IMPORTANT POINT
The court upheld the Custodian's authority to review exemptions of ecologically fragile lands, emphasizing the need to prevent fraud and protect public interest.

JUDGMENT :

NITIN JAMDAR, C.J.

1. A large tract of private forest lands in Ongallur Village in Palakkad District was notified as ecologically fragile under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance of 2000. The Custodian under Section 19(3)(b) of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 cancelled the notification. Following a public protest, the successor Custodian, the Principal Chief Conservator of Forests, considered the matter extensively. He, along with the surveyor, visited the site and concluded that these lands have the characteristics of being ecologically fragile and the notification was cancelled fraudulently and with collusion, restored the status of the lands as being covered by the notification. The owners of the lands, the Petitioners, filed W.P. (C) No. 37939 of 2017, which was allowed by the learned Single Judge by judgment dated 6 February 2020, on the ground that the Custodian had no power of review; however, the restriction on cutting the trees under the Kerala Preservation of Trees Act, 1986, was retained.

2. A brief overview of the State law on the subject of trees and forest will place the matter in context. The Kerala Forest Act, 1961 (Act of 1961) was enacted to unify and amend the law relating to the protection and management of forests in the State of Kerala. Chapter II of the Act deals with Reserved Forests. Under Section 3, the State has the power to constitute any land at the disposal of the Government as a Reserved Forest. Further, the procedure regarding the declaration of Reserved Forest is provided under the Act, including adjudication of rights. The Act of 1961 also deals with restrictions on cutting trees and specific provisions regarding the protection of particular types of trees.

3. The Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act of 1971) was enacted to provide for vesting in the Government of private forests in the State of Kerala and, thereafter, for further assignment, if any. Large areas of forests were privately owned and indiscriminate felling of large numbers of trees from such private forests threatened the very existence of such forests. Moreover, such destruction of private forests resulted in the denial of and interference with the customary and prescriptive rights of the tribals and others. The private forest is defined under Section 2(f) of the Act of 1971. Section 3 of the Act of 1971 states that with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished. Section 4 of the Act of 1971 declares that all private forests which would vest in the Government under Section 3(1) be deemed to be Reserved Forests when they remain vested in the Government. A Tribunal is constituted under Section 7 of the Act of 1971. The Tribunal is empowered to decide all matters within its competence. Section 8A provides an appeal to the High Court.

4. The third enactment is the Kerala Preservation of Trees Act, 1986 (Act of 1986), which was enacted by the State Government for preservation of trees. The Kerala State Legislature noted that the Kerala Forest Act, though intended for the protection and management of forests, did not contain adequate provisions regarding the preservation of trees. The State Government was of the opinion that the destruction of forests caused considerable soil erosion and loss of timber wealth. It was also felt necessary to preserve the special characteristics of hilly areas in the State in terms of landscape, vegetal cover, and climate. Under Section 2(e) of the Act of 1986, a tree is defined to mean certain species of trees specified therein, including Sandalwood, Teak, Rosewood, Irul, Thempavu, Kampakam, etc. Section 4 pla