The grievance raised in this petition, to initiate contempt of court proceedings, is that, in spite of Annexure A judgment containing a time bound direction to restore the land covered by the judgment in M.F.A,No.804/90, the Custodian is, for one or the other reasons, postponing it, thereby committing contempt of court.

2. The answer by the alleged contemner is that because of the enforcement of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for short ‘the Act’), the land, being an ecologically fragile land in terms of S.3(1) of the Act, lying contiguous to vested forest has statutorily vested with the Government, notwithstanding the judgment directing restoration. Therefore, the Custodian is unable to restore the land.

3. This contention is countered by the petitioner relying on the decision reported in Joseph v. Lissy Jacob (2000 (3) KLT SN 68) wherein it has been held that a plantation which had been directed to be restored could not have been contended to be an ecologically fragile, land in the light of the Act. Therefore, the contention of the custodian cannot be accepted, the petitioner submits.

4. First of all, I will deal with the contentions centered around the Division Bench judgment in Joseph case. That was also an order in a contempt proceedings initiated by the person, who had obtained the order for restoration. That restoration was, as is discernible from the reported decision, a developed plantation. Taking into account that fact and the wording in the Ordinance then in force, the Division Bench said that such a plantation could not have vested. This was so because of sub-s.(2) to S.(3) of the Ordinance. It reads as follows:

"Nothing contained in sub-s.(1) shall apply in respect of any land cultivated with coffee or cardamom held by an owner under valid registration for the plantation raised after obtaining due permission from legally competent authorities."

It was in the light of this Sub-Section, it was held by the Division Bench that the plantation could not have vested automatically in terms of Clause 3(1) of the Ordinance as ecologically fragile land.

5. Such a sub-s.(2) is absent in S.3 of the Act. In other words, there is no provision for exempting a plantation in the Act. Therefore, that Division Bench judgment can no more be applied to the facts of this case, in the light of the present provision in the Act. Moreover, the land in question ordered to be restored is admittedly not a plantation.

6. It is further contended that there is no notification in terms of S.4 of the Act declaring the land in question as ecologically fragile land. Without a notification, there arises no question of vesting in terms of S.3, the petitioner contends.

7. I am unable to accept that contention. S.2(b)(i) defines ecologically fragile land as follows:

(b) “ecologically fragile lands", means,-­

(i) any forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation; and

(ii) any land declared to be an ecologically fragile land by the Government by notification in the official Gazette under S.4.”

By reason of S.2(i) as extracted above, any portion of forest land lying contiguous to the reserved forest or vested forest, is also statutorily treated as ecologically fragile land. Ext.R1 (a), which is not disputed before me, indicates that the land in question is lying abutting, on its east and west boundaries, vested forests. Therefore, the land in question, prima facie, falls within the definition of ecologically fragile land. When a land is ecologically fragile land, it automatically vests with Government as provided in S.3(1) which reads as follows:

3. Ecologically fragile lands to vest in Government:

(1) Notwithstanding anything contained in any other law for the time being in force, or in any judgment, decree, or order of an