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2022 Supreme(Online)(KER) 20369
HIGH COURT OF KERALA
K VINOD CHANDRAN, C. JAYACHANDRAN, JJ
FAIZAL YASER – Appellant
Versus
THE STATE OF KERALA – Respondent
OP(FT)/3/2020
E. NARAYANAN
An application regarding ecologically fragile land is maintainable even in the absence of a notification if the landowner seeks clarification on the status of their property under the Act.
Headnote:
Ecological - Forest Land Management - Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 - Sections 2(b)(1), 2(f), 3(2), 10 - The court interpreted the maintainability of applications concerning ecologically fragile lands, emphasizing that a notification under Section 3(2) is essential before any application can be validly considered.
Fact of the Case:
The petitioners filed an application to construct a retaining wall on ecologically fragile land. The Tribunal dismissed it, citing a lack of maintainability due to absence of a statutory notification.
Finding of the Court:
The Court found the Tribunal's order to be incorrect, stating that the absence of a notification under Section 3(2) does not bar the landowner from approaching the Tribunal for clarification on land status.
Issues: Whether an application for relief concerning ecologically fragile land is maintainable without a prior notification under the Act.
Ratio Decidendi: The statutory definition of an ecologically fragile land and the necessity of a notification under Section 3(2) to trigger the rights of landowners were central to the court's conclusion.
Final Decision: The impugned order was set aside, and the Tribunal was directed to consider the application expeditiously.
JUDGMENT
Vinod Chandran, J.
The petitioners herein have approached the Tribunal with O.A. No.4 of 2019 under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 . An application was filed under Rule 12 of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Rules, 2007 for an order permitting the petitioners to construct a retaining wall/compound wall in the western boundary of the property at their own cost for protection of the property and the residential house situated therein. The Tribunal dismissed the application by Ext.P8 order.
2. Paragraph 6 of the said order reads thus :-
“6. Even an application under Rule 17(1) can be filed only after notification. The dispute contemplated under section 10(1) of the Act is not a dispute as such between the custodian and all owners, whose land satisfy the requirements of being ecologically fragile land as contemplated under section 2(b)(1) of the Act. It is only when a notification is issued under section 3(2) that the holders of the land so notified get a cause of action as such, to challenge the notification. Prima facie, original application filed before the issuance of statutory notification under section 3(2) of the Act does not appear to me as maintainable. That being so, present petition is also not maintainable.”
3. The learned counsel for the petitioners Sri. E. Narayanan argues that the Tribunal in consideration of the interim order has found the maintainability of O.A. itself, against the applicants. It is pointed out that earlier, the applicants had approached this Court which had passed Ext.P3 judgment in which it was categorically held that the remedy of the applicants is before the Tribunal. The learned counsel also placed before us two decisions of learned Single Judges of this Court in Murukankutty v. Amarnath Shetty [ 2006 (4) KLT 971] andSaramma v. State of Kerala [2020 KHC 3049]. Sri. Nagaraj Narayanan, the learned Special Government Pleader (Forests) appears for the respondents and fairly accepts that the order is bad.
4. We are also of the considered opinion that the notification as provided under Section 3 is only to put the interested parties to notice of the vesting of the property. The vesting, as such, occurs statutorily as on the appointed date, if the property comes under the definition of an ecologically fragile land. The person who is the owner as defined under Section 2 (f) of the Act, 2003 can at any time approach the Tribunal for a declaration that the property is not liable to be vested, if he has a doubt regarding that. The notification under Section
3 only puts to notice the owner of the property.
5. In such circumstances, we are of the opinion that the impugned order has to be set aside. We direct the Tribunal to consider the interim application expeditiously and at any rate, within a period of three months from today. The O.A. shall also be considered in accordance with the year of its filing.
The original petition stands allowed. No order on costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
C. JAYACHANDRAN JUDGE bpr APPENDIX OF OP(FT) 3/2020 PETITIONERS' EXHIBITS EXHIBIT P1 TRUE COPY OF PATTAYAVAKASHA THEERADHARAM DATED 30.03.2011 EXHIBIT P2 TRUE COPY OF EFL PROPOSAL PREPARED BY THE DFO, SOUTH WAYANAD.
EXHIBIT P3 TRUE COPY OF JUDGMENT IN O.P. NO.
33172/2014 PASSED BY THIS HON'BLE COURT.
EXHIBIT P4 TRUE COPY OF O.A. NO.4/2019, FILED BY THE PETITIONER BEFORE THE FOREST TRIBUNAL, KOZHIKODE.
EXHIBIT P5 TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN EXT.P4 O.A.
EXHIBIT P6 TRUE COPY OF I.A. NO.79/2019 FILED BY THE PETITIONERS IN O.A. NO.4/2019, BEFORE THE FOREST TRIBUNAL, KOZHIKODE.
EXHIBIT P7 TRUE COPY OF COUNTER STATEMENT FILED BY THE RESPONDENT IN I.A. NO.79/2019.
EXHIBIT P8 TRUE COPY OF ORDER DATED 31.08.2019 PASSED BY THE TRIBUNAL FOR EEL CASES, KOZHIKODE IN I.A. NO.79/2019 IN O.A. NO.
4/2019.
EXHIBIT P9 THE PHOTOS SHOWING THE DAMAGES CAUSED TO THE HOUSE SITUATED IN THE EXHIBIT P1 PROPERTY DURI
