(2012) 241 KLR 035
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 29TH DAY OF FEBRUARY 2012/10TH PHALGUNA 1933 WP(C).No. 35719 of 2009 (H) --------------------------- PETITIONER: ------------- DR.P.V.MAJEED,MANAGING PARTNER, KARAPARA ESTATE 'A'PADAGIRI,NELLIAMPATHY HILLS PALAKKAD DISTRICT. BY ADVS.SRI.JOSEPH KODIANTHARA (SR.) SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH RESPONDENTS: -------------- 1. THE STATE OF KERALA,REPRESENTED BY THE PRINCIPAL CHIEF CONSERVATOR OF FOREST FOREST DEPARTMENT,THIRUVANANTHAPURAM. 2. THE CHIEF CONSERVATOR OF FORESTS, (CUSTODIAN-BIO-DIVERSITY ECOLOGICALLY FRAGILE LANDS),VAZHUTHACAUD,TRIVANDRUM. 3. DIVISIONAL FOREST OFFICER, NENMARA,PALAKKAD DISTRICT. R1-3 BY GOVERNMENT PLEADER BY SRI.M.P.PRAKASH,SPL.GP FOR FOREST THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29- 02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX TO W.P.C.NO.35719 OF 2009 PETITIONER'S EXHIBITS:
RESPONDENT'S EXHIBITS:
// True Copy// PA to Judge A.M.SHAFFIQUE, J * * * * * * * * * * * * * W.P.C.No.35719 of 2009 ---------------------------------------- Dated this the 29th day of February 2012 Head Note:- Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Act, 2003 - Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Rules, 2007 - Rules 18 and 19 - Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Ordinance, 2000 - Section 3(2) - Action taken by the Custodian - Cultivating cardamom - Custodian has based his decision only on the basis of the Committee's recommendation. The custodian ought to have considered the claim for exemption independent of any report of the Committee as provided under Rule 18 or 19 of the Rules. J U D G M E N T 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 19/9/2000 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 25/3/2009 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. 4. On the other hand, the Government has filed a counter affidavit supporting Ext.P12 and contending that the application submitted by the petitioner was enquired through a Committee as stipulated in Rule 18 of the Rules and the Committee submitted its report Ext.P8. Since the 2nd respondent was not satisfied with Ext.P8 as contemplated under Rule 19, further enquiries were conducted and the report so obtained is Ext.P9. Since in Ext.P9 it is clearly indicated that the land is EFL, there is nothing wrong in the notification. Therefore, the respondents justified the action of the custodian in invoking Rules 18 and 19 for the purpose of obtaining reports and contended that there is no illegality or lack of jurisdiction in the matter as alleged. 5. The respondent also challenged the locus of the petitioner to file the writ petition on the ground that the lease hold rights were terminated by the lessor. It is also contended that since an appeal can be filed under Section 11 of the Act against the impugned order, the writ petition is not maintainable. 6. Heard the learned senior counsel appearing for the petitioner Sri.Joseph Kodianthara and the learned Special Government Pleader Sri.M.P.Madhavankutty. 7. It is not in doubt that Section 11 of the Act clearly provides for an appeal to the Tribunal against an order passed by the Custodian. But the contention of the petitioner is that since the Custodian has wrongly exercised jurisdiction in the matter, it is open for the petitioner to challenge the order by invoking the jurisdiction of this court under Article 226 of the Constitution of India as the very basis of the order is wrong. It is pointed out by the learned Senior counsel that the custodian had called for reports under Rules 18 and 19 of the Rules which apparently was not in the statute at the time when the Ordinance was in force. Rules were published only in 2007 and the application is filed by the petitioner by invoking Rule 19(3)(a) and (b) which relates to notifications issued under the Ordinance and not under the Act. According to him, only when notifications are issued under the Act, the corresponding Rules can be invoked for conducting the enquiry. At the time when the Ordinances were published, there were no such Rules and the custodian ought to have only considered the fact as to whether the land notified had come within the definition of EFL and not otherwise. According to him, as the lands were principally cultivated with cardamom which is now evident from a bare reading of Exts.P8 and P9, the custodian ought to have allowed the application and the very basis of the enquiry is illegal and without jurisdiction. 8. Though the Government has raised various other issues relating to the petitioner's right in respect of the property, I do not intend to enter a finding on those aspects as the subject matter in this writ petition is only concerning the validity of the impugned order and whether the 2nd respondent was justified in invoking Rules 18 and 19 of the Rules for conducting an enquiry under Section 19(3)(a) and (b) of the Act or not. Other issues raised by the respondents in the counter affidavit are left open to be decided in appropriate proceedings. If it is found that the order is passed without jurisdiction, then it will be open for this Court to consider the writ petition. Whereas if it is found that the 2nd respondent had properly exercised his jurisdiction, the matter will have to be left open, so that the petitioner can challenge Ext.P12 order in a regular appeal under Section 11 of the Act. 9. It is the contention of the petitioner that Rules 18 and 19 cannot be invoked by the 2nd respondent for conducting an enquiry under Section 19(3)(a) and (b) of the Act. Section 19 of the Act reads as follows: 19. Validation and Transitory Provisions.- (1) Notwithstanding the expiry of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2001 (16 of 2001) (hereinafter referred to as the said Ordinance)- (a) all ecologically fragile lands vested in the Government under the said Ordinance shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been vested under this Act; (b) anything done or deemed to have been done or any action taken or deemed to have been taken under the said Ordinance shall, insofar it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under this Act. (2) The expiry of the said Ordinance shall not- (a) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or (b) affect any legal proceedings or remedy in respect of any such right, privilege, obligation or liability and any such legal proceedings or remedy may be instituted, continued or enforced under the provisions of this Act insofar as it is not inconsistent with the provisions of this Act. (3) Notwithstanding anything contained in the said Ordinance or in any judgment decree or order of any Court- (a) no land other than the ecologically fragile land as defined in this Act, whether notified under sub-section (3) of Section 3 of the said Ordinance or not, shall be deemed to have vested or ever to have been vested in Government; and (b) every notification issued in respect of any land under sub-section (3) of Section 3 of the said Ordinance shall be scrutinised by the custodian suo motu or on an application made by the owner or any person having the right of possession or enjoyment of such land and if necessary, such notification shall be revised and issued in accordance with the provisions of this Act." Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Ordinance 6 of 2000 was promulgated on 01/06/2000 in which Ecologically Fragile Lands is defined under Section 2(b) as follows: 2(b) "ecologically fragile lands" means,- (i) any portion of forest land held by any person and lying contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation; and (ii) any land declared to be an ecologically fragile land by the Government by notification in the official Gazette under Section 4; Section 2(c) of the Ordinance defined Forest as follows: (c) "forest" means any land covered with trees and undergrowth and includes all statutorily recognised forests, whether designated as reserved, protected or otherwise and any land recorded as forests in the Government records irrespective of the ownership;" Section 3 of the Ordinance relating to Vesting of EFL lands reads as follows: Ecologically fragile lands to vest in Government.- (1) Notwithstanding anything contained in any other law for the time being in force, or in any judgment, decree, or order of any Court or in any custom, contract or other document, with effect from the date of commencement of this Ordinance, the ownership and possession of all ecologically fragile lands held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date. (2) Nothing contained in sub-section(1) shall apply in respect of any land cultivated with coffee or cardamom held by an owner under valid registration for the plantation raised after obtaining due permission from legally competent authorities." 10. Section 3(2) of the Ordinance clearly indicates that the provisions of Sub Section 3(1) shall not apply to any land cultivated with Coffee or cardamom held by an owner under valid registration for the plantation raised after obtaining due permission from legally competent authorities. When Ordinance 6 of 2000 ceased to operate with effect from 31/7/2000 Ordinance 8 of 2000 was promulgated which had come into force on 02/06/2000 which contained similar provisions. This Ordinance was again replaced by Ordinance No.3 of 2001 and in the said Ordinance, Sub Section 3 was added to Section 3 which reads as follows: "The lands vested in Government under sub- section (1) shall be notified in the official Gazette by the Custodian and the notification shall be placed before the Advisory Committee constituted under Section 15 of the Ordinance for its perusal." The said ordinance was again replaced by Ordinance 16 of 2001 and thereafter by Act 21 of 2005. 11. It was in exercise of powers conferred under Section 18 of the Act that the Rules were framed which came into force on 03/02/2007. Rules 17, 18 and 19 are quoted hereunder: 17. Owner claiming exemption to apply.- (1) Any owner or any person having the right of possession or enjoyment of any land notified under sub-section (1) of Section 3 of the Act may file an application before the custodian giving details of the location, extent, survey number, crops cultivated etc; seeking a scrutiny of the notification and to decide whether such land qualify to be notified as ecologically fragile in accordance with the provision of the Act. (2) Every application filed under sub-rule (1) shall be accompanied by the following documents. (a) documents to prove ownership or possession or enjoyment of the land; (b) documents to prove that the land is cultivated by such crops that are exempted under the Act. (c) documents to prove the existence of a residential building if any, with the details thereof; (d) any other documents as may be necessary for the verification of the particulars mentioned in the application. (3) Every application under sub-rule(1) shall be accompanied by an affidavit certifying that the records produced along with the application and the particulars mentioned therein are true and valid. (4) Every application under sub-rule (1) shall be accompanied by a court fee stamp of Rupees One Hundred." 18. Inspection of the land.- (1) On receipt of the application under Rule 17 the custodian shall as soon as possible cause a local inspection of the land through a committee consisting of the following members: (a) Divisional Forest Officer of the Territory where the land situated of Wildlife Warden having jurisdiction of the area, as the case may be, who shall act as the convener of the Committee. (b) The Technical Assistant of the Conservator of Forests of the area. (c) The Working Plan Officer. (2) The Committee shall inspect the land in respect of which application has been filed and shall prepare a report as to whether the notified area is consistent with the provisions of this Act or not, and submit the same to the custodian within one month from the date of receipt of the order from the custodian for local inspection of the land. 19. The Power of the Custodian to make additional enquiries.- On receipt of report of the Committee under Rule 18, if required, the custodian may cause further enquired and call for further records, as he deems fit." 12. Rule 17 applies when any person having right of possession or enjoyment of land notified under Section 3(1) of the Act files an application before the custodian seeking scrutiny of the notification. The procedure is specifically prescribed thereunder. Rule 18 deals with the procedure to be adopted by the custodian in relation to conducting of local inspection of the land or through the Committee consisting of the Divisional Forest Officer, Technical Assistant of the Conservator of Forests of the area or the Working Plan Officer. Rule 19 is invoked as an additional enquiry after obtaining a report from the Committee under Rule 18, if the custodian feels that such a report is required. 13. It is not in doubt that these Rules had come into force only with effect from 03/02/2007 and was not available at a time when Ext.P5 application was filed. It is also not in doubt that the Custodian had to follow the above procedure in relation to any land notified under Section 3(1) of the Act either on application or in suo motu revision by the custodian as provided under Rule 21. The argument put forward by the petitioner is that at the time when Ext.P5 application was submitted under Section 19(3) of the Act in respect of land notified under Section 3(3) of the Ordinance, the Custodian does not have the power to call for reports from a committee which was formed and came into force only subsequently. 14. According to the petitioner, there is considerable difference in the definition of EFL under the Act and the Ordinance. Section 2(b) of the Act defines EFL as follows. 2(b) "ecologically fragile lands" means.- (i) any forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation; (ii) any land declared to be an ecologically fragile land by the Government by notification in the gazette under Section 4; 'Forest' is defined under Section 2(c) of the Act as follows: 2(c) "forest" means any land principally covered with naturally grown trees and undergrowth and includes any forests statutorily recognised and declared as reserved forest, protected forest or otherwise, but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of residential buildings and surroundings essential for the convenient use of such buildings." 15. Definition of forest under the Act makes all the difference which indicates that any land which is used principally for the cultivation of crops for long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of residential buildings and surroundings essential for the convenient use of such buildings. Whereas in the definition of Forest under the Ordinance there was no such distinction. Section 3(2) of the Ordinance exempted land cultivated with coffee or cardamom held by an owner under valid registration for the plantation raised after obtaining due permission from legally competent authorities. 16. Therefore, it can be seen that there is a marked difference between the definition of EFL under the Ordinance and EFL under the Act and especially the exemptions. When the Act exempts lands principally cultivated with cardamom and various other crops, the Ordinance does not indicate so. Under the Ordinance "any land cultivated with coffee or cardamom held by an owner under valid registration for the plantation raised after obtaining due permission from legally competent authorities" alone is exempted. Therefore, while seeking exemption under the Ordinance the only area of enquiry required to be carried out by the Custodian is to find out whether the land was exempted under Section 3(2) of the Ordinance. If there was such a cardamom cultivation with valid registration for the plantation from the competent authorities, no other issues arise. It neither says it should be principally cultivated nor does it say that it should be full of cultivation. Therefore the only point to be decided by the custodian in respect of power vested in it under Section 19(3)(b) of the Act is of a very limited nature. 17. The point is whether the custodian has exceeded his powers. Admittedly, the Custodian had obtained Ext.P8 report and according to the Government, under Rule 18, which was not in the Statute at the time when Ext.P5 application was filed. It seems that Ext.P8 is prepared by the Divisional Forest Officer, Nenmara which is not a Committee as contemplated under Rule 18. Therefore the enquiry that is conducted is not an enquiry under the Rules. Ext.P8 report indicates that the area is having 40% of cardamom plants in patches. The western boundary of the area is contiguous to Nelliyampathy Reserve Forest and the rest of the boundaries are leased out estate areas. He also reports that it cannot be treated as Ecologically Fragile Land under Section 3 of the Act. However, he states that the area could be considered for EFL under Section 4 of the Act. It seems that the 2nd respondent, not being satisfied about the said report, obtained another report exercising its power under Rule 18 of the Rules 2007. In the said report also, there is an indication that the land has cardamom plantation earlier; but due to negligence of the management it has developed into dense Tropical wet evergreen forests with high diversity of natural species before 02/06/2000, the date on which the Act came into force. 18. Considering the aforesaid facts, it could be seen that Rule 18 can be invoked only with reference to an application made under Rule 17 of the Rules which pertains to areas notified under Section 3 of the Act. There cannot be any dispute about this and the point is when an application is being considered by the custodian in respect of a notification under Section 3(3) of the Ordinance by virtue of the transitory provisions under Section 19(3)(b), the enquiry under Rule 18 can be put into use. Custodian, of course, has the jurisdiction to make an enquiry but when a statutory provision is invoked it should comply with the provisions of the Statute as available as on the said date and cannot invoke a power which was given for a different purpose. The power can be exercised only in the light of the factual situation available when the Ordinance was in force. Rule 18 of the Rules applies only in respect of an application under Rule 17 which in fact relates only to a notification under Section 3(1) of the Act and not in respect of a notification under Section 3(3) of the Ordinance and as such, it is clear that the action of the 2nd respondent in calling for a report like Ext.P9 is without jurisdiction. 19. When it is without jurisdiction, the question to be considered is whether the impugned order is justified. 20. From Exts.P8, P9 and P12, it is clear that at least a portion of the above property was cultivated with cardamom. It might be true that when Ext.P9 report was prepared, most of the cardamom would have perished. That might be on account of the fact that after notification, it is not open for any owner of the EFL to carry out any agricultural operations in the said area. This is a small bit of land from a large estate. When it is an admitted position that at least in Ext.P8 report, the Divisional Forest Officer concedes that 40% of the property is covered by cardamom plantation, it is not known how this property can be termed as Ecologically Fragile Land when there is a specific exemption under the Ordinance, exempting cardamom plantations from the purview of the EFL as defined under the Ordinance. The Special Government Pleader further pointed out on the basis of a judgment dated 11/3/1988 in M.F.A.No.78/1983 that unless there were atleast half the usual number of plants per acre of the respective species, the area could not be considered as "principally planted" with those crops. The above judgment relates to an exemption claimed under the Kerala Private Forest (Vesting and Assignment) Act, 1971. The said judgment will not apply to the facts of this case, since as per the Ordinance exemption applies to cardamom plantation with valid registration/permission and it does not indicate whether it should be "principally cultivated" or not as is now exempted from the definition of Forest under Section 2(c) of the Act. The learned senior counsel for the petitioner relied upon the Division Bench judgment of this Court in State of Kerala v. Kumari Varma [2011 (1) K.L.T 1008) to contend for the position that when the land owner is prevented from cultivation the provisions of the Act cannot be invoked. The petitioner has a case that after the notification, they were unable to cultivate the land and it is on account of the said fact that most of the cultivation had perished. From the foregoing discussions, it is needless to state that the only enquiry to be conducted was to find out the existence of the cardamom plantation and whether it was with valid licence. It is stated in Ext.P12 that cardamom registration was produced by the petitioner for larger extent of land but it is stated that it does not tally with the Committee report. Therefore the Custodian has based his decision only on the basis of the Committee's recommendation. 21. From the above discussion, it follows that the findings in Ext.P12 are absolutely without jurisdiction and illegal. The custodian ought to have considered the claim for exemption independent of any report of the Committee as provided under Rule 18 or 19 of the Rules. Under these circumstance, the above writ petition is allowed as follows: i) Ext.P12 shall stand set aside. ii) The 2nd respondent shall consider Ext.P5 afresh without reference to any report obtained under Rule 18 or 19 of the Rules and confining to the question as to whether the petitioners were cultivating cardamom in the land under the valid authority as provided under Section 3(2) of the Ordinance. (A.M.SHAFFIQUE, JUDGE) jsr |
