C. Ramachandran v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 28TH DAY OF OCTOBER 2020 / 6TH KARTHIKA, 1942** ## **WP(C).No.5235 OF 2014(D)** ## **PETITIONER :** **C.RAMACHANDRAN, S/O.LATE NANIKUTTY AMMA, CHADAYATH HOUSE, P.O.MANHALUR, ALATHUR, PALAKKAD, PIN - 678 502. BY ADV. SRI.P.T.ABHILASH** ## **RESPONDENTS :** |**1**|**STATE OF KERALA,**| |---|---| ||**REP. BY ITS SECRETARY TO THE GOVERNMENT,**| ||**FOREST DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.**| |**2**|**THE CUSTODIAN OF ECOLOGICALLY FRAGILE LAND/**| ||**CHIEF CONSERVATOR OF FORESTS, ADMINISTRATION,**| ||**FOREST HEADQUARTERS, VAZHUTHACAUD,**| ||**THIRUVANANTHAPURAM - 14.**| |**3**|**THE DIVISIONAL FOREST OFFICER,**| ||**NEMMARA, PALAKKAD DISTRICT.**| |**4**|**THE TAHSILDAR,**| ||**ALATHUR, PALAKKAD DISTRICT.**| |**5**|**THE VILLAGE OFFICER,**| ||**THENKURISSY - II, PALAKKAD DISTRICT.**| ||**BY SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.5235 OF 2014(D)** 2 ## **JUDGMENT** Dated this the 28th day of October 2020 Petitioner's mother was the owner of 3.67 acres of land in re-survey No.3H of Vemballur Amsom of Thenkurussy Village II. It is claimed by the petitioner that in 1976, the property mentioned above was the subject matter of proceedings under the Kerala Private Forest (Vesting and Assignment) Act, 1971. Challenging the vesting, his mother preferred O.A.No.478/1976 before the Forest Tribunal, Palakkad and by Ext.P1 order dated 23.04.1979, the Tribunal allowed her claim and declared that the property did not vest with Government. It is conceded by all parties that no appeal was preferred against Ext.P1 order. Thus, Ext.P1 became final. 2. Pursuant to Ext.P1, even though the property was liable to be restored back to the petitioner's mother, it did not happen. Petitioner's and his mother's repeated attempts for restoration of possession of their property were futile. By Ext.P2, it was informed by the Divisional Forest Officer that, proceedings were being initiated for restoration of possession to the petitioner's mother. However, petitioner contends, by Ext.P4 it was informed that the property had vested with the Government on account of the new legislation that had **WP(C).No.5235 OF 2014(D)** 3 been enacted, namely The Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 [in short, the EFL Act]. It was informed that due to the vesting the property could not be restored. 3. The notification issued on 15.05.2001 (Ext.P5) was initially relied upon as a basis for the aforesaid claim of vesting under the EFL Act. Subsequently, when the petitioner became aware of the claim of alleged vesting, an application was filed to review the notification, claiming that the land belonging to the petitioner was not actually notified as per Ext.P5 notification and requested the custodian to declare the petitioner's land as not an ecologically fragile land under Section 3 of the Act of 2003. In the meantime, the petitioner approached this Court through WP(C) No.33701/2009 and by judgment dated 21.01.2010, which is now produced as Ext.P16, this Court directed the petitioner to approach the Tribunal through a proper application. 4. While the matter so stood, Ext.P14 notification was published as an 'erratum notification' dated 27.05.2010. The said erratum notification purportedly takes in the petitioner's property and notified the same as an ecologically fragile land as having vested with the Government under Section 3(2) of the EFL Act of 2003. This writ petition was filed challenging Ext.P14 erratum notification and also seek for a declaration that petitioner's property has not vested as an **WP(C).No.5235 OF 2014(D)** 4 ## ecologically fragile land. 5. The first respondent has filed a counter affidavit pointing out that while steps were being taken to restore possession to the petitioner's mother pursuant to the order in O.A.No.478/1976, the EFL Act was promulgated initially as an Ordinance of 2000 and subsequently replaced by the Statute. Petitioner's property was notified as having vested but due to minor mistakes, an erratum notification was issued. It was also pointed out that the petitioner had approached this Court earlier in WP(C) No.33701/2009 and he was relegated to the remedy before the Tribunal. The said fact was not disclosed. Apart from that, it was contended that the judgment in _**State of Kerala v. Kumari Varma [2011 (1) KLT 1008]**_ had no application. 6. The petitioner has filed a reply affidavit producing the judgment in WP(C) No.33701/2009 and also points out that the situation that arises in the instant case is identical to that in _**Kumari Varma**_ 's case (supra). 7. I have considered the rival contentions. The writ petition disputes the claim of vesting of land as ecologically fragile. The notification declares the land of the petitioner as ecologically fragile as per Section 3 of the EFL Act. This disputes requires to be settled. The EFL Act of 2003 creates a remedy and forum for **WP(C).No.5235 OF 2014(D)** 5 settlement of disputes under Section 10 by a Tribunal. When a dispute arises, the remedy of the aggrieved party is to move an application before the Tribunal. If the Tribunal declares that the land is not an ecologically fragile land, then it has power to order restoration of possession of the property also. The contention of the learned Special Government Pleader for Forest that the decision in _**Kumari Varma**_ 's case (supra) may not have an application on account of the decision _**in Planters Forum v. State of Kerala [2015 (2) KLT 783]**_ and also because the judgment in _**Kumari Varma**_ 's case (supra) is pending consideration before the Supreme Court are questions that need not be considered at this juncture. However, since the remedy of the petitioner in a case where he disputes that the land is ecologically fragile or not is to approach the Tribunal under Section 10 of the EFL Act. Since the petitioner will not be prejudiced by relegating him to the remedy before the Tribunal, I feel it is only just and proper that in the facts and circumstances of the case the petitioner be permitted to move the Tribunal constituted under Section 10 of the Act, within a time limit. 8. It is submitted by both counsel that the Act does not contemplate a time limit for moving the application under Section 10 before the Tribunal. Further, the erratum notification itself was published after ten years of the ordinance having come into effect. **WP(C).No.5235 OF 2014(D)** 6 When the Government publishes an erratum notification after a period of ten years, certainly the petitioner must be given an opportunity to dispute the validity and correctness of such a notification by moving the Tribunal constituted under the EFL Act. It is also to be borne in mind that the petitioner had moved this Court in 2014 through this writ petition challenging the erratum notification. The delay, if any, shall not stand as a prejudice to the petitioner in moving the Tribunal. In the circumstances, I dispose of this writ petition giving liberty to the petitioner to move the Tribunal constituted under Section 10 of the EFL Act. If the petitioner files an application before the Tribunal within a period of one month from the date of receipt of a copy of this judgment, the Tribunal shall take appropriate steps to consider and dispose of such an application on merits, as expeditiously as possible. The writ petition is disposed of as above. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(C).No.5235 OF 2014(D)** 7 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 EXT.P-1: A TRUE COPY OF THE ORDER DT.23.4.1979 IN O.A.NO.478/1976 OF THE HON'BLE FOREST TRIBUNAL, PALGHAT.** - **EXHIBIT P2 EXT.P-2: A TRUE COPY OF THE REPLY GIVEN BY THE 3RD RESPONDENT AS PER COMMUNICATION NO.MCCM 1375/95 OF THE 3RD RESPONDENT** - **EXHIBIT P3 EXT.P-3: A TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE HON'BLE CHIEF MINISTER OF KERALA DT.4.10.2004** - **EXHIBIT P4 EXT.P-4: A TRUE COPY OF THE LETTER NO.PGRCMM 95/04 DT.10/04 OF THE DISTRICT COLLECTOR, PALAKKAD** - **EXHIBIT P5 EXT.P-5: A TRUE COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION NO.C621437/2000 DT.21.4.2001 PUBLISHED IN KERALA GAZETTE NO.20 VOLUME 46** - **EXHIBIT P6 EXT.P-6: A TRUE COPY OF THE REVIEW PETITION FILED BY THE PETITIONER DT.31.1.2008 BEFORE THE 2ND RESPONDENT** - **EXHIBIT P7 EXT.P-7: A TRUE COPY OF THE LETTER NO.EFL 5 222/08 DT.6.3.2008 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** - **EXHIBIT P8 EXT.P-8: A TRUE COPY OF THE LETTER SEND BY THE PETITIONER TO THE 2ND RESPONDENT DT.31.3.2008** - **EXHIBIT P9 EXT.P-9: A TRUE COPY OF THE LETTER SEND BY THE 2ND RESPONDENT TO THE PETITIONER DT.29.4.2008** - **EXHIBIT P10 EXT.P-10: A TRUE COPY OF THE LETTER NO.C2 7062/2004 DT.7.5.2008 OF THE 3RD RESPONDENT** - **EXHIBIT P11 EXT.P-11: A TRUE COPY OF THE LETTER NO.C27300/08 DT.5.1.2009 ISSUED BY THE 2ND RESPONDENT** **WP(C).No.5235 OF 2014(D)** 8 **EXHIBIT P12 EXT.P-12: A TRUE COPY OF THE LETTER NO.EFL 5-222/08 DT.19.10.2009 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** **EXHIBIT P13 EXT.P-13: A TRUE COPY OF THE COMMUNICATION OF THE 3RD RESPONDENT TO THE PETITIONER EXHIBIT P14 EXT.P-14: A TRUE COPY OF THE ERRATUM NOTIFICATION AS EFL 10-1904/2010 DT.27.5.2010 PUBLISHED IN KERALA GAZETTE VOL.LV DT.22.6.2010** **EXHIBIT P15 EXT.P-15: A TRUE COPY OF THE AWARD DT.27.2.1993 IN L.A.R.NO.51/1990 OF THE HON'BLE SUB JUDGE, PALAKKAD.** **EXHIBIT P16 PHOTO COPY OF THE JUDGMENT IN WPC.NO.33701/2009 DATED 21/01/2010 OF THE HON'BLE HIGH COURT OF KERALA.**