Joseph vs State Of Kerala – Notice For Whom … on 5 August, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 22321 of 2002(G)


1. JOSEPH
                      ...  Petitioner
2. ALEXANDER
3. ALEX
4. KURIAN
5. TOMY
6. ANIE
7. MEMOL
8. THANKAMMA
9. ALEX CHERIAN
10. TOMY CHERIAN ALIAS DOMINIC CHERIAN
11. ANITHA CHERIAN
12. CHINNAMMA CHERIAN - PETITIONERS 1,3,5,

                        Vs



1. STATE OF KERALA - NOTICE FOR WHOM MAY BE
                       ...       Respondent

2. SECRETARY TO GOVERNMENT, FOREST AND

3. THE CUSTODIAN OF VESTED FORESTS,

4. THE DIVISIONAL FOREST OFFICER,

                For Petitioner  :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)

                For Respondent  :SPL.GP FOR FOREST

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice V.K.MOHANAN

 Dated :05/08/2008

 O R D E R
                       C.N.RAMACHANDRAN NAIR &
                                  V.K.MOHANAN, JJ.
                  ....................................................................
                                O.P. No.22321 of 2002
                  ....................................................................
                   Dated this the 5th day of August, 2008.

                                         JUDGMENT

Ramachandran Nair, J.

The petitioners are challenging Ext.P9 notification issued under the

Kerala Forest (Vesting and Management of Ecologically Fragile Lands)

Ordinance-2000 which was later superceded by Act 21 of 2005. The case

of the petitioners is that the land in question was declared vested forest by

the Government first under the Vesting Act, 1971. However, the Forest

Tribunal allowed the O.A. filed by the petitioner and land is restored to the

petitioners. This court confirmed the order of the Forest Tribunal and the

Supreme Court dismissed the S.L.P. In a Contempt proceeding filed

thereafter, this court directed restoration of land to the petitioners subject to

respondents right to proceed under the Ordinance. Consequently,

Notification under Section 3 is issued declaring the land as ecologically

fragile. It is seen that petitioners have filed Ext.P12 objection apparently

under Section 19(3)(b) of Act 21 of 2005 before the Custodian of Forests

for exemption from the operation of the Ordinance. The correctness of

notification issued under Section 3 declaring petitioner’s land as

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ecologically fragile could be decided with reference to facts such as

location, cultivation, nature of surrounding areas, proximity to forest etc.

The commission report produced in court throw some light about the nature

of property and the cultivation carried on by the petitioners. Of course this

report pertains to facts available six years back and that too, after petitioners

were restored the land under interim orders. The petitioners’ claim that the

land is cultivated with cardamom is found to be false by the Commissioner.

Coffee plantation is also not a properly maintained one is what is clear from

the Commissioner’s report because the plants are neither the variety that

yields well, nor are they pruned for obtaining proper yield. In any case

since Ext.P12 filed by the petitioners before the Custodian of Forests is

maintainable under Section 19(3)(b) of the Act, we feel the validity of the

notification has to be decided first by the Custodian of Forests. We,

therefore, direct the 5th respondent to decide the mater in exercise of

statutory power abovereferred after conducting enquiry and after hearing the

petitioners. Data gathered by him through various officials should be

furnished to the petitioners for them to effectively raise objection. The 5th

respondent is directed to pass orders within three months from date of

receipt of a copy of this judgment.

2. Government Pleader pressed for restoration of land from

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petitioners under court orders. Even though the commissioner’s report

does not show any active cash crop cultivated by the petitioners at the time

of inspection, it is seen from the commissioner’s report that at that time

petitioners were cultivating part of the land with banana. If petitioners have

any cultivation of banana or the like, certainly petitioners are entitled to take

the crop therefrom. However, having regard to the findings in the

commissioner’s report, we direct the petitioners not to proceed with fresh

cultivation in the area until orders are passed by the Custodian and

thereafter, based on orders of the Custodian. The field forest officials will

ensure that petitioners do not till the land any longer for cultivation, but they

will permit the petitioners to take yield from existing cultivation, whether it

be plantation or otherwise.

C.N.RAMACHANDRAN NAIR
Judge

V.K.MOHANAN
Judge
pms