The State cannot assert a property as ecologically fragile if its inaction contributed to the property's condition, necessitating remand for further evidence.

Sathish Ninan, J.

The original application seeking a declaration that the application schedule properties, two in number, are not ecologically fragile lands under the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, (for short “the EFL Act”) was allowed with regard to schedule item No.1 property and was dismissed regarding the other. The appeal is by the 4^th applicant, regarding item No.2.

2. Schedule item No.1 property has an extent of 3.05 acres and schedule item No.2 has an extent of 26.80 acres. The properties belonged to the predecessor-in-interest of the applicants as per Ext.A11 Partition Deed of the year 1947. With regard to the properties, there was an earlier proceeding under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short, “the Vesting Act”), as OA 1433/1974. As per Ext.A1 judgment dated 10.06.1977, the Original Application was allowed. Due to the failure on the part of the respondents/State to restore possession of the property, an Original Petition was filed before as O.P. 12078/2001, which resulted in Ext.A3 judgment dated 06.06.2005. Pursuant thereto, the possession of the property was restored. Alleging obstruction by the State claiming that the properties are ecologically fragile lands, the original application was filed.

3. The respondent contended that the properties in question are lying in ‘Ananganmala Malavaram’ and is an ecologically fragile land.

4. The Tribunal allowed the original application with regard to item No.1. There is no appeal by the State against the same.

5. We have heard Smt.Meena A, the learned counsel for the appellant and Sri.Nagaraj Narayanan, the learned Special Government Pleader (Forests).

6. That schedule item No.2 property, of which alone we are concerned, had the characteristics of an ecologically fragile land as on the appointed date viz.02.06.2000, is beyond dispute.

Such fact is evidenced by Ext.C1 commissioner’s report. The contention of the appellant-applicant is that, pursuant to the proceedings under the Vesting Act, the State failed to restore possession of the property. The property was restored only after Ext.A3 judgment of this Court in the year 2005. The State having prevented the applicants from cultivating the property, cannot be heard to say that the property had partaken the character of an ecologically fragile land as on the appointed day. The learned counsel for the appellant relied on the judgment in State of Kerala v.

Kumari Varma ( 2011 (1) KHC 502 ) in support of the contention.

7. The learned Special Government Pleader would on the other hand contend that, there had been total inaction on the part of the applicant in seeking restoration of possession since Ext.A1 judgment of the year 1977 till the filing of the original petition before this Court in the year 2001. Having not sought for restoration of possession and having been in slumber, the blame cannot be attempted to be rested upon the State for the property having acquired the characteristics of a forest by passage of time, it is argued.

8. In Kumari Varma's case (supra) it was held that, if the State had by its action prevented the cultivation of the property, it cannot take advantage of its own wrong and then contend that the nature of the property has changed into an ecologically fragile land. In the present case, the proceedings under the Vesting Act ended in favour of the applicants in the year 1977. Admittedly the property was not restored till Ext.A3 judgment of this Court in the year 2005. What needs to be considered is whether there was total inaction on the part of the applicants in seeking for restoration or whether they were pursuing steps