Allowed

The Custodian of Ecologically Fragile Lands v. M/S.N.a.Plantations

Kerala HC19 Jul 2016OP(FT)/4/2016

Case brief

AI extract

What is this about?

This court disposed of an original petition challenging the Forest Tribunal's refusal to review a previous order appointing an Advocate Commissioner. Finding a common name in panels submitted by both parties, the court appointed that lawyer to inspect the disputed vested forest land in Kasaragod.

What did the court decide?

The order declining review was set aside; Advocate Commissioner Sri. Biju Krishnan appointed; survey to be completed within three months.

The Custodian of Ecologically Fragile Lands Vs… — Land Acquisition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON &

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938

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OP(FT).No. 4 of 2016 ()

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AGAINST THE ORDER IN I.A.No.124/2015 IN I.A.No.115/2015 IN O.A.No.15/2014 DTD.11.1.2016 OF THE COURT OF THE TRIBUNAL FOR EFL CASES/ I ADDL.DISTRICT JUDGE, KOZHIKODE

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PETITIONERS :

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THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS [PRINCIPAL CHIEF CONSERVATOR OF FORESTS], FOREST HEAD QUARTERS, THIRUVANANTHAPURAM.

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THE DIVISIONAL FOREST OFFICER, KASARGODE.

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BY GOVERNMENT PLEADER SMT.DEEPA.G.N.

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RESPONDENT :

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M/S.N.A.PLANTATIONS,

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PANATHADY VILLAGE, HOSDURG.

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BY ADV. SRI.SHIRAZ ABDULLA BY ADV. SRI.A.DINESH RAO BY ADV. SRI.DEVAN RAMACHANDRAN (SR.)

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THIS OP (FOREST TRIBUNAL) HAVING BEEN FINALLY HEARD ON 19-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(FT).No. 4 of 2016 (R)

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APPENDIX

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PETITIONERS' EXHIBITS

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----------------------EXT.P1: TRUE COPY OF INTERLOCUTORY APPLICATION TO REVIEW THE ORDER PASSED IN IA No.115/2015 TO APPOINT A FRESH COMMISSIONER. EXT.P2: TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE RESPONDENT HEREIN IN IA.No.124/2015. EXT.P3: TRUE COPY OF ORDER DATED 11/01/2016 IN IA.No.124/2015 IN IA.No.115/2015 IN OA.No.15/2014.

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RESPONDENT'S ANNEXURES :-

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ANNEXURE R1(a)	COPY OF THE PLAINT IN O.S.No.134/98 DTD.11.3.98 ON THE FILE OF THE MUNSIFF COURT, HOSDURG.
ANNEXURE R1(b)	COPY OF THE WRITTEN STATEMENT IN O.S.No.134/98 DTD. 9.10.1998 ON THE FILE OF THE MUNSIFF COURT, HOSDURG.
ANNEXURE R1(c)	COPY OF THE REPORT FILED BY THE ADV.COMMISSIONER, M.RAMESH.
ANNEXURE R1(d)	COPY OF THE COMPROMISE PETITION IN O.S.No.134/98 DTD.11.3.98 ON THE FILE OF THE MUNSIFF COURT, HOSDURG.
ANNEXURE R1(e)	COPY OF THE PLAN FILED ALONG WITH THE COMPROMISE PETITIION IN O.S.No.134/98 DTD.11.3.98 ON THE FILE OF THE MUNSIFF COURT, HOSDURG.
ANNEXURE R1(f)	COPY OF THE JUDGMENT DTD.31.7.2003 IN O.S.No.134/98 DTD.11.3.98 ON THE FILE OF THE MUNSIFF COURT, HOSDURG.
ANNEXURE R1(g)	COPY OF O.A.No.15/14 ON THE FILE OF THE TRIBUNAL FOR THE KERALA FOREST (VESTING & MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS), KOZHIKODE.
ANNEXURE R1(h)	COPY OF I.A.No.115/15 ON THE FILE OF THE FOREST TRIBUNAL, KOZHIKODE.

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True copy

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P.A to Judge

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P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

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O.P.(FT)No.4 of 2016

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Dated this the 19^th day of July, 2016

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JUDGMENT

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Ramachandra Menon, J.

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The grievance is essentially in relation to the appointment of an Advocate Commissioner to ascertain the facts and figures pertaining to the disputed property stated as vested with the Government in terms of Section 3(1) of the Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Act, 2003 ('EFL Act' in short).

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State/custodian of the Ecologically Fragile Land (EFL) and the D.F.O., Kasaragod are the petitioners herein. Challenge is against Ext.P3 order passed by the Tribunal declining to review the order dated 26.11.2015 in I.A.No.115/2015, whereby a particular lawyer was appointed to conduct the inspection and to collect the data, despite the objection raised from the part of the State/Department.

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The respondent's case was that he was owning and possessing the property having an extent of 154.0347 hectares of land in Re-Survey No.291/pt in Panathady Village, Hosdurg

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O.P.(FT)No.4 of 2016

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Taluk, Kasaragod District, when the State Government issued a notification bearing No.EFL.10-40/2013 dated 26.11.2013, published in the concerned Gazette dated 24.12.2013 in terms of Section 3(2) of the 'EFL Act'; whereby the property was stated as vested with the Government under Section 3(1) of the said Act.

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According to the respondent, the course pursued by the authorities concerned was nothing but an abuse of the process and that the property concerned was never liable to be declared as 'Ecologically Fragile Land'. It is revealed from Annexure.R1(a) that the respondent had earlier moved the Munsiff Court, Hosdurg, by filing O.S.No.134/1998 seeking to restrain the defendant State/Department from trespassing and interfering with the peaceful possession and enjoyment of the plaint schedule property. An application was filed for issuance of an Advocate Commissioner. It is stated that no objection was raised from the part of State/Department with regard to the appointment of Advocate Commissioner and it was accordingly, that an Advocate Commissioner was appointed, who conducted the inspection with the help of the Taluk Surveyor and submitted

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O.P.(FT)No.4 of 2016

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a report; which was virtually in support of the case projected by the respondent/plaintiff. In the meanwhile, the issue between the parties was stated as compromised as per Annexure R1(d) and the suit was dismissed in terms of the compromise as borne by Annexure R1(f) on 31.7.2003.

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In the course of further proceedings as mentioned above, by virtue of the notification issued by the Government effecting 'vesting' of the property with the Government in terms of the provisions of the 'EFL Act', the respondent approached the Forest Tribunal by filing O.A.No.15/2014 seeking for the following reliefs:-

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i) To declare (if necessary set aside the notification) that the properties described above are not Ecologically Fragile Land and are not liable to be notified as Vested Forest Lands under the Kerala Forest (Vesting & Management of Ecologically Fragile Land) Act 2003 and to declare that the notification dated 26.7.2006 and 24.12.2013 declaring the land described above as vested under the said Act are not legal and are not binding upon the property described in the application;

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O.P.(FT)No.4 of 2016

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ii) To declare that the property described in the application does not come under the classification of 'Ecologically Fragile Lands' as defined under the provisions of Kerala Forest (Vesting & Management of Ecologically Fragile Land) Act 2003 and thus is liable to be denotified from the scope of the notifications dated 26.7.2006 and 24.12.2013.

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iii) To issue directions to the respondents not to interfere with the enjoyment and possession of 154.0347 hectares of land, which is a subject matter in dispute.

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The relief was opposed from the part of the

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State/Department. In the course of further proceedings, appointment of an Advocate Commissioner was sought for by filing necessary proceedings and the very same Advocate who was appointed as the Commissioner by the Civil Court came to be appointed by the Tribunal. It is stated that the Advocate Commissioner has taken steps to conduct the inspection of the property with the assistance of the Taluk Surveyor. He has also sought for permission to make use of the service of a 'private surveyor' with the infrastructure of digital survey equipments

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O.P.(FT)No.4 of 2016

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and the matter is still pending consideration before the Tribunal. The appointment of the said Advocate Commissioner was objected from the part of the petitioners herein who filed I.A.No.115/2015 to have it reviewed, referring to the facts and figures in support of their contentions. This was considered by the Tribunal, who rejected the same as per Ext.P3 order dated 11.1.2016, which made the petitioners to approach this Court by way of the above Original Petition.

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When the matter came up for consideration before this Court earlier, the petitioners were required to substantiate the fact as to the filing of objection to the earlier Commission Report and other relevant aspects. Pursuant to the said order dated 17.3.2016, copies of the relevant proceedings have been filed by the petitioners, which form part of the record.

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In the course of further proceedings, on considering the fact that the inspection could be done in a better manner by any lawyer who is practising in the Courts at Hosdurg, both the sides were required to submit a panel of lawyers who could be considered for appointment as the Advocate Commissioner,

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O.P.(FT)No.4 of 2016

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although this Court did not find it necessary to arrive at a finding as to the allegations levelled against the Advocate Commissioner

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already appointed by the Tribunal. Pursuant to the said proceedings, the learned Government Pleader, as per memo dated 12^th of July, 2016, has submitted the names of the following four persons having practice in the Courts in Hosdurg, who could be considered for appointment as the Advocate Commissioner in O.A.No.15/2014 pending before the Tribunal:

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Adv.Sri.K.V.Rajendhran

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Adv.Smt.P.Sindhu

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Adv.Sri.K.Peethambaran

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Adv.Sri.Biju Krishnan

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Today, when the matter is taken up for further consideration, the learned counsel appearing for the respondent submits that the respondent has also submitted a panel of lawyers practising in the Courts in Hosdurg, which reflects the names of the following three persons:-

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Adv.Sri.Anil K.G.

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Adv.Sri.Biju Krishnan

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Adv.Sri.M.Vinodkumar

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O.P.(FT)No.4 of 2016

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After hearing both the sides, this Court finds that a common name [Adv.Sri.Biju Krishnan] figures in the memo submitted by both the sides; which virtually means that there cannot be any dispute for either side with regard to the appointment of the said person, so as to conduct the inspection and to submit a report before the Tribunal.

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In this context, this Court would like to make it clear that the above course was pursued, not on being carried away by the submission made by the learned Government Pleader across the Bar as to the objections raised against the Commissioner already appointed by the Tribunal, who was appointed earlier by the Civil Court in O.S.No.134/1998 or as to his conduct, capacity or competency to conduct the inspection and submit the report. We do not express anything in this regard and on the other hand would make it clear that it is never to tarnish the image, credibility or dignity of the lawyer already appointed; but only in view of the nature of dispute and also to have the issue finalized at the earliest, avoiding multiplicity of litigations. It is stated by the learned counsel for the respondent that the 'batta' payable to

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O.P.(FT)No.4 of 2016

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the Advocate Commissioner appointed by the Tribunal has already been satisfied. This Court finds it fit and proper to have the person by name Sri.Biju Krishnan appointed as the Advocate Commissioner to proceed with further steps for inspecting the property and conduct the survey with notice to both the sides.

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The inspection and survey as above shall be conducted with the assistance of the Taluk Surveyor concerned, who shall render all necessary assistance in this regard. If any further assistance is necessary to resolve the issue, making use of the latest infrastructure to complete the survey, it is open for either side to approach the Tribunal for appropriate reliefs. In view of the turn of events, the order passed by the Tribunal which is now under challenge and all other orders which are connected or incidental thereto will stand set aside/modified. The remuneration payable to the above Advocate Commissioner at the first instance shall be the same as fixed by the Tribunal. The balance, if any payable, depending upon the nature of work could be fixed by the Tribunal in the due course.

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O.P.(FT)No.4 of 2016

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The submission made by the learned counsel for the respondent that necessary 'batta' will be paid to the Advocate Commissioner directly and 'Memo' will be filed before the Tribunal is recorded. Appropriate arrangements shall be made by the respondent, meeting necessary expenses for inspection and survey. The inspection and survey shall be completed at the earliest and report shall be submitted before the Tribunal within 'three months' from the date of receipt of a copy of this judgment.

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The Original Petition stands disposed of.

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Sd/-

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P.R.RAMACHANDRA MENON, JUDGE

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Sd/- ANIL K.NARENDRAN, JUDGE

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skj

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True copy

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P.A to Judge

The Custodian of Ecologically Fragile Lands v. M/S.N.a.Plantations

Case brief

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The Custodian of Ecologically Fragile Lands v. M/S.N.a.Plantations

Case brief

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