SHAJAN K.JOHN Vs. GOVERNMENT OF KERALA

JUDGEMENT

(1.) Appellants filed an original application under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (in short, "the Act") before the Tribunal constituted under the Act seeking a declaration that 33 acres of land in resurvey No.2268/Part of Palakkayam Village in Mannarkkad Taluk in Palakkad District is part of a rubber plantation and it is not an ecologically fragile land. According to them, the said extent of land is part of an estate having an extent of 99.21 acres, known as "Green Kerala Plantation". As per Exts.A1 and A2 documents, the appellants purchased the property from the previous owner. Even though no notification declaring the property as ecologically fragile land was issued, the 5th respondent registered a case O.R.No.1 of 2008 against the 1st appellant and his manager for having cut down the trees in the estate. Forest officials were making illegal interference in the free enjoyment of the estate which was principally cultivated with rubber. They have no right to interfere with enjoyment of the property including the agricultural operations like collection of latex, felling of old trees for replantation and replanting rubber trees. Appellants approached this Court with W.P.(C) No.14121 of 2008 and by judgment dated 26.05.2008, this Court permitted them to approach the Tribunal for redressal of their grievance. Thereafter they approached the Tribunal seeking the aforementioned declaration.

(2.) Respondents filed a written statement contending that the land in question is ecologically fragile land vested in the Government under Section 3 of the Act. Vesting of the land is notified by the Custodian of Ecologically Fragile Lands, Thiruvananthapuram vide notification No.EFL 6-121/06 dated 10.06.2008 and published in the Kerala Gazette dated 01.07.2008 (Ext.B2). Respondents contended that the area is a river source and rich in flora and fauna. It is not correct to say that the schedule property is a rubber plantation. Land in dispute is part of an evergreen forest with natural vegetations and it lies contiguous to vested forests. The area is highly sloppy and about 1500 metres above sea level. It is surrounded by vested forest on all three sides. The appellants have no right to purchase the said property as it had already vested with the Government as ecologically fragile land. The petition schedule property was a portion of the estate, owned by the Green Kerala Plantation, which was not cultivated with any crops. The land was lying contiguous to the vested forest and as shown under VFC item No.8, Meenvallam Malavaram which was proposed for notification as ecologically fragile land under the Act. The proposal was submitted to higher authorities and after verification it was properly notified. This fact was known to the then owner of the estate Sri.Manuel Coldy. The alleged sale deed, said to have been executed between the appellants and the previous owner of the land, is null and void as the land was vested with the Government on the appointed day, viz., 02.06.2000. The appellants' predecessor made an attempt to encroach into the land and to destroy the forest wealth first time during April, 2004. Therefore the Forest Department booked a case O.R.No.8 of 2004. Another attempt was made in April, 2004 which resulted in the registration of a case O.R.No.9 of 2004. Thereafter in 2007, Manager of the estate and power of attorney holder of the appellants along with others attempted to trespass into the ecologically fragile land and therefore O.R.No.3 of 2007 was registered at Palakkayam Forest Station. Again the representative of the appellants had encroached into the same land and cut down 549 forest trees and tried to transport the logs. A crime O.R.No.1 of 2008 was registered and the timber and the vehicle used to transport the materials were seized. Finally in June, 2008, the appellants and their agents tried to trespass into the property and cut down 3228 trees of various sizes and species. But, due to the intervention of the officials of Forest Department and registration of O.R.No.7 of 2008 they could not remove the timber. These aspects would show that the appellants were repeatedly trying to commit offences in respect of the disputed property. Appellants have no right over the property as the land, being an ecologically fragile land, was vested in the Government on 02.06.2000. The application is liable to be dismissed.

(3.) Tribunal, after considering the oral evidence tendered by nine witnesses on the side of the appellants and two on the side of the respondents and also perusing Exts.A1 to A23 and B1 to B12 produced by the rival parties and Exts.C1 and C2, the commissioner's reports, found that the disputed property is an ecologically fragile land and therefore the appellants are not entitled to get any relief claimed in the application. On that reasoning the application was dismissed.