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2017 DIGILAW 368 (KER)

BABU JOSEPH, S/O. LATE SHRI R. J. JOSEPH v. STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, FOREST DEPARTMENT

2017-02-21

ANTONY DOMINIC, DAMA SESHADRI NAIDU

body2017
JUDGMENT : Antony Dominic, J. The issues raised in these writ petitions are connected and therefore, at the request of the counsel for both parties, these cases are heard together and are accordingly disposed of by this common judgment. 2. We shall first deal with WPC No.2548 of 2012. This writ petition is filed by some of the residents of Arakkuparambu Village, Perinthalmanna Taluk. Their prayer is to quash Ext.P6 order issued by the District Single Window Clearance Board, Malappuram directing the third respondent to grant license to the fourth respondent to start a crusher unit in the property in Sy.No.1/2 of Arakkuparambu Village. There is a further prayer to direct the first respondent to recover possession of the aforesaid property from the fourth respondent and to declare that Ext.P3 sale deed, alienating the property mentioned above in favour of the fourth respondent, is illegal and to cancel the same. 3. The case of the petitioners is that the property conveyed by Ext.P3 sale deed to the fourth respondent is located in a landslide prone area and that the land in question has been notified as Ecologically Fragile Land (in short EFL) under the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003. According to them, in pursuance to the notification declaring the land as EFL, the Land Revenue Commissioner issued Ext.P2 order dated 8.7.2009 prohibiting alienation of the lands mentioned therein, which includes Ext.P3 property also. The petitioners allege that in violation of the notification and Ext.P2 order of the Land Revenue Commissioner, Ext.P3 sale deed was executed by the land owner on 31.8.2010 conveying the land to the fourth respondent. 4. It is stated that seeking its clearance, the fourth respondent applied to the Single Window Clearance Board and that by Ext.P4 order, the Board rejected the application. However, in an appeal that was filed by the fourth respondent, the State Single Window Clearance Board remitted the matter for fresh consideration. Accordingly, the application was re- considered by the District Board and the District Board issued Ext.P6 order dated 28.11.2011 where it ordered inter alia thus: xxx xxx 5. However, in an appeal that was filed by the fourth respondent, the State Single Window Clearance Board remitted the matter for fresh consideration. Accordingly, the application was re- considered by the District Board and the District Board issued Ext.P6 order dated 28.11.2011 where it ordered inter alia thus: xxx xxx 5. Despite the aforesaid order and the provisions contained in Section 10 of the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (Act 5 of 2000), the third respondent Panchayat, Thazhekkode Grama Panchayath declined license as per Ext.P7, minutes of the meeting held on 6.1.2012. It is on these pleadings petitioners are seeking the reliefs mentioned above. 6. We heard the learned counsel for the petitioners, the learned Government Pleader and the learned Senior counsel appearing for the party respondent. 7. This writ petition is filed by the petitioners contending that the land conveyed by Ext.P3 is an Ecologically Fragile Land, that its alienation has been prohibited by Ext.P3 proceedings of the Land Revenue Commissioner and that in view of Ext.P7 decision of the Panchayat declining license, the crusher unit cannot be established. 8. Having considered these contentions, we find that in so far as the case that the land in question is notified as an EFL is concerned, that aspect of the matter has been clarified by the first respondent in its affidavit dated 9th of March 2012, wherein it has been stated thus: "It is submitted that as per the revenue records the extent of land in Survey No.1/2 of Arakkuparamba Village in Perinthalmanna Taluk is 662.79 acres which includes 57 acres of forest land (VFC Item No.34). Out of this 57 acres of land an extent of 4.856 ha(12 acres) of land involved in OA 222/1976 and owned by one Nalakath Mohammedkutty and 3.237 ha (8 acres) of land involved in OA 223/1976 and owned by one Nalakath Manu in Survey No.1/2 of Arakkuparamba Village in Perinthalmanna Taluk was notified by the Forest Department under Section 3 of Ecologically Fragile Land as per Notification No.C4- 21437/2000 dated 25.10.2000 and published in Kerala Gazette dated 2.1.2001 in Page No.235 as Serial No.135 and 136. These two lands are the part of 57 acres of land notified as VFC item No.34 in Arakkuparamba village of Perinthalmanna Taluk. These two lands are the part of 57 acres of land notified as VFC item No.34 in Arakkuparamba village of Perinthalmanna Taluk. Altogether 57 acres of land are in the possession of Forest Department in Survey No.1/2 of Arakkuparamba village of Perinthalmanna Taluk. No other land in Survey No.1/2 of Arakkuparamba Village was neither notified under Section 3 nor Section 4 of the Ecologically Fragile Lands Act 2003. Regarding the averments in paragraph 2 of the writ petition, it is submitted that Kodikuthimala is a Vested Forest situated in Survey No.1/26 of Thazhekkode Village, Perinthalmanna Taluk which was notified as Vested Forest as Item No.35 as per Notification No.5189/2000 dated 5.5.2001 and 8.1.2008. Tourism activities has not been started in this area so far. Bidavumala is situated in the south-east side of Bidavumala. Regarding the averments in paragraph-4 of the writ petition, it is submitted that only 8.093 ha (20 acres) of land having predominantly natural vegetation and adjacent to the forest areas was notified as Ecologically Fragile Land under section 3 of the Act in Survey No.1/2 of Arakkuparamba village of Perinthalmanna Taluk. No other land in Survey No.1/2 of Arakkuparamba Village was notified neither under Section 3 nor under Section 4 of Ecologically Fragile Lands Act 2003. The Ext.P2 circular issued by the Land Revenue Commissioner is applicable only to the land notified under section 3 or 4 of the Act. In this instant case the land where the granite crusher unit is proposed to be established was neither notified as Ecologically Fragile Land under Section 3 nor under Section 4. This property is not coming under the purview of Ecologically Fragile Land Notification. The claim of the petitioner that the Ext.P2 circular is prohibiting the sale of land including the property in Survey No.1/2 of Arakkuparamba Village is incorrect. The circular is applicable to only those lands which are notified under the Ecologically Fragile Lands Act 2003. Regarding the averments in paragraph 5 of the writ petition, it is submitted that Ext.P2 circular is intended to protect the Ecologically Fragile Land notified areas from alienation and bifurcation. This circular is binding only on Ecologically Fragile Land notified areas under Section 3 or 4 of the Ecologically Fragile Lands Act 2003. Regarding the averments in paragraph 5 of the writ petition, it is submitted that Ext.P2 circular is intended to protect the Ecologically Fragile Land notified areas from alienation and bifurcation. This circular is binding only on Ecologically Fragile Land notified areas under Section 3 or 4 of the Ecologically Fragile Lands Act 2003. The land 2.4300 ha in Survey No.1/2 of Arakkuparamba Village purchased by Musthafa and others is not included in the Ecologically Fragile Land notified areas and this land is situated at a distance of 1 Km. away from the Ecologically Fragile Land notified and hence does not come under the Ecologically Fragile Lands Act 2003. 9. These averments in the affidavit stand uncontradicted and therefore, deserves to be accepted. Once the aforesaid stand of the Government is accepted, necessarily, the case of the petitioner that the land conveyed by Ext.P3 is an Ecologically Frigid Land and that its alienation has been prohibited by Ext.P3 order of proceedings of the Land Revenue Commissioner, deserve only to be rejected. 10. A reading of the extracted portion of Ext.P6 would show that the District Board has further directed that in the event of non-compliance by the Panchayath, a certificate in Form-C would be issued to the petitioner. As directed, a certificate in Form-C has been issued to the 4th respondent on 18.1.2012 and a copy of the certificate has been produced as Ext.P1 in Writ Petition No.20548 of 2016. Necessarily, therefore, Ext.P7 also cannot stand in the way of the 4th respondent in establishing the crusher unit. In such circumstances, we do not find any merit in the challenge raised by the petitioners in WPC No.2548 of 2012. 11. Turning to Writ Petition No.20548 of 2016, the said writ petition was filed by the 4th respondent in Writ Petition No.2548 of 2012 seeking orders of police protection. In this case also, we heard the learned senior counsel for the writ petitioner, the learned Government Pleader and the learned counsel appearing for the party respondents. 12. The petitioner complains that on the strength of the aforesaid Ext.P6 and Ext.P1 herein, the petitioner proceeded to establish its crusher unit and that the same was obstructed by the party respondents. We have already seen that the Single Window Clearance Board has allowed their appeal and has issued Ext.P1 certificate in Form-C to the petitioner in this writ petition. The petitioner complains that on the strength of the aforesaid Ext.P6 and Ext.P1 herein, the petitioner proceeded to establish its crusher unit and that the same was obstructed by the party respondents. We have already seen that the Single Window Clearance Board has allowed their appeal and has issued Ext.P1 certificate in Form-C to the petitioner in this writ petition. The petitioner also has obtained other necessary statutory clearances, including consent to the establishment from Kerala Pollution Control Board. All these, therefore, mean that the petitioner is entitled to proceed with the establishment of the crusher unit strictly in compliance with Ext.P6 order and Ext.P1 certificate issued by the District Single Window Clearance Board and in that process if there is any obstruction, that is bound to be removed by the first respondent. However, taking note of the apprehension expressed by the party respondents that under the cover of this order the petitioner may operate the neighbouring quarry also, it is ordered that this judgment will enable the establishment of the crusher unit only and in the event any violation thereof is committed by the petitioner, it will be open to the party respondents to bring it to the notice of the statutory authorities, who thereupon shall intervene and ensure that the unauthorized operations are stopped forthwith. It is also ordered that in such an event, it would also be open to the party respondents herein to bring such violations to the notice of this Court, in which event, appropriate orders would be passed in this writ petition itself. With these directions, these writ petitions are disposed of.