P V MAJEED MANAGING PARTNER PALAKKAD DISTRICT Vs. STATE OF KERALA REPRESENTED BY THE PRINCIPAL CHIEF CONSERVATOR OF FOREST THIRUVANANTHAPURAM

JUDGEMENT

(1.) The matter arises under the Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as the 'Act'), Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Rules, 2007 (hereinafter referred to as the 'Rules') and the action taken by the Custodian under the Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Ordinance, 2000 (hereinafter referred to as the 'Ordinance').

(2.) It is the petitioner's case that Kaliappara Estate is a partnership firm in which he is the Managing Partner. The firm owns an estate having a total extent of 541 acres of land on perpetual lease from the Diwan of Cochin. A notification dated 19/09/2000 is published by the 3rd respondent under Ordinance No. 8 of 2000 whereby an extent of 28 hectares of land comprised and forming part of the aforesaid 541 acres of land is notified as Ecologically Fragile Land (hereinafter referred as EFL). The petitioner filed an application under Section 19(3)(b) of the Act before the Custodian for exempting the above land from vesting under Section 3 of the Ordinance. The petitioner invoked Section 19(3)(b) in view of the fact that by that time the Act had come into force thereby repealing the Ordinance but saving certain powers in respect of land in which a notification is issued under sub-section (3) of Section 3 of the said Ordinance. In the application Ext. P5, the petitioner contended that the entire land was a cardamom plantation and therefore no portion of the same can vest in the Government as per the notification. The matter was heard on 25/03/2009 and written submissions were made by the petitioner before the 2nd respondent by way of Exts. P10 and P11. However, the 2nd respondent by Ext. P12 order rejected the application thereby confirming the notification. The petitioner challenges Ext. P12 mainly on the ground that it is passed without jurisdiction since the 2nd respondent has not followed the procedure as prescribed under the Ordinance.

(3.) The petitioner further submits that the 2nd respondent had obtained a report from a Committee and relied upon the same in order to reject the application. Ext. P9 is the said report which, according to the petitioner, should not have been obtained by the respondent since the 2nd respondent had no such jurisdiction under the Ordinance to make an enquiry by calling for a report from a Committee framed under Rule 18 of the Rules. According to the petitioner when the 2nd respondent was considering an application under Section 19(3)(b) of the Act the Rules which were framed only in 2007 had nothing to do with such an enquiry. It is the further contention of the petitioner that when Ext. P8 report shows that most of the lands were cultivated with cardamom it is not known as to how the 2nd respondent came to a conclusion that the land is ecologically fragile. Lands cultivated with cardamom is specifically exempted from the definition of EFL under the Act and under the Ordinance. Hence the very exercise of jurisdiction in rejecting the application clearly amounts to non-application of mind and an arbitrary exercise of power and not with reference to the statute governing the issue.