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2019 DIGILAW 1016 (KER)

Arakkal Saramma D/o. Anthony v. State Of Kerala

2019-11-29

P.B.SURESH KUMAR

body2019
JUDGMENT : Petitioner owns an item of property measuring 75 cents obtained by her in terms of Ext.P1 assignment deed on 21.4.1995. On 13.4.2012, the second respondent, the Divisional Forest Officer, Kalpetta, made a proposal to the third respondent, the Chief Conservator of Forests, Kannur to notify a few properties including the property held by the petitioner as ecologically fragile lands, in terms of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (the Act). Ext.P2 is the proposal. It is stated by the petitioner that the third respondent has forwarded Ext.P2 proposal to the fourth respondent, the Custodian of the ecologically fragile lands under the Act. The case set out by the petitioner in the writ petition is that Ext.P2 proposal made by the second respondent is unsustainable in law. According to the petitioner, the second respondent, or for that matter any of the officers including the Custodian of the ecologically fragile lands under the Act has no authority to make a proposal to declare a land as ecologically fragile land. The petitioner, therefore, challenges Ext.P2 proposal on that ground in the writ petition. 2. A counter affidavit has been filed by the second respondent. The stand taken by the second respondent in the counter affidavit is that there is no illegality in Ext.P2 proposal. 3. Heard the learned counsel for the petitioner as also the learned Special Government Pleader for Forests. 4. The learned counsel for the petitioner contended that it is for the Advisory Committee constituted under Section 15 of the Act to make recommendations to the Government as to the lands to be declared as ecologically fragile lands after identifying the same and a proposal in the nature of Ext.P2 is not contemplated under the Act. The learned counsel detailed the said submission, placing reliance on Section 3(2) of the Act as also Section 15(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2001 (the Ordinance). It was argued by the learned counsel that if the requirement of identification of the ecologically fragile lands by the Advisory Committee is not there in terms of the Act, there is absolutely no need for a provision in Section 3(2) which makes it obligatory for the Government to place the notification made under that provision for the perusal of the Advisory Committee. It was the submission of the learned counsel that the said requirement is intended to enable the Advisory Committee to satisfy that the notification issued under that provision is in respect of the lands identified by the Advisory Committee. It was also submitted by the learned counsel that while the provision contained in Section 15(1) of the Ordinance which is repealed by the Act categorically prescribed that the Advisory Committee will have to identify the lands to be declared as ecologically fragile lands under Section 4 of the Act, the corresponding Section 15(1) of the Act, does not make a mention at all of Section 4 of the Act. According to the learned counsel, the only inference possible from the different languages used in Section 15(1) of the Act is that the Act contemplates that all lands to be notified as ecologically fragile lands are to be identified by the Advisory Committee. 5. Per contra, the learned Government Pleader submitted that the scheme of the Act is that if a land satisfies the definition of 'ecologically fragile lands' contained in Section 2(b)(i), the same would automatically vest in the Government in terms of Section 3 of the Act and identification by the Advisory Committee constituted under Section 15(1) of the Act is required only for declaring lands which do not fall under Section 2(b)(i) as ecologically fragile lands under Section 4. According to the learned Government Pleader, the land of the petitioner is one falling under Section 2(b)(i) of the Act and the same has therefore vested in the Government in terms of the Act with effect from the date of commencement of the Act, and Ext.P2 proposal was made only for taking further action including publication of notification under Section 3(2) of the Act. 6. I have considered the contentions raised by the learned counsel for the parties on either side. 7. 6. I have considered the contentions raised by the learned counsel for the parties on either side. 7. Section 2(b) of the Act defines 'ecologically fragile lands' thus : (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 of 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 S.4 Section 3 of the Act reads thus : 3: 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 tribunal or in any custom, contract or other documents, with effect from the date of commencement of this Act, 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) The lands vested in the Government under sub-section (1) shall be notified in the Gazette and the owner shall be informed in writing by the custodian and the notification shall be placed before the Advisory Committee constituted under Section 15 for perusal. Section 4 of the Act is the relevant provision, which reads thus : 4: Power to declare ecologically fragile land- (1) The Government shall have power to declare by notification in the Gazette, any land to be ecologically fragile land on the recommendation of the Advisory Committee appointed for the purpose under Section 15 of this Act. (2) No declaration under sub-section (1) shall be made without giving the owner a notice of thirty days for being heard. (3) No person shall change the legal or physical status or ownership of the land proposed to be declared as an ecologically fragile land after the notice issued under subsection (2). (2) No declaration under sub-section (1) shall be made without giving the owner a notice of thirty days for being heard. (3) No person shall change the legal or physical status or ownership of the land proposed to be declared as an ecologically fragile land after the notice issued under subsection (2). (4) With effect from the date of declaration of any land as ecologically fragile land under sub-section (1), the ownership and possession of the land or any other form of right over it, shall subject to the provisions of this Act, stand transferred to and vested in the Government free from all encumbrance and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date. It is evident from the aforesaid provisions that not only the forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest of a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation, but also the lands declared by the Government as ecologically fragile land are considered to be ecologically fragile lands under the Act. It is also clear from the aforesaid provisions that ecologically fragile lands falling under Section 2(b)(i) would automatically vest in the Government and the notification under Section 3(2) of the Act is only a follow up action for clarity as to the particulars of the properties vested in the Government, whereas the ecologically fragile lands falling under Section 2(b)(ii) would vest in the Government only when a declaration is made by the Government in terms of Section 4 of the Act. 8. Section 15 (1) of the Act reads thus : “15 : Constitution and function of the Advisory Committee (1) The Government may, by notification in the Gazette, constitute an Advisory Committee to identify lands which are ecologically fragile and recommend to Government the said lands for declaration as ecologically fragile lands. True, the aforesaid provision confers power on the Advisory Committee to identify lands which are ecologically fragile. But as evident from Section 15(1) itself that the identification of ecologically fragile land in terms of the said provision is for the purpose of declaring such lands as ecologically fragile lands. Declaration of a land as ecologically fragile land is contemplated only for lands covered by Section 2(b)(ii) of the Act. But as evident from Section 15(1) itself that the identification of ecologically fragile land in terms of the said provision is for the purpose of declaring such lands as ecologically fragile lands. Declaration of a land as ecologically fragile land is contemplated only for lands covered by Section 2(b)(ii) of the Act. In other words, the contention that the lands falling under both Section 2(b)(i) and Section 2(b)(ii) have to be identified by the Advisory Committee constituted under Section 15 of the Act is unsustainable in law. 9. There is also no merit in the contention taken by the learned counsel for the petitioner based on Section 3(2) of the Act. Merely for the reason that the said sub section makes it obligatory for the Government to place a notification issued under that provision before the Advisory Committee for its perusal, it cannot be inferred that it is because the land to be notified as ecologically fragile land is to be identified by the Advisory Committee that the statute makes it obligatory for the State Government to place the notification under that provision before the Advisory Committee for its perusal. 10. Section 15 (1) of the Ordinance reads thus : “15. Constitution and functions of the Advisory Committee.-(1) The Government may, by notification in Gazette, constitute an Advisory Committee to identify lands which are to be declared ecologically fragile under Section 4 and recommend to Government the said lands for declaration as ecologically fragile lands. It is gatherable without any ambiguity from Section 15(1) of the Ordinance that the lands to be identified by the Advisory Committee made mention of in that Section are only lands to be declared as ecologically fragile lands under Section 4 of the Act. True, Section 15 of the Act does not specifically refer to Section 4. Merely for the reason that Section 15 does not specifically refer to Section 4, it cannot be contended that even lands to be notified under Section 3(2) of the Act are also to be identified by the Advisory Committee. True, Section 15 of the Act does not specifically refer to Section 4. Merely for the reason that Section 15 does not specifically refer to Section 4, it cannot be contended that even lands to be notified under Section 3(2) of the Act are also to be identified by the Advisory Committee. Even though Section 15(1) does not specifically refer to Section 4 of the Act, as noted, it is evident from the language used in Section 15(1) that the identification of ecologically fragile land contemplated and provided for in that section applies only to the land to be declared as ecologically fragile lands under Section 4 of the Act, as declaration as ecologically fragile land is contemplated only under Section 4. 11. In the light of the aforesaid findings, the petitioner is not entitled to the relief sought for. But then, it is seen that the petitioner had preferred Ext.P5 application earlier under Section 10A of the Act before the competent authority on the ground that the land in question is not an ecologically fragile land falling under Section 2(b)(i) of the Act and the same was rejected by the competent authority on the ground that the land of petitioner has not been notified as an ecologically fragile land. Ext.P6 is the communication issued to the petitioner in this connection. Insofar as the respondents are proceeding against the property of the petitioner as one falling under Section 2(b)(i) of the Act, I do not think that the application preferred by the petitioner under Section 10A of the Act could be rejected on the ground that the property is not notified, for the same is already vested in the Government by virtue of the legal fiction contained in Section 3(1) of the Act. In the circumstances, the writ petition is allowed in part. Exhibit P6 communication is set aside and the respondents are directed to take appropriate action on Exhibit P5 application in accordance with law. This shall be done within three months.