JUDGMENT : K.Vinod Chandran, J. The applicant before the Tribunal is a Company concerned with the vesting of 40 hectors of the 150 acres purchased by the Company as per Annexure-A1 in the year 1993. The entire properties were exempted under the Kerala Land Reforms Act by the Taluk Land Board, Vythiri by Exts.A2 and A3 proceedings. The applicant purchased 150 acres of well developed coffee plantations and maintained and nurtured it all these years. The applicant had been paying plantation tax and land revenue for the properties. For the purpose of internal reorganization the land was divided into three sections the Vythiri Habitats, Vythiri Resorts and Vythiri Farms respectively covering 75, 25 and 50 acres, which lands are registered as plantations. The applicant has also established a hotel complex with club house, rooms, cottages, swimming pool, ayurvedic centre etc for promoting international tourism without disturbing, changing or altering the nature and character of the land as a coffee plantation. Building permits were obtained from the Vythiri Panchayath in the years 1993-94 and 1999-2000. There are regular workers working in the plantation and staff to man the offices. 2. It was while the applicant was in peaceful enjoyment of the said properties that the Forest Officials interfered with their possession and physically prevented them from carrying on agricultural operations in the land alleging vesting under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity 'the EFL Act'). Since 2000, the applicant was not able to carry out normal activities and maintenance in the existing plantation. The applicant asserted that the scheduled property is not an ecologically fragile land as defined under the EFL Act . It was also contended that an application filed before the Custodian under Section 19(3)(b) of the EFL Act stood rejected which was also challenged in the Original Application. 3. The joint written statement filed by the 1st and 2nd respondents alleged that 40 hectors of the purchase made under Ext.A1 stood notified by notification dated 04.10.2000 and gazetted on 31.10.2000. Survey was carried out and after demarcation the actual extent of ecologically fragile land was found to be 39.6383 hectors which stands vested in the Government. The area was asserted to be on the western ghats, part of a larger extent of southern tropical evergreen and semi evergreen forests in the South Wayanad and Kozhikode Forest Divisions. Survey was carried out and after demarcation the actual extent of ecologically fragile land was found to be 39.6383 hectors which stands vested in the Government. The area was asserted to be on the western ghats, part of a larger extent of southern tropical evergreen and semi evergreen forests in the South Wayanad and Kozhikode Forest Divisions. The vegetation in the application scheduled property are predominantly forest species and there are many rivulets and streams running through the property, flowing into one of the major tributaries of the Kabani river. The land supports wildlife, birds, butterflies and endemic plants. The coffee plantation in the area is spartan and there is no principal cultivation, which alone can exclude the land from vesting. The various plant species available in the area was detailed which are common to evergreen forests. The respondents claimed the land to be an ecologically fragile land which is vested statutorily under the EFL Act. 4. The Tribunal framed issues as to whether the notified land comes within the definition of ecologically fragile land and whether a declaration under the EFL Act for exemption is possible. The Tribunal found that Ext.B1 copy of the notification includes approximately 39.2460 hectors and the definition of forest as seen from the EFL Act indicates it to be one covered with trees and undergrowth. The burden to prove that the application scheduled property does not attract the definition of forest and also EFL land, were found to rest squarely on the applicant relying on State of Kerala v. Alexander [1993 (1) KLT S.N.4 Case No.4]. The Commissioner’s report clearly indicated that the subject lands, come under the definition of an ecologically fragile land. As far as the notification issued under the ordinance, which was sought to be de-notified under Section 19(3)(b) of the EFL Act was rejected by the Custodian. This order was challenged in the O.A, but it was held that the Tribunal has no jurisdiction 5. Learned Counsel Sri.V.V.Surendran, appearing for the appellant, specifically pointed to the Ordinance and the definition of ecologically fragile land as also the vesting provided under Section 3 of the EFL Ordinance. Reliance was placed on Majeed vs. State of Kerala [ 2012 (1) KLT 965 ] to contend that coffee plantations stood exempted under the ordinance from vesting and there was no requirement that such exempted lands should be principally cultivated with coffee or cardamom. Reliance was placed on Majeed vs. State of Kerala [ 2012 (1) KLT 965 ] to contend that coffee plantations stood exempted under the ordinance from vesting and there was no requirement that such exempted lands should be principally cultivated with coffee or cardamom. As long as there is a cultivation of either of the two specified crops and the land was held validly under registration for plantation, with due permission from legally competent authorities; the lands would get exempted. It is pointed out that the commission report was prepared on an inspection in the year 2010. In fact even before the Tribunal, the applicant had sought for remitting the report. The applicant was interdicted from enjoying the property and maintaining the plantation right from the appointed day under the EFL Act. It is hence, there is regeneration of forest trees found in the property. The Commissioner has reported that he could not enter the Bits which were demarcated by him, on the field. The expert report Ext.C4 also does not contain any assessment of age of the coffee plants, detected in the property. The Tribunal erred in not considering the challenge against the order in the application filed under Section 19(3)(b) of the EFL Act. It was prayed that the matter be remanded for a fresh consideration after remitting the commission report or this Court may allow a Commissioner to be deputed from this Court. 6. Learned Special Government Pleader (Forest), Sri.Nagaraj Narayanan stoutly resisted the claim of the applicant. It is pointed out that the land converted into a resort was completely exempted from vesting. As far as the notified extent is concerned, there is no principal cultivation available in the land and the Commissioner’s report clearly indicates sparse areas of the total lands vested, having been cultivated with coffee, which does not enable an exemption either under the Ordinance or under the EFL Act. The Commissioner has specifically pointed out the building sites and but for that, the entire land is statutorily vested under the EFL Act. The learned Special Government Pleader specifically pointed out that there was no interference to the enjoyment of the lands or the maintenance of the plantation as on the appointed day under the EFL Act or at any time proximate to the year 2000. The learned Special Government Pleader specifically pointed out that there was no interference to the enjoyment of the lands or the maintenance of the plantation as on the appointed day under the EFL Act or at any time proximate to the year 2000. Admittedly, the first notice issued by the DFO was Ext.A41 in the year 2007, upon which an application was filed under Section 19(3)(b) which stood rejected by Ext.A42. The applicant has not filed any Writ Petition before this Court and the Tribunal has no jurisdiction to consider the legality of the order passed under Section 19(3)(b). The powers of the Tribunal specifically conferred under Section 10 is to determine whether the land is an ecologically fragile land or not, whether there is vesting under the Government of ecologically fragile land or portion thereof and whether the compensation under Section 8 is adequate or not. Majeed (supra) is not good law, especially on the finding that a sparse cultivation of coffee or cardamom would exempt large extents of forest land; which violates the object of the Ordinance and the statute. 7. We will first look at the efficacy of Majeed, almost in similar circumstances, wherein the writ petitioner had moved an application under S.19(3)(b) of the Act before the Custodian, for de-notifying their lands, on the ground that the entire land was a cardamom plantation, which cannot be vested under the Government as per the Ordinance. Pertinent, at the outset is the fact that the Tribunal does not sit in appeal of the order of the Custodian under Section 19(3)(b) and the cited decision is in a Writ Petition under Article 226 of the Constitution of India; which power the Tribunal lacks. The power conferred on the Tribunal is only that delineated under Section 10 of the EFL Act and it is not an appellate forum from orders under Section 19(3)(b). 8. The declaration in Majeed, was specifically noticing the different definitions of 'forest' as occurring in the Ordinance and the EFL Act. As per the Ordinance, 'ecologically fragile land' was defined as forest land lying contiguous or encircled by reserved forest, vested forest, or forest owned by Government, predominantly supporting natural vegetation, which is the identical definition in the EFL Act also. As per the Ordinance, 'ecologically fragile land' was defined as forest land lying contiguous or encircled by reserved forest, vested forest, or forest owned by Government, predominantly supporting natural vegetation, which is the identical definition in the EFL Act also. However the definition of 'forest' in the Ordinance took within its ambit all lands covered with trees and undergrowth including statutorily recognized or designated as reserved, protected or otherwise lying as forests. In the EFL Act there was an exclusion provided from the definition of 'forest'; lands which were principally cultivated with specified long duration plantation crops and sites of residential buildings. Such an exclusion was available in the Ordinance in sub-clause (2) of Clause 3; the provision enabling vesting, for lands cultivated with coffee and cardamom held by an owner under valid registration for the plantation, raised after obtaining due permission from legally competent authorities. The reasoning in Majeed was that while the EFL Act specifically provided for principal cultivation of long duration crops for the purpose of exclusion, the Ordinance requires mere cultivation of coffee or cardamom. 9. We are unable to agree with the aforesaid proposition, especially in the context of lands which were absolved under the Ordinance, were to be cultivated with coffee or cardamom, in the nature of a plantation raised with due legal permission obtained. A scanty presence of some plantation crops or minimal areas of the total land being cultivated with plantation crops, would not enable such exclusion being granted and there should be substantial cultivation even under the Ordinance for the purpose of excluding lands from vesting. The words employed in the definition under the EFL Act, of principal cultivation of crops of long duration, was employed, as an abundant caution. The intention in the Ordinance, is also very clear and what was sought to be absolved from vesting, were those plantations of coffee and cardamom raised with due sanctions required. This also has to be understood in the context of the intention behind the Ordinance and the subsequent enactment; which was environment protection, enabling exemption from vesting only to plantations. While in the Ordinance, only two long duration cops were specified, in the Act many more were included; but it goes without saying that a scanty cultivation carried out in a large extent of property would not exclude the lands from vesting. 10. While in the Ordinance, only two long duration cops were specified, in the Act many more were included; but it goes without saying that a scanty cultivation carried out in a large extent of property would not exclude the lands from vesting. 10. Now we look at S.19 of the EFL Act which validates the actions taken under the earlier Ordinance and makes transitory provisions. There were four Ordinances before the enactment, which were respectively Ordinance No. 6 of 2000, 8 of 2000, 3 of 2001 and 16 of 2001. All these Ordinances contained provisions, validating the actions taken or deemed to have been taken under the earlier Ordinances. Sec.19 of the Act, referred to the last of such Ordinances which, by virtue of the transitory provisions in the earlier Ordinances, validated all actions taken or deemed to have been taken under the earlier Ordinances. Sec. 19(1)(a) provides that all ecologically fragile lands vested in the Government under the Ordinance, shall be deemed to be vested under the Act, if it is not inconsistent with the provisions of the Act. The declaration in Majeed was insofar as a cardamom or coffee cultivation, even if not substantially or principally cultivated in the land, being absolved from vesting under the Ordinance, thus putting at naught the notification under the Ordinance. If the interpretation was so, definitely the consequence would also be an exclusion from vesting under the Ordinance, since only lands vested validly under the Ordinance, would be enabled of being deemed to have vested under the enactment, if the vesting also is consistent with the provisions of the Act. However, there is a provision in the statute for bringing out a fresh notification in accordance with the EFL Act since the vesting under the Act as is the case with the Ordinance, occurs automatically as on the appointed day. Even if the notification under the Ordinance is set at naught, it does not save the property from vesting statutorily on the enactment coming into force. 11. For example, a tea plantation was not absolved from vesting in the Ordinance which was exempted when the statute came into force. Hence when the Act comes into force, an owner of a tea plantation which was notified under the Ordinance, would be entitled to seek for exclusion from vesting under the Act before the Custodian. 11. For example, a tea plantation was not absolved from vesting in the Ordinance which was exempted when the statute came into force. Hence when the Act comes into force, an owner of a tea plantation which was notified under the Ordinance, would be entitled to seek for exclusion from vesting under the Act before the Custodian. Likewise, if a land was not validly vested under the Ordinance and it could be vested under the provisions of the Act, the notification issued under the Ordinance will necessarily have to be withdrawn. But in that circumstances, Sec.19(3)(b) comes into play and the Custodian is empowered to revise and issue a notification suo motu, in accordance with the provisions of the Act. As we noticed, the interpretation given to the provision in the Ordinance, so as to absolve lands cultivated with cardamom or coffee, however scanty the cultivation be, without the requirement of the lands being cultivated substantially or principally with such plantation crops; with due respect cannot be accepted. What is exempted from vesting under the Ordinance, were plantations of coffee and cardamom raised with due permissions from the authorities; which plantations can only be lands cultivated, substantially or principally with coffee or cardamom. We also have to observe that the vesting as per the EFL Act, is statutory and automatic, under Section 3; even without a notification unlike under Section 4; by which vesting occurs only on a notification being issued. 12. In Majeed, the invocation of R.18 of the Rules of 2007 by the Custodian, was found to be improper, since the same could apply only to applications under R.17. While it was held that the Custodian has the jurisdiction to make an enquiry, the invocation of the statutory provision, which was not available on the date of the application, was found to be bad. With due respect, we cannot agree with the aforesaid declaration also, especially looking at the facts that arise in this case, which we find to be identical to that in Majeed, except for the fact that, in Majeed, the claim of the owner who approached the Custodian under Sec. 19(3)(b) was that the entire land notified under the Ordinance was a cardamom plantation. 13. In the present case, Ext.A42 is the order of the Custodian rejecting the application under Section 19(3)(b) of the EFL Act. 13. In the present case, Ext.A42 is the order of the Custodian rejecting the application under Section 19(3)(b) of the EFL Act. It relies on a joint inspection carried out by the Working Plan Officer, Kozhikkode, Divisional Forest Officer, Wayanad, and the Technical Assistant of the Conservator of Forests, Northern Circle. When the Custodian is empowered to make an enquiry, as is accepted in Majeed , it is also competent for the Custodian to carry out such enquiry through an authorized officer or team of officers of the Forest Department. In those circumstances merely because R.18 was invoked, it does not set at naught the proceedings since the report is one filed by the Officers authorized by the Custodian, who also carried out physical inspection of the lands in the presence of the owners. The joint inspection brings out the nature and status of the lands with field inspection details, which is relied on to reject the application filed by the applicant; quite permissible and legal according to us. We find the decision in Majeed to be not good law. 14. The applicant admittedly obtained the properties as on 16.11.1992 as per Ext.A1. Ext.A2 is the proceedings of the Land Tribunal which exempted the larger extents of land in which the lands purchased as per Ext.A1 also is said to be included. Exts.A2 and A3 proceedings of the Taluk Land Board, respectively in the years 1976 and 1996 are put forth to argue that the lands were exempted from the ceiling proceedings for reason of the exemption available to the plantations in the Land Reforms Act. In fact, it has to be noticed that even private forests which come within the purview of Madras Preservation of Private Forest Act (for brevity MPPF Act) are liable to be exempted under section 81 of the Land Reforms Act which is specifically noticed in Ext.A2 proceedings. Looking at Ext.A3, it is seen that the Taluk Land Board relied on coffee registration certificates, the plantation tax and land revenue receipts as also the description of the property in Ext.A1 sale deed; which was 'estate land (garden)-plantation' to find exemption under the Land Reforms Act. These materials though relevant, the actual lie and nature of the land is more important as per the EFL Act. 15. These materials though relevant, the actual lie and nature of the land is more important as per the EFL Act. 15. The definition of Ecologically Fragile Land is of any forest land or portion there of lying contiguous to or encircled by reserved, vested or any other land lying as forest and predominantly supporting natural vegetation. A separate definition is provided to the word 'forest', which speaks of lands which are principally covered with naturally grown trees and undergrowth and includes any recognized, declared, protected or otherwise forest land. The only exemption available is for lands principally cultivated with crops of long duration of the specified plantation crops, which admittedly includes coffee also. We have already found that even under the Ordinance, for exemption there should be a predominant cultivation failing which the intention would be defeated. 16. As argued by the learned Special Government Pleader Ext.A41 is the notice first issued against the applicant dated 22.05.2007 bringing to their notice that the subject lands were notified in the year 2000 under the EFL Act. Hence, the allegation of interference caused to the enjoyment of land and maintenance of the plantations from the year 2000, cannot at all believed. If that was so the applicants would have immediately approached the Tribunal under Section 10. In this context, it is also to be noticed that Ext.A5 is a possession certificate dated 29.05.2006 issued by the Village Officer to the applicant. Ext.A6 to A9 are plantation tax receipts for the year 2002-03, 2004-05 and the last two of 2005-06. Plantation tax is paid on the yield received from the property and hence this put paid the argument of the applicant that the enjoyment and maintenance of the plantation were interfered with by the Forest Officials right from the year 2000. The certificates of registration to three extents of property respectively 25 (Vythiri Resort), 50 (Vythiri Farm) and 75 (Vythiri Habitat) are produced as Exts.A10 to 12. These are certificates issued to work plantations having different extents. The specific contention of the applicant was that there are buildings constructed in the land called Vythiri Resort by maintaining the plantations. We find it difficult to believe the maintenance of the plantations in the said lands, especially considering the constructions carried out by the applicants, as stated in the application which were noticed by us in the opening paragraph of this judgment. We find it difficult to believe the maintenance of the plantations in the said lands, especially considering the constructions carried out by the applicants, as stated in the application which were noticed by us in the opening paragraph of this judgment. However, we need not tarry on the issue as to whether there is coffee plantation existing in the Vythiri Resorts since the respondents have not included the same in the notification. 17. In the context of our finding that the interference to the possession of lands was caused first in the year 2007 by Ext.A41, the Commission report prepared in 2010 cannot be looked into to understand whether the principal cultivation of plantation crops would enable exemption from vesting under the EFL Act, as existing in the year 2000. Especially the plantation tax receipts would indicate that there was cultivation carried out till 2006 and the interference to maintenance of the plantation could only have been, earliest in 2007, on issue of Ext. A41. The Commissioner first filed an interim report in which it was indicated that while carrying out the inspection, the notified land was divided into 3 Bits. The Managing Director of the applicant company, the Forest Officials, The Taluk Surveyor and an expert, a Botanist was present. 18. In Ext.C1 report filed after inspection on 18.04.2010, it was noticed that Bit No.I had vested forest and Arunagiri Puzha on the south, north Talipuzha jungle park road, a private property on the west and the applicant’s own property on the east. The said bit was existing as an absolutely thick forest on the southern and western side with a river flowing on the southern boundary. There were only a few coffee plants noticed in the property. There were also big trees and variety of plants and weeds in the property. Bit No.III, as per Ext.C1, also had vested forest on the south, west and the east. There was noticed, coffee plants which were not well maintained for the past many years. There were also big trees growing in the property even prior to the coffee plantation. At the time of the above inspection the Commissioner was not able to complete the inspection or survey the properties. 19. A further inspection was conducted on 25.04.2010, 09.05.2010 and 18.05.2010 and Ext.C2 report was filed. There were also big trees growing in the property even prior to the coffee plantation. At the time of the above inspection the Commissioner was not able to complete the inspection or survey the properties. 19. A further inspection was conducted on 25.04.2010, 09.05.2010 and 18.05.2010 and Ext.C2 report was filed. In Ext.C2 the separate Bits were identified and Bit No.1 having an extent of 3.1837 hectors, Bit No.II having 28.1613 hectors and Bit No.III having 8.2933 hectors. The details of Bit No.1 was available in the interim report, the observations in which has been noticed by us herein before. (a) In Bit No.2 the coffee planted area having 0.8757 hectares, is specifically marked as item No.2 in yellow colour. A further coffee planted area on the southern side of bit No.2 having an area of 1.0076 hectares was also marked in yellow as item No.1. (b) Adjacent to yellow coloured item No.2 in Bit No.2 is the house site of one Alikoya with a total extent of 0.0988 hectares, marked in blue colour as No.1 in Bit No.2. An open air stage and gallery was marked as item No.2, coloured blue in Bit No.2 having an extent of 0.2019 hectors. A residential house site of one C.C.Ramakrishnan was marked in blue colour as item No. 3 having 0.1009 hectares in Bit No.2. Another extent of land in which existed the residence of one Captain Sebastian having an extent of 0.0760 hectares was marked in blue colour as item no.4 in Bit No.2. A water tank and tree house existed in Bit No.2 marked as item No.5 coloured in blue, which had a total extent of 0.4998 hectares. (c) Adjacent to item No.2 in blue colour in Bit No.2 is an incomplete construction having an area of 0.0460 hectares which is marked as item No.1 in black shade. Another incomplete construction is marked as item No.2 in black shade having an area of 0.0346 hectares in Bit No.2. (d) In bit No.3 the area of coffee plantation had an extent of 1.4013 hectors specifically shown in green colour as item No.3. (e) The area shown in brown colour as item No.6 in the plan is where the Vythiri Resort is situated, which had a total extent of 3.7746 hectors. (d) In bit No.3 the area of coffee plantation had an extent of 1.4013 hectors specifically shown in green colour as item No.3. (e) The area shown in brown colour as item No.6 in the plan is where the Vythiri Resort is situated, which had a total extent of 3.7746 hectors. (f) It was also recorded that there was a road marked in the plan in black lines, which was the only access to the various items of property marked in bid No.2 & 3. The scheduled property was said to be located at an altitude ranging between 850 to 1000 meters above the sea level and was noticed to be steep and fully green. The biodiversity in the scheduled property was noticed and especially the rare species of plants existing in the land. The Botanist confirmed that the rare species of plants in the property are typical evergreen vegetation and the soil is highly fertile. The coffee plants found in the property were unpruned and the property itself was dominated by evergreen trees. The report of the Botanist was marked as Ext.C4 and the photographs taken by the Commissioner, 11 in number, as Ext.C5. 20. It is pertinent to note that the applicant had possession of 150 Acres, of which only 39.2460 hectares [96.977 Acres] is statutorily alleged to have vested under the EFL Act. The resort is said to be existing in 9.254 Acres of property, which is not vested under the EFL Act. In the vested lands, which has been notified, the coffee planted area comes to only about 3.2846 hectors out off a total of about 40 hectares notified. There is no cultivation found in the lands vested to come to a conclusion of it being principally cultivated with coffee. However, while considering the application, we have to notice the exemption granted to sites of residential buildings and surroundings essential for the convenient use of such buildings in clause (c) of S.2 of the EFL Act. We also have to consider the minimum extent enabled to such residential sites as per the Kerala Forest [Vesting and Management of Ecologically Fragile Land) Rules, 2007. Rule 2(l) defines surroundings essential for the convenient use of residential building to be an area of 0.5 hectares surrounding the residential building. We also have to consider the minimum extent enabled to such residential sites as per the Kerala Forest [Vesting and Management of Ecologically Fragile Land) Rules, 2007. Rule 2(l) defines surroundings essential for the convenient use of residential building to be an area of 0.5 hectares surrounding the residential building. Blue coloured items 1 to 5 in Bit No.2 of the plan submitted by the Commissioner, Ext.C3, shall be provided with the minimum required land, which is an area of 0.5 hectares surrounding the residential building, which also shall stand exempted under the EFL Act as residential sites and appurtenant land. We also make it clear that the roads leading to such residential sites shall be opened to the use of the owners of the residential building and their men, without any obstruction caused to ingress and egress. But for the exemption granted herein above for residential sites, the other areas notified stand vested in the Government as demarcated in the notification. The appeal stands partly allowed, permitting the exemption to residential sites as herein before declared. The parties shall suffer their respective costs.