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 FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 W.A.No. 1914 of 2008 --------------- --------------------- AGAINST THE JUDGEMENT IN WPC.19992/2008 DATED 03/07/2008 .................... APPELLANTS/PETITIONERS: ----------------------------------------- 1. P.KUMARAN NAIR, PETTAMANNA HOUSE, EDATHANATTUKARA POST, MANNARKKAD, PALAKKAD. 2. P.DAMODARAN NAIR, PETTAMANNA HOUSE, EDATHANATTUKARA POST, MANNARKKAD, PALAKKAD. BY ADV. SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS, OFFICE OF THE CHIEF CONSERVATOR OF FOREST, FOREST HEADQUARTERS, VAZHUTHAKKAD POST, THIRUVANANTHAPURAM. 2. THE DIVISIONAL FOREST OFFICER, MANNARKKAD. BY SR.GOVERNMENT PLEADER SMT.K.MEERRA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- W.A.No.1914 of 2008 ------------------------------------------ Dated, this the 26th day of September, 2008 JUDGMENT H.L.Dattu, C.J. Being aggrieved by the orders passed by the learned Single judge in W.P.(C) No.19992 of 2008 dated 3rd July, 2008, the petitioners in the writ petition are before us in this writ appeal. (2) In the writ petition filed, the petitioners had called in question Ext.P12 order passed by the Custodian of Ecologically Fragile Lands in exercise of his powers under Section 19(3) 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 contention of the petitioners before the learned Single Judge was that their lands are not ecologically fragile lands and, therefore, the Act would not apply. Further, it was the stand of the petitioners that pursuant to the promulgation of the Act, the State Government has not issued any notification either under Section 4(1) or under any other Section of the Act. (4) The learned Single Judge being of the opinion that these are all disputed facts which requires to be agitated by the petitioners by W.A.No.1914 of 2008 2 filing an appropriate application as provided under Section 10 of the Act, has rejected the writ petition. It is the correctness or otherwise of the said order that is called in question by the petitioners in this writ appeal. (5) 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 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. W.A.No.1914 of 2008 3 (2) An application under sub-section (1) shall be in such form and contain such particulars as may be prescribed.” (6) The Custodian while passing Ext.P12 order has referred to a notification issued by the State Government dated 20.10.2000 published in the Kerala Gazette No.1 dated 2.1.2001. In that view of the matter, it may be difficult for us to accept the submission made by the learned counsel for the appellants. However, we reserve liberty to the petitioners to raise even this ground before the Tribunal when a dispute is filed under Section 10 of the Act. (7) Whether the lands in question are ecologically fragile land or note is a disputed fact and that fact requires to be resolved by the Tribunal which can look into all the records that may be produced by the petitioners as well as the respondents. (8) In that view of the matter, we are of the opinion that the learned Single Judge has not committed any error whatsoever while passing the impugned order. (9) Therefore, the writ appeal requires to be rejected and it is rejected. We make it clear that any observation made by us in the course W.A.No.1914 of 2008 4 of our order is only for the purpose of disposal of this writ appeal and this would not come in the way of the Tribunal taking an independent decision in the matter after hearing all the parties to the lis. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns