Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Ker) 620

IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. MANIKUMAR, SHAJI P. CHALY, JJ.
Principal Chief Conservator of Forests, Kerala, the Custodian (Ecologically Fragile Lands), Custodian Office, Forest Head Quarters, Vazhuthakkad & Ors. - Appellants
Versus
E. Moideen Koya, S/o. E. Beerankutty - Respondent
W.A. Nos. 834, 848, 851, 854, 874, 862, 890, 917, 1038, 1039, 1040, 1041 & 1042 of 2020
Decided On : 01-09-2021

Advocates Appeared:
For the Appellants : Special Government Pleader For Forests Mr. Sandesh Raja.
For the Respondent: Mr. K.M. Firoz, Mrs. M. Shajna.

Point of Law : Any interpretation, which leads to injustices and absurdity, must be avoided and, in such situations, court may look into the purpose for which, the statute has been brought and would try to give a meaning, which would adhere to the purpose of that statute.

Headnote:
Ecologically Fragile Lands Act 2003 – Section – 3(2) -10A ,10 A(7),2(b)(i) – Constitution of India – 1950 – Article 226 – Ecologically fragile land to vest in Government - agricultural lands - Settlement of disputes by the Tribunal - Lands vested in the Government under sub-section (1) shall be notified in the Gazette and the owner shall be informed in writing by the custodian and the notification shall be placed before the advisory committee constituted under section 15 for perusa - no appeal under section 11 has been preferred against decision of the Tribunal within the period specified therein - Powers of high Court to issue Writ - Whether small holders are liable to make applications within six months from date of notification? - Whether an owner of property, entitled to secure benefit of Section 10A of Act, 2003, as amended, is not entitled to get benefit of filing an application before Chief Conservator of Forests for settlement of dispute, within six months from date of receipt of information in writing, as is contemplated under Section 3 (2) of Act, 2003.
Findings of the Court : Section 10A provides a remedy in favour of small holders and since Section 3(2) is couched in mandatory terms, court opinion that the contention that applications have to be filed within six months from date of notification cannot be accepted - It is categoric and unambiguous that all ecologically fragile land vested in Government by statutory force. However, condition contained under sub-section (2) thereto, is imperative in nature, which specifies that land vested in Government under sub-section (l) shall be notified in Gazette and owner shall be informed in writing by Custodian and the notification shall be placed before Advisory Committee constituted under Section 15 for perusal - Once it is found that application submitted is in accordance with sub-section (1) of Section 10A, then obligation cast upon the Principal Chief Conservator of Forests is to refer the applications to Ecologically Fragile Land Claim Redressal Committee, constituted under Section 10B of Act, 2009, as provided under sub-section (2) of Section 10A of Act, 2003 and sub-rule 4 of Rule 21A of the Rules, 2009 - Appellants have not made out a case for interference with judgment of learned Single Judge, since there is no error in exercising discretion or other legal infirmities, established by appellants, justifying us to do so.
Result : Appeals dismissed.

JUDGMENT :

S. Manikumar, J.

Instant writ appeals are filed by the respondents against the common judgment in W.P. (C) No. 17930 of 2015 and connected cases dated 20.03.2020, by which, a learned Single Judge of this Court held as under:-

“11. Having considered the contentions advanced, I notice that Section 10A is a new right granted to small holders to raise a dispute that the property covered by any notification is not Ecologically Fragile Land. The intention of introduction of provision is apparently to give small holders of properties a speedier remedy than the one available under Section 10. The said remedy is available to small holders as on the appointed day, that is, 20.6.2000. In the instant cases, the petitioners are subsequent purchasers of property. However, in many of the cases, the purchases are from owners of land, who themselves were small owners as on the appointed day. If that be so, the contention of the respondents to the effect that the petitioners themselves have to be in possession of the property on the appointed day to avail the benefit under Section 10A cannot be accepted. A Division Bench of this Court has considered the issue under the Private Forests (Vesting and Assignment) Act, 1971 and held that the subsequent purchaser of the property, who steps into the shoes of the original owner are entitled to claim the reliefs that the original owner would have been entitled to under that Act. In the above view of the matter, in those cases where the petitioners had purchased property having an extent of 2 Hectares or less from holders of property who themselves had only that extent of land as on the appointed day, the petitioners would be entitled to claim that their applications under Section 10A are liable to be considered.

12. The further question which arises for consideration is with regard to whether small holders are liable to make the applications within six months from the date of the notification. In the instant cases, it is the specific case of the petitioners that they were unaware of the notification and that they had preferred their applications within six months from the date on which they received the individual notices under Section 3(2). In the facts and circumstances of the cases and taking note of the fact that Section 10A provides a remedy in favour of small holders and since Section 3(2) is couched in mandatory terms, I am of the opinion that the contention that the applications have to be filed within six months from the date of notification cannot be accepted. The petitioners having filed the applications within six months from the date on which the individual notices were served on them, would be entitled to the consideration of the dispute raised by them under Section 10A.

In the above view of the matter, W.P.(C) Nos. 17930, 16869, 9366, 17533, 17536, 18110, 14633, 14627, 14611, 14254, 13992, 14733, 14734 of 2015 and 34701 of 2010 are allowed. The impugned orders are set aside. There will be a direction to the respondents to consider the applications preferred by the petitioners under Section 10A of the EFL Act. The petitioners shall produce the documents on the basis of which they claim title before the appropriate authority. Status quo, as on today, with regard to the lands in question will be maintained for a period of three months to enable the custodian to take an appropriate decision with regard to the interim arrangement to be maintained till the dispute is appropriately resolved.”

2. The reliefs sought for by the respondents/writ petitioners in W.P. (C) Nos. 14254, 14611, 14733, 14633, 14627, 13992 & 14734 of 2015 are extracted below :

(i) To call for the records leading to and pursuant to the notice bearing No.3967/00 dated 20.11.2014 (Exhibit P1) issued by the Divisional Forest Officer (D.F.O), South Wayanad Division, Kalpetta (respondent No.2); Exhibit-P2 statutory appli

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2021 Supreme(Ker) 620

Point of Law : Any interpretation, which leads to injustices and absurdity, must be avoided and, in such situations, court may look into the purpose for which, the statute has been brought and would try to give a meaning, which would adhere to the purpose of that statute.

Cases Referred (19)