P.M.Chithrabhanu vs State Of Kerala on 6 April, 2026

[Cites 9, Cited by 0]

Kerala High Court

P.M.Chithrabhanu vs State Of Kerala on 6 April, 2026

The original application, seeking a declaration that the OA schedule property, having a total extent of 9.58 acres, is not an "ecologically fragile land" under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as 'the EFL Act'), was dismissed by the Tribunal. The applicants are in appeal.

2. In respect of the property, there was a proceeding under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as 'the Vesting Act'). The proceedings culminated in favour of the applicants. Ext.A6 is the judgment dated 24.06.1982 in M.F.A.No.84 of 1978, affirming the order of the Tribunal granting exemption. The possession of the property was restored to 2026:KER:29820 M.F.A. (Forest) No.11 of 2021 -: 2 :- the applicants-appellants on 16.09.1998 pursuant to the orders of this Court in O.P.No.4360 of 1998. Such restoration is evidenced by Ext.A4, which contains the copy of the survey plan of the property restored. Ext.A4 further contained a notification under Section 5 of the Kerala Preservation of Trees Act, 1986, whereunder, the appellants- applicants were prohibited from cutting down the trees in the property. This was followed by a notification under the EFL Act on 11.09.2001. It is accordingly that the Original Application was filed before the Tribunal.

3. The Original Application was initially dismissed by the Tribunal. The order was set aside and the matter was remanded back by this Court as per the judgment in M.F.A. (Forest) No.236 of 2010. After the remand, the Tribunal dismissed the original application.

4. We have heard Shri.M.P. Madhavankutty, the learned counsel for the appellants and Shri.Nagaraj Narayanan, the learned Special Government Pleader (Forests) for the 2026:KER:29820 M.F.A. (Forest) No.11 of 2021 -: 3 :- respondents.

5. The learned counsel for the appellants would contend that, to fall within the definition of 'forest' under Section 2 (c) of the EFL Act, the land must be principally covered with naturally grown trees and undergrowth. In the proceedings under the Vesting Act, the applicants' claim was that the property is under their personal cultivation, that they had planted teak therein. The claim was upheld and the property was held to be exempted from vesting. In the present proceeding, though a commissioner was deputed to inspect the property along with an expert, the question as to whether the property is principally covered with 'naturally grown trees' was not ascertained. If the property is found to be principally cultivated with teak, then it has to be concluded that the property is not principally covered with naturally grown trees. Such a finding would take the property out of the definition of 'forest' under the EFL Act. It is also argued 2026:KER:29820 M.F.A. (Forest) No.11 of 2021 -: 4 :- that, though the property was restored to the applicants pursuant to the vesting proceedings on 06.01.1998, since on the very same day it was notified under the Preservation of Trees Act, the applicants were disabled from further cultivating and maintaining the teak plantation. The State after having been obstructed the applicants from cultivating the property, cannot be heard to say that the nature of the property has changed into EFL land. To buttress the argument, the learned counsel relied on the judgment of this Court in Kumari Varma v. State of Kerala [2011 (1) KLT 1008].

6. The learned Special Government Pleader would, on the other hand submit that, going by the commissioner's report, it is evident that the land is principally covered with trees of forest species and that the teak found in the property is only few when compared to number of the other trees standing in the property. Further, it cannot be said that all the teak trees standing in the property are those planted by the applicants. There are naturally grown ones 2026:KER:29820 M.F.A. (Forest) No.11 of 2021 -: 5 :- also. As regards the notification under the Preservation of Trees Act, it is argued that it is not an illegal act of the State, but was a purely legal action. The applicants could have undertaken other forms of cultivation, by clearing the undergrowth and pruning the trees in the property. The decision in Kumari Varma is not applicable since the State is not responsible for the failure of the applicants to cultivate the property, it is argued. To substantiate his contention, the learned counsel also relied on the judgment of this Court in Vasu Menon v. Custodian (EFL) & Conservator Forest [2026 SCC OnLine Ker 2168].

7. Section 2(c) of the EFL Act defines 'forest' thus:-

"(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."

2026:KER:29820 M.F.A. (Forest) No.11 of 2021 -: 6 :- To fall within the definition of 'forest' under the EFL Act, the property must have been principally covered with naturally grown trees on the appointed day namely, 02.06.2000. If the applicants are able to establish that, as on the appointed day, the property was principally cultivated with teak trees and not naturally grown trees, then, the property will be saved from the definition of 'forest'.

8. We have gone through the Commissioner's report and the report of the expert. We find that the expert took three sample plots, having an extent of approximately 5 cents each, to define the nature of the trees in the property and also its age. The total extent of the property involved is more than 9½ acres. The sample plots taken are too small in extent. In the background of the facts and circumstances of the case, when the applicants were granted exemption under Section 3 (2) of the Vesting act finding that teak is planted in the property, it needs to be ascertained with 2026:KER:29820 M.F.A. (Forest) No.11 of 2021 -: 7 :- certainty whether as on the appointed day the property was principally covered with planted teak or with naturally grown trees. The Commissioner's report reveals the existence of teak trees in the property as on the appointed day. The Commissioner has failed to ascertain the relevant facts. In the circumstances, we find it appropriate that the applicants be given an opportunity to take out a fresh Commission to ascertain the above with certainty.

9. After the proceedings under the Vesting Act, the State notified the property under Section 5 of the Preservation of Trees Act. The Section reads thus:-

"5. Prohibition of cutting of tree in notified areas.--(1) Notwithstanding anything contained in any law for the time being in force, or in any judgment, decree or order of any court, tribunal or other authority, or in any agreement or other arrangement, the Government may, with a view to preserving the tree growth in private forests, or in the Cardamom Hills Reserve or in any other areas cultivated with cardamom, by notification in the Gazette, direct that no tree standing in any such area specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that-

(a) the tree constitutes a danger to life or property; or 2026:KER:29820 M.F.A. (Forest) No.11 of 2021 -: 8 :-

(b) the tree is dead, diseased or windfallen :

Provided that the provisions of this sub-section shall not be deemed to prevent the pruning of any tree as required by ordinary agricultural or horticultural practices.

(2) No person shall, without the previous permission in writing of the authorised officer, cut, uproot, burn or otherwise destroy or cause to be cut, uprooted, burnt or otherwise destroyed any tree in any area specified in the notification under sub-section (1) on any of the grounds specified therein."

The property in question is a private forest, but exempted from vesting under Section 3(2) of the Vesting Act. Therefore Section 5 applies to the property. The Section disables cutting down of trees in the property. Whether this prevented cultivating the property and will attract the dictum in Kumari Varma's case is the issue. Kumari Varma's case held that if the State prevented cultivation of the property, it cannot later contend that the property has since become an EFL land.

10. Such notification under the Preservation of Trees Act after a proceeding under the Vesting Act has been upheld 2026:KER:29820 M.F.A. (Forest) No.11 of 2021 -: 9 :- by this Court in Joseph v. State of Kerala [2005 (4) KLT 504], V.S.Joseph v. State of Kerala [2020 SCC OnLine Ker.2129], and Abdul Kassim v. State of Kerala [2024 (4) KLT 681]. It has been held that the Kerala Preservation of Trees Act is a later Act and with the non-obstante clause in Section 5 therein, it has overriding effect over the Vesting Act. The grant of exemption under the Vesting Act has been held to have no relevance while considering the notification under the Preservation of Trees Act.

11. The property was admittedly restored possession on 16.09.1998. There is no averments in the original application that, consequent on the notification under the Preservation of Trees Act, the applicants were prohibited from cultivating the property. The original application has been filed only in the year 2008. In Vasu Menon & ors. v. custodian (EFL) & Conservator of Forest & ors. (supra), this Court held that the notification under the Preservation of Trees Act only prohibited cutting down of trees and that cultivation could be carried down by clearing the undergrowth and by 2026:KER:29820 M.F.A. (Forest) No.11 of 2021 -: 10 :- pruning the trees in existence. Though the property is notified under the Preservation of Trees Act, the applicants never chose to challenge it. Issuance of notification under the Preservation of Trees Act cannot be said to be an illegal act of the State. As noticed above, it is only in 2008 that the present original application is being filed. In the said circumstances, the applicants are not entitled to contend that it is because of the action of the State that the applicants were unable to cultivate the property and that the State is precluded from contending that the property has become an EFL land. The decision in Kumari Varma's case does not apply to the case at hand. Hence, the second contention of the appellants-applicants fails.

12. However, as noted earlier, if the applicants are entitled to establish their claim that the property in question does not fall within the definition of 'forest' under the EFL Act, they are bound to succeed. In the light of the finding at paragraph 8 supra, the matter needs to be 2026:KER:29820 M.F.A. (Forest) No.11 of 2021 -: 11 :- remanded back to the Tribunal.

13. Resultantly, the appeal is allowed. The order impugned is set aside. While negativing the contention of the applicants-appellants based on the notification under the Preservation of Trees Act, the matter is remanded back to the Tribunal for consideration of the question as to whether the application schedule property falls within the definition of 'forest' under the EFL Act.

Parties to appear before the Tribunal on 23.04.2026.

Sd/-

SATHISH NINAN JUDGE Sd/-

P. KRISHNA KUMAR JUDGE yd

Unlock Advanced Research with PRISMAI

Kerala High Court