A.P.M.Abdul Samad vs State Of Kerala on 23 October, 2017

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Kerala High Court

A.P.M.Abdul Samad vs State Of Kerala on 23 October, 2017

One and the same person filed four applications before the tribunal constituted under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for short the Act). The applications were filed seeking a declaration in each case that the property shown in the schedule to each application was not an ecologically fragile land. The tribunal non-suited the applicant holding that the properties claimed by him were ecologically fragile lands. He is in appeal.

2. The case of the appellant is summarised as follows: The four items of properties shown in the schedules of the applications were portions of a cardamom estate. The leasehold right in those properties was purchased by the applicant under four different sale deeds.

MFA(Forest).22/17 & conn.cases :2:

The jenm right in the properties was purchased subsequently. The appellant was in possession and enjoyment of the properties scheduled to his applications. While so, he was interrupted from enjoying the properties by the D.F.O. of South Wayanad. The claim of the forest department was that the properties held by the appellant were notified as ecologically fragile lands. The said claim is untenable. The properties which were a cardamom plantation before is now a coffee plantation. There has been no vesting of those properties in government. The appellant is entitled to the declaration sought for.

3. The respondents opposed all the applications. The contentions are as under: One hundred hectares of land comprised in different resurvey numbers of Chundale village of Vythiri taluk at Mele Poonchola were notified under section 3(1) of the Act. The properties claimed by the appellant were also included in the notification. Those properties lie contiguous with a vast extent of forest. The entire disputed area known as Mele Poonchola lies on the top of Chembra-Arunagiri Malavaram at an altitude of 1200 MFA(Forest).22/17 & conn.cases :3:

to 1300 metres above sea level. The status of the properties as on the appointed day is that of an ecologically fragile land. Therefore those properties did vest in the government. It is a dense forest predominantly supported by natural vegetation. The allegation that the properties were cultivated with cardamom and coffee is incorrect. The properties were never used for cultivation in the past. The appellant is not entitled to the declaration prayed for.

4. Both sides adduced evidence before the tribunal. PW1 and RW1 were examined. Exts A1 to A14, B1 to B6 and C1 to C4 were marked.

5. The tribunal considered in detail whether the properties claimed by the appellant were principally cultivated with cardamom or coffee. The finding went against the appellant. Therefore his applications were dismissed.

6. We heard Shri C.P.Mohammed Nias, the learned counsel for the appellant and Shri Nagaraj Narayanan, the learned counsel for the respondents.

7. The only question considered by the tribunal was MFA(Forest).22/17 & conn.cases :4:

whether the properties claimed by the appellant were principally planted with cardamom before and coffee at present. The tribunal considered various items of evidence produced before it. It considered the reports of the commissioner and the expert commissioner. The finding was that the properties were not proved to be cultivated principally with cardamom or coffee. It was also said in one sentence at paragraph-11 that the report of the expert showed that there were a large number of wild trees in the properties.

8. We are afraid, the approach of the tribunal was not correct. The attention of the tribunal was focused on the question whether the properties were principally cultivated with cardamom or coffee. The attention of the tribunal did not focus on other relevant matters which should have been considered before considering the matter considered by the tribunal.

9. What do vest in the government under section 3 (1) of the Act are the ownership and possession of all ecologically fragile lands held by any person or any other MFA(Forest).22/17 & conn.cases :5:

form of right over them. Therefore there must be an ecologically fragile land to get the ownership and possession therein vested in the government. The term 'ecologically fragile land' is defined in the Act. The term as defined in section 2(b)(i) of the Act means any forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the government and predominantly supporting natural vegetation. Therefore in order to call a particular land an ecologically fragile land it should not only be a forest land or any portion of a forest land held by any person, but also it must be lying contiguous to or encircled by any kind of forest. It should also be a land predominantly supporting natural vegetation. Unlike other forest enactments, the Act defines the term 'forest'. It, as defined in section 2(c) of the Act, means any land principally covered with naturally grown trees and undergrowth and includes any forests statutorily recognised and declared as reserved forest, protected forest or otherwise, but does not include any land which is MFA(Forest).22/17 & conn.cases :6:

used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of residential buildings and surroundings essential for the convenient use of such buildings. The tribunal did not consider whether the lands in question could be called a forest or portion of a forest.

10. As crucial aspects have not been considered by the tribunal we have no go but to direct that the cases should go back to the tribunal for fresh consideration. The tribunal should first consider whether the lands in question were forest lands or any portion thereof. It should also be considered whether the lands lie contiguous to or encircled by a reserved forest or vested forest or any other forest land owned by the government. It should also be considered whether the lands predominantly support natural vegetation. The definition of the term 'forest' as defined in section 2(c) of the Act should also be kept in mind while deciding the cases. The above matters have not at all been considered by the tribunal. We therefore MFA(Forest).22/17 & conn.cases :7:

remand the cases back to the tribunal for fresh disposal. Needless to say that the burden is on the appellant to prove that the lands in question are not ecologically fragile lands.

11. We allow all the four appeals before us. We direct the parties to suffer their respective costs in the appeals. The impugned common order of the tribunal is set aside. The four cases are remanded to the tribunal for disposal anew. It shall be an open remand. The parties are free to adduce further evidence. They will appear before the tribunal on 27-11-2017.

Sd/-

K.HARILAL, Judge.

Sd/-

A.M.BABU, Judge.

okb.

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Kerala High Court