Property not 'forest' under EFL Act if principally planted teak; inadequate inspection requires remand.

JUDGMENT :

SATHISH NINAN, J.

1. The original application, seeking a declaration that the OA schedule property, having a total extent of 9.58 acres, is not an “ecologically fragile land” under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as 'the EFL Act'), was dismissed by the Tribunal. The applicants are in appeal.

2. In respect of the property, there was a proceeding under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as 'the Vesting Act'). The proceedings culminated in favour of the applicants. Ext.A6 is the judgment dated 24.06.1982 in M.F.A.No.84 of 1978, affirming the order of the Tribunal granting exemption. The possession of the property was restored to the applicants-appellants on 16.09.1998 pursuant to the orders of this Court in O.P.No.4360 of 1998. Such restoration is evidenced by Ext.A4, which contains the copy of the survey plan of the property restored. Ext.A4 further contained a notification under Section 5 of the Kerala Preservation of Trees Act, 1986, whereunder, the appellants- applicants were prohibited from cutting down the trees in the property. This was followed by a notification under the EFL Act on 11.09.2001. It is accordingly that the Original Application was filed before the Tribunal.

3. The Original Application was initially dismissed by the Tribunal. The order was set aside and the matter was remanded back by this Court as per the judgment in M.F.A. (Forest) No.236 of 2010. After the remand, the Tribunal dismissed the original application.

4. We have heard Shri.M.P. Madhavankutty, the learned counsel for the appellants and Shri.Nagaraj Narayanan, the learned Special Government Pleader (Forests) for the respondents.

5. The learned counsel for the appellants would contend that, to fall within the definition of 'forest' under Section 2 (c) of the EFL Act, the land must be principally covered with naturally grown trees and undergrowth. In the proceedings under the Vesting Act, the applicants' claim was that the property is under their personal cultivation, that they had planted teak therein. The claim was upheld and the property was held to be exempted from vesting. In the present proceeding, though a commissioner was deputed to inspect the property along with an expert, the question as to whether the property is principally covered with ‘naturally grown trees’ was not ascertained. If the property is found to be principally cultivated with teak, then it has to be concluded that the property is not principally covered with naturally grown trees. Such a finding would take the property out of the definition of 'forest’ under the EFL Act. It is also argued that, though the property was restored to the applicants pursuant to the vesting proceedings on 06.01.1998, since on the very same day it was notified under the Preservation of Trees Act, the applicants were disabled from further cultivating and maintaining the teak plantation. The State after having been obstructed the applicants from cultivating the property, cannot be heard to say that the nature of the property has changed into EFL land. To buttress the argument, the learned counsel relied on the judgment of this Court in Kumari Varma v. State of Kerala, 2011 (1) KLT 1008.

6. The learned Special Government Pleader would, on the other hand submit that, going by the commissioner's report, it is evident that the land is principally covered with trees of forest species and that the teak found in the property is only few when compared to number of the other trees standing in the property. Further, it cannot be said that all the teak trees standing in the property are those planted by the applicants. There are naturally grown ones also. As regards the notification under the Preservation of Trees