IMPORTANT POINTS:
• Even if a person approaches the Tribunal after rejection by the Custodian, from the very nature of powers that the Tribunal wields under the EFL Act and Rules, it can only be regarded as an original proceedings before it
• Once a statute provides a right of appeal, it is not merely a matter of procedure, but it is a matter of substantive right. We do not find any express provision in the EFL Act conferring a right on the Tribunal to sit in appeal on a decision by the Custodian. From the provisions in the EFL Act and the Rules discussed above, we find no reason even to infer an appellate power for the Tribunal, albeit such an interference will not confer appellate jurisdiction to the Tribunal.
• Section 107 of the Code clearly says that subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on courts of original jurisdiction in respect of suits instituted therein. The same principle applies to judicial Tribunals empowered to adjudicate legal rights.

Hariprasad, J.

Quintessential question arising for decision in this appeal preferred by the State Government, against the decision by a Tribunal, constituted under Section 9 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (in short, “the EFL Act”), is whether it has jurisdiction to remand a case to the Custodian, as defined under Section 2(a) of the EFL Act, to comply with the formalities under Section 3(2) of the said Act. Essentially the question is one relating to the Tribunal's jurisdiction to remand a case to the Custodian on the premise that the Tribunal exercises an appellate jurisdiction on the Custodian's decision.

2. Heard the learned Special Government Pleader appearing for the appellants and learned counsel appearing for the respondent.

3. Relevant facts, in nut shell, are as follows: Respondent filed an application under Section 10(1) of the EFL Act before the Tribunal praying to declare that two parcels of lands having extent of 8 acres and 7 acres comprised in re-survey No.574 in Vellamunda in Mananthavady Taluk in Wayanad District, covered by notification No. C4-21437/2000, are not ecologically fragile lands. It is contended that the lands are not vested in the Government under the EFL Act. It is pertinent to note that the EFL Act came into force with effect from 02.06.2000.

4. State Government opposed the application by contending that the lands satisfy the definition of “ecologically fragile land” in Section 2(b) of the EFL Act and became therefore vested in the Government under Section 3(1) of the said Act, thereby depriving the respondent of his right, title and interest over the properties.

5. It may be apposite to take note of the fact that the original applicant (respondent herein) had earlier filed an application before the Custodian on 07.02.2007 under Section 19(3)(b) of the EFL Act to scrutinise the notification declaring the said lands as ecologically fragile lands and to revise the notification finding that the lands are not so. As there was some mistake in the form of application, the respondent had to file another application with supporting documents. Pursuant to the application, a committee constituted under Rule 18 of the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Rules, 2007 (in short, “the EFL Rules”) visited the property and submitted Ext.A34 report. The committee in its report observed as follows:

“On verification in the field by Committee it is found that land claimed by Sri.Muhammad Nisar is outside the area having the natural vegetation. A stone crusher unit is seen set up in this land. This is bounded by Vested Forests and partly by private land belonging to Annamma Thomas on the North, private land belonging to Stephan and Chandran on the East, EFL land taken from Chandran on the Southern side and private land and partly EFL land taken from C.M.Rajan on the Western side. This land contains two quarries of size 103x47 M and 87x11 M, 7 buildings, 1 generator room, crusher building, explosive storage room, 3 water tanks, tarred road having approximate length of 200 M, 3 yards of storage of finished metal etc. The tree growth in the land is very sparse. The area was planted previously with rubber and coffee but those are totally absent now. 11 KV electric line is seen stretched along 4 KM and connected to the crusher unit. Since the tree growth is sparse, this land is not predominantly supporting any tree growth. Hence this land doesn't attract the definition of EFL as defined in the Act.”

Thereafter, it concluded the report thus:

“It is seen that some mistake has been occurred in notifying the land under EFL Act while land with good tree growth is excluded from the purview; land with sparse tree growth is seen included. Therefore, the Committee recommended for detailed survey of the land qualifying EFL definition and publish erratum notification to rectify the mistake occurred in the matter. A sketch showing the location of