IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 W.A.No. 1937 of 2008 ------------------------------------ AGAINST THE JUDGEMENT IN WPC.18376/2008 DATED 19/06/2008 .................... APPELLANT/PETITIONER: ------------------------------------ KALATHIL AMBADY, S/O.KANNAN, KARUVACHERRY, P.O.NILESHWAR, HOSDRUG TALUK, KASERKOD (DT.) BY ADV. SRI.PHILIP ANTONY CHACKO RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETEARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, STATE OF KERALA, THIRUVANANTHAPURAM. 3. THE CUSTODIAN OF ECOLOGICALLY FRGILE LANDS APPOINTED AS PER THE PROVISIONS OF ACT NO.21 OF 2005 AND PRINCIPAL CHIEF CONSERVATOR OF FORESTS, THIRUVANANTHAPURAM. 4. THE DIVISIONAL FOREST OFFICER, KANNUR DIVISION, P.O.THANA, KANNUR. 5. THE FOREST RANGE OFFICER, KANHANGAD, KASERKODE (DT). BY SR.GOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- W.A.No.1937 of 2008 ------------------------------------------ Dated, this the 25th day of September, 2008 JUDGMENT H.L.Dattu, C.J. This writ appeal is directed against the orders passed by the learned Single judge in W.P.(C) No.18376 of 2008 dated 19th June, 2008. By the impugned order, the learned Single Judge has rejected the writ petition. (2) The facts in brief are:- The petitioner is aggrieved by the inclusion of his property having an extent of 7.5 acres in Sy.No.109 of Palavayal Amsom and Desom in Kasaragod District as ecologically fragile land. According to the petitioner, 3.90 acres out of the said property are not notified under the provisions of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter for the sake of brevity referred to as 'the Act') (3) The learned Single Judge has noticed that there is dispute as to whether the petitioner's land is an ecologically fragile land and whether any portion of which is vested in the State Government or not and that the said dispute can be resolved only by filing a dispute as provided under Section 10 of the Act. Therefore, the learned Judge has rejected the writ petition. W.A.No.1937 of 2008 2 (4) Being aggrieved by the aforesaid order passed by the learned Single Judge, the petitioner in the writ petition has presented this writ appeal. (5) Learned counsel appearing for the appellant would submit that the learned Single Judge has erred in holding that there is dispute as to whether any portion of the appellant's property is vested in the Government or not; the learned Judge went wrong in finding that the dispute squarely comes within the ambit of Section 10 of the Act and therefore, it is stated by the learned counsel, that, the learned Judge ought to have entertained the writ petition instead of relegating the appellant to file his dispute before the Tribunal as provided under Section 10 of the Act. (6) Section 10 of the Act reads as under: “10. Settlement of disputes by 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 land has not vested in the Government or that the W.A.No.1937 of 2008 3 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.” (7) It is the case of the appellant that the land in question is not vested in the Government and that factor is disputed by the other side. The 4th respondent has stated in his order dated 6.12.2006 (Ext.P10) that the land in question is vested in the Government by Notification No.C4.21437/2000 dated 4.10.2000 issued by the second respondent which was published in Kerala Gazette No.43, Vol.45 dated 31.10.2000. (8) In view of the disputed facts, the learned Single Judge is of the opinion that the disputes can be resolved only by the forum as provided under Section 10 of the Act. (9) We have carefully gone through the averments made by the appellant and also the observations made by the learned Single Judge. In our opinion, the learned Judge has not committed any error whatsoever W.A.No.1937 of 2008 4 for us to interfere with the impugned order. (10) In that view of the matter, while affirming the findings and conclusions reached by the learned Single Judge, we reject this writ appeal. However liberty is reserved to the appellant, if he so desires, to file an appropriate dispute as provided under Section 10 of the Act for appropriate reliefs. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns/dk.