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2020 Supreme(Online)(KER) 38990
HIGH COURT OF KERALA
ANU SIVARAMAN, J
SIYAD MOTTEMMAL – Appellant
Versus
PRINCIPLE CHIEF CONSERVATOR OF FOREST – Respondent
WP(C)/17532/2015
SRI.E.NARAYANAN, SRI.D.KRISHNA PRASAD, SRI.K.M.FIROZ, SRI.S.KANNAN, SRI.M.SHAJNA, SRI.SANDESH RAJA.K. SPL. G.P. (FOREST)
Notification to landowners is mandatory under the EFL Act; time for filing disputes commences from receipt of notice, not from initial publication.
Headnote:
EFL Act - Property Rights - Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 - Sections 3, 10A - The court emphasized the mandatory nature of notifications for property owners under the EFL Act, interpreting the timeline for dispute applications to start upon individual notice receipt rather than the initial publication date.
Fact of the Case:
The petitioners challenged the rejection of their applications under Section 10A of the EFL Act, arguing that the applications were time barred, asserting that they had only learned about the land's ecologically fragile status upon receipt of individual notices long after the initial publication.
Issues: Whether the time limit for small holders to file applications under Section 10A of the EFL Act begins from the date of individual notice or the date of publication of the notification.
Ratio Decidendi: The court held that Section 3(2) of the EFL Act's requirement for individual notice is mandatory; thus, the six-month time frame under Section 10A starts upon receipt of such notice by the landowners.
Final Decision: Writ petitions allowed; applications under Section 10A to be considered.
JUDGMENT
Dated this the 20th day of March 2020
1.These writ petitions are filed challenging the proceedings issued under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act,2003 (hereinafter referred to as the 'EFL Act') against properties owned by the petitioners. The essential challenge was against the orders of the Forest Tribunal rejecting the applications preferred by the petitioners under Section 10A of the EFL Act on the ground that the applications are time barred.
2.Heard learned counsel for the petitioners and the learned Special Government Pleader for the respondents.
3.The learned counsel for the petitioners submit that the petitioners are small holders as provided under Section 10A the EFL Act and that as such, their applications require a consideration, taking the date of service of individual notices of the notification under Section 3 (2) to them. Notifications under Section 3(1) had been issued on 26.10.2013 and notified in the Gazette on 3.12.2013. However, individual notices were issued to the parties only long thereafter, that is, on
20.11.2014 or 18.2.2014 as the case may be. It is contended that the petitioners had purchased the properties after the appointed day, but before the date of the notification. The petitioners had submitted applications under Section 10A on 15.1.2015. The applications had been rejected on the ground that they were belated by orders dated 18.2.2014. It is submitted by the learned counsel for the petitioners that they had no means of knowing that the properties had been notified as Ecologically Fragile Lands. It is stated that it was only on receipt of individual notices that they came to be aware of the fact that the properties stood notified.
4.It is stated that Section 3(2) provides for a notification and an information in writing to the owner by the custodian, which are both mandatory. Section 10A provides for an application to be filed before the Principal Chief Conservator of Forest in case a small holder has any dispute whether his land is ecologically fragile land or not. Section 10A(7) provides for an application under Section 10A being filed within six months from the date of publication of the EFL (Amendment) Act 2009 or from the date of the notification under Section 3. The contention of the learned counsel for the petitioners is that the said provision has to be read down to permit the consideration of a dispute raised within six months from the date on which the owners are put on notice of the notification, failing which the small holders will be put to extreme prejudice.
5.Relying on a decision of the Apex Court in Girlwar Prasad Narain Singh v. Dukhu Lal Das (dead) by his Lrs and Others [1968 KHC 642], learned counsel for the petitioners contend that the provision with regard to individual intimation to the owners under Section 3(2) is mandatory in nature and that as such, the time for making the application under Section 10A begins to run only from the date of intimation to the individual owners. Reliance is also placed on the decision of this Court in Parameswara Sastrigal K.S. v. State of Kerala and others [2008 (2) KHC 434] to contend that an assignee to the land is also entitled to the benefit of Section 3(2) and 3(3) of the EFL Act and that the assignee steps into the shoes of assignor and has the rights and liabilites of the original owner of the land.
6.A detailed counter affidavit has been placed on record. It is contended therein that after a land is notified as ecologically fragile land, the petitioners have no right to claim title over such land which has vested in the Government and that the only option available is for them to approach the EFL Tribunal under Section 10, in case there have a dispute with regard to the nature of the property. It is stated that 100 hectares of land in Re-survey Nos.410/pt., 411/pt., 412/pt., 414/pt., 421/pt. of Chundale village of Vythiri Taluk at Mele Poonchola was notified as per Exhibit P3 notifica
