Sivaprasad and Others vs State of Kerala and The Custodian (Ecologically Fragile Land) and Principal Chief Conservator of Forests

Thottathil B. Radhakrishnan, J.—The appellants applied to the Forest Tribunal u/s 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, for a declaration that the property described in the schedule to the petition filed by them are not ecologically fragile land in terms of that Act.

Though a large extent of contiguous lands were notified under the Act, the claim of the applicants was confined to 8.5653 hectares. They claim that the said parcel was found to be not covered by the vesting in terms of the Act 26 of 1971. May be, it was a case of exemption having been granted from the provision providing for vesting in terms of that enactment. That is not germane for a decision, at this point of time, because the impugned order of the Tribunal was issued with the finding that the applicants did not establish even the identity of the property claimed by them and in relation to which the request for declaration that it is not a parcel of ecologically fragile land was sought for.

The Learned Counsel for the appellants argued that the Forest Tribunal''s finding that the land has not been identified or cannot be identified would go to disclose the root of the notification issued by the competent authority under the EFL Act because a notification could not have been issued in relation to an item of property which cannot be identified. At the first blush, this argument may look attractive, but, on a deeper consideration we are of the view that it is liable to be rejected. The notification issued under the EFL Act is for a very large extent. What the applicant''s claim is only a smaller extent of 8.5653 hectares out of the notified area. The identity of the entire lands covered by the notification is described in the notification, with reference to survey numbers. The applicants, to sustain their request for a declaration that the extent of 8.5653 hectares claimed by them is not a piece of ecologically fragile land had to necessarily establish, to the satisfaction of the Forest Tribunal, the identity of the extent of the said piece of 8.5653 hectares as claimed by them out of the large extent covered by the notification extending to about 424 hectares.

Similarly, even if the property covered by the order issued under Act 26 of 1971 has to be considered, the identity of that property qua the property claimed by the applicants in the case in hand, has to be established by placing necessary connecting oral or documentary evidence.

Though the Learned Counsel for the appellants says that the testimony of RW1, the officer of the Department, could be relied on in favour of the appellants/applicants as regards this aspect, they had not tendered any oral evidence, in any manner, bringing on record before the Forest Tribunal, the connecting link between the materials that would justify the applicants'' claim that the extent of 8.5653 hectares claimed by them has to be declared as not an ecologically fragile piece of land.

Faced with the aforesaid situation, the Learned Counsel for the appellants, very persuasively, requested for an opportunity for his clients to adduce further evidence, including by making appropriate application for the issuance of commission for local inspection and to place further oral and documentary evidence before the court below. The situation in hand is clearly the making of the appellants (applicants). Yet, we are inclined to think that, to do complete justice between the State and the applicants, who are citizens, an order of remand could be made, however, on terms.

In the result,

(1) This appeal is allowed setting aside the impugned order.

(2) The case is remitted for reconsideration with opportunity for the appellants (applicants) and the respondents to adduce further evidence, including by taking out commission as may be permitted by the Tribunal. It is clarified that the evidence already on record would also be utilised and what would be adduced would be treated as further evidence.

(3) The parties are directed to mark appearance before the Forest Tribunal on 27.3.2012.

(4) This order of remit being issued only to extend opportunity to the appellants and this being a litigation in which the State is a respondent, it is ordered that the appellants shall pay an amount of Rs. 10,000/- as costs, payable to the High Court Mediation Centre, within a period of three weeks from today, failing which this appeal would stand dismissed automatically. No enlargement of time would be granted to comply with this condition dictated in open court in the presence of the Learned Counsel for the appellants. The receipt of such remittance shall be produced before the court below with copy to the Registry of this Court.

The appeal is ordered accordingly.