IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 WA.No. 2584 of 2009 --------------------- AGAINST THE JUDGEMENT IN WPC.7105/2007 Dated 16/10/2009 .................... APPELLANTS/RESPONDENTS: -------------------------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, FOREST & WILDLIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND CUSTODIAN (ECOLOGICALLY FRAGILE LAND), THIRUVANANTHAPURAM. 4. PRINCIPAL CHIEF CONSERVATOR OF FORESTS (WILDLIFE), THIRUVANANTHAPURAM. BY SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL GOVERNMENT PLEADER, SRI.HANIL KUMAR. RESPONDENT/PETITIONER: ------------------------------ MRS.KUMARI VARMA, D/O.LATE P.R.RAMA VARMA, ALAKKODE HOUSE, ALAKKODE P.O., THALIPARAMBA, KANNUR DISTRICT, KERALA. ADV. SRI.MKS.MENON SRI.P.A.AUGUSTINE(AREEKATTEL) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2011, ALONG WITH WA NO. 2586 OF 2009, THE COURT ON 03/02/2011 DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.Nos.2584 and 2586 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of February, 2011 JUDGMENT J.Chelameswar, C.J. These two appeals arise out of a common judgment dated 16.10.2009. As a matter of fact three writ petitions were disposed of by the abovementioned judgment. These two appeals arise out of W.P.(C).No.7105 of 2007 and W.P.(C).No.26694 of 2008 respectively. The facts leading to the present litigation are as follows. 2. The sole respondent herein in each of the appeals is the writ petitioner in the abovementioned two writ petitions. Her father, it appears, initially held a vast extent of land measuring approximately 2776.76 Acres in various survey numbers in Naduvil Village of Kannur District. Proceedings were initiated against the respondent's father under the provisions of the Kerala Land Reforms Act, 1963. It appears that, by the proceedings dated 22.11.1973 the competent authority under the abovementioned Act, i.e., the Taluk Land Board, ordered that the father of the respondent shall surrender an extent of 1232.26 Acres as being excess land held by him under the provisions of the abovementioned Act. W.A.Nos.2584 of 2009 & 2586 of 2009 - 2 - 3. The State of Kerala made an enactment known as “Kerala Private Forests (Vesting and Assignment) Act, 1971”, hereinafter referred to as “the Private Forests Act”. Under Section 3* of the said Act, it is declared that “with effect on and from the appointed day” [i.e., 10.05.1971], the ownership and possession of all the private forests “stand transferred to and vested in the Government free from all encumbrances”. The expression “private forest” is defined under the said Act. We shall examine it a little later in the judgment. 4. A notification contemplated under Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974 read with Section 6 of the Act was given declaring that an extent of 348 Acres in RS No.292/1A in Naduvil village, Thaliparamba Taluk, Kannur District belonging to the father of the respondent herein to be private forest and, consequentially, possession and ownership was ---------------------------------------------------------------------------------------- *3. Private forests to vest in Government.- (1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of W.A.Nos.2584 of 2009 & 2586 of 2009 - 3 - Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished. (2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1) of 1964) or any building or structure standing thereon or appurtenant thereto. Explanation.- For the purposes of this sub-section, “cultivation” includes cultivation of trees or plants of any species. (3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling are applicable to him under Section 82 of the said Act. (4) Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of sub-section (2) or sub-section (3), be deemed to be lands to which Chapter III of the said Act is applicable and for the purposes of calculating the ceiling limit applicable to an owner, private forests shall be deemed to be “other dry lands” specified in Schedule II to the said Act. W.A.Nos.2584 of 2009 & 2586 of 2009 - 4 - vested in the Government under Section 3(1) of the said Act. The respondent’s father filed O.A. No.90/79 before the Tribunal constituted under Section 7 of the said Act challenging the legality of the said notification. The case of the applicant was that the said notified property is a cardamom plantation and, therefore, could not have been declared as a private forest under the Private Forests Act. The said O.A. was dismissed initially on the ground that it was barred by limitation. Aggrieved by the same, an appeal was carried to this Court under Section 8 A of the said Act. The appeal was allowed. The matter was remitted back to the Tribunal for a fresh disposal in accordance with law. However, by an order dated 22.03.90, the Tribunal once again dismissed the application recording a finding that the land in dispute was forest land within the meaning of the Private Forests Act, 1971. The abovementioned decision of the Tribunal was once again challenged before this Court in M.F.A.No.658/90. The appeal was once again allowed with certain directions to the Tribunal. In obedience to the directions of this Court, the Tribunal once again examined the matter and came to a conclusion that an extent of 100.05 acres was an area covered by cardamom plantation which existed for a period of 25 years prior to the date of the visit of a W.A.Nos.2584 of 2009 & 2586 of 2009 - 5 - Commissioner appointed by the Tribunal for ascertaining the nature of the land in dispute. In terms of the said finding, a final order came to be passed by the Tribunal recording a finding that an extent of 100.05 Acres of land demarcated as plots A, B and C by the sketch prepared by the above-mentioned Commissioner to be a cardamom plantation and, therefore, excluded from the definition of the expression “private forest” under the said Act. The Tribunal also recorded a finding that a further extent of 9.95 acres is also required to be excluded from the operation of the Private Forests Act on the ground that such a piece of land is required to be exempted from the relevant provisions of the Act on the ground that it is used for the purposes ancillary to the activity of plantation. The further details may not be necessary for the present purpose. 5. Aggrieved by the said decision of the Tribunal the State of Kerala and the respondent herein approached this Court. Both the appeals were dismissed confirming the order of the Tribunal. The matter was further carried by both parties in appeals to the Supreme Court without any success. The judgment of the Supreme Court is dated 04.08.2006. W.A.Nos.2584 of 2009 & 2586 of 2009 - 6 - 6. During the pendency of the abovementioned litigation, under the Private Forests Act, the Legislature of Kerala made another enactment called “the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003”. Under Section 3 of the said Act it is declared that the ownership and possession of the “ecologically fragile land” held by any person shall stand transferred to and vested in the Government free from all encumbrances. The expression 'ecologically fragile land' is defined under Section 2(b) of the said Act. It may be stated here that the said Act was preceded by four Ordinances, Nos.6 and 8 of 2000; 3 and 16 of 2001. 7. In view of the declaration contained under Section 4 of the said Act a notification dated 21.04.01 was issued by the State of Kerala which was published in the Gazette dated 15.05.2001. Under the said notification it was declared that the ownership and possession of the various items of land mentioned in the schedule to the notification was vested in the Government of Kerala free from all encumbrances and “all the right, title and interest of the owner or any other person thereon shall stand extinguished from the date of commencement of the Ordinance, i.e., 02.06.2009.” An extent of W.A.Nos.2584 of 2009 & 2586 of 2009 - 7 - 24.28 hectares of land belonging to the respondent herein was notified. However, an erratum notification was published in the Gazette dated 25.01.08 amending the notification mentioned earlier by which the extent and details of the property pertaining to the respondent herein were amended as 35.105 hectares in RS No.292/1A. The two writ petitions from out of which these appeals arise are filed challenging the abovementioned two notifications respectively. By the judgment under appeal, both the abovementioned notifications are quashed and hence the appeals by the State. 8. In coming to the conclusion that the impugned notifications are illegal, the learned Judge relied upon the fact that the property covered under the said notifications was held to be a cardamom plantation under the provisions of the Private Forest Act, 1971 by the Tribunal constituted under the said Act (the details of which have already been narrated in the judgment), which finding was eventually confirmed by the Supreme Court. The learned Judge also took note of the fact that the possession of the said property was taken by the Government from the relevant date, i.e. 10.05.1991, under the said Act in view of the wrong declaration made under the Private Forest Act. The learned Judge further recorded that the possession of W.A.Nos.2584 of 2009 & 2586 of 2009 - 8 - the said property was wrongly taken by the State under the provisions of the Private Forest Act, a conclusion which is irresistible in view of the judgment of the Supreme Court referred to earlier, and further held as follows: “If that be so, i t is the duty of the Government to maintain the nature and status of the lands from the date of vesting till it is handover to the owner. The Government once declared the land as a private forest and while the notification was in force, the Government again notified this land under Section 3(1) of the present Act. Since the property is excluded under Section 2(b) and 2(c) of the present Act, the notification issued under Section 3(1) of the Act is illegal. It is open to the Government to proceed against the said property in accordance with Section 15 and other related provisions, if so advised.” 9. The learned Additional Advocate General, Sri.Renjith Thampan, appearing for the State argued that this Court ought not to have entertained the writ petitions from out of which the instant appeals arise, in view of the fact that an effective alternative remedy is available to the respondent under Section 10 of the Ecologically Fragile Land Act, 2003 before the Tribunal constituted under Section 9 of the said Act and a further appeal to this Court against the decision of the Tribunal is provided under Section 11 of the said Act. Secondly W.A.Nos.2584 of 2009 & 2586 of 2009 - 9 - the learned Additional Advocate General argued that irrespective of the fact whether the possession of property in dispute was taken illegally or otherwise under the Private Forests Act, situation as on the relevant date under the Ecologically Fragile Land Act, i.e. 02.06.2009, is that the property in dispute covered by the impugned notifications answers the description of 'ecologically fragile land' as defined under Section 2(b)(1) of the said Act. It is immaterial as to how such a situation was brought about. It is further submitted by the learned Additional Advocate General that in view of the prohibition contained under Section 2 of the Forest (Conservation) Act, 1980 made by the Parliament, the State is prohibited from making any order directing that any reserved forest or any portion thereof shall cease to be reserved and also giving any direction that any forest land or any portion thereof may be used for any non-forest purpose. He therefore argued that in view of the abovementioned restriction on the authority of the State, the State of Kerala has no option but to notify the land in question as an ecologically fragile land. 10. The first submission of the learned Additional Advocate General that this Court ought not to have entertained the writ petitions from out of which the instant appeals arise on the ground that the W.A.Nos.2584 of 2009 & 2586 of 2009 - 10 - respondent has effective alternative remedy under Section 10 of the Act, we reject the same for the reason that complicated questions of law are involved in these matters and there is hardly any dispute regarding the facts of the case. At any rate, at the stage of the appeal, to allow the appeals and dismissing the writ petitions on the ground of the existence of an alternative remedy, in our opinion, would not secure any public interest except resulting in multiplicity of the litigation. It must be remembered that the existence of an alternative remedy would not be a bar for the exercise of jurisdiction under Article 226, but only one of the relevant considerations which should guide the Court in coming to a conclusion whether the discretionary jurisdiction under Art. 226 should be exercised in a given case or not. 11. Before we examine the further submissions of the learned Additional Advocate General and the submissions made by Sri.M.K.S.Menon, the learned counsel for the respondent/writ petitioner, we deem it appropriate to make a survey of the statutory position governing the forests in the State of Kerala. 12. Section 3 of the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003 declares that the ownership and possession of all ecologically fragile lands held by any W.A.Nos.2584 of 2009 & 2586 of 2009 - 11 - person shall stand transferred to and vest in the Government free from all encumbrances etc. Section 3(1) reads as follows: “3. Ecologically fragile land to vest in Government.- (1) Notwithstanding anything contained in any other law for the time being in force, or in any judgment, decree or order of any Court or Tribunal or in any custom, contract or other documents, with effect from the date of commencement of this Act, the ownership and possession of all ecologically fragile lands held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date.” 13. Section 3(2)* mandates that the factum of the vesting of lands in the Government by virtue of sub-section (1) shall be notified in the Gazette. It further mandates that:(i) such a fact shall be informed in writing to the owner of the land, and (ii) the notification be placed before an Advisory Committee constituted under Section 15. ---------------------------------------------------------------------------------- *Sec.3(2) The lands vested in the Government under sub-section (1) shall be notified in the Gazette and the owner shall be informed in writing by the custodian and the notification shall be placed before the Advisory Committee constituted under Section 15 for perusal. W.A.Nos.2584 of 2009 & 2586 of 2009 - 12 - 14. Section 2(b) defines the 'ecologically fragile land' as follows: “2(b) “ecologically fragile lands” means,- (i) any forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation; and (ii) any land declared to be an ecologically fragile land by the Government by notification in the Gazette under Section 4;” It can be seen from the above that under Section 2(b) (i) lands falling within the description contained thereunder become ecologically fragile lands by virtue of the operation of the law, though such an operation of law itself depends upon the existence of certain facts. On the other hand, sub-section (ii) of Section 2(b) envisages that any land can be declared to be as an ecologically fragile land by the Government by notification in the Gazette under Section 4. Under what circumstances and in what manner such a declaration can be made need not be examined, as admittedly it is not the case of anyone of the parties before this Court that the lands in question, in these two appeals, fall under the said category. For the present it is sufficient to notice that W.A.Nos.2584 of 2009 & 2586 of 2009 - 13 - there can be two categories or classes of lands which can be called ecologically fragile lands within the meaning of the 2003 Act. 15. The first category is: any forest land held by any person subject to the condition that such land is lying contiguous to or encircled by either reserved or vested forest or any other forest land owned by the Government. Further such land predominantly supports natural vegetation. The expression forest land itself is not defined under the said act but the expressions 'forest' and 'land' are individually defined under Section 2(c) and (d) as follows: “(c) “forest” means any land principally covered with naturally grown trees and undergrowth and includes any forests statutorily recognised and declared as reserved forest, protected forest or otherwise, but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of residential buildings and surroundings essential for the convenient use of such buildings: (d) “land” includes rivers, streams and its origin and other water bodies;” 16. The expression 'forest' is defined as any land principally covered with naturally grown trees and undergrowth. The expression also takes within its purview any forest “statutorily recognised and W.A.Nos.2584 of 2009 & 2586 of 2009 - 14 - declared either as reserved forest or protected forest or otherwise”. From the definition of the forest it can also be noticed that certain categories of land used principally for cultivation of crops for long durations are excluded from the purview of the definition of expression forest, though such lands might otherwise satisfy the definition of the expression forest. This aspect of the matter shall be examined at the appropriate place in the judgment. 17. First criterion is that the forest land must be held by any person. In view of the definition of the expression forest as noticed above, we are required to examine as to the circumstances under which any forest land can be held by a person. In our view the expression 'person' occurring under Section 2(b)(i) must necessarily be understood as a person other than the State, whether natural or juridical for the simple reason under the scheme of the Act such lands are eventually stand transferred to and vest in the State. 18. To understand the possible circumstances under which forest land can be held by any person, we deem it appropriate to examine the scheme of the Kerala Forest Act, 1961 in so far as it is relevant for the present purpose. It was held by the Supreme Court in Bhavani Tea & Produce Co. Ltd. v. State of Kerala [1991 (1) KLT 666] W.A.Nos.2584 of 2009 & 2586 of 2009 - 15 - at para 22 as follows:- “The provisions of the Vesting Act which was enacted in 1971 have, therefore, to be interpreted keeping in mind the relevant provisions of the above Acts * in so far as plantations and private forests are concerned.” 19. Chapter II of the said Act deals with reserved forest. Section 3 empowers the Government to declare any land, at the disposal of the Government, to be reserved forest after following the procedure stipulated under the said Chapter. Section 3 reads as follows:- “3. Power to reserve forests.- The Government may constitute any land at the disposal of the Government a Reserved Forest in the manner hereinafter provided.” The expression “land at the disposal of Government” is defined under Section 2(g), which reads as under: “2(g) “land at the disposal of Government” includes all unoccupied land, all temporarily occupied land and all land occupied without permission, whether assessed or unassessed; but does not include land, the properties of land holders such as ------------------------------------------------------------------------------------------------------------------- *above Acts: 1. The Madras Preservation of Private Forests Act, 1949, 2. The Kerala Forests Act, 1961, 3. The Kerala Land Reforms Act, 1963. W.A.Nos.2584 of 2009 & 2586 of 2009 - 16 - Jenmies, Devaswoms, or holders of Inam lands; also all holdings of land in any way subject to the payment of land revenue direct to Government and all other registered holdings of land in proprietary right”. It can be seen from the above that the lands over which proprietary rights exists cannot be notified to be forest lands. However, even after a reserved forest is notified after following the procedure under Chapter II, still the State can create private rights by granting a patta, etc. under Section 7*. ------------------------------------------------------------------------------------- *7. Bar of accrual of forest right, prohibition of clearings, etc.- (1) During the interval between the publication of the notification under Section 4 and the date fixed by the notification under Section 19, no right shall be acquired in or over the land included in such notification under Section 4, except under a grant or contract in writing made or entered into by, or on behalf of the Government or by, on behalf of, some person in whom such right, or power to create the same was vested when the notification under Section 4 was published or by succession from such person; and no clearings shall be made on such land, nor shall any person cut, collect, or remove any forest produce nor shall set fire to such land or kindle or leave burning any fire in such manner as to endanger the same. (2) No patta shall, without the previous sanction of the Government, be granted in such land, and every patta granted without such sanction shall be null and void. (3) Nothing in this section shall be deemed to prohibit any act done with the permission in writing of the Forest Settlement Officer”. W.A.Nos.2584 of 2009 & 2586 of 2009 - 17 - 20. Chapter III and IV of the Kerala Forest Act, 1961 deal with the regulation and protection of certain lands which are not notified to be reserved forest but are privately owned forest or waste land. Though the expression 'protected forest' is not defined either under the Ecologically Fragile Lands Act or under the Forest Act, having regard to the statutory environment regulating the forest in the State of Kerala, the expression 'protected forest' occurring under Section 2(c) of the Ecologically Fragile Land Act, in our opinion, must be understood in the light of the provisions of Chapter III and IV