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2023 DIGILAW 235 (KER)

State Of Kerala v. Fring Ford Estates Ltd.

2023-03-03

C.JAYACHANDRAN, K.VINOD CHANDRAN

body2023
JUDGMENT : K.Vinod Chandran, J. The appellant is a Company registered under the Indian Companies Act, 1913, in the year 1936. The appellant filed separate applications under S.10(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act [for brevity, 'the EFL Act'], which were rejected by the Tribunal, against which common order, the appeals are filed. The appellant claimed that the Company originally had 490 Acres planted with tea, the land having been purchased from its previous owner, as per a document of 1936 which was produced as Ext.A1. The Tea Board issued a certificate to the Company on 06.08.1979 declaring tea plantation on 150 Acres of land belonging to the Company which alone, remained with the Company after the vesting of private forests under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity ‘the Vesting Act’). The Company, at the time of the application, was said to be in possession of 99.50 Acres of land on which vesting was threatened by the DFO, North Wayanad and a notification was first issued with respect to 10 hectares. Later, an erratum notification was published alleging a further extent of 5.6900 hectares also as vested under the EFL Act. The applications were filed separately with respect to the two different extents, one originally notified and the other which was covered under the erratum notification. 2. The respondents before the Tribunal filed joined written statements raising more or less the same contentions with respect to the separate extents, both located in survey Nos.96/2, 96/4 and 96/1A1 of Thavingal Village. The lands were first notified and then surveyed & demarcated with a sketch prepared. The correct extent of the lands vested were 9.9447 hectares and 5.6900 hectares; based on which an erratum notification was published again in 2005. The properties lie contiguously to vested forests and predominantly support natural vegetation. As on 2.6.2000 the appointed day under the EFL Act the lands clearly fall under the definition of ecologically fragile lands and there is no tea plantation existing as on the appointed day. 3. The Tribunal framed two issues, as to whether the scheduled lands were ecologically fragile lands as on 02.06.2000; the appointed day under the EFL Act and whether the appellant is entitled to get a declaration; that they are not ecologically fragile, which issues were considered together. 3. The Tribunal framed two issues, as to whether the scheduled lands were ecologically fragile lands as on 02.06.2000; the appointed day under the EFL Act and whether the appellant is entitled to get a declaration; that they are not ecologically fragile, which issues were considered together. In adjudicating the dispute before the Tribunal PW1, a Director of the Company was examined who marked Exts.A1 to A6. The defence examined RW1, the Range Forest Officer, who marked Exts.D1 to D12. Commissions were taken out time and again with and without experts, thus placing before the Tribunal a number of such reports the last of which was contrary to the other reports. 4. The Tribunal noticed that as per Ext.C1 report of the Commissioner, Ext.C2 sketch and Ext.C3 report of the expert there were forest trees, plants, shrubs etc., in the property which were named in Ext.C1 report. It was categorically indicated in the report that there was no predominant cultivation of tea. At the applicant's request a further inspection was carried out by the very same Commissioner, who filed Ext.C10 report and Ext.C14 plan in O.A.No.8/2010 and Ext.C4 report and Ext.C7 plan in O.A.No.7/2011; with respect to the two separate extents. Again the Commissioner reported that the properties are not principally cultivated with tea. Yet another Expert was appointed to assist the Commissioner, after remitting the reports. The new expert filed Ext.C5 report in OA 8/2010 and Ext.C12 in OA7/2011. The expert noticed tea plants at equi-distance through out the notified lands and the age of the plants was assessed to be about 25 years. The Commissioner however did not say anything about the tea plants and the applicants filed objections again. Ext.C13 report with respect to OA 7/2011 indicated tea plants on the south-eastern portion and with respect to OA 8/2010 the Commissioner recorded that there were tea plants through out the property, the Commissioner also found remnants of a building and an abandoned quarry. Again the applicant filed objection alleging that the Commissioner was reluctant to go inside the property. However, the Tribunal relied on Ext.C5 and Ext.C12 report of the expert and found that the Commissioner omitted to report about the tea plants in the previous reports. The objection to Ext.C5 and Ext.C12 reports filed by the Forest Department was not reckoned for the reason that the Commissioner not being cross-examined. However, the Tribunal relied on Ext.C5 and Ext.C12 report of the expert and found that the Commissioner omitted to report about the tea plants in the previous reports. The objection to Ext.C5 and Ext.C12 reports filed by the Forest Department was not reckoned for the reason that the Commissioner not being cross-examined. The Commissioner in his Ext.C6 and Ext.C13 reports having agreed with the expert, as also looking at the photographs filed along with Exts.C5 and C12 the Tribunal found that apart from tea plants there is growth of other wild trees. It was the finding of the Tribunal that since the applicant specifically alleged interference to the maintenance of the estate, the presence of trees seen in the year 2012 and 2013 cannot persuade the Tribunal to conclude that these trees could have existed even as on the appointed day and that the land supported natural vegetation as on that day. 5. The Tribunal looked at the definition of ecologically fragile land and found that it should be a forest land, lying contiguous or encircled by any forest and should predominantly support natural vegetation. It was found that the Commissioner reported vested forest on its boundaries and thus it lies contiguous to vested forest. However the land had predominant tea cultivation and the presence of wild trees reported by the Commissioner was not by reason of any intentional abandonment of the plantation. The decision in Bhavani Tea and Produce Co.Ltd v. State of Kerala. 1991 (1) KLT 666 (SC) was relied on to find that only if the plantation was abandoned and there is spontaneous natural growth there could be a vesting under the Vesting Act; which squarely applies under the EFL Act. It was found that the Commissioner and the expert found the land to be neglected only because of the interference of the Forest Department. It was also observed that RW1 admitted that the applicant was not allowed to enter the property after 2000. Hence it was found that there was no reason to find the scheduled land to be an ecologically fragile land vested in Government, based on which finding, a declaration as sought for was granted with respect to both the scheduled properties. 6. We heard learned Special Government Pleader Sri.Nagaraj Narayanan for the appellant State and Sri.V.V.Surendran, learned Counsel appearing for the respondent. 6. We heard learned Special Government Pleader Sri.Nagaraj Narayanan for the appellant State and Sri.V.V.Surendran, learned Counsel appearing for the respondent. We have perused the records and given our anxious consideration to the arguments addressed. 7. The specific statement of the applicant, in the application was that interference was caused to the peaceful possession and enjoyment of 10 hectares of land scheduled in O.A. 8/2010 after the notification issued, dated 25.12.2008. The specific assertion was also that the entire 10 hectares is planted with tea and there is no natural vegetation existing except the growth formed due to the forcible obstruction of the local forest officials. In fact at that point there was no obstruction to the 5.6900 hectares scheduled in OA 7/2011. The specific averment in OA 7/2011 was also that it was on the strength of an erratum notification that the Company was prevented from the peaceful enjoyment and possession of that extent; which erratum notification was on 13.11.2010. We hence find no credence to the finding of the Tribunal that the possession and enjoyment by the applicant, of the properties scheduled in both the O.As were interfered with from 2000 as stated by RW1; which could very well be an inadvertent mistake committed with respect to the year, especially when the specific averment of the applicant is to the contrary. RW1 testified also that he joined at Begur Range in the year 2015 and the Forest Department itself in 2012; thus having no knowledge of what transpired before that. 8. PW1 was examined before the Tribunal, the testimony being offered in both the OAs. PW1 categorically admitted that he was presently the Director of the Company who was the applicant in the O.As. He does not speak of himself having associated with the Company as on the appointed day under the EFL Act ie: 2.6.2000. He marked Ext.A1, being the deed of 22.4.1936, on which title there can be no dispute raised as of now. Ext.A2 and A3 are tax receipts issued to the Company in the years 2007 and 2011; not really capable of being related to the appointed day under the EFL Act. Ext.A5 is a document of 1979 which communication is by the Board recording 150 acres of land having been recorded as a tea estate in Sy.Nos. 96, 97 and parts. Ext.A2 and A3 are tax receipts issued to the Company in the years 2007 and 2011; not really capable of being related to the appointed day under the EFL Act. Ext.A5 is a document of 1979 which communication is by the Board recording 150 acres of land having been recorded as a tea estate in Sy.Nos. 96, 97 and parts. The said communication does not specify the parts and as of now the notification includes properties in part 2, 4 and 1A1 of Sy.No.96. Ext.A6 again is the attested tea area certificate which specifies 29 Acres in Sy.No.96/4, 34 acres in Sy.No. 96/2 and the balance in 96/1B, 1A2, 2 & 3. The separate extents as available in Ext.A6, is identical to that shown in Ext.A5. Hence going by the said document, 63 Acres was under tea cultivation in the survey numbers now notified by the Forest Department. It is very relevant that the said certificates were issued in 1979 and admittedly some portions of the Companies lands were exempted from the Vesting Act. The principal cultivation or existence of tea plantation, for the land to be excluded from the definition of EFL Act, has to be established as existing on 02.06.2000, the appointed day under the EFL Act. We do not find any evidence from the documents to establish tea cultivation asserted by the applicant, its present Director, to substantiate a cultivation specifically of a tea estate as on the appointed day under the EFL Act, in the scheduled properties. 9. In looking at the commission reports we have to notice that the Tribunal made a perfunctory consideration without actually looking at the issue in the totality of the circumstances of the first report of the Commissioner and the expert having not indicated any tea plantation, which was the consistent stand of the Commissioner even when another expert inspected the property. However the Commissioner changed his stance in the last report filed; is the assertion of the applicant. When the Forest Department's objections were peremptorily rejected on the ground that there was no cross-examination effected; the Tribunal failed to notice that the appellant also did not examine the Commissioner who had filed reports contrary to each other. Viewed in the context of the Commissioner having taken quite contrary stances we have to look at the different reports. 10. When the Forest Department's objections were peremptorily rejected on the ground that there was no cross-examination effected; the Tribunal failed to notice that the appellant also did not examine the Commissioner who had filed reports contrary to each other. Viewed in the context of the Commissioner having taken quite contrary stances we have to look at the different reports. 10. Exts.C1 and C2 are the first commission reports and Ext.C3 the expert's report. In Ext.C1 the Commissioner indicated vested forest on northern and north-western portion of the property, a road on the eastern side along with occupied land and Thalappuzha river, to the east of which again vested forest was situated. Dr.Anil Kumar of MS Swaminathan Research Foundation was also present. The Commissioner's report notices the trees, plants and shrubs found at the time of inspection, all of which were natural vegetation. Though tea plants were seen on different portions, it was categorically reported that tea, was not the predominant cultivation. There was also an abandoned quarry in the property. The expert also reported separately about the vegetation found in the land, which was found to be secondary moist deciduous and semi evergreen type and secondary grass lands, having some evergreen elements in the boundaries. It was noticed that northern and western sides of the disputed land, share borders with the evergreen vested forests and the area is thick with diverse growth of flowering and non flowering plant diversity, which sides cannot be differentiated from the adjoining evergreen forest. Perennial streams were found flowing through the northern, western and southern sides, tributaries of the Kabani river and 76 flowering plant species including 32 species of trees were noticed. The disputed land was also dominated by 34 medicinal plant species and the centre portion was open secondary grassland. There was wide presence of wild animals and the land was said to be a part of an elephant corridor wherein many species of winged birds and insects were also noticed. The 5 hectares of land was also bordered by vested forests on the southern and western side with very same vegetation as found in the other lands. There were less than 10 year old unpruned tea plants found scattered in the boundaries, as undergrowth along with semi evergreen forest shrubs and seedlings. It was categorically found that the said tea plants were not the predominant cultivation in the land. 11. There were less than 10 year old unpruned tea plants found scattered in the boundaries, as undergrowth along with semi evergreen forest shrubs and seedlings. It was categorically found that the said tea plants were not the predominant cultivation in the land. 11. Ext.C1 to C3 are dated 06.04.2012 and 22.03.2012, after which Ext.C4 additional report of the Advocate Commissioner dated 11.06.2014, Ext.C5 dated 29.01.2014, brief report of another expert and Ext.C6 additional report of the Advocate Commissioner dated 28.11.2015 were marked. Ext.C5 dated 29.01.2014 is filed by the second expert and Ext.C4 report of the Commissioner was only to produce the expert report filed by the second expert one T. Ahammed Kunj, Professor, Head of the Department of Botany, Ferook College, Calicut. Ext.C6 was again a report filed to produce the plan prepared by the Taluk Surveyor along with the Forest Divisional Surveyor. The plan indicates the disputed land with vested forest on its northern and north-western side boundaries. There is also a vested forest enclosed by the disputed land. An abandoned quarry is seen on the north-western portion of the property, remnants of a building foundation on the eastern side of the property and, an abandoned well on the eastern side of the property. The second expert's report is Ext.C5 and the very same report was also marked as Ext.C12. Ext.C5 also reports vegetation in the scheduled property to be mainly shrubs herbs and climbers. It was also noticed that weeds that usually grow in fallow lands are seen, the details of which vegetation is specified in a table. It was indicated that the disputed land seems to have been altered in the past for agricultural activities, which is evidenced by road like clear passages with almost equidistantly planted very old tea plants almost through out the notified lands and the age assessed from the girth was 20 to 25 years. The inspection was carried out as indicated in Ext.C4 report with the assistance of the expert on 30.12.2012 and 12.10.2013. Hence as per the age assessed of the plantation, the tea plants were planted before 1990. The trees in the adjacent property is found to have 100 to 140 ft in height while those in the disputed property varied from 15 to 30 ft. The girth varied between 25 to 100 cm. Hence as per the age assessed of the plantation, the tea plants were planted before 1990. The trees in the adjacent property is found to have 100 to 140 ft in height while those in the disputed property varied from 15 to 30 ft. The girth varied between 25 to 100 cm. The expert has also noticed that the difference in canopy size indicates that the notified land was not remaining as a protected forest for the past 20 to 25 years. 12. The Commissioner then filed Ext.C10 report and Ext.C14 plan in O.A No.8/2010 and Exts.C6 additional report and C7 plan in O.A No. 7 of 2011. Ext.C10 was a report filed after inspection on 07.05.2014 wherein it was again asserted that the petition scheduled property was not principally planted with tea at the time of inspection dates, which is reiterated in Ext.C6 report dt 28.11.2015. It was in Ext.C13 report dt. 28.11.2015 that the Commissioner all of a sudden made a statement that he saw presence of tea plants except in the south eastern portion of the property. It is very pertinent that the experts differ considerably on the question of the principal cultivation in the property while the first expert appointed categorically states that the property is not principally cultivated with tea and the 2nd expert stating that there are tea plants of age 20 to 25 years which are also planted equidistant. Even the report submitted by the 2nd expert appointed, does not indicate a tea plantation having been existing as on the appointed day under the EFL Act. In fact all the undergrowth and the condition of the tea plants, even as reported by the 2nd expert only indicate abandonment of the plantation. 13. As we noticed even according to the applicant interference was caused to the possession and enjoyment of the properties respectively in 2008 and 2010. The commissions were taken out within a span of two to five years from that date. If there were regularly maintained plantations the property would not have been present on the field, as seen from the reports filed by the Commissioner and the two experts. We are unable to place any reliance on the reports, especially since the Commissioner was not examined before court and the experts were also not examined. If there were regularly maintained plantations the property would not have been present on the field, as seen from the reports filed by the Commissioner and the two experts. We are unable to place any reliance on the reports, especially since the Commissioner was not examined before court and the experts were also not examined. When the objections were filed by the forest department it was incumbent on the part of the applicant to examine the Commissioner and experts before Court especially when the Commissioner had reported incongruously about the tea plants existing in the property. In fact despite frequent inspections the Commissioner had filed successive reports, categorically stating that the lands are principally cultivated with tea. Even in the last report the only statement is that there is presence of tea plants except in the south-eastern portion of the property; which is not to say that there is principal cultivation. The commission reports and the expert report hence do not establish principal cultivation of tea as on the appointed day under the EFL Act. That there was a tea estate in the property, 20 to 25 years back is seen from the report of the 2nd expert, which is also not to say that such cultivation was continued and was existing as on the appointed day which falls more than a decade hence. If there was a systematic cultivation of tea which was run as a plantation definitely there would have been documentary evidence with the applicants as to such plantation having been carried out, evidencing payment of plantation tax, employment of labourers which require maintenance of registers as per the Plantation Labour Act and so on and so forth. None of these are produced before the Tribunal. 14. The declaration in Bhavani Tea and Produce Co.Ltd (supra), by the Hon'ble Supreme Court, is that when a land was not a private forest but plantation under the MPPF Act and remained as a plantation as on 10.05.1971, even if it is not under the same efficient or successful management as it was earlier, it could not without something more, revert back to a situation of it being deemed a private forest. This declaration was specifically looking at the object and purpose of the Vesting Act, which was agrarian reform, whereas the object of the EFL Act is environmental protection. This declaration was specifically looking at the object and purpose of the Vesting Act, which was agrarian reform, whereas the object of the EFL Act is environmental protection. Hence, if a plantation is left to waste without maintenance thus resulting in regeneration of natural vegetation, covering the land with trees and undergrowth, then necessarily it reverts to the status of a forest and if it answers the definition under ecologically fragile land, it gets vested under the EFL Act. The mere fact that the land now vested under the EFL Act, remained as a plantation as on 10.05.1971 thus absolving it from vesting under the Vesting Act, would not automatically enable exclusion of the said land from vesting under the EFL Act, unless there is principal cultivation of plantation crops as required under the definition of forest under the EFL Act. 15. In the above circumstances we are unable to uphold the common order of the Tribunal, which is on a perfunctory consideration and an erroneous one to boot; especially the reliance on the Commission report and Expert report to find an existing plantation as on the appointed day. We hence allow the appeals, reversing the orders of the Tribunal and rejecting the applications filed before the Tribunal. The parties are left to suffer their respective costs. Ordered accordingly.