IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 OP.No. 22321 of 2002(G) ----------------------- PETITIONER: ------------ 1. JOSEPH 2. ALEXANDER 3. ALEX 4. KURIAN 5. TOMY 6. ANIE 7. MEMOL 8. THANKAMMA 9. ALEX CHERIAN 10. TOMY CHERIAN ALIAS DOMINIC CHERIAN 11. ANITHA CHERIAN 12. CHINNAMMA CHERIAN - PETITIONERS 1,3,5, 6,7 & 8 ARE REP.BY THEIR POWER OF ATTORNEY HOLDER SRI.KURIAN,4TH PETR.& PETRS 2,9,11&12 ARE REP.BY THEIR POWER OF ATTORNEY HOLDER TOMY CHERIAN ALIAS DOMINIC CHERIAN,10TH PETITIONER.-ALL ARE R/D.AT SANANDANAPURAM,ARIMPUL,PUTHENPURAYIL,THEVKADU,ALPY BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN(SR.) SRI.K.MOHANA KANNAN RESPONDENTS: ------------- 1. STATE OF KERALA - NOTICE FOR WHOM MAY BE SERVED ON THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CUSTODIAN OF VESTED FORESTS, OLAVAKKOD. 4. THE DIVISIONAL FOREST OFFICER, MANNARKKAD, PALAKKAD DISTRICT. ADDL. RESPONDENT: 5. THE PRINCIPAL CHIEF CONSERVATOR OF FORES/ CUSTODIAN, FOREST HEADQUARTERS, VAZHUTHACAUD, TRIVANDRUM. (ADDL. 5TH RESPONDENT IS IMPLEADED AS PER ORDER DT.5.8.2008 IN I.A. NO.12415/2007.) BY SRI.M.P.PRAKASH, SPL.GP FOR FOREST THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.38186/2002 & I.A. NO.12416/2007 IN O.P. NO.22321/2002 DISMISSED: 5.8.2008 SD/-(C.N.RAMACHANDRAN NAIR, JUDGE.) SD/-(V.K.MOHANAN, JUDGE.) APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF JUDGMENT IN O.A. NO.110/78 DT.30.4.1980 ON THE FILE OF FOREST TRIBUNAL, MANJERI. P2: TRUE COPY OF JUDGMENT IN MFA DT.27.8.1991 OF THIS HON'BLE COURT. P3: TRUE COPY OF ORDER OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO.7113/96 DT.7.8.96. P4: TRUE COPY OF JUDGMENT IN O.P. NO.2756/1998 OF THIS HON'BLE COURT DT.27.2.1998. P5: TRUE COPY OF JUDGMENT IN WRIT APPEAL NO.2156/1998. P6: TRUE COPY OF JUDGMENT IN CCC NO.225/1999 DT.31.8.2000 OF THIS HON'BLE COURT. P7: TRUE COPY OF ACKNOWLEDGEMENT ISSUED BY FOREST DEPARTMENT DT.23.9.2000. P8: TRUE COPY OF ORDER IN CMP NO.4709/2002 IN CCC NO.225/99 DT.21.3.2002 OF THIS HON'BLE COURT. P9: TRUE COPY OF GAZETTE NOTIFICATION DT.19.9.2000 PUBLISHED IN THE KERALA GAZETTE VOL.45 NO.37. P10: TRUE COPY OF ORDER IN CMP NO.4710/2002 IN CCC NO.225/1999 DT.27.3.2002. P11: TRUE COPY OF ORDINANCE 3 OF 2001 PROMULGATED BY THE GOVERNOR OF KERALA. P12: TRUE COPY OF REPRESENTATION SUBMITTED BY PETITIONER BEFORE ADDL. R5. P13: TRUE COPY OF COMMUNICATION DT.23.9.2006 RECEIVED FROM DIVISIONAL FOREST OFFICER, MANNARKKAD BY THE PETITIONER. P13(a): TRUE COPY OF ENGLISH TRANSLATION OF EXT.P13. P14: TRUE COPY OF ORDER DT.5.12.2002 IN CMP NO.4709/2002 IN CCC NO.225/1999 OF THIS HON'BLE COURT. P15: TRUE COPY OF ORDER DT.21.8.2003 IN IA NO.5248/2003 IN CMP NO.4709/2002 IN CCC NO.225/1999 OF THIS HON'BLE COURT. P16: TRUE COPY OF ORDER DT.5.3.2004 IN O.P. NO.22321/2002 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS: R4(a): TRUE COPY OF JUDGMENT IN O.S. NO.101/1960. R4(b): TRUE COPY OF ORDER DT.16.2.2001. R4(c): TRUE COPY OF ORDER DT.7.3.2000 IN O.P. NO.7076/2000. R4(d): COPY OF REPORT ON VISIT TO THE PROPERTY INVOLVED IN O.A. NO.110.1978. R4(e): TRUE COPY OF ORDER DT.7.11.2000 IN O.P. NO.28828/2000. R4(f): TRUE TRANSLATED COPIES OF FORM I REPORT AND MAHASSARS IN O.R. NO.10/2001, 11/2001 AND 12/2001. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. .................................................................... O.P. No.22321 of 2002 .................................................................... Dated this the 5th day of August, 2008. JUDGMENT Ramachandran Nair, J. The petitioners are challenging Ext.P9 notification issued under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance-2000 which was later superceded by Act 21 of 2005. The case of the petitioners is that the land in question was declared vested forest by the Government first under the Vesting Act, 1971. However, the Forest Tribunal allowed the O.A. filed by the petitioner and land is restored to the petitioners. This court confirmed the order of the Forest Tribunal and the Supreme Court dismissed the S.L.P. In a Contempt proceeding filed thereafter, this court directed restoration of land to the petitioners subject to respondents right to proceed under the Ordinance. Consequently, Notification under Section 3 is issued declaring the land as ecologically fragile. It is seen that petitioners have filed Ext.P12 objection apparently under Section 19(3)(b) of Act 21 of 2005 before the Custodian of Forests for exemption from the operation of the Ordinance. The correctness of notification issued under Section 3 declaring petitioner's land as 2 ecologically fragile could be decided with reference to facts such as location, cultivation, nature of surrounding areas, proximity to forest etc. The commission report produced in court throw some light about the nature of property and the cultivation carried on by the petitioners. Of course this report pertains to facts available six years back and that too, after petitioners were restored the land under interim orders. The petitioners' claim that the land is cultivated with cardamom is found to be false by the Commissioner. Coffee plantation is also not a properly maintained one is what is clear from the Commissioner's report because the plants are neither the variety that yields well, nor are they pruned for obtaining proper yield. In any case since Ext.P12 filed by the petitioners before the Custodian of Forests is maintainable under Section 19(3)(b) of the Act, we feel the validity of the notification has to be decided first by the Custodian of Forests. We, therefore, direct the 5th respondent to decide the mater in exercise of statutory power abovereferred after conducting enquiry and after hearing the petitioners. Data gathered by him through various officials should be furnished to the petitioners for them to effectively raise objection. The 5th respondent is directed to pass orders within three months from date of receipt of a copy of this judgment. 2. Government Pleader pressed for restoration of land from 3 petitioners under court orders. Even though the commissioner's report does not show any active cash crop cultivated by the petitioners at the time of inspection, it is seen from the commissioner's report that at that time petitioners were cultivating part of the land with banana. If petitioners have any cultivation of banana or the like, certainly petitioners are entitled to take the crop therefrom. However, having regard to the findings in the commissioner's report, we direct the petitioners not to proceed with fresh cultivation in the area until orders are passed by the Custodian and thereafter, based on orders of the Custodian. The field forest officials will ensure that petitioners do not till the land any longer for cultivation, but they will permit the petitioners to take yield from existing cultivation, whether it be plantation or otherwise. C.N.RAMACHANDRAN NAIR Judge V.K.MOHANAN Judge pms