IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 OP.No. 7993 of 2001(B) ---------------------- PETITIONER: ------------ 1. DR.CHUMMAR CHANDY, RANIMALA ESTATE, PULICKATHARA HOUSE, KANJIRAPPALLY P.O., KANJIRAPPALLY, KOTTAYAM. 2. DR.ACHAMA CHANDY, W/O.LATE DR.M.C.CHANDY, PULICKATHRA HOUSE, KANJIRAPPALLY, KOTTAYAM DIST. 3. DR.SUSAN CHANDRY, D/O.LATE DR.M.C.CHANDY, .DO. .DO. 4. DR.SANTHOSH CHANDY, .DO. .DO. 5. DR.RANI ACHAMA CHANDY, .DO. .DO. 6. DR.ANNU ANNA CHANDY, .DO. .DO. 7. DR.ANSU ANNA CHANDY, W/O.DR.CHUMMAR CHANDY, .DO. .DO. BY ADV. SRI.MATHAI M PAIKADAY(SR.) ADV. SRI.K.B.GANESH RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, FOREST 7 WILDLIFE DEPARTMENT, TRIVANDRUM. 2. THE PRINCIPAL, CHIEF CONSERVATOR OF FOREST & KERALA CUSTODIAN, TRIVANDRUM. SPL. G.P. (FOREST) SRI.M.P.PRAKASH FOR R1 & R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ALONG WITH W.P.(C) NO.29049/2007 ON 03/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.12952/2001 IN O.P. NO.7993/2001 DISMISSED: SD/-(C.N.RAMACHANDRAN NAIR, JUDGE.) 3.9.2008 SD/-(V.K.MOHANAN, JUDGE.) APPENDIX PETITIONER'S EXHIBITS: P1:TRUE COPY OF ORDINANCE-KERALA FOREST (VESTING & MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) ORDINANCE 2000 DT.2.6.2000 PUBLISHED IN KERALA GAZETTE. P2(a): TRUE COPY OF NOTIFICAITON DT.31.10.2000 PUBLISHED IN THE KERALA GAZETTE. P2(b): TRUE COPY OF LIST OF PROPERTIES INCLUDED U/S.3 OF THE ORDINANCE IN SOUTH WYANAD DIVISION. P3: TRUE COPY OF ORDER OF TALUK LAND BOARD VYTHIRI DT.12.2.1996. P4: TRUE COPY OF COMMON ORDER OF FOREST TRIBUNAL IN O.A. NO.9/1990 AND 10/1990 DT.30.7.1996. P5: ORDER NO.B6.1194/86 DT.15.9.06. P5(IN I.A. 13107/2007): LETTER DT.28.6.2007 BY THE DIVISIONAL FOREST OFFICER. P6: DOC. NO.68/81 EXECUTED ON 7.1.1981. P7: .DO. NO.65/81 .DO. P8: DOC. NO.3899/78 .DO. ON 20.10.1978. P9: DOC. NO.3225/78 .DO. 30.9.1978. P10: DOC. NO.3153/78 .DO. 26.9.1978. P11: .DO. NO.3035/78 .DO. 7.9.1978. P12: .DO. NO.410/78 .DO. 2.2.1991. P13: .DO. NO.69/81 .DO. 7.1.1981. P14: .DO. NO.3002/78 .DO. 6.9.1978. P15: .DO. NO.390/91 .DO. 1.2.1991. P16: .DO. NO.391/91 .DO. P17: .DO. NO.392/91 .DO. 2.2.1991. P18: DOC. NO.3226/78 EXECUTED ON 23.9.1978. P19: .DO. NO.3228/78 .DO. 23.9.1978. P20: .DO. NO.3229/78 .DO. P21: .DO. NO.393/91 .DO. 2.2.1991. P22: .DO. NO.398/91 .DO. P23: .DO. NO.399/91 .DO. P24: .DO. NO.3227/78 .DO. 23.9.1978. P25: .DO. NO.3152/78 .DO. P26: CHARGE SHEET & MAHAZAR FILED AGAINST THE PETITIONER BY THE FOREST DEPARTMENT. P27: LETTER DT.5.10.2007 OF THE CUSTODIAN AND CHIEF CONSERVATOR OF FORESTS. P28: LETTER DT.9.10.2007 OF THE DFO. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. .................................................................... O.P. No.7993 of 2001 & W.P.(C) No.29049 of 2007 .................................................................... Dated this the 3rd day of September, 2008. JUDGMENT Ramachandran Nair, J. The challenge is against Notification issued under Section 3 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, later superceded by Act 21 of 2005 (hereinafter called "the Act"). While the land covered by O.P. 7993/2001 is 20 hectares covered by the impugned Notification, in W.P. 29049/2007 the land involved is 34.975 hectares. We have heard Senior counsel Sri.Paikeday appearing for the petitioners and Special Government Pleader appearing for the respondents. 2. The common petitioner is the assignee of land from the previous owner against whom proceedings were initiated under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (hereinafter called "the Vesting Act). Out of the 320 acres held by the petitioners, there was no dispute pertaining to 100 acres and the dispute before the Forest Tribunal relate to only the balance land. The Tribunal held that the land owners were entitled to retain 204.8 acres and the balance land was declared vested forest. The 2 petitioners' case is that even after Tribunal's order, litigation continued in appeal before this court and later before the Supreme Court and althrough the land remained with the department, even though they were bound to restore the land to the petitioners. While the petitioner was awaiting reconveyance of land after successful orders in his favour, the respondents notified part of the land totaling 55.975 hectares as fragile land under the Act. The contention of the petitioners is that land referred to in the Notification is the land in respect of which Government had no claim before the Forest Tribunal. According to counsel, entire land covered by the impugned notifications are plantation. The Government Pleader on the other hand contended that in the course of time, plantation was abandoned by the petitioners and therefore, it has become forest land which can be notified under the Act. He further contended that land is contiguous to forest and it, therefore, answers the description of "ecologically fragile land" as defined under the Act. On going through the notifications, we are not even able to identify the location of the land with reference to balance properties of the petitioners. The Act provides for adjudication by Custodian under the provisions contained in Section 19(3)(b) and an appeal is also provided under Section 10 to the Tribunal constituted under the Act. Since factual issues such as identity, nature of land, extent of land etc. are to 3 be considered for deciding the matter, we feel the matter should be considered in detail by the Custodian after hearing the petitioners and after conducting enquiry and after identifying the land either by himself or through his subordinate officers. If the land is plantation which is excluded from the purview of the Act, then the Custodian should exclude such land and limit notification only to land which answers the description of ecologically fragile land. Counsel for the petitioners pointed out that petitioners have been dragged into litigation for several years and the remand of this case to the Custodian will only delay his right to demand repossession of the land from the Government. In view of this contention, we direct the Custodian to treat this as a suo moto proceeding under Section 19(3)(b), conduct his own enquiry about location of the land, it's nature, consider the order of the Forest Tribunal in this matter confirmed by this court and the Supreme Court and decide whether land proposed to be notified is plantation and if so, to exclude the same so that petitioners are not further dragged in the matter unnecessarily. On the other hand if on enquiry and after inspection he is satisfied that the land has ceased to be plantation and is forest attracting the provisions of the Act, he will issue notice to the petitioner, furnish data collected by him regarding location, identity and extent of the land and then give an opportunity to the 4 petitioners to file objection, give a hearing and take a decision through a speaking order to be issued under Section 19(3)(b) of the Act. The proceedings should be completed by the Custodian within a period of four months from today. The petitioners or the Government Pleader will forward copy of this judgment to the Custodian for compliance. If adjudication issued by the Custodian is against the petitioners, petitioners is free to file appeal before the Tribunal under Section 10 of the Act. If Custodian is satisfied that the proceedings are not tenable, he will drop the same and recall the notifications already issued. C.N.RAMACHANDRAN NAIR Judge V.K.MOHANAN Judge pms