Kerala High Court
Kinattukara Metal Crusher Unit vs Government Of Kerala on 26 August, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:64616
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESDAY, THE 26TH DAY OF AUGUST 2025 / 4TH BHADRA, 1947
MFA (FOREST) NO. 58 OF 2021
AGAINST THE ORDER DATED 28.01.2021 IN OA 2/2016 BEFORE THE
TRIBUNAL FOR EFL CASES, KOTTAYAM
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APPELLANTS:
1 KINATTUKARA METAL CRUSHER UNIT,
PEERUMEDU, KUTTIKANAM, IDUKKI DISTRICT, REPRESENTED BY
ITS PARTNER, SRI MATHEW JOSEPH, RESIDING AT KINATTUKARA
HOUSE, PINNAKKANADU, KALAKETTY, KONDOOR VILLAGE,
MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN 686 508.
2 SRI. MATHEW JOSEPH,
S/O. JOSEPH, AGED 49 YEARS, KINATTUKARA HOUSE,
PINNAKKANADU, KALAKETTY, KONDOOR VILLAGE,
MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN 686 508.
BY ADVS.
SRI.M.P.MADHAVANKUTTY
KUM. K. REMIYA RAMACHANDRAN
RESPONDENTS:
1 GOVERNMENT OF KERALA,
REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN 695 001.
2 THE PRINCIPAL CHIEF CONSERVATOR AND
CUSTODIAN OF ECOLOGICAL FRAGILE LAND, VAZHUTHAKKAD,
THIRUVANANTHAPURAM, PIN 695 001.
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MFA(FOREST) 58 OF 2021 -2-
3 THE RANGE OFFICER,
ERUMELI FOREST RANGE, ERUMELI, KOTTAYAM DISTRICT,
PIN 686 509.
4 THE DIVISIONAL FOREST OFFICER,
KOTTAYAAM DIVISION, KOTTAYAM PIN 686 001.
BY ADV SHRI.NAGARAJ NARAYANAN, SPL. G.P. (FOREST)
SHRI ARAVIND V. MATHEW, GOVT. PLEADER
THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 26.08.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
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M.F.A. (Forest) No.58 of 2021
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Dated this the 26th day of August, 2025
J U D G M E N T
Sathish Ninan, J.
The original application seeking declaration that the
application schedule properties are not ecologically fragile
lands and are not vested with the Government under the
Kerala Forests (Vesting and Management of Ecologically
Fragile Lands) Act, 2005 (hereinafter referred to as “the
EFL Act“), was dismissed by the Tribunal. The applicants are
in appeal.
2. The OA schedule consists of two items of properties,
item 1 having an extent of 67.73 Ares situated in Survey
No.1131 of Peerumedu village, and item 2 having an extent of
99.15 Ares in Survey No.1360 of Peerumedu village. The items
lie together as a single holding. The properties belong to
the applicants under Exts.A1 and A2 Sale Deeds of the year
2002. Exts.A3 and A4 are the basic title deeds, which are
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“Pattas” issued under the Land Assignment Act. A granite
quarry is being conducted in the property. According to the
applicants the unit had been functioning in the property
since the year 1994. Ext.B1 notification has been issued
notifying an extent of 15 hectares, which include the OA
schedule properties, under the EFL Act. The applicants
claimed that the properties are not ecologically fragile
lands. It is accordingly that the original application was
filed.
3. The Tribunal held that the applicants failed to
establish that the property was principally used for
cultivation of crops of long duration and hence is not
liable to be exempted from the classification of
“ecologically fragile land” under the EFL Act.
4. We have heard Sri.M.P.Madhavan Kutty on behalf of
the appellants and Sri.Nagaraj Narayanan, the learned
Special Government Pleader (Forest).
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5. The short question for determination in the appeal
is, whether the OA schedule properties which is a rocky area
having an extent of 4.12 acres with only 5 trees thereon,
but to a large extent is covered by wild creepers and “kattu
payar” (Mucuna Bracteata), is a “forest land” and an
“ecologically fragile land” as defined under Section 2 of
the EFL Act. With regard to the nature of the property as
noticed above, there is no dispute.
6. Before we proceed further, it would be appropriate
to refer to the definitions of “ecologically fragile lands”,
“forest”, and “land” under Section 2 of the EFL Act. The
same reads thus :-
“2(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.”
“(c)”forest” means any land principally covered with naturally grown trees and
undergrowth and includes any forest statutorily recognised and declared as
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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.
“(d) “land” includes rivers, streams and its origin and other water bodies.”
To be an “ecologically fragile land” the property must be,
(i) a forest land, (ii) it must lie contiguous to or must be
encircled by a forest land, and (iii) it must predominantly
support natural vegetation. It could also be a land notified
by the Government under Section 4 of the EFL Act as an
ecologically fragile land, in which case the above
conditions need not be satisfied. To fall within the
definition of “forest”, the property must be principally
covered with naturally grown trees and under growth.
However, if the property is principally used for cultivation
of crops of long duration like tea, coffee, rubber etc., it
will stand excluded. So also the residential buildings if
any with the surrounding sites, will stand excluded. Rule
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2(l) of the EFL Rules prescribes such surrounding area as
0.5 hectares.
7. The term “land”, noticeably, has been defined very
widely is an inclusive definition. A rocky area would fall
within the definition of “land” noted above.
8. To be an “ecologically fragile land” the property in
question must be a “forest land”. Therefore, the property
must also satisfy the definition of “forest”. As noticed
supra, to be a forest, the land must be principally covered
with naturally grown trees and under growth. Ext.C1 is the
Commissioner’s report in the OA. It reveals that though the
property contains large bunch of wild creepers and “kattu
payar” it contains only five trees. The State does not have
a case that the property was principally covered with trees
as on the appointed day viz. 02.06.2000 and that they were
cut and removed by the appellants or their predecessors. The
total extent of property is 67.73 Ares + 99.15 Ares = 166.88
Ares equal to approximately 4.12 acres. This entire extent
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contains only five trees.
9. In Sunny Samuel v. Government of Kerala (2023 (1) KHC 469(DB))
this Court, while considering whether a scientifically
planted grass land would satisfy the definition of “forest”
under the EFL Act held that the presence of trees is
mandatory. It was held thus,
“Now coming to the requirement of the land being principally covered with
naturally grown trees and undergrowth, we are again certain in our minds that
the mandate is not satisfied to qualify the disputed land as a forest, under S.2(c).
The finding of the Commissioner that there are only a few number of trees in the
scheduled property substantiates that the requirement of land being principally
covered with naturally grown trees is not satisfied. …..”
Therein this Court relied on an earlier judgment of this
Court in State of Kerala v. C. Sivan (2022 KHC online 1065(DB)) wherein
this Court held
“lands which are principally covered with naturally grown trees and undergrowth
alone would answer the definition of ‘forest’ and ‘forest land’ as defined in the Act
and that, absence of trees would take the land away from the definition of forest.”
10. Sri.Nagaraj Narayanan, the learned Special
Government Pleader (Forest) drew our attention to the
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preamble of the Act to impress upon us that the very purpose
of the Act is conservation of biological diversity,
ecosystems, natural habitats and minimisation of the
reduction or degradation of such systems. We do notice that
similar contentions were urged by the learned counsel in
C.Sivan‘s case supra. It is after due consideration of the same
and the definitions of the terms “ecologically fragile
lands”, “forest land” that this Court held that the absence
of trees would take a land away from the definition of
“forest” and even “forest land” under the EFL Act. We will
not be justified in violating the language of the Section by
referring to the object of the Act.
11. Incidentally we notice that in State of Kerala v.
Unnikrishnan 2013 (2) KHC 245 this Court held that rocky lands do
not support natural vegetation and does not fall within the
definition of “ecologically fragile land”. The Court held :-
“….. There can be forest lands which do not support natural vegetation, which
are outside the purview of the definition of ‘ecologically fragile land’. Rocky
lands are lands which do not support natural vegetation.”
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12. As was noticed, the total extent of OA schedule
property is approximately 4.12 acres. Only five trees were
found in the entire extent. It is practically a case of,
absence of trees. Hence the properties in question will not
fall within the definition of “forest” and “ecologically
fragile land” as defined under the EFL Act.
13. Though the appellants had a contention that the
property does not lie contiguous to a forest land, the
contention is disproved even by Ext.A9 survey map produced
by the appellants.
14. So also we do not find force in the contention of
the appellants that, out of the 15 hectares notified under
Ext.B1 certain portions have been de-notified and therefore,
the present properties are also to be exempted. Whether a
property has been wrongly included in the notification or
not depends on the satisfaction of the ingredients of
“ecologically fragile land” under the EFL Act. The mere fact
that a portion of the property included in the notification
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was de-notified, is not a ground to exclude the scheduled
property.
15. However, we have already held that the scheduled
properties does not fall within the definition of
“ecologically fragile land”, it being not a “forest” under
the EFL Act.
16. To hold that the application schedule property is
an ecologically fragile land, the Tribunal, in interpreting
the definition of “forest” held that, since the application
schedule properties are not principally cultivated with
crops of long duration, the first part of the Section must
be deemed to have been satisfied and hence the property is a
vested forest. We are unable to agree with the learned
Tribunal. On a plain reading of the Section it is clear
that, the first part of the Section defines a forest under
the EFL Act, and the latter part of the Section carves out
an exclusion from the main part. Merely because the second
part of the Section does not apply, will not automatically
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satisfy the first part of the Section.
17. On the above discussions, we find that the
application schedule properties do not fall within the
definition of “ecologically fragile land” under the EFL Act.
Resultantly, this appeal is allowed. The impugned
judgment is set aside. The original application will stand
allowed declaring that the OA schedule properties are not
ecologically fragile lands and are not vested with the
Government under the EFL Act.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge