IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 4726 of 2006(K) ------------------------- PETITIONER: ------------ E.M. KRISHNAN NAMBOODIRIPAD, EDAMANA MANA, P.O.PUNCHAPADOM, VIA.KADAMPUZHIPURAM. (DIED) SUPPL. PETITIONER: E.M. PARAMESWARAN, AGED 37 YEARS, SON OF E.M. KRISHNAN NAMBOODIRIPAD, RESIDING AT EDAMAN MANA, PUNCHAPADOM P.O., VIA. KATTAMPAZHIPURAM, OTTAPALAM. SUPPL. PETITIONER WAS IMPLEADED AS PER ORDER ON I.A. 8298 OF 2008 DATED 4.7.2008 BY ADV. SRI.S.RAMESH BABU RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, FOREST & WILD (E) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF CONSERVATOR OF FORESTS (VESTED FORESTS), GOVERNMENT OF KERALA, KOZHIKODE. 3. THE CONSERVATOR OF FORESTS, OFFICE OF THE CONSERVATOR OF FORESTS, AND CUSTODIAN OF VESTED FORESTS, EASTERN CIRCLE, OLAVAKKODE, PALAKKAD-2. BY G.P. SRI. TEKCHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER IN O.A.NO. 306 OF 1975 DATED 29.5.1987 OF THE FOREST TRIBUNAL, PALAKKAD. EXT.P2 TRUE COPY OF THE JUDGMENT IN OP 12077 OF 2001 DATED 6.6.2003 OF THIS HON'BLE COURT. EXT.P3 TRUE COPY OF THE REPRESENTATION BEFORE THE RESPONDENTS DATED 25.6.2005 BY THE PETITIONER. EXT.P4 TRUE COPY OF THE REPORT OF THE FOREST RANGE OFFICER SUBMITTED BEFORE THE DIVISIONAL FOREST OFFICER, PALAKKAD DATED 10.8.2005 EXT.P5 TRUE COPY OF THE LETTER DATED 13.8.2005ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER. EXT.P6 TRUE COPY OF THE NOTIFICATION NO. 36 DSATED 11.9.2001 PUBLISHED BY THE PRINCIPAL CHIEF FOREST CONSERVATOR AND CUSTODIAN, THIRUVANANTHAPURAM. EXT.P7 TRUE COPY OF THE DISCHARGE SUMMARY CERTIFICATE DATED 14.2.2008 RESPONDENTS' EXHIBITS: EXT.R2(a) TRUE COPY OF JUDGMENT OF THE DIVISION BENCH OF THIS HON'BLE COURT DATED 22.2.2006 IN W.A.NO.328 OF 2006 EXT.R2(b) TRUE COPY OF JUDGMENT DATED 3.10.2005 IN W.A.NO. 562 OF 2000 EXT.R2(c) TRUE COPY OF JUDGMENT DATED 15.11.2005 IN WPC 17859 AND 19671 OF 2004 TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 4726 OF 2006 -------------------------------------------- Dated this the 4th day of July, 2008 JUDGMENT Petitioner is challenging Ext.P6 notification whereunder 7.91 acres of petitioner's land is declared as ecologically fragile land under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act , 2003, hereinafter called the "Act". Counsel for the petitioner contended that petitioner's land does not come within the definition of "ecologically fragile lands" as defined under Section 2(b) of the Act. The land in question was subject matter of adjudication before the Forest Tribunal under the Private Forests (Vesting and Assignment) Act, 1971. The Forest Tribunal allowed petitioner's claim vide Ext.P1 award. This Court vide judgment in O.P.No. 12077 of 2001 dated 6.6.2003 directed restoration of the land vide Ext.P2. However, it was observed that the Government should consider application of the Act for declaring the land as ecologically fragile land, if it is so. Counsel for the petitioner has specifically referred to the definition of "ecologically fragile lands" contained in Section 2(b) 2 of the Act and contended that none of the conditions stated therein is satisfied for declaring the petitioner's land as ecologically fragile land. He pointed out that two sides of petitioner's property are covered by Palakkad-Perinthalmanna road and the remaining boundaries are covered by land privately owned by various individuals whose lands are declared as not vested under the Vesting Act by the Forest Tribunal. In fact if both sides of the property of the petitioner are covered by public road and the remaining boundaries are covered either by private property or property restored by Forest Tribunal as not covered by Vesting Act, then there is no scope for declaring the petitioner's land as ecologically fragile land under Section 4 of the Act. Counsel for the petitioner submitted that Ext.P6 is issued by Principal Chief Conservator of Forests whereas Government is entitled to declare the land as ecologically fragile land that too based on the recommendation of the Advisory Committee under Section 4 of the Act. Even though petitioner made representation before the Custodian of Vested Forests, he has issued Ext.P5 which is not a proceeding under Section 19(3) of the Act. I feel this is a fit case for the Custodian to consider facts 3 pertaining to petitioner's land and if it is in terms of the petitioner's claim narrated above, then he will recall Ext.P6 order because petitioner's property is neither contiguous nor surrounded by reserve forest, but on the other hand it is part of the land held by private persons. However, if facts stated by the petitioner and narrated above are not true, and if the land is ecologically fragile land within the meaning of the term contained in Section 2(b) of the Act, then it would be open to the Custodian to uphold Ext.P6 order through a speaking order giving reasons for his order. I make it clear that petitioner's land should be declared as ecologically fragile land only if it is found to be one squarely covered by the definition clause with reference to it's location. Petitioner will, along with a copy of this judgment, make an application under Section 19 of the Act before the Custodian of Vested Forests, who will consider the application and pass orders within two months from the date of filing of application by the petitioner along with a copy of this judgment. It would be open to the Custodian of Vested Forests to get physical inspection carried out in the presence of the petitioner and decide the matter based on inspection. I make it clear 4 that if the land is not declared as ecologically fragile land, it should be restored to the petitioner within two months from the date of passing of the order by the Custodian as above. W.P. is disposed of as above. (C.N. RAMACHANDRAN NAIR) Judge kk 5