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2017 Supreme(Ker) 339
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Antony Dominic & Dama Seshadri Naidu, JJ.
BABU JOSEPH, S/O. LATE SHRI R.J. JOSEPH AND ORS. – PETITIONERS
Versus
STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, FOREST DEPARTMENT AND ORS. – RESPONDENTS
WPC Nos.2548 of 2012 & 20548 of 2016
Decided On : 21-02-2017
For the Petitioner: SRI. P.V. JAYACHANDRAN
For the Respondent: SRI. SAJEEV KUMAR K. GOPAL, SRI. U.K. DEVIDAS, SRI. THAJUDEEN
The central legal point established in the judgment is the interpretation and application of the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (Act 5 of 2000), particularly Section 10, in the context of land use disputes and the establishment of industrial units.
Headnote:
Ecologically Fragile Land - Land Use Dispute - Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (Act 5 of 2000) - Section 10
Fact of the Case:
The writ petitions concern the establishment of a crusher unit in a property located in a landslide-prone area, which has been notified as Ecologically Fragile Land (EFL) under the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003. The petitioners sought to quash the order directing the grant of a license for the crusher unit and to declare the sale deed conveying the property as illegal.
Finding of the Court:
The court found that the property in question was not notified as EFL under the Ecologically Fragile Lands Act 2003, as clarified by the government's affidavit. The court also noted that the petitioner was entitled to proceed with the establishment of the crusher unit in compliance with the relevant orders and clearances.
Issues: The issues involved the notification of the land as Ecologically Fragile Land, the validity of the sale deed, and the grant of a license for the crusher unit.
Ratio Decidendi: The court's decision was influenced by the clarification that the property was not notified as EFL, as well as the petitioner's entitlement to proceed with the establishment of the crusher unit in compliance with the relevant orders and clearances.
Final Decision: The court disposed of the writ petitions, allowing the establishment of the crusher unit with certain directions and provisions for addressing potential violations.
Antony Dominic, J.
The issues raised in these writ petitions are connected and therefore, at the request of the counsel for both parties, these cases are heard together and are accordingly disposed of by this common judgment.
2. We shall first deal with WPC No.2548 of 2012. This writ petition is filed by some of the residents of Arakkuparambu Village, Perinthalmanna Taluk. Their prayer is to quash Ext.P6 order issued by the District Single Window Clearance Board, Malappuram directing the third respondent to grant license to the fourth respondent to start a crusher unit in the property in Sy.No.1/2 of Arakkuparambu Village. There is a further prayer to direct the first respondent to recover possession of the aforesaid property from the fourth respondent and to declare that Ext.P3 sale deed, alienating the property mentioned above in favour of the fourth respondent, is illegal and to cancel the same.
3. The case of the petitioners is that the property conveyed by Ext.P3 sale deed to the fourth respondent is located in a landslide prone area and that the land in question has been notified as Ecologically Fragile Land (in short EFL) under the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003. According to them, in pursuance to the notification declaring the land as EFL, the Land Revenue Commissioner issued Ext.P2 order dated 8.7.2009 prohibiting alienation of the lands mentioned therein, which includes Ext.P3 property also. The petitioners allege that in violation of the notification and Ext.P2 order of the Land Revenue Commissioner, Ext.P3 sale deed was executed by the land owner on 31.8.2010 conveying the land to the fourth respondent.
4. It is stated that seeking its clearance, the fourth respondent applied to the Single Window Clearance Board and that by Ext.P4 order, the Board rejected the application. However, in an appeal that was filed by the fourth respondent, the State Single Window Clearance Board remitted the matter for fresh consideration. Accordingly, the application was re- considered by the District Board and the District Board issued Ext.P6 order dated 28.11.2011 where it ordered inter alia thus:
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5. Despite the aforesaid order and the provisions contained in Section 10 of the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (Act 5 of 2000), the third respondent Panchayat, Thazhekkode Grama Panchayath declined license as per Ext.P7, minutes of the meeting held on 6.1.2012. It is on these pleadings petitioners are seeking the reliefs mentioned above.
6. We heard the learned counsel for the petitioners, the learned Government Pleader and the learned Senior counsel appearing for the party respondent.
7. This writ petition is filed by the petitioners contending that the land conveyed by Ext.P3 is an Ecologically Fragile Land, that its alienation has been prohibited by Ext.P3 proceedings of the Land Revenue Commissioner and that in view of Ext.P7 decision of the Panchayat declining license, the crusher unit cannot be established.
8. Having considered these contentions, we find that in so far as the case that the land in question is notified as an EFL is concerned, that aspect of the matter has been clarified by the first respondent in its affidavit dated 9th of March 2012, wherein it has been stated thus:
"It is submitted that as per the revenue records the extent of land in Survey No.1/2 of Arakkuparamba Village in Perinthalmanna Taluk is 662.79 acres which includes 57 acres of forest land (VFC Item No.34). Out of this 57 acres of land an extent of 4.856 ha(12 acres) of land involved in OA 222/1976 and owned by one Nalakath Mohammedkutty and 3.237 ha (8 acres) of land involved in OA 223/1976 and owned by one Nalakath Manu in Survey No.1/2 of Arakkuparamba Village in Perinthalmanna Taluk was notified by the Forest Department under Section 3 of Ecologically Fragile Land as per Notification No.C4- 21437/2000 dated 25.10.2000 and publish
