State Of Kerala vs R.Unnikrishnan on 30 September, 2010

[Cites 11, Cited by 2]

Kerala High Court

State Of Kerala vs R.Unnikrishnan on 30 September, 2010

S.Siri Jagan,J This appeal is filed by the State of Kerala as the 1st appellant and the Custodian (Ecologically Fragile Lands) and Principal Chief Conservator of Forests (E&TW), State of Kerala, Thiruvananthapuram, as the second appellant, challenging the order of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal, Palakkad, (hereinafter referred to as the 'EFL Tribunal') in OA No. 32/2008, whereby the Tribunal declared that the land belonging to the respondent herein, which was declared as ecologically fragile lands under Section 3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, (hereinafter referred to as the 'EFL Act') is not an ecologically fragile land and therefore is not vested in the Government under the said Act. The facts leading to the appeal are as summarised under :

M.F.A.No.238 of 2010 2

The land involved in this appeal was originally declared by the Custodian of Private Forests by notification in the Gazette, as a private forest vested in the Government under the Kerala Private Forest (Vesting and Assignment) Act 1971 (hereinafter referred to as "the Vesting Act"). The respondent challenged the said notification issued under the Vesting Act in O.A.No.1016/1975 before the Forest Tribunal. In that O.A, the Forest Tribunal held that the land is a private forest, but eligible for exemption from vesting under Section 3(3) of the Vesting Act. M.F.A.No.340/1981 filed by the State, before this Court was dismissed by judgment dated 04.11.1982. Pursuant to the said judgment, the land in question was restored to the respondent on 12.01.2000. Subsequently, when the EFL Act came into force, the appellants published a notification in the Gazette declaring that the land in question vests with the Government as an ecologically fragile land, by virtue of Section 3 (1) of the EFL Act. The respondent filed the O.A, before the EFL Tribunal, challenging the said notification, contending that the land in question is not an ecologically fragile land and does not come within the purview of the M.F.A.No.238 of 2010 3 definition of 'ecologically fragile land' in Section 2(b)(i) of the EFL Act. After taking evidence, including the evidence through an Advocate Commissioner appointed by the Tribunal, the Tribunal came to the conclusion that the land in question does not answer the definition of 'ecologically fragile land' under Section 2(b)(i) of the Act . Accordingly, the Tribunal allowed the O.A, declaring that the land is not an ecologically fragile land. That order of the Tribunal is under challenge in this appeal at the instance of the State and the Custodian of Ecologically Fragile Lands.

2. The contention of the learned Special Government Pleader appearing for the appellant is that, insofar as the Tribunal under the Vesting Act had held that the land in question is a private forest, which is eligible for exemption from vesting under Section 3(3) of the Vesting Act, the land in question is a forest land and since the same is bounded on three sides by vested forests and the said land predominantly supports natural vegetation, which are the ingredients necessary for bringing the same within the purview of definition of 'ecologically fragile land' under Section 2(b)(i), the M.F.A.No.238 of 2010 4 land vests with the State by virtue of Section 3(1) of the EFL Act as an ecologically fragile land. It is submitted by the learned Special Government Pleader that the evidence fully supports the said contention and therefore, the Tribunal went wrong in holding that the land in question is not an ecologically fragile land.

3. In answer, the learned counsel for the respondent would contend that the land in question is not a forest land at all. According to him, there is no evidence to support that the land is a forest land. He would submit that natural vegetation grew up in the land only because the appellants illegally retained possession of the land for years as land vested in the Government under the Vesting Act, even after this Court directed restoration of the land to the respondent, declaring that the said land is not a private forest coming within the Vesting Act. It is further submitted that the respondent had given elaborate evidence in support of his contention that the subject land is not a forest land, that the land is not surrounded by or contiguous to forest land and that the same does not contain any natural vegetation, so as to bring the M.F.A.No.238 of 2010 5 land within the definition of 'ecologically fragile land' under Section 2(b)(i) of the EFL Act. He heavily relies on the report of the Advocate Commissioner, which according to him conclusively proves that the land is not an ecologically fragile land.

4. The counsel for the respondent also relies on the judgment of a division Bench of this Court State of Kerala v. Kumari Varma [2011 (1) KLT 1008], in support of his contention that, since the appellant could not cultivate the land, only because the forest officials prevented him from doing so, there cannot be any presumption that the respondent did not have any intention to cultivate the land and had abandoned the cultivation in the land. According to him, therefore the presence of natural vegetation in the land cannot be held against him to hold that the land is ecologically fragile land. He therefore submits that the natural vegetation which have grown in the land during the period cannot be taken into account for holding that the land supports natural vegetation. It is his contention that had he been given possession of the land immediately after the decision of the M.F.A.No.238 of 2010 6 Forest Tribunal under the Vesting Act that the same is not vested under the Act, he would have cultivated the land, in which case the land would have contained only cultivation and not natural vegetation. Therefore, according to the counsel, the State cannot take advantage of the wrong doing of its own officers, to cite the natural vegetation in the land to bring the land within the definition of 'ecologically fragile land'.

5. The learned Special Government Pleader would contend that the evidence of the respondent and that of the appellants would cancel each other, because each would dispute the case of the other in the depositions of their respective witnesses. As far as the Commissioner's report is concerned, the learned Government Pleader would argue that the appellants had filed an objection to the report and therefore, the respondent had a duty to prove the Commissioner's report, by examining the Commissioner as a witness, which he has not done because of which the respondent cannot rely on the said report to prove the facts disputed by the appellants. Even otherwise, the other facts reported by the Commissioner supports the contention of the M.F.A.No.238 of 2010 7 appellants, is the contention raised.

6. We have considered the rival contentions in detail.

7. From the pleadings in the case, what has to be decided by us, is as to whether the land in question would answer the definition of 'ecologically fragile land', in Section 2(b)(i) of the EFL Act, so as to enable the appellants to declare the land as vested in the State, exercising powers under Section 3(1) of the EFL Act. The Section 2(b)(i) of the Act reads thus :

" 'Ecologically fragile land' means -

any forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation;"

Going by the said definition, for a land to be notified as an 'ecologically fragile land' vested in the Government under Section 3(1) of the EFL Act, the following conditions should be satisfied:-

a). it should be a forest land ;

b). the land or any portion thereof, should be lying contiguous to or encircled by a reserve forest or a vested forest or any other forest land owned by the Government; and

c). the land predominantly supports natural vegetation. M.F.A.No.238 of 2010 8

In this case, to decide that the first ingredient is satisfied, there is no difficulty at all. Admittedly the very same land was originally notified as a private forest vested in the Government under the Vesting Act. The respondent had filed an O.A. before the Forest Tribunal challenging such vesting. Admittedly, the Forest Tribunal allowed the O.A., on the ground that the land is eligible for exemption under Section 3 (3) of the Vesting Act. Section 3(3) of the Vesting Act reads thus :

"Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling area applicable to him under Section 82 of the said Act."

(underlining supplied) That Section itself makes it abundantly clear that the exemption is applicable to lands which are private forests, held by an owner, under a valid registered document of title, executed before the appointed day and intended for cultivation by him and extent of the same does not exceed the ceiling limit applicable under Section 82 of the Kerala Land M.F.A.No.238 of 2010 9 Reforms Act. Therefore it is clear that the benefit of that exemption was given to the respondent as forest land intended for cultivation by the respondent. That being so, it is abundantly clear that the land is actually a private forest, which was exempted from the purview of the Vesting Act, only because of the exemption granted under Section 3 (3) of the Vesting Act.

8. The question as to whether the second ingredient of the definition is satisfied is a little more difficult to answer, in view of the nature of the evidence available to prove the fact as to whether the land lies contiguous to or encircled by a forest land. Admittedly, the appellants had issued a notification under Section 3(1) of the EFL Act, declaring that the land in question vests with the Government as an ecologically fragile land. That notification has been produced in the O.A. as an Exhibit. The boundaries of the property in question, mentioned in that notification are as follows :

North - vested forest East - vested forest South - private land West - vested forest M.F.A.No.238 of 2010 10 For deciding as to whether the land lies contiguous to or encircled by a reserve forest or a vested forest or any other forest owned by the Government, the oral evidence adduced by both sides is not of much use, since one party denies the evidence of the other and vice versa. The only other evidence available before us to decide this question, is the report and sketch of the Advocate Commissioner. The report of the Commissioner reads thus :

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6. \PsjP! IP rsU zq]^] kY]W vzWt]$ j]POU INf W]SsL o}c! hPq>LRePOU a] vzWt]$ vj|oQY0% D:LvL" yLi|fpOS:L ? IPV sWe(]jV RWLsfU ku(oOg vjnPo]pLRePOU ocOU wq]pLeV IPV kq] SwLi]\V rsR> Rv\V Bvw|RUaOP yUYf]WtOU kq]SwLi]\O IuOfOvL" ?

\PsjP! IP rsU zq]^] kY]W vzWt]$ j]POU averrage 15 km WLeOU. `L" R\P yopU zq]^] kY]W vzWt]$ vj|oQY0RtLPOU W:]sf. vj|oQY0tORa wmIU KPOU SWY]sf. INf WLsUu(U IPV Ij](V krpL"

kc]sf. IR# kq]SwLij yopU WPaOf$ KPOU SjL(] kq]SwLi]\V r]SUL!YV R\aOvL" Bvw|RUY]sff]jL$ CfO yz]fU vLr:V oa(OPO.

IfQW]W% zL^qLvOWpOU Av! fP Work Memo NkWLqU zq]^] kY]W vzWt]sOg JRfsfLU fq>]sOg oq0tLeV DgRfPV ? IPf]RjWOr] M.F.A.No.238 of 2010 12 \V kq]SwLi]\O. oqOfV, CqO%V, CsvV, kfLpV, kOPV, KaOWV, \a\], Rjsf], Sk%V, kPvU, KqO Sf(V IP} oq0% CafP!PV vt!PO j]$(OPfV WLeL" Wu]4]YOgfLeV. 10 oOf$ 18 v!xU NkLpU SfLP](OP oq0tLp]qOPO."

The sketch produced as Annexure to the report of the Commissioner gives the boundaries of the land as follows :

North - Property in which Babu Joseph is cultivating rubber East - property where Ibrahim is cultivating tapioca South - wooded land West - wooded land We find it strange that the Advocate Commissioner did not find it necessary to ascertain the details of the owners of the lands on the four sides of the property in question. She was expected to state the details of the properties on all four sides of the land in question which was a vital fact necessary to decide one of the issues involved in the O.A. She could have very well done the same with the help of the revenue authorities or at least by perusing the title deeds of the parties concerned in respect of the properties. In the absence of any specific finding regarding the ownership of the lands on the boundaries of the land in question, we are left with no other M.F.A.No.238 of 2010 13 material before us, except the notification issued by the Government under Section 3(1) of the EFL Act. The respondent has not been able to adduce any evidence to prove that the boundaries mentioned in the notification under Section 3(1) are not correct. Although, the Advocate Commissioner does not specifically state as to the ownership of the properties on the four sides, it is stated that on the south and west boundaries the land are wooded lands which gives an indication that they are forest lands. Of course, there is some discrepancy in the notification in respect thereof, insofar as the south boundary is described in the notification as private land, whereas, in the sketch of the Commissioner, it is shown as wooded area only. In the above circumstances, in the absence of any evidence to disprove the boundaries shown in the notification under Section 3(1), we are inclined to hold that on three sides of the land in question, the boundaries are vested forests as stated in the notification challenged by the respondent herein in his O.A. before the EFL Tribunal. Strangely, the Tribunal has entered a finding on the basis of the Commissioner's report that the land located on the eastern M.F.A.No.238 of 2010 14 side of the application schedule property belongs to the person named Ibrahim which is cultivated with tapioca and the land located on the northern side of the application schedule property belongs to the person named Babu Joseph, which is cultivated with rubber. But on a reading of the report of the Commissioner, it is clear that the Commissioner had not stated anything about he ownership of those properties by Ibrahim and Babu Joseph. All what the Commissioner has stated is that on the eastern side of the schedule property one Ibrahim was found to be cultivating Tapioca, without stating as to whether he owns the land or not. Likewise, the Commissioner's report only states that on the northern side of the scheduled property Babu Joseph was found to be cultivating rubber, without stating as to whether Babu Joseph owns the property or not. It is no secret in this state that private parties encroach into forest land and cultivate the same. That being so, the finding of the Tribunal that the Commissioner reported that the eastern and northern boundary properties belong to Ibrahim and Babu joseph, is clearly against the evidence in this case. The finding that a person cultivates the property does not lead M.F.A.No.238 of 2010 15 to the automatic conclusion that the property belongs to them. The Commissioner has also not taken the trouble of ascertaining as to who are all the owners of the lands on the four boundaries of the subject land, which was vital for the determination of the questions involved in the O.A., in view of the definition of 'ecologically fragile land' in Section 2(b)(i) of the EFL Act. That is why, we said earlier that we found it strange that the Commissioner did not find it necessary to report the real facts necessary for decision of the O.A. From the materials available on record, the only conclusion possible is that there is no evidence to dispute that the boundaries mentioned in the notification issued by the Government under Section 3(1) are wrong. Therefore, we have no other go, but to accept the fact that on three sides of the property in dispute, there are vested forests. In view of that finding, the second ingredient of the definition of 'ecologically fragile land' is also satisfied in this case, insofar as the land lies contiguous to vested forest.

9. Regarding the last ingredient, the learned counsel for the respondent would argue that natural vegetation available M.F.A.No.238 of 2010 16 in the land is only because the forest officials prohibited the respondent from cultivating the land and therefore, the respondent could not cultivate the land. Consequently, the fact that there is natural vegetation in the land should not be held against the respondent, for arriving at the conclusion that the land is ecologically fragile land is his contention. He relies on the decision of the Division Bench of this Court in Kumari Varma' case (supra), in support of the said contention. Of course, in Kumari Varma's case (supra), the Division Bench of this Court has held that growth of natural vegetation can be held against a person, only if there was intention on the part of the owner of the plantation land to abandon the plantation and permit the land to become a forest land. Here there is no question of the land becoming a forest land because of want of cultivation, since the land is already a private forest, which was exempted from vesting under the Vesting Act, because the respondent intended to cultivate the land. Further Kumari Varma's case (supra), was a case dealing with a notification under Section 4(1) of the EFL Act, which is in relation to the definition of ecologically fragile land under M.F.A.No.238 of 2010 17 Section 2(b)(ii) of the EFL Act, wherein a land is declared to be an ecologically fragile land by the Government by notification in the official gazette, after the same is identified as such on the recommendation of the advisory committee under Section 15 of the EFL Act. Section 15(4) of the EFL Act lays down the matters which should weigh with the committee while considering whether they should recommend notification of the land as ecologically fragile land. The said sub section reads thus.

"(4) The Committee shall take into consideration, -

(i) the abundance of flora and fauna;

(ii) the rare and endemic flora and fauna;

(iii) the role in conserving the water sources;

(iv) functions as corridors connecting two or more wildlife habitats;

(v) functions as breeding grounds for wildlife; and

(vi) such other ecological parameters as may be prescribed and make specific findings on the ecological sensitivity and significance of such land before making its recommendation to the government under sub-section(3)"

Therefore the parameters for deciding whether a land is ecologically fragile land under Section 2(b)(i) and 2(b)(ii) are distinct and separate. As such the decision on the scope of Section 2(b)(ii) cannot be the yardstick for deciding the scope of Section 2(b)(i). In fact, Kumari Varma's case (supra), in M.F.A.No.238 of 2010 18 paragraph 14 thereof recognises the fact that there can be two classes of lands which can be called ecologically fragile land within the meaning of the EFL Act, in view of the separate definitions under Section 2(b)(i) and 2(b)(ii) of the Act. We are therefore, of the opinion that the said decision cannot be pressed into service, to decide the question as to whether a private forest is an ecologically fragile land by virtue of the definition in Section 2(b)(i) of the EFL Act.

10. Apart from that, there is a factual distinction as well. In Kumari Varma's case (supra), all along, the property was in the hands of the Forest Department and they had not given possession of the land to the party, consequent to which, although the owner had earlier cultivated the land, natural growth filled the land, since he was not permitted to cultivate the land. Here the respondent never cultivated the forest land at any time when it was in his possession and admittedly the respondent was again put in possession of the land in question on 12.01.2000. The notification under Section 3(1) was issued only in 2009. Therefore, respondent was in possession of the land for nine years from the year 2000 till 2009. He was given M.F.A.No.238 of 2010 19 exemption from the purview of the Vesting Act, recognizing his intention to cultivate the land. He has no case that he has ever cultivated the land, although the respondent had ample opportunity to cultivate the land during at least the nine years. Of course, he had given oral evidence to the effect that he was prevented from cultivating the land by the forest officials. But to prove the same, no other evidence is available except the self serving oral evidence of the respondent as PW1. He has no case that he has approached the authorities concerned, complaining about the obstruction by the forest officials in cultivating the land by himself. Nothing prevented him from seeking remedies before the Court, if actually there was such obstruction by the forest officials. Therefore, his oral evidence cannot be taken on face value to decide in his favour that the forest officials had prevented him from cultivating the land.

11. Still further, the Commissioner had reported that the land in question is full of various species of natural growth. She has also stated that the trees standing in the property appeared to be 10 to 18 years old. As to how, the Commissioner fixed the age of the trees also is not known. For M.F.A.No.238 of 2010 20 all we know the age of the trees could also be much more than what the Commissioner has assessed insofar as she is not an expert in determining age of trees. In any event, the report of the Commissioner, proves beyond doubt that the land in question is full of forest species of trees.

12. Apart from all that, to satisfy the third ingredient of the definition of ecologically fragile land, what is necessary is not that the land should contain natural vegetation. But what is necessary is that the land should be one which predominantly supports natural vegetation. There can be forest lands which do not support natural vegetation, which are outside the purview of the definition of 'ecologically fragile land'. Rocky lands are lands which do not support natural vegetation. In this connection, it must be noted that under the Vesting Act, for a property to be a private forest in the erstwhile Malabar District, it need not necessarily be a forest at all. All lands to which the erstwhile Madras Preservation of Private Forest Act, 1949, applied, which included lands which were not actually forests, as is clear from the definition of 'private forest' in Section 2(f) of the Vesting Act, which reads M.F.A.No.238 of 2010 21 as follows :

" "private forest" means-

(1) in relation to the Malabar district referred to in sub-

section (2) of Section 5 of the State Reorganisation Act, 1956 (Central Act 37 of 1956)-

(i) any land to which the Madras Preservation of Private Forests 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, 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 Forests 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 purpose of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;"

Other forest lands would naturally support natural vegetation. In other words, if the private forest is one which lies contiguous to forest land, in which natural vegetation will grow M.F.A.No.238 of 2010 22 up on its own, the same would be ecologically fragile land coming within the definition under Section 2(b)(ii). The fact as to whether the owner had cultivated the same or had intention to cultivate the same or was prevented from cultivating the land are irrelevant to decide whether the land predominantly supports natural vegetation. In fact the word 'predominantly' suggests that if the major part of the land supports natural vegetation, even if the other part does not, the same would satisfy the ingredient of the definition. The very fact that the Commissioner has reported that the property comprises of various species of forest trees would prove beyond any reasonable doubt that the land in question predominantly supports natural vegetation.

13. Therefore, in this case, the evidence available on record, eminently supports the conclusion that all the three ingredients to constitute the land as an ecologically fragile land is fully satisfied. That being so, we are of the opinion that the Tribunal went wrong in holding that the land is not an ecologically fragile land. As such, the order of the Tribunal deserves to be interfered with at our hands. Accordingly, the M.F.A.No.238 of 2010 23 impugned order of the Tribunal is set aside and the original application is dismissed, upholding the notification issued under Section 3(1) of the EFL Act and holding that the land covered by the notification under challenge in the O.A., is ecologically fragile land as defined in Section 2(b)(i) of the EFL Act. The appeal is allowed as above.

S.SIRI JAGAN, Judge BABU MATHEW P.JOSEPH, Judge AV

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