P.Kumaran Nair vs The Custodian Of Ecologically on 26 September, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 1914 of 2008()


1. P.KUMARAN NAIR, PETTAMANNA HOUSE,
                      ...  Petitioner
2. P.DAMODARAN NAIR, PETTAMANNA HOUSE,

                        Vs



1. THE CUSTODIAN OF ECOLOGICALLY
                       ...       Respondent

2. THE DIVISIONAL FOREST OFFICER,

                For Petitioner  :SRI.S.EASWARAN

                For Respondent  : No Appearance

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER

 Dated :26/09/2008

 O R D E R
                  H.L.DATTU, C.J. & A.K.BASHEER, J.
                         -------------------------------------------
                              W.A.No.1914 of 2008
                        ------------------------------------------
                 Dated, this the 26th day of September, 2008

                                 JUDGMENT

H.L.Dattu, C.J.

Being aggrieved by the orders passed by the learned Single

judge in W.P.(C) No.19992 of 2008 dated 3rd July, 2008, the petitioners in

the writ petition are before us in this writ appeal.

(2) In the writ petition filed, the petitioners had called in

question Ext.P12 order passed by the Custodian of Ecologically Fragile

Lands in exercise of his powers under Section 19(3) of the Kerala Forest

(Vesting and Management of Ecologically Fragile Lands) Act, 2003

(hereinafter for the sake of brevity referred to as ‘the Act’)

(3) The contention of the petitioners before the learned

Single Judge was that their lands are not ecologically fragile lands and,

therefore, the Act would not apply. Further, it was the stand of the

petitioners that pursuant to the promulgation of the Act, the State

Government has not issued any notification either under Section 4(1) or

under any other Section of the Act.

(4) The learned Single Judge being of the opinion that these

are all disputed facts which requires to be agitated by the petitioners by

W.A.No.1914 of 2008
2

filing an appropriate application as provided under Section 10 of the Act,

has rejected the writ petition. It is the correctness or otherwise of the said

order that is called in question by the petitioners in this writ appeal.

(5) Section 10 of the Act reads as under:

“10. Settlement of disputes by Tribunal –

(1) Where any dispute arises as to whether –

a) any land is an ecologically fragile land or not;

or

b) any ecologically fragile land or portion thereof

has vested in the Government or not; or

c) the compensation determined under section 8 is

insufficient or not the person who claims that the land is

not an ecologically fragile land or that the ecologically

fragile land has not vested in the Government or that the

compensation is not sufficient, may, within five years from

the date of commencement of this Act or within six months

from the date of the notification under sub-section (1) of

section 4 declaring the land to be an ecologically fragile

land or the date of communication of compensation under

section 8, as the case may be, or within such time as the

Government may notify in this behalf apply to the

Tribunal for settlement of the dispute.

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(2) An application under sub-section (1) shall be in

such form and contain such particulars as may be

prescribed.”

(6) The Custodian while passing Ext.P12 order has referred

to a notification issued by the State Government dated 20.10.2000

published in the Kerala Gazette No.1 dated 2.1.2001. In that view of the

matter, it may be difficult for us to accept the submission made by the

learned counsel for the appellants. However, we reserve liberty to the

petitioners to raise even this ground before the Tribunal when a dispute

is filed under Section 10 of the Act.

(7) Whether the lands in question are ecologically fragile

land or note is a disputed fact and that fact requires to be resolved by the

Tribunal which can look into all the records that may be produced by the

petitioners as well as the respondents.

(8) In that view of the matter, we are of the opinion that the

learned Single Judge has not committed any error whatsoever while

passing the impugned order.

(9) Therefore, the writ appeal requires to be rejected and it is

rejected. We make it clear that any observation made by us in the course

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of our order is only for the purpose of disposal of this writ appeal and this

would not come in the way of the Tribunal taking an independent decision

in the matter after hearing all the parties to the lis.

Ordered accordingly.

(H.L.DATTU)
CHIEF JUSTICE

(A.K.BASHEER)
JUDGE
vns