Kerala High Court
Shajan K.John vs Government Of Kerala on 25 October, 2019
Equivalent citations: AIRONLINE 2019 KER 533, 2020 AIR CC 469 (KER)
Bench: A.Hariprasad, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY, THE 25TH DAY OF OCTOBER 2019 / 3RD KARTHIKA, 1941
MFA (FOREST) No.22 OF 2013
AGAINST THE ORDER DATED 23-04-2012 IN OA NO.28/2008 OF KERALA
FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS)
TRIBUNAL, PALAKKAD
APPELLANTS/APPLICANTS:
1 SHAJAN K.JOHN,AGED 48 YEARS,
S/O.LATE JOHN VARGHESE, KALLUPALATHINGAL HOUSE,
MUTTAMBALAM KARA, KOTTAYAM DISTRICT.
2 SHIBU K. JOHN,AGED 42 YEARS,
S/O.LATE JOHN VARGHESE, KALLUPALATHINGAL HOUSE,
MUTTAMBALAM KARA, KOTTAYAM DISTRICT, REPRESENTED BY
HIS POWER OF ATTORNEY HOLDER P.V JOHN.
BY ADV. SRI.BECHU KURIAN THOMAS
RESPONDENTS/RESPONDENTS:
1 GOVERNMENT OF KERALA,GOVT.SECRETARIAT,
THIRUVANANTHAPURAM REP.BY ITS SECRETARY TO
GOVERNMENT, DEPARTMENT OF FOREST, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM- 695001
2 THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS,
FOREST HEAD QUARTERS, THIRUVANANTHAPURAM- 695001
3 THE DIVISIONAL FOREST OFFICER,
MANNARKKAD FOREST DIVISION, MANNARKKAD- 678582
4 THE FOREST RANGE OFFICER,MANNARKKAD RANGE,
PALAKKAD DISTRICT,PIN 678582
5 THE DEPUTY FOREST RANGE OFFICER,
PALAKKAYAM FOREST DEPARTMENT, MANNARKKAD VIA,
PALAKKAD DISTRICT, PIN- 678582
BY ADV. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03-10-2019,
THE COURT ON 25-10-2019 DELIVERED THE FOLLOWING:
MFA (Forest) No.22 of 2013 2
A.HARIPRASAD & T.V.ANILKUMAR, JJ.
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M.F.A.(Forest) No.22 of 2013
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Dated this the 25th day of October, 2019
JUDGMENT
Hariprasad, J.
Appellants filed an original application under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (in short, "the Act") before the Tribunal constituted under the Act seeking a declaration that 33 acres of land in resurvey No.2268/Part of Palakkayam Village in Mannarkkad Taluk in Palakkad District is part of a rubber plantation and it is not an ecologically fragile land. According to them, the said extent of land is part of an estate having an extent of 99.21 acres, known as "Green Kerala Plantation". As per Exts.A1 and A2 documents, the appellants purchased the property from the previous owner. Even though no notification declaring the property as ecologically fragile land was issued, the 5th respondent registered a case O.R.No.1 of 2008 against the 1st appellant and his manager for having cut down the trees in the estate. Forest officials were making illegal interference in the free enjoyment of the estate which was principally cultivated with rubber. They have no right to interfere with enjoyment of the property including the agricultural operations like collection of latex, felling of old trees for replantation and replanting rubber trees. Appellants approached this Court MFA (Forest) No.22 of 2013 3 with W.P.(C) No.14121 of 2008 and by judgment dated 26.05.2008, this Court permitted them to approach the Tribunal for redressal of their grievance. Thereafter they approached the Tribunal seeking the aforementioned declaration.
2. Respondents filed a written statement contending that the land in question is ecologically fragile land vested in the Government under Section 3 of the Act. Vesting of the land is notified by the Custodian of Ecologically Fragile Lands, Thiruvananthapuram vide notification No.EFL 6-121/06 dated 10.06.2008 and published in the Kerala Gazette dated 01.07.2008 (Ext.B2). Respondents contended that the area is a river source and rich in flora and fauna. It is not correct to say that the schedule property is a rubber plantation. Land in dispute is part of an evergreen forest with natural vegetations and it lies contiguous to vested forests. The area is highly sloppy and about 1500 metres above sea level. It is surrounded by vested forest on all three sides. The appellants have no right to purchase the said property as it had already vested with the Government as ecologically fragile land. The petition schedule property was a portion of the estate, owned by the Green Kerala Plantation, which was not cultivated with any crops. The land was lying contiguous to the vested forest and as shown under VFC item No.8, Meenvallam Malavaram which was proposed for notification as ecologically fragile land under the Act. The proposal was submitted to higher authorities and after verification it was properly notified. This fact MFA (Forest) No.22 of 2013 4 was known to the then owner of the estate Sri.Manuel Coldy. The alleged sale deed, said to have been executed between the appellants and the previous owner of the land, is null and void as the land was vested with the Government on the appointed day, viz., 02.06.2000. The appellants' predecessor made an attempt to encroach into the land and to destroy the forest wealth first time during April, 2004. Therefore the Forest Department booked a case O.R.No.8 of 2004. Another attempt was made in April, 2004 which resulted in the registration of a case O.R.No.9 of 2004. Thereafter in 2007, Manager of the estate and power of attorney holder of the appellants along with others attempted to trespass into the ecologically fragile land and therefore O.R.No.3 of 2007 was registered at Palakkayam Forest Station. Again the representative of the appellants had encroached into the same land and cut down 549 forest trees and tried to transport the logs. A crime O.R.No.1 of 2008 was registered and the timber and the vehicle used to transport the materials were seized. Finally in June, 2008, the appellants and their agents tried to trespass into the property and cut down 3228 trees of various sizes and species. But, due to the intervention of the officials of Forest Department and registration of O.R.No.7 of 2008 they could not remove the timber. These aspects would show that the appellants were repeatedly trying to commit offences in respect of the disputed property. Appellants have no right over the property as the land, being an ecologically fragile land, was vested in the Government on 02.06.2000. The application is liable to be dismissed. MFA (Forest) No.22 of 2013 5
3. Tribunal, after considering the oral evidence tendered by nine witnesses on the side of the appellants and two on the side of the respondents and also perusing Exts.A1 to A23 and B1 to B12 produced by the rival parties and Exts.C1 and C2, the commissioner's reports, found that the disputed property is an ecologically fragile land and therefore the appellants are not entitled to get any relief claimed in the application. On that reasoning the application was dismissed.
4. Heard Sri.Bechu Kurian Thomas, learned senior counsel for the appellants and Sri.Nagaraj Narayanan, learned Special Government Pleader for the State.
5. Sri.Bechu Kurian Thomas contended that the Tribunal egregiously erred in discarding the oral evidence tendered by competent persons, which remained uncontroverted even after cross examination. Besides, the witnesses examined on the side of the respondents could not give any direct evidence and it is full of approximations. In addition to that, the documentary evidence produced on the side of the appellants would clearly establish that the property in dispute is part of a large plantation having an extent of over 99 acres, known as "Green Kerala Plantation". Registered documents bonafide executed much prior to the enactment of the Act would clearly indicate that the disputed property is a part of a plantation. According to the appellants' counsel, the Tribunal ignored all the legally acceptable evidence to enter a wrong finding that the property is an ecologically fragile land.
MFA (Forest) No.22 of 2013 6
6. Per contra, Sri.Nagaraj Narayanan would contend that no interference is required with the reasoning of the Tribunal since the disputed land is part of Malavaram and the property is surrounded on three sides by vested forests. Expert evidence adduced would clearly show that the disputed property is an ecologically fragile land.
7. We are of the view that fate of case could be decided on re- appreciation of the oral and documentary evidence produced in this case. Since the appellants have a case that the Tribunal failed to correctly appreciate the evidence, we shall re-consider the same threadbare.
8. PW1 is the power of attorney holder of the appellants. He has sworn to an affidavit in lieu of chief examination stating that he was conversant with facts of the case. It has come out in evidence that the appellants purchased the property through Exts.A1 and A2 in the year 2006. According to his assertions, the disputed property is part of a well maintained rubber plantation as on the appointed day, viz., 02.06.2000. There is no ecologically fragile land in the property as contemplated under Section 2(b)(i) of the Act. No portion of the property in dispute forms part of a forest as contemplated under Section 2(c) of the Act and there is absolutely no natural vegetation in the property as defined under Section 2(e) of the Act. He has a definite case that Meenvallam Hydro Electric Project was being constructed very close to the petition schedule property. It is a fact known to the forest officials, as well as other Government officers, that the petition schedule property is a rubber MFA (Forest) No.22 of 2013 7 plantation. That is why no step was taken to notify this property as ecologically fragile land till the date of Ext.B2, a notification dated 01.07.2008. It is seen from cross examination of PW1 that his assertion regarding the nature of property has not been seriously challenged. However, it is brought out in cross examination that he started managing the property only from 15.06.2006. It is therefore argued by the learned Special Government Pleader that he is incompetent to depose about the state of affairs existed on 02.06.2000.
9. PW2 was manager of the estate, in which the disputed property is comprised of, purchased by Karippaparambil Thankachan as per Exts.A17 to A23 in the year 1986. It is also the contention of PW2 in his affidavit filed in lieu of chief examination that he was managing the estate on behalf of Mathai, who purchased the property as per Exts.A10 and A11 in the year 1987. According to his evidence, he knew the property much prior to the appointed day. In cross examination, he deposed that the rubber trees were aged 8 years and they used to be tapped. His acquaintance with the property from the year 1986 is not seriously challenged in cross examination. We find no tangible reason to disbelieve him.
10. PW3 is yet another witness examined on the side of the appellants to show the nature of disputed land as a rubber estate. He was supervisor of the estate owned by Thankachan who obtained the property as per Exts.A17 to A23. According to his testimony, eversince MFA (Forest) No.22 of 2013 8 January 1998, he was working as supervisor in the above estate and still continue to work in the same post. He also stated that the property is part of 99 acres of rubber plantation and it is not an ecologically fragile land. Except putting some bland questions, no serious effort was made to show that he was unaware of the condition of the land prior to the appointed date.
11. PW4 was a retired Deputy Conservator of Forests and he was cited to prove that while working as D.F.O.(Flying Squad), Palakkad during a period from 07.09.2001 to 19.09.2002, he had conducted various enquiries pertaining to encroachment of vested forests within his jurisdiction. According to him, he had visited Meenvallam Hydro Electric Project area and had occasion to see the disputed property. In cross examination, it is brought out from this witness that he started practice as junior advocate to the lawyer engaged by the appellants. According to him, he does not hold a vakkalath in the present case. In cross examination, it was attempted to bring out that due to the adverse entries in his confidential report, Indian Forest Service (IFS) was not conferred on him. It is true that his evidence may not be very crucial in deciding the nature and character of the property as on the appointed date. The Tribunal has not accepted his version finding that he was unduly supporting the appellants.
12. PW5 is a retired Deputy Collector. He asserted that he had 34 years of Government service, that too in the Revenue Department. MFA (Forest) No.22 of 2013 9 After his retirement, he was appointed approved valuer by the South Indian Bank Ltd. He had inspected the disputed property at the instance of the South Indian Bank Ltd. to value the same for sanctioning a loan in favour of the 1st appellant. He valued the rubber plantation at the rate of `3,00,000/- per acre. He was cited to prove that the property was a plantation at the time of his inspection on 22.11.2006. In cross examination also, he repeated his stand that the property is a rubber plantation. In spite of cross examination, we do not find any material elicited to think that he was unduly supporting the appellants by tendering false evidence that the property was a plantation at the time of inspection. It is to be remembered that the notification came only in the year 2008, ie., almost two years after his inspection. True, there were some criminal cases registered against the appellants and the previous owner before his inspection. But, that by itself cannot be taken as a ground for finding that the property in dispute was not a part of the estate.
13. PW6 was owner of the estate for sometime. The property was purchased by him in the year 2003. According to him, it was a well maintained rubber plantation at the time of his purchase. In cross examination he deposed that he was the Director of Green Kerala Plantation Pvt. Ltd. His evidence also remains credible despite cross examination.
14. PW7 is the photographer who accompanied PW8 advocate commissioner and took photographs of the property. PW8 is the advocate MFA (Forest) No.22 of 2013 10 commissioner who inspected the property and submitted Ext.C1 report and Ext.A5 photographs. There is no serious challenge against the testimony of these witnesses.
15. PW9 is a retired Deputy Conservator of Forests. He deposed that during his tenure as Deputy Conservator of Forests, he was appointed the Managing Director, Oushadi, a Government of Kerala undertaking. He also deposed that he was the Chief Executive Officer of the Medicinal Plants Board. He is a B.Tech. degree holder in forestry from University of Calicut. He was cited to state as to what is important to note is nature of the property as on 02.06.2000 and what are the requirements to qualify a property as ecologically fragile land. He deposed in general terms without referring to the disputed land in particular.
16. Exts.A12, 14, 15 and 16 are the documents pertaining to portions of the disputed property. Ext.A12, 15 and 16 are dated 09.07.1981 and Ext.A14 is dated 16.11.1980. From these documents it can be seen that the property was involved in a partition deed No.157 of 1959, SRO, Mannarkad. It is also seen that these properties were involved in O.A.No.7 of 1978 before the Forest Tribunal, Manjeri initiated under the Kerala Private Forests (Vesting and Assignment) Act, 1971. It is mentioned in these documents that the properties were found not to be a private forest and thereafter the same had been transacted as per the aforementioned documents. Exts.A17 to 19 and 21 to 23 were executed MFA (Forest) No.22 of 2013 11 on 01.05.1986. There also the aforementioned partition deed and the proceedings before the Forest Tribunal, Manjeri are mentioned. From the schedules to these documents, it can be seen that the property in dispute has become a rubber plantation between 1981 and 1986. This fact is borne out from the recitals in the schedule to Ext.A17 to 19 and 21 to 23. We do not find any reason to believe that the executants falsely made a mention in the documents that the properties were part of a rubber plantation, anticipating the making of the Act on 02.06.2000. In other words, these documents were executed much prior to the initiation of the legislative process to enact the Act. Learned senior counsel for the appellants placed reliance on these documents to contend that the disputed property always remained a part and parcel of 66 acres of admitted rubber plantation to make up a total extent of 99 acres. Ext.A3 document would show that on 23.04.2008, the Village Officer, Palakkayam has issued basic tax receipt to the property. When we consider the aforementioned oral evidence in the light of the said documents, we find force in the argument that the property in dispute could not be regarded as ecologically fragile land as it is an integral part of a rubber plantation.
17. Learned Special Government Pleader, in order to support his argument that the property had become an ecologically fragile land on 02.06.2000, mainly relied on the testimony of RWs1 and 2 and Ext.C2 report. RW1 worked as Forest Range Officer, Mannarkkad at the material MFA (Forest) No.22 of 2013 12 time. In his affidavit in lieu of chief examination, he has asserted that the disputed property is ecologically fragile land and it is a river source and rich in wild life, fauna and flora. According to him, the application schedule property is a portion of the estate by name "Green Kerala Plantation" and that portion was not cultivated with any crops. It is lying contiguous to the vested forest as shown in the VFC item No.8 Meenvallam Malavaram which was proposed for notification as ecologically fragile land. He deposed that there were attempts to trespass into the forest and destroy forest wealth in April, 2004, in February 2007 and in 2008 also. Various cases have been registered against the property owners at different times.
18. He was cross examined to elicit that he saw the property for the first time only in 2010. His deposition is based mainly on records and on hearsay information. He admitted in cross examination that the rubber plantation is having an extent of 99.21 acres. It is his deposition that the entire plantation is situated in survey Nos.2268. He deposed that there are no clear cut demarcating features between the adjoining vested forests and the plantation. It has come out in the evidence of RW1 that there is a road on southern side of the plantation and it leads upto Meenvallam Hydro Electric Project. He plainly admitted that he was unaware as to what was the nature of vegetation in the disputed property as on 02.06.2000. With reference to the records produced, he deposed that cases were registered against the owners of the property for cutting MFA (Forest) No.22 of 2013 13 and removing timber from forest area. On perusal of his evidence, it can only be seen that he is incompetent to prove the state of affairs as it existed on 02.06.2000. From his evidence, it is clear that the offences registered against the owners of the estate were compounded under Section 68 of the Kerala Forest Act. They were booked mainly alleging that they cleared undergrowth for widening the coop road unauthorisedly. We are unable to find any reason to discard the direct testimony of the witnesses mentioned above, examined on the side of the appellants to show that the property in dispute was a plantation as on 02.06.2000 based on the hearsay evidence adduced by RW1.
19. RW2 was the team leader of an expert commission, comprising of eight scientists from different branches of forestry working in the Kerala Forest Research Institute (KFRI). RW2 was working as the Senior Scientist and head of the Silviculture Department of KFRI. Ext.C2 is the report jointly submitted by the experts, which was sought to be proved through RW2. Learned senior counsel for the appellants has a case that RW2 is incompetent to prove the observations by other scientists in respect of the nature and lie of the property and his testimony is too insufficient to find that the disputed property is ecologically fragile land as on 02.06.2000. We do not find RW2 incompetent to prove Ext.C2 report. When cross examined, RW2 plainly admitted that he could not say what was the status of the property as on 02.06.2000. The team inspected the property for the first time on 22.04.2010 and lastly on 05.10.2010. For MFA (Forest) No.22 of 2013 14 the said reason, it will be clear that he was not in a position to depose as to the status prevailing 10 years prior to their inspection. He further admitted that the entire 99.21 acres of Green Kerala Plantation was not inspected by the team. The accuracy of taking sample plots and the nature of assessing the vegetation are also disputed by the appellants. RW2 answered to many questions that they related to the domain of other experts, virtually expressing his inability to answer to the pointed questions.
20. Learned senior counsel pointed out that despite the respondents' contention that the property is inhabited by wild animals, except leeches and insects, nothing could be seen by the inspecting team. Even though elephant dung was seen in the property, it cannot be taken as a confirmatory test to find that the property is ecologically fragile land because the estate is sharing boundaries on three sides with vested forests. It is true, in Ext.C2 it has been mentioned that a few stacks of small logs felled earlier were noticed. According to the learned senior counsel for the appellants, the area in dispute was being clear felled for replantation of rubber trees. It is a common knowledge that after a certain time, rubber trees would become less productive and after a slaughter tapping the trees would be cut and removed so as to plant new trees in the area. According to the learned senior counsel, while the process of clear felling trees and clearing undergrowth for replanting started, the forest officers registered cases against the appellants and MFA (Forest) No.22 of 2013 15 without any lawful excuse issued the notification.
21. Learned Special Government Pleader harping on Ext.C2 compilation of reports and the testimony of RW2 contended that there are enough indications borne out from the reports that the disputed property is ecologically fragile land. From Ext.C2 report the nature and type of vegetation in the disputed property could be seen. RW2 admitted in cross examination that the vegetation seen on the sample plot, although enlisted in the report, he was unable to depose whether the vegetation was full grown trees or saplings. According to RW2, the report being a compilation of studies conducted by various experts, he alone cannot testify regarding the aspects noticed by each expert.
22. Even if we accept the report as an unbiased report, we have to keep in mind certain aspects at the time of its evaluation. Firstly, the experts visited the property in the year 2010. Ext.B2 notification came on 01.07.2008. The report is highly insufficient to indicate the state of affairs prevailed as on 02.06.2000. Even from Ext.C2 report and testimony of RW2 it can be seen that rubber tree is an important vegetation in the property. It is to be noticed, in this context, that the appellants have a case that they had already cut and removed certain rubber trees before the dispute arose and that accounted for outnumbering other trees over rubber trees. Records produced by the respondents would show that criminal cases were registered for cutting and removing trees. We are unable to accept the case of the respondents that the disputed extent of MFA (Forest) No.22 of 2013 16 property was not treated as part of an admitted rubber plantation, having an extent of 66 acres. We cannot also accept their case that the disputed extent was left out without planting rubber trees.
23. Learned senior counsel pointed out that the Tribunal rejected the evidence of the appellants' witnesses without any justifiable reason. According to him, direct testimonies of PWs 1 to 3 showing the nature of property prior to 02.06.2000 were discarded by the Tribunal on flimsy grounds. Testimony of PW4 was rejected by the Tribunal saying that his antecedents, while in service, were not clean. PW4 has an explanation for the departmental action taken against him while in service. That was not considered by the Tribunal before labelling him as uncreditworthy witness, alleged the learned senior counsel. Similarly PW5 also was not believed for unsustainable reasons.
24. Having regard to the nature of oral evidence adduced on the side of the appellants and the recitals in the documents produced by them, we are of the view that in all probabilities, the disputed property could have been a part of a larger plantation as on the appointed date, viz., 02.06.2000.
25. Learned senior counsel for the appellants relying on the decision of the Supreme Court in Bhavani Tea & Produce Co. v. State of Kerala ((1991) 2 SCC 463) contended that the respondents could not raise a contention that the property has become ecologically fragile land on account of the presence of natural vegetation. It is to be noticed that MFA (Forest) No.22 of 2013 17 there was a proceedings in respect of the land under the Kerala Private Forests (Vesting and Assignment) Act, 1971. Records clearly show that thereafter the property had been planted with rubber trees. According to the learned senior counsel, the law declared by the Supreme Court in Bhavani Tea & Produce Co. (paragraphs 34 and 37) will apply to this case. In paragraph 37 of the said judgment we find the following observations:
".......... We are of the view that mere abandonment would not convert an area into a forest, unless the owner has decided to do so or the appropriate authority has notified it to be so. Mere visual test would not be enough. The decision of the owner could, of course, be expressed or implied."
26. In this case, we find enough materials on record to show that the disputed property is a part of a well maintained plantation and owners at no point of time permitted it to revert back to the nature.
27. Learned senior counsel relying on the decision in Mohammed v. State of Kerala (1986 KLT 681) contended that mere clear felling of trees for re-plantation will not denude the character of a plantation even if there was a time interval in cutting and removing the rubber trees and re-planting trees. According to him, the property remains a plantation even during the interregnum. In paragraph 7, the following proposition is laid down, of course under the Kerala Private Forests (Vesting and Assignment) Act, 1971. But, the same can be applied in this MFA (Forest) No.22 of 2013 18 case also. We may extract paragraph 7 hereunder:
"It is not unusual that old or non-yielding or less yielding rubber trees are removed from a particular area preparatory to replanting the area with rubber. Similarly when rubber trees are destroyed due to natural calamities, or otherwise, the owner of the plantation may resort to replantation of the area with rubber. In such instances, the intermediate period between the removal of rubber trees and actual replantation may vary in different cases depending upon a variety of factors and circumstances. It is improper and inadvisable to conclude definitely that the lands involved in such instances cease to be rubber plantations as soon as the rubber trees cease to exist therein. There can be no doubt that if the destruction or removal of rubber trees in a particular area takes place only after 10-05-1971 no vesting of that area could have taken place, as per S.3(1) of the Act. On the same principle it can be said that if rubber trees had been destroyed prior to the said date the affected land would not go out of the purview of the exclusion clause contained in S.2(f)(I)(i)(B) of the Act. If measures are in contemplation to replant the area with rubber, the intermediate stage, when the land does not contain rubber plants, is not decisive in determining the nature of the use of the land. Merely because the duration of that intermediate stage is prolonged, no hard and fast inference shall be drawn that the idea of replantation of the land did not exist."MFA (Forest) No.22 of 2013 19
28. Even though the decision in State of Kerala v. Kumari Varma (2011(1) KLT 1008) was cited by the learned senior counsel for the appellants, we find the facts in that case are different from the case on hand and therefore the ratio cannot be applied here.
29. Learned Special Government Pleader relied on a decision of this Court in Government of Kerala v. Jacob Thomas Arikupuram (2019 (4) KHC 625) wherein this Court examined various provisions of the Act vis-a-vis the Kerala Private Forests (Vesting and Assignment) Act, 1971. This Court found the burden is squarely on the claimant to prove that the notified land is not an ecologically fragile land. If we apply the principle stated therein, it can only be seen in this case that the appellants have discharged their burden by adducing sufficient oral evidence and producing relevant documentary evidence to show that the disputed property, as on 02.06.2000, was a part of a rubber plantation and therefore did not fall within the definition of ecologically fragile land under Section 2(b) of the Act.
30. Having regard to the entire facts and circumstances and also going through the impugned order passed by the Tribunal, we are of the view that the Tribunal disregarded the reliable evidence and ignored preponderance of probabilities borne out from oral and documentary evidence. Therefore, we find that the disputed property is part of 99.21 acres of land claimed by the appellants and it was a rubber plantation as on 02.06.2000. For the said reason, we do not find the property as MFA (Forest) No.22 of 2013 20 ecologically fragile land coming under the Act.
In the result, the appeal is allowed. The impugned order passed by the Tribunal is set aside. Original application is allowed as prayed for.
A.HARIPRASAD, JUDGE.
T.V.ANILKUMAR, JUDGE.
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