IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 7105 of 2007(U) ------------------------- PETITIONER: ------------------ MRS. KUMARI VARMA, D/O. LATE P.R.RAMA VARMA, ALAKKODE HOUSE, ALAKKODE P.O., TALIPARAMBA, KANNUR DISTRICT, KERALA. BY ADV. SRI.MKS.MENON SRI.P.A.AUGUSTINE(AREEKATTEL) RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVT., FOREST AND WILD LIFE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 3. PRINCIPAL CHIEF CONSERVATOR OF FOREST AND CUSTODIAN (ECOLOGICALLY FRAGILE LAND), THIRUVANANTHAPURAM. 4. PRINCIPAL CHIEF CONSERVATOR OF FORESTS, (WILD LIFE), THIRUVANANTHAPURAM. BY ADDL. ADVOCATE GENERAL SRI RANJITH THAMBAN BY GOVERNMENT PLEADER FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2009, ALONG WITH WPC NOS. 26694 OF 2008 AND 31146 OF 2006 ON 24/9/2009, THE COURT ON 16/10/2009 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE ORDER OF LAND BOARD DATED 22/11/1973. EXT.P2 TRUE COPY OF THE JUDGMT PASSED BY THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO. 33LK71/06 DTD. 4/8/06. EXT.P3 TRUE COPY OF THE KERALA FOREST (VESTING ;AND MANAGEMENT OF ECOLOGICALLY FRAGILE LAND) ACT, 2003. EXT.P4 TRUE COPY OF THE NOTIFICATION DTD. 15/5/2001 BEARING NO.20 ISSUED BY THE 4TH RESPONDENT. EXT.P5 TRUE COPY OF THE MEMORANDUM DTD. 6/1/2007. EXT.P6 TRUE COPY OF THE LETTER NO.D2(F)/595/96 DTD. 5/9/2000 ISSUED BY THE SPL. GOVT. PLEADER TO THE DFO, KANNUR. EXT.P7 TRUE COPY OF THE COMPLAINT DTD. 24/8/02 SUBMITTED BY THE PETITIONER TO THE S.I. OF POLICE, ALAKKODE. EXT.P8 TRUE COPY OF THE COMPLAINT DTD. 26/8/02 SUBMITTED BY THE PETITIONER TO THE DFO, KOZHIKODE. EXT.P9 TRUE COPY OF THE NOTIC DTD. 9/9/2002 ISSUED BY THE FOREST OFFICER, TALIPARAMBA TO THE PETITIONR. RESPONDENTS' EXTS: ANNEXURE-I TRUE COPY OF HE JUDGMENT OF THE DIVISION BENCH IN OP.7993/01. ANNEXURE-II TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.11512/2009. ANNEXURE-III TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.31582/08. ANNEXURE-IV TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.32362/08. “C.R.” HARUN-UL-RASHID,J. --------------------------- W.P.(C).NOS.7105 OF 2007, 26694 OF 2008 AND 31146 OF 2006 --------------------------- DATED THIS THE 16th DAY OF OCTOBER, 2009 JUDGMENT Writ Petition Nos. 7105/07, 26694/08 and 31146/06 are connected cases filed by the same peitioner. W.P.(C). No.7105 is filed challenging the notification published on 15/5/2001 marked as Ext.P4. W.P.(C).No.26694/08 is filed challenging Ext.P7 notice and Ext.P8 erratum notification published on 29/1/2008. W.P.(C).No.7105/07 is filed for a declaration that Ext.P4 notification issued by the 4th respondent declaring the land belonging to the petitioner in Resurvey No.292/1A in Vellad Village of Kannur Forest Division, Taliparamba Taluk, Kannur District as vested in the Government under Section 3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act 2003 as arbitrary, illegal and therefore unconstitutional and quash the same by the -2- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 issuance of a writ of certiorari. W.P.(C).No.26694/08 is a continuation of W.P.(C).No.7105/2007. The extent of land notified in Ext.P4 notification in W.P.(C).No.7105/07 is 24.28 hectares in R.S.No.292/1A. An erratum notification was published by the Government marked as Ext.P8 in W.P.(C).No.26694/08 wherein the extent of land is seen corrected as 35.1072 hectares and also corrected the boundary description. In both these writ petitions the first prayer is to declare Section 3(1) and Section 8(2) of the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003 (hereinafter referred to as 'the Act') as arbitrary, illegal and therefore unconstitutional and quash the same by the issuance of a writ of certiorari. 2. Several other connected writ petitions filed by other property owners challenging the constitutionality of the Act are pending. Learned counsel for the petitioner submitted that in view of the prayers of the petitioner in W.P.(C).No.31146/06, the constitutionality of the Act need not be considered in these writ -3- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 petitions for the reason that several writ petitions challenging the virus of the Act are pending. Therefore, these writ petitions may be decided on merits. The petitioner also sought for permission of this Court to reserve the challenge against the constitutionality of the Act in appropriate proceedings. Since the connected case (W.P.(C). No.31146/06) requires urgent consideration, the permission sought for is granted. 3. The main prayers in W.P.(C).No.31146/2006 are for the issuance of a writ of mandamus directing the 3rd respondent Tahsildar, Taliparamba to lift the revenue recovery attachment over the property comprised in Resurvey No.53/1A of Alakkode Village and Resurvey No.292/1A of Vellad Village, Taliparaba and to limit the attachment to a small portion of the above property which is sufficient for realisation of the balance amount allegedly due to the Government by demarcating the boundaries, for a further direction to the Sub Registrar, Alakkode to issue non-encumbrance certificate enabling the petitioner to dispose of the property in the said resurvey -4- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 numbers by creating charge over the small portion of land and by demarcating the boundaries and for a direction to the 4th respondent Village Officer to receive the basic tax for the land in the resurvey numbers referred above. 4. These writ petitions have a chequered career. Petitioner is the daughter and the legal heir of late P.R. Rama Varma Raja of Alakkode. Petitioners' father own and held vast extent of land. Out of the land in possession of the petitioner's father, the Forest Department claimed a sizable extent as vested forest, which led to a litigation for several years. In the ceiling proceedings initiated against Rama Varma Raja, the Land Board, Kerala, by its proceedings dated 22/11/1973 ordered that the assessee shall surrender 1232.26 acres as excess land. Under the head 'details of land to be surrendered' 5 items of property were shown including 132.50 acres in R.S.No.53/1A and 945.76 acres in R.S.No.292/1A. Ext.P1 is the proceedings of the Land Board referred above. Form No.5 attached to Ext.P1 which is the extracted order, shows that the -5- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 total extent of land owned, held and possessed by the assessee is 2776.76 acres, the total extent of land exempted under Section 81 is 1530.00 acres, ceiling area applicable to the assessee is 14.50 acres and the extent of land to be surrendered is 1232.26 acres. 5. The Government by notification issued under Section 3 (1) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (For short 'the Vesting Act') notified that an extent of 348 acres in R.S.No.292/1A in Naduvil Village in Taliparamba Taluk belonging to Rama Varma Raja with effect from the appointed day, the ownership and possession shall stand transferred to and vested in the Government free from all encumbrances and that the right, title and interest of the owner or any other person, if any, shall stand extinguished. Sri Rama Varma Raja thereupon filed O.A.No.90/79 claiming exemption from vesting under the Vesting Act. The applicant claimed that the land in R.S.No.292/1A in Naduvil Village is a cardamom plantation before the appointed day in 1971 that the Forest Authorities are proceeding as if the entire land had vested in -6- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 the State under the Vesting Act and prayed that the application schedule land shall liable to be declared as not having vested in the State as per the Vesting Act. The said application was resisted by the State and the Forest Authorities contended that the application schedule land was part of Koliat Estate consisting of about 700 acres and that the substantial part of the estate fell within the State of Karnataka when the reorganisation of States took place with effect from 1/11/1956. According to the applicant, the area that fell within the State of Kerala is 348 acres and the whole of it had been planted with cardamom prior to the appointed day and it was on that basis that the application was filed under Section 8 of the Vesting Act. The original application was dismissed by the Forest Tribunal on the ground that it was barred by limitation, finding that the vesting having taken place on 10/5/1971. The dismissal order was set aside by this Court and remanded the application for fresh disposal on merits in accordance with law. Subsequent to the remand, by order dated 22/3/1990 the Tribunal again dismissed the application finding -7- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 that the land was not put under cultivation prior to the appointed day and that it was a forest to which The Madras Preservation of Private Forests Act applied and therefore it is a forest in terms of the Vesting Act and it had vested in the State under the said Act. The applicant again challenged the order before this Court in M.F.A.No.658/1990. This Court took the view that what was called for was a proper identification of the land which had been planted with cardamom prior to the appointed day, since it would be seen from the pleadings that some portion of the land was cultivated with cardamom even going by the objections filed by the State and the Forest Officials before the Tribunal. This Court directed the Forest Tribunal to issue a fresh commission to identify the property with particular reference to the portions, if any, in which cardamom was planted prior to the appointed day and to dispose of the application afresh. 6. The Tribunal appointed a Commissioner and the Commissioner reported that an extent of 100.05 acres was found to -8- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 be planted with cardamom, the planting having been done about 25 years prior to the date of his visit. The Commissioner also identified two structures and a platform existing in the property and reported that rest of the property is seen to be forest, since it had forest tree growth. The Forest Tribunal also made a local inspection with notice to both sides and prepared a note of inspection and gave copies of the same to both sides. After hearing the parties, the Tribunal passed a final order finding that an extent of 100.05 acres demarcated as plots A, B and C in the sketch prepared by the Commissioner could be held to be planted with cardamom prior to the appointed day and hence excluded from vesting in the State under the Vesting Act. Taking note of the two constructions existing in the property along with the platform which was said to be used for drying cardamom, the Tribunal held that the applicant is entitled to exclusion of an extent of 9.95 acres of land for that purpose. Thus, the Forest Tribunal passed an order holding that 110 acres of land is liable to be excluded from vesting under the Vesting -9- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 Act and granted relief to the applicant on that basis. The Tribunal identified 110 acres as plots A, B and C as shown in Ext.C3 plan and described in Ext.C4 report. The Tribunal also ordered that Exts.C3 plan and C4 report shall form part of its order. 7. The State of Kerala and the Forest Department challenged the order of the Tribunal dated 16/10/1995 before this Court in M.F.A.No.595/96 and by interim order dated 12/6/1996 in the said appeal this Court stayed the order of the Tribunal. Simultaneously, the applicant also challenged that portion of the order excluding the relief in respect of the balance extent and claimed that the entire extent of 348 acres ought to have exempted from vesting. This Court confirmed the order of the Tribunal. 8. The petitioner herein, who is the legal heir of the original applicant, challenged the order of the Tribunal confirmed in appeal in Civil Appeal Nos.3371/06 and 3372/06. Ext.P2 is the judgment passed by the Apex Court. The State also filed an appeal challenging the grant of exemption of 110 acres. The Supreme Court -10- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 held that there is no justification in interfering with the decision of the Tribunal as confirmed by the High Court and that the property exempted had been clearly identified by the Commissioner in the plan which had been appended to the order of the Forest Tribunal and therefore the identity of the exempted lands is also clear and there is no occasion for attempting any further identification at any later stage. The Apex Court confirmed the decision of the High Court and dismissed the appeals filed by the aggrieved parties. Before the Supreme Court the State contended that cardamom plants noticed in plots A, B and C were not planted prior to the appointed day, but they were of sporadic growth and the Forest Tribunal was not justified in excluding or exempting that extent from vesting. The State also challenged the exclusion of 9.95 acres on the ground that the land was not used for ancillary purposes. Both contentions are repelled by the Supreme Court finding that the Commissioner identified the plantation and confined to plots A, B and C in Ext.C3 plan, where he gave reasons which led him to infer that the -11- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 plantations found in those plots were plantations effected and could not be considered sporadic growth as sought to be contended by the Forest Authorities. The Apex Court also taken note of the fact that the rest of the area was full of forest tree growth. After attaining the finality of the litigations between the petitioner and the State of Kerala, the petitioner approached the Village Officer, Vellad to remit land tax in respect of the exempted 110.05acres; but the Village Officer declined to accept the land tax. According to the petitioner, it is nothing but dereliction of duty on the part of the Tahsildar and the Village Officer not to receive the basis tax in respect of the property which was declared as not private forest. Therefore, she approached the District Collector and the District Collector called for the report from the Divisional Forest Officer, Kannur on 13/9/2005 vide Ref.No.13A 13064/90 dated 13/9/2005 . The Divisional Forest Officer vide communication reference No.13A 13064/90 dated 13/9/2005 informed the District Collector that SLP Nos.3341 and 3342/2005 are pending before the Supreme Court, -12- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 that 24.28 hectares of the disputed property was already notified under Section 3 of the Act vide PCCFSS 0621437/00 dated 21/4/2001 and published in the Kerala Gazette No.l46 dated 15/5/2001 and hence the application from the petitioner for accepting basic tax for the disputed property in the above case is liable to be rejected. 9. While the appeal under the Kerala Private Forest (Vesting and Assignment) Act was pending in this Court, Kerala Forest (Vesting and Management of Ecologically Fragile Land) Ordinance was issued in 2001. Later the Fragile Land Act, 2003 was enacted. With effect from the date of commencement of the Act, the ownership and possession of an ecologically fragile land held by any person shall stand transferred to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date. 10. Section 2(c) of the Act defines “Forest”. The word -13- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 'Forest' under Section 2(c) of the Act does not include any land which is principally used 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. 11. Section 2(b) defines “ecologically fragile lands”. “Ecologically fragile lands” means any forest land or any portion thereof held by any person and lying contiguous to and encircled by a reserved forest or a vested forest or any other forest land owned by the Government and predominantly support natural vegetation and any land declared to be an ecologically fragile land by the Government by notification in the Gazette under Section 4. 12. Ext.P4 is the notification published on 15th May, 2001. The ordinance promulgated by the Government of Kerala came into effect from 2/6/2000. Ext.P4 notification contains the details and items of properties. Item No.88 in Ext.P4 notification relates to 24.28 hectares of land comprised in R.S.No.292/1A of -14- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 Vellad Village which is the subject mater of the extent involved in the case pending before the Forest Tribunal. 13. The Government published an erratum notification produced as Ext.P8 in W.P.(C).No.26694/08, in the gazette dated 29th January, 2008 amending Ext.P4 notification with regard to the details of the petitioner's property, which was dealt with in Ext.P4 notification under Sl.No.88. As per Ext.P8 notification amendment was made with respect to the extent of property and the boundaries. The extent was amended as 35.1072 hectares in R.S.No.292/1A. The amendment was also made to the boundaries also. Exts.P4 and P8 notifications are under challenge in the respective writ petitions. 14. It is important to note that Ext.P4 notification was issued at a time when the appeal filed against the Tribunal's order was pending before this Court. The Tribunal passed final order on 16/10/1995. Ext.P4 notification was issued invoking Section 3 of the ordinance No. 8 of 2000. The O.A. was finally disposed of in 1995 by the Tribunal holding that an extent of 110.05 acres out of -15- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 the total extent of 348 acres in R.S. No.292/1A was found and declared as a cardamom estate not being vested forests. The final order of the Forest Tribunal was challenged by the State and the petitioner in two separate appeals. The appeal as M.F.A.No.595/96 was filed by the petitioner challenging the non-declaration of the entire land of 348 acres as not vested forest and the State Appeal (M.F.A.No.177/97) was filed against the declaration of 110.05 acres as not vested forest. This Court confirmed the final order passed by the Forest Tribunal. Finally, the matter was agitated before the Apex Court and the Apex Court as stated supra, confirmed the judgment passed by this Court in the above said appeals. The said facts are repeated only to state that the State of Kerala firmly pleaded and contested the litigations contending that the entire 348 acres of land is private forest vested in the Government under the provisions of the Vesting Act, 1971. At a time when such contentions are taken up and are pending finality in O.A.No.11/95, Ext.P4 notification was published. -16- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 15. The Vesting Act, 1971 came into force with effect from 10/5/1971. As per the notification issued under the said Act, the entire 348 acres in R.S.No.292/1A stand vested in the Government free from all encumbrances. The Government treated the entire extent of 348 acres as private forest vested in the Government. The matter was finally decided by the Apex Court by judgment dated August 4, 2006. In spite of the fact that the Forest Tribunal declared 110 acres of land in R.S.No.292/1A as cardamom plantation, which was confirmed by this Court and the Apex Court, the Government issued Ext.P4 notification in the year 2001 notifying the very same property under the Act. At the time when Ext.P4 notification is issued the Government is fully aware that 110.05 acres of land is declared as cardamom plantation and is an exempted land under the provisions of the Vesting Act, 1971. In the definition clause of the present Act the area covered by plantations such as tea, coffee, rubber, pepper, cardamom, coconut etc. is exempted. I have referred to Sections 2(b) and 2(c) which define “Ecologically Fragile -17- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 Lands” and “Forest”. Plantations are exempted from the other Acts, namely, Kerala Land Reforms Act, 1964 and the Kerala Private Forest (Vesting and Assignment) Act, 1971. In the present Act also Section 2(c) excludes plantations. For invoking section 3(1) of the present Act it is necessary that the land should be forest land and not plantation, which is exempted under Section 2(c) of the present Act. The Apex Court in Ext.P2 judgment held as follows: “Thus, on the whole, we are not satisfied that there is any justification in interfering with the decision of the Forest Tribunal, as confirmed by the High Court. The property exempted had been clearly identified by the commissioner in the plan which had been appended to the order of the Forest Tribunal and the extent of the plots had been specifically given. It is, therefore, seen that the identity of the excluded lands is also clear and there is no occasion for attempting any further identification at any later stage. The order now passed thus suffers from no infirmity and there could be no dispute about the area excluded or exempted. Hence, no interference is called for on that ground also.” 16. Under Section 3(1) of the Act all ecologically fragile lands shall stand vested in the Government. Section 4 of the Act -18- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 empowers the Government to declare by notification in the Gazette, any land to be ecologically fragile land on the recommendation of the Advisory Committee appointed for the purpose under Section 15 of the Act. The word used in Section 4 is to declare any land to be ecologically fragile land on the recommendation of the Advisory Committee. Under Section 3, the Government can notify only ecologically fragile land as defined under Section 2(b) of the Act. A combined reading of the definition of “forest” under Section 2(c) and the definition of “ecologically fragile lands” under Section 2(b) makes the position clear that only forest as defined under Section 2 (c) alone could be notified by the Government under Section 3 as ecologically fragile land. But under Section 4, the Government can declare by notification in the Gazette, any land as ecologically fragile land. Under sub-section 4 of Section 4 any land declared as ecologically fragile land under sub-section (1), the ownership and possession of the land shall stand transferred to and vested in the Government free from all encumbrance and the right, title and -19- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 interest of the owner or any other person thereon shall stand extinguished from the said date. In order to declare any land as ecologically fragile land other than the forest land as defined under Section 2(b) and 2(c) of the Act, the Government shall form an Advisory Committee under Section 15 of the Act and under Section 15(3), the Committee shall identify the lands which are ecologically fragile and shall recommended to the Government for the declaration of such lands under Section 4 as ecologically fragile. Sub-section 4 of Section 15 mandates that the committee shall take into consideration the factors mentioned in sub-section (i) to (vi), which are the parameters prescribed to declare any land as ecologically fragile land and the committee had to make specific findings on the ecological sensitivity and significance of such land before making its recommendation to the Government under sub- section (3). With effect from the date of declaration under Section 4 (1) any land declared as ecologically fragile land shall stand transferred to and vested in the Government free from all -20- W.P.(C).Nos.7105/07, 26694/08 & 31146/06 encumbrance and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date by virtue of sub section (4) of Section 4. The owner of the land, which was vested under sub section (4) of Section 4 shall be eligible for compensation for the said land including permanent improvements thereon by virtue of section 8(1) of the present Act. Section 8(2) mandates that no compensation shall be payable for the vesting in the Government of any ecologically fragile land or for the extinguishment of the right, title and interest of the owner or any person thereon under sub section (1) of Section 3. The aforesaid provisions would indicate that the lands excluded from the purview of Section 2(b) and Section 2(c) of the Act can also be declared as ecologically fragile land under Section 4, if the requirement under Section 15(4) is satisfied, such lands also could be declared as ecologically fragile land; but subject to further condition of payment of compensation. The nature and status of 110.05 acres of land in R.S.No.292/1A as a cardamom plantation