OF REFERENCE The petitioners claim to be the absolute owners of 303 acres of land situated in R.S.8/1A1A2, Periya village in Wayanad district. According to them, the property was assigned to them as evidenced by Ext.P1. The area is described in Ext.P1. It is contended that 250 acres out of 303 acres were planted with cardamom. 30 acres were planted with coffee and the remaining with orange. Further steps were taken to enjoy the property as a regular plantation. Ext.P2 and Ext.P3 certificates are referred to show that 250 acres of land is covered by a registration certificate under the Cardamom Act, and 30 acres is covered by a certificate under the Coffee Market Expansion Act 1942. Reference is also made to Ext.P4 of the Taluk Land Board passed on 29/05/75 exempting the entire 303 acres from the computation of the ceiling area under the Land Reforms Act. Petitioners contended that they have remitted plantation tax in relation to the entire 303 acres. Assessment under the Plantation Tax Act was the subject matter of litigation before this court. Ext.P8 judgment of the Hon'ble Supreme Court, according to the petitioners, affirm the payment of plantation tax in relation to the entire 303 acres. The affirmative materials are referred to by the petitioners to contend that the entire 303 acres covered by Ext.P1 sale deed is a plantation. 2. While so, Ext.P9 notification was issued on 04/10/2000 notifying the details of the ecologically fragile land vested in Govt. as per Section 3(1) of The Kerala Forest (Vesting and Management of ecologically fragile lands) Ordinance (No. 8 of 2000). It includes 40.480 hectares in Sy.No.8/1A1A2 of Periya village. Apart from the notification, there is no contemporaneous intimation to the owner of the land. But later by Ext.P10 petitioner was informed that 40.480 hectares of land is vested with the Govt. The above mentioned land was measured and a plan and a sketch have also been prepared, as evidenced by Ext.P11.
3. Petitioner filed an application before the second respondent Custodian of vested forest under Section 19(3)(b) of the Act to declare their property as one not ecologically fragile. P12 application is pending. Subsequently petitioners were informed that their estate will be inspected on 07/03/2009 and it was so done. This writ petition has been filed alleging that there has been interference and obstruction to the petitioner's enjoyment of their property, excluding the 40.480 hectares covered by Ext.P9. Other reliefs have also been sought for.
4. A counter affidavit has been filed by the third respondent. The substance of the contention taken up therein is that out of the entire extent of land claimed by the petitioners, more than 80 hectares of land is ecologically fragile. Though Ext.P9 notification schedules only 40.48 hectares, 80 hectares is liable to be treated as ecologically fragile land. It is contended that ecologically fragile lands stand vested with the Govt. in terms of Section 3(1) of the Kerala Forest Act and such
Murukankutty v Amarnath Shetty (2006(4) KLT 971).
5. I heard Mr.James Koshy, learned counsel for the petitioners and Mr.V.M Poulose, learned Special Govt. Pleader.
6. Sections 3 and 4 of the Act are relevant in the context. Mr.Koshy contends that the statutory vesting contemplated under Section 3(1) of the Act is in relation to ecologically fragile land, which essentially refers to a forest land. Forest has been defined in Section 2(c)of the Act.
It excludes there from plantations and other sites of residential building. Therefore vesting of any ecologically fragile land in terms of Section 3(1) of the Act would not comprehend land, which was a plantation on the date of commencement of the Act. He further contends that though vesting of an ecologically fragile land may not be dependent on a notification to be issued under Section 3(1) of the Act, such a notification will be necessary to identify the land that is vested and also bring within its purview, onsequences resultant upon the vesting of an ecologically fragile land. To take any other view, according to him will render otiose Section 3(2) of the Act. I find force in the submission.
7. I note that there is a distinction between the contents of Section 3 and Section 4 of the Act.
The power of the Govt to declare any land as an 'ecologically fragile land' is vouchsafed under Section 4. Vesting of a land, which is declared to be ecologically fragile under Section 4 takes place with effect from the date of declaration, as provided under Section 4(4) of the Act. Vesting of an ecologically fragile land in terms of Section 3(1) of the Act takes place from the date of commencement of the Act namely 2/6/2000. Thus, land which is brought within the definition of 'ecologically fragile land' under Section 2(b) of the Act will stand vested with effect from 2/6/2000. But the actual vesting of the same will have to be notified under Section 3(2) of the Act. Section 3(2) of the Act cannot be ignored as redundant. It has its own place in the scheme contemplated by the legislation. A citizen cannot be expected to comply with the restrictive provisions of an enactment and restrained from enjoying his property, merely on the possibility of the Govt. declaring any land as an 'ecologically fragile land'. Section 3(2) of the Act could be read as one not only enabling the Govt. to issue a notification, but also possibly obliging them to do so. If that be so, absence of a notification under Section 3(2) of the Act, could give a right to a person, who is the owner of any land, alleged as an ecologically fragile land, to assert his position unless there is issuance of a notification under Section 3(2) of the Act.
8. Once a notification is issued and there is a dispute as to whether the land is an ecologically fragile land, then the remedy of the person aggrieved by the notification is to move the tribunal under Section 10 of the Act.
9. In my view, this would be a reasonable way of construing the provisions of the Act.
10. Mr. V.M Poulose, Special Govt. Pleader refers to the above mentioned judgments in Balan and Murukan Kutty and contends that this court in the above mentioned decisions has taken the view that vesting under Section 3(1) of the Act takes place by operation of law, on 2/6/2000 and Section 3(2) of the Act only stipulates the procedure to be followed after the land is vested. Mr. Poulose contents that apart from the 40.48 hectares covered by Ext.P9 notification, another 40 hectares of land belonging to the petitioners are also liable to be treated as 'ecologically fragile', though there is no notification covering the said land. He defends his stand on the basis of the above mentioned decision.
11. Prima facie, I am unable to accept the submissions of the learned Govt. pleader. In my view, the scheme outlined by Sections 3 and 4 of the Act, read in the context of the definition clause, suggests a different view. In these circumstances it is appropriate that there is an authoritative pronouncement by the Division Bench.
12. Accordingly, I adjourn this writ petition to be heard by a bench under Section 3 of the High Court. The Registry shall take appropriate Orders from the Hon'ble Chief Justice.
Interim Order passed on 29/05/09 shall stand extended by two months.
V.GIRI,JUDGE VDV