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2024 Supreme(Online)(KER) 35612
HIGH COURT OF KERALA
Nitin Jamdar, CJ, S.MANU, J
STATE OF KERALA – Appellant
Versus
T.EASWARANUNNI – Respondent
WA 980/2020
SRI. S. SREEKUMAR (SR.), SRI. V. DEEPAK, SRI. T.P. SAJAN, SRI. K.P. JAYACHANDRAN, ADDL. ADVOCATE GENERAL
The Custodian's authority to review notifications regarding ecologically fragile lands is justified when fraud and collusion are established, emphasizing the need for ecological protection.
Headnote:(A) Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 - Section 19(3)(b) - The Custodian's power to review notifications regarding ecologically fragile lands was exercised due to findings of fraud and collusion in prior orders. The court emphasized the importance of protecting ecologically fragile lands for public interest and ecological balance. (Paras 47, 48, 49)
(B) Fraud and Collusion - The court held that the actions of the previous Custodian in exempting lands from ecological protection were tainted by fraud and collusion, undermining public trust and environmental protection. (Paras 41, 42)
Facts of the case:
The controversy arose from the notification of private forest lands as ecologically fragile, which was later revoked by the Custodian, leading to public outcry and legal challenges. The State's appeal was based on the need to restore ecological protections.
Findings of Court:
The court found that the previous Custodian's order was vitiated by fraud and collusion, justifying the restoration of the lands' status as ecologically fragile.
Issues: The main issues included the Custodian's authority to review prior orders and the existence of fraud in the exemption process.
Ratio Decidendi: The court ruled that the Custodian had the authority to review the exemption of lands based on findings of fraud and collusion, emphasizing the need for ecological protection.
Result: W.A. No.980 of 2020 is allowed; the previous order is quashed.
J U D G M E N T
Dated this the 27 th day of November, 2024.
Nitin Jamdar, C.J .
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, Ros
