IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 WP(C).No. 24460 of 2006(J) -------------------------- OR.5/2006 of JUDICIAL FIRST CLASS MAGISTRATE, MANNARKAD .................... PETITIONER(S): --------------- 1. R.NARASIMHAN, S/O R.R.PANNAI, KOCHUNOOR (VIA) CHINAMANNOOR, UTHAMALAPALAYAM -TALUK, THENI DISTRICT, TAMIL NADU. BY ADV. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN RESPONDENT(S): --------------- 1. THE DEPUTY RANGER, FOREST STATION, ANAMOOLY, MANNARKKAD. 2. THE DIVISIONAL FOREST OFFICER, MANNARKKAD. 3. THE TAHSILDAR, MANNARKKAD. 4. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SMT.SUSHEELA R BHAT SPL.GOVT. PLEADER (FORESTS) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.24460 of 2006 J -------------------------------------- Dated this the 13th day of November, 2008. JUDGMENT Heard both sides. 2. I had dictated the judgment in this case on 22.10.2008 but before signing the judgment, I thought it necessary to hear the counsel on both sides again and accordingly, the case was posted to this day for 're-hearing'. 3. In this petition filed under Article 226 of the Constitution of India the case pleaded by the petitioner is that 101 acres of land in Sy.No.185/1 of Arakurussi Village in Mannarkkad Taluk was acquired by his father, R.R.Pannai as per assignment deed No.3705 of 1967 of SRO, Mannarkkad and on the death of the father, that property devolved on the petitioner and his brother, Narayanan. While so, Forest Department took steps for surrender of the said land under the provisions of Kerala Private Forest Vesting & Assignment Act. Petitioner challenged that proceeding in the Forest Tribunal, Manjeri in O.A.No.444 of 1976 and as per order dated 9.8.1978 the Forest Tribunal held that no vested forest is involved in the said 101 acres. Forest Department carried the matter in appeal and as per Ext.P1, judgment dated 27.9.1998 in M.F.A.No.512 of 1983 this Court found that out of the said 101 acres, five acres alone is vested forest and the rest is plantation. Thereafter, petitioner and his brother transferred certain portions of the said property excluding the said five WP(C) No.24460/2006 2 acres and now, petitioner and his brother owned and possessed 18 acres of land which according to the petitioner is mainly cultivated with coffee and is not a vested forest. Petitioner also claimed that building has been constructed in the said 18 acres and that building tax and land revenue are being paid by the petitioner and his brother. Forest Department has also verified the plantation and given Ext.P4, certificate dated 13.7.1996. While so, in March, 2006, some of the officials of the Forest Department unauthorisedly entered the said 18 acres and obstructed the workers of the petitioner. The Deputy Ranger, Mannarkkad has issued Ext.P5 notice to the petitioner to which he sent Ext.P6 reply. Respondents have filed criminal complaint against the petitioner (Ext.P7) in the Judicial First Class Magistrate Court, Mannarkkad. The prayer in this petition is to quash Ext.P5 and also to direct the respondents not to obstruct the peaceful possession and enjoyment of the said 18 acres of land by the petitioners. 4. Learned Special Government Pleader for Forests filed statement on behalf of the second respondent contending that 18 acres of land referred in this petition and comprised in Sy.No.185/pt. 1 of Thathengalam Malavaram VFC Item No.1 and 38 in Mannarkkad Range is a pucca forest surrounded by forest on three sides and is frequently visited by wild animals . Further contention is that considering the ecological importance the Department had already submitted a proposal to notify the said 18 acres as Ecologically Fragile Land (for short, 'EFL'). Thathengalam Malavaram is included in the proposed buffer zone of WP(C) No.24460/2006 3 Silent Valley National Park. Mannarkkad Forest Range Officer has registered O.R.No.5 of 2006 against three persons for illegal entry into the said land and those persons confessed the involvement of petitioner in that incident. Accordingly, case was registered against the petitioner also. 5. Refuting the above contentions and asserting the averments in the Writ Petition, the petitioner has filed a reply affidavit. It is contended by learned counsel for petitioner that as per Ext.P1, judgment it has been declared that out of 101 acres, only five acres is vested forest and that the 18 acres referred to in this proceeding formed part of the area which was not declared to be the vested forest. According to the learned counsel, no notification has been issued by the respondents notifying the said land as EFL. 6. Learned Special Government Pleader contended that the decisions of this Court as well as Section 3 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for short, 'the Act') would show that on the appointed day, i.e., 2.6.2000, the property stood transferred and vested in the State Government free from all encumbrances. According to the learned Government Pleaderl, even when there is a dispute whether the land in question is EFL, it is for the Forest Tribunal to decide the same. The argument in short is that the remedy of the petitioner is to approach the Forest Tribunal concerned. WP(C) No.24460/2006 4 7. Section 3 of the Act reads thus:- “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. (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.” WP(C) No.24460/2006 5 Section 1(2) of the Act states that the Act shall be deemed to have come into force on the second day of June, 2000. That, on the appointed day the EFL would stand transferred and vested in the State Government as provided under Section 3 of the Act, has been held by this Court in State of Kerala and others v. Kizhakke Cheruvalath Gopalan Nair (R.P.No.191 of 2000) and, in A.K.Balan v. P.K.Kesavan and another (CCC No.192 of 2002) (Annexures-R2(b) and R2 (c)). It is also held that a notification is not required for vesting of the property in the Government as stated in Section 3. Therefore, petitioner cannot contend that because of non-issuance of notification by the State Government, there is no transfer or vesting of land as contemplated under Section 3 of the Act. 8. The short question for consideration in this proceeding is whether Ext.P5 should be quashed. It is as per Ext.P5 that the Deputy Ranger, Mannarkkad Forest Division wanted the petitioner to show cause failing which, it is stated in Ext.P5 that charge sheet will be submitted before the court concerned. Petitioner has given Ext.P6 reply. It is not being satisfied with that reply, that Ext.P7 complaint was lodged before the Judicial First Class Magistrate, Mannarkkad. 9. Section 10 of the Act deals with settlement of disputes including whether any land is ecologically fragile land or not by the Forest Tribunal and Sub-section (1) states the time frame within which the application is to be filed. Going by Sub-section (1), even in the absence of notification, it is open to the WP(C) No.24460/2006 6 petitioner to take up the matter with the Forest Tribunal concerned. Therefore, the question whether the land in question is EFL or not is not required to be considered in this proceeding. I make it clear that it will be open to the petitioner to approach the Forest Tribunal concerned as provided under law and seek appropriate relief. It will also be open to the petitioner to raise appropriate contentions if he is otherwise entitled to do so in the Judicial First Class Magistrate Court, Mannarkkad where the petitioner is being prosecuted. With the above observation, this petition is dismissed. THOMAS P.JOSEPH, JUDGE. cks