IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 WP(C).No. 33701 of 2009(G) ---------------------------------- PETITIONER: --------------- C.RAMACHANDRAN, S/O.C.NANIKUTTY AMMA, AGED 60 YEARS, CHADAYATH HOUSE, MANHALUR P.O, ALATHUR TALUK, PALAKKAD DISTRICT. BY MR.BABU JOSEPH KURUVATHAZHA, ADVOCATE MR.N.SHAMSUL HUDA, ADVOCATE RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST & WILD LIFE, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS AND PRINCIPAL CHIEF CONSERVATOR OF FORESTS (ADMN.) FOREST HEADQUARTERS, THIRUVANANTHAPURAM. 3. THE DIVISIONAL FOREST OFFICER, NENMARA, PALAKKAD DISTRICT. 4. THE FOREST RANGE OFFICER, ALATHUR RANGE, ALATHUR, PALAKKAD DISTRICT. BY MR. K. SANIL KUMAR, GOVERNMENT PLEADER (FOREST)FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.33701 OF 2009 --------------------------------------- Dated this the 21st day of January, 2010. J U D G M E N T The petitioner claims to be the son of late C.Nanikutty Amma who died on 24.12.1991 and who was in absolute possession, ownership and enjoyment of 3.67 acres of property comprised in Survey No.3H of Vemballur Amsom, Thenkurussy Village-II of Alathur Taluk in Palakkad District. The property was earlier notified as private forest under Section 3 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 which was challenged by the mother of the petitioner in O.A.No.478/1976. The O.A. was allowed in her favour as per Exhibit P1, which has become final. 2. It is the case of the petitioner that the property was in possession and enjoyment of the petitioner's late mother and the same continued so even after the pronouncement of Exhibit P1 order. The petitioner is now managing the properties as per the Power of Attorney executed by his brothers and sisters. W.P.(C) No.33701/2009 2 3. This writ petition is filed seeking for various reliefs including a direction commanding the respondents not to interfere with the regular agricultural operations in the estate of the petitioner. There is a further prayer to declare that Rule 3 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal Rules, 2007 to the extent it restrains the aggrieved persons from directly approaching the Tribunal constituted under Section 9 of Act 21 of 2005, is unconstitutional, illegal and void ab-initio. 4. Exhibit P3 is the notification issued by the Department under the said Act. It is contended by the petitioner that the properties of the petitioner are not covered by the said notification. It is in these circumstances, this writ petition has been filed on the alleged plea that the respondents are preventing the petitioner from exercising his right of enjoyment and to effect cultivation in the property. 5. In the counter affidavit filed by the 3rd respondent it is submitted that the petitioner has already moved the Custodian of Ecologically Fragile Lands as per Exhibit R3(a), which is pending W.P.(C) No.33701/2009 3 consideration. The EFL Committee has been directed to conduct an enquiry and file a report before the Custodian. Finally, they have submitted a report on 21.01.2009 as per Exhibit R3(b). Thereafter, notice was issued to the petitioner and the case of the Custodian is that the petitioner has not turned up so far and has not responded to the notice issued by the Custodian. 6. Learned counsel for the petitioner submitted that going by the relevant provision namely, Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, the petitioner has got a remedy to approach the Tribunal. It is submitted by the learned Government Pleader also that the remedy of the petitioner is to approach the Tribunal under Section 10. But, it is pointed out that Rule 3 directs the petitioner to await the decision of the Custodian to approach the Tribunal. Learned counsel for the petitioner submitted that if the petitioner approaches the Tribunal as of now, the same will be rejected. It is clear that the provisions of a statute permits the petitioner to approach the Tribunal. Therefore, it is upto the W.P.(C) No.33701/2009 4 petitioner to approach the Tribunal and if the petitioner approaches the Tribunal and files a proper application, the same will be entertained and disposed of in accordance with law. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp