IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 OP.No. 11387 of 2000(E) ----------------------- PETITIONER: ------------ NAIR SERVICE SOCIETY, REPRESENTED BY ITS TREASURER, SRI PERUMPULICKAL N.GOPINATHAN NAIR, N.S.S.HEAD OFFICE, PERUNNAI, CHANGANACHERRY. BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CONSERVATOR OF FORESTS, (CUSTODIAN OF VESTED FORESTS), ARANYA BHAVAN, OLAVAKKODE, PALAKKAD. BY SPL.GOVERNMENT PLEADER(FORESTS) SHRI RENJITH THAMPAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/08/2008, ALONG WITH OP NO.11545 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.18804/2000 IN O.P.NO.11387/2000 DISMISSED 21.8.2008 SD/- K.BALAKRISHNAN NAIR, JUDGE. ********* APPENDIX IN O.P.No.11387/2000 PETITIONER'S EXT: EXT.P1: TRUE COPY OF JUDGMENT DATED 21.3.1979 IN OA.347/76 OF THE FOREST TRIBUNAL, MANJERI. EXT.P2: TRUE COPY OF THE COMMON JUDGMENT DATED 12.1.1981 IN MFA.NOS.187 AND 230 OF 1979 OF THIS COURT. EXT.P3: TRUE COPY OF THE ORDER DATED 9.1.1996 IN CIVIL APPEAL NO.3871/83 OF THE HON'BLE SUPREME COURT. EXT.P4: TRUE COPY OF THE ORDER DATED 29.8.97 IN OA.24/96 OF THE FOREST TRIBUNAL, PALAKKAD. EXT.P5: TRUE COPY OF THE ORDER DATED 18.8.1980 IN CMP.NO.12012/80 IN MFA.187/79 OF THIS COURT. EXT.P6: TRUE COPY OF THE ORDER DATED 19.3.82 ON CMP.NO.16018/81 IN OP.4379/80 OF THIS COURT. RESPONDENTS' EXT: EXT.R2(a): TRUE COPY OF THE NOTIFICATION NO.C4-21437/2000 DATED 30.10.2000 OF THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, THIRUVANANTHAPURAM. TRUE COPY K.BALAKRISHNAN NAIR ,J. ----------------------------------------------------- O.P.Nos.11387/2000 and 11545/2000 ----------------------------------------------------- DATED THIS THE 21st DAY OF AUGUST, 2008 J U D G M E N T The petitioner in these Writ Petitions prays that the extend of land found by the Forest Tribunal and affirmed by this Court, as not forest vested in the Government, in terms of the Kerala Private Forests (Vesting and Assignment) Act, 1971 may be restored to it. In both these cases, a portion of the land found to be not vested in the Government, under the above said Act, is still retained by the State Government. Those lands are liable to be restored to the petitioner, by the respondents. Seeking that relief, these Original Petitions were filed. 2. The learned Special Government Pleader (Forests) submitted that the lands claimed by the petitioner are now covered by the notification issued by the competent authority under the provisions of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance. Later, the Ordinance was replaced by the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. In view of Section 19(3) of the said Statute, notwithstanding any judgment, decree or order of any court, the property so notified vests in the Government. If anybody is aggrieved by the said notification, he has got a remedy of moving the custodian under Section 19(3)(b). Section 19(3) O.P.Nos.11387& 11545/2000 -2- (b) of the above said Act reads as follows: “19: Validation and Transitory provisions:- (1) xxxxx xxxxx xxxx xxx xxxxx (2) xxxxx xxxxx xxxx xxxx xxxxx (3) Notwithstanding anything contained in the said Ordinance or in any judgment, decree or order of any Court - (a) no land other than the ecologically fragile land as defined in this Act, whether notified under sub- section (3) of Section 3 of the said Ordinance or not, shall be deemed to have vested or ever to have been vested in Government; and (b) every notification issued in respect of any land under sub-section (3) of Section 3 of the said Ordinance shall be scrutinised by the custodian suo motu or on an application made by the owner or any person having the right of possession or enjoyment of such land and if necessary, such notification shall be revised and issued in accordance with the provision of this Act.” 3. Going by the above provisions, I feel that the remedy of the petitioner is to move the custodian as provided under clause (b) of sub- section (3) of Section 19. In view of the above position, these Original Petitions are closed without prejudice to the contentions of the petitioner and its right to move the custodian under the aforementioned provision for appropriate reliefs. K.BALAKRISHNAN NAIR, JUDGE. dsn