Land Used For Cultivating Long Duration Crops Not Ecologically Fragile Even If Encircled By Vested Forests: Kerala High Court

In a significant judgement, the Kerala High Court has held that the land principally used for the cultivation of crops of long duration cannot be declared as ecologically fragile land under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act even if it is encircled by vested forests.

Upon perusal of Sections 2(b) and 2(c) of the Act, a Division Bench of Justice P.B. Suresh Kumar and Justice C.S. Sudha concluded that land which is not a forest does not become an ecologically fragile land. 

"A land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew is not brought under the definition of "forest", even if it is covered with naturally grown trees and undergrowth as in the case of a forest."

The court was adjudicating upon an appeal against the order of the Tribunal for Ecologically Fragile Lands Cases which upheld the government's declaration of 6.0720 hectares owned by the appellants as ecologically fragile land as per a notification issued under Section 4 of the Act.

Advocates Babu Joseph Kuruvathazha and N. Shamsul Huda appearing for the appellants submitted that the notified land is part of 30 acres owned and cultivated by them with cardamom, coffee, pepper etc. since 1970 and that the said land does not fall within the definition of 'forest' in terms of the Act. Therefore, they asserted that the land cannot be declared an ecologically fragile land while seeking a declaration to that effect in the original application.

On the other hand, Special Government Pleader Nagaraj Narayanan contended that the declared land is lying contiguous to the vested forest and that although there are cultivations of cardamom, coffee, pepper etc., it is an area with predominant natural vegetation which supports important endemic flora and fauna of western ghats and hence, liable to be declared as an ecologically fragile land. 

The Bench noted that it was clear from the report of the Advocate Commissioner that the predominant activity in the land was agriculture, particularly of crops of long duration mentioned in the Act.

Significantly, it was also found that the scheme of the Act was that land which otherwise possesses characteristics of a forest, is liable to be excluded from the purview of the definition of forest, if it is used principally for the cultivation of crops of long duration.

"The expression "used principally for cultivation of crops of long duration", according to us, is used in the definition in contradistinction not only to lands which are not predominantly used for cultivation but also to lands which are not cultivated with crops of long duration made mention of in the definition. In other words, cultivation here and there in the land may not be sufficient to take the same out of the purview of the definition of "forest".

However, it was clarified that this does not imply that there shall be plantation throughout the length and breadth of the land. It was sufficient to establish that the land is used for cultivation and for related and ancillary activities including the construction of buildings and other structures.

"Similarly, even if there is cultivation throughout the length and breadth of the land, if the same is not of crops of long duration made mention of in the definition, it cannot be said that the land is not a forest in terms of the Act."

Therefore, it was found that the Tribunal's observation that the notified land was encircled by vested forest on three sides, that the area was a wildlife habitat, that there are a large number of indigenous trees in the notified land etc. were not of any significance.

As such, the appeal was allowed and the tribunal's judgment was set aside.

Case Title: S. Raveendranath Pai & Ors. v. State of Kerala & Ors. 

Citation: 2022 LiveLaw (Ker) 195

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