Chief Conservator To Settle Ecologically Fragile Land Disputes If Application Filed Within 6 Months From Individual Notice: Kerala High Court

The Kerala High Court recently upheld the Single Judge's decision directing the Principal Chief Conservator of Forests (PCCF) to consider the applications preferred by the petitioners regarding a dispute whether their land is an ecologically fragile land since it was filed within 6 months from the date of individual notices served on them.

A Division Bench of Chief Justice S. Manikumar and Justice Shaji P Chaly while dismissing the appeal ruled:

"The legislative intent is to be given the utmost importance, which would be more logical, relevant and meaningful, to protect the interests of the citizens. It is trite and settled that the provisions of a statute shall be read harmoniously, so as to make it meaningful and commensurate with the intention of the legislature."

The main question for consideration in the appeals was in relation to Section 10A of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, as amended in the year 2009.

Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Act, 2003, is an Act to provide for the vesting in the Government of ecologically fragile lands in the State of Kerala and for the management of such lands with a view to maintaining ecological balance and conserving the biodiversity.

Factual Background:

Aggrieved by the rejection of the applications by the Principal Chief Conservator of Forests, Kerala, who is the Custodian of Ecologically Fragile Lands on the ground that the applications are time-barred, the petitioners have filed the writ petitions also averred that the rejection orders are passed without affording them an opportunity of being heard.

The petitioners argued that their properties are pucca agricultural lands. While so, they were served with a notice by the Divisional Forest Officer, informing them that about 100 Hectares of the property was vested in the Government and that the same was notified by the Custodian as per the Notification dated 26.10.2003.

But the boundaries and other details of the above-mentioned properties were allegedly not properly mentioned in the notice.

The petitioners contended that the abovesaid notice is illegal because the provisions of the Act are not attracted to the above-mentioned properties and that Section 3(1) of the EFL Act provides for vesting in Government ecologically fragile lands in the State, for management of such lands.

Hence, they filed applications under Section 10A of the Act within six months of the receipt of the notice before the  Principal Chief Conservator of Forests for settlement of the dispute as to whether such lands are ecologically fragile lands or not. 

However, the Principal Chief Conservator of Forests scrutinized the same and without issuing notice to the writ petitioners, or without affording an opportunity of hearing, dismissed the applications stating that they are time-barred.

Challenging the decision of the Principal Chief Conservator, the petitioners moved the High Court with their grievances. 

Before the Single Judge, they contended that the appellants who are well aware of the importance and relevance of sending individual notices to the parties concerned deliberately and purposefully delayed the issuance of individual notices to ensure that they do not file their applications, within the time prescribed.

Refuting the averments in the petitions, the Divisional Forest Officer filed an elaborate common counter affidavit. 

After considering the rival submissions, the material on record, relevant statutory provisions, and relevant decisions of the Supreme Court, the writ court allowed the petitions directing the appellants to consider the applications preferred by the petitioners under Section 10A.

Assailing the correctness of the impugned judgment passed by the Single Judge, appellants have filed these appeals.

Contentions Raised: 

The appellants argued that the judgment of the Single Judge allowing the writ petitions is perverse, without appreciation of evidence and document on records, and thus illegal.

They based their argument on the fact that Section 10A(7) bars filing of an application after the expiry of six months from the date of notification, and the judgment of the learned Single Judge is contrary to the mandate of the statute and thus illegal and arbitrary.

The Single Judge had ruled that the limitation of 6 months provided in Section 10A(7) of the Act starts only from the date of communication of the notice.

According to the appellants, such finding was against the provisions of the statute and the said provision in explicit terms states that no application shall be filed under Section 10A after the expiry of six months from the date of notification declaring such land as Ecologically Fragile Land under Section 3.

The writ petitioners/respondents herein submitted that the land vested in the Government shall be notified in the Gazette and that the owner shall be informed in writing. They also submitted that the notification shall also be placed before the Advisory Committee.

They further argued that declaring that land as per Section 3 of the Act as Ecologically Fragile Land, while that land is in the bona fide possession of an individual, always attracts Article 300A of the Constitution of India. Depriving one's right to enjoy his property must be legally authorised. Public duty demands that it should be done in a more transparent manner. 

It was submitted that the notification and subsequent individual notices are meant for more clarity with respect to the EFLs mentioned under Section 3(1).

Observations of the Court:

The Court found that Section 3 of the Act speaks about Ecologically fragile lands to vest in Government.

Similarly, Section 10A clarifies that any dispute as to whether the land is an ecologically fragile land or not may be filed before the Principal Chief Conservator of Forests for the settlement of such dispute.

The Bench noted that the notifications were admittedly published by the State in the Gazette on different dates of the information in writing given by the Custodian of Forest to the owners of the properties.

The contention advanced is that under Section 10A(7), the sole basic requirement for calculating six months period is the notification issued under Section 3 and not the information in writing by the Custodian to the owner.

It was found that if the communication in writing as contemplated under Section 3 of Act, 2003 was not made immediately by the Custodian of the forests, on the basis of the notification issued by the Government, the benefit shall not be available to the owner of the property, and he would be deprived of his rights to enjoy the property, especially in view of the Constitutional right guaranteed under Article 300A of the Constitution of India.

"In the instant cases, since the information in writing is given to the owners of the properties, months and months after publication of the notification in the Gazette, and that too, after six months period from the publication in the Gazette, definitely the period of six months has to be calculated from the date of receipt of the information in writing to the owners of the properties." 

The legislative intent is to be given the utmost importance, which would be more logical, relevant and meaningful, to protect the interests of the citizens.

It is trite and settled that the provisions of a statute shall be read harmoniously, so as to make it meaningful and commensurate with the intention of the legislature, the Court observed. 

"Definitely, when the property is taken away, the owner of the property is entitled to get an intimation enabling him to respond to the action of the Government appropriately and, with the object of protecting his interest, which is the intention of the legislature in the case at hand."

Applying the principle of harmonious construction, the Bench remarked so:

"By introducing Section 10A of Act, 2003, the Legislature never meant to defeat the relevance of Section 3 of Act, 2003, which thus means, it is only appropriate that the provisions of Section 3 and Section 10A are harmonized to gather an effective meaning, so as to protect the interest of the marginal farmers, whose properties are vested in the Government, by virtue of the statutory fiction contained under Section 3 of Act, 2003."

Reliance was also placed on UOI v. State of Tripura [AIR 2012 SC 3240], where the Supreme Court held that any interpretation, which leads to injustices and absurdity, must be avoided and, in such situations, the court may look into the purpose for which, the statute has been brought and would try to give a meaning, which would adhere to the purpose of that statute. 

Accordingly, the Court found that the appellants had not made out a case for interference with the judgment of the Single Judge, since there is no error in exercising the discretion or other legal infirmities established by the appellants. 

Therefore, it was held that the appeals fail and they were dismissed.

However, the order of status quo granted by the Single Judge for consideration and disposal of the interim arrangement would stand extended by a period of two months, the Court clarified. 

Case Title: Principal, Chief Conservator of Forests & Ors . E. Moideen Koya and connected matters

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