JUDGMENT : Sathish Ninan, J. The State is in appeal challenging the order of the Forest Tribunal, declaring the application schedule property as, not an 'ecologically fragile land' under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as, “the EFL Act”), and for setting aside the EFL notification. 2. The application schedule property has an extent of 10.36 acres. It is situated in Re.Sy.Nos.578, 579, 588 and 590 of Vellamunda Village. In an earlier proceeding, the property was exempted from vesting under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as “the Vesting Act”). As on the appointed day under the EFL Act i.e., 02.06.2000, the property was planted with coffee, pepper, vanilla, etc., and hence, the property is not an ecologically fragile land, is the claim. 3. The State filed counter contending that the application schedule property is a thickly wooded area, with abundant growth of various species of forest trees. The contention that the property was planted with coffee, pepper, vanilla, etc., as on the date of appointed day, was denied. It was contended that the property predominantly supports natural vegetation and is an ecologically fragile land. 4. The Tribunal held: i) The property, having been exempted from vesting under the Vesting Act, cannot be notified under the EFL Act. ii) The property contained coffee, pepper, murikku, etc., and hence is not an ecologically fragile land. iii) The notification was not placed before the Advisory Committee as required under Section 3 (2) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (EFL Act) and hence, the notification is liable to be set aside. 5. We have heard Shri.Nagaraj Narayanan, the learned Special Government Pleader (Forests) on behalf of the appellant-State, and Shri.P.Haridas, the learned counsel for the respondents-applicants. 6. We proceed to determine the correctness of the findings of the Tribunal. 7. To hold that the property having been once exempted under the Vesting Act cannot be notified under the EFL Act, the Tribunal relied on the judgments of this Court in State of Kerala v. Kumari Varma [ 2011 (1) KHC 502 ]; Kunhiraman P.V. And others v. Custodian of Vested Forest and others [2014 (3) KHC 782]; and Planters' Forum v. State of Kerala [ 2015 (2) KLT 783 ] . At the very outset, it is to be noticed that the judgment in Kunhiraman's case was overruled in Custodian Vested Forest Palakkad & ors. v. Kunhiraman P.V. & ors. [ 2018 (3) KHC 768 ] and is hence not good law. The judgments in Kumari Varma's case and Planters' Forum (supra) did not lay down the proposition as observed by the Tribunal. 8. Exemption from vesting, under Section 3 (2) of the Vesting Act, is with regard to the private forests held by an owner under his personal cultivation as on the appointed day under the Vesting Act, namely, 10.05.1971. Under the EFL Act, all ecologically fragile lands as on the appointed day thereunder namely, 02.06.2000, shall vest in the Government. Ecologically fragile lands are defined under Section 2 (b) of the EFL Act thus; “(b) “ecologically fragile lands” means,- (i) any Forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest of a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation; and (ii) any land declared to be an ecologically fragile land by the Government by notification in the official Gazette under S.4;” As per Section 2 (b)(i), the ingredients are; 1) it must be a forest land; 2) it must lie contiguous to or be encircled by a reserved forest/vested forest/ other forest land owned by the Government; and, 3) the land must predominantly support natural vegetation. The term 'forest' has been defined under Section 2 (c) thus: “(c) “forest” means any land principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognised 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 building and surroundings essential for the convenient use of such buildings.” Lands principally covered with naturally grown trees and undergrowth are forests within the definition. However, lands principally cultivated with long-duration crops like tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew, sites of residential building and its surroundings are excluded from the definition. However, lands principally cultivated with long-duration crops like tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew, sites of residential building and its surroundings are excluded from the definition. To consider whether a land is an ecologically fragile land under the EFL Act or not, what is relevant is, whether it satisfies the definition of ecologically fragile land as on the appointed day, namely, 02.06.2000. Merely because a land was exempted from vesting under the Vesting Act, it being under cultivation as on the appointed day thereunder namely, 10.05.1971, it is not necessary that such cultivation continued even as on 02.06.2000, which is the appointed day under the EFL Act. So also, the land must be principally used for such cultivation. Unless such conditions are satisfied, the land will vest with the Government as an ecologically fragile land. Neither Kumari Varma's case nor Planters' Forum's case (supra) held otherwise. 9. In Kumari Varma's case , though the subject lands were declared to be exempted under the Vesting Act, the State did not restore the land to the owners till the EFL Act came into force. Under such circumstances, this Court held that, after depriving the owner of the possession and right to cultivate, the State cannot rely on the presence of natural tree growth and undergrowth, and contend that the land satisfies the definition of “forest” under the EFL Act. In Planters Forum (supra), it was held that the issue whether the land is used for cultivation of long-standing crops is a fact to be enquired into on a case-to-case basis. 10. In State of Kerala v. Kalathil Ambady ( 2022 (6) KLT 612 ) , a Division Bench of this Court held that exemption from vesting under the Vesting Act would not necessarily absolve vesting of the land under the EFL Act, though it would be a relevant piece of evidence. 11. In Government of Kerala and another v. Jacob Thomas Arikupuram and others [ 2019 (4) KHC 625 ] , the Division Bench of this Court held that the EFL Act is an independent enactment, not inter-linked with the Vesting Act, the legislative intent being quite different. To consider whether a land is an ecologically fragile land or not, what is relevant is its status and qualification as on 02.06.2000, which is the appointed date under the EFL Act. To consider whether a land is an ecologically fragile land or not, what is relevant is its status and qualification as on 02.06.2000, which is the appointed date under the EFL Act. It was held, “previous history of the land will be of no use to know whether the EFL Act applied to the land w.e.f. the appointed date or not”. It was held that the burden of proving that a particular land is not an ecologically fragile land is squarely on the claimant. 12. Therefore, the finding of the Tribunal that the property in question could not be notified as ecologically fragile land since it was exempted from vesting under the Vesting Act is liable to be set aside, and we do so. 13. To hold that the application schedule property is not an ecologically fragile land, the Tribunal noted that the property contains coffee plants, arecanut plants, coconut plants, lemon grass, etc., of fruit bearing age. The Tribunal relied on Ext.C1 Commission report and Ext.C3 report of expert. As noticed supra, it must be proved that the land was principally cultivated with such crops as on the appointed day. 14. In Ammukunhi Amma & ors. V. State of Kerala & ors., [2016 (3) KHC 52] , this Court held that the words “principally cultivated” would mean cultivation of at least half (50%)of the usual number of plants per acre, of the respective species. This view was earlier expressed by this Court in M.F.A. Nos.48/1981, 291/1981 and 78/1983 also. In State of Kerala & ors. V. N. Rajagopal [ 2018 (5) KHC 128 ] , this Court, while considering the question whether “the land is principally cultivated with crops of long duration”, took note of the fact that, if intensive cultivation of coffee is resorted to, 64 plants could be planted in an area of 10 cents. The learned counsel on either side agree, that the number would depend on the variety of coffee being planted. Anyhow, mere sparse cultivation does not exclude the land from the purview of the EFL Act. So also, such cultivation must have been existing as on the appointed day. 15. A reading of Ext.C1 Commission report and Ext.C3 report of the expert reveals that they reported the existence of more than 100 coffee plants and a few other trees in the entire extent of 10.36 acres. So also, such cultivation must have been existing as on the appointed day. 15. A reading of Ext.C1 Commission report and Ext.C3 report of the expert reveals that they reported the existence of more than 100 coffee plants and a few other trees in the entire extent of 10.36 acres. So also, their age has not been ascertained. Whether the land is principally cultivated has also not been ascertained. 16. If, as on the appointed day, the property was principally cultivated with crops of long duration, necessarily, there would be evidence to substantiate the same. However, no such materials are available on record. In Ammukunhi Amma (supra), this Court held that to prove that the land was “principally being cultivated as on the relevant date”, the applicants could produce records relating to maintenance of property, regarding engaging of labourers, payment of wages, purchase of manures, pesticides, etc., and records relating to transportation expenses, sale of crops, satisfaction of taxes under various heads including agricultural tax, etc., during the relevant period. A mere bald submission without proof was held to be insufficient. 17. The Tribunal has not entered a positive finding that the property is principally cultivated with long duration crops and that such cultivation was in existence as on the appointed day. Without entering such a finding, it could not have been held that the application schedule property is not a forest and an ecologically fragile land under the EFL Act. The finding of the Tribunal that the property is not an ecologically fragile land under the EFL Act cannot be sustained. It is liable to be set aside, and we do so. 18. Evidently, the Tribunal has not considered the relevant aspects. We are of the opinion that an opportunity could be granted to the applicants to substantiate their claim that, as on the appointed day the application schedule property was principally cultivated with crops of long duration, like coffee and pepper. 19. The learned counsel for the applicants would urge a further contention that, the definition of 'forest' under the EFL Act excludes sites of residential buildings and the surroundings necessary for its convenient use. The Commissioner noted the existence of a pond and a residential building. 19. The learned counsel for the applicants would urge a further contention that, the definition of 'forest' under the EFL Act excludes sites of residential buildings and the surroundings necessary for its convenient use. The Commissioner noted the existence of a pond and a residential building. The existence of a building having been proved, at any rate, the site of such building with the surrounding area essential for its convenient use, is liable to be excluded, it is argued. Here also, as was indicated earlier, the age of the building has not been brought out in evidence. It is the position obtaining as on the appointed day, which is relevant. The applicants could be given opportunity to adduce evidence on the said aspect also. 20. Before this Court, the applicants filed applications seeking leave to amend the Original Application and to adduce additional evidence to the effect that the crops/trees in the property were destroyed in the year by Forest officials, setting it on fire. We have dismissed the applications as per a separate order passed on this day. It is clarified that the same is not liable to be re-agitated before the Tribunal after the remand. 21. The next contention is with regard to the non- compliance with Section 3(2) of the Act, for failure to place the EFL notification before the Advisory Committee. It is not disputed that the vesting of ecologically fragile land in the Government under Section 3 is automatic and not dependent on the notification and it being placed before the Advisory Committee. Vesting under Section 3 is not dependent on the same, but is automatic. There could be erratum notifications including or excluding properties. In P.Murukankutty v. Amarnath Shetty, 2007 (1) KHC 29 , it was held that no notification is necessary for vesting under Section 3 of the EFL Act and that the vesting is automatic if the land qualifies the requirements under the EFL Act.[See also: Planters Forum (supra) and Prime Land Holdings Pvt.Ltd. v. Govt. of Kerala 2023 (2) KHC 30 ]. Therefore, the failure to place the notification before the Advisory Committee is not fatal and does not invalidate the notification. The finding to the contrary entered by the Tribunal is liable to be set aside and we do so. 22. of Kerala 2023 (2) KHC 30 ]. Therefore, the failure to place the notification before the Advisory Committee is not fatal and does not invalidate the notification. The finding to the contrary entered by the Tribunal is liable to be set aside and we do so. 22. Incidentally, it is noticed that, even as per the description of the property in the title deed of the applicants and also in the schedule description to the Original Application, the eastern, western and northern boundaries are, vested forests. Therefore, what remains to be considered is only, whether the Original Application scheduled property is excluded from the definition of 'forest' under the EFL Act. 23. Resultantly, the appeal is allowed. The order impugned is set aside. The matter is remanded back to the Tribunal for fresh disposal after affording opportunity to both sides to adduce further evidence. Parties to appear before the Tribunal on 13.03.2025.