Definition of 'Ecologically Fragile Land' and 'Forest Land' [Case Law]

Evidence Act, 1872 - S.42 - Private Forest (vesting and assignment) Act, 1971 (Kerala) - S.6 - Private Forests (Vesting and Assignment) Rules, 1974 (Kerala) - R. 2A - Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (Kerala).

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.

M.F.A.(FOREST) Nos.84, 85 & 86 of 2016

Dated this the 23rd day of May, 2018 

AGAINST THE ORDER/JUDGMENT IN OA 9/2012 of THE TRIBUNAL FOR E.F.L. CASES/ I ADDITIONAL DISTRICT COURT, KOZHIKODE DATED 31.5.2016

APPELLANT(S)/APPLICANT 

MUHAMMED SADIQ 

BY ADV.SRI.C.P.MOHAMMED NIAS 

RESPONDENT(S)/RESPONDENTS

1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST AND WILD LIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

2. THE CUSTODIAN OF ECOLOGICALLY FRAGILE LAND (THE PRINCIPAL CHIEF CONSERVATOR OF FOREST), FOREST HEAD QUARTERS, VAZHUTHKKAD, THIRUVANANTHAPURAM-695 014.

3. THE DIVISIONAL FOREST OFFICER NORTH WAYANAD, DIVISION, MANANTHAVADI, WAYANAD DISTRICT-670 645.

4. THE FOREST RANGE OFFICER PERIA FOREST RANGE, MANANTHAVADY, WAYANAD DISTRICT-670 645.

R1-R4 BY ADV. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST BY SPECIAL GOVERNMENT PLEADER FOR FOREST SRI. K.P. MADHU 

J U D G M E N T

Jyothindranath, J.

These appeals arise from a common order dated 31.5.2016 passed by the Tribunal for E.F.L. Cases, I Additional District Court, Kozhikode in O.A.No.9/2012, 10/2012 and 11/2012. In fact, M.F.A.(Forest) 84/2016 arises from the order in O.A.9/2012, M.F.A.(Forest) 85/2016 arises from the order in O.A.10/2012 and M.F.A.(Forest) 86/2016 arises from the order in O.A.11/2012. The respective claimants before the Tribunal in the said original applications are the appellants herein. The respondents in all these appeals were the respondents before the Tribunal.

2. The facts for consideration of these appeals are as follows: One A.K. Khadarkutty was in possession of about 1871.99 acres of land in Peria village of Mananthavady taluk. Out of the said property, an extent of 75 acres of land was taken on lease by one Puthiya Veettil Anandan as per document No.524/1967 of SRO Thalassery. It is also the case that thereafter the said Puthiya Veettil Anandan died in the year 1968. On his death, the right in the property devolved upon his wife Kousalya Anand, and children Jeevan Anand, Rajeev Anand, Madhu Anand, Vinu Anand and Jayakrishnan. The District Collector, as per proceedings No.D.Dis.22062/70.(G2) dated 22.12.1970 granted clear felling permit in respect of 60 acres of land out of the above 75 acres of land. Thereafter the Kerala Private Forest (vesting and assignment) Act 1971 came to be enacted and the entire 75 acres of land was declared to be vested in Government. Then, the then owners filed OA 74/1991 before the Forest Tribunal, Kozhikode, alleging that the property was not vested. As per the order dated 26.3.1993, it was ordered that out of the 75 acres, 45 acres of land were not liable to be vested under Section 3 (3) of the Act 1971. Thereon, 45 acres of land was restored to the then owners by virtue of proceedings dated 6.3.1998. It is the case of the appellant in MFA 84/2016 is that he purchased 7.5 acres from the above referred Rajeev Anand as per sale deed dated 14.1.1999 registered as document No.145/1999 of SRO Mananthavady. Another 7.5 acres was purchased from Vinu Anand and Jayakrishnan as per document No.1747/2000 of SRO Mananthavady. The appellant in M.F.A. 85/2016 purchased 15 acres of land from Rajeev Anand, the power of attorney holder of his brother Jeevan Anand as per sale deed dated 14.1.1999 registered as document No.147/1999 of SRO Mananthavady. The appellant in MFA 86/2016 purchased 15 acres of land from Rajeev Anand as per sale deed 14.1.1999 registered as document No.146/1999 of SRO Mananthavady.

3. Now, a notification was issued in respect of 18.2 hectares of land comprised in resurvey No.8/1 A1A2 of Peria village of Mananthavady taluk as ecologically fragile land. As there was some mistake in respect of the southern boundary of the property, an erratum notification was published. The stand of the State is that as the land is ecologically fragile land, it is vested in the government as per the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. The right, title and interest over the property is vested in the government, free from all encumbrances as per the said Act. It is also the contention that the properties have been in the absolute possession and control of the State with effect from 2.6.2000, the appointed day. Since the question to be considered in all these applications was one and the same, the tribunal ordered a joint trial and dismissed the applications. Challenge is against the said order of dismissal.

4. When these appeals came up for hearing, the learned counsel appearing for the appellants submitted before this court that here is a case where earlier a challenge was raised in respect of vesting under the earlier Act i.e. Kerala Private Forests (Vesting and Assignment) Act, 1971. When there was earlier an order of a competent court regarding the nature of the property and a finding to the effect that it was not liable to be vested, to circumvent such a judicial order, a new notification cannot be issued for the vesting of the same property. In support of the said contention, the learned counsel appearing for the appellants drew our attention to the decision of a Division Bench of this court in State of Kerala v. Kumari Varma [2011 (1) KLT 1008]. It is submitted before us that when court found land cultivated with cardamom and exempted it under Vesting Act 1971, it cannot be treated as ecologically fragile land merely because it is lying contiguous or encircled by a reserve forest or vested forest. Apart from the said argument, the learned counsel also argued before this court that on facts also, it is brought out that there was coffee plantation. When there was coffee plantation, and immediately before the Act, 1971 was promulgated, it was cleared for cultivation and 45 acres were exempted from vesting, then it can be said that the exempted extent cannot be considered as an ecologically fragile land. In support of the said contention, it is also brought to our notice that the court appointed Commissioner also reported that there was coffee plants. The nature of the property was detailed in the commission report as well as in the expert report. When there is admittedly signs of plantation and when the contention of the forest department that it is only in 1998 it handed over the property and from 2000 onwards it is again in their hand, then that much signs itself will be an indication that, it is not an ecologically fragile land and cannot be vested in the Government.

5. The learned Special Prosecutor submitted before this court that, later, another Division Bench of this court in Planters Forum v. State of Kerala [2015 (2) KLT 783] held that the judgments delivered under 1971 Act by virtue of Section 3 (1) are not binding but their relevancy as an evidence cannot be impeached. The submission of the learned Prosecutor is that this court can look into the earlier judgment but cannot be treated as res judicata on the issue of whether it is a forest land or not.

6. In these cases, the appellants are raising two aspects for consideration; one is that, it is a coffee estate and as such it will not come either under the definition of “ecologically fragile lands” or “forest” given in the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as the Act, 2003). As highlighted above, in the light of a finding of a competent tribunal that it is not vested under the Act 1971, it cannot be now notified as an ecologically fragile land. The common ground taken for filing these appeals is that the property is cultivated with coffee and pepper and in between with planting ginger and tapioca and the said crops are exempted from the provisions of ecologically fragile land as defined under the Act 21 of 2005. It is also the case that the property was under plantation/cultivation dates back to the year 1970, by issuance of order for clearing forest by the District Collector, Kannur. It is also stated categorically that as per the definition of 'ecologically fragile land' and 'forest land' under the Act 21 of 2005, plantation crops and ancillary area used for building and other purposes are exempted from the said definition. It is the case of each of the applicant that out of the 15 acres, 5 acres planted with plantation crops and 2 acres are used for ancillary purposes and therefore, the said land does not come under the definition of ecologically fragile land.

7. Thus, from the application itself it can be seen that there is an admission to the effect that only 5 acres of land was planted with plantation crops and 2 acres of land was used for ancillary purposes. This is the common case of the applicants in all the 3 appeals. On the basis of the said admission, the commission report and the expert report has to be looked into. Those documents are marked as Ext.C1 and C1 (a). As per the commission report, it is stated therein that there is no dispute with respect to the location, identity or boundaries of the properties. It is further reported that the properties involved in these cases are lying together as a single unit without any boundaries in between, to demarcate. It is also reported that the properties are situated on the slants of adjacent hills. Some are steep, some moderately steep. There is a mud road leading to the properties. Said road, further leads to one RMS estate. Commissioner further states that there he could see the vehicles taking labourers through the road. There is an electric line running along the eastern side of the properties. It is reported that the property is covered by vested forest on the northern and western sides. It is reported that there are only 'jandas' to demarcate the property from the said forest. It is reported that beyond the forest on its western side, there is a colony belonging to scheduled tribe. It is reported that on the north western portion, there is about 6 acres of land in the possession of revenue department, which is allegedly set apart for providing accommodation for the tribals and on the other sides of the property are properties notified under the EFL Act. It is reported that it is clear that the properties are left unattended since a long time. It is also reported therein that the petitioners claim that the forest officials never let them do anything on these properties and thus the properties are now filled with wild growth. It is reported by the commissioner that he could see a portion of the properties with coffee plants. Even though the plants are thin and feeble, they appear to be yielding. From the appearance it can be assumed that those are not planted recently. Some pepper wines are also seen in between, in this area. Rest of the properties is covered with wild trees, plants, shrubs etc as detailed in the expert's report. They are of the same nature and characteristics of those in the adjacent forests. Traces of cultivation are not seen any were there. Animal dungs could be seen in the properties. Sounds of animals also could be heard. Some foot marks also were shown by the forest officials as that of wild animals and petitioners claim that the animals are unfettered and can easily gain access to these properties from the adjacent forests as the forest officials will not let the petitioners to protect their property from animals.

8. Dr. Ratheesh Narayanan M.K., Assistant Professor in Botany, Payyannur College, Kannur was appointed as a scientific expert in the matter. His report is marked as Ext.C1 (a). He reported that approximately one third of the disputed land coming in the south western and middle part is having pruned coffee plants (coffee robusta). It is further reported that these plants can be found systematically planted in this belt, as undergrowth along with naturally growing scattered evergreen forest trees and tree seedlings. These coffee plants are yielding but not uniformly and the growth pattern is also not uniform. it is further reported that the coffee plants are having an average age of 20 years. He further reported that he could see pepper plants were scattered in that area but are not yielding uniformly. It is also reported that the area was having almost plain terrain and has secondary vegetation. It is categorically reported that the western, northern and northwestern part of the disputed land (almost two third of the disputed land) cannot be differentiated from the adjoining vested evergreen forest by general view. These areas are having moderate to steep slopes towards north west and north east. Diverse growth of flowering (Angiosperms) and non-flowering (Bryophytes), Pteridophytes (Gymnosperms) plants including endemic and endangered species can be seen therein. But no plantation crops were found therein except few seedlings of coffee. It is further reported that the vegetation of this area is of tropical evergreen type. The random survey in the disputed land during the field inspections resulted in the collection and identification of 165 flowering plant species including 36 species of trees. He also highlighted some of the important tree species seen in the area. The expert further reported that there he found a perennial stream is flowing through the evergreen forest patches of northern side of the disputed land and also further stated that this stream forms a vast stretch of marshy area in the north eastern part of the disputed land and the area is with luxuriant growth of Pandanus species (Kaattu Kaida), Cyperaceae members, and various species of ferns. It is also reported that indirect evidence like elephant dung in the northern and north eastern boundaries near the water body indicates that the site is a good foraging ground for many wild animals.

9. Then, from appreciating the above report, what can be gathered is that, except in the south eastern and middle part, on the other area i.e. western, northern and north-western part of the plaint scheduled, is having natural growth. In the southern part, there is coffee plants. It can be seen from the general description in the report that there also there are natural growth. Surely, in both the commission report, as well as in the expert report, it is highlighted that one-third of the property was seen with remainings of the plantation. But the relevant aspect is that whether it can be considered as a land, which vested in the Government as per Section 3 of the Act 21 of 2005.

10. As per the definition given by the Act, '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. The term 'forest' means, any land principally covered with naturally grown trees and undergrowth and includes any forests statutorily recognized 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 buildings and surroundings essential for the convenient use of such buildings.

11. Thus, from the definition of 'forest' it can be seen that the definition is excluding 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 buildings and surroundings essential for the convenient use of such buildings. When the land is principally covered with naturally grown up trees and undergrowth and it should be contiguous to reserved forest. Then the question which arises for consideration is, what is the meaning of the expression 'principally covered'. If the literary meaning is taken, the main portion of the land should be covered by natural grownup trees. In this case, it is categorically stated by the expert as well as the commissioner that, twothird of the properties is covered by natural growth which cannot even distinguished from the adjacent forest. In this case it is also to be remembered that it is categorically reported that individual applicants property was not seen demarcated with boundaries. The other condition required to bring under the definition of ecologically fragile land is that it 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 predominantly supporting natural vegetation. In this case, as per the report, it is categorically stated that it is contiguously lying with the forest land and there is also another revenue land wherein there is predominant natural growth of vegetation. Thus, what comes out is that there is evidence to show that the properties covered by all these original applications are ecologically fragile land by its physical nature.

12. The next argument is regarding the technical aspect. The learned counsel for the appellants submitted before this court that admittedly earlier there was a proceeding before the Forest Tribunal as O.A.No.74/1991. As already stated, in support of the same, the learned counsel highlighted the decision in Kumari Varma's case (supra). This decision was considered by another Division Bench of this court in Planters Forum v. State of Kerala [2015 (2) KLT 783] wherein, after considering the decision in Kumari Varma's case, it was categorically held that the judgments delivered under 1971 Act by virtue of Section 3 (1) are not binding but their relevancy as an evidence could not be impeached.

13. In the decision in Kumari Varma's case (supra), the facts in a nutshell was that : “A notification was issued under R.2A of Kerala Private Forests (Vesting and Assignment) Rules, 1974 read with S.6 of Act declaring 348 acres to be a private forest. Forest Tribunal found 100.05 acres to be a cardamom plantation and 9.95 acres as land used for purposes ancillary to activity of plantation which was upheld by High Court and Supreme Court. During the pendency of the proceedings, the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act 2003 was passed. A notification was issued under the Ecologically Fragile Land Act declaring 35.105 hectares to be fragile land. Same were challenged in Writ Petitions. It was found to be illegal and same is challenged by State in Writ Appeal. The said writ appeal was dismissed. It is to be remembered that in paragraph 116, this court held that: 

“The second part of the issue is as to whether judgment/order of Forest Tribunal, High Court and Supreme Court in the context of 1971 Act declaring the proprieties of the petitioners as plantation are relevant or not. It is relevant to note that the scope of non obstante clause in a Statute has been examined by the Apex Court in several cases. In State of Tamil Nadu v. Arooran Sugars Ltd (supra) the Supreme Court has laid down in paragraph 16 as quoted above. when Section 3 (1) gives an overriding effect, overriding the judgment/decree or order of Court or Tribunal, the determination of Forest Tribunal, High Court or Supreme Court in the context of 1971 Act can in no way affect the vesting of Ecologically Fragile Land within the meaning of 2003 Act with effect from 2.6.2000. The binding effect of judgment of any issue relevant for vesting of Ecologically Fragile Land has been taken away expressly by Section 3 (1). Although the judgments rendered in the context of 1971 Act are not binding but whether such judgment can be held to be relevant for any purpose is also to be examined. The judgments rendered by Forest Tribunal, High Court or Supreme Court are relevant under Section 42 of Indian Evidence Act. Section 42 of the Evidence Act which is relevant for the purpose of this case is quoted as below: 

"42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41.- Judgment, orders or decrees other than those relevant to the enquiry; but such judgments, orders or decrees other than those mentioned in Section 41 are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they stale." 

Thus, what comes out is that, surely, that aspect will be relevant in determining whether it is principally or predominantly cultivated by plantation crops like coffee and pepper. Thus, the earlier judgment will be relevant by virtue of Section 42 of the Evidence Act. The order of the Tribunal is marked as Ext.A10. There the point framed for consideration was whether the property shown in column B of the petition is liable to be exempted from vesting under Section 3 (3) of the Act 26 of 1971. After considering the three necessary ingredients that the petitioners became owners of properties as on 10.5.1971 under a valid registered document, and the property should be in possession of the petitioners as on 10.5.1971 with an intention to cultivate and finally the disputed properties along with other properties in the possession of the petitioners did not exceed the ceiling limit prescribed under the Kerala Land Reforms Act, the Tribunal decided the applications in favour of the then owners of the properties. In the judgment, in paragraph 7, it is stated that after considering the fact that even after the original lease that in 1970, the then owners obtained a permit to clear fell the area for the purpose of cultivation and further noting that portion of the properties were seen planted with cardamom, when the commissioner inspected the properties in 1977, the Tribunal came to a conclusion that the property is being held by the petitioner as on 10.5.1971 with an intention to cultivate. It is found that as per the Land Reforms Act, he is entitled to hold 45 acres, and that extent of land was exempted.

14. Now considering the said document, which is relevant under Section 42 of the Evidence Act, it can be only come to a conclusion that when it was exempted under Section 3 (3) of the Kerala Private Forest (vesting and assignment) Act, 1971 it was intended only for cultivation and a portion was planted with cardamom.

In this regard, it is also relevant to note that the properties of the 3 applicants are lying contiguously, without any boundaries. There is nothing to show that the coffee plants seen belongs to which applicant. The evidence tendered was as a cardamom holding. There is no evidence to show that more than 50% of the holding was having coffee plants. If that be so, when there is no positive evidence that it is principally cultivated, it can be only said that there is nothing to interfere with the order passed by the court below. In the light of the aforesaid reasons, there is no merit in these appeals. Hence they are dismissed.