IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 WP(C).No. 5050 of 2007(A) ------------------------- PETITIONER: ------------ 1. T.R.RADHAKRISHNAN IRS, COMMISSIONER OF CUSTOMS AND EXCISE (RETD), RESIDING AT 49/10, 8TH CROSS ROAD, SREERAM AVENUE, VADAVALLI, COIMBATOR 641 041. REP.BY POWER OF ATTORNEY HOLDER T.R.MOHANDAS, 2ND PETITIONER HEREIN. 2. T.R.MOHANDAS, S/O.T.K.RAMACHANDRAN, 39/1.7TH CROSS ROAD, SRIRAM AVENUE, VADAVALLI, COIMBAORE. 3. T.R.RAJESHWARY, W/O.S.MOHAN, A3, GAYATHRI APARTMENTS, 56, WARRAN ROAD, MYLAPORE, CHENNAI REPRESENTED BY HER POWER OF ATTORNEY HOLDER T.R.MOHANDAS, 2ND PETITIONER HEREIN. BY ADV. SRI.SANTHAN V.NAIR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY (FOREST & WILD LIFE), GOVT. OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. CUSTODIAN(ECOLOGICALLY FRAGILE LAND) AND CHIEF CONSERVATOR OF FOREST (E & TW) OFFICE OF THE CHIEF CONSERVATOR OF FOREST & CUSTODIAN (ECOLOGICALLY FRAGILE LAND), FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM. 3. CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, OLAVAKKODE, PALGHAT DISTRICT. BY GOVERNMENT PLEADER SRI. ANILKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 COPY OF POWER OF ATTORNEY. EXT.P2 THE HEIRSHIP CERTIFICATE NO. CA NO. 5728/2001.A-4 DATED 10.4.2001 ISSUED BY THE TAHSILDAR, TALUK OFFICE, COIMBATORE SOUTH EXT.P3 A ROUGH SKETCH OF THE EXACT NATURE AND LIE OF THE PROPERTY EXT.P4 TRUE COPY OF THE JUDGMENT IN OP 20814 OF 2001 DATED 26.7.2001 EXT.P5 TRUE COPY OF THE JUDGMENT IN MFA NO. 338 OF 2003 DATED 3.8.2005 EXT.P6 PHOTOSTAT COPY OF THE ORDER IN CMP 1692 OF 2003 IN MFA 338 OF 2003 DATED 3.8.2005 EXT.P7 TRUE COPY OF THE NOTICE NO. 02-O.A. 412/1976 DATED 23.12.2006 ISSUED BY THE THIRD RESPONDENT. EXT.P8 TRUE COPY OF THE RELEVANT PAGE OF GAZETTE NOTIFICATION DATED 11.9.2006 NO. ESL 6-121/2006 PUBLISHED BY THE 2ND RESPONDENT. EXT.P9 TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 2ND RESPONDENT DATED 16.11.2006 EXT.P10 TRUE COPY OF THE LETTER NO. EFL 6-631/2006 DATED 16.1.2007 EXT.P11 TRUE COPY OF THE JUDGMENT IN OA 412 OF 1976 DATED 27.3.1987 OF THE FOREST TRIBUNAL, PALAKKAD. EXT.P12 TRUE COPY OF THE ORDER IN O.A.NO. 412 OF 1976 DATED 19.3.1998 ALLOWING THE APPLICATION FOR CORRECTION AND DIRECTING THE RESPONDENTS TO RESTORE THE PROPERTY. EXT.P13 PHOTOGRAPHS, WHICH SHOW THE TRUE NATURE OF THE PROPERTY, DECLARED AS ECOLOGICALLY FRAGILE LAND. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).No. 5050 OF 2007-A = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of February, 2007. O R D E R The learned Government Pleader takes notice for the respondents. 2. The petitioners, following the order in O.A.No.412/1976, were entitled to enjoy the land covered therein as free from the provisions of the Kerala Private Forests (Vesting and Assignment) Act. Thereafter, the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (Act 21 of 2005) (hereinafter referred to as the “Act”) came into force with effect from the 2nd day of June, 2000. By virtue of the Act, the petitioners are threatened with dispossession on account of the statutory fictional vesting under Section 3(1) of the Act. Against the same, they moved WP(C)5050/07 -: 2 :- the Custodian of Forests on the basis that sub-section (3)(b) of Section 19 of the Act provides them a remedy to have the notification scrutinized for revision. That has been rejected by the Custodian on the ground that there is no power to do so. 3. The petitioners are persons, who could be facing proceedings for eviction under Section 7 of the Act. In terms of the Act, they are entitled to settlement of disputes by the Tribunal. Such disputes could be disputes as to whether the land in question is an ecologically fragile land or not; whether any ecologically fragile land or portion thereof has vested in the Government and also on the question of compensation to be determined under Section 8 and a sufficiency thereof, which questions may arise only on proceedings under Section 4 and not under Section 3. Clause (c) of sub-section (1) of Section 10 of the Act provides that if any dispute arises as aforesaid, an application to the Tribunal for settlement of such dispute can be made within a period of five years from the date of commencement of the Act or within six months from the date of the notification under sub-section (1) of Section 4 or the date of communication of compensation under Section 8, WP(C)5050/07 -: 3 :- as the case may be, or within such time as the Government may notify in this behalf. The Tribunal is to be constituted in terms of Section 9 of the Act, which requires the Government to constitute one or more Tribunals for the purpose of the Act by notification in the gazette. The Tribunal shall be a judicial officer not below the rank of a District Judge. There is also provision to have more than one Tribunal. The time limit prescribed under Section 10(1)(c) and the constitution of the Tribunals would show that the Government has the statutory duty to notify the Tribunal because, the right to move for settlement of disputes is time bound with reference to the date of the commencement of the Act, at least, as far as the matters referable to Section 3 are concerned. The provision “or within such time as the Government may notify in this behalf” is relevant only because the statute, which is deemed to have come into force on 2nd June, 2000, was published on 8th June, 2005 and therefore, any overlapping of the time frame by the delay in notifying the Act will not work against the interest of the persons seeking settlement of disputes. But, this is no reason for the Government to keep away from its statutory and public duty to have the Tribunal notified. Under such WP(C)5050/07 -: 4 :- circumstances, it is the immediate necessity that the Tribunal in terms of Section 9 of the Act is constituted, at any rate, within a period of three months from the date of receipt of a copy of this order. 4. Having regard to the quality of jurisdiction and the statutory eligibilities of the persons liable to be evicted and the quality of office upon the constitution of Tribunal, it would have been open to the petitioners to move the Tribunal for interlocutory reliefs pending settlement of disputes, has the Tribunal been constituted. Under such circumstances, it is directed that the property referred to in the interim relief will remain with the petitioners on condition that the legal or fiscal status or ownership of the land shall not be changed. The petitioners shall also not change the nature and lie of the property and shall not put the property to any use other than for which it is now being used. The petitioners will be entitled to carry out the day-to-day agricultural operations in relation to the property. The third respondent will ensure that the conditions imposed on the petitioners as per this order are supervised. WP(C)5050/07 -: 5 :- Hand over copy of this order to the learned counsel for the petitioners and the learned Government Pleader. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/-