Kerala High Court
The State Of Kerala vs T.P.Unnikrishnan on 7 April, 2015
Bench: K.Surendra Mohan, K.Abraham Mathew
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938
MFA.No. 79 of 2016 ()
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AGAINST THE ORDER/JUDGMENT IN OA 11/2012 of FOREST TRIBUNAL,
KOZHIKODE DATED 07-04-2015
APPELLANT(S):
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1. THE STATE OF KERALA
REPRESENTED BY SECRETARY, DEPARTMENT OF FOREST
AND WILDLIFE, SECRETARIAT, THIRUVANANTHAPURAM
PIN- 695 001.
2. THE CUSTODIAN (ECOLOGICALLY FRAGILE LANDS)
AND CHIEF CONSERVATOR OF FORESTS (DEVELOPMENT), FOREST
HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM
PIN- 695 014.
BY GOVERNMENT PLEADER SRI NAGRAJ NARAYANAN
RESPONDENT(S):
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1. T.P.UNNIKRISHNAN
S/O. LATE VELAYUDHAN, RESIDING AT THOZHUTHPARAMBIL
HOUSE, KOONATHARA AMSOM DESOM, KOONATHARA P.O.,
OTTAPALAM TALUK, PALAKKAD DISTRICT (DIED). PIN-679523.
2. RATHNAKUMARI,
W/O. LATE T.P. UNNIKRISHNAN,
THOZHUTHPARAMBIL HOUSE, KOONATHARA AMSOM DESOM,
KOONATHARA P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT
PIN- 679 523.
3. RIDHESH,
S/O. LATE T.P. UNNIKRISHNAN,
THOZHUTHPARAMBIL HOUSE, KOONATHARA AMSOM DESOM,
KOONATHARA P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT
PIN- 679 523.
4. RIJI,
S/O. LATE T.P. UNNIKRISHNAN
THOZHUTHPARAMBIL HOUSE, KOONATHARA AMSOM DESOM,
KOONATHARA P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT
PIN- 679 523.
R1-R4 BY ADV. SRI.GEORGE SEBASTIAN
R1-R4 BY ADV. SRI.S.RANJIT (KOTTAYAM)
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON
19-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
kkj
APPENDIX
APPELLANTS' EXHIBITS
ANNX A1: TRUE PHOTOGRAPHS OF THREE SAMPLE PLOTS OF LAND
RESPONDENTS' EXHIBITS
NIL
// TRUE COPY //
PA TO JUDGE
K.SURENDRA MOHAN & K. ABRAHAM MATHEW, JJ.
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M.F.A. No.79 of 2016
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Dated this the 19th day of December, 2016
J U D G M E N T
Surendra Mohan, J.
The State is in appeal against an order dated 07.04.2015 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal, Palakkad allowing O.A.No.11 of 2012. As per the order appealed against, it has been declared that the application schedule properties are not ecologically fragile lands. The application was filed by the respondents herein under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2005 (hereinafter referred to as 'EFL Act' for short). As per exhibit B2 notification dated 02.01.2001, the application schedule properties were declared as ecologically fragile lands by the appellants. It was aggrieved by the said notification that the respondents had invoked the jurisdiction of the Tribunal under Section 10 of the EFL Act. According to them, the land in question was -:2:- M.F.A. No.79 of 2016 not an ecologically fragile land. The said contention having been accepted by the Tribunal, the State is in appeal before us.
2. The short facts of the case are the following:-
The respondents had purchased the application schedule properties having a total extent of 9 acres 60 cents comprised in resurvey No.101/4 of Ongallur I Village as per assignment deed numbers 1970/2004, 1971/2004, 1972/2004 and 1973 of 2004 of Pattambi Sub Registrar's Office from the successors in interest of one Sri. Raman Nair. Late Sri.Raman Nair had obtained the properties under a partition deed of the year 1970. He had obtained a total extent of 12.67 acres of land. The application schedule property forms part of the said larger extent. According to the applicants, the land is described as 'parambas' and garden lands in the partition deed. The properties were being cultivated with crops like modan, tapioca, vegetables etc. As per the Village records, the lands are classified as -:3:- M.F.A. No.79 of 2016 occupied lands.
3. The Forest Officials had obstructed Sri.Raman Nair from cultivating the land under the pretext that it was vested forest coming within the purview of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as 'Vesting and Assignment Act' for short). He had filed O.A.No.820 of 1975 seeking exemption of the land under Section 3(2) of the said Act. The said Original Application was allowed. MFA No.273 of 1978 filed by the State before this Court was dismissed. Thereafter, Review Petition, R.P.No.190 of 1984 was filed. The Review Petition was also dismissed on 08.11.1993. Thereafter, the land was restored to the predecessors of the respondents on 14.07.1997. It was thereafter on 10.08.2004 that the property was sold to the respondents herein, as stated above. It was in the above circumstances that, the notification under the EFL Act was issued. It was contended by the respondents that, the land was not one -:4:- M.F.A. No.79 of 2016 coming within the meaning of ecologically fragile lands as defined by the EFL Act.
4. The order appealed against is attacked by the learned Government Pleader, Advocate Nagaraj Narayanan putting forward a slew of contentions. According to the learned Special Government Pleader, the property is one that answers the definition of an ecologically fragile land as defined by Section 2(b)(i) of the EFL Act. It is contended that, the land which belonged originally to late Raman Nair had been taken possession of by the Custodian of vested forests in the year 1971 and had continued to be in the possession of the State until it was restored to the legal heirs of late Raman Nair on 14.07.1997. The land had remained uncultivated, during the long period from 1971 to 1997. During the period, spontaneous forest growth had sprung up covering the entire land and at present, it has become contiguous forest land. The fact that the parties had no intention to cultivate the land is evident from the -:5:- M.F.A. No.79 of 2016 fact that no cultivation was effected by them on the land at any time after the same was restored to them on 14.07.1997. The notification under the EFL Act was only on 02.01.2001. Since they had not attempted to cultivate the land at any time during the interregnum, the land has to be held to be ecologically fragile land. Subsequently, in the year 2004, they have sold the property to four different persons who are the respondents herein as per four separate sale deeds. The fact that they had sold off the land clearly shows that they had no intention to cultivate the land. At any rate, even if it is assumed that they had earlier cultivated the land, they had abandoned such cultivation. The spontaneous growth of natural vegetation has presently converted the land into contiguous forest land that supports a lot of forest trees, rare medicinal plants, a variety of vegetation as well as wild animals. The Special Government Pleader places reliance on the decision of a Division Bench of this Court in State of Kerala v. Kumari Varma [2011 -:6:- M.F.A. No.79 of 2016 (1)KLT 1008] particularly paragraph 26 thereof to contend that where there is abandonment of cultivation by the parties and a consequent afforestation, such land would come within the definition of ecologically fragile land. The learned counsel places reliance on the decision in Bhavani Tea & Produce Co. Ltd v. State of Kerala [1990(1) KLT 819 (SC)] particularly paragraphs 43 and 47 to point out that the Apex Court had held in favour of the State in a case where the land appeared to be mere uncultivated grassy waste land with some forest trees. Therefore, it is contended that in the present case also, the parties had actually abandoned all cultivation. According to the learned special Government Pleader, another Division Bench of this Court has in State of Kerala v. Unnikrishnan[2013(2) KLT 420] held that, since the party had not cultivated the land during the period of nine years that he was retaining possession of the land, the consequent growth of natural vegetation had converted the land into an ecologically -:7:- M.F.A. No.79 of 2016 fragile land. It is contended that, in Planters Forum v. State of Kerala [2015(2) KLT 783], a Division Bench of this Court has held in paragraphs 116 and 117 that judgments rendered in proceedings under the Vesting and Assignment Act had relevancy only to the extent permissible under Section 42 of the Indian Evidence Act.
5. In the present case, there is no oral evidence on the side of the respondents. They have sought to rest their case only on the documentary evidence that consists of judgments in the previous proceedings under the Vesting and Assignment Act, according to the learned Government Pleader. On the contrary, the State has examined RW1, a Forest Official who has deposed to the case pleaded in the written statement. Though he has been cross examined, nothing has been brought out to discredit his testimony, which has not been controverted by the respondents by letting in oral evidence to the contra. For the above reasons, it is contended that the order under appeal -:8:- M.F.A. No.79 of 2016 requires to be interfered with and set aside.
6. Advocate George Sebastian, who appears for the respondents, on the other hand points out that, in the year 1971 proceedings had been initiated under the Vesting and Assignment Act. The property had been taken possession of by the Forest Officials and no cultivation was permitted thereafter. The proceedings had been the subject matter of O.A.No.820 of 1975 before the Forest Tribunal, Palakkad. The Tribunal found on evidence that the land was liable to be exempted under Section 3(2) of the Vesting and Assignment Act. The State had unsuccessfully challenged the order of the Tribunal in MFA No.273 of 1978 before this Court. Later on, a Review Petition, R.P.No.190 of 1984 was also filed, without any success. The order of the Forest Tribunal has been marked as exhibit A13, the judgment in MFA No.273 of 1978 has been marked as exhibit A15 and the order in R.P.No.190 of 1984 has been marked as exhibit A14. In view of the judgments rendered inter parties -:9:- M.F.A. No.79 of 2016 holding that the land in question was not vested forest, it is contended that, the State cannot be permitted to repossess the land as an ecologically fragile land. According to the learned counsel, Section 2(i) of the EFL Act stipulates three conditions that are to be satisfied, before a land could be notified as an ecologically fragile land. In the present case, the land in question does not satisfy even the first condition under Section 2(i). Reliance is placed on paragraph 21 of the judgment in State of Kerala v. Kumari Varma (Supra) to contend that lands exempted under the Vesting and Assignment Act cannot later on be notified as ecologically fragile land. Relying on the dictum in the said judgment, it is pointed out that this Court has allowed another case, WA No.931 of 2012 as per an unreported judgment dated 25.03.2015, a copy of which has been handed over to us, in Court. Reliance is placed on paragraph 21 of the said judgment to point out that, the above legal position remains settled. In answer to the -:10:- M.F.A. No.79 of 2016 contention that the respondents had abandoned all cultivation, it is pointed out that there is no such pleading in the written statement filed by the appellants. There are also no pleadings to the effect that, with the growth of natural vegetation, the land has become converted into contiguous forest land.
7. The counsel further points out that, the land in question also does not answer the definition of forest contained in Section 2(c). Even according to the written statement to the Original Application filed by the appellant, the land in question is surrounded by private properties except for a small portion where vested forest is shown as its boundary. The land had remained uncultivated only because of the proceedings initiated by the Forest Officials. They were set aside by this Court. The judgment has become final and binding on the appellants. Therefore, it is contended that, the Tribunal was right in allowing the Original Application filed by the respondents. For the above -:11:- M.F.A. No.79 of 2016 reasons, the counsel seeks dismissal of the appeal.
8. Heard. It is not in dispute that the disputed land in the present appeal originally belonged to late Sri.Raman Nair and was part of a larger extent of 12.67 acres of land. According to late Sri.Raman Nair, the land was under his personal cultivation. However, according to the appellants, the land was originally part of what they called, 'kanamkunnu malavaram'. The same was notified as private forest in the year 1977 by a Notification issued under the Vesting and Assignment Act. According to the learned Government Pleader, the land vested in the Government on 10.05.1971, the appointed day under the Vesting and Assignment Act. Aggrieved by the Notification, late Sri. Raman Nair had preferred O.A. No. 820 of 1975 before the Forest Tribunal, Palakkad. After taking evidence, the Tribunal, by its order dated 18.10.1977 allowed the claim of late Sri. Raman Nair and exempted the land under Section 3 (2) of the Vesting and Assignment Act. It was found by the -:12:- M.F.A. No.79 of 2016 Forest Tribunal that the land was under his personal cultivation. The State had challenged the said order in appeal before this Court in M.F.A. No. 273 of 1978. A Division Bench of this Court considered the appeal in the light of the evidence on record and found that the Tribunal was right in exempting the land. Paragraph 2 of the said judgment which contains the conclusion arrived at by this Court is extracted hereunder:
"The lands are described as parambas in Ext.A1. All the boundaries are also described as parambas or garden lands. This latter circumstance probabilises the position of the lands in dispute as cultivated lands. As against the evidence given by the petitioner there is no counter evidence on behalf of the State and the Custodian. We agree with the Tribunal in holding that on the strength of the evidence furnished by him the petitioner is entitled to have the land exempted under Section 3(2) of the Act."
The said judgment has been marked as Ext.A15 by the Tribunal in the order appealed against.
-:13:- M.F.A. No.79 of 2016
9. Dissatisfied with the judgment referred to above, the State had preferred R.P. No. 190 of 1984 seeking a review of exhibit A15 judgment. Another Division Bench of this Court considered the review petition and dismissed the same by exhibit A14 order dated 8.11.1993. The said proceedings have become final and binding inter parties. In the meanwhile, late Sri.Raman Nair passed away. Therefore, the land was subsequently restored to his legal heirs on 14.7.1997. It was in the above circumstances that, the land was notified under the EFL Act by the appellants, as per a Notification dated 20.10.2000.
10. While so, the legal heirs of late Sri.Raman Nair sold the property to four different persons as per exhibits. A1 to A4 documents dated 10.8.2004. It is on the basis of the said documents that the respondents herein have claimed title to the disputed land. Each of them own 2.40 acres of land, thus making up the total extent of 9.60 acres of land. Their case is that, no notice as stipulated by the -:14:- M.F.A. No.79 of 2016 Act has been served on the owner of the properties by the authorities. Therefore, the owner had no notice thereof. The respondents came to know of the Notification only when the Forest Officials obstructed them from cultivating the property. As noticed above, the Tribunal has found in their favour, as per the order appealed against. The Tribunal has allowed the application finding that the land in question does not answer the definition of "ecologically fragile land" under the Act. What therefore requires to be considered is whether the said finding is sustainable or not.
11. As already noticed above, the land had initially been notified under the provisions of the Vesting and Assignment Act. However, the land was exempted under Section 3(2) of the Act. Section 3(2) of the Vesting and Assignment Act reads as under:
"3(2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit -:15:- M.F.A. No.79 of 2016 applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.
Explanation.- For the purposes of this section, "cultivation" includes cultivation of trees or plants of any species."
A reading of the above provision leaves no doubt in our minds that what is contemplated is exemption of land which would otherwise come within the definition of 'private forest' under the Act. The exemption is granted for the reason that, the same is held under the personal cultivation of the claimant. The Explanation makes it clear that, "cultivation" includes cultivation of trees or plants of any species. Since the proceedings under the Vesting and Assignment Act which was the subject matter of challenge by the State before this Court had been unsuccessful, the resultant position is that, the disputed land has to be considered as land held under the personal cultivation of late Sri. Raman Nair. It is not in dispute that, pursuant to -:16:- M.F.A. No.79 of 2016 the initial Notification issued under the Vesting and Assignment Act, the land had been taken possession of by the authorities in the year 1971, and that the land had continued in their possession up to 14.7.1997, when possession was restored. In other words, the land was remaining without being cultivated from 1971 to 1997, for about 26 years. There cannot be any doubt that, during the long period, the land would have become covered with wild growth and spontaneous vegetation. However, whether such transformation would entitle the State to repossess the same by issuing a Notification under the EFL Act requires to be considered.
12. The EFL Act defines "ecologically fragile land". Section 2(b) of the Act reads as follows:
"2(b) "Ecologically fragile lands" means,-
(i) 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 -:17:- M.F.A. No.79 of 2016 predominantly supporting natural vegetation; and
(ii) any land declared to be an ecologically fragile land by the Government by notification in the official Gazette under S.4."
It is not in dispute that, no declaration under Clause (ii) of Section 2(b) has been issued in respect of the land in question. Therefore, it is sufficient that our enquiry is confined to the question as to whether the land in the present case comes within Clause (i) of Section 2(b). For the said provision to apply, it is necessary that the following ingredients are satisfied -
i. it should be forest land or any portion thereof held by any person and, ii. lying contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Government, and, iii. predominantly supporting natural vegetation. The legislative intent that all the three ingredients are to be cumulatively satisfied, is clear from the use of the word -:18:- M.F.A. No.79 of 2016 'and' in the said provision. As far as the land in the present case is concerned, we have already noticed that, the land having been found to be one under the personal cultivation of late Sri.Raman Nair had been restored to him as per the orders of this Court, already referred to above. The said decisions having been rendered inter parties and having become final are binding on the appellants. Therefore, it has to be held that the property continued to be land held under the personal cultivation of late Sri. Raman Nair. It has further been found by this Court that, all the boundaries thereof are also 'parambas' or garden land. Therefore, the land is also not encircled by reserve forest or private forest. For the above reason, it cannot be said that it was forest land or that it was one predominantly supporting natural vegetation. In view of the above, it has to be held that the land in the present case is not one that would come within the definition of an 'ecologically fragile land' as defined by the EFL Act.
-:19:- M.F.A. No.79 of 2016
13. The Special Government Pleader has made an attempt to canvass for the proposition that the land is at present remaining covered with natural vegetation which has the characteristics of a forest. In view of the above contention, it has to be examined whether the present condition of the land would bring it within the scope of the definition.
14. A similar contention had been taken up before another Division Bench of this Court where in similar set of circumstances, after proceedings under the Vesting and Assignment Act, had ended against the State, a Notification had been issued under the EFL Act. In State of Kerala v. Kumari Varma (Supra), this Court has negatived the said contention in the following words:
"23. If a particular piece of land can be described as forest land held by a private person by definition under S.2(b)(i) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, the same can be classified as -:20:- M.F.A. No.79 of 2016 ecologically fragile land if the same is either contiguous or encircled by reserved forest or a vested forest or any other forest land owned by the Government. The expression "reserved forest" or "vested forest" occurring under S.2(b)(i) are themselves defined under S.2(h) and (j) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 as follows:
"(h) "reserved forests" means the forest reserved under S.19 of the Kerala Forest Act, 1961 (4 of 1962) and includes forests notified under S.4 of the said Act;
(j) "vested forests" means any forest vested in Government under S.3 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (26 of 1971)".
24. The lands in dispute in these two appeals are not lands falling within any notified "Reserved Forest" under the Kerala Forest Act; nor are they demonstrated to the "Protected Forests" under the above mentioned Act. They are excluded from the purview of the expression "private forest" under the Kerala Private Forests (Vesting and Assignment) Act, 1971 on the ground that they are lands which are principally used for cultivation of cardamom -:21:- M.F.A. No.79 of 2016 immediately before the appointed day under the above mentioned Act, i.e. 10.5.1971, though they would have otherwise satisfied the definition of "private forests" under the above mentioned Act, a finding which is confirmed by the highest Court of this country. Therefore, these lands cannot be treated as ecologically fragile lands merely because they are lying contiguous to or encircled by a reserve forest or a vested forest."
15. The above dictum has been followed by another Division Bench of this Court in an unreported judgment dated 25.3.2015 in W.A. No. 931 of 2012. We are also in respectful agreement with the above dictum.
16. A further contention is that, neither late Sri.Raman Nair nor his legal heirs had cultivated the land after it was restored to them and that for the said reason, it should be presumed that they had abandoned their intention to cultivate the land. However, as rightly pointed out by the learned counsel for the respondents, there is no -:22:- M.F.A. No.79 of 2016 such pleading in the written statement filed on behalf of the appellants. Though the learned Special Government Pleader has tried to put forward a further contention that the land is at present covered with natural vegetation, we find no pleading on the said aspect also. Absolutely no evidence or material is before us to justify a conclusion that, the land has lost its character of a personally held and cultivated land as found in exhibits A13, A15 and A14. In the absence of any such evidence, the only presumption possible is that the land has continued to retain its status as found by this Court, except probably for some wild undergrowth. The learned Special Government Pleader has strenuously tried to persuade us to take the view adopted by another Division Bench of this Court in State of Kerala v. Unnikrishnan (2013 (2) K.L.T. 420) where land was left uncultivated by the claimant even after the same was restored to him for a period of more than nine years. However, we are not satisfied that the said decision has any -:23:- M.F.A. No.79 of 2016 application to the facts of the present case. In the first place, the land in the said case was exempted under Section 3(3) of the Vesting and Assignment Act, where only an intention on the part of the claimant to cultivate the land is necessary. Or in other words, it is not necessary that there should be any actual cultivation. Such intention has been found to be non-existent from the conduct of the claimant in not cultivating the land for a long period of nine years. In the present case, as already noticed above, this Court has found the land to be actually under the cultivation of the claimant.
For the foregoing reasons, we find no grounds to interfere with the order appealed against. The appeal fails and is accordingly dismissed.
K.SURENDRA MOHAN JUDGE K. ABRAHAM MATHEW JUDGE kkj/sb