The Court rejected arguments that a notification under the 2003 Act excusing non-compliance of a prior order justified contempt. It held the review was unnecessary and both petitions dismissed.
Review petition and contempt application dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 7TH DAY OF DECEMBER 2016/16TH AGRAHAYANA, 1938 Con.Case(C).No. 1176 of 2016 (S) -------------------------------WP(C) 31494/2015 of THIS HONOURABLE COURT --------PETITIONER(S):
1. IBRAHIM, S/O. POTHA ALIAS PAKEER RAWTHER RESIDING AT "SHAJITHA MANZIL", P.O.ERIMAYUR, ALATHUR TALUK, PALAKKAD DISTRICT.
2. BADARUDDIN, S/O. LATE MOHAMMED SALI RESIDING AT "SHAJITHA MANZIL", P.O.ERIMAYUR, ALATHUR TALUK, PALAKKAD DISTRICT.
3. HAJIRA UMMA, W/O. LATE P.MUHAMMED RAWTHER VALLIKKADU HUSE, P.O.MANJALUR, VIA.ERIMAYUR, ALATHUR TALUK, PALAKKAD DISTRICT.
4. ASSANAR, S/O. POTHA ALIAS PAKEER RAWTHER RESIDING AT "SHAJITHA MANZIL", P.O.ERIMAYUR, ALATHUR TALUK, PALAKKAD DISTRICT.
5. USSANAR, S/O. POTHA ALIAS PAKEER RAWTHER, RESIDING AT "SHAJITHA MANZIL", P.O.ERIMAYUR, ALATHUR TALUK, PALAKKAD DISTRICT.
BY ADVS.SRI.P.R.VENKETESH SRI.P.R.RAJA SRI.KEERTHI V.S.
RESPONDENT(S):
1. SRI. MARA PANDIYAN FATHER'S NAME NOT KNOWN, AGE NOT KNOWN, PRINCIPAL SECRETARY, STATE OF KERALA, DEPARTMENT OF FOREST & WILD LIFE, SECRETARIAT, THIRUVANANTHAPURAM-678 002.
Con.Case(C).No. 1176 of 2016 (S)
2. SRI. L. CHANDRASEKHARAN FATHER'S NAE NOT KNOWN, AGE NOT KNOWN, CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD -678 002.
BY SPL. GOVERNMENT PLEADER SRI.K.SANDESH RAJA
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 07-12-2016, ALONG WITH RP. 926/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
bp
A. MUHAMED MUSTAQUE, J.
Cont. Case (C) No. 1176/2016 & R.P. No. 926/2016
in W.P.(C) No. 31494 of 2015
Dated this the 7th day of December, 2016
J U D G M E N T
the judgment dated 09.11.2015 in WP(C) No.31494/2015.
2.The writ petitioners have approached this Court alleging that there was considerable delay in restoring the lands covered by O.A. Nos.7/2009, 8/2009, 9/2009, 10/2009 & 11/2009 on the files of the Forest Tribunal, Kozhikode. The Forest Tribunal, in the aforesaid OAs, declared that the schedule properties therein are not private forest vested in the Government under Section 3(1) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The petitioners' case was that in view of the above declaration, they are entitled for
CO(C) No. 1176/2016 & RP No. 926/2016
..2..
restoration in terms of Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The writ petition was disposed of, recording the submission of the learned Special Government Pleader that they are proposed to file an appeal against the order passed by the Forest Tribunal, and directing the Forest Department to restore the land unless an order is passed in appeal against the operation of the order passed by the Forest Tribunal.
3.Now, the State has come up in review, stating that steps were taken to include the land as ecologically fragile land and therefore, directions to restore the land need be reviewed as the land is now vested with the State in terms of Section 3(2) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003.
CO(C) No. 1176/2016 & RP No. 926/2016
..3..
Court at the time of disposal of the writ petition as to the inclusion of the land under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. It is further argued that a subsequent notification cannot be created as a hurdle by the Forest Department to implement the judgment of this Court. It is also argued that when a matter stands concluded in terms of the Kerala Private Forests (Vesting and Assignment) Act, 1971, without there being an appeal against the orders, the mere notification under Section 3(2) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, cannot be an excuse to implement the direction of this Court. It is argued that in fact, such a notification is issued as a disobedience of the direction of this Court.
5.With regard to the maintainability of the review petition, this Court is of the view that there is no ground for review as this Court did not adjudicate any
CO(C) No. 1176/2016 & RP No. 926/2016
..4..
dispute to the character of the land. This Court only directed in the judgment to implement the order of the Forest Tribunal within three months. If the judgment cannot be implemented on account of the operation of Section 3(2) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, there can be a legal excuse for non compliance of the judgment. The writ petition was disposed of, recording the submission of the learned Government Pleader that they are proposing to file an appeal against the order of the Forest Tribunal. However, they have not taken steps to do so. In that view of the matter, this Court is of the view that a review of the judgment is unnecessary. Accordingly, the review petition is dismissed.
6.Coming back to the contempt case, it is relevant to refer to Section 3 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, which reads as follows;
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CO(C) No. 1176/2016 & RP No. 926/2016
“Section 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 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) The lands vested in Government under subsection (1) shall be notified in the Gazette by the Custodian and the notification shall be placed before the Advisory Committee constituted under Section 15 for perusal.”
7.The statutory provision clearly indicates that notwithstanding any judgment of a tribunal or a court, all ecologically fragile lands shall stand transferred to the Government and vested with the Government, free from all encumbrances by issuing a notification. When the judgment of the tribunal cannot be implemented by virtue of the operation of statutory provisions, certainly, that would become an excusable reason for non compliance of the judgment of this Court in the writ petition. It is to be noted that this Court has not
CO(C) No. 1176/2016 & RP No. 926/2016
..6..
adjudicated any dispute between the petitioners and the State in the writ petition. Therefore, there is no lawful disobedience of the direction of this Court, warranting initiation of proceedings under Contempt of Court Act.
Sd/-
A. MUHAMED MUSTAQUE JUDGE
bka/-
3 issues framed by the court
Whether a subsequent notification under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 serves as a valid excuse for non-compliance of a prior court judgment directi
Whether the review petition is maintainable when the court did not adjudicate the character of the land.
Whether the statute vesting ecologically fragile lands in the government overrides a prior court order warranting contempt proceedings.
4 provisions across 2 enactments
Ibrahim
Badaruddin
Hajira Umma
Assanar
Ussanar
State of Kerala through Principal Secretary, Department of Forest & Wild Life
A.Muhammed Mustaque
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
A.Muhammed Mustaque
Parties & counsel
