IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 WP(C).No. 14121 of 2008(F) -------------------------- PETITIONER: ------------ 1. SHAJAN K. JOHN, AGED 44 YEARS, S/O.LATE JOHN VARGHESE, KALLUPALATHINGAL HOUSE, KOTTAYAM P.O., MUTTAMBALAM KARA, KOTTAYAM DISTRICT REP. BY HIS POWER OF ATTORNEY HOLDER, P.V.JOHN. 2. SHIBU K. JOHN, AGED 41 YEARS, S/O.LATE JOHN VARGHESE, KALLUPALATHINGAL HOUSE, KOTTAYAM P.O., MUTTAMBALAM KARA, KOTTAYAM DISTRICT REP. BY HIS POWER OF ATTORNEY HOLDER, P.V.JOHN. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST & WILD LIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF ECOLOGICALLY FRAGILE LAND AND CHIEF CONSERVATOR OF FORESTS (ADMN.), FOREST HEADQUARTERS, THIRUVANANTHAPURAM. 3. THE DIVISIONAL FOREST OFFICER, MANNARKAD, PALAKKAD DISTRICT. 4. THE FOREST RANGE OFFICER, MANNARKAD RANGE, PALAKKAD DISTRICT. 5. THE DEPUTY FOREST RANGE OFFICER, PALAKKAYAM, MANNARKAD, PALAKKAD DISTRICT. BY SHRI.RENJITH THAMPAN, SPECIAL GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/05/2008, A/W. W.P.C.NO.14689/08 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P.(C).Nos.14121 & 14689 of 2008 ================== Dated this the 26th day of May, 2008 J U D G M E N T In both these two writ petitions, the petitioners are aggrieved by the action of the respondents in declaring the property of the petitioners as vested with the Government under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (“the Act” for short). The petitioners submit that although under Section 10 of the Act a right of settlement of dispute by the Tribunal constituted under the Act is provided, going by Rule 3 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal Rules, 2007 (“the Rules” for short), an application under Section 10 can be filed only against a decision of the Custodian. The petitioners submit that since no order has been passed by the Custodian, the petitioners are unable to approach the Tribunal. The learned Special Government Pleader (Forests) submits that no such restriction is mentioned in Section 10 of the Act and therefore, the Rules cannot override the provisions of the Act. According to 2 him, an application can be filed under section 10, if any dispute arises as to the matters mentioned in that Section and not merely against orders of the Custodian. He further submits that a Tribunal has been constituted as provided under the Act by the Government on 8.6.2007 and that the Tribunal is presently functioning. 2. I have considered the rival contentions in detail. Section 10 of the Act reads thus: “10. Settlement of disputes by the Tribunal.- (1) Where any dispute arises as to whether- (a) any land is an ecologically fragile land or not; or (b) any ecologically fragile land or portion thereof has vested in the Government or not; or (c) the compensation determined under Section 8 is insufficient or not the person who claims that the land is not an ecologically fragile land or that the ecologically fragile has not vested in the Government, or that the compensation is not sufficient, may, within five years from the date of commencement of this Act or within six months from the date of the notification under sub- section (1) of Section 4 declaring the land to be an ecologically fragile land or the date of communication of compensation under Section 8, as the case may be, or within such time as the Government may notify in this behalf, apply to the Tribunal for settlement of the dispute. (2) An application under sub-section (1) shall be in such form and contain such particulars as may be prescribed. (3) If the tribunal decides that any land is not an ecologically fragile land or that an ecologically fragile land or portion thereof has not vested in the Government and - 3 (a) no appeal under Section 11 has been preferred against the decision of the Tribunal within the period specified therein; or (b) such appeal having been preferred under Section 11 has been dismissed by the High Court; the custodian shall, as soon as may be, after the expiry of the period referred to in clause (a) or, as the case may be, after the date of the order of the High Court dismissing the appeal, restore possession of such land or portion, as the case may be, to the owner of such land. (4) If the Tribunal decides that the compensation determined under Section 8 is not adequate and revises the amount of compensation and - (a) no appeal under Section 11 has been preferred against the decision of the Tribunal within the period specified therein; or (b) such appeal having been preferred under Section 11 has been dismissed by the High Court; the custodian shall, as soon as may be, after the expiry of the period referred to in clause (a) or, as the case may be, after the date of the order of the High Court dismissing the appeal, pay such compensation to the owner of such land.” Rule 3 of the Rules reads thus: “3. Application to the Tribunal.- (1) Every application under Section 10 shall be made in”Form A” and shall be accompanied by a fee of five hundred rupees with such number of copies of the application and the documents, as are necessary to be served on the respondents within 3 months from the date decision of the Custodian or within 6 months from the date of communication of compensation under Section 8 as the case may be, submitted before the Tribunal; Provided that, in the case of petitions already disposed of by the Custodian, the application shall be submitted within three months from the date of notification of these Rules. (2) An application, which is found defective on scrutiny, may be returned for re-submission after curing defects within a specified time not exceeding two weeks by the Tribunal.” 4 3. Section 10 does not specifically refer to any decision of the Custodian at all. It only stipulates that when any dispute arises as to the matters enumerated in that Section, the aggrieved person can file application under that Section. Since Section is very clear Rule cannot override that Section. Therefore, I have no doubt that an application under Section 10 would lie in respect of the dispute now raised by the petitioners. Therefore, without prejudice to the right of the petitioners to file an application under Section 10 before the Tribunal as provided under Section 10 of the Act, these writ petitions are dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge