile land. The property lies contiguous to vested forest of Choolannur Malavaram, predominantly supporting natural vegetation. The properties were found to lie in two bits. The DFO also enumerated the forest specie vegetation found in the land and asserted regeneration of a forest in the restored land, which is also a part of the catchment area of the rivers, Bharathapuzha and Mangalampuzha.
3. The Tribunal having framed the sole issue of whether the scheduled property is an ecologically fragile land; found it to be not existing as such a land, liable to be vested under the EFL Act. The Tribunal, noticing the definition of ecologically fragile lands and forest, rightly held that an EFL should be one lying contiguous to or encircled by a forest, either reserve, vested or otherwise, having predominant natural vegetation of trees and undergrowth. The exclusion from such definition would only apply for such forest lands, where there is principal cultivation of long duration crops as enumerated in the definition of 'forest'. The commission reports were also looked into and the objection of the respondents were held to be not sustainable, since they never sought to examine the Advocate Commissioner. The earlier proceedings under the Vesting Act were also noticed along with the delayed restoration. It was found that the respondents neither had a contention that the scheduled land was a forest at the time of the earlier vesting or even at the time of the present vesting, under the EFL Act. The applicants were found to have been prevented from making cultivation in the property, since the restoration was much later. Immediately after restoration, it was notified as ecologically fragile land and there was no justification for the State to deny the owners, restoration of the property, which was declared to be not liable to be vested under the Vesting Act; which was the only reason why there was a regeneration of forest specie in the scheduled land.
4. We heard Sr.Nagaraj Narayanan for the appellant and Sri.M.C.John for the respondent/
applicant.
5. The findings of the Tribunal is in consonance with the reasoning in State of Kerala v. Kumari Varma 2011(1) KLT 1008 , by a Division Bench of this Court. In Kumari Varma [Supra] similar situation arose when the Forest Department divested the owners, possession of a cardamom plantation, on allegation of vesting under the Vesting Act. The owners approached the Tribunal and successfully obtained a declaration that a cardamom plantation is not liable to be vested in the Government. The State unsuccessfully approached this Court with an appeal and also the Hon'ble Supreme Court. Despite the Hon'ble Supreme Court having affirmed the declaration issued by the Tribunal, the property was not restored to the owners, as is statutorily mandated under S.8(3) of the Vesting Act. The property remained unattended till the appointed day u
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