Jacob V. Elias and others v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE ACTING CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY, THE 28TH DAY OF NOVEMBER 2017/7TH AGRAHAYANA, 1939 WA.No. 2180 of 2017 IN WP(C).24849/2015 -------------------------------------------------AGAINST THE JUDGMENT IN WP(C) 24849/2015 of HIGH COURT OF KERALA DATED 21/8/17 -------- APPELLANTS/PETITIONERS: ------------------------------ ## 1. MR.JACOB V.ELIAS S/O ELIAS, PARAPPATHKUZHIYIL, KILIMANGALAM VILLAGE, THALAPPALLY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, THOMAS MATHEW, S/O K M MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPALAM TALUK, PALAKKAD DISTRICT. ## 2. MRS. ANITHA THOMAS W/O THOMAS MATHEW, SHORNUR, OTTAPPALAM TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, THOMAS MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPALAM TALUK, PALAKKAD DISTRICT. ## 3. MRS. ANNAMMA MATHEW W/O MATHEW, SHORNUR, OTTAPPALAM TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, THOMAS MATHEW,KAVUNGAL HOUSE, SHORNUR, OTTAPALAM TALUK, PALAKKAD DISTRICT 4. MR. P.V.SUGATHAN S/O PONNARASSERI VASU, KORATTIKARA DESOM, KADAVALLUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. 5. MR. SINDU W/O SURESHKUMAR, THANISSERY DESOM, MANAMALASSERY VILAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. WA.No. 2180 of 2017 -2- ## 6. MRS. ANITHA ROY W/O ROY KURIAN, TRIPUNITHURA VILLAGE, KANAYANNUR TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER THOMAS MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPPALAM TALUK, PALAKAKD DISTRICT. ## 7. MRS. A.J.RAICHAL W/O ELIAS, PARAPPATHKUZHIYIL KILIMANGALAM VILLAGE, THALAPPILLY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, THOMAS MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPPALAM TALUK, PALAKKAD DISTRICT. ## 8. MR.V.K.JOSEPH S/O KURIAKOSE, PARATHKUZHIYIL HOUSE, KILIMANGALAM VILLAGE, THALAPPILLY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, THOMAS MATHEW, S/O K M MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPPALAM TALUK, PALAKKAD DISTRICT. ## 9. MISS.V.K.MONCY D/O KURIAKOSSE, KURUMALA VILLAGE THALAPPILLY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, THOMAS MATHEW, S/O K M MATHEW, KAVUNGAL HOUSE, SHORNUR, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 10. MR.SAJEEV KUMAR S/O RAMAKRISHNAN, MANAMALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 11. MR. SANTHOSHKUMAR S/O RAMAKRISHNAN, MANAMALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 12. MR. SURESHKUMAR - S/O RAMAKRISHNAN, MANAMALASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.G.HARIHARAN SRI.PRAVEEN.H. ## RESPONDENTS/RESPONDENTS: ----------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY FOR FOREST, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. WA.No. 2180 of 2017 -3- ## 2. THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS AND CCF (BIODIVERSITY) THIRUVANANTHAPURAM, PIN-695001 ## 3. THE DIVISIONAL FOREST OFFICER PALAKKAD DISTRICT, PIN-678001. BY SPL. GOVERNMENT PLEADER (FOREST) SRI.SANDESH RAJA BY SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC, Ag. C.J. & DAMA SESHADRI NAIDU, J.** ------------------------------------------------ W. A. No.2180 of 2017 -----------------------------------------------Dated this the 28[th ] day of November, 2017 ## **JUDGMENT** ## **Antony Dominic, Ag. C.J.** 1. aThis writ appeal is filed against the judgment of the learned single Judge in W.P.(C) No.24849 of 2015. By the judgment under appeal, the learned single Judge disposed of the writ petition along with W.P.(C) No.8128 of 2010, relegating the appellants herein to pursue their remedies before the Forest Tribunal constituted under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, hereinafter referred to as EFL Act”. It is aggrieved by the said judgment, this appeal is filed. 2. We heard the learned counsel for the appellants and the learned Government Pleader appearing for the -2- W. A. No.2180 of 2017 respondents. 3. According to the learned counsel for the appellants, having regard to the law laid down by this Court in **State of Kerala v. Kumari Varma [2011 (1) KLT 1008]** and the judgment in W.A. No.931 of 2012, the learned single Judge ought to have allowed the writ petition and ordered restoration of the land to the appellants. However, having considered the submission made, we confess our inability to accept the plea. 4. While it is true that the land was initially proceeded against as a vested private forest, which proceedings were successfully challenged by the appellants before the Forest Tribunal, it was long thereafter that the land was notified as an ecologically fragile land under the EFL Act. It is in the light of these facts, the learned counsel for the appellants contends that having regard to the law laid down in **Kumari Varma's case** (supra), which was followed in the judgment in W.A. No.931 of 2012, the land ought to have been held to W. A. No.2180 of 2017 -3- be not an ecologically fragile land and restored to the appellants. 5. Though this plea would appear to be attractive, a reading of the judgment in **Kumari Varma's** case (supra) shows that, the case involved an extent of land, which, as in this case, was proceeded against as vested private forest under Act 26 of 1971; before the Forest Tribunal, the parties therein had successfully got the proceedings invalidated; even thereafter, the possession of the land was not restored to the land owners and it was while so, that the EFL Act came to be enacted and the land in question was notified as ecologically fragile land. It was in this factual background, this Court took the view that despite a declaration by the Forest Tribunal which had attained finality, the authorities illegally retained the possession of the land and allowed natural growth in the land. According to us, in such a situation, relying on the natural growth which occurred in the meanwhile, the land cannot subsequently be termed to W. A. No.2180 of 2017 -4- be an ecologically fragile land. It is this judgment which was followed in the judgment in W.A. No.931 of 2012. 6. Insofar as this case is concerned, facts show that after the order of the Forest Tribunal holding that the land in question is not a vested private forest, the land is claimed to have been restored to the Receiver appointed by the Court. That means that, according to the Forest Department, they have ceased to be in possession of the land with the restoration of the possession of the land to the Receiver. This factual aspect, makes this case distinct from the case dealt with by this Court in **Kumari Varma's** case (supra) and W.A. No.931 of 2012. 7. In that view of the matter, we feel, _prima facie,_ that the judgments relied on by the learned counsel for the appellants cannot be applied to the facts of this case and according to us also, the remedy of the appellants should be worked out before the Tribunal constituted under the EFL Act. W. A. No.2180 of 2017 -5- 8. We do not find any reason to interfere with the judgment under appeal. Appeal fails and is accordingly dismissed. However, having regard to the pendency of the suit, writ petition and the appeal, it is ordered that if the appellants move the Tribunal within one month from today, that will be entertained by the Tribunal ignoring the delay, if any, that was caused in the meanwhile. Sd/- **ANTONY DOMINIC ACTING CHIEF JUSTICE** Sd/- **DAMA SESHADRI NAIDU JUDGE** kns/- //TRUE COPY// P.S. TO JUDGE W. A. No.2180 of 2017 -6-