STATE OF KERALA Vs. UNNIKRISHNAN

JUDGEMENT

(1.) 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 O.A. No. 32/2008, whereby the Tribunal declared that the land belonging to the respondent herein, which was declared as ecologically fragile lands under S. 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:

(2.) 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 land within the definition of 'ecologically fragile land' under S. 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.

(3.) 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 KerLT 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 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'.