Kerala High Court
K Narayanabhat vs The State Of Kerala on 31 January, 2017
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE A.M.BABU
FRIDAY, THE 13TH DAY OF OCTOBER 2017/21ST ASWINA, 1939
MFA.No. 21 of 2017 ()
----------------------
AGAINST THE ORDER/JUDGMENT IN OA 16/2014 OF THE TRIBUNAL FOR
ECOLOGICAL FRAGILE LAND CASES (FIRST ADDITIONAL DISTRICT COURT)
KOZHIKODE DATED 31-01-2017
APPELLANT(S):
------------
K NARAYANABHAT,
S/O.KESHAVA BHAT, AGED 57, KAJEHOLEKARE, PANJIKOLU P.O.,
KASARAGOD-671543.
BY ADVS.SRI.JACOB E SIMON
SRI.K.M.FIROZ
RESPONDENT(S):
--------------
1. THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF
KERALA, SECRETARIAT, THIRUVANANTHAPURAM.
2. THE CUSTODIAN FOR ECOLOGICAL FRAGILE LANDS VESTED IN
GOVERNMENT (THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS),
FOREST HEAD QUARTERS, VAZHUTHAKAD, THIRUVANANTHAPURAM.
695 033.
R BY SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13-10-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.HARILAL & A.M.BABU, JJ.
..........................................
MFA (Forest) No. 21 of 2017
...........................................
Dated 13th October, 2017
JUDGMENT
K.HARILAL, J.
This appeal is directed against the judgment passed by the Tribunal for Ecological Fragile Land cases (I Additional District Judge, Kozhikode) in O.A.No.16/2014. The appellant is the applicant who filed an application under Sec.10(1) of the Kerala Forest (vesting and management of ecologically fragile lands) Act, 2003 (hereinafter referred to as 'the Act 2003') and Rule 3 of the Kerala Forest (vesting and management of ecologically fragile lands) Tribunal Rules 2007 (hereinafter referred to as 'the Rules 2007') seeking a declaration that application schedule properties are not ecologically fragile lands vested in Government and also to set aside the impugned notification No.EFL.10-40/2003 dated 26.5.2015. According to the applicant, the application schedule properties belong to him by virtue of the registered assignment deed Nos 1184/1991 and 1185/1991 of SRO, Badiadka. The applicant had planted coconut trees, arecanut trees, mango trees, jack trees etc in the properties much before the commencement of the Act, 2003. The applicant had been enjoying the application 2 schedule properties ever since the purchase. While the properties were in enjoyment of the applicant, the officials under the Forest Department tried to disturb the peaceful possession of the applicant. So in the year 2001, the applicant filed OS No.78/2001 before the Munsiff Court, Kasargod seeking a decree of permanent prohibitory injunction restraining the forest officials from trespassing into the properties and the said suit was decreed as prayed for. Though, an appeal was filed against the said judgment and decree by the respondents the appellate court also confirmed the findings of the trial court and dismissed the appeal. Though, a second appeal was also filed before this court as RSA No.590/2006 that was also dismissed as per the judgment of this Court dated 31.7.2014. When the applicant was enjoying the properties, the forest officials again came to the properties and prevented the applicant from carrying out agricultural operations. The respondents have no authority to interfere with the peaceful possession of the applicant as the application schedule properties are not ecologically fragile lands vested with the Government. On the above premises, they filed the present application seeking the declaration referred to above.
2. The respondents challenged the said application 3 contending that the application schedule properties are ecologically fragile lands vested with the Government under the Act 2003. A property measuring 1.83 hectares was notified as EFL 10-40/2003 dated 26.5.2015 as ecologically fragile lands and the application schedule property is also included in the said land under the said notification. So it is not correct to say that there are arecanut trees, coconut trees, mango trees, jack trees etc in the application schedule properties. So also application schedule properties are part of Kanakamajlu reserved forest. As per the notification, the right, title and interest of the applicant are vested in the Government free from all encumbrance and the area is predominantly covered with natural vegetation. It is true that the aforesaid suit was filed before the Munsiff Court, Kasargod against the respondents and the same was decreed and though it went up to this Court in second appeal, this Court also confirmed the decree and judgment passed by the Munsiff Court.
3. On the aforesaid rival contentions, both parties adduced evidence which consists of oral testimony of PW1, RW1 and CW1 and Exts A1 to A11, B1 to B8 and C1 and C2. After considering the aforesaid evidence, the Tribunal dismissed the said application on a finding that the application 4 schedule properties are ecologically fragile lands vested in Government and consequently the impugned notification by the custodian cannot be set aside. The legality and correctness of the aforesaid finding is assailed in this appeal.
4. Heard the learned counsel for the appellant and the learned Government Pleader.
5. Though this appeal has been filed on various grounds challenging all the findings of the Tribunal, the learned counsel for the appellant mainly focused his argument on the ground that the Tribunal had not considered Exts A5 and A6 commission report and sketch respectively, which would prove the actual nature and lie of the land in the year 2001. So the same was marked in evidence. According to the learned counsel for the appellant, the application schedule properties were not a forest land contemplated under Sec.2 (c) of the Act 2003 and the same is evidenced by Exts A5 and A6. Further it is contended that the application schedule property was not principally covered with naturally grown trees and undergrowth as on the appointed day 2.6.2000. The Commissioner in Ext A5 report had visited the property on 20.2.2001, 27.5.2001 and 19.11.2001 and reported the nature and actual lie of the land of the application schedule property. Therefore Exts A5 and A6 5 are relevant evidence, which would prove the fact in issue involved in the application. But the Tribunal had eschewed the said evidence and decided the factual issue on the basis of the other evidence available on record only on the mere reason that the Commissioner who prepared Ext A5 and A6 are not examined in evidence.
6. Per contra the learned Government Pleader advanced arguments to justify the Tribunal for not considering Exts A5 and A6 in evidence. It is further pointed out that the Commissioner who filed the report was not examined in evidence and no reliance can be placed on the said report or the judgment passed by this Court in RSA 590/2006. According to the learned Government Pleader, in view of the non-obstante clause contemplated under Sec.3 of the Act 2003 no enquiry need be conducted on the basis of the findings in the earlier judgment passed by this Court.
7. Going by the impugned order under challenge, as rightly submitted by the learned counsel for the appellant, we find that even though the commission report and sketch filed in OS No.78/2001 of the Munsiff Court, Kasargod were marked in evidence, no reliance was placed on the said evidence on the finding that the commissioner who had prepared and filed the 6 report was not examined in evidence. We do not find any fault with the aforesaid findings. Unless the commissioner who prepared and filed the report in another case was examined in evidence no reliance can be placed in the said report. But, we find that the said report was prepared and filed on the basis of the inspection of the application schedule property on 20.2.2001, 27.5.2001 and 19.11.2001.
8. We are of the view that in an enquiry under Sec.3 of the Act 2003 the crucial question to be considered is whether the disputed land was an ecologically fragile land as on the appointed day that is 2.6.2000. In the instant case, admittedly, the application schedule property was purchased by the petitioner in the year 1991 only. But the enquiry is to find out the nature and lie of the land as on the appointed day and in that enquiry the first issue to be considered is whether the disputed land was a forest land as defined under Sec.2 (c) of the Act. According to the definition of 'forest' under Sec.2 (c) a forest land must be principally covered with naturally grown trees and undergrowth. Therefore if the disputed land was not principally covered with naturally grown trees and undergrowth as on the appointed day it can be said that the said land was not a forest land as defined under the said section of the Act. 7 According to the definition of ecologically fragile land contemplated under Sec.2 (b) of the Act an ecologically fragile land must be a forest land at first. Therefore, if a disputed land was not a forest land as on the appointed day, it can never be an ecologically fragile land also. Since Exts A5 and A6 were prepared in the year 2001 the said evidence has proximity with the appointed day. Certainly it may show the actual nature and lie of the land in February 2001.
9. In the above analysis, we find that Exts A5 and A6 are relevant evidence to determine the fact in issue involved in the instant case. Therefore we are of the opinion that an opportunity can be given to the appellant to examine the commissioner in order to substantiate his evidence. Exts A5, A6 and A7 were not considered in evidence on the reason that the commissioner who prepared the said document was not examined in evidence. Adjudication of the case on merits after considering all evidence available on record is more desirable than disposal on technicality.
10. In the above view, we set aside the impugned judgment and decree and the application will stand remitted back to the Tribunal for fresh consideration, after giving an opportunity to both parties to adduce further evidence. It is 8 made clear that the Tribunal shall consider the application and dispose of the same untrammeled by any of the observations made above. The parties shall appear before the Tribunal on 30.11.2017.
K.HARILAL Judge A.M.BABU Judge sks/21.10.2017