Kerala High Court
T.Easwaranunni vs State Of Kerala on 6 February, 2020
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA,
1947
WP(C).No.37939 OF 2017(N)
PETITIONERS:
1 T.EASWARANUNNI, AGED 67 YEARS
S/O LAKSHMI KAVU VARASYAR, THARAKKAL
VARIYAM,CHERUKODE P.O., VALLAPPUZHA,
PALAKKAD DISTRICT, PIN- 679336.
2 T.RAMANUNNI,
S/O JAYALAKSHMI KAVU VARASYAR, THARAKKAL
VARIYAM,CHERUKODE P.O., VALLAPPUZHA,
PALAKKAD DISTRICT, PIN- 679336.
3 T.GOURI KAVU,
D/O. PARVATHY KAVU VARASYAR, THARAKKAL
VARIYAM,CHERUKODE P.O., VALLAPPUZHA,
PALAKKAD DISTRICT, PIN- 679336.
BY ADV. SRI.M.P.MADHAVANKUTTY
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
FOREST AND WILD LIFE/DEPARTMENT,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-
695001.
2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS AND
PRINCIPAL CHIEF CONSERVATOR OF FORESTS,
FOREST HEAD QUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695014.
3 CUSTODIAN OF VESTED FORESTS AND CHIEF
CONSERVATOR OF FORESTS,
EASTERN CIRCLE, OLAVAKKODE, PALAKKAD-678002.
W.P.(C) No. 37939 of 2017
..2..
4 DIVISIONAL FOREST OFFICER,
PALAKKAD-678002.
5 RANGE FOREST OFFICER
OTTAPPALAM-679101.
BY SRI. RANJITH THAMBAN, ADDL. AG
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05-02-2020, THE COURT ON 06-02-2020 DELIVERED THE
FOLLOWING:
W.P.(C) No. 37939 of 2017
..3..
C.R.
P.B.SURESH KUMAR, J.
-------------------------------------
W.P.(C) No.37939 of 2017
--------------------------------------
Dated this the 6th day of February, 2020
JUDGMENT
The writ petition is one instituted challenging Ext.P9 order of the custodian under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (the Act), in terms of which he has revised Ext.P2 order passed by his predecessor under Section 19(3)(b) of the Act.
2. The first petitioner is one of the applicants in O.A. No.257 of 1979 on the files of the Forest Tribunal, Palakkad. The second petitioner is one of the applicants in O.A. No.203 of 1979 and the third petitioner is one of the applicants in O.A. No.103 of 1979 on the files of the very same Tribunal. The said original applications were preferred claiming exemption from the provisions of the Kerala Private Forests W.P.(C) No. 37939 of 2017 ..4..
(Vesting and Assignment) Act, 1971 (Act 26 of 1971) in respect of a few items of lands, measuring altogether 163.14 Acres. In terms of Ext.P1 common order, the Forest Tribunal allowed the original applications granting exemption to the applicants under Section 3(3) of Act 26 of 1971 in respect of the lands involved in the matters. The State challenged Ext.P1 order in appeal before this Court in M.F.A. No.471 of 1982 and this court affirmed the decision of the Tribunal. Consequently, the lands were restored to the petitioners in the proceedings on 15.07.1994. Later, when the Act was promulgated, 49.7793 hectares out of land involved in the proceedings covered by Ext.P1 order has been notified under the Act. It is alleged by the petitioners that the first petitioner and thirty others, in the circumstances, preferred an application before the custodian under Section 19(3)(b) of the Act for restoring the notified land contending that it is not an ecologically fragile land. The aforesaid application was allowed by the custodian directing to survey and demarcate the subject land and de-notify the same in terms of Ext.P2 order. Pursuant to Ext.P2 order, the land was surveyed, demarcated and de-notified. Thereupon, the W.P.(C) No. 37939 of 2017 ..5..
petitioners and others have applied for and obtained no objection certificates in respect of the land for the convenient enjoyment of the same. Earlier, while restoring the lands pursuant to Ext.P1 order, the same have been notified under Section 5 of the Kerala Preservation of Trees Act in terms of Ext.P10 order. In the light of Ext.P10 order, it is stated in the no objection certificates that prior permission of the Central Government is required for diversion of the lands for non forestry purposes and for cutting of trees from the lands. The writ petition as instituted, in the circumstances, was one mainly for a declaration that Section 5 of the Kerala Preservation of Trees Act does not apply to the subject lands.
3. Ext.P2 order has been revised by the successor in office of the custodian under the Act pending disposal of the writ petition in terms of Ext.P9 order and the land covered by Ext.P2 order was consequently notified as ecologically fragile land again under the Act. Ext.P8 is the notification issued in this regard by the custodian under the Act. In the light of the said developments, the writ petition was amended by the petitioners incorporating challenge against W.P.(C) No. 37939 of 2017 ..6..
Ext.P9 order and Ext.P8 notification as well. The prayers in the amended writ petition read thus:
"(i) Issue a declaration that Section 5 of the Preservation of Trees Act, 1986 is not applicable to the properties of the petitioners;
(ii) To issue a Writ of mandamus or any other appropriate writ, order or direction, directing the respondents to permit the petitioners to clear fell the properties covered by Exhibit-P1 and Exhibit-P2 orders;
(iii) To issue such other writ, order or direction which this Hon'ble court may deem fit and proper in the facts and circumstances of this case;
(iv) To issue a writ of certiorari and quash the clause regarding section 5 of the Preservation of Trees Act, 1986 in Exhibit-P3.
(v) To call for the records leading to Exhibit P8 notification and quash the same by the issuance of a writ of certiorari.
(vi) To call for the records leading to Exhibit P9 and quash the same by the issuance of a Writ of Certiorari.
(vii) To issue a declaration that Exhibit P10 Government order has ceased its existence after the vesting of petitioner's property under Section 3(1) of the Kerala Forest (Vesting and Management of ecologically Fragile Lands) Act, 2003 by virtue of the notification bearing No. C4-21437/2000 dated 20.10.2000. "
4. A counter affidavit has been filed by the custodian under the Act in the matter. It is contended, among W.P.(C) No. 37939 of 2017 ..7..
others, in the counter affidavit that Ext.P2 order is one passed on an application preferred by the first petitioner under Section 19(3)(b) of the Act; that the said application was only in respect of 3.51 Acres of land out of the 42.07 Acres involved in O.A. No.103/1979; that the documents required to be produced along with an application under Section 19(3)(b) of the Act in terms of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Rules, 2007 (Rules) have not been furnished by the first petitioner; that the committee which considered the application did not have the prescribed quorum; that the finding rendered by the committee that the lands involved are not ecologically fragile lands is vitiated by mistake and that it is in the said circumstances, that Ext.P2 order was recalled.
5. Heard the learned counsel for the petitioners as also the learned Additional Advocate General.
6. The learned counsel for the petitioners strenuously argued that the Act does not confer any power on the custodian to review the orders passed under Section 19(3)
(b). According to the learned counsel, Ext.P9 order is, W.P.(C) No. 37939 of 2017 ..8..
therefore, one issued without jurisdiction. It was also argued by the learned counsel that the findings rendered by the custodian in Ext.P9 order to recall Ext.P2 order are all incorrect and unsustainable. It was pointed out by the learned counsel that the finding in Ext.P9 that Ext.P2 order was one passed on an application preferred by the first petitioner is factually incorrect as revealed from the opening page of Ext.P2 order itself that the same is one issued on an application preferred by the first petitioner and thirty others. It was also pointed out by the learned counsel that even otherwise, the question as to whose instance the order is issued is irrelevant as in terms of Section 19(3)(b) of Act, the custodian has the power under that provision to exclude properties already notified even without an application. It was also pointed out by the learned counsel that the committee which has inspected the land as referred to in Ext.P2 order had the requisite quorum as evident from Ext.R2(g) report of the committee. It was argued by the learned counsel that merely for the reason that the signature of one of the members of the committee is absent, it cannot be contended that the committee did not have the quorum. It W.P.(C) No. 37939 of 2017 ..9..
was also pointed out by the learned counsel that though it is stated in Ext.P9 order that Ext.P2 order is vitiated by fraud, the factual findings rendered in Ext.P9 order do not make out a case of fraud to justify an order in the nature of Ext.P9. It was contended by the learned counsel that the allegation of fraud must be clear, specific and definite. It was pointed out by the learned counsel that there are no clear, specific and definite charges or findings of fraud in Ext.P9 order. The learned counsel has placed reliance on Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji, 1971 KHC 713 and Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P) and Others, 1987 KHC 1108, in support of the aforesaid proposition. It was also contended by the learned counsel that at any rate, an order in the nature of Ext.P9 ought not have been passed without affording the affected parties an opportunity of hearing. It was also pointed out by the learned counsel that the Kerala Preservation of Trees Act applies only to private forests and cardamom plantation. It was contended by the learned counsel that insofar as the lands involved in the matter are neither W.P.(C) No. 37939 of 2017 ..10..
cardamom plantation, nor private forest, the said provision does not apply.
7. Per contra, the learned Additional Advocate General pointed out that even though the land was restored to the parties during 1994 and 1995, there was no cultivation at all in the land and it is in the circumstances that the same was notified under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000 (the Ordinance) and later under Act. It was also pointed out by the learned Additional Advocate General that unlike the inclusive definition of 'forest' contained in the Ordinance, the definition of 'forest' contained in Section 2(c) of the Act does not include lands which are used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut, cashew or any other site of residential building and surroundings essential for the convenient use of such buildings. According to the learned Additional Advocate General, it is in the light of the aforesaid change introduced in the definition of 'forest' that power has been conferred on the custodian under Section 19(3)(b) of the Act to revise the W.P.(C) No. 37939 of 2017 ..11..
notification issued under the Ordinance. It was pointed out by the learned Additional Advocate General that insofar as there cannot be any dispute that the lands involved is a private forest, the custodian was empowered to de-notify the lands only if it is found that the same are principally cultivated with long duration crops such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew. It was also pointed out that the first petitioner sought relief under Section 19(3)(b) of the Act on the premise that the land involved is a teak plantation. It was contended by the learned Additional Advocate General that the report of the committee indicates that the teak found in the lands were all in existence prior to 1994 and not planted by the petitioners. Even otherwise, it was pointed out that on that basis, the petitioners were not entitled to get the land de-notified under the Act, for, the teak plantation does not go along with crops like tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew. It was also contended by the learned Additional Advocate General that though the application was preferred only in respect of 3.51 acres of land, relief has been granted by the custodian in W.P.(C) No. 37939 of 2017 ..12..
respect of the entire land involved in Ext.P1. It was also argued by the learned Additional Advocate General that elaborated provisions are made in the Rules for conducting an enquiry as to whether a particular land is an ecologically fragile land falling under the Act. It was pointed out that Rule 17 of the Rules provides for application along with the documents mentioned therein, Rule 18 of the Rules provides for visit by the committee constituted for the said purpose and a report by the committee to the custodian and Rule 19 of the Rules provides for a decision by the Custodian, if necessary, after conducing a further enquiry. It was contended by the learned Additional Advocate General that there was no enquiry at all on the application said to have been preferred by the first petitioner as provided for under the Rules. It was also pointed out by the learned Additional Advocate General, placing reliance on the findings in Ext.P9 that the committee constituted under Rule 18 of the Rules which is expected to conduct an inspection of the entire land has not inspected the entire land. It was pointed out that when the report filed by the committee was not sufficient to hold that the land involved W.P.(C) No. 37939 of 2017 ..13..
is not an ecologically fragile land, it is not clear as to how the custodian came to the conclusion that the land is not an ecologically fragile land without conducting a further enquiry. The materials on record, according to the learned Additional Advocate General, would indicate beyond doubt that only naturally grown trees are there in the land involved and therefore the finding that the land is an ecologically fragile land to be notified under the Act is perfectly in order.
8. As regards the contention raised by the learned counsel for the petitioners that the custodian under the Act is not entitled to recall an order issued under Section 19 (3) (b) of the Act in the absence of a power conferred on him under the statute, it was contended by the learned Additional Advocate General that the facts disclosed would reveal that Ext.P2 order issued by the custodian is vitiated by fraud on power. It was the contention of the learned Additional Advocate General that if the order is vitiated by fraud on power, the competent authority is entitled to recall the order, notwithstanding whether there exists any power to do so. The learned Additional Advocate General has also placed on record some of W.P.(C) No. 37939 of 2017 ..14..
the judgments of the Supreme Court holding that fraud would vitiate even solemn among the solemn acts and orders vitiated by fraud are void ab initio. Placing reliance on the decision of this Court in Planters Forum, a Private Trust Calicut and another v. State of Kerala and another, 2014 KHC 803, the learned Additional Advocate General has submitted that on identical facts, this Court has upheld the proposition that if the order is vitiated by fraud, the very same authority would be justified in recalling the same notwithstanding the question as to whether it has the power to do so. The upshot in the arguments of the learned Additional Advocate General was, therefore, that Ext.P9 order is one issued in accordance with law and the petitioners are not entitled to any relief. As regards the contention of the petitioners that the Provision of the Kerala Preservation of Trees Act does not apply to the subject land, it was contended by the learned Additional Advocate General that it is evident from Ext.P1 order itself that the land involved in the proceedings is a private forest and merely for the reason that it was exempted from the provisions of Act 26 of 1971, it cannot be contended that the Kerala W.P.(C) No. 37939 of 2017 ..15..
Preservation of Trees Act does not apply to the same. It was also contended by the learned Advocate General that it is all the more so, in the light of the non obstante clause contained in Section 5 of the said Statute.
9. I have given my thoughtful consideration to the submissions made by the learned counsel for the petitioners and the learned Additional Advocate General. I have also perused the file leading to Ext.P9 order which was made available for the perusal of the court.
10. Before proceeding to consider the contentions raised by the counsel on either side, it is relevant to note that the file made available reveals that the application which led to Ext.P2 order was preferred only by the first petitioner for de- notifying his land measuring 3.51 Acres involved in Ext.P1 case and the said order was passed after issuing notice to the 30 other persons also holding rights in respect of the land involved in Ext.P1 case. True, Ext.P2 order is not passed in a suo motu proceedings. But, in so far as the custodian is empowered to issue orders in the nature of Ext.P2 even suo motu, it cannot be argued that Ext.P2 order is illegal merely W.P.(C) No. 37939 of 2017 ..16..
for the reason that the said order was passed in a proceedings commenced based on an application preferred by one of the persons interested in the land in question.
11. In the light of the contentions advanced by the learned counsel for the parties as noted above and the finding rendered in paragraph 10 above, the questions arising for consideration are (i) whether the custodian under the Act was justified in law in recalling or revising Ext.P2 order issued by his predecessor in office for the reasons mentioned in Ext.P9 order, (ii) if so, whether the custodian was justified in doing so without affording the affected parties an opportunity of hearing and (iii) if not, whether the petitioners are entitled to a declaration that the Kerala Preservation of Trees Act does not apply to the lands involved in the cases disposed of in terms of Ext.P1 order.
12. Questions (i) and (ii): Though very many reasons have been stated in the counter affidavit and additional counter affidavit filed by the respondents in the matter and very many reasons have been urged by the learned Additional Advocate General to support Ext.P9 order passed by W.P.(C) No. 37939 of 2017 ..17..
the custodian, according to me, the reasons supplied in the counter affidavit and pointed out at the time of hearing cannot be considered for the purpose of examining the correctness of Ext.P9 order, for, it is settled that an order has to stand by the reasons mentioned therein and it cannot be supported by the reasons stated in the counter affidavit [See Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405]. The following are the reasons, in essence, stated in Ext.P9 order to justify the decision taken to revise Ext.P2 order:
(i) that the application on which Ext.P2 order was passed was one preferred by the first petitioner alone in respect of his 3.51 acres of land covered by Ext.P1 order, and Ext.P2 order in respect of 49.7793 hectares ought not have been issued on the said application.
(ii) that the application preferred was not supported by the documents insisted in terms of Rule 17(2) of the Rules;
(iii) that the inspection by the Committee constituted under Rule 18 was made almost after eight years of the application;
(iv) that the inspection committee had no jurisdiction to inspect the entire land covered by Ext.P1 order when the W.P.(C) No. 37939 of 2017 ..18..
application was only in respect of 3.51 acres of land.
(v) that the inspection report submitted by the Committee constituted under Rule 18 is signed only by two members of the Committee;
(vi) that the sample land taken for ascertaining the nature by the Committee was a minuscule portion of the lands involved.
(vii) that the inspection report submitted by the committee constituted under Rule 18 is not in favour of the petitioners and as such, for the purpose of passing an order in the nature of Ext.P2, the custodian should have conducted further enquiries, and there is nothing on record to indicate that the custodian has conducted further enquiries before issuing Ext.P2 order.
(viii) that the finding rendered by the custodian in Ext.P2 order that the lands where there exists teak plantation are exempted from the purview of ecologically fragile lands is unsustainable in law; and
(ix) that the subsequent inspection reveals that the subject land is a land where there exists naturally grown vegetation including trees of all ages and species commonly found in the W.P.(C) No. 37939 of 2017 ..19..
locality with teak as dominant species and therefore, the same is ecologically fragile land in terms of the provisions of the Act.
13. I am not considering the correctness of the aforesaid reasons for the present, as, according to me, it is unnecessary to examine the correctness of the reasons aforesaid for the purpose of this case and it is suffice to note for the purpose of this case that the upshot of the reasons mentioned in Ext.P9 order is only that Ext.P2 is a palpably wrong order on merits as mentioned therein. The pointed question is as to whether the custodian under the Act is empowered to recall or revise an order passed by his predecessor in office, if it is palpably wrong on merits.
14. It is trite that a quasi-judicial authority is not empowered to revise or recall on merits, an order issued in exercise of the power conferred under the statute under which it functions, unless power is conferred under the statute for the said purpose. The only exception to the said proposition is fraud. Fraud vitiates even the solemn among solemn acts, howsoever high be its degree of solemnity, including judgments and orders rendered by courts is a principle which is W.P.(C) No. 37939 of 2017 ..20..
long settled. The proposition that a judicial authority is entitled to recall an order on a finding that the same was one obtained by playing fraud on it is also settled. In Indian Bank v. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550 and Indian National Congress (I) v. Institute of Social Welfare, (2002) 5 SCC 685 , the Apex Court has held that even a quasi judicial authority is entitled to recall an order on a finding that the same was obtained by playing fraud on it. Paragraph 34 of the judgment in Indian National Congress reads thus:
"34. Coming to the first exception, it is almost settled law that fraud vitiates any act or order passed by any quasi-judicial authority even if no power of review is conferred upon it. In fact, fraud vitiates all actions. In Smith vs. East Ellos Rural Distt. Council - (1956) 1 All E.R. 855, it was stated that the effect of fraud would normally be to vitiate all acts and order. In Indian Bank vs. Satyam Fibres (India) Pvt. Ltd. - (1996) 5 SCC 550, it was held that a power to cancel/recall an order which has been obtained by forgery or fraud applies not only to courts of law, but also statutory tribunals which do not have power of review. Thus, fraud or forgery practised by a political party while obtaining a registration, if comes to the notice of the Election Commission, it is open to the Commission to deregister such a political party."W.P.(C) No. 37939 of 2017
..21..
In other words, if an order is obtained by playing fraud on a quasi-judicial authority, the same can be revised or recalled by that authority notwithstanding the question as to whether the statute has conferred on it the necessary power to do so.
15. Fraud on power that vitiates an order and an order obtained by playing fraud on an authority are altogether two different concepts. Fraud on power denotes exercise of a power for a purpose not intended, by exceeding or misusing the power. It voids the order, if the power is not exercised bona fide for the end designed. It focusses on the intention of the person exercising the power. In this context, it is apposite to quote a passage from the decision of the Apex Court in Collector (D.M.) v. Raja Ram Jaiswal, (1985) 3 SCC 1, which reads thus :
"Where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context 'in good faith' means 'for legitimate reasons' Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be exercised W.P.(C) No. 37939 of 2017 ..22..
bona fide for the statutory purpose and for none other. If it is exercised for an extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides. In such a situation, there is no question of any personal ill-will or motive. In Municipal Council of Sydney v. Campbell, 1925 AC 338 at p.375 it was observed that irrelevant considerations on which power to acquire land is exercised, would vitiate compulsory purchase orders or scheme depending on them ......"
In other words, the term "fraud" in connection with frauds on a power does not necessarily denote any conduct amounting to fraud in the common law meaning of the term. It merely means that the power has been exercised for a purpose or with an intention beyond the scope of or not justified by the instrument creating the power. On the other hand, an order obtained by playing fraud on an authority focusses on the intention of the person who obtained the order and in that case, the exercise of power by the incumbent in the office is bona fide.
16. The operative portion of Ext.P9 order in terms of which Ext.P2 order was revised and the subject lands were notified again under the Act read thus:
"In the light of the discussions held above, I am W.P.(C) No. 37939 of 2017 ..23..
convinced that the 17.0252 Ha. Of lands comprised in OA 103/79, the 9.7920 Ha. Of lands comprised in OA 203/79, and the 22.9921 Ha. Of lands comprised in OA 257/79 qualify for Ecologically Fragile Lands under Section 3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 as on 2.6.2000 as the lands are principally covered with naturally grown trees and undergrowth, the more than 90 cm girths at breast height possessed by many of the trees, above 30 years of age of these bigger trees, total absence of any symptoms of human cultivation or permanent improvements in the lands and the contiguity of the lands to the Vested Forests. I also find that the Order No.EFL (6)
- 1061/2007 dt. 23.09.2015 of the Custodian of Ecologically Fragile Lands under reference (8) as palpably wrong and based on incorrect facts and is a mistake of facts and the same is not in conformity with the legal principles and against the actual facts on record apart from the fact that the Order came to be passed because of fraud. The De-notification No.EFL (6) - 1061/2007 dt. 14.01.2016 published in Kerala Gazette No.5 dt. 2.2.2016 under reference (9) is found to be void as the same is the result of the reference (8) wrong Order and is non- operative being defective one not in conformity with the statutory provisions.
In the above circumstances, I, Bennichan Thomas, IFS, Principal Chief Conservator of Forests and Custodian of Ecologically Fragile Lands, hereby order that the Section 19(3)(b) Order No.EFL (6) - 1061/2007 dt. 23.09.2015 of the Custodian of EFL declaring the lands comprised in OA 103/79, OA 203/79 and OA 257/79 as not an Ecologically Fragile Land, is to be corrected and fresh orders passed. I, hereby order declaring the 17.0252 Ha.W.P.(C) No. 37939 of 2017
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Of land comprised in OA 103/79, the 9.7920 Ha. Of land comprised in OA 203/79 and the 22.9921 Ha. Of land comprised in OA 257/79 as Ecologically Fragile Lands under Section 3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 as on 2.6.2000. I also order to issue the Notification in this regard in the Gazette, as per Section 3(2) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003."
As revealed from the extracted portion of Ext.P9 order that though it is recited in Ext.P9 order that Ext.P2 order came to be passed because of fraud, the order does not give any particulars as to the fraud either on the part of the petitioners or on the part of the incumbent in the office of the custodian then. At the time of arguments, the learned Additional Advocate General has contended that Ext.P2 is an order vitiated by fraud on power as also an order obtained by playing fraud on the custodian. To bring home the contention that the order is vitiated by fraud, the learned Additional Advocate General has highlighted that Ext.P2 order was passed by the incumbent on the verge of his retirement without sufficient materials and contrary to the provisions contained in the Act and the Rules. To bring home the contention that the order W.P.(C) No. 37939 of 2017 ..25..
was one obtained by playing fraud on the authority, the learned Additional Advocate General has highlighted that true facts have not been divulged in the application preferred by the first petitioner. The arguments are mutually destructive, for, if the custodian was bent upon passing an order in favour of petitioners maliciously, there is no question of playing fraud on it. True, it is not easy to give a definition of what constitute fraud in the extensive signification in which that term is understood. Fraud include all acts, omissions, and concealment which involved in breach of legal or equitable duty, trust or confidence justly repose and are injuries to another or by which an undue or unconscientious advantage is taken off another. Mere wrong statement of fact in an application or mere non-disclosure of a relevant fact would not by itself constitute fraud, for, such acts may not necessarily be acts made deliberately. In order to constitute fraud, the culpable mind has to be demonstrated. Similarly, merely for the reason that an order was passed by the incumbent in the office on the verge of his retirement, it cannot be contended that the order is vitiated by fraud on power without anything further. A W.P.(C) No. 37939 of 2017 ..26..
palpably wrong order on merits of the matter, according to me, cannot be said to be an order vitiated by fraud on power nor a palpably wrong order does not lead to the presumption that the same was obtained by playing fraud on the authority. In other words, on the aforesaid reason, the successor in office cannot recall or revise an order passed by his predecessor, in exercise of the statutory power. If it is held that quasi-judicial authorities dealing with property rights of citizens have powers to recall palpably wrong orders passed by their predecessor without there being a specific power conferred on them under the statute, the same would go against the principle that rights in property and rights in general should not be in a state of constant uncertainty, doubt and suspense and there would be utter chaos and no one would be in a position to transact on properties. True, it is a hard case for the State, but hard cases cannot make bad laws [See Umesh Chandra Shukla v. Union of India, (1985) 3 SCC 721]. In short, I am constrained to hold that the custodian was not justified in recalling or revising Ext.P2 order for the reasons mentioned in Ext.P9 order. Insofar as it is held that the W.P.(C) No. 37939 of 2017 ..27..
custodian had no power to recall Ext.P2 order, it is unnecessary to go into Question (ii).
17. Question (iii). There is no dispute to the fact that Section 5 of the Kerala Preservation of Trees Act applies to private forests. The case of the petitioners is that insofar as the lands covered by Ext.P1 order of the Forest Tribunal are lands exempted from private forest in terms of subsection (3) of Section 3 of Act 26 of 1971, Section 5 of the Kerala Preservation of Trees Act does not apply to the same. The fact that the lands were private forest is not disputed by the petitioners. It is clarified by the Division Bench in W.A. No. 1484 of 2010 that despite the exemption from vesting in terms of Sections 3(2) and 3(3), the land which is exempted would continue to retain the character of private forest. If that be so, it cannot be contended that Section 5 of the Kerala Preservation of Trees Act does not apply to the subject land, merely for the reason that the same is exempted under Section 3(3) of Act 26 of 1971. Even otherwise, in the light of the non obstante clause contained in Section 5 of the Kerala Preservation of Trees Act, it cannot be contended that the W.P.(C) No. 37939 of 2017 ..28..
subject lands are not private forest. It is clarified by the Division Bench in Joseph v. State of Kerala, 2005 KHC 1503 that Section 5 of the Kerala Preservation of Trees Act will have an overriding effect on the provisions of Act 26 of 1971. Question (iii), in the circumstances, is answered against the petitioners.
In the result, the writ petition is allowed in part. Ext.P8 notification and Ext.P9 order are quashed. It is, however, made clear that this judgment will not preclude the State or any other person from challenging Ext.P2 order in accordance with law.
Sd/-
P.B.SURESH KUMAR JUDGE ds W.P.(C) No. 37939 of 2017 ..29..
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1: TRUE COPY OF COMMON ORDER DATED 28.4.1982 IN OA NO.203/1979, OA NO.103/1979 AND OA NO.257/1979 OF THE FOREST TRIBUNAL, PALGHAT.
EXHIBIT P2: TRUE COPY OF ORDER NO.EFL.06-1061/2007 DATED 23.9.2015 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P3: TRUE COPY OF NO OBJECTION CERTIFICATE DATED 1.6.2016 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P4: TRUE COPY OF TAX RECEIPT DATED
15.12.2016 ISSUED FROM VALLAPPUZHA
VILLAGE OFFICE.
EXHIBIT P5: TRUE COPY OF TAX RECEIPT DATED
19.4.2017 ISSUED FROM VALLAPPUZHA
VILLAGE OFFICE.
EXHIBIT P6: TRUE COPY OF TAX RECEIPT DATED
15.12.2016 ISSUED FROM VALLAPPUZHA
VILLAGE OFFICE.
EXHIBIT P7: TRUE COPY OF TAX RECEIPT DATED
19.4.2017 ISSUED FROM VALLAPPUZHA
VILLAGE OFFICE.
EXHIBIT P9 TRUE COPY OF ORDER BEARING NO.EFL(6)
-1061/07 DATED 22.06.2018
EXHIBIT P10: TRUE COPY OF GOVERNMENT ORDER DATED
17.06.1993 BEARING NO.G.O.(P)NO>
47/93/F AND WLD DATED 21.06.1993
W.P.(C) No. 37939 of 2017
..30..
RESPONDENT'S/S EXHIBITS:
ANNEXURE R2 A TRUE COPY OF NOTIFICATION NO.EFL-10-
17285[1]/2018 DATED 23.06.2018.
ANNEXURE R2 B TRUE COPY OF ORDER NO.EFL[6]-1061/07
DATED 22.06.2018.
ANNEXURE R2 C ABSTRACT OF THE ENUMERATION LISTS 3
NOS.
ANNEXURE R2 D TRUE COPY OF G.O.(P)NO.47/93/F&WLD
DATED 17.06.1993
EXHIBIT R2 E A TRUE COPY OF THE NOTIFICATION DATED
23.06.2018.
EXHIBIT R2 F A TRUE COPY OF THE INSPECTION REPORT
DATED 12.06.2018.
EXHIBIT R2 G A TRUE COPY OF THE REPORT OF THE
COMMITTEE.
EXHIBIT R2 H A COPY OF THE REPORT OF THE RANGE
FOREST OFFICER, OTTAPALAM DATED
22.08.2015.