IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 WP(C).No. 34233 of 2010(D) -------------------------- PETITIONER(S): --------------- 1. E.M.UMADEVI, W/O.E.M.KRISHNAN NAMBOODIRIPAD(LATE), EDAMANA MANA, P.O.PUNCHAPADOM, VIA. KADAMPUZHIPURAM, PALAKKAD DISTRICT. 2. E.M.PARAMESWARAN, S/O.E.M.KRISHNAN NAMBOODIRIPAD(LATE), EDAMANA MANA, P.O.PUNCHAPADOM, VIA. KADAMPUZHIPURAM, PALAKKAD DISTRICT. 3. E.M.JYOTSNA, D/O.E.M.KRISHNAN NAMBOODIRIPAD(LATE), EDAMANA MANA, P.O.PUNCHAPADOM, VIA. KADAMPUZHIPURAM, PALAKKAD DISTRICT. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. CHIEF CONSERVATOR OF FORESTS, FOREST HEADQUARTERS, VAZHUTHAKKAD, THIRUVANANTHAPURAM-695014. 3. CONSERVATOR OF FORESTS, EASTERN CIRCLE, OLAVAKKODE, PALAKKAD-2. 4. DIVISIONAL FOREST OFFICER, OFFICE OF THE DIVISIONAL FOREST OFFICE, KALLEKKULANGARA P.O., PALAKKAD-678 009. GOVERNMENT PLEADER SRI.P.M.PAULOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34233 of 2010 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE ORDER OF THE FOREST TRIBUNAL PALAKKAD IN O.A.306/1975 DATED 29.5.87 EXT.P2- TRUE COPY OF THE JUDGMENT IN O.P.12077/2001 DATED 6.6.05 EXT.P3- TRUE COPY OF THE NOTIFICATION DATED 12.7.2001 PUBLISHED IN KERALA GAZETTE DATED 11.9.2001 EXT.P4- TRUE COPY OF THE COMMUNICATION DATED 13.8.05 FROM THE 3RD RESPONDENT EXT.P5- TRUE COPY OF THE JUDGMENT DATED 4.7.08 IN W.P.(C).4726/2006 EXT.P6- TRUE COPY OF THE ORDER DATED 24.10.2008 IN I.A.12763/2008 IN W.P.(C).4726/2006 EXT.P7- TRUE COPY OF THE REPRESENTATION DATED 24.7.2008 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT EXT.P8- TRUE COPY OF THE ORDER NO,EFL.6-332/06 DATED 29.12.08 OF THE 2ND RESPONDENT EXT.P9- TRUE COPY OF THE COMMUNICATION DATED 17.4.2009 FROM THE 2ND RESPONDENT TO THE 3RD RESPONDENT EXT.P10- TRUE COPY OF THE REPRESENTATION DATED 16.6.2009 FROM THE PETITIONERS TO THE 2ND RESPONDENT EXT.P11- TRUE COPY OF THE COMMUNICATION FROM THE 3RD RESPONDENT TO THE PETITIONERS DATED 7.9.09 EXT.P12- TRUE COPY OF THE INDEMNITY BOND DATED 23.9.09 SUBMITTED BY THE PETITIONERS EXT.P13- TRUE COPY OF THE LEGAL NOTICE DATED 11.10.09 SENT TO THE 3RD RESPONDENT EXT.P14- TRUE COPY OF THE CERTIFICATE T-1385/2006(OA-306/75) DATED 19.10.10 ISSUED BY THE 4TH RESPONDENT EXT.P15- TRUE COPY OF THE JUDGMENT DATED 20.10.10 IN CONT.CASE © NO.848/2010 EXT.P16- TRUE COPY OF THE JUDGMENT DATED 31.3.06 IN O.P.3252/2003 EXT.P17- TRUE COPY OF THE JUDGMENT DATED 19.1.07 IN O.P.5338/94 EXT.P18- TRUE COPY OF THE JUDGMENT DATED 31.3.2006 IN O.P.16323/1998 EXT.P19- TRUE COPY OF THE ORDER DATED 13.7.09 IN CIVIL APPEAL NO.4304 OF 2009 OF THE HONOURABLE SUPREME COURT (True copy) P.A.To Judge ANTONY DOMINIC, J ............................................... W.P.(C).34233/2010 .............................................. Dated this the 22nd day of August, 2011 JUDGMENT The main prayer sought in the writ petition is to quash Ext.P14 to the extent restrictions are placed in the user of the property mentioned therein. Consequential reliefs are also sought for. 2. Briefly stated the facts of the case are that the petitioners are the legal heirs of late Sri.E.M.Krishnan Namboodiripad. The deceased and his father were the owners of 7.9. acres of land in Sy.No.2/6 in Kattukulam Amsom, Mangalamkunnu Desom, Sree Krishna Puram-II Village, Ottapalam Taluk. On the implementation of the Kerala Private Forests (Vesting and Assignment) Act, 1971, [Act 26 of 1971] the aforesaid property was treated as a vested forest. There upon, the deceased along with his father, filed O.A.306/75 under Section 8 of the Act before the Forest Tribunal, Palakkad. The Forest Tribunal passed order dated 31.1.1977 allowing the application giving the applicants benefit of Section 3 (2) of the Act and exempting land from vesting. W.P.(C).34233/11 2 3. The applicants thereafter filed a review petition as I.A.355/85 and requested the Tribunal to enter findings on their claim that the property is not a private forest. Accordingly, the matter was re-opened and Ext.P1 order dated 29.5.1987 was rendered by the Tribunal. Answering the point whether the scheduled property is a private forest, the Tribunal positively held that “in such circumstances I hold that the property is not a private forest”. Proceeding further, the issue as to whether the applicants were entitled to the benefit of Section 3(2) or 3(3) was also considered and the Tribunal found that the applicants were entitled to get the property released under Section 3(3) of the Act also. The Tribunal further directed that the applicants shall not cut the teak trees standing in the property without prior permission of the Divisional Forest Officer as required by the Rules. 4. However, the land was not restored and therefore the deceased Krishnan Namboodiripad filed O.P.12077/2001 before this Court and that O.P was disposed of by Ext.P2 judgment dated 6.6.2005 directing that if no steps have been taken under the Kerala Forest (Vesting & Management of Ecologically Fragile W.P.(C).34233/11 3 Lands) Ordinance or subsequent Act, the land shall be restored to the deceased within a period of two months. Subsequently by Ext.P4 order dated 13.8.2005, Sri.Krishnan Namboodiripad was informed that the land cannot be restored to him and the reason stated therein reads as under:- “I am to inform you that the area involved in O.A.306/75 was notified under Section 3(1) of the Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Ordinance 2001 and published in Kerala Gazette No.43 dated 11.9.01. Notwithstanding the expiry of the above Ordinance, the Ecologically Fragile Lands vested in the Government under the said Ordinance shall be deemed to have been vested under the section 19(1) (a) of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 [Act 21/2005]. The property claimed by you in your representation stands vested in Government as Ecologically Fragile Land by virtue of provisions in the ordinance and subsequently by the Act 21 of 2005. In the light of the above facts, the area claimed by you cannot be restored to you.” W.P.(C).34233/11 4 5. Challenging Ext.P4 order, W.P.(C).4726/2006 was filed before this Court. During the pendency of that writ petition, Sri.Krishnan Namboodiripad expired and the second petitioner herein got himself impleaded as the legal representative. The writ petition was disposed of by Ext.P5 judgment directing that the petitioner will make an application under Section 19 of the EFL Act and that there upon, Custodian of Vested Forests will consider the application in the light of the directions in the judgment. 6. Accordingly, the petitioner filed application and finally custodian passed Ext.P8 order, holding that the land is not ecologically fragile land and that the same is outside the purview of the Act and the Rules. The relevant portion of Ext.P8 order reads as under. “Having thus convinced that the area is not coming under the purview of Section 3(1) of the Ecologically Fragile Lands Act since it is not lying contiguous or encircled by forest the Custodian, EFL has accepted the inspection report of the W.P.(C).34233/11 5 Committee and recommendation of Conservation of Forests, Eastern Circle to remove the land from the notification read as 1st paper above. Therefore, it is decided to issue a revised notification as per Section 19(3)(b) of Ecologically Fragile Lands Act read with Rule 20 of the Kerala Forest (Vesting and Management Ecologically Fragile Lands) Rules, 2007. In the above circumstances, I K.P.Ouseph Custodian of Ecologically Fragile Lands hereby order to remove the land having an extend of 3.2011 hectares in Survey number 2/6 in Sreekrishnapuram Village, Mangalamkunnu Desom, Nilavilikunnu locality in Palakkad District, Ottappalam Taluk under Palakkad Forest Division, Ottappalam Forest Range notified as Ecologically Fragile Land from Notification No.C6-21437/2000 dated 12.7.2001 and published in Kerala Gazette No.36 dated 11.9.2001 under serial no.43 from the said notification and to issue a revised notification as stipulated in Section 19(3) (b) of Ecologically Fragile Lands Act read with Rule 20 of the Kerala Forest (Vesting and Management Ecologically Fragile Lands) Rules, 2007.” 7. Even thereafter, petitioner pursued his claim for restoration W.P.(C).34233/11 6 of land and finally Ext.P14 order dated 19.10.2010 was issued, imposing restriction on cutting the trees and on the user of the land. The relevant portion of Ext.P14 reads as under:- Government vide order above have stipulated that the applicants are restricted from cutting all trees on the eastern side of the property. Any diversion of such land for non-forestry purpose will require prior permission of the Central Government irrespective of the ownership of the land in question. Further such lands will be managed under the provisions of the Working Plan/Working Schemes approved by the Government of India as well as rules made by State for the purpose of protecting the land under the broad concept of forest. A draft section 5 notification has been submitted by the Chief Conservator of Forest, Northern Region, Kozhikode to the Government and is pending with the Government.” It is challenging Ext.P14 to the extent the aforesaid restriction is imposed, the writ petition is filed. W.P.(C).34233/11 7 8. According to the learned counsel for the petitioners, the land is neither a Vested Forest nor an Ecologically Fragile land nor is it one to which the provisions of the Forest (Conservation) Act, 1980 or the Preservation of Trees Act is applicable. In such a situation, according to the learned counsel for the petitioners, restrictions imposed by Ext.P14 are illegal. 9. A statement has been filed on behalf of the fourth respondent, the Divisional Forest Officer. His justification is that in terms of Ext.P1 order passed by the Forest Tribunal, respondents were required only to release the land to the petitioners with a rider that they shall not cut teak trees without prior permission of the Divisional Forest Officer as per the Rules. In so far as the restriction imposed in Ext.P14 is concerned, it is stated in paragraph 5 of the statement thus:- “As such the Govt. vide letter no.2359/E2/2010/F&WLD dated 8.10.2010 have ordered the restoration of the above OA area to OA applicants subject to the compliance of direction (1) to restrict the OA applicants against W.P.(C).34233/11 8 cutting all trees on the eastern side of the property (2) diversion of such land for non forestry purpose will require prior permission of the Central Government irrespective of ownership of the land in question. Accordingly the land in question has been restored possession to ex owners on 19.10.2010 and certificate to that effect issue as per T.1385/2006 (OA 306/75) dated 19.10.2010 by the Divisional Forest Officer, Palakkad. Since a draft section 5 notification of KPT Act 1986 is pending with the Government, the matter has been mentioned in the certificate issued by the Divisional Forest Officer, Palakkad on 19.10.2010, which is Ext.P14.” 10. Proceeding further it is also stated that in the above property a large number of trees, clear felling the area will adversely affect the micro water shed of the locality. 11. I have considered the submissions made by both sides. 12. During the course of hearing, the learned Government Pleader argued that in Ext.P1 order, the Forest Tribunal gave the W.P.(C).34233/11 9 applicant the benefit of Section 3(3) of Act 26 of 1971. According to him, what is exempted from vesting under Section 3(3) of the Act, is private forest under personal cultivation and therefore, any land exempted from vesting under Section 3(3) is always remain as Vested Forest and that such Vested Forest will always carry restrictions on its user. However, I am unable to accept this contention of the learned Government Pleader. While making his submission, the learned Government Pleader is forgetting the findings of the Forest Tribunal contained in point No.1 formulated in Ext.P1 order which is whether the petition schedule property is a private forest or not. Answering this point, the Forest Tribunal entered a categoric finding that the property is not a private forest. Thus, in the light of said finding which has become final, the petitioner is entitled to enjoy the land, which is not a private forest. If that be so, restrictions contained in Ext.P14 cannot be upheld. 13. Now coming to restrictions imposed in Ext.P14 on the ground that a notification under the Preservation of Trees Act, is proposed to be issued, it is the specific case of the petitioner that even as W.P.(C).34233/11 10 on date, notification has not been issued and the respondents also have no case to the contrary. It has already been held by a Division Bench of this Court in the judgment in The Managing Trustee, Arya Vaidya Sala v. State of Kerala (2006 (2) KLJ 438), that once Forest Tribunal has held that the land in question is not a Private Forest within the meaning of Act 26 of 1971 and that the same is not liable to be vested, unless the land is situated in the Cardomam Hills Reserve or cultivated with cardomam, the provisions of Section 5 of the Preservation of Trees Act would not apply to such lands. Thus judgment of the Division Bench was confirmed by the Apex Court by dismissing SLP (C).No.250/09, by its order dated 13.7.2009 a copy of which is Ext.P19. In my view, the law thus laid down by the Division Bench in Ext.P19 is a complete answer to the contention regarding the applicability of the provisions of the Preservation of Trees Act. 14. Then what remains is the restriction under the Forest Conservation Act which are sought to be introduced in the impugned order. From the preamble of the Forest (Conservation Act), 1980, itself it is obvious that the Act is intended to provide for W.P.(C).34233/11 11 the conservation of forests and for matters connected therewith. In this case, the Tribunal itself has held in Ext.P1 that the land in question is not a private forest and therefore, these restrictions are also unsustainable. For the aforesaid reasons, the writ petition has to succeed. Therefore, I allow the writ petition quashing Ext.P14 to the extent restrictions are imposed thereby. ANTONY DOMINIC, Judge mrcs