J.B.J Plantation Private Ltd. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942** ## **WP(C).No.20595 OF 2020(Y)** ## **PETITIONER:** **J.B.J PLANTATION PRIVATE LTD., HAVING REGISTERED OFFICE AT 5C, ALLIANCE RESIDENCY, MARINE DRIVE, ERNAKULAM, REPRESENTED BY THE DIRECTOR, VENUGOPALAN, S/O. NARAYANAN NAIR, AGED 60, KOTHERI HOUSE, ALOOR P.O, MATTAM, THRISSUR DISTRICT.** **BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**FOREST AND WILD LIFE DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE CUSTODIAN (ECOLOGICALLY FRAGILE LAND) AND**| ||**ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FOREST**| ||**(SOCIAL FORESTRY) VAZHUTHACADU,**| ||**TRIVANDRUM - 695 033.**| |**3**|**THE DIVISIONAL FOREST OFFICER,**| ||**MANNARKKADU, PALAKKADU DISTRICT - 678 582.**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) No.20595 of 2020** **2** ## **JUDGMENT** **Ext.P1 notification issued by the 2[nd] respondent, by which 40.7 Hectares of land of the petitioner is declared to have been vested in the Government, under Section 3(2) of the Forest (Vesting and Management of Ecologically Fragile Lands) Act 2003 ('EFL Act' for short), is under challenge in this Writ Petition.** **2. Sri. Manilal the learned Counsel for the petitioner argued that there cannot be any vesting under Section 3 of the Act after about 17 years of the commencement of the Act; no action can be taken under Section 3 after a period of 5 years; Vesting under Section 3 would apply only to those lands, which satisfied the definition of 'ecologically fragile land' under Section 2(b) of the Act and therefore the status of land as on 02.06.2000, the date of commencement of the Act, shall be that of a** **W.P.(C) No.20595 of 2020** **3** **forest land. No plantation would come under the definition of forest under Section 2(c) of the EFL Act 2003; producing Ext.P3 BTR, Ext.P4 tax receipt, Ext.P6 receipt towards payment of plantation tax, Ext.P7 possession certificate, Ext.P8 notification dated 03.12.1985 under the Kerala Preservation of Trees ordinance, Ext.P9 transit pass issued on 07.08.2017, petitioner claims that the notified land is a private coffee plantation. On the strength of Ext.P10, it claims that the adjacent properties are assigned to individual cultivators and that all those materials would show that the land was not forest land as on 02.06.2000; relying on Exts.P11 and P12 certificates, the 3[rd] respondent has as early as in 2011 issued a certificate that it is a plantation and not an EFL. It is also his contention that these proceedings are initiated manipulating the records only because of Ext.P13 order of the District Collector issued on 25.09.2014. It is also** **W.P.(C) No.20595 of 2020** ## **4** **his contention that 2[nd] respondent is not competent to issue a notification of vesting under Section 3 and that power is conferred only on Government. He also alleges malafides on account of Ext.P13 order passed by the District Collector.** **3. Sri.Sandesh Raja, the learned Special Government Pleader for Forests, points out that an effective statutory remedy is available for the petitioner under Section 10 of the EFL Act, 2003 before the Tribunal constituted under the Act. But according to Sri.Manilal, the learned Counsel for the petitioner, remedy under Section 10 is available only if he could raise his claims within a period of 2 years of the commencement of the Act or if the notification was issued under Section 4(1). The learned Special Government Pleader, relying on the judgment of the Division Bench in** _**Thresiamma Varghese and others v. State of Kerala**_ **[2018 (1) KHC 327], pointed out that petitioner can very well** **W.P.(C) No.20595 of 2020** **5** **approach the Tribunal under Section 10. Sri.Sandesh Raja, the learned Special Government Pleader, also pointed out that the 2[nd] respondent is the statutory authority appointed by the Government to exercise all powers under the Act and notification is issued by him in exercise of his powers. It is also his contention that there is no time limit for issuing notification under Section 3 and that the land in question is a Forest which is already vested in government by virtue of the operation of the statute.** **4. Having heard the contentions on either side, it is seen that there are serious factual disputes which have to be adjudicated after adducing evidence. Relevant portion of Section 10 of the EFL Act read as follows:** _**“S.10. (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**_ **W.P.(C) No.20595 of 2020** **6** _**(c)the compensation determined under Section 8 is sufficient 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 two years from the date of commencement of this Act or within six months from the date of the notification under subsection (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, apply to the Tribunal for decision of the dispute.**_ _**(2) An application under sub-section (1) shall be in such form and contain such particulars as may be prescribed.**_ _**xxxx”**_ **5. In the judgment in** _**Thresiamma's**_ **case, the notification under Section 3(2) of the EFL Act was issued on 05.09.2012. She submitted application before the Tribunal in 2017 stating that she came to know about it only on 28.02.2017. The Tribunal dismissed the application seeing that there was a delay of 1498 days. After analysing various provisions including Sections 3, 19, etc of the EFL Act, EFL Rules and also the EFL Tribunal Rules, the Division Bench found that there is no provision in** **W.P.(C) No.20595 of 2020** **7** **the Act, which compels the owner of the land, to approach the Tribunal within a particular period and that provisions available are for approaching the custodian and therefore Rule 3(1) of the Tribunal Rules or its proviso cannot have any application. It was found that an anomaly was created by the rules. The Tribunal was directed to consider the application on merits giving liberty to the Department to raise their contentions on delay.** **6. In the present case there is no delay. Therefore petitioner is free to approach the Tribunal under Section 10 against Ext.P1 notification. There would not be any legal impediment for the Tribunal to entertain such a petition in the light of the aforesaid judgment of the Division Bench. Petitioner would also be free to file a petition for interim orders, which the Tribunal shall consider in accordance with law.** **The Writ Petition is accordingly disposed** **W.P.(C) No.20595 of 2020** **8** **of, leaving open all the contentions raised on both sides and giving liberty to petitioner to approach the Tribunal under Section 10 of the Act, 2003.** **Sd/-** **P.V.ASHA** **JUDGE** ww **W.P.(C) No.20595 of 2020** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION BY THE 2ND RESPONDENT DATED 19-06-2020.** **EXHIBIT P2 TRUE COPY OF THE LETTER OF THE 3RD RESPONDENT DATED 28-07-2020. EXHIBIT P3 TRUE COPY OF THE BTR. EXHIBIT P4 TRUE COPY OF THE LAND TAX RECEIPT DATED 11-062019. EXHIBIT P5 TRUE COPY OF THE SALE DEED DATED 11-3-1997. EXHIBIT P6 TRUE COPY OF THE PLANTATION LAND TAX RECEIPT DATED 19-10-2019. EXHIBIT P7 TRUE COPY OF THE POSSESSION CERTIFICATE 30-12019. EXHIBIT P8 TRUE COPY OF THE NOTIFICATION DATED 26-111985. EXHIBIT P9 TRUE COPY OF THE DECLARATION FOR TRANSPORTATION OF TIMBER DATED 7-08-2017. EXHIBIT P10 TRUE COPY OF THE LIST OF PERSONS TO WHOM FOREST LAND WAS ASSIGNED. EXHIBIT P11 TRUE COPY OF THE CERTIFICATE OF THE 3RD RESPONDENT DATED 7-7-2011. EXHIBIT P12 TRUE COPY OF THE CERTIFICATE OF THE RANGE OFFICER, AGALI DATED 12-05-2017. EXHIBIT P13 TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, PALAKKAD DATED 25-09-2014.**