JUDGMENT : Devan Ramachandran, J. The State of Kerala and the Conservator and Custodian of Ecologically Fragile Lands are in appeal, questioning the Final Order of the ‘Court of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal’, Palakkad, (hereinafter referred to as ‘the Tribunal’ for short), in Original Application No.8/2014. 2. Through the impugned order, the learned Tribunal has allowed the Original Application filed by the respondents herein, thus declaring that the application schedule property – extending to 11.018 hectares comprised of in Resurvey No.791/2, 795, 797/2, 793/D2, d7, 793/3 and 797/9 in Pudussery Village – is not an ‘Ecologically Fragile Land’. 3. The genesis of the application made by the respondents is in Ext.B2 letter received by them from the Office of the Divisional Forest Officer, Palakkad (DFO), dated 20.06.2008, informing them that the application schedule property is an ‘Ecologically Fragile Land’ (EFL) and hence, vested with the Government. They, thereupon, filed the above said Application, seeking a declaration, as has now been allowed, on the ground, inter alia, that the property in question is a ‘Forest’, manifest by the fact that it was, in the 1970’s, proceeded against under the provisions of the Kerala Private Forests (Vesting and Assignment) Act, 1971, which culiminated in Ext.A2 order of the learned Forest Tribunal, Palakkad – issued common in four Original Applications, namely, O.A.524/1976, 525/1976, 534/1976 and 535/1976 – declaring it to be exempted, finding that it does not concede to any of the characteristics of a ‘Private Forest’. 4. The respondents allege that, even though they were thus entitled to be restored the land on the basis of the declarations in Ext.A2 order, the Forest Department refused to do so illegally; but then maliciously issued Ext.B2 letter to them, saying that it construes to be an ‘Ecologically Fragile Land’. They contend that the actions of the Forest Tribunal in holding the property to be ‘EFL’ is mendacious, solely being an attempt to circumvent Ext.A2 order; as also Ext.A4 judgment, subsequently obtained from this Court in WP(C)No.2996/2013 on 20.03.2014 – whereby, they were directed to restore the property within a period of six months. 5. In response to the Original Application, a written Statement was filed by the appellants, wherein, in paragraph 4 of it, the following are averred: 4. 5. In response to the Original Application, a written Statement was filed by the appellants, wherein, in paragraph 4 of it, the following are averred: 4. The department was taking steps to restore the area in the above OA in view of Government Order dated 26.09.1989. Before effecting restoration of the land, we have to follow the administrative formalities like surveying, fixation of boundaries, preparation of sketch, obtaining approval and formal restoration orders from Government, Publication of Section 5 notification under Kerala Preservation of Trees Act, 1986 etc. were to be fulfilled. In the meantime, the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Ordinance was promulgated by the Government. Since the land in question lies contiguous to vested forest, supports natural vegetation with predominant tree species like Kara Veppu, Pala, Pullani, Pullamarathu etc., the same satisfies the characteristics of an ecologically fragile land. The property forms a part of Mayappalam Vested Forest which is lying contiguous with other forests and VFC item 219. The area is undisturbed and hence keeping it as such will be advantageous for the insitu Conservation of eco system and natural habitat. It is inhabited by wild mammals and also venomous reptiles and endangered birds like peacock. Not only that, this area is a treasure of medicinal plants like Kurunthotty, Dhandappala etc. Source of ground water, few north flowing and one west flowing streams drain in the reservoir at foothills. Open scrub jungle with igneous rocks outcrops, basins of water source and supporting necessary life forms qualifies the land to be notified as EFL. As such, the land in question could not be restored. As such, the land is proposed to be notified as EFL. The Custodian and the Government have to take subsequent steps to notify the land as EFL. The property in question was inspected and identified as liable to be notified as EFL and accordingly, was recommended to be notified under the EFL Act. It is submitted that the land has been notified as Ecologically Fragile Land under the provisions of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000 (Replaced later by the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act , 2003 as per Notification No. EFL10-311/2013 dated 26.10.2013 of Addl. Principal Chief Conservator of Forests (Gazette No. 48 dated 03.12.2013, item No. 31) and is under the absolute custody of the Forest Department. Principal Chief Conservator of Forests (Gazette No. 48 dated 03.12.2013, item No. 31) and is under the absolute custody of the Forest Department. 6. The learned Tribunal allowed the matter to trial; and the respondents/applicants produced Exts.A1 to A5 documents as part of their evidence; while RW1 – a Forest Range Officer, was examined on the part of the appellants and Exts.B1 to B2 marked on their side. An Advocate Commissioner was appointed by the learned Tribunal on the application of the respondents and her Report, dated 23.05.2016, is available as Ext.C1. 7. Pertinently, while deposing as RW1, the Forest Range Officer testified thus, in his proof affidavit: The department was taking steps to restore the area in the above OA in view of Government Order dated 26.09.1989. Before effecting restoration of the land, we have to follow the administrative formalities like surveying, fixation of boundaries, preparation of sketch, obtaining approval and formal restoration orders from Government, Publication of Section 5 notification under Kerala Preservation of Trees Act, 1986 etc. were to be fulfilled. In the meantime, the Government promulgated the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Ordinance. Since the land in question lies contiguous to vested forest, supports natural vegetation with predominant tree species like Teak, Irul, Pullamarathu, Manjap-paavatta, Kara, Veppu, Pala, Otuku, Pullani, Edampiri, valampiri etc., the same satisfies the characteristics of an ecologically fragile land. The property forms part of Mayappalam Vested Forest, VFC item 219, which is lying contiguous with other forests. The area is undisturbed and hence keeping it as such will be advantageous for the insitu Conservation of eco system and natural habitat. It is inhabited by wild mammals and also venomous reptiles and endangered birds. Not only that, this area is a treasure of medicinal plants like Kurunthotty, Dhandappala, orila, moovila, Edampiri, Valampiri etc. Source of ground water, few north flowing and one west flowing streams drain in the reservoir at foothills. Open scrub jungle with igneous rocks outcrops, basins of water source and supporting necessary life forms qualifies the land to be notified as EFL. As such, the land in question could not be restored. As such, the land is proposed to be notified as EFL. The Custodian and the Government have to take subsequent steps to notify the land as EFL. As such, the land in question could not be restored. As such, the land is proposed to be notified as EFL. The Custodian and the Government have to take subsequent steps to notify the land as EFL. The property in question was inspected and identified as liable to be notified as EFL and accordingly, was recommended to be notified under the EFL Act. It is submitted that the land has been notified as Ecologically Fragile Land under the provisions of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000 (Replaced later by the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act , 2003 as per Notification No. EFL10-311/2013 dated 26.10.2013 of Addl. Principal Chief Conservator of Forests (Gazette No. 48 dated 03.12.2013, item No. 31) and is under the absolute custody and control of the Forest Department. The copy of the EFL notification is already produced before this court and that may be marked as Exhibit B-1. 8. In his cross examination, the Forest Range Officer asserted that there were certain naturally grown trees in the property, along with undergrowth and shrubs; and that the officers concerned had pointed out these to the learned Commissioner also. He conceded that the Report of the Commissioner, namely Ext.C1, does not, however, contain any such observation; to which, he feigned ignorance and then admitted that there are schools and private properties on certain boundaries of the property in question. A specific question was put to him whether there were animals in the property, as asserted by him in his proof affidavit, to which also he conceded that the Report does not say so, but contended that this was incorrect. 9. We have examined the impugned order of the learned Tribunal and have evaluated it on the touchstone of various materials and evidence available on record. 10. 9. We have examined the impugned order of the learned Tribunal and have evaluated it on the touchstone of various materials and evidence available on record. 10. It is beyond contest that ‘Ecologically Fragile Land’ has been defined under Section 2 (b) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act , 2003 (hereinafter referred to as ‘the Act’ for short), as under: (i) 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; and (ii) any land declared to be an ecologically fragile land by the Government by notification in the official Gazette under S.4; 11. It is also expressly conceded by Sri.Nagaraj Narayanan – learned Special Government Pleader appearing on behalf of the appellants, that it is only a ‘Forest’, or any portion thereof, held by a person, which can come within the definitional sweep of ‘Ecologically Fragile Land’; but contended that, edificed on the evidence on record, it is luculently established that the application scheduled property is one such. For this, he relied upon the definition of ‘Forest’, as available in Section 2(c) of the ‘Act’, to argue that, even the Report of the learned Advocate Commissioner would establish that the application schedule property was principally covered with naturally grown trees and undergrowth; and predicated that, hence, the findings of the learned Tribunal are in error. 12. However, in refutation, Sri.P.R.Venkatesh – learned counsel for the respondents/applicants before the learned Tribunal, pointed out that, the learned Commissioner has, in Ext.C1 report, noticed the nature and characteristics of the property as under: 2. Advocate Commissioner may record the predominance of natural vegetation in the disputed property such as Irul. Chadachi, dantappala, Palakapyyyani, Kana Manjappavatta, aaval Annakkara, Sindream, Paanal, Kurunthorti ete. T Commissioner may also record abundance of natural tree growth with approximate age and status of regeneration which exist as primers, seedlings, poles, along with climbers and lichen etc. 3. Whether the land in question is lying contiguous to a vested forest or any other forest land owned by the Government? 4. Advocate Commissioner may record the predominance of natural water sources in the OA schedule property, where the wild animals visit to drink water. 6. 3. Whether the land in question is lying contiguous to a vested forest or any other forest land owned by the Government? 4. Advocate Commissioner may record the predominance of natural water sources in the OA schedule property, where the wild animals visit to drink water. 6. Advocate Commissioner may please be noted the percentage of natural vegetation in the land. 13. Sri.P.R.Venkatesh contended that, since even the appellants do not have any case against the above findings – at least without any evidence being led by them to such effect through RW1 – the application scheduled property cannot be construed, by any stretch of imagination, to be a ‘Forest’, or a portion thereof, held by his clients. He argued that, on this short ground alone, the learned Tribunal is irreproachable, qua its findings in the impugned order. 14. There is sure force in the afore submissions of Sri.P.R.Venkatesh because, it is the specific case of the appellants, in their written statement before the learned Tribunal, that the application schedule property is supporting natural vegetation, with predominant tree species like ‘Kara’, ‘Veppu’, ‘Pala’, ‘Pullani’, ‘Pula Marathu’ etc.; and further that it is inhabited by wild mammals, as also venomous reptiles and endangered species like peacock. They further assert that the property is a ‘treasure of medicinal plants like ‘Kurunthotty’, ‘Dhandappala’ etc; with good source of ground water, ‘few north flowing and one west flowing streams along with open scrub jungle with igneous rocks, outcrops, basins of water source and supporting necessary life forms’ (sic). They maintain that, all this would qualify the land to be a ‘Forest’, as defined under Section 2(c) of the ‘Act’; and hence that the learned Tribunals view is in error. 15. Interestingly, the witness on the side of the appellants, namely RW1, as said above, reiterated in his proof affidavit what has been averred in the written statement; but adding a few more tree species like ‘Teak’, ‘Irul’, ‘Otukku’, ‘Edampiri’ and ‘Valampiri’. He affirmed the other averments in the written statement relating to the wild mammals, venomous reptiles and endangered birds; and, while speaking about the area being a ‘treasure trove of medicinal plants’ (sic), he added ‘Orila’, ‘Moovila’, ‘Edampiri’ and ‘Valampiri’, along with the two species that have been specifically mentioned in the written statement. He affirmed the other averments in the written statement relating to the wild mammals, venomous reptiles and endangered birds; and, while speaking about the area being a ‘treasure trove of medicinal plants’ (sic), he added ‘Orila’, ‘Moovila’, ‘Edampiri’ and ‘Valampiri’, along with the two species that have been specifically mentioned in the written statement. However, when he was cross-examined, he unequivocally conceded that Ext.C1 Report does not support any of the assertions made by the appellants and again feigned ignorance why it was so. 16. We, therefore, asked Sri.Nagaraj Narayanan whether the appellants had filed objections to Ext.C1, to which, he answered to the affirmative; and we have gone through the same, which is on file. As perspicuous therefrom, apart from stating that the learned Commissioner was wrong in not recording the presence of other trees, undergrowth and natural growth, it confirms that Ext.C1 report is otherwise in order. 17. This is relevant because, if the appellants had found Ext.C1 report to be inaccurate, nothing prevented them from seeking the same to be remitted to the learned Advocate Commissioner; or even for it to be set aside, for a fresh report. The admitted factum of this not having been even attempted, can only lead to the inevitable conclusion that the assertions in the objections were only an afterthought. This is apodictic since the appellants did not even seek to examine the learned Advocate Commissioner. 18. Sri.Nagaraj Narayanan, nevertheless, contended that, Ext.C1 Report would establish his client’s case, since even the species noticed therein, namely ‘Manjappaavatta’, ‘Veppin thai’, ‘Ayyankolam’, ‘Thumpil’, ‘Karimpana’, ‘Teak plants’, ‘Kanikonna’, ‘Odukku’ and ‘Chadachi’ are all naturally growing trees in forest. 19. Even when we hear Sri.Nagaraj Narayanan as above, there is one specific aspect which he does not controvert, namely that the Report of the learned Commissioner states that, on 16.05.2016 – the date on which it was submitted – the height of the vegetation in the property in question was a mere 3 or 4 feet; and that of the trees on it were not more than 4 or 5 feet. This is crucially relevant because, ‘Forest’ is defined under the ‘Act’ as below: Section 2(c): “forest” means any land principally covered with naturally grown trees and undergrowth and includes any forest 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. 20. When this is so, we are enjoined to decide if the learned Tribunal has erred in concluding the property to be not a ‘Forest’, based on the evidence available. 21. In this context, we remind ourselves the well settled position of law, that the burden to prove a land to be not a ‘Forest’ as per the ‘Act’ is on the applicant. (See Government of Kerala and Another vs. Jacob Thomas Arikupuram and Others [ 2019 (4) KHC 625 ]. 22. That said, as unmistakable from the definitions above extracted and the declaration made by this Court in Narayana Bhat v. State of Kerala [ 2018(1) KLT 34 ], in order for the ‘Act’ to apply, the first ingredient to be established is that the land is a ‘Forest’; and hence that if the applicant proves otherwise, nothing else is required to be further proved or considered. 23. Add to the above, it also has to be established that the property was a ‘Forest’ as on the date on which the ‘Act’ came into force, namely 02.06.2000. 24. To discharge the burden on them, the respondents led evidence and produced Exts.A1 to A5 documents. Though no oral evidence was offered on their side, they moved the learned Tribunal for the appointment of an Advocate Commissioner, whose report is available as Ext.C1. The inspection of the property as evident from Ext.C1, was done by the Advocate Commissioner on 11.12.2015 and she found – as said earlier – that the vegetation in the property was a mere 3 to 4 feet in height and that of the trees to be only 4 or 5 feet. 25. The inspection of the property as evident from Ext.C1, was done by the Advocate Commissioner on 11.12.2015 and she found – as said earlier – that the vegetation in the property was a mere 3 to 4 feet in height and that of the trees to be only 4 or 5 feet. 25. That apart, what has been noticed in Ext.C1 are, inter alia, ‘Veppin thai’ and ‘Teak plant’ – which means saplings or recent growth – without any evidence being offered by RW1 that these were naturally occurring and growing for over a decade. Not even a whispering assertion has been made in the evidence of RW1, that the vegetation and the trees – which were rather nascent in growth, being only 3 to 5 feet in height – were available in the year 2000 and that it has grown only to such height over the next 16 years. 26. Therefore, edificed on the facts involved, it is difficult to even imagine that the vegetation found by the learned Commissioner in the application schedule property are naturally grown trees and undergrowth, which could consequently partake to it the characteristics of a ‘Forest’, as defined under Section 2(c) of the ‘Act’. When the trees and the growth were found – without objection – to be only to the aforementioned height and resultantly conceding to a valid and rational assumption of it occurring rather recently, one fails to fathom how the appellants maintain that the application scheduled property is covered with naturally grown trees and undergrowth. 27. To add to the above, the learned Advocate Commissioner, in Ext.C1 Report, did not find the presence of any animal, venomous snakes or such other, as has been now asserted by RW1. Therefore, even if we travel with the appellants in their contention that such presence would also be part of the criteria for a land to be ‘Forest’ – though not so enumerated in the ‘Act’ – it would still not inure any benefit to them in the light of the uncontested specific findings of the learned Advocate Commissioner. 28. To paraphrase, by no stretch of imagination and looking at it from any angle, would it render possible in the case at hand, to find the application scheduled property to be a ‘Forest’, within the definitional umbra of Section 2(c) of the ‘Act’. 29. 28. To paraphrase, by no stretch of imagination and looking at it from any angle, would it render possible in the case at hand, to find the application scheduled property to be a ‘Forest’, within the definitional umbra of Section 2(c) of the ‘Act’. 29. Inevitably, therefore, the respondents have discharged their burden of proving that the land in question is not a forest; and when we find that the ratio in Narayana Bhat (supra) would thus come to apply, it would not require us to consider any other factor or issue. 30. Every other argument – either for or against – becomes irrelevant because, as we have said prefatorily, it is only a ‘Forest’ or a portion thereof, held by an individual, that would come within the purlieus of ‘Ecologically Fragile Land’, if the relevant criteria are proved and established. 31. However, solely for the purpose of completeness to our consideration, we must say that the argument of Sri.Nagaraj Narayanan – that Ext.A2 order of the learned Forest Tribunal would have no bearing on the question whether the land is a ‘forest’ under the ‘Act’ is on firm footing, at least in an abstract academic sense. The evaluations and assessments requisite and necessary under the two Statutes are surely different; and a finding under the Kerala Private Forests (Vesting and Assignment) Act (‘Private Forest Vesting Act’ for short), cannot automatically lead to a conclusion against the property being a ‘forest’ under the ‘Act’, if the relevant criteria under the latter are found attracted. We are supported in our view by various judgments, including Government of Kerala and Another v. Jacob Thomas Arikupuram and Others, [ 2019 (4) KHC 625 ]. 32. Since we have already found that, even as per the unexpendable criteria under the ‘Act’, the property in question cannot be construed as a ‘forest’ under it, it becomes irrelevant as to how the Forest Tribunal had decided the issues under the ‘Private Forest Vesting Act’ in Ext.A2 order. 33. When the evidence on record thus persuades us to the inevitable conclusion that the application scheduled property is not a ‘Forest’ within the purview of Section 2(c) of the ‘Act’, we cannot find any reason to interfere with the impugned order of the learned Tribunal. In the afore circumstances, we dismiss this Appeal, however, without making any order as to costs.