GOVERNMENT OF KERALA Vs. JACOB THOMAS ARIKUPURAM

JUDGEMENT

(1.) This appeal, filed under Section 11 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (in short, "the EFL Act") by the Government of Kerala and the Custodian, Ecologically Fragile Lands and Chief Conservator of Forests, raises very important factual and legal questions relating to the application of the EFL Act to the property under dispute. And, an ancillary question, what is the legal effect, on this proceedings, of a finding rendered by a competent Tribunal under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (in short, "the Vesting Act"), that the property under dispute is not a private forest, also arises.

(2.) Facts, in nut shell, are thus: Respondents preferred an application under Section 10(1) of the EFL Act before the Tribunal constituted under Section 9 of the said Act. Averments therein would show that the scheduled property ad-measuring 77.50 acres (31.37 hectares) comprised in survey No.149 Part of Koodaranhi Village in Kozhikode Taluk originally belonged to Arikupurath Thomas, father of the applicants by virtue of Ext.A11. Exts.A1 and A2 documents conferred title and possession on the 1st respondent and his deceased brother Renny Thomas in respect of 55 acres of land included in Ext.A11 document. On the death of their father Thomas, they derived title in respect of the remaining extent of 22.50 acres too. Respondents contended that they planted coffee in the property and obtained a registration certificate as evidenced by Ext.A13. It is their case that the Divisional Forest Officer (in short, "the DFO"), Special Division, Kozhikode approved the land as a coffee plantation. While they were holding the property in title and possession, Forest Department made a claim that it was a private forest and it vested in the Government under Section 3(1) of the Vesting Act. The respondents, therefore, were forced to file two original applications under Section 8 of the Vesting Act before the Forest Tribunal, Kozhikode. Both the applications were allowed by the Forest Tribunal as per a common order dated 29.09.1986 (Ext.A5). It was declared that the application schedule property in its entirety was a coffee plantation, which did not vest in the Government. State preferred an appeal against the common order of the Forest Tribunal before this Court as M.F.A.No.300 of 1989. As per Ext.A6 judgment, this Court dismissed the appeal, confirming the findings of the Forest Tribunal. Pursuant to the final decision, the Custodian of Vested Forests restored possession of the entire property to the 1st respondent and his brother deceased Renny Thomas on 30.06.1994. Thereafter Renny Thomas died and his rights devolved upon respondents 2 to 4, his widow and children.

(3.) While the applicants were carrying on agricultural operations in the application schedule property, the DFO, Kozhikode issued a notice on 19.04.2007 under Section 3(2) of the EFL Act informing the respondents that the property had been notified on 27.03.2001 as ecologically fragile land vested in the Government. The said notification is Ext.B1. Thereupon, the respondents filed a writ petition, W.P.(C) No.19671 of 2004, praying for an order to compel the State and its officers to de-notify the land. This Court dismissed the writ petition with a direction to the 2nd respondent (the Custodian) to consider the application filed by the respondents under Section 19(3)(b) of the EFL Act. Thereafter, a three member inspection committee was constituted and they inspected the application schedule property without giving notice to the respondents, resulting in submission of a report. Again, the Custodian passed an order on 13.04.2007 declaring that the application schedule property is ecologically fragile land vested in the Government. Then again the applicants filed W.P.(C) No.31378 of 2007 before this Court to quash the order passed by the 2nd respondent. The writ petition was allowed and the order passed by the Custodian was quashed and this Court directed the committee to inspect the property once again with due notice to the respondents. As directed, the inspection committee visited the property again after giving notice to the respondents and then they filed another report. The Custodian again passed an order on 20.08.2011 finding that the disputed property is ecologically fragile land. According to the respondents, the order passed by the Custodian is contrary to law and facts and the property in dispute is not an ecologically fragile land.