C. Jayachandran, J.
1. The common question which falls for consideration in both these appeals is as follows:
If the property-which has been declared as not a vested forest, or exemption granted under the Kerala Private Forests Vesting and Assignment Act, 1971 ['Vesting Act', for short]-is not restored to the person in possession, thus preventing cultivation therein, whether the subsequent undergrowth and vegetation can be reckoned to declare the property as an ecologically fragile one under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 ['the EFL Act', for short]
2. M.F.A.[F]. No. 116/2011 is directed against the order of the Forest Tribunal, Palakkad in O.A. No. 30/2008 dated 28.02.2011, whereas, M.F.A. [F]. No. 19/2017, against the order of the same Tribunal in O.A. No. 29/2008 dated 21.10.2015. Although the appeals stem from two different orders of the Tribunal, we deem it convenient to dispose of the same by virtue of this common judgment, since identical question of law-arising from admitted facts-is to be resolved in both the appeals.
3. Brief Facts in O.A. No. 30/2008 (MFA 116/2011)
The extent of land involved is 3.0400 hectares in survey Nos. 11/2B, 10, 9/10 and 9/26A3 of Kottasseri village. The applicant traces her title to document no.1210/1940, as per which, kanam rights were assigned to her predecessors by the jenmi, Mankada Kovilakam. The scheduled property was earlier sought to be treated as a vested forest under the Vesting Act, which resulted in O.A. No. 537/1974 being filed at the instance of the applicant herein. The O.A. was allowed on 20.06.1977, exempting the scheduled property from being vested as a private forest under the Vesting Act. The State filed a review as I.A. No. 207/1985 in the said O.A., which was allowed. Challenging the same, the applicant preferred M.F.A. No. 413/1987 before the High Court, which was allowed, against which, the State carried a Special Leave Petition as S.L.P. No. 11267-11269 of 2003 before the Supreme Court, which was, however, dismissed on 08.01.2004. However, the scheduled property was not restored to the applicant as enjoined by Section 8(3) of the Vesting Act. The applicant filed a Writ Petition before the High Court in the year 2004 seeking restoration, pending which Ext.B3 proceedings were issued by the Custodian of Ecologically Fragile Lands, treating the scheduled property as an ecologically fragile one, thus enabling the same to be vested with the Government.
4. In the written statement, simultaneous with admitting the earlier legal proceedings, the department contended that the scheduled property is an ecologically fragile land in terms of its definition under Section 2(b) of the E.F.L. Act. The land was inspected by the committee constituted in terms of the E.F.L. Act and as per Ext.B2/B5 report, it was found that the scheduled property supports secondary vegetation, besides being adjacent to vested forest on one side. Acting upon Ext.B2/B5 report, Ext.B3 order was passed, rejecting the applicants petition for restoration. Ext.B3 order specifically refers to the non-obstante clause in Section 3(1) of the E.F.L. Act to get rid of the earlier order of the Tribunal under the Vesting Act, though confirmed by the Apex Court.
5. Facts in O.A. No. 29/2008 (MFA(F)No. 19/2017)
The applicant in this O.A. is the brother of the applicant in O.A. No. 30/2008 and the facts herein are more or less similar. The extent of the property is 1.30400 hectares in survey Nos. 11/2B, 9/10, 9/26A3 and 10. Title is seen traced to the same document, i.e., document no.1210/1940. The scheduled property was earlier sought to be treated as a vested forest under the Vesting Act, which resulted in O.A. No. 536/1974 being filed at the instance of the applicant herein. The O.A. was allowed exempting the scheduled property from being vested as a private forest under the Vesting Act. The State filed appeal as M.F.A. No. 413/1987 before the High Court, which was also dismissed. Challenging the same, the State carried a special leave petition as S.L.P. No. 11411/1986 before the Supreme Court, which also was dismissed on 08.01.2004. The applicant's petition seeking restoration of the scheduled property evoked no response and the same was not restored by the department, which they are duty bound as per Section 8(3) of the Vesting Act. While so, Ext.A1 proceedings were issued by the Custodian of Ecologically Fragile Lands treating the scheduled property as an ecologically fragile one, thus enabling the same to be vested with the Government.
6. In the written statement, simultaneous with admitting the earlier legal proceedings, the department contended that the scheduled property is an ecologically fragile land in terms of its definition under Section 2(b) of the EFL Act. The land was inspected by the committee constituted in terms of the EFL Act and it was found that the schedule property supports secondary vegetation. Acting upon the report of the committee, Ext.A1 order was passed, rejecting the applicants petition for restoration. Here also, the non obstante clause in Section 3(1) of the E.F.L. Act is referred to in Ext.A1 to get rid of the earlier order of the Tribunal under the Vesting Act, which was confirmed by the Apex Court.
7. Though the records in MFA No. 19/2017 (O.A. No. 29/2008) have not been received, we are persuaded to dispose of the same as well, since the facts and the legal issue involved, which we have taken note of above, are not disputed before us.
8. We are of the definite opinion that, the fact situation narrated above is squarely in the teeth of a Bench decision of this Court in State of Kerala v. Kumari Varma, 2011 (1) KLT 1008 [LQ/KerHC/2011/267] ]. The fact that the respective scheduled properties were not restored to the applicants, pursuant to the order of the Forest Tribunal becoming final is not disputed. The Division Bench took note of the contention of the respondents that they were illegally deprived of the possession of the lands in question, thereby depriving their right to carry on cultivation in which situation, it is not open for the State to contend that the lands in dispute acquire the character of 'forest' by virtue of the fact that the land is covered with naturally grown trees and undergrowth. The contention that the same would amount to permitting the State to take advantage of an illegality committed by it is also taken note in paragraph no.26 of Kumari Varma supra. In recognition of the said contention, the relevant findings of the Division Bench in paragraph 29 is extracted here below.
"29. We reject the submission of the learned Additional Advocate General. There was no intention on the part of the respondent to abandon the cultivation of cardamom as was pointed out by the Supreme Court in para 37 of Bhavani Tea case (supra). The respondent was prevented by the State to continue the cultivation by denying possession to the respondent on a wrong interpretation of the Private Forests Act, 1971. We see substantial force in the submission made by the learned counsel for the respondent that on an appropriate interpretation of the various provisions of the Act, the State cannot be permitted to take advantage of a wrong committed by it in depriving the respondent of the legal rights to cultivate the lands in dispute by wrongly invoking Kerala Private Forests (Vesting and Assignment) Act. Such an interpretation, in our opinion, is not necessarily inconsistence with the purpose sought to be achieved by the Ecologically Fragile W.A. Nos. 2584 of 2009 & 2586 of 2009-29-Lands Act. If the State is of the opinion that the land in question is such an ecologically fragile land as on today which is required to be protected, it is still open to the State to notify the land to be ecologically fragile land under Section 4 of the said Act subject, of course, following the appropriate procedure stipulated under the Act."
9. Section 8(3) of the Vesting Act is relevant in this context, which is extracted herebelow:
'(3) If the Tribunal decides that any land is not a private forest or that a private forest or portion thereof has not vested in the Government and-
(a) no appeal has been preferred against the decision of the Tribunal within the period specified therefor; or
(b) such appeal having been preferred has been dismissed by the High Court, the Custodian shall, as soon as may be after the expiry of the period referred to in clause (a) or, as the case may be, after the date of the order of the High Court dismissing the appeal, restore possession of such land or private forest or portion, as the case may be, to the person in possession thereof immediately before the appointed day.'
Going by the language employed, that is to say, 'the Custodian shall, as soon as may be ....................... ' leaves no room for any doubt as regards the imminent duty/obligation of the Custodian to restore the property, once the time limit prescribed in Section 8(3) expires. In the instant facts, the respective scheduled property was taken possession of by the department from the applicants pursuant to the Vesting Act and the MFA no.413/1987 was disposed of by the High Court on 20.03.1997 [as could be seen from the Judges Papers in the said M.F.A, which we have called for]. The S.L.P. arising from O.A. No. 30/2008 was dismissed on 04.12.2002 and the one from O.A.29/2008, on 08.01.2004. As a consequence of not restoring the property in terms of Section 8(3), the applicants were virtually prevented from cultivating the property. It is profitable to recall in this context that cultivation claimed by the applicants was found in their favour, when the Tribunal chose to grant exemption under the Vesting Act. As held in Kumari varma supra, respondent/State cannot take advantage of their own wrong in illegally retaining the possession of the scheduled properties, disregarding the mandate under Section 8(3) of the Vesting Act, to ultimately contend that, there developed a natural growth in the scheduled property during the interregnum, changing the character of the properties from a cultivated land to a naturally grown forest. In the attendant facts, we cannot take stock of the committee's report finding secondary vegetation in the scheduled property to find that the properties are ecologically fragile. Moreover, the report of the committee itself does not show that the scheduled property is principally covered with naturally grown trees and undergrowth.
10. Although, the Special Government Pleader (Forest) requested us to have a re-look of the dictum laid down in Kumari Varma (supra), we are in respectful agreement with the findings therein. Moreover, we are given to understand that the appeal carried by the State from Kumari Varma (supra) is pending consideration of the Hon'ble Supreme Court.
In the light of the above discussion, the appeals are devoid of any merit and the same are therefore dismissed.
