Kerala High Court
Government Of Kerala vs Jacob Thomas Arikupuram on 20 August, 2019
Equivalent citations: AIRONLINE 2019 KER 648, (2019) 4 KER LT 1022
Bench: A.Hariprasad, T.V.Anilkumar
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 20TH DAY OF AUGUST 2019 / 29TH SRAVANA, 1941
MFA.(Forest) No.88 OF 2016
AGAINST THE ORDER DATED 22-06-2015 IN OA NO.8/2011 OF TRIBUNAL FOR
E.F.L. CASES (I ADDITIONAL DISTRICT COURT), KOZHIKODE
APPELLANTS/RESPONDENTS:
1 GOVERNMENT OF KERALA
REP. BY THE CHIEF SECRETARY TO
THE GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM.
2 THE CUSTODIAN,
ECOLOGICALLY FRAGILE LANDS AND
CHIEF CONSERVATOR OF FORESTS,
[DEVELOPMENT] FOREST HEAD
QUARTERS,THIRUVANANTHAPURAM.
BY ADV. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST
RESPONDENTS/APPLICANTS:
1 JACOB THOMAS ARIKUPURAM
MANNAR P.O., KURATTISSERY VILLAGE,
CHENGANNUR TALUK,
ALAPPUZHA DISTRICT- 689 622.
2 RENU THOMAS,W/O.LATE RENNY THOMAS,
ARIKUPURAM,MANNAR.P.O., KURATTISSERY
VILLAGE,CHENGANNUR TALUK,
ALAPPUZHA DISTRICT.689 622.
M.F.A.(Forest) No.88 of 2016 2
3 BOBY A.THOMAS,S/O.RENNY THOMAS,
ARIKUPURAM,MANNAR.P.O., KURATTISSERY
VILLAGE,CHENGANNUR TALUK,
ALAPPUZHA DISTRICT.689 622.
4 BINO A.THOMAS,S/O.RENNY THOMAS, -DO-
BY ADVS.
P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON
13-06-2019, THE COURT ON 20.08.2019 DELIVERED THE
FOLLOWING:
M.F.A.(Forest) No.88 of 2016 3
"C.R."
A.HARIPRASAD & T.V.ANILKUMAR, JJ.
--------------------------------------
M.F.A.(Forest) No.88 of 2016
--------------------------------------
Dated this the 20th day of August, 2019
JUDGMENT
Hariprasad, J.
This appeal, filed under Section 11 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (in short, "the EFL Act") by the Government of Kerala and the Custodian, Ecologically Fragile Lands and Chief Conservator of Forests, raises very important factual and legal questions relating to the application of the EFL Act to the property under dispute. And, an ancillary question, what is the legal effect, on this proceedings, of a finding rendered by a competent Tribunal under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (in short, "the Vesting Act"), that the property under dispute is not a private forest, also arises.
2. Facts, in nut shell, are thus: Respondents preferred an application under Section 10(1) of the EFL Act before the Tribunal constituted under Section 9 of the said Act. Averments therein would show that the scheduled property ad-measuring 77.50 acres (31.37 hectares) comprised in survey No.149 Part of Koodaranhi Village in M.F.A.(Forest) No.88 of 2016 4 Kozhikode Taluk originally belonged to Arikupurath Thomas, father of the applicants by virtue of Ext.A11. Exts.A1 and A2 documents conferred title and possession on the 1st respondent and his deceased brother Renny Thomas in respect of 55 acres of land included in Ext.A11 document. On the death of their father Thomas, they derived title in respect of the remaining extent of 22.50 acres too. Respondents contended that they planted coffee in the property and obtained a registration certificate as evidenced by Ext.A13. It is their case that the Divisional Forest Officer (in short, "the DFO"), Special Division, Kozhikode approved the land as a coffee plantation. While they were holding the property in title and possession, Forest Department made a claim that it was a private forest and it vested in the Government under Section 3(1) of the Vesting Act. The respondents, therefore, were forced to file two original applications under Section 8 of the Vesting Act before the Forest Tribunal, Kozhikode. Both the applications were allowed by the Forest Tribunal as per a common order dated 29.09.1986 (Ext.A5). It was declared that the application schedule property in its entirety was a coffee plantation, which did not vest in the Government. State preferred an appeal against the common order of the Forest Tribunal before this Court as M.F.A.No.300 of 1989. As per Ext.A6 judgment, this Court dismissed the appeal, confirming the findings of the Forest Tribunal. Pursuant to the final decision, the Custodian of Vested Forests restored possession of the entire property to the 1 st respondent and his M.F.A.(Forest) No.88 of 2016 5 brother deceased Renny Thomas on 30.06.1994. Thereafter Renny Thomas died and his rights devolved upon respondents 2 to 4, his widow and children.
3. While the applicants were carrying on agricultural operations in the application schedule property, the DFO, Kozhikode issued a notice on 19.04.2007 under Section 3(2) of the EFL Act informing the respondents that the property had been notified on 27.03.2001 as ecologically fragile land vested in the Government. The said notification is Ext.B1. Thereupon, the respondents filed a writ petition, W.P.(C) No.19671 of 2004, praying for an order to compel the State and its officers to de-notify the land. This Court dismissed the writ petition with a direction to the 2nd respondent (the Custodian) to consider the application filed by the respondents under Section 19(3)(b) of the EFL Act. Thereafter, a three member inspection committee was constituted and they inspected the application schedule property without giving notice to the respondents, resulting in submission of a report. Again, the Custodian passed an order on 13.04.2007 declaring that the application schedule property is ecologically fragile land vested in the Government. Then again the applicants filed W.P.(C) No.31378 of 2007 before this Court to quash the order passed by the 2 nd respondent. The writ petition was allowed and the order passed by the Custodian was quashed and this Court directed the committee to inspect the property once again with due notice to the respondents. As directed, the inspection committee M.F.A.(Forest) No.88 of 2016 6 visited the property again after giving notice to the respondents and then they filed another report. The Custodian again passed an order on 20.08.2011 finding that the disputed property is ecologically fragile land. According to the respondents, the order passed by the Custodian is contrary to law and facts and the property in dispute is not an ecologically fragile land.
4. Respondents filed a written statement contending that the application is not maintainable. According to them, the application schedule property measuring 77.50 acres comprised in the above said survey number was notified as ecologically fragile land as per the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2001 (hereinafter referred to as "EFL Ordinance, 2001") by Ext.B1 notification. It is not correct to say that the application schedule property is a coffee plantation. The ordinances promulgated were later replaced by the EFL Act. Vested forests comprised in VFC item No.23 are located on all the boundaries of the disputed land. In otherwords, application schedule property is encircled by vested forests. The application schedule property is a mixture of evergreen and semi evergreen type natural vegetation. Scattered growth of some coffee plants here and there will not make the property a coffee plantation. There are wild trees abundantly present in the property. The property is a habitat for wild animals as well. Further, there are small streams, perennial in nature. As per the judgment of this Court in M.F.A.No.300 of M.F.A.(Forest) No.88 of 2016 7 1989, the application schedule property was restored to the respondents on 30.06.1994. After restoration of the land, the respondents did not do any agricultural operation thereon. Subsequently, the property was notified as ecologically fragile land as per Section 3(2) of the EFL Ordinance, 2001. Although the applicants challenged the notification through a writ petition, it was dismissed directing the department to reconsider the claim of the respondents. As directed by this Court in W.P.(C) No.31378 of 2007 a committee was constituted under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Rules, 2007 (in short, "the EFL Rules") and the committee again inspected the property with due notice to the respondents and reported that the land in dispute is an ecologically fragile land. Accepting the report of the committee, the 2nd respondent (Custodian) passed the impugned order declaring the application schedule property as ecologically fragile land vested in the Government.
5. After considering the oral evidence tendered by one witness each on the side of the appellants and respondents, the documents produced on both sides along with the reports submitted by the advocate commissioner and the experts, who visited the land, the Tribunal entered a finding that the notification issued by the Custodian, which was challenged in the original application, is legally unsustainable and it is, therefore, set aside. The Tribunal further declared that the application schedule property covered by the notifications referred to in its order is M.F.A.(Forest) No.88 of 2016 8 not an ecologically fragile land vested in the Government.
6. We heard Sri.Nagaraj Narayanan, learned Special Government Pleader for the appellants and Sri.P.B.Krishnan, learned counsel for the respondents. We carefully perused the records and elaborate notes of arguments submitted by both sides.
7. Sri.Nagaraj Narayanan contended that the Tribunal egregiously erred on facts and law when it entered a finding that the application schedule property is not an ecologically fragile land. According to him, the materials on record, especially the reports submitted by the experts, would prove factually that the land in question is ecologically fragile land. Moreover, the Tribunal without understanding the scope and legal effect of the precedents cited before it, entered a wrong finding against the basic legal principles involved herein. It is also contended that the respondents have not let in any evidence to discharge their burden of proving any cultivation of coffee or agricultural operation in the property as on the date of vesting. They also failed to prove that the land is principally cultivated with coffee on the appointed date, viz., 02.06.2000. Appellants contended that the burden is on the respondents to establish that the property in dispute is not an ecologically fragile land.
8. Per contra, Sri.P.B.Krishnan strongly supported the factual and legal reasoning of the Tribunal. He further submitted that apart from the decisions relied on by the Tribunal, there are other binding M.F.A.(Forest) No.88 of 2016 9 precedents fortifying the case of the respondents. Besides, there is no reliable material on record sufficient enough to enter a factual finding that the land in question is ecologically fragile land. Regarding the burden of proof, it is contended by Sri.P.B.Krishnan that the entire burden cannot be put on the shoulders of the applicants (respondents) and the State has the initial burden to show that the notified land is ecologically fragile land. It is also contended that there is no presumption that every inch of land in the State is ecologically fragile land. On 02.06.2000, the appointed date, all lands in the State will not vest under Section 3 of the EFL Act and those lands, falling under Sections 2(b) read with 2(c) of the EFL Act, alone will vest in the Government. It is therefore contended that the State too has a responsibility to establish that the land in question falls within the definition of ecologically fragile land. No interference is legally required in a well reasoned order passed by the Tribunal in this case.
9. From the pleadings, evidence on record and oral and written submissions by the learned counsel for the disputants, we identify the following points cropping up for decision:
I. Can it be said that the EFL Act is a stand-alone enactment considering its scheme? Is it interlinked with the Vesting Act in any manner?
II. Are the EFL Act and Vesting Act in pari materia?
III. On whom the burden of proof lies to show that a particular M.F.A.(Forest) No.88 of 2016 10 land is ecologically fragile land or not?
IV. Whether the precedential principles laid down in the Vesting Act, regarding the burden of proof, could be applied to the EFL Act also?
V. Whether, in the factual and legal settings in this case, the disputed property could be regarded as ecologically fragile land?
Points I to IV
10. We shall closely examine the scheme of the law relating to ecologically fragile lands. EFL Act came into being in its original form as an Ordinance promulgated by the State Government on 01.06.2000. It was published in the Kerala Government Gazette on 02.06.2000. Later, Ordinance No.8 of 2000, Ordinance No.3 of 2001 and Ordinance No.16 of 2001 were promulgated and published on different dates. After Ordinance No.16 of 2001 became lapsed as per Article 213(2)(a) of the Constitution of India, the EFL Act was enacted. Statutory vesting of ecologically fragile lands under Section 3 of the EFL Act took place with effect from 02.06.2000, the date of publication of the first Ordinance.
11. It is clear from the long title to the EFL Act that it is intended to provide for vesting, in the Government, of ecologically fragile lands in the State of Kerala and for management of such lands with a view to maintain the ecological balance and conserve the biodiversity. Certain definitions relevant for the purpose of this case are extracted hereunder:
"2(b) "ecologically fragile lands" means,-
(i) any Forest land or any portion thereof M.F.A.(Forest) No.88 of 2016 11 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; and
(ii) any land declared to be an ecologically fragile land by the Government by notification in the official Gazette under S.4."
"2(c) "forest" means any land principally covered with naturally grown trees and undergrowth and includes 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 building and surroundings essential for the convenient use of such buildings."
"2(d) "land" includes rivers, steams and its origin and other water bodies."
"2(e) "natural vegetation" means a growing stock predominantly of a plant species or of a number of plant species occurring naturally on the land."
12. In order to understand the intent and purport of the expression "ecologically fragile lands", as defined in Section 2(b) of the EFL Act, first of all we have to understand the meaning of the word "forest" in Section 2(c). For the purpose of this Act, "forest" means any land principally covered with naturally grown trees and undergrowth. Besides, the expression "forest" includes any forest statutorily recognized and declared as reserved forest, protected forest or M.F.A.(Forest) No.88 of 2016 12 otherwise. But, the above definition specifically excludes any land from the purview of forest which is used principally for the cultivation of crops of long duration, such as tea, coffee, rubber, pepper, cardamom, arecanut, coconut and cashew. Sites of residential buildings and surroundings essential for the convenient use of such buildings are also excluded from the definition of "forest".
13. Now, we shall look into the definition of "ecologically fragile land" in Section 2(b)(i) of the EFL Act. Dissection of the provision would reveal the following:
(i) The land in question must be any forest land or any portion thereof. Here, we have to keep in mind the meaning ascribed to the word " forest" as above.
(ii) Such land must he held by a person.
(iii) Such land must be lying contiguous to or encircled by
a reserved forest or vested forest or any other forest land owned by the Government.
(iv) The land predominantly should support natural vegetation.
14. Insofar as Section 2(b)(ii) of the EFL Act is concerned, none of the above conditions need be satisfied for any land to be declared as ecologically fragile land by the Government by notification in the official Gazette by invoking the power under Section 4 of the Act. Since we are not concerned with Section 2(b)(ii), we need not expatiate those M.F.A.(Forest) No.88 of 2016 13 aspects.
15. We find a definition for the expression "natural vegetation", occurring in the last limb of Section 2(b)(i) of the EFL Act, in Section 2(e). It means a growing stock predominantly of a plant species or of a number of plant species occurring naturally on the land.
16. "Land" defined in the EFL Act, as per Section 2(d), includes rivers, streams and its origin and other water bodies. It is clear that apart from any land, as understood in the common parlance, the definition takes in water bodies, rivers, streams, etc. also.
17. The disputes arising under the EFL Act should be adjudicated by keeping in mind the above meanings for the expressions used in the Act.
18. Another important provision is Section 3 of the EFL Act which deals with vesting of ecologically fragile lands in the Government. It reads as follows:
"3. Ecologically fragile lands to vest in Government.- (1) Notwithstanding anything contained in any other law for the time being in force, or in any judgment, decree, or order of any court or tribunal or in any custom, contract or other documents, with effect from the date of commencement of this Act, the ownership and possession of all ecologically fragile lands held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumbrances, and the right title and interest of the owner M.F.A.(Forest) No.88 of 2016 14 or any other person thereon shall stand extinguished from the said date.
(2) The lands vested in the Government under sub-section (1) shall be notified in the Gazette and the owner shall be informed in writing by the custodian and the notification shall be placed before the Advisory Committee constituted under Section 15 for perusal."
On a careful reading of the Section, we see that it sends out an unambiguous message through the opening non-obstante clause that if any land in the State satisfies the definition of "ecologically fragile land"
as defined in Section 2(b)(i) of the EFL Act on the appointed date (viz.
02.06.2000), then by operation of the statute, it shall stand transferred to and vested in the Government free from all encumbrances notwithstanding anything containing in any other law, for the time being in force, or in any judgment, decree or order of any court or tribunal or in any custom, contract or other documents. It further says that the right, title or interest of the owner or any other person thereon shall stand extinguished with effect from 02.06.2000. As we may have to explain more in this regard in the succeeding paragraphs, we leave it here for the time being.
19. Section 4 of the EFL Act deals with Government's power to declare in the Gazette, any land to be ecologically fragile land on a recommendation of the Advisory Committee appointed for the purpose under Section 15 of the Act. In our case, Section 4 of the EFL Act has no application and therefore we do not venture to elaborate on it, except M.F.A.(Forest) No.88 of 2016 15 saying that while dealing with Section 10 of the EFL Act, we may be eschewing that part of the Section relating to Government's power to declare by notification any land to be ecologically fragile land and determination of disputes relating to the sufficiency of compensation. We notice the essential difference between vesting under Section 3 and declaration of any land as ecologically fragile land under Section 4 of the EFL Act. In the case of a land vested under Section 3 of the EFL Act, the State Government has no obligation to pay compensation, whereas in the case of any land declared to be ecologically fragile land under Section 4 of the EFL Act, the Government needs to pay compensation under Section 8 of the Act. In otherwords, legal effect of Section 4 of the EFL Act is akin to acquisition of land for maintenance of ecological balance; whereas the statutory vesting contemplated under Section 3 of the EFL Act is an expropriatory piece of legislation, depriving the citizens of their property rights without payment of compensation.
20. As mentioned above, Section 8 of the EFL Act may not be relevant for our purpose, since there is no notification under Section 4 of the EFL Act promulgated in this case. Section 9 of the EFL Act deals with constitution of Tribunals for settlement of disputes referred to in Section 10. The Tribunal constituted under the EFL Act is empowered to settle the disputes as to whether any land is an ecologically fragile land or not, or any ecologically fragile land or portion thereof has vested in the Government or not, or compensation determined under Section 8 is M.F.A.(Forest) No.88 of 2016 16 insufficient or not. We shall deal with Section 10 of the EFL Act elaborately in the succeeding paragraphs, because most of the provisions therein are similar to Section 8 of the Vesting Act and a comparison of the two Sections will be required for appreciating the impact of some binding precedents rendered in the context of Section 8 of the Vesting Act on the issues arising under Section 10 of the EFL Act. Section 10B of the EFL Act speaks about constitution of Ecologically Fragile Land Claim Dispute Redressal Committee. Section 11 permits the Government or any person objecting to any decision of the Tribunal to appeal against such a decision to High Court within a period of 60 days from the date of decision. However, the High Court is empowered to extend the period of time prescribed as above, if the appellant has sufficient cause for not preferring the appeal within time. Section 15 of the EFL Act deals with constitution and function of the Advisory Committee. Section 18 gives power to the Government to make rules. Section 19 deals with the validation and transitory provisions, intended to save the situations arising out of the expiry of the Ordinances promulgated in this regard.
21. We take note of the two Rules framed by the Government of Kerala drawing power from Section 18 of the EFL Act. On 10.10.2007, the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal Rules, 2007 (in short, "the Tribunal Rules") came into force and on 03.02.2007, the Kerala Forest (Vesting and Management of M.F.A.(Forest) No.88 of 2016 17 Ecologically Fragile Lands) Rules, 2007 (in short, "the EFL Rules") became operative. Various provisions in the EFL Rules will be referred to in later paragraphs as and when occasion arises.
22. When we understand the scheme of the EFL Act as above, we shall move on to examine whether the EFL Act is a stand-alone enactment or does it have any nexus to the Vesting Act. In order to answer this question, we will have to examine the scope and ambit of the Vesting Act briefly.
23. The Vesting Act came into force on 10.05.1971. If one traces the history of this enactment, it can be seen that the Act was intended to deal with private forests, owned by individuals or families of Malabar and South Kanara Districts in the erstwhile Madras Presidency (also known as "Madras Province") in British India. The Madras Estates Land Act, 1908 was a fore-runner to the Madras Preservation of Private Forests Act, 1946, enacted with the object of preserving private forests. Later, it was replaced by the Madras Preservation of Private Forests Act, 1949 (in short, "the MPPF Act"). It is an unchallengeable proposition that the MPPF Act and the Vesting Act have common threads and they are intertwined.
24. We deem it appropriate to have a glance at the provisions in the MPPF Act. Section 1 of the MPPF Act is quoted hereunder:
"Short title, application, commencement and
duration.-(1) This Act may be called the Madras
M.F.A.(Forest) No.88 of 2016 18
Preservation of Private Forests Act, 1949.
(2) It applies-
(i) to private forests in the districts of
Malabar and South Kanara having a contiguous area exceeding 100 acres Explanation.- Nothing in this clause shall be deemed to apply to any land which was brought under fugitive or other cultivation prior to the 14 th December, 1949, by an owner or any person claiming under him;
(ii) to forests situated in estates as defined in the Madras Estates Land Act, 1908 (Madras Act 1 of 1908) in the Malabar District.
(iii) to private forests situated in other areas in the Malabar District and having a contiguous area exceeding 100 acres which may be declared by the State Government to be forests for the purposes of this Act by notification in the Kerala Government Gazette, but does not apply to reserved forests constituted under the Madras Forest Act, 1882 (Madras Act V of 1882) and lands at the disposal of the Government as defined in that Act.
Explanation.- A private forest exceeding 100 acres in extent shall not cease to be such by reason only of the fact that, in a portion thereof, trees or shrubs are felled with or without the permission of the District Collector, or lands are cultivated, or rocks, roads, tanks, rivers or the like exist; nor shall the area of such forest cease to be contiguous by reason only of the existence of all or any of the aforesaid circumstances.
(3) It shall come into force at once and shall remain in force up to and inclusive of the 31st December, 1971. M.F.A.(Forest) No.88 of 2016 19
(4) Upon the expiry of this Act, the provisions of section 8 of the Madras General Clauses Act, 1891 (Madras Act 1 of 1891) shall apply as if this Act had then been repealed by a Madras Act."
25. Curiously enough, the expression "private forest" is not specifically defined under the MPPF Act. However, it is discernible that the expression does not relate to any forest owned by or vested in the Government.
26. Section 2(a) of the MPPF Act defines the term "forest" in the following lines:
"'forest' includes waste or communal land containing trees and shrubs, pasture land and any other class of land declared by the State Government to be a forest by notification in the Kerala Government Gazette.
Explanation.- For the purposes of this clause, 'communal land' means any land of the description mentioned in sub-clause (a) or sub-clause (b) of clause (16) of section 3 of the Madras Estates Land Act, 1908 (Madras Act 1 of 1908)."
It is relevant to note that above definition is a wide and inclusive one, permitting the word "forest" to be understood in its ordinary meaning in the common parlance.
27. Section 3(1)(a) of the MPPF Act stipulates that no owner of any forest shall, without the previous sanction of the District Collector, sell, mortgage, lease or otherwise alienate the whole or any portion of the forest. It is obvious that the reference to the word "forest" here can M.F.A.(Forest) No.88 of 2016 20 only be a private forest. Section 3(1)(b) of the said Act says that any alienation in contravention of Clause (a) shall be null and void in the situations described in the Sub-clauses. Sub-section (2) of Section 3 of the MPPF Act places restrictions on certain persons for cutting trees or doing any act which is likely to denude the forest or diminish its utility as a forest.
28. Now we shall examine some provisions in the Vesting Act relevant for our discussion.
29. Section 2(f) of the Vesting Act defines "private forest" in the following terms:
"(f) "private forest" means-
(1) in relation to the Malabar district referred to in sub- section (2) of Section 5 of the States Reorganisation Act, 1956 (Central Act 37 of 1956)-
(i) any land to which the Madras Preservation of Private Forest Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding-
(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964);
(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.
Explanation.-Lands used for the construction of office buildings, godowns, factories, quarters for workmen, M.F.A.(Forest) No.88 of 2016 21 hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops;
(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;
(ii) any forest not owned by the Government, to which the Madras Preservation of Private Forest Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.
(2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas.
Explanation.- For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs."
Sub-section (1) of Section 2(f) of the Vesting Act defines "private forest", in relation to Malabar District, referred to in Section 5(2) of the States Reorganisation Act, 1956. Section 2(f)(1)(i) says that "private forest"
means any land to which the MPPF Act applied immediately before the appointed day, viz., 10.05.1971. Thereafter, it goes on to say that certain lands are excluded from the definition of "private forest" falling under Sub-clauses (A) to (D).
30. It can be seen on a careful scrutiny of the Section that lands, which are gardens or nilams as defined in the Kerala Land M.F.A.(Forest) No.88 of 2016 22 Reforms Act, 1963, have been excluded from the definition of "private forest" under the Vesting Act as per Sub-clause (A). Similarly, lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market are excluded from the definition of "private forest" by virtue of Sub-clause (B). Explanation thereto further shows that the lands used for the purpose of construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops. So, on a reading of Sub-clause (B), it will be evident that the lands which are used principally for cultivation of certain crops and lands which are used for construction of buildings for the purpose of running and maintaining a plantation are excluded from the definition of "private forest".
31. Coming to Sub-clause (C) of the above Section, it can be seen that lands, which are principally cultivated with cashew or other fruit bearing trees or principally cultivated with any other agricultural crop are also excluded from the purview of "private forest". It is pertinent to note that the words "principally cultivated" have been interpreted by this Court which we shall deal with in the succeeding paragraphs.
32. Sub-clause (D) of the Section says that sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or M.F.A.(Forest) No.88 of 2016 23 use of such buildings are also excluded from the definition of "private forest". In short, although the opening words of Section 2(f)(1)(i) of the Vesting Act would appear to be proclaiming that "private forest" means any land to which the MPPF Act applied, on going through Sub-clauses (A) to (D), it can be seen that certain lands have been excluded from the definition.
33. Coming to Section 2(f)(1)(ii) of the Vesting Act, it will be evident that "private forest" means any forest not owned by the Government, to which the MPPF Act did not apply, including waste lands which are enclaves within wooded areas. Needless to say that the lands described in Section 2(f)(1)(ii) are also lands included in Malabar District of the erstwhile Madras Province. This provision specifically deals with any forest not owned by the Government to which MPPF Act did not apply. This provision takes in waste lands which are enclaves within wooded areas in the definition of "private forests".
34. Section 2(f)(2) of the Vesting Act says that "private forest"
means, in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which enclaves within wooded areas. On a careful scrutiny of this Sub-section, it can be seen that it applies to lands lying outside Malabar area or in otherwords, lands lying in other areas of the State.
35. In this context, it is relevant to note that the land in dispute is situate in Kozhikode Taluk, which unquestionably was a part of the M.F.A.(Forest) No.88 of 2016 24 erstwhile Malabar District of Madras Province. It is therefore definite that the land is in an area, once upon a time covered by the MPPF Act.
36. Section 3(1) of the Vesting Act is very much similarly worded as Section 3 of the EFL Act. Noticeable difference lies in the fact that whereever "private forest" occurs in Section 3(1) of the Vesting Act, the words "ecologically fragile land" have been substituted in Section 3 of the EFL Act. Sub-sections (2) to (4) in Section 3 of the Vesting Act, dealing with exemptions, are not present in the EFL Act. Hence we need not rivet our attention to the exemption clauses. For a better analysis, Section 3(1) of the Vesting Act is quoted hereunder:
"Private forests to vest in Government.-(1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished."
37. Section 7 of the Vesting Act is the provision relating to constitution of Tribunals for settlement of disputes referred to in Section 8 of the Act. We are not elaborating on Section 8 of the Vesting Act at present because a comparative study of Section 8 of the Vesting Act alongside Section 10 of the EFL Act may be required, as stated above, M.F.A.(Forest) No.88 of 2016 25 at a later point.
38. On understanding the scheme of the EFL Act and the Vesting Act as above, it can be seen that the provisions in the Vesting Act have direct linkage with the MPPF Act. In fact, the Vesting Act differently treats the properties lying within the erstwhile Mabalar area and rest of the State while defining the expression "private forest".
39. On a careful scrutiny of the preamble to the Ordinances which heralded the EFL Act and also the long title, preamble and provisions in the EFL Act, it will be clear that this particular law was enacted for a purpose which is entirely different from the purpose of the Vesting Act. EFL Act is intended for conservation of biological diversity and biological resources. State came forward with this enactment with an avowed object of preserving tropical forests in the western ghats, which has been declared a bio-diversity hot spot by the International Union for Conservation of Nature and Natural Resources. On the other hand, if we look at the preamble to the Vesting Act, it can be seen that the said Act was enacted for vesting in the Government of private forests in the State of Kerala for the purpose of assignment thereof to the agriculturists and agricultural labourers for cultivation. In short, the Vesting Act was mainly focusing on distribution of private forests to the agriculturists and agricultural labourers for cultivation. In contra- distinction, object of the EFL Act is to preserve and conserve bio- diversity treating the natural resources as public trust vital to the M.F.A.(Forest) No.88 of 2016 26 economic and social development of humanity. For the abovesaid reasons, we find the Vesting Act and MPPF Act overlap on each other to some extent. Whereas, the intention prompted the State to legislate the EFL Act is quite different from the Vesting Act.
40. Notwithstanding the visible similarity in the vesting provisions and the provisions provided for settling disputes in both the Acts, we think that the Vesting Act and EFL Act operate in water-tight compartments. On a careful scrutiny of the legislations, it can be seen that both the Acts reflect a socio-economic policy adopted by the State, reckoning the pressing necessity experienced at different points of time.
41. As the name itself suggests, MPPF Act was intended to prevent indiscriminate destruction of private forests, interference with the customary and prescriptive rights therein and for certain other purposes. This is evident from the preamble to the MPPF Act. It controlled deforestation to a great extent. During the second half of the 20 th century, acute shortage of food grains and other cash crops was experienced. Need for augmenting agricultural production was considered at that time to be of prime importance. Then, the State thought that private forests in the State of Kerala are agricultural lands as well and such agricultural lands should be utilised to increase agricultural production. With the above objective, it was thought necessary that private forests in the State should vest in the Government for the purpose of assigning them to agriculturists and M.F.A.(Forest) No.88 of 2016 27 agricultural labours for cultivation. This is evident from the preamble to the Vesting Act.
42. Responding to the world wide realization that deforestation caused ecological imbalances and led to environmental deterioration, Government of India passed the Forest (Conservation) Act, 1980. State Government also thereafter became aware of the necessity of conserving forests and therefore the aforementioned Ordinances and finally the EFL Act have been enacted. Paradigm shift in the view point of the State from assignment of forest lands for cultivation to maintain ecologically fragile lands for keeping the ecological balance and bio- diversity is evident on a close examination of these enactments. Hence, we find it extremely difficult to think that both the enactments are in pari materia.
43. Forceful arguments were addressed by both sides regarding as to whose burden it is to plead and prove that a particular land is an ecologically fragile land or not. Sri.P.B.Krishnan would contend that no provision in the EFL Act permits the Government to notify any land in the State unless the definition of ecologically fragile land is satisfied. Moreover, it is contended that merely on issuing a notification, the State cannot take a position that the land has become an ecologically fragile land, if actually it is otherwise. Initial onus is on the State to establish that the land in question is an ecologically fragile land. If only the State discharged this onus, the burden would shift on to the aggrieved person M.F.A.(Forest) No.88 of 2016 28 to show either that the land in dispute is not an ecologically fragile land or the land falls within the excluded category. Per contra, Sri. Nagaraj Narayanan contended that tenor of the statutory provisions in the EFL Act, especially Sections 3 and 10, would show that all ecologically fragile lands would vest in the State by operation of the statute from the appointed day and burden is solely on the claimant to show that the land is not an ecologically fragile land.
44. One of the contentious issues is whether the rules of interpretation applicable to the provisions in the Vesting Act could be applied to the EFL Act also for determining the burden of proof.
45. Sri.P.B.Krishnan argued that in order to determine whether a particular land is ecologically fragile land or not, status of the land as on 02.06.2000 alone would be determinative and its status with reference to any previous date will have no relevance. According to him, burden to show this jurisdictional fact is on the Government. To buttress this contention, a decision in Narayanabhat v. State of Kerala (2018 (1) KLT 34) is relied on. A Division Bench of this Court in the above decision observed that according to the definition of ecologically fragile land under Section 2(b) of the EFL Act, such a land must be a forest land at first. If a disputed land was not a forest land as on the appointed day, it can never be an ecologically fragile land. On the basis of this decision, Sri.P.B.Krishnan contended that since the land involved in the case on hand was found to be a coffee plantation, not liable to be proceeded M.F.A.(Forest) No.88 of 2016 29 against under the Vesting Act, the burden is heavy on the Government to establish that on 02.06.2000 the land was ecologically fragile. It is also argued on the basis of a Division Bench decision in Planters Forum v. State of Kerala (2015 (2) KLT 783) that adjudication of status of the land, as a coffee plantation, under the Vesting Act is a relevant piece of evidence under Section 42 of the Indian Evidence Act, 1872 (in short, "the Evidence Act") in a proceeding under the EFL Act. In paragraphs 116 to 119 of the judgment, the Division Bench has dealt with this issue. After noticing the presence of a non-obstante clause in Section 3(1) of the EFL Act and on considering its effect, the Division Bench ruled that the judgments delivered under the Vesting Act, by virtue of Section 3(1) of the EFL Act, are not binding in subsequent proceedings under the EFL Act, but their relevancy as pieces of evidence cannot be impeached. Further, the judgments rendered under the Vesting Act can be looked into and each case has to be decided in accordance with its own merits. These observations may not be very much helpful to the respondents, except to the extent that the earlier finding under the Vesting Act was that the land in question was a coffee plantation as on the date of final decision. This has to be viewed in the light of the contention raised by the State that despite restoring the land to possession of the respondents in 1994, they did not undertake any agricultural activity and thereby on the appointed day of the EFL Act, it has become an ecologically fragile land. We shall examine the factual issues later. M.F.A.(Forest) No.88 of 2016 30
46. Reliance is placed on Section 101 of the Evidence Act, which says that whoever desires any court to give a judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 of the Evidence Act says that the burden of proof in a suit or proceeding lies on that person who would fail, if no evidence at all were given on either side. We shall bear in mind these principles at the time of considering the factual issues.
47. Interpreting Section 8 of the Vesting Act, a Division Bench of this Court in State of Kerala v. Balagopalan (M.F.A.No.12 of 1980, decided on 10.01.1986) observed in paragraph 11 as follows:
"11. .......... The person who approaches the Tribunal must have a claim that the land is not a private forest or that the private forest has not vested in the Government. He has to put forward such a claim before the Tribunal. Naturally if the claim is denied by the Government or the custodian, he has to establish that claim. This conclusion is supported by the provisions in sub-section (3) of Section 8 of the Vesting Act. In these circumstances we hold that it is for the claimant to prove that the land in dispute is not a private forest or that the private forest has not vested in the Government."
This decision was followed in State of Kerala v. Kunhiraman (1990 (1) KLT 832).The observations are as follows:
"It would be pedantic to insist that when there is M.F.A.(Forest) No.88 of 2016 31 dispute concerning a land in the said area, the burden is on the person who says that it was forest land to establish the same by leading evidence. The person who approaches the Tribunal must have a claim that the land is not a private forest or that the private forest has not vested in the Government. He has to put forward such a claim before the Tribunal. Naturally if the claim is denied by the Government or the Custodian, he has to establish that claim. This conclusion is supported by the provisions in sub-section (3) of S.8 of the Act. The burden is on the claimant to prove that the land in question was not private forest on the appointed date."
48. The above position was re-affirmed in a Full Bench decision in State of Kerala v. Chandralekha (1995 (2) KLT 152). The observations are as follows:
"Section 8 provides that where any dispute arises as to whether any land is private forest or not or any private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, may, within such period as may be prescribed apply to the Tribunal for decision of the dispute. Section 8 makes the position clear that it is for the person who claims that the land is not a private forest or that the private forest has not vested in the Government to apply before the Tribunal for decision of the dispute. From a reading of the Section it is apparent that the person who prefers a claim before the Tribunal that the property is not private forest or that it has not vested under the Vesting Act has the burden M.F.A.(Forest) No.88 of 2016 32 to establish his case. As he alone can produce necessary evidence in support of his case it can never be held that the onus of proof is on the State to prove that the land in question is a private forest. As the owner of the land has to prefer his claim before the Tribunal that the land is not private forest or that the private forest has not vested in the Government, he has necessarily to establish that claim as he alone is in possession of data and materials to prove his case. The burden is squarely upon him to substantiate his claim."
49. Our attention has been drawn to State of Kerala and another v. Popular Estates and another ((2004) 12 SCC 434) wherein also it has been clearly held that under Section 8 of the Vesting Act the burden of proof in respect of a claim that a land in question is not a private forest is on the claimant.
50. Therefore, it is clear that the burden of proof under Section 8 of the Vesting Act is squarely on the claimant alone. Whether this principle can be applied in the case of a claimant under Section 10 of the EFL Act too is the question.
51. Now we shall examine whether Section 8 of the Vesting Act is comparable to Section 10 of the EFL Act. For that purpose, we shall juxtapose the provisions:
"8.Settlement of disputes.- (1) Where any 10. Settlement of dispute by the dispute arises as to whether- Tribunal.-(1)Where any dispute arises as to
(a) any land is a private forest or not; or whether,-M.F.A.(Forest) No.88 of 2016 33
(b) any private forest or portion thereof has (a) any land is an ecologically fragile land vested in the Government or not, the or not; or person who claims that the land is not a (b) any ecologically fragile land or portion private forest or that the private forest has thereof has vested in the Government or not vested in the Government, may, within not; or such period as may be prescribed apply to (c) the compensation determined under the Tribunal for decision of the dispute. section 8 is insufficient or not. (2) Any application under sub-section (1) The person who claims that the land is shall be in such form as may be prescribed. not an ecologically fragile land or that the (3) If the Tribunal decides that any land is ecologically fragile land has not vested in not private forest or that a private forest or the Government, or that the compensation portion thereof has not vested in the is not sufficient, may, within five years from Government and- the date of commencement of this Act or
(a) no appeal has been preferred against within six months from the date of the the decision of the Tribunal within the period notification under sub-section (1) of Section specified therefor; or 4 declaring the land to be an ecologically
(b) such appeal having been preferred fragile land, or the date of communication of has been dismissed by the High Court, the compensation under Section 8, as the case custodian shall, as soon as may be after the may be, or within such time as the expiry of the period referred to in clause (a) Government may notify in this behalf apply or, as the case may be, after the date of the to the Tribunal for settlement of the dispute.
order of the High Court dismissing the (2) An application under sub-section (1) appeal, restore possession of such land or shall be in such form and contain such private forest or portion, as the case may particulars as may be prescribed. be, to the person in possession thereof (3) If the Tribunal decides that any land is immediately before the appointed day. not an ecologically fragile land or that an ecologically fragile land or portion thereof has not vested in the Government and
(a) no appeal under Section 11 has been preferred against the decision of the Tribunal within the period specified therein;
or
(b) such appeal having been preferred M.F.A.(Forest) No.88 of 2016 34 under Section 11 has been dismissed by the High Court, the custodian shall, as soon as may be, after the expiry of the period referred to in clause (a) or, as the case may be, after the date of the order of the High Court dismissing the appeal, restore possession of such land or portion, as the case may be, to the owner of such land.
(4) If the Tribunal decides that the compensation determined under Section 8 is not adequate and revises the amount of compensation and,-
(a) no appeal under Section 11 has been preferred against the decision of the Tribunal within the period specified therein;
or
(b) such appeal having been preferred under Section 11 has been dismissed by the High Court, the custodian shall, as soon as may be, after the expiry of the period referred to in clause (a) or, as the case may be, after the date of the order of the High Court dismissing the appeal, pay such compensation, to the owner of such land."
52. On a close scrutiny, it can be seen that under both these provisions, one of the disputes to be settled is regarding the nature of the land. Under Section 8 of the Vesting Act, the dispute is whether any land is a private forest or not; under Section 10 of the EFL Act, the M.F.A.(Forest) No.88 of 2016 35 dispute is whether any land is an ecologically fragile land or not.
53. Another dispute raiseable under the Vesting Act is whether any private forest or portion thereof has vested in the Government or not. In the case of EFL Act, a similar dispute, viz., whether any ecologically fragile land or portion thereof has vested in the Government or not is a dispute arising for decision. As mentioned earlier, under Section 3(1) of the Vesting Act, a land belonging to an individual or group of individuals statutorily vested in the Government and the State has no liability to pay any compensation. In that sense, Section 3 of the Vesting Act is an expropriatory provision.
54. Exactly similar is the wording in Section 3 of the EFL Act also, which shows that a person, who had any right, title or interest over the land vested in the Government, has no right to claim any compensation. It is, therefore, evident that Section 3 of the EFL Act is also an expropriatory provision.
55. Coming back to Section 10 of the EFL Act, it is distinguishable from Section 8 of the Vesting Act only regarding determination of the sufficiency of compensation payable to an affected person. Insufficiency of compensation payable under Section 8 of the EFL Act is also a dispute contemplated under Section 10. But no such right is available under the Vesting Act. This stark distinction between Section 8 of the Vesting Act and Section 10 of the EFL Act is noteworthy. Apart from this distinction, we find very many similarities between the M.F.A.(Forest) No.88 of 2016 36 above provisions in all other respects, including the nature of disputes that can be raised and the manner in which the disputes are to be adjudicated.
56. In the above background, we have to analyse whether the issue relating to burden of proof under the EFL Act can be decided with reference to the precedents under Section 8 of the Vesting Act.
57. We may have to refer to some principles relating to statutory interpretation. Seminal work by Justice G.P.Singh on "Principles of Statutory Interpretation" (13th Edition) says that intention of the legislature is one of the basic principles aiding the interpretation of a statute. Following quotation from Justice G.P.Singh's celebrated book will throw some light on the principle:
"A statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the 'intention' of its maker. A statute is to be construed according "to the intent of them that make it"
and "the duty of judicature is to act upon the true intention of the Legislature- the mens or sententia legis". The expression 'intention of the Legislature' is a shorthand reference to the meaning of the words used by the legislature objectively determined with the guidance furnished by the accepted principles of interpretation. If a statutory provision is open to more than one interpretation the court has to choose that interpretation which represents the true intention of the Legislature, in other words the 'legal meaning' or 'true meaning' of the statutory M.F.A.(Forest) No.88 of 2016 37 provision. The task is often not an easy one and the difficulties arise because of various reasons. To mention a few of them: Words in any language are not scientific symbols having any precise or definite meaning, and language is but an imperfect medium to convey one's thought, much less of a large assembly consisting of persons of various shades of opinion. It is impossible even for the most imaginative Legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. The function of the courts is only to expound and not to legislate. ........"
58. Apex Court in Ram Narain v. The State of U.P. (AIR 1957 SC 18) has laid down the following proposition:
"It is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act. The meanings of words and expressions used in an Act must take their colour from the context in which they appear."
The above rule may not apply only when both the enactments are in pari materia.
59. State of Kerala v. Amalgamated Malabar Estates (P) Ltd. (1979 KLT 829), a Full Bench decision of this Court says thus:
"In the Interpretation of Statutes the courts decline to consider other statutes proceeding on different lines and including different provisions, or the judicial decisions thereon. The words of a Statute are to be understood in the sense in which they best harmonise with the subject of the enactment.M.F.A.(Forest) No.88 of 2016 38
Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject, or in the occasion on which they are used and the object to be attained. Grammatically, words may cover a case; but whenever a Statute or document is to be construed it must be construed not according to the mere ordinary general meaning of the words, but according to the ordinary meaning of the words as applied to the subject matter with regard to which they are used, unless there is something which renders it necessary to read them in a sense which is not their ordinary sense in the English language as so applied."
60. Then, the question is whether the EFL Act and Vesting Act are in pari materia. In the foregone paragraphs, we have indicated reasons to think that both the statutes are not in pari materia. Sri.P.B.Krishnan strongly contended that the EFL Act is a stand-alone enactment and those statutes are not in pari materia. Per contra, Sri.Nagaraj Narayanan would contend that there are some features common to both the Acts and therefore they are in pari materia.
61. The expression "in pari materia" as per Black's Law Dictionary (9th Edition, page 862) means thus:
"in pari materia. (Latin "in the same matter") 1. adj.
On the same subject; relating to the same matter. It is a canon of construction that statutes that are in pari materia may be construed together, so that inconsistencies in one statute may be resolved by M.F.A.(Forest) No.88 of 2016 39 looking at another statute on the same subject."
62. Words and Phrases (Permanent Edition, Vol.21A, page
270) says that statutes "in pari materia" are those relate to the same person or things. It further says that an Act is not "in pari materia"
though it may incidently refer to the same subject, if its scope and aim are distinct and unconnected. It is true to say that statutes which are not inconsistent with one another and which relate to the same subject matter are in pari materia and should be construed together, and effect should given to them all, although they contain no reference to one another and were passed at different times.
63. Sir Rupert Cross on "Statutory Interpretation" (1976 Edition, page 128) has quoted a passage from R. v. Loxdale ((1758), 1 Burr.445) in the following lines:
"Where there are different statutes in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system, and as explanatory of each other".
64. It is a settled legal proposition that in order to be in pari materia, the Acts need not have been enacted simultaneously or that they should refer to one another.
65. It has been held in Poppatlal Shah v. State of Madras (AIR 1953 SC 274) that each word, phrase or sentence is to be construed in the light of general purpose of the Act itself.
M.F.A.(Forest) No.88 of 2016 40
66. In Kusum Ingots & Alloys Ltd. v. Union of India ((2004) 6 SCC 254), it has been held that Section 20(c) of the Code of Civil Procedure, 1908 and Article 226(2) of the Constitution of India are in pari materia and decisions interpreting the former have been held to apply in interpreting the latter for deciding the place or places where the cause of action, wholly or in part, arises for entertainment of a writ petition in the High Court for challenging the vires of a Central Act.
67. We need not enlist a long line of authorities for the indisputable proposition that when a word is not defined in an Act, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. Equally important is the principle that in selecting one out of various meanings of a word, regard must always be had to the context, that it is a fundamental rule that meaning of a word and expression used in an Act must take its colour from the context in which it appears (see Ram Narain v. The State of U.P. (AIR 1957 SC 18) and S.Samuel v. Union of India (AIR 2004 SC
218)).
68. From the above discussion, it will be clear that there are no sustainable reasons to hold that the EFL Act and Vesting Act are in pari materia. The legislative intent is distinct and different for enacting the above said statutes. Therefore, we find that the precedents under the Vesting Act, which cast a burden of proving necessary facts on the claimant to avoid the application of law, cannot be blindfoldedly applied M.F.A.(Forest) No.88 of 2016 41 to the EFL Act since the Vesting Act and EFL Act are not in pari materia. At the same time, striking similarities in the phraseology and scope of the Sections relating to vesting and settlement of disputes appearing in both the Acts are not only significant, but also relevant for deciding the burden of proof.
69. Notwithstanding the above reasoning, we hold that burden of proving that the EFL Act does not apply to a particular land rests on the claimant himself. Reasons are obvious. Section 3 of the EFL Act clearly states about an unconditional and absolute vesting of ecologically fragile lands in the State Government with effect from the appointed date. No provision in the Act postpones vesting of such lands in the Government. No notification is needed for effectuating the vesting. It further says that the right, title and interest of the owner or any person thereon shall stand transferred to the Government. By an unambiguous statutory declaration, such lands stood transferred to and vested in the Government. In the teeth of a statutory declaration that all ecologically fragile lands in the State will vest in the Government, it becomes incumbent upon the claimant to prove that his land will not fall within the definition of ecologically fragile land. It will be pedantic, if not hyper technical, to insist that the Government should examine each and every parcel of land in the State to find out whether it satisfied the requirements under the EFL Act in order to vest in the Government. We shall not ignore the object and purpose of the enactment while M.F.A.(Forest) No.88 of 2016 42 interpreting its provisions. On the other hand, it will be easy for the claimant to establish that his land is not an ecologically fragile land or even if it be so, it has not been vested in the Government. He can also show that the compensation determined under Section 8 of the EFL Act is insufficient. It is quite impossible for us to take another view, when we regard the intent and purport of the enactment. We notice the close resemblance in the phraseology employed in Section 3(1) of the Vesting Act and Section 3(1) of the EFL Act. Even though we hold a view that the above statutes are not in pari materia, we find no rationale to take a different view in the matter of burden of proof under the EFL Act in the light of the clear statutory intendment. By the very fact that the provisions relating to statutory vesting and settlement of disputes in both the statutes are verbatim, the analysis done for deciding the burden of proof ought to yield the same result.
70. A close look at Section 10 of the EFL Act also would fortify our view. It can be seen that a person who claims that his land is not an ecologically fragile land or that such land has not vested in the Government or that compensation is not sufficient (not relevant in this case) may apply to the Tribunal for settlement of the dispute. It is crystal clear that the right to approach the Tribunal for settlement of disputes is given only to the claimant. In otherwords, no right or duty is cast on the Government to approach the Tribunal for settlement of disputes. But, at the same time, both sides are given a right to challenge the decision of M.F.A.(Forest) No.88 of 2016 43 the Tribunal in appeal, clearly indicating that it is for the claimant alone to approach the Tribunal for redressal of his grievance. This is also another reason to find the burden on the claimant alone to prove that his land is not an ecologically fragile land or that the ecologically fragile land has not vested in the Government. Likewise, it is on him to prove that the land is used principally for the cultivation of crops of long duration mentioned in Section 2(c) of the EFL Act. If this fact is proved, automatically the land will be taken out of the purview of the definition of ecologically fragile land. In any view of the matter, we find that the burden of proving the necessary facts required to establish non- application of the EFL Act on a particular land is on the claimant. Provisions in the Evidence Act referred to above also reinforce our view.
71. To sum up, we find that the EFL Act is an independent enactment, not interlinked with the Vesting Act, as the legislative intention for enacting the law is quite different from that of the Vesting Act. In order to understand whether a land is ecologically fragile land or not, we have to consider its status and qualification as on 02.06.2000. Previous history of the land will be of no use to know whether the EFL Act applied to the land with effect from the appointed date or not.
72. Burden of proving that a particular land is not an ecologically fragile land is squarely on the claimant. He can take recourse to any of the options provided under Section 10 of the EFL Act to establish that his land is not an ecologically fragile land.
M.F.A.(Forest) No.88 of 2016 44
73. Binding precedents under the Vesting Act cannot be directly applied to interpret the provisions in the EFL Act since both Acts are not in pari materia. But, on an analysis of Sections 3 and 10 of the EFL Act, we can only arrive at a conclusion that the burden is on the claimant to prove that his land is not ecologically fragile land or even if it be so, that it is not vested in the Government. If our view regarding the burden of proof under the EFL Act purely resting on the claimant happens to be identical to the view taken by this Court and apex Court in cases under the Vesting Act, it can only be due to the close similarity or likeness of the statutory provisions relating to vesting and settlement of disputes present in both the laws and the scheme of those provisions do not admit another rational view.
The points under consideration are decided accordingly. Point V.
74. In the opening paragraphs, we have mentioned about the derivation of title claimed by the contesting respondents. There is no dispute regarding the fact that the property originally belonged to the respondents. According to the appellants, by operation of Section 3(1) of the EFL Act, the property became vested in the Government and the respondents thereby lost all right, title and interest over the same. Per contra, the respondents would contend that the property under dispute is not an ecologically fragile land and therefore no statutory vesting had taken place. They would also strongly contend that the property, being a M.F.A.(Forest) No.88 of 2016 45 coffee plantation exempted from operation of the Vesting Act, can never fall within the definition of "forest" in Section 2(c) of the EFL Act. And, for the same reason the property cannot be qualified as an ecologically fragile land, falling within Section 2(b) of the EFL Act.
75. Exts.A1 and A2 are the title deeds on which the respondents place reliance to assert their rights. Their case is that as per Ext.A13, the land was registered under Section 14 of the Coffee Market Expansion Act, 1942 and Ext.P13 would prove that long before the appointed date of the EFL Act, the property was a coffee plantation and it remained to be so as on the appointed date too, viz., 02.06.2000. Therefore, by paying regard to the definition clause, the land cannot be said to be an ecologically fragile land as it falls within the exempted category.
76. Sri.P.B.Krishnan argued that the DFO had plainly admitted that the property was a coffee plantation during the earlier round of litigation under the Vesting Act. Ultimately, on 30.06.1994, the property was restored to the possession of the respondents on terminating the proceedings under the Vesting Act.
77. Chronology of events would show that on 31.08.1998, a notification was issued in respect of the property under Section 5 of the Kerala Preservation of Trees Act, 1986. Later, on 27.03.2001, Ext.B1 notification under Section 3(1) of the EFL Ordinance 2001 was issued. These facts are clear from the pleadings as well as the documents M.F.A.(Forest) No.88 of 2016 46 produced.
78. One of the serious contentions raised by Sri.Nagaraj Narayanan is that in spite of restoring possession of the land to the respondents on 30.06.1994 and even after publishing ExtB1 notification on 27.03.2001, till the date of filing W.P.(C) No.19671 of 2004 the respondents did not take any step either to cultivate the land or to challenge the notification issued on 27.03.2001. According to him, on the appointed date of the EFL Act, the property was lying as an ecologically fragile land and therefore the statutory vesting has automatically taken place. It is borne out from records that W.P.(C) No.19671 of 2004 filed by the respondents for de-notifying the land was disposed of by this Court on 09.06.2005 directing the Custodian to consider the application under Section 19(3) of the EFL Act. As mentioned earlier, there were successive inspections by the committees, initially without notice to the respondents and later with notice to them, finally resulting in the department reiterating their stand that the disputed property is an ecologically fragile land. It is also seen that on 03.06.2011 an "erattum notification" (Ext.B2) was issued. Thereafter on 29.09.2011, the respondents filed the application before the Tribunal seeking a declaration that the property has not been vested under Section 3(1) of the EFL Act.
79. Events transpired in this case, as narrated above, take us to a crucial question: What was the status of the land as on 02.06.2000? M.F.A.(Forest) No.88 of 2016 47 For clarity, we may re-state that this has to be answered in the light of the contentions raised by the respondents that before and after 02.06.2000, the property remained a coffee plantation and therefore no vesting had taken place; whereas the contention of the appellants is that despite restoration of possession of the land to the respondents on 30.06.1994, they did not do any agricultural operation till 02.06.2000 or even thereafter, and thereby naturally grown trees and other vegetation automatically turned the land to an ecologically fragile land coming within the sweep of Section 3(1) of the EFL Act. It is also emphatically argued on behalf of the State that complete inaction on the part of the respondents over a long period of time might have turned the alleged coffee plantation into a forest, as defined in Section 2(c) of the EFL Act. The respondents, therefore, are not entitled to contend that no statutory vesting had taken place. Abandonment of the property without any cultivation for a long time, before and after commencement of the EFL Ordinance 2001 and the EFL Act, would disentitle the respondents from claiming any ownership or right over the land.
80. PW1, Jacob Thomas, who testified on behalf of the respondents, deposed at the time of cross-examination that he was managing the property and knew its state of affairs from 1966 onwards. He is the son of deceased Thomas. It is his version that when the property was restored to their possession in 1994, it was a coffee plantation. He admitted that there were naturally grown trees and M.F.A.(Forest) No.88 of 2016 48 undergrowths at the time of restoration of possession. It is his further admission in cross-examination that despite restoration of possession, the respondents did not do any cultivation in the property. But, he would assert that it was because the Forest Officers prevented them from cultivating. It is also admitted by him that on the three boundaries of the disputed property, vested forest is situate. On the southern side, a rivulet passess through. PW1, during cross-examination, stated that although the respondents had a registration certificate under Coffee Market Expansion Act, 1942, they did not renew the licence subsequent to restoration of the property. To a specific question whether PW1 had paid plantation tax to the property, he answered in the negative. Likewise, he admitted that the respondents had never paid agricultural income tax for the income obtained from the disputed property. He has not produced any account to show the expenditure incurred for any sort of cultivation in the property. PW1's version is that coffee plants aged about 16 years were naturally grown. To a specific question in cross- examination about the presence of a lot of naturally grown trees in the property, PW1 answered that he did not notice any. When cross- examined, PW1 admitted that on 02.06.2000, there was no cultivation in the property.
81. In re-examination, an answer was elicited from PW1 that the respondents were prevented by the Forest Officers from entering the property even subsequent to the restoration. Sri.P.B.Krishnan, learned M.F.A.(Forest) No.88 of 2016 49 counsel for the respondents, relying on this version of PW1, contended that the State cannot be permitted to take advantage of their own wrong and to contend that the land has become an ecologically fragile land. Per contra, Sri.Nagaraj Narayanan, learned Special Government Pleader, contended that if the respondents were diligent in exercising their rights over the property, they would have approached the Forest Department complaining about the alleged unlawful interference by the officers. Fact that no such step was taken by the respondents would indicate that they had abandoned the property even after re-possessing the same in the year 1994. It is also contended by the learned Special Government Pleader that till 2004, they did not file any complaint or take any legal action, complaining the alleged interference by the Forest Officers. It is therefore contended that PW1's version that after 1994 they failed to cultivate on account of any hindrance caused by the Forest Department cannot believed at all.
82. RW1, Sajikumar was the Forest Range Officer, Thamarassery. He took charge as Range Officer only in the year 2014. However, he testified that he had gone through the documents pertaining to this case. During cross-examination, RW1 deposed that in 1993 he was a Section Forest Officer in Thamarassery and he had occasion to inspect the property at that time. He testified about O.A.No.16 of 1981 and 17 of 1981 filed before the Forest Tribunal, Kozhikode under the Vesting Act. According to RW1's deposition, the M.F.A.(Forest) No.88 of 2016 50 property was handed over to the respondents after notifying the same under Section 5 of the Kerala Preservation of Trees Act, 1986. Subsequently, Ext.B1 notification was issued under EFL Ordinance 2001. According to RW1, Ext.B3 is the same plan through which the land was restored to the possession of the respondents.
83. RW1 deposed that some of the observations in the commissioner's report are incorrect. It is also pointed out that the appellants have filed an objection to the commissioner's report. It is his version that after Ext.B1 notification, the respondents were not allowed to enter the property as the land became vested in the Government.
84. Sri.Nagaraj Narayanan strongly contended that the Tribunal egregiously erred in placing reliance on the decision in State of Kerala v. Kumari Varma (2011 (1) KLT 1008) to decide this case. According to him, facts in Kumari Varma's case are not comparable to those in this case. Further, the decision in Kumari Varma is pending consideration before the apex Court in a special leave petition preferred by the State. Per contra, Sri.P.B.Krishnan contended that not only the ratio in Kumari Varma, but the principles laid down in other decisions also support the view taken by the Tribunal. Pendency of special leave petition against Kumari Varma may not ipso facto affect its binding nature.
85. We shall examine the binding nature of the precedents relied on by both parties before going into the factual nitty-gritties.
86. We should keep in mind the inviolable principle that the ratio M.F.A.(Forest) No.88 of 2016 51 decidendi in every judgment must be read and understood in the light of the facts involved in the case. We shall extract a paragraph from "Precedent in English Law" by Rupert Cross, (Clarendon Law Series
- 1961 edition, page 37) for laying down a foundation for our reasoning:
"There would be no point in setting out many of the remarks of judges insisting on the importance of paying the most scrupulous attention to the facts of the previous cases cited to them. The number of such remarks is legion. The requirement goes to the root of the doctrine of precedent according to which like cases must be decided alike. Only so is it possible to ensure that the court bound by a previous case decides the new case in the same way as the other court would have decided it. Of course, it is all a question of probabilities, but the probability that a court will decide a new case in the same way as would the court which decided one of the cases cited becomes less and less as the differences between the facts of the two cases increase."
87. In Quinn v. Leathem ((1901) A.C. 495) Lord Halsbury succinctly says:
"Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found."
88. Aforementioned principles have been religiously followed by the Supreme Court as well as this Court in plethora of decisions. In order M.F.A.(Forest) No.88 of 2016 52 to avoid verbosity, we refrain from enlisting all the decisions restating the above principles and confine to a couple of decisions relevant in this context. The Supreme Court in C.I.T. v. Sun Engineering Works (P) Ltd. ((1992) 4 SCC 363) held thus:
"It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings."
89. Another decision relevant in this context is State of Punjab v. Baldev Singh ((1999) 6 SCC 172) in which it is said thus:
"......... It is a well-settled proposition of law that a decision is an authority for what it decides and not that everything said therein constitutes a precedent. The courts are obliged to employ an intelligent technique in the use of precedents bearing it in mind that a decision of the court takes its colour from the questions involved in the case in which it was rendered."
90. In explicit words, it has been held by the Supreme Court in M.F.A.(Forest) No.88 of 2016 53 Ambica Quarry Works v. State of Gujarat ((1987) 1 SCC 213) that the ratio of any decision must be understood in the background of the facts of that case.
91. Now we shall turn to the relevancy of the decisions cited before us.
92. It is the definite case of the respondents that as on 02.06.2000, rather from the date of restoring possession of the property to them in the year 1994, they could not do any agricultural operation in the property on account of the obstructions made or resistance offered by the Forest Officers. On the other hand, Sri.Nagaraj Narayanan contended that even after re-possessing the property in the year 1994, the respondents abandoned the land without doing any cultivation, thereby allowing natural vegetation to grow up, including naturally grown trees and undergrowths. It is therefore contended by the appellants that the property has automatically turned into an ecologically fragile land, thereby causing it to vest in the Government under Section 3(1) of the EFL Act.
93. Sri.P.B.Krishnan relying on the decision in Kumari Varma's case (supra) contended that the facts in this case are similar to those in Kumari Varma and therefore the principle of law declared therein has to be applied. On a perusal of the facts in Kumari Varma, it can be seen that an individual had filed an application before the Tribunal, constituted under the Vesting Act, seeking a declaration that his cardamom M.F.A.(Forest) No.88 of 2016 54 plantation is not a private forest. After a long drawn litigation before the Tribunal and this Court, a final order came to be passed by the Tribunal recording a finding that an extent of 100.05 acres of land, marked in the sketch prepared, to be a cardamom plantation and therefore excluded from the definition of "private forest" under the Vesting Act. Despite there was a challenge against this finding by the State, all the courts including the Supreme Court upheld the contention of the aggrieved person. Later, the EFL Act came into force and the State notified the said property as ecologically fragile land. Learned Special Government Pleader pointed out that the observations in paragraph 7 of Kumari Varma's judgment, to the effect that in view of the declaration contained in Section 4 of the EFL Act a notification was issued, can only be a wrong statement, because the notification therein was issued under Section 3(1) of the EFL Act. We find no reason to think that the said mistake has affected the reasoning in any manner. Be that as it may, this Court on the facts borne out from the records found that after termination of the proceedings under the Vesting Act, the claimant (respondent in that case) was prevented from entering the property thereby allowing undergrowth to cover the property. In paragraph 26 of the judgment, the contentions raised by the respondent in that case have been extracted. Impressed about the respondent's contentions, this Court entered a finding that there was no intention on the part of the respondent to abandon the cultivation of cardamom. Reliance was placed on Bhavani M.F.A.(Forest) No.88 of 2016 55 Tea & Produce Co.Ltd. v. State of Kerala (1991 (1) KLT 666) to arrive at that conclusion. Ratio in Kumari Varma's case can be applied to this case only if we find similarity in the facts.
94. At this juncture, we have to consider three contentions raised by the appellants to say that the principles in Kumari Varma's case cannot be applied to this case. Firstly, evidence collected by the advocate commissioner and the experts who visited the property, about which we shall discuss in the succeeding paragraphs, do not show that even after repossessing the property, the respondents did venture to do any cultivation to qualify the disputed land a coffee plantation. Secondly, presence of forest trees in abundance in the property will make it apparently clear that the property squarely falls within the definition of "forest" in Section 2(c) of the EFL Act. Thirdly, the respondents' contention that forest officers prevented their entry to and agricultural operations in the property from 1994 till 2004 cannot be accepted for a moment for the reason that not even on one occasion they did file any complaint to any authority seeking redressal of grievance. Complete inaction on the part of the respondents writ large from the materials on record, especially the admissions by PW1, will make it clear that the respondents cannot salvage the situation by putting blame on the Forest Officers for finding naturally grown trees and undergrowths in the property.
95. It may now be apposite for us to refer to the reports M.F.A.(Forest) No.88 of 2016 56 submitted by the commissioner and experts. Exts.C1 to C4 are the commissioner's report, plan and the experts' reports. It is pertinent to note that no serious challenge was made against these materials and none of these persons was examined before the Tribunal.
96. Appellants have serious objections regarding certain observations made by the commissioner in his report suggesting that the property is a coffee plantation. According to the learned Special Government Pleader, for two reasons much value cannot be attached to the commissioner's report. Firstly, he is not an expert in identifying the forest trees and saying whether a land is ecologically fragile land or not. Secondly, he has not scientifically taken enough number of sample plots to find out whether this land is used principally for cultivation of coffee. It is also pointed out that the State had filed an objection to the commissioner's report. On a perusal of the commissioner's report, it is seen that at the time of his inspection, he was flanked by Dr.A.V.Santhosh Kumar, Associate Professor and Head, Department of Tree Physiology and Breeding, College of Forestry, Kerala Agricultural University and Dr.Santhosh Nambi, Professor, Department of Botany, University of Calicut. These experts have submitted separate reports.
97. It can be seen from the report submitted by Dr.Santhosh Nambi that major crop in the disputed land is coffee (coffeea robusta). Correctness of this observation is also seriously disputed by the learned Special Government Pleader. It is evident from his report that four M.F.A.(Forest) No.88 of 2016 57 sample plots, each having a dimension of 20 m. x 20 m.(10 cents) were only studied by the commissioner and experts to understand the nature of vegetation in a land having an extent of 77.50 acres. As pointed out by the learned Special Government Pleader, chance of conjunctures and surmises creeping in and obtaining incorrect results are very high due to a large scale approximation. It is quite evident that taking four sample plots of 10 cents each to study the nature of vegetation in a property having an extent of 77.50 acres can, at any rate, be said to be an unscientific approach.
98. Dr.Santhosh Nambi has mentioned in his report that there was no proper maintenance of coffee plants for several years. He has also observed that the plants have grown up to a height of 14 to 20 ft. due to lack pruning. It is also clear from the report that the coffee plants were not harvested for several years. His observation that the land appeared like an area formerly planted with coffee plants assumes significance. Further point noted by Dr.Santhosh Nambi is that his study indicated that the coffee plants are 16 - 40 years of age, but are not part of a visible canopy. It is also observed that no other agricultural crops could be seen in the disputed area. As mentioned above, the sample plots ie., 20 m. x 20 m. (10 cents) were randomly selected. He has mentioned the presence of forest trees and shrubs in the disputed land.
99. Learned Special Government Pleader contended that the report submitted by Dr.Santhosh Nambi is not fully correct because the M.F.A.(Forest) No.88 of 2016 58 sampling itself was bad and he is not a subject expert insofar as assessing the quality of a forest is concerned. Appellants placed reliance on the report submitted by Dr.A.V.Santhosh Kumar which shows the presence of following types of trees in the disputed property:
Tree (common name) Scientific name
Kulamavu Persea macarantha
Murukku Erythrina stricta
Vetti Aprosa lindleyana
Kampili Melicop lunu-ankenda
Poovam Schleichera oleosa
Cheru Holigarna arnottiana
Tholaranji Eugenia Species
Kalkanjiram Angiessus latifolia
Cherupunna Calophyllum sp
Kattuchembakam Michelia nilagirica
Vatta Macaranga peltata
Pantham Canarium strictum
Kattujathi Miristica malabarica
Churuli Mesua ferrea
Kalpoovam Ontonephelium stipulaceum
Edana Olea dioica
Madakka Xanthophyllum arnottianum
Kudakappala Holarrhena pubescens
Vella pine Vateria indica
Sinthooram Malottus philippensis
Silver oak Grevillea robusta
Neeli Oroxylam indica
Kambakam Hopea parviflora
He also opined that apart from the above trees, there are large number of shrubs and herbs in the area. In addition to the tree species mentioned above, the area consists of a vast diversity of medicinal plants like Channakoova (Costus Speciosus), Thippalli (Piper Longum), Cherupunna (Calophyllum Calaba), Incha (Acacia Intsia), etc. which, M.F.A.(Forest) No.88 of 2016 59 according to him, grows only in pristine forest conditions.
100. Dr.A.V.Santhosh Kumar reported that the area has a significant concentration of reeds and climbers. According to him, coffee trees are scattered in the area. Age of coffee trees could not be determined since the trees are heavily lopped. Large number of coppice shoots have emerged from the coffee stumps deforming the base. He has candidly stated that there was no visible sign of any agricultural operation in the area. Further, he has reported about the presence of elephant dung and casts by deer and other animals. According to him, the above facts are indications that the area is frequently visited by wildlife. He has further reported that the soil resembles forest soil with plenty of litter and high organic content. His observations, that this stretch of land lie in continuity to the adjoining forest area and cannot be distinguished from rest of the area, are heavily relied on by Sri.Nagaraj Narayanan to assert that the land is ecologically fragile. It is also clear from Dr.A.V.Santhosh Kumar's report that the land forms part of the watershed that drains to the stream flowing down through the southern boundary.
101. Learned Special Government Pleader relying on certain excerpts from India Biodiversity Portal contended that the trees enlisted by Dr.A.V.Santhosh Kumar are pristine forest trees. For example, Kambakam (Hopea Parviflora Bedd) is an endangered forest tree having general habitat in evergreen and semi evergreen forests. It is M.F.A.(Forest) No.88 of 2016 60 also present in Western Ghats and by the side of streams and rivers in evergreen forests.
102. Another example pointed out is the presence of a tree called Cheru (Holigarna Arnottiana Wall). According to the India Biodiversity Portal, this tree is used for medicinal purposes in folk and siddha medicines. The Portal further says that this tree originated from central and south Western Ghats.
103. Kattuchembakam (Michelia Nilagirica Zenker) is a tree found in high elevation and evergreen forests. According to the India Biodiversity Portal, these trees are available in the Western Ghats. Many other examples are also cited.
104. For the above reasons, the learned Special Government Pleader contended that presence of typical forest trees, especially the endangered species, would clearly indicate that the disputed property is an ecologically fragile land. As stated above, there is no serious challenge raised by the respondents about the presence of typical forest trees in abundance in the property as reported by the experts.
105. For the above mentioned reasons, we find that the ratio in Kumari Varma cannot be applied to this case on account of the striking dissimilarities in the facts. From the facts and circumstances available in this case, we find it extremely difficult to think that the respondents failed to cultivate the land as a coffee plantation on account of any resistance or hindrance caused by the Forest Officers. Absence of any legal action M.F.A.(Forest) No.88 of 2016 61 taken by the respondents from 1994 to 2004 to avert the alleged obstructions by the Forest Department certainly cause serious doubt in the veracity of the respondents' case. Furthermore, the contents in the reports by the experts reveal not only lack of agricultural operations in the land for a long time, but the presence of large number of forest trees, shrubs, creepers, etc. clearly indicating the nature of land as ecologically fragile.
106. Learned counsel for the respondents relying on a print out from the Coffee Board web site hoisted by Ministry of Commerce and Industry, Government of India contended that coffee in India is grown under a canopy of thick natural shade in ecologically sensitive regions of Western and Eastern Ghats. It is therefore argued that presence of forest trees cannot be taken as a reason to hold that the land in dispute is not a coffee plantation. In opposition to this argument, learned Special Government Pleader contended that clear observations in the experts' reports would show that actually the coffee plants are not standing under a visible canopy. It may be true that coffee plants require shade, but canopy of large trees completely cutting off sun light may not be ideal for a coffee plantation. Even if we agree with the contention of the respondents that a coffee plantation requires shade trees, we find from the records that large number of forest trees in the property with closed canopy make it unsuitable for a coffee plantation. Therefore, factually it is extremely difficult to hold that the property was a coffee plantation on M.F.A.(Forest) No.88 of 2016 62 the appointed date, as contended by the respondents. Observations in the experts' reports also support our view that there are only a few scattered coffee plants in the midst of large number of forest trees in the disputed property.
107. For these reasons, we find the legal principles in Kumari Varma cannot be applied to this case. So much so, the observations in Bhavani Tea's case, relied on in Kumari Varma, should be understood in the factual context in each case and considering the facts in this case, we find no reason to think that those principles apply in any manner to this case.
108. Sri.P.B.Krishnan relying on an unreported judgment dated 19.12.2016 by a Division Bench of this Court in State of Kerala and another v. T.P.Unnikrishnan and others (M.F.A.No.79 of 2016) contended that only presumption drawable is that the land continued to retain its status as coffee plantation on 02.06.2000, as found by this Court in the earlier proceedings under the Vesting Act, and presence of wild growth will not take away its character as a plantation. Per contra, Sri.Nagaraj Narayanan strongly argued that the facts in T.P.Unnikrishnan's case are entirely different from the facts in this case. On the peculiar facts in T.P.Unnikrishnan's case, this Court found, with reference to the judgment in M.F.A.No.273 of 1978 filed under the Vesting Act, that the lands were described as parambas (garden lands) in the document of title. All the boundaries are also described as M.F.A.(Forest) No.88 of 2016 63 parambas. On that ground the Tribunal under the Vesting Act exempted the property involved in T.P.Unnikrishnan's case by virtue of Section 3(2) of the Vesting Act. In the case on our hand, the position is entirely different. Admittedly, the property herein is bounded by vested forest on all the three sides and a rivulet on the southern side. According to the learned Special Government Pleader, material differences in other facts too, between this case and T.P.Unnikrishnan's case, will clearly show that the ratio in the above decision cannot be applied to this case. We find merit in this argument.
109. Another decision noteworthy is State of Kerala v. Unnikrishnan (2013 (2) KLT 420) rendered by a Division Bench. The State came up before this Court in appeal challenging the finding of the Tribunal under the EFL Act that the land in question was not an ecologically fragile land. This particular land was also involved in a proceeding under the Vesting Act earlier. Subsequent to the decision of this Court in M.F.A.No.340 of 1981, the land was restored to the claimant on 12.01.2000. Subsequently, when the EFL Act came into force, the State published a notification in the Gazette declaring that the land vested in the Government by virtue of Section 3(1) of the EFL Act. The matter was challenged by the claimant before the Tribunal under Section 10 of the EFL Act. After considering the ratio in Kumari Varma's case, the learned Judges meticulously went through the commissioner's report and found that natural growth had filled the land. Claimant's contention M.F.A.(Forest) No.88 of 2016 64 that he was prevented from cultivating the land was disbelieved by this Court for the reason that even after the land was restored to the possession on 12.01.2000, till the date of notification under Section 3(1) of the EFL Act issued in the year 2009, he did not cultivate the land allowing the growth of natural vegetation. For that reason, this Court found that the land has become ecologically fragile and the State's appeal was allowed. On going through the judgment in Unnikrishnan's case mentioned above, we find that there are clear cut similarities in the facts.
110. It may be apposite in this context to consider the significance of the expression "used principally for the cultivation". The above expression forms an integral part of the definition of "forest" in Section 2(c) of the EFL Act, which is the essential kernel to understand the real meaning of the words "ecologically fragile land" defined in Section 2(b). From the first part of Section 2(c), we find "forest" means any land principally covered with naturally grown trees and undergrowth. It further says that it includes any forest statutorily recognised and declared as reserved forest, protected forest or otherwise. What is expressly excluded from the definition of "forest" is any land which is principally used 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 building and surroundings essential for the convenient use of such buildings. In order to understand the importance M.F.A.(Forest) No.88 of 2016 65 of the word "principally" occurring in two places in Section 2(c) of the EFL Act, we have to go to the dictionary meaning. The word "principally" as per various dictionaries means most part; chiefly; mainly; largely; predominantly; substantially; etc. In common parlance, the word "principally" means anything that stands out chiefly, mainly or predominantly so as to distinguish it at the first sight.
111. In Chacko Jose v. State of Kerala (1975 KLT 825) a learned single Judge while interpreting Sections 2(15), 82 and 85 of the Kerala Land Reforms Act, 1963 laid down the tests for determining whether a land is a garden land or not. In that context, it was held that a land cannot be said to be used principally for growing any category of trees if the number of such trees, when compared to the extent, is small. Any land which is not, with reference to its normal capacity to have anyone of the varieties of trees, used fully for that should have atleast half of the number of such trees per acre to call it "used principally". The expression "principally" is used in contradistinction to "partly" or "wholly". This principle was adopted by this Court in Ammukunhi Amma v. State of Kerala (2016 (3) KHC 52). The expression "principally cultivated" in Section 2(f)(1)(i)(B) of the Vesting Act was examined and held thus:
"Now comes the question as to what is the meaning of the term "principally cultivated". Going by the very terminology, the intention of the Statute appears to be that the cultivation has necessarily to be to a substantial extent so as to make the property principally cultivated. In other words, occurrence of M.F.A.(Forest) No.88 of 2016 66 the cultivation here and there in a large extent of the property is not sufficient to hold that it was principally being cultivated. ........"
112. We find no other interpretation possible or plausible for the expression "used principally for the cultivation" occurring in Section 2(c) of the EFL Act. In the context of the EFL Act itself, another Division Bench of this Court in State of Kerala v. N.Rajagopal (2018 (5) KHC
128) has taken a view that unless there is evidence of atleast half the usual number of plants per acre of the respective species are present in the area, then it could not be considered as principally planted with those crops
113. When we reckon the inaccuracy in taking lesser number of sample plots as against the large extent of land and also the lesser number of coffee plants in the sample plots taken, we find that the property in dispute can never be said to be principally cultivated with coffee plants.
114. Learned Special Government Pleader relying on the report submitted by Dr.Santhosh Nambi, pointed out that in sample plot No.1, we find only 14 coffee plants. 16 coffee plants could be seen in sample plot No.2. Only five coffee plants are seen sample plot No.3. In sample plot No.4, seven coffee plants are seen. Admittedly, the extent of each sample plot is 10 cents. According to the learned Special Government Pleader, in a properly planted and maintained coffee robusta plantation, atleast 64 coffee plants should have been seen in each sample plot. It is M.F.A.(Forest) No.88 of 2016 67 pointed out that in N.Rajagopal's case the Division Bench of this Court had occasion to consider a similar question and held that 64 coffee robusta plants should be there in an intensively cultivated plantation. If so, to characterize the land in dispute is used principally for cultivation of coffee, each sample plot must have atleast 33 plants, which is one above the half way mark. This is an important factual reason to find that the land does not fall within the exempted category of lands mentioned in the definition of "forest" in Section 2(c) of the EFL Act. True, no empirical formula is produced by either side to show how many coffee robusta plants could be scientifically planted in an area of 10 cents, but the expert's reports would show that in some plots, number of other forest trees outweigh the number of coffee plants. As mentioned earlier, we do not think that the four sample plots taken truly represent large extent of the property. Dr.A.V.Santhosh Kumar has specifically reported the presence of forest trees, shrubs and herbs with other factors to indicate that the property is a habitat of wild animals. We find it difficult to agree with the case of the respondents that the land in question is a coffee plantation. We also find that the respondents did not produce any reliable evidence to substantiate their contentions.
115. We have carefully gone through the impugned order passed by the Tribunal. Regrettably, none of the vital facts had been considered while deciding the case. It clearly appears that the Tribunal was oblivious, if not carelessly abdicated its responsibility as an original M.F.A.(Forest) No.88 of 2016 68 authority to consider the facts meticulously and apply the legal principles to the facts to arrive at a proper conclusion. The ultimate decision by the Tribunal that the land in question is not an ecologically fragile land, according to us, is without any factual and legal basis and therefore unsustainable.
The point is decided accordingly.
In the result, the appeal is allowed. The order dated 22.06.2015 passed in O.A. No.8 of 2011 by the Tribunal for EFL Cases (Additional District Judge), Kozhikode is hereby set aside. The application filed by the respondents is devoid of any merit and hence it is dismissed.
All pending interlocutory applications will stand closed.
A.HARIPRASAD, JUDGE.
T.V.ANILKUMAR, JUDGE.
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