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[Cites 12, Cited by 0]

Kerala High Court

The Government Of Kerala vs Varkey Chakkalayil on 19 November, 2018

Author: K.Harilal

Bench: K.Harilal

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR.JUSTICE K.HARILAL

                                  &

                 THE HONOURABLE MR. JUSTICE A.M.BABU

    MONDAY ,THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940

                         MFA No. 106 of 2014

AGAINST THE ORDER/JUDGMENT IN OA 4/2013 OF THE TRIBUNAL FOR        EFL
    CASES/1st ADDL.DISTRICT COURT, KOZHIKODE DATED 30-04-2014

APPELLANT/S:


      1        THE GOVERNMENT OF KERALA
               REP.BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA,
               THIRUVANANTHAPURAM.

      2        THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS
               VESTED IN GOVERNMENT (THE PRINCIPAL CHIEF CONSERVATOR
               OF FORESTS), FOREST HEAD QUARTERS, VAZHUTHACAUD,
               THIRUVANANTHAPURAM.

               BY ADV. SRI.NAGARAJ NARAYANAN, SPL.G.P FOR FOREST

RESPONDENT/S:
       1      VARKEY CHAKKALAYIL
              S/O. MATHAI, CHAKKALAYIL HOUSE, KODENCHERY, KOZHIKODE
              DISTRICT-673 504.

      2        GEORGE
               S/O. VARKEY, KARAYAKUDIYIL HOUSE, KODENCHERRY,
               KOZHIKODE DISTRICT, REP.BY HIS POWER OF ATTORNEY
               HOLDER K.T.THOMAS, S/O. THOMAS, KIZHAKKEDATH HOUSE,
               KODENCHERRY P.O., KOZHIKODE DISTRICT-673 504.

      3        JOLLY @ DOMINIC
               S/O. JOSEPH, THEKKEKKARA HOUSE, INGAPUZHA P.O.,
               THAMARASSERY VIA, KOZHIKODE DISTRICT-673 504.

               BY ADVS.
               SRI.P.T.ABHILASH
               SRI.BABU JOSEPH KURUVATHAZHA


THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2017,
ALONG WITH MFA.118/2014, MFA.110/2014, THE COURT ON 19.11.2018
DELIVERED THE FOLLOWING:
                                            2
MFA Nos 106,110 and 118 of 2014


                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                       THE HONOURABLE MR.JUSTICE K.HARILAL

                                           &

                       THE HONOURABLE MR. JUSTICE A.M.BABU

     MONDAY ,THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940

                                  MFA.No. 110 of 2014

   AGAINST THE ORDER/JUDGMENT IN OA 5/2013 OF THE EFL TRIBUNAL/1st
          ADDL.DISTRICT COURT, KOZHIKODE DATED 30-04-2014



APPELLANT/S:


         1         THE GOVT. OF KERALA
                   REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF
                   KERALA, THIRUVANANTHAPURAM.

         2         THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS
                   VESTED IN GOVERNMENT (THE PRINCIPAL CHIEF CONSERVATOR
                   OF FORESTS), FOREST HEAD QUARTERS, VAZHUTHACAUD,
                   THIRUVANANTHAPURAM.

                   BY ADVS.
                   SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST


RESPONDENT/S:
                   V.K.KURIACHAN
                   S/O. KURIAKOSE, VAMATTATHIL HOUSE, KODENCHERRY,
                   KOZHIKODE PIN 673504, REPRESENTED BY HIS POWER OF
                   ATTORNEY HOLDER AND BROTHER V.K. SEBASTIAN.

                   BY ADVS.
                   SRI.P.A.MOHAMMED SHAH
                   SMT.P.M.MAZNA MANSOOR
                   SRI.S.PRASANTH
                   SRI.T.S.SARATH


THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2017,
ALONG WITH MFA.118/2014, MFA.106/2014, THE COURT ON 19.11.2018
DELIVERED THE FOLLOWING:
                                            3
MFA Nos 106,110 and 118 of 2014



                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                       THE HONOURABLE MR.JUSTICE K.HARILAL

                                           &

                       THE HONOURABLE MR. JUSTICE A.M.BABU

     MONDAY ,THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940

                                  MFA.No. 118 of 2014

   AGAINST THE ORDER/JUDGMENT IN OA 6/2013 OF THE EFL TRIBUNAL/1st
          ADDL.DISTRICT COURT, KOZHIKODE DATED 30-04-2014



APPELLANT/S:


         1         THE GOVERNMENT OF KERALA
                   REP.BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA
                   THIRUVANANTHAPURAM

         2         THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS
                   VESTED IN GOVERNMENT (THE PRINCIPAL CHIEF CONSERVATOR
                   OF FORESTS), FOREST HEAD QUARTERS, VAZHUTHACAUD
                   THIRUVANANTHAPURAM.

                   BY ADVS.
                   SRI.NAGARAJ NARAYANAN SPL. G.P. FOR FOREST



RESPONDENT/S:
                   V.K.SEBASTIAN
                   S/O.KURIAKOSE, VAMATTATHIL HOUSE, KODENCHERRY
                   KOZHIKODE-673 504.

                   BY ADVS.
                   SMT.P.M.MAZNA MANSOOR
                   SRI.P.A.MOHAMMED SHAH


THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2017,
ALONG WITH MFA.110/2014, MFA.106/2014, THE COURT ON 19.11.2018
DELIVERED THE FOLLOWING:
                                        4
MFA Nos 106,110 and 118 of 2014



                                  JUDGMENT

A.M.BABU, J.

O.A Nos 4, 5 and 6 of 2013 are three original applications filed before the tribunal at Kozhikode constituted under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act (for short 'the EFL Act'). The tribunal tried the three original applications jointly and disposed of them by a common order. We therefore dispose of the appeals by a common judgment. The parties are referred to as the claimants and respondents. Respondents 1 and 2 are respectively the government of Kerala and the custodian of ecologically fragile lands.

2. The case of the claimants may be briefly stated as follows: Claimants 1 to 3 in OA 4/2013 own the lands shown therein as Bit-I, Bit-II and Bit-III respectively. Those lands measure 9.30 acres, 6.95 acres and 4.90 acres respectively; totalling 21.15 acres. The claimant in OA 5/2013 is the owner of 1.5 acres of land. The claimant in OA 6/2013 owns 1.18 acres of land. All the lands referred to above lie contiguously and are comprised in resurvey No.15/1 of Kodenchery village in Kozhikode district. Every land was brought under cultivation before 2.6.2000. Bit-I in OA 4/2013 contains 3400 areca trees, 200 coconut trees and 700 vanilla plants besides cashew trees, 5 MFA Nos 106,110 and 118 of 2014 jackfruit trees et cetera. A residential building and a cattle shed are situated in Bit-I. Bit-II is an areca garden. There are coconut trees (200 in number), jackfruit trees and vanilla plants in Bit-II. Besides a large number of areca trees, Bit-III contains coconut trees, pepper vines, cocoa plants, mango trees and jackfruit trees. The third claimant in OA 4/2013 is residing with family in the house situated in Bit-III. The lands in OA 5/2013 and OA 6/2013 are cultivated with arecanut, coconut, pepper, plantain, coffee and mango. The trees referred to above were aged more than 22 years when the applications were filed. There are no forest species trees or natural vegetation in any of the lands. Nor are the lands ecologically fragile lands. The lands of the claimants were notified as private forests under the Kerala Private Forests (Vesting and Assignment) Act. The original applications filed by the applicants were allowed by the forest tribunal, Kozhikode. The order of the forest tribunal was confirmed by the High Court and the Supreme Court. The lands were restored to the possession of the claimants. It was thereafter the same were notified as ecologically fragile lands. The said notification is liable to be set aside. The claimants are entitled to a declaration that the lands are not ecologically fragile lands and therefore not liable to be vested in the government.

3. The contentions of the respondents go as under: The 6 MFA Nos 106,110 and 118 of 2014 lands in question did vest in government under Sec.3(1) of the EFL Act. Therefore the impugned notification has been published. The lands claimed by the claimants are portions of a large extent of area measuring 65.075 hectares notified as ecologically fragile lands. The entire area is vested in the government. The claimants have no manner of right in the lands claimed by them. The lands shown in the applications are not cultivated lands. Forest species like Vatta, Charuvatta, Pottama, Parakam, Kadamb, Cheruthek, Thanni, Kambili, Vellapine et cetera are available in the lands in large quanities. The entire area is covered with dense undergrowth. The area is inhabited by wild animals like elephants, wild pigs, wild boars, sambar deers, barking deers, porcupines, wild rabbits et cetera . The area is a wildlife corridor. There is no human inhabitation in the area. But for remnants of some structure, there is no tiled house in any land claimed by the claimants; although some cash crops are seen in Bits-I to III. The disputed lands support areca trees of the age 18 years amidst the natural vegetation. The claimants have no manner of right, title, interest or possession in the disputed lands.

4. PWs 1 to 5 were examined and Exts A1 to A11 were marked on the side of the claimants. On the side of the respondents, RW1 was examined and Exts B1 to B5 were marked. The tribunal conducted site inspection and prepared two reports. 7 MFA Nos 106,110 and 118 of 2014

5. The tribunal allowed OA Nos 4 and 5 of 2013. It partly allowed OA 6/2013. The operative portion of the common order of the tribunal reads as under:

The entire land except the land situated on the left side of the stone pathway leading to Thusharagiri waterfalls are declared not "Ecologically Fragile Lands"
liable to be vested in government under any of the provisions of the Ecologically Fragile Lands' Act (Act 21 of 2005) and to that extend, notification No.C4- 21437/2000 dated 4.10.2000 is set aside and those lands are deleted from the impugned notification.

6. We heard Sri.Nagaraj Narayan, the learned special government pleader for forest cases appearing for the respondents(appellants). Sri.Babu Joseph Kuruvithazha, the learned counsel for the claimants in OA 4/2013 and Sri.Mohammed Shah, the learned counsel for the claimants in OA Nos 5 and 6 of 2013 were also heard.

7. The dispute is whether the disputed lands are ecologically fragile lands vested in the government under Sec.3(1) of the EFL Act. A notification was issued under Sec.3(2) of the said Act. Ext B1 is a copy of the said notification. The disputed lands are also taken in the notification as ecologically fragile lands vested in the government. The tribunal declared that the disputed lands, barring a portion of the land involved in OA 8 MFA Nos 106,110 and 118 of 2014 6/2013, were not ecologically fragile lands and therefore not liable to be vested in the government. The tribunal did not stop there. It set aside Ext B1 notification to the extent it related to the lands which were declared to be not ecologically fragile lands. The tribunal deleted the entries in the notification pertaining to those lands. Sec.10 of the EFL Act deals with settlement of disputes by the tribunal. Sec.10 (1) confers on the tribunal the jurisdiction (i) to declare whether any land is an ecologically fragile land or not or whether any ecologically fragile land or portion thereof has vested in the government or not and (ii) whether the compensation determined under Sec.8 is insufficient or not. If the tribunal decides that any land is not an ecologically fragile land or that an ecologically fragile land has not vested in the government and the appeal against the order of the tribunal is dismissed or no appeal is filed, the custodian shall restore possession of such land or portion, as the case may be, to the owner of such land. It is so provided by Sec.10 (3) of the EFL Act. Sec.10 (4) provides that if the tribunal revises the amount of compensation and the appeal is dismissed or no appeal is filed, the custodian shall pay such compensation to the owner of such land. Thus, going by the scheme of the EFL Act, the follow up is to be taken by the custodian. The tribunal is not conferred with the jurisdiction to set aside any notification issued under the EFL 9 MFA Nos 106,110 and 118 of 2014 Act or to delete any entry from any such notification. The impugned order of the tribunal is liable to be interfered with to the extent it directs setting aside of Ext B1 notification partly and deletion of certain entries therein. The appeals shall be allowed to the extent indicated above in any case.

8. We shall next consider the question whether the tribunal went wrong in granting the declaration sought by the claimants. They claim to own the respective properties claimed by them. They produced title deeds which were marked as Exts A1, A5 A8 and A9. Their title to the properties is not in dispute. Admittedly it was from them possession of the properties was taken by the respondents as ecologically fragile lands. The respondents can have no claim in the disputed properties unless the properties are vested in the first respondent/government as ecologically fragile lands.

9. Certain provisions of the EFL Act are to be understood before considering the merits of each case. Sec.3 (1) provides that ecologically fragile lands do vest in government with effect from the date of commencement of the Act. Sec.2(b) defines the term 'ecologically fragile lands'. The term as defined in clause (i) of Sec.2(b) 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 10 MFA Nos 106,110 and 118 of 2014 government and predominantly supporting natural vegetation. Therefore a particular land can be termed an ecologically fragile land only if it is a forest land or a portion thereof held by any person. Such land must also be lying contiguous to or encircled by any kind of forest. It should also be a land predominantly supporting natural vegetation.

10. The key question therefore is whether the disputed properties are forest lands. Sec.2(c) of the EFL Act defines 'forest'. 'Forest', as defined in Sec.2(c), means any land principally covered with naturally grown trees and undergrowth and any forest statutorily recognised and declared as reserved forest, protected forest or otherwise, but does not include any land which is 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. Needless to say that in order to attract the definition of the term 'forest', the disputed properties should be forest lands as defined in Sec.2(c) as on 2.6.2000 which was the date of commencement of the EFL Act. It is so because vesting takes place under Sec.3 of the EFL Act with effect from the date of commencement of the said Act.

11. The burden is certainly on the claimants to prove that 11 MFA Nos 106,110 and 118 of 2014 the disputed properties were not forest lands as on 2.6.2000. Their attempt has been to establish that as on 2.6.2000 the disputed properties were not principally covered with naturally grown trees and undergrowth, but were used principally for the cultivation of coconut, arecanut and other crops. It was also their attempt to establish that in some of the properties stood residential and other buildings. Another attempt of theirs was to establish that the properties were neither contiguous to or encircled by any kind of forest. Did they succeed in their such attempts? That is the question.

12. PWs 1 and 3 are respectively claimants 1 and 3 in OA 4/2013 and they claim Bit-I and Bit-III respectively. PW2 is the power-of-attorney holder of the second claimant in OA 4/2013 who claims Bit-II. PW4 is the claimant in OA 6/2013. The claimant in OA 5/2013 did not adduce oral evidence. Rebuttal evidence was given by RW1 who was the forest range officer of Thamarassery range. We shall discuss the oral evidence.

13. PW1 spoke that Bit-I was under cultivation since 1988. The crops cultivated, according to him, were coconut, arecanut, vanilla, cashew, pepper et cetera. He deposed that there were 3400 arecanut trees, 200 coconut trees and 700 vanilla plants and also a few cashew trees and jackfruit trees in Bit-I. Going by his evidence, the arecanut trees and coconut trees were aged 22 12 MFA Nos 106,110 and 118 of 2014 years as on the date of his giving evidence (30.6.2013). He spoke to the existence of a tiled house and a cattle shed in Bit-I. He asserted that before 2.6.2000 there were no forest trees, natural vegetation or undergrowth in his property. According to him, his property was a well maintained plantation as on 2.6.2000. It was also his assertion that the properties on the four sides of his property were also cultivated lands and not forest.

14. The evidence of PW2 may be summarised as under:

Bit-II measuring 6.95 acres and belonging to the second claimant in OA 4/2013 was cultivated with arecanut, coconut, cashew, jackfruit, pepper et cetera since 1993. There are 1600 good yielding coconut trees in Bit-II. Those trees are aged 20 to 22 years. There are arecanut trees of the same age. Bit-II is a mixed plantation of coconut trees and arecanut trees. The land contains other crops such as pepper, vanilla, cashew et cetera. It was a well maintained garden. Natural vegetation, forest trees and undergrowth were totally absent prior to 2.6.2000. Bit-II is encircled by cultivated lands. No forest is available on any side of Bit-II.

15. The evidence of PW3 goes as follows: Bit-III measuring 4.90 acres was cultivated by him since his purchase of it in 1993. The property contains arecanut trees, coconut trees, pepper vines, cocoa plants, mango trees, cashew trees et cetera. There 13 MFA Nos 106,110 and 118 of 2014 are 1700 arecanut trees in the property. Those trees are aged about 22 years. He constructed a tiled house in Bit-III and was residing in the said house with his family. There was no natural vegetation or forest trees in the property before 2.6.2000. The properties on all the four sides of Bit-III are cultivated lands. Bit- III does not share boundary with any forest on any side.

16. PW4 also gave evidence in the same lines. He spoke that the property in OA 6/2013 measuring 1.18 acres was cultivated by him with arecanut, coconut, pepper,coffee et cetera long before 2.6.2000. He deposed that the arecanut trees numbering 400 and the coconut trees were aged more than 22 years. He stated that his property was bounded on all sides by similarly planted agricultural properties. He asserted that no forest species tree was available in his property. According to him, besides the agricultural crops, his property contains a farmhouse and also sheds which were used for keeping agricultural tools.

17. PWs 1 to 4 were cross-examined. They were asked in cross-examination about the previous title deeds of their properties. We have already stated, and we repeat, that the respondents can have no claim in the disputed properties unless those properties are ecologically fragile lands. The respondents have no case that the claimants had no title to the properties as 14 MFA Nos 106,110 and 118 of 2014 claimed by them prior to 2.6.2000. PWs 1 to 4 asserted in cross- examination that they were cultivating the properties. They spoke that they were not aware of the state of affairs of the properties after their ejection from the properties. Another attempt in cross-examination was to establish that the Thusharagiri waterfall was very near to the disputed properties. PW1 has stated that the waterfall is 2 km away from his property. No such question was put to PW2. According to PW3, the waterfall is visible from his property. The same is 200 metres away from the property of PW4, he said. The nearness of Thusharagiri waterfall cannot make the disputed properties ecologically fragile lands. Therefore the distance between it and the disputed properties is totally irrelevant. The assertion of PWs 1 to 4 regarding the cultivation of arecanut, coconut et cetera, the age of such trees and the number of such trees were not touched in the cross-examination. The cross-examination of PWs 1 to 4 did not produce any favourable result for the respondents.

18. In his affidavit in lieu of examination-in-chief, RW1 has given evidence in accordance with the contentions of the respondents. He has stated that the disputed properties are full of natural vegetation, undergrowth and forest trees. He has given the names of those trees also. According to him, there are only a few arecanut trees in the whole area. But his such 15 MFA Nos 106,110 and 118 of 2014 evidence cannot be given any weight. It is clear from his evidence in cross-examination that he is not a competent witness to speak to the state of affairs as on 2.6.2000 and before. He gave evidence on 21.8.2013. He spoke that he had taken charge as the forest range officer of Thamarassery range only in November 2017. He said that he had no opportunity to work in Thamarassery range at any time before. He spoke that he inspected the disputed properties only a couple of days before his examination before the tribunal. He conceded that he had no direct knowledge regarding the state of affairs as on 2.6.2000 and before. He spoke that his knowledge was based on records. No such record was produced by the respondents. It is clear from the evidence of RW1 that he gave evidence based on the notifications issued under the EFL Act. He even conceded in cross-examination that he was unable to locate the disputed properties. He spoke that the claimants were not allowed to enter the disputed properties after 2006. That must be the reason for the present state of affairs. The respondents failed to produce sufficient rebuttal evidence. The examination of RW1 did not serve any purpose for them. The oral evidence of PWs 1 to 4 has a clear edge over the evidence of RW1. In such circumstance, we should not hesitate to accept the evidence of PWs 1 to 4 which is clear, cogent and reliable.

16

MFA Nos 106,110 and 118 of 2014

19. The claimants and a few others jointly filed a writ petition before this court. It was numbered WP(C) 12214/2006. The writ petition was disposed of as per Ext A4 order directing the petitioners therein to approach the tribunal to get their grievances redressed. This court in the said proceedings appointed a commissioner to inspect the disputed properties and other properties. The commissioner filed his report. A certified copy of it was marked at the trial before the tribunal as Ext A3. The author of Ext A3 was examined as PW5.

20. PW5 proved his Ext A3 report. He spoke that he inspected different properties in the presence of rival parties. He has asserted that his report is true and accurate. He said he did not see any natural vegetation in the properties. It is also his evidence that the disputed properties are not encircled by forest. According to him, the disputed properties are garden lands and not forest. He deposed that he saw buildings too. He was cross- examined. He stated that he did not measure the disputed properties separately. In our opinion, it was not necessary to measure the properties since nobody at any point of time disputed the identity of any of the disputed properties. PW5 spoke that he was able to assess the age of trees. He is a graduate in Botany. He said that he assessed the age of the trees considering their height and health. That apart, he said, he 17 MFA Nos 106,110 and 118 of 2014 was assisted by an expert whose name was mentioned in Ext A3 report. PW5 stated that he stated the exact number of the trees and not the approximate number. He added that he counted the trees to ascertain the number. After having read the evidence of PW5, we find nothing to reject his report. We find that Ext A3 can be accepted and relied on.

21. We perused Ext A3. The commissioner conducted inspection on 13.5.2006. The claimants, the forest range officer and a forest guard were present at the time of inspection. The expert who assisted the commissioner was Smt.K.P.Raziya Umma who was the assistant soil chemist, district soil testing laboratory, Kozhikode. The commissioner states in Ext A3 that Smt.Raziya Umma was a qualified person in agriculture with the qualification of degree in BSc agricultural science. We do not see anything to suspect the quality of the expert who assisted the commissioner, particularly when the competence of the said person was not questioned by the respondents when PW5 was cross-examined. Ext A3 is a detailed and elaborate report. We shall consider it.

22. In Bit-I property claimed by PW1, the commissioner saw 3400 arecanut trees of the age 10 to 20 years, 200 coconut trees, 700 vanilla plants, a few cashew trees and jackfruit trees. There were a residential building and a cattle shed in the said property. The commissioner noted 1600 coconut trees having the 18 MFA Nos 106,110 and 118 of 2014 age of 16 to 18 years in Bit-II property of the second claimant in OA 4/2013. In PW3's Bit-III property there were 1700 arecanut trees, the age being 16 to 18 years. 8 coconut trees of the same age group were also seen by the commissioner in Bit-III. The commissioner states that pepper vines, cocoa plants, mango trees and jackfruit trees et cetera were also cultivated in that property. There were 400 arecanut trees of the age 15 years in the property claimed by PW4. The said property was planted with coconut trees as well. The commissioner reports that Bit-I to Bit-III and the property of PW4 are well maintained gardens. It is also reported that the trees were high yielding. The commissioner stated so since he had seen large number of arecanuts and coconuts on those trees. The age of the trees as assessed by the commissioner with the help of the expert suggests that those trees were planted before 2.6.2000. In none of the properties referred to above the commissioner saw any natural vegetation or forest tree. The evidence of PWs 1 to 4 gets a fine support from Ext A3 report.

23. The petitioner in OA 5/2013 did not adduce oral evidence in support of his claim. But the commissioner's report suggests that he is also safe. As reported by the commissioner, the said property is fully planted with arecanut. It was interplanted with coconut, coffee, cashew et cetera. The age of 19 MFA Nos 106,110 and 118 of 2014 the coconut trees and arecanut trees was assessed at 15 years. That means those trees were in existence before 2.6.2000. The commissioner reports further that the arecanut trees are planted in clear rows. It is also reported that the said property is similar in nature to the property of PW4. Another fact noted by the commissioner is that the property is free from natural vegetation. The entire area is fully cultivated. It is also stated in the report that the property is not encircled by forest. Ext A3 thus suggests that the property of the claimant in OA 5/2013 was also principally planted with arecanut and interplanted with coconut and other crops.

24. The learned special government pleader made the following submissions. Going by Ext A3 report of the commissioner there were 3400 arecanut trees in Bit-I and 1700 arecanut trees in Bit-III. But the tribunal who conducted local inspection saw only 1000 arecanut trees as stated at paragraph XVI of the impugned order. Smt.Raziya Umma who allegedly assisted the commissioner was not examined. The ages of the trees as assessed by the commissioner were different from the assessment of the tribunal. The commissioner conducted inspection only on one day. It was impossible to count such number of arecanut and coconut trees in one day. The number of trees stated by the claimants in their evidence was not tallying 20 MFA Nos 106,110 and 118 of 2014 with the number stated in different affidavits filed by them in support of different interlocutory applications. We shall consider the aforenoted submissions of the learned special government pleader.

25. The tribunal prepared two reports after conducting local inspection. The commissioner conducted inspection in 2006 and the tribunal in 2014. The gap between the inspection of the commissioner and the inspection of the tribunal was 8 years. The properties were well maintained garden lands when the commissioner conducted inspection. It was not so at the time of the inspection of the tribunal. RW1 spoke that the claimants were not allowed to enter the disputed properties after the inspection conducted by the commissioner in 2006. The tribunal in its report stated as inferred from circumstances that many trees were destroyed by wild elephants. In these circumstances, the reduction in the number of arecanut trees is explainable.

26. It is true that Smt.Raziya Umma was not examined. She should have been examined in the normal course. But it was brought out in the cross-examination of PW5, the commissioner, that he was able to assess the age of trees. It was also brought out in cross-examination that he mentioned the age of different trees according to his own assessment and as assisted by the expert. That means the commissioner did not blindly depend on 21 MFA Nos 106,110 and 118 of 2014 the assistance provided to him by the expert. Therefore the failure to examine the expert cannot be treated as fatal to the claims of the claimants.

27. The disputed properties were well maintained garden lands when the commissioner inspected the properties in 2006. There was no natural vegetation at that time. That was not the condition when the tribunal conducted inspection in 2014. The properties were full of wild growth as stated by the tribunal in its two reports. It was impossible to enter into the properties in OA 5/2013 and OA 6/2013 on 6.11.2014 as seen from the report of the tribunal. The tribunal reported further that it was not even possible to see the heads of the arecanut trees. The tribunal had much difficulties in assessing the approximate age of the trees. It was not so for the commissioner as the properties were well maintained garden lands at the time of his visit. It is also not known whether the tribunal had the skill of assessing the age of trees, which the commissioner did have as stated by him in cross- examination. In these circumstances, the submission that the commissioner and the tribunal assessed the age of the trees differently and therefore the appeals should be allowed does not impress us.

28. The commissioner asserted in cross-examination that he did count all the trees. He deposed further that what he 22 MFA Nos 106,110 and 118 of 2014 stated in Ext A3 were not approximate numbers. No attempt was made at the time of cross-examination of the commissioner to elicit that it was impossible to count the trees in one day. Not even a suggestion to that effect was put to him. We reject the submission that it was not possible to count the trees in one day.

29. We next consider the last submission of the learned special government pleader. The submission was that the number of trees stated by the claimants in their evidence was not tallying with the number of trees stated in different affidavits filed by them in support of different interlocutory applications. If that be so, the claimants who gave evidence should have been confronted with those affidavits. That was not done. We reject the said submission too.

30. We have discussed the evidence. The evidence is almost one-sided. The rebuttal evidence had not been competent and effective. The disputed properties were not forest as defined in Sec.2(c) of the EFL Act for two reasons. First, those properties were not principally covered with naturally grown trees and undergrowth as on 2.6.2000. Secondly, as on 2.6.2000, those lands were used principally for the cultivation of coconut and arecanut. Not being forest within the meaning of Sec.2(c) of the EFL Act, the disputed lands were not ecologically fragile lands within the meaning of Sec.2(b) and therefore those lands did not 23 MFA Nos 106,110 and 118 of 2014 vest in the government under Sec.3(1) with effect from the date of commencement of the said Act. We therefore confirm the declaration granted by the tribunal in respect of the lands which are the subject-matter of the three appeals on hand.

31. The appeals are allowed to a very limited extent. The impugned order of the tribunal is set aside to the extent it directs setting aside of Ext B1 notification and deletion of certain entries in it. The declaration granted by the tribunal in respect of the lands, which are the subject-matter of the appeals, is confirmed. We make no order as to costs.

Sd/-

K.HARILAL JUDGE Sd/-

A.M.BABU JUDGE Sks/14.11.2018 24 MFA Nos 106,110 and 118 of 2014 APPENDIX OF MFA 106/2014 PETITIONER'S/S EXHIBITS:

ANNEXURE-A1 TRUE COPY OF THE 6 NUMBER OF SAMPLE PLOTS IN RELATION TO THE LAND ANNEXURE-A2 TRUE PHOTOGRAPHS OF THE SAMPLE PLOTS OF THE LAND.
RESPONDENT'S/S EXHIBITS:
ANNEXURE-R1(a) TRUE COPY OF THE ADVOCATE COMMISSION REPORT DATED 22/5/2016 IN WP(C) NO.12214/2016, WHICH WAS MARKED AS EXT.A3 REPORT IN OA.NO.4/2013 OF THE LEARNED TRIBUNAL FOR EFL CASES, KOZHIKODE.
ANNEXURE-R1(b) ORIGINAL PHOTOGRAPHS RECORDED ON 13/5/2006 AT THE TIME OF INSPECTION HELD BY THE LEARNED ADVOCATE COMMISSION APPOINTED BY THIS HON'BLE COURT IN WP(c) NO.12214/2016.
ANNEXURE-R1(c) TRUE COPY OF THE MEMORANDUM OF FACTS FILED BY THE LEARNED FIRST ADDITIONAL DISTRICT JUDGE, KOZHIKODE.
ANNEXURE-R1(d) TRUE COPY OF THE AFFIDAVIT FILED BY THE 1ST RESPONDENT BEFORE THE LEARNED TRIBUNAL IN OA. NO.4/2013.
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MFA Nos 106,110 and 118 of 2014 APPENDIX OF MFA 110/2014 PETITIONER'S/S EXHIBITS:
ANNEXURE-A1 TRUE COPIES OF THE 2 NUMBER OF SAMPLE PLOTS IN RELATION TO THE LAND ANNEXURE-A2 TRUE COPIES OF THE PHOTOGRAPHS OF THE SAMPLE PLOTS OF THE LAND RESPONDENTS EXHIBITS NIL 26 MFA Nos 106,110 and 118 of 2014 APPENDIX OF MFA 118/2014 PETITIONER'S/S EXHIBITS:
ANNEXURE-A1 TRUE COPIES OF THE 2 NUMBER OF SAMPLE PLOTS IN RELATION TO THE LAND ANNEXURE-A2 TRUE COPIES OF THE PHOTOGRAPHS OF THE SAMPLE PLOTS OF THE LAND RESPONDENTS EXHIBITS NIL