The EFL Act requires a nature assessment of land as of the appointed date, not merely the intent to cultivate, to determine ecological status.

Sathish Ninan, J.

The original application seeking a declaration that the application scheduled property is not an ecologically fragile land, was allowed by the Tribunal. The State is in appeal.

2. The application schedule property has an extent of

133.0509 hectares. It is part of a larger extent of 199.46.03 hectares. The applicants claim that the property is a plantation, principally with rubber, coffee and tea. Though as on the appointed day the property was not a lush plantation, it was a plantation under cultivation. There were proceedings initiated by their creditor Bank and the Employees Provident Fund authorities. The property was in the possession of a receiver for quite some time. Consequently, the plantation could not be well maintained. The applicant seeks a declaration that the property is not an ecologically fragile land.

3. The State contended that the scheduled property was lying as a forest since the year 1996. Out of the larger extent of property that belonged to the applicants, a portion vested with the State under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short “the Vesting Act”); a portion which was a plantation was exempted from vesting. It is the remaining extent which lies as a forest, and it satisfies the ingredients of an ecologically fragile land under the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act (for short “the EFL Act”).

4. The Tribunal held that the evidence on record indicates that the applicant has no intention to abandon the plantation and to permit the land to become a forest. Accordingly, the OA was allowed.

5. We have heard Sri.Nagaraj Narayanan, the learned Special Government Pleader (Forest), and Dr.K.P.Satheesh (Sr.) and Sri.G.Sreekumar (Chelur), the learned counsel appearing on behalf of the applicants/respondents and Sri.M.Gopikrishnan Nambiar on behalf of the 4^th respondent Bank.

6. The learned Special Government Pleader argued that the application schedule is part of a larger extent of property out of which a portion has been exempted as plantation and that there has not been a proper identification of the application schedule property. The age of the trees in the property and as to whether the property is principally cultivated, have not been ascertained through an expert. Such ascertainment was necessary to find the character of the property as on the appointed day viz. 02.06.2000. It is also argued that the State never interfered with possession and enjoyment of the property by the applicants. The failure on the part of the applicants to cultivate the property, resulting in the property acquiring the nature of an ecologically fragile land as on the appointed day, cannot be attempted to be got over by contending that they had an intention to cultivate, it is argued.

7. The learned counsel for the respondents would on the other hand contend that, the Commissioner has noted that the property remained as a plantation, though not so well maintained. The applicants were disabled from maintaining the plantation due to various proceedings against them by their creditor Bank and the EPF authorities. The bonafides and intention of the applicants to cultivate and to maintain the plantation is evident from their conduct in having prosecuted the proceedings against their creditors, including the proceedings challenging the sale held by the Debts Recovery Tribunal at the instance of the creditor Bank. It is also contended that the officials of the Forest Department were present at the time of the visit of the Commissioner and hence the challenge against identification has no substance.

8. As was noticed earlier, the applic