P. Veerankutty v. Principal Chief Conservator of Forests & Custodian of Ecologically Fragile Lands, Arany Bhavan, Vazhuthacaud, Thiruvananthapuram & others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 10[TH] DAY OF MARCH 2022 / 19TH PHALGUNA, 1943`** ## **`WP(C) NO. 18565 OF 2011`** ## **`PETITIONER/S:`** ``` P.VEERANKUTTY, PAROKOT HOUSE, KURAVANCHIRA, EDATHUNATTUKARA,, PALAKKAD DISTRICT. ``` ``` BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SMT.A.LOWSY SRI.K.SHIBILI NAHA SRI.S.SUJIN ``` ## **`RESPONDENT/S:`** ``` 1THE PRINCIPAL CHIEF CONSERVATOR OF FORES FORESTS & CUSTODIAN OF EFL, ARANYA BHAVAN,, VAZHUTHACAUD, THIRUVANANTHAPURAM. 2THE ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FOREST (DEVELOPMENT) & CUSTODIAN, OF EFL, THIRUVANANTHAPURAM. 3THE DIVISIONAL FOREST OFFICER MANNARKKAD, PALAKKAD DISTRICT. 4THE WILDLIFE WARDEN SILENT VALLEY NATIONAL PARK, MANNARKKAD, PALAKKAD DISTRICT. 5STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, (FOREST & WILD LIFE, DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM. BY ADV GOVERNMENT PLEADER ``` ## **`OTHER PRESENT:`** ``` SRI.T.P.SAJAN, SPL.GP(FOREST) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- W.P.(C). No. 18565 of 2011 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 18565 of 2011 ============================================================= Dated this the 10[th ] day of March, 2022 ## **JUDGMENT** The above writ petition is filed challenging Ext.P11 order. The short facts are as follows: 2. By Ext.P1 judgment of this Court the authority concerned was directed to consider the application under Section 19(3)(b) of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 _(for short ‘the Act, 2003’)._ Based on the direction Ext.P2 order was passed by the competent authority, by which it is declared that the property is not ecologically fragile land. Thereafter, the same authority, invoking the powers of revision, passed Ext.P11 order, by which the earlier order is cancelled and it is declared that the land is ecologically fragile land. Aggrieved by Ext.P11, this writ petition is filed. -3- W.P.(C). No. 18565 of 2011 3. The main point raised by the petitioner is that the 1[st] respondent has no jurisdiction to pass Ext.P11 because, there is no power of review to the 1[st] respondent as per the Act, 2003. It is an admitted fact that there is no power of review to the 1[st] respondent. 4. The learned Government Pleader submitted that Ext.P2 is an order passed without following Rules 17 to 20 of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Rules, 2007. Therefore, according to the Government Pleader, Ext.P2 is unsustainable and the 1[st] respondent perfectly justified in passing Ext.P11 order. The Government Pleader also submitted that Ext.P2 is an order passed, which can be treated as “fraud on power”. 5. On the other hand, the learned counsel for the petitioner relied on the judgment of this Court in **T. Eswaranunni v. State of Kerala [2020 (2) KLT 362]** and -4- W.P.(C). No. 18565 of 2011 submitted that in a similar situation, this Court observed that there is no fraud and therefore, the order passed subsequently by the authority is unsustainable. It will be better to extract the relevant portion of the judgment in **T.Eswaranunni’s case (supra)** hereunder: “ _14. It is trite that a quasi-judicial authority is not empowered to revise or recall on merits, an order issued in exercise of the power conferred under the statute under which it functions, unless power is conferred under the statute for the said purpose. The only exception to the said proposition is fraud. Fraud vitiates even the solemn among solemn acts, howsoever high be its degree of solemnity, including judgments and orders rendered by courts is a principle which is long settled. The proposition that a judicial authority is entitled to recall an order on a finding that the same was one obtained by playing fraud on it is also settled. In Indian Bank v. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550 and Indian National Congress (I) v. Institute of Social Welfare, (2002) 5 SCC 685 , the Apex Court has held that even a quasi judicial authority is entitled to recall an order on a finding that the same was obtained by playing fraud on it. Paragraph 34 of the judgment in Indian National Congress reads thus:_ _"34. Coming to the first exception, it is almost_ -5- W.P.(C). No. 18565 of 2011 _settled law that fraud vitiates any act or order passed by any quasi-judicial authority even if no power of review is conferred upon it. In fact, fraud vitiates all actions. In Smith vs. East Ellos Rural Distt. Council - (1956) 1 All E.R. 855, it was stated that the effect of fraud would normally be to vitiate all acts and order. In Indian Bank vs. Satyam Fibres (India) Pvt. Ltd. - (1996) 5 SCC 550, it was held that a power to cancel/recall an order which has been obtained by forgery or fraud applies not only to courts of law, but also statutory tribunals which do not have power of review. Thus, fraud or forgery practised by a political party while obtaining a registration, if comes to the notice of the Election Commission, it is open to the Commission to deregister such a political party."_ _In other words, if an order is obtained by playing fraud on a quasi-judicial authority, the same can be revised or recalled by that authority notwithstanding the question as to whether the statute has conferred on it the necessary power to do so._ _15. Fraud on power that vitiates an order and an order obtained by playing fraud on an authority are altogether two different concepts. Fraud on power denotes exercise of a power for a purpose not intended, by exceeding or misusing the power. It voids the order, if the power is not exercised bona fide for the end designed. It focusses on the intention of the person exercising the power. In this context, it is apposite to quote a passage from the decision_ -6- W.P.(C). No. 18565 of 2011 _of the Apex Court in Collector (D.M.) v. Raja Ram Jaiswal, (1985) 3 SCC 1, which reads thus :_ _"Where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context 'in good faith' means 'for legitimate reasons' Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides. In such a situation, there is no question of any personal ill-will or motive. In Municipal Council of Sydney v. Campbell, 1925 AC 338 at p.375 it was observed that irrelevant considerations on which power to acquire land is exercised, would vitiate compulsory purchase orders or scheme depending on them ......"_ _In other words, the term "fraud" in connection with frauds on a power does not necessarily denote any conduct amounting to fraud in the common law meaning of the term. It merely means that the power has been exercised for a purpose or with an intention beyond the scope of or not justified by the instrument creating the power. On the_ -7- W.P.(C). No. 18565 of 2011 _other hand, an order obtained by playing fraud on an authority focusses on the intention of the person who obtained the order and in that case, the exercise of power by the incumbent in the office is bona fide._ _16. The operative portion of Ext.P9 order in terms of which Ext.P2 order was revised and the subject lands were notified again under the Act read thus:_ _"In the light of the discussions held above, I am convinced that the 17.0252 Ha. Of lands comprised in OA 103/79, the 9.7920 Ha. Of lands comprised in OA 203/79, and the 22.9921 Ha. Of lands comprised in OA 257/79 qualify for Ecologically Fragile Lands under Section 3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 as on 2.6.2000 as the lands are principally covered with naturally grown trees and undergrowth, the more than 90 cm girths at breast height possessed by many of the trees, above 30 years of age of these bigger trees, total absence of any symptoms of human cultivation or permanent improvements in the lands and the contiguity of the lands to the Vested Forests. I also find that the Order No.EFL (6) - 1061/2007 dt. 23.09.2015 of the Custodian of Ecologically Fragile Lands under reference (8) as palpably wrong and based on incorrect facts and is a mistake of facts and the same is not in conformity with the legal principles and against the actual facts on record apart from the fact that the Order came to be passed because of fraud. The De-notification No.EFL (6) - 1061/2007 dt._ -8- W.P.(C). No. 18565 of 2011 _14.01.2016 published in Kerala Gazette No.5 dt. 2.2.2016 under reference (9) is found to be void as the same is the result of the reference (8) wrong Order and is non- operative being defective one not in conformity with the statutory provisions._ _In the above circumstances, I, Bennichan Thomas, IFS, Principal Chief Conservator of Forests and Custodian of Ecologically Fragile Lands, hereby order that the Section 19(3)(b) Order No.EFL (6) - 1061/2007 dt. 23.09.2015 of the Custodian of EFL declaring the lands comprised in OA 103/79, OA 203/79 and OA 257/79 as not an Ecologically Fragile Land, is to be corrected and fresh orders passed. I, hereby order declaring the 17.0252 Ha. Of land comprised in OA 103/79, the 9.7920 Ha. Of land comprised in OA 203/79 and the 22.9921 Ha. Of land comprised in OA 257/79 as Ecologically Fragile Lands under Section 3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 as on 2.6.2000. I also order to issue the Notification in this regard in the Gazette, as per Section 3(2) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003."_ _As revealed from the extracted portion of Ext.P9 order that though it is recited in Ext.P9 order that Ext.P2 order came to be passed because of fraud, the order does not give any particulars as to the fraud either on the part of the petitioners or on the part of the incumbent in the_ -9- W.P.(C). No. 18565 of 2011 _office of the custodian then. At the time of arguments, the learned Additional Advocate General has contended that Ext.P2 is an order vitiated by fraud on power as also an order obtained by playing fraud on the custodian. To bring home the contention that the order is vitiated by fraud, the learned Additional Advocate General has highlighted that Ext.P2 order was passed by the incumbent on the verge of his retirement without sufficient materials and contrary to the provisions contained in the Act and the Rules. To bring home the contention that the order was one obtained by playing fraud on the authority, the learned Additional Advocate General has highlighted that true facts have not been divulged in the application preferred by the first petitioner. The arguments are mutually destructive, for, if the custodian was bent upon passing an order in favour of petitioners maliciously, there is no question of playing fraud on it. True, it is not easy to give a definition of what constitute fraud in the extensive signification in which that term is understood. Fraud include all acts, omissions, and concealment which involved in breach of legal or equitable duty, trust or confidence justly repose and are injuries to another or by which an undue or unconscientious advantage is taken off another. Mere wrong statement of fact in an application or mere nondisclosure of a relevant fact would not by itself constitute fraud, for, such acts may not necessarily be acts made deliberately. In order to constitute fraud, the culpable mind has to be demonstrated. Similarly, merely for the reason that an order was passed by the incumbent in the_ -10- W.P.(C). No. 18565 of 2011 _office on the verge of his retirement, it cannot be contended that the order is vitiated by fraud on power without anything further. A palpably wrong order on merits of the matter, according to me, cannot be said to be an order vitiated by fraud on power nor a palpably wrong order does not lead to the presumption that the same was obtained by playing fraud on the authority. In other words, on the aforesaid reason, the successor in office cannot recall or revise an order passed by his predecessor, in exercise of the statutory power. If it is held that quasi-judicial authorities dealing with property rights of citizens have powers to recall palpably wrong orders passed by their predecessor without there being a specific power conferred on them under the statute, the same would go against the principle that rights in property and rights in general should not be in a state of constant uncertainty, doubt and suspense and there would be utter chaos and no one would be in a position to transact on properties. True, it is a hard case for the State, but hard cases cannot make bad laws [See Umesh Chandra Shukla v. Union of India, (1985) 3 SCC 721]. In short, I am constrained to hold that the custodian was not justified in recalling or revising Ext.P2 order for the reasons mentioned in Ext.P9 order. Insofar as it is held that the custodian had no power to recall Ext.P2 order, it is unnecessary to go into Question (ii).”_ 6. Keeping in mind the above principle laid down by this Court, I perused Ext.P11 order. A perusal of Ext.P11 order -11- W.P.(C). No. 18565 of 2011 would show that it is in effect a review of Ext.P2 order. This Court is not in a position to accept the contention of the Government Pleader that there is ‘fraud on power’. Ext.P11 order would show that there was an inspection and thereafter, based on the same Ext.P11 order is passed. It will be better to extract the relevant portion in Ext.P11 here: _“Further, the committee under rule 18 was comprised of three members. As per the rules, the three members were to be present when the disputed land was inspected. But the report submitted after inspecting the land on 11-012007 and another member on 11-04-2007 did not have all the three members together and hence cannot be considered as valid committee and hence the report is also not legally valid and cannot be considered as the report of three member committee. The report ought to have been rejected. Regarding other applications for part of the land notified along with the disputed land, the custodian had inspected the land, and had rejected the findings of the committee, and had decided to maintain the land as ecologically fragile land. The land belonging to Sri Veerankutty is not separately identifiable from the 50.7200 hectares of land notified as ecologically fragile land Further, the alleged cultivation of rubber cannot satisfy the exemption clause that principally cultivated_ -12- W.P.(C). No. 18565 of 2011 _with crops of long duration as the report shows that there are only 2500 rubber trees in the land._ _The report dated 11.01.07 and 11.4.07 is not acceptable as it is not legally valid. The reports regarding the status of the land submitted by the high level committee constituted as per Government orders, the Wildlife Warden, the Divisional Forest Officer all show that the land qualifies to be vested under the provisions of the EFL Act. The vegetation in the the land as on 02-6-2000 is crucial. This is possible to be decided primarily through sample plot analysis and secondarily through the documents available with respect to the land. The sample plot details show that the principal growth in the land is natural species which is similar to the adjoining forest._ _The objection raised by the petitioner is whether the custodian can correct the mistakes in the earlier proceedings under reference (8), which are jurisdictional in nature. It is settled law that a proceedings or order passed by a statutory authority on an incompetent application and without getting the reports which are statutory is without jurisdiction and non-est in the eye of law. Further, the petitioner fraudulently claimed ownership as on 02.06.2000. Hence the proceedings under reference (8) cannot be treated to be legally in existence, until and after all requirements under rule 17 is complied with. In the present case, proceedings under reference (8) cannot be treated as legally in existence since the applicant is not_ -13- W.P.(C). No. 18565 of 2011 _competent to submit application and the committee that inspected the land is not a legally acceptable committee. Further. the proceedings has not come into effect Under section 19 (3) (b) of the Act, after scrutiny of the application, the custodian, Ecologically Fragile Land shall issue a revised notification in accordance with the provisions of the Act Only after survey and demarcation of the disputed land and after issuing the revised notification the procedure under section 19 (3) (b) of the Act will be complete. The matter is still under the powers of custodian and hence has authority to recall the same. Hence, the custodian has reasons to recall the proceedings under reference (8) and is competent to do so. As per judgment dated 10.01.2011 in WP(C) No 34521/2010, the Honorable High Court has also directed to conclude the proceedings with notice to the petitioner as expeditiously as possible._ _In view of the above, I am convinced that there are enough reasons to recall the order under reference (8). Accordingly, I KP.Ouseph, Additional Principal Chief Conservator of Forests (Development) and Custodian. Ecologically Fragile Lands hereby order to recall the proceedings under reference (8) and the said order stands cancelled with immediate effect. The land involved in the application submitted by Sri P Veerankutty shall be maintained as ecologically fragile land as per EFL Act and rules.”_ 7. From the above extracted portion, it cannot be -14- W.P.(C). No. 18565 of 2011 concluded that Ext.P2 order came to be passed because of fraud. The order does not give any particulars as to the fraud either on the part of the petitioners or on the part of the incumbent in the office of the custodian. There is no ‘fraud on power’ as contended by the Government Pleader. In such situation, there is no power of review and hence, the 1[st] respondent has no authority to pass an order like Ext.P11. Therefore, according to me, Ext.P11 is unsustainable in the light of the principle laid down by this Court in **T.Eswaranunni’s case (supra)** . Therefore, this writ petition is to be allowed. Therefore, this writ petition is allowed. Ext.P11 order is set aside. No costs. sd/- ## **P.V.KUNHIKRISHNAN JUDGE** das -15- W.P.(C). No. 18565 of 2011 ## **`APPENDIX OF WP(C) 18565/2011`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1` - `TRUE COPY OF THE JUDGMENT DATED 07.04.2006 IN W.A. NO. 784 OF 2006 OF THIS HON'BLE COURT.` - `Exhibit P2 TRUE COPY OF THE ORDER NO.EFL-89/2006 DATED 21.04.2007 PASSED BY THE 1ST RESPONDENT.` - `Exhibit P3 TRUE COPY OF THE LETTER NO. SVI2952/2007 ISSUED BY THE 3RD RESPONDENT.` - `Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 18.05.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.` - `Exhibit P5 TRUE COPIES OF THE REPLY RECEIVED BY THE PETITIONER FROM THE 4TH RESPONDENT DATED 27.05.2010.` - `Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 10.01.2021 IN WP(C) NO. 34521 OF 2010 OF THIS HON'BLE COURT.` - `Exhibit P7 TRUE COPY OF THE STATEMENT FILED BY THE PETITIONER ON 18.01.2011 BEFORE THE 1ST RESPONDENT.` - `Exhibit P8 TRUE COPY OF THE NOTICE DATED 22.02.2011 RECEIVED BY THE PETITIONER FROM THE 2ND RESPONDENT.` - `Exhibit P9 TRUE COPY OF THE INSPECTION REPORT OF THE EFL COMMITTEE DATED 03.02.2011.` - `Exhibit P10 TRUE COPY OF THE OBJECTIONS DATED 05.03.2010 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.` - `Exhibit P11 TRUE COPY OF THE PROCEEDINGS NO. EFL 7-86/06 DATED 08.04.2011 ISSUED BY THE 2ND RESPONDENT.`