Kerala High Court
T.Easwaranunni vs State Of Kerala on 27 November, 2024
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"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 27TH DAY OF NOVEMBER 2024 / 6TH AGRAHAYANA, 1946
WA NO. 980 OF 2020
[AGAINST THE ORDER/JUDGMENT DATED 06.02.2020 IN WP(C)
NO.37939/2017 OF HIGH COURT OF KERALA]
APPELLANTS/RESPONDENTS IN WP(C):
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
FOREST AND WILDLIFE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2 CUSTODIAN OF ECOLOGICALLY FRAGILE LAND AND PRINCIPAL
CHIEF CONSERVATOR OF FORESTS, FOREST HEAD QUARTERS,
VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014.
3 CUSTODIAN OF VESTED FORESTS AND CHIEF
CONSERVATOR OF FORESTS,
EASTERN CIRCLE, OLAVAKKODE,
PALAKKAD - 678 002.
4 DIVISIONAL FOREST OFFICER,
PALAKKAD - 678 002.
5 RANGE FOREST OFFICER,
OTTAPPALAM - 679 101.
BY SPECIAL GOVERNMENT PLEADER SRI. T.P. SAJAN
SRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL
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RESPONDENTS/PETITIONERS IN WP(C):
1 T. EASWARANUNNI, AGED 67 YEARS,
S/O. LAKSHMI KAVU VARASYAR, THARAKKAL VARIYAM,
CHERUKODE P.O., VALLAPPUZHA,
PALAKKAD DISTRICT, PIN - 679 336.
2 T. RAMANUNNI, S/O. JAYALAKSHMI KAVU VARASYAR,
THARAKKAL VARIYAM, CHERUKODE P.., VALLAPUZHA,
PALAKKAD DISTRICT, PIN - 679 336.
3 T. GOURI KAVU, D/O. PARVATHY KAVU VARASYAR,
THARAKKAL VARIYAM, CHERUKODE P.O., VALLAPPUZHA,
PALAKKAD DISTRICT, PIN - 679 336.
BY SENIOR ADV. SRI. S. SREEKUMAR
ADV. SRI. M.P. MADHAVANKUTTY
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
21.10.2024, ALONG WITH WA NO.1017/2020, THE COURT ON
27.11.2024, DELIVERED THE FOLLOWING:
W.As. 980 & 1017/2020 -:3:-
2024:KER:89303
"C.R"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 27TH DAY OF NOVEMBER 2024/6TH AGRAHAYANA, 1946
WA NO. 1017 OF 2020
[AGAINST THE ORDER/JUDGMENT DATED 06.02.2020 IN WP(C)
NO.37939 OF 2017 OF HIGH COURT OF KERALA]
APPELLANTS/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 ADVS. SRI. S. SREEKUMAR (SR.),
SRI. M.P. MADHAVANKUTTY,
SRI. V. DEEPAK.
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
FOREST AND WILD LIFE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
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2 CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS AND
PRINCIPAL CHIEF CONSERVATOR OF FORESTS,
FOREST HEAD QUARTERS, VAZHUTHAKKAD,
THIRUVANANTHAPURAM, PIN-695014.
3 CUTODIAN OF VESTED FORESTS
AND CHIEF CONSERVATOR OF FORESTS,
EASTERN CIRCLE, OLAVAKKODE,
PALAKKAD, PIN-678002.
4 DIVISIONAL FOREST OFFICER,
PALAKKAD, PIN-678002,
5 RANGE FOREST OFFICER,
OTTAPPALAM, PIN- 679101.
BY SPECIAL GOVERNMENT PLEADER SRI.T.P. SAJAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
21.10.2024, ALONG WITH WA.980/2020, THE COURT ON 27.11.2024
DELIVERED THE FOLLOWING:
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"C.R"
JUDGMENT
Dated this the 27th day of November, 2024.
Nitin Jamdar, C.J.
A large tract of private forest lands in Ongallur Village in Palakkad District was notified as ecologically fragile under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance of 2000. The Custodian under Section 19(3)(b) of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 cancelled the notification. Following a public protest, the successor Custodian, the Principal Chief Conservator of Forests, considered the matter extensively. He, along with the surveyor, visited the site and concluded that these lands have the characteristics of being ecologically fragile and the notification was cancelled fraudulently and with collusion, restored the status of the lands as being covered by the notification. The owners of the lands, the Petitioners, filed W.P.(C) No.37939 of 2017, which was allowed by the learned Single Judge by judgment dated 6 February 2020, on the ground that the Custodian had no power of review; however, the restriction on cutting the trees under the Kerala Preservation of Trees Act, 1986, was retained.
2. A brief overview of the State law on the subject of trees and forest will place the matter in context. The Kerala Forest Act, 1961 (Act of 1961) was enacted to unify and amend the law relating to the protection and management of forests in the State of Kerala. Chapter II of the Act W.As. 980 & 1017/2020 -:6:- 2024:KER:89303 deals with Reserved Forests. Under Section 3, the State has the power to constitute any land at the disposal of the Government as a Reserved Forest. Further, the procedure regarding the declaration of Reserved Forest is provided under the Act, including adjudication of rights. The Act of 1961 also deals with restrictions on cutting trees and specific provisions regarding the protection of particular types of trees.
3. The Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act of 1971) was enacted to provide for vesting in the Government of private forests in the State of Kerala and, thereafter, for further assignment, if any. Large areas of forests were privately owned and indiscriminate felling of large numbers of trees from such private forests threatened the very existence of such forests. Moreover, such destruction of private forests resulted in the denial of and interference with the customary and prescriptive rights of the tribals and others. The private forest is defined under Section 2(f) of the Act of 1971. Section 3 of the Act of 1971 states that with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala 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 in any private forest shall stand extinguished. Section 4 of the Act of 1971 declares that all private forests which would vest in the Government under Section 3(1) be deemed to be Reserved Forests when they remain vested in the Government. A Tribunal is constituted under Section 7 of W.As. 980 & 1017/2020 -:7:- 2024:KER:89303 the Act of 1971. The Tribunal is empowered to decide all matters within its competence. Section 8A provides an appeal to the High Court.
4. The third enactment is the Kerala Preservation of Trees Act, 1986 (Act of 1986), which was enacted by the State Government for preservation of trees. The Kerala State Legislature noted that the Kerala Forest Act, though intended for the protection and management of forests, did not contain adequate provisions regarding the preservation of trees. The State Government was of the opinion that the destruction of forests caused considerable soil erosion and loss of timber wealth. It was also felt necessary to preserve the special characteristics of hilly areas in the State in terms of landscape, vegetal cover, and climate. Under Section 2(e) of the Act of 1986, a tree is defined to mean certain species of trees specified therein, including Sandalwood, Teak, Rosewood, Irul, Thempavu, Kampakam, etc. Section 4 places a restriction on cutting trees and states that no person shall, without the previous permission in writing of the authorised officer, cut, uproot or burn, or cause to be cut, uprooted or burn any tree. Section 5 of the Act of 1986 prohibits cutting of trees in notified areas. Under this Section, no tree standing in any such area specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that, the tree constitutes a danger to life or property, or the tree is dead, diseased or wind-fallen, without the previous permission in writing of the authorised officer. Under Section 6 of the Act of 1986, an application for permission can be made to the authorised officer. If the permission is refused, appeal is W.As. 980 & 1017/2020 -:8:- 2024:KER:89303 provided to the Appellate Authority under Section 7 and further, revision to the State Government under Section 8.
5. This litigation primarily arises from the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (Act of 2003). This enactment was preceded by certain Ordinances on the subject. The Act of 2003 was enacted 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 maintain ecological balance and conserve biodiversity. Section 2(a) of the Act of 2003 defines Custodian to mean the Principal Conservator of Forests. The ecologically fragile lands are defined under Section 2(b) to mean, any forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest of a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation, and any land declared to be an ecologically fragile land by the Government by notification in the official Gazette under Section 4. Section 2(b) of the Act of 2003 reads as under:
"(b) "Ecologically fragile lands" means,-
(i) any forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest of a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation; and
(ii) any land declared to be an ecologically fragile land by the Government by notification in the official Gazette under S.4:"W.As. 980 & 1017/2020 -:9:-
2024:KER:89303 Section 2(c) of the Act of 2003 defines "forest" to mean as under:
(c) "forest" means any land principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognised and declared as reserved forest, protected forest or otherwise but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of residential building and surrounding essential for the convenient use of such buildings."
Thus, under the Act of 2003, Forest means any land principally covered with naturally grown trees and undergrowth. It includes any forest statutorily recognised and declared as reserved forest, protected forest, or otherwise. However, it does not include any land used principally for the cultivation of long-duration crops such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut, or cashew, or any other site of residential buildings and surroundings essential for the convenient use of such buildings.
6. Section 3 of the Act of 2003 declares that ownership and possession of all ecologically fragile lands held by any person or any other right over them shall be transferred to and vested in the Government, free from all encumbrances. The lands vested in the Government shall be notified in the official Gazette. Under Section 4 of the Act of 2003, the State has the power to declare any land to be ecologically fragile land based on the recommendation of the Advisory Committee appointed for this purpose under Section 15. Section 5 states that all ecologically fragile lands vested W.As. 980 & 1017/2020 -:10:- 2024:KER:89303 in the Government under Sections 3 and 4 shall be deemed to be reserved forests constituted under the Act of 1961. Section 9 establishes Tribunal consisting of a Judicial Officer not below the rank of a District Judge. The Tribunal can decide disputes regarding whether any land is ecologically fragile or whether any ecologically fragile land or portion thereof has vested in the Government. From the decision of the Tribunal, any person aggrieved by the decision can file an appeal to the High Court.
7. Section 19 of the Act of 2003 states that notwithstanding the expiry of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2001, all ecologically fragile lands vested in the Government under the said Ordinance shall, as long as it is not inconsistent with the provisions of the Act of 2003, be deemed to have been done or taken under the Act of 2003. Section 19(3)(b) states that every notification issued in respect of any land under sub-section (3) of Section 3 of the Ordinance shall be scrutinized by the Custodian, either suo motu or an application made by the owner or any person with the right of possession or enjoyment of such land, and if necessary, such notification shall be revised and issued in accordance with the provisions of the Act of 2003. The present proceedings arose from this provision.
8. Under the Act of 2003, the State Government has framed rules known as the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Rules, 2007 (Rules of 2007). Chapter V of the Rules of W.As. 980 & 1017/2020 -:11:- 2024:KER:89303 2007 addresses application for review of notification. Rule 17 prescribes the procedure for submitting an application to the Custodian under Section 19(3), providing details of the contents and annexures of the application. Rule 17 specifies that the application is for exemption. Rule 18 outlines the inspection of lands and submission of a report. Rule 21 allows for suo motu revisions by the Custodian. Under Section 18(5) of the Act of 2003, the State Government enacted the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal Rules, 2007, which govern the proceedings before the Tribunal.
9. With the brief overview of the relevant legislations, we now turn to the facts in the appeals.
10. The controversy pertains to lands having an extent of 17.0252 hectares in Survey No. 203/6 Pt. 43/Pt. an extent of 9.792 hectares in Survey No.203/3, 4, 5 and another extent of 22.9921 hectares in Survey No. 235/Part in Ongalloor-I Village, Palakkad Taluk and District.
11. Three original applications came to be filed under Section 8 of the Act of 1971 before the Forest Tribunal, Palakkad. O.A. No.103/1979 was in respect of 50 acres and 40 cents, O.A. No.203/1979 was in respect of 24.91 acres and O.A. No.257/1979 was in respect of 88.23 acres. The Applicants therein, which include the Petitioners herein, contended before the Tribunal that the lands belonged in jenmom and there has been a partition which took place and they are allotted their respective shares. They further contended that in a portion of the W.As. 980 & 1017/2020 -:12:- 2024:KER:89303 property, tapioca cultivation is made. They alleged that there was obstruction by the forest officer for cultivation on the ground that the lands are vested in the Government and, therefore, applications were filed for a declaration that these lands are not vested in the Government. The Respondent Forest Department contended before the Tribunal that the Applicants alone are not entitled to claim the lands and that the area is a natural forest containing trees about 20 years with heavy undergrowth and is not brought under cultivation, and therefore, the lands are vested in the Government.
12. The Forest Tribunal went into the question whether the disputed area is a private forest and held that there is no evidence of cultivation and only a vague evidence suggesting cultivation of agricultural areas, and therefore, the properties continued to be private forest. Thereafter, the Forest Tribunal examined the claim of each of the Applicants as regards exemption on the basis of their intention to cultivate and ordered 62.31 acres of the scheduled area to be exempted from vesting under Section 3(3) of the Private Forests Act, 1971 and gave a declaration to that effect. Being aggrieved, an appeal was filed by the State as M.F.A. No.471/1982 before this Court which was dismissed. Challenging the same, S.L.P(C) No. 12108/1987 was filed before the Hon'ble Supreme, which was also dismissed. As a result, the properties were restored to the Petitioners/Applicants on 15 July 1994.
13. The Respondent No.4 - Divisional Forest Officer, issued Exhibit-P3 No Objection Certificate on 1 June 2016 to the Petitioners W.As. 980 & 1017/2020 -:13:- 2024:KER:89303 in respect of the subject lands stating that though it is not declared as vested forest or ecological fragile land, in view of the notification issued under Section 5 of the Act of 1986, any diversion of forest land for non- forestry purpose and cutting of trees required prior permission of the Central Government.
14. The State Government by notification dated 20 October 2000 published in the Kerala Gazette No.1 dated 2 January 2001, under Section 3 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance 2000 (Ordinance No. 8 of 2000), has notified certain areas of land, including the subject lands in Palakkad district as ecologically fragile lands. Subsequently, the Act of 2003 came into force on 2 June 2000. Accordingly, the land vested in the Government free from all encumbrances and the right, title, and interest of the owner or any other person stood extinguished from the date, 2 June 2000, and became the absolute property of the Government.
15. In March 2007, the Petitioner No.1 - Easwaran Unni, made a request under Section 19(3)(b) of the Act of 2003 to the Custodian of Ecologically Fragile Lands to exempt 3.51 acres of land from the purview of the Act of 2003. These 3.51 acres comprised in the 42.07 acres of land falling in Survey Nos. 203/6, 43/1, 2, 4, 5, 6 and 7. The application was forwarded to the Conservator of Forests (Eastern Circle) for enquiring into the petition through the Committee formed for that purpose. On 15 June 2015, the Working Plan Officer, Palakkad submitted a report of the W.As. 980 & 1017/2020 -:14:- 2024:KER:89303 Committee as per Rule 18 of the Rules of 2007. The report referred the entire area of 49.8093 Ha. covered under OA Nos.103/79, 203/79 and 257/79 and the Committee recommended to retain the areas as ecologically fragile lands.
16. Solely for the purpose of clarity in the discussion, henceforth, we will refer to the different custodians by name. On 8 July 2015, after eight years of the application of Mr. Easwaran Unni under Section 19(3)(b) of the Act of 2003, Mr. G.J. Teggi I.F.S., the Custodian sent notices for personal hearing by speed post in 31 addresses, including Mr. Easwaran Unni. Personal hearing was fixed on 15 July 2015 and fifteen persons attended, but Mr. Easwaran Unni, the main Applicant, did not attend the hearing. On 5 August 2015, Mr. Teggi, the Custodian directed the Divisional Forest Officer, Palakkad to report the approximate age of each trees recorded in the sample plots. On 22 August 2015, the Divisional Forest Officer, Palakkad reported the approximate age of the trees in the sample plots. The age of teak trees in the sample plots was reported to be between 20 years to 30 years. Consequently, Mr. Teggi issued order dated 23 September 2015 (Exhibit-P2), exempting the entire extent of 17.0252 Ha. pertaining to OA 103/79, 9.7920 Ha. pertaining to OA 203/79 and 22.9921 Ha. pertaining to OA 257/79 from the Act of 2003 as per Section 2(c). The Custodian Mr. Teggi recorded that the teak in the land is not naturally grown, but planted. He did not accept the finding in the report of the Committee that the land was a naturally grown moist-deciduous forest as on 2 June 2000, with predominance of W.As. 980 & 1017/2020 -:15:- 2024:KER:89303 naturally grown teak trees. The Exhibit-P2 order stated that it has to be examined whether the teak is covered under the exempted category of cultivation of crops eligible for exclusion from the Act of 2003 and the list of exempted cultivated crops of long duration mentioned in Section 2(c) of the Act of 2003 is prefixed with the words "such as", hence the scope of exempted crops is not restricted to a few crops such as rubber, teak etc., mentioned therein. The Custodian Mr. Teggi recorded that the teak, if cultivated, is eligible for exemption. He opined that the disputed land cultivated with long duration crops of teak as on 2 June 2000 was exempted from the Act of 2003 as per Section 2(c). Accordingly, the de- notification of the entire area of 17.0252 Ha., 9.7920 Ha. and 22.9921 Ha. was notified in the Kerala Gazette No.5 dated 2 February 2016.
17. Media reports were published on 24 January 2017 strongly criticising the exemption of the subject lands from the purview of the ecologically fragile land and de-notifying the area and restoring the lands to private persons. The Member of Legislative Assembly petitioned to the Chief Minister and the Minister for Forests alleging carelessness and requesting for preserving the land as a forest land. The department sought legal opinion from the Advocate General and the same was obtained and it was decided to examine the matter. On February 2018, the Range Officer carried out enumeration of the trees and pole crops of the entire extent of 49.8093 Ha. covered under OA. Nos.103/79, 203/79 and 257/79. Report was submitted by the Chief Conservator of Forests (Eastern Circle). Mr. Bennichan Thomas I.F.S, the Custodian of W.As. 980 & 1017/2020 -:16:- 2024:KER:89303 Ecologically Fragile Lands inspected the land on 12 June 2018 along with the Chief Conservator of Forests, Divisional Forest Officer, Working Plan Officer, Assistant Conservator of Forests, Social Forestry Division, Technical Assistant, Eastern Circle, Forest Range Officer, and the field staff. An inspection report was prepared on 12 June 2018. The report indicated that the lands were ecologically fragile. Accordingly, Mr. Bennichan Thomas, the Custodian, by Exhibit-P9 order dated 22 June 2018, set aside Exhibit-P2 order dated 23 September 2015 holding that Exhibit-P2 was a result of fraud and collusion, and declared the properties as ecological fragile. Mr. Bennichan Thomas, the Custodian further observed in Exhibit-P9 order that the land covered under O.A. Nos. 257/79 and 103/79 were notified under Section 5 of the Act of 1986 vide Government order dated 17 June 1993, and the land covered under O.A. No.203/79 was notified under Section 5 of the Act of 1986 vide Government order dated 11 August 1995.
18. The Petitioners challenged Exhibit-P8 notification dated 10 July 2018 issued in the Kerala Gazette, notifying the property under the purview of Section 5 of the Act of 1986 and Exhibit-P9 order dated 22 June 2018 by filing W.P.(C) No.37939 of 2017 before this Court. The Petitioners prayed for a declaration that Section 5 of the Act of 1986 is not applicable to the properties of the Petitioners. A writ of mandamus was also sought directing the Forest Department to permit the Petitioners to clear fell the properties and set aside the clause regarding Section 5 of the Act of 1986 in Ext.P3 No Objection Certificate dated 1 June 2016.
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19. The Forest Department filed a counter affidavit and contested the writ petition.
20. The learned Single Judge in the impugned judgment dated 6 February 2020, set aside Exhibit-P9 order dated 22 June 2018, on the ground that there was no element of fraud or collusion to review the earlier order dated 23 September 2015 (Exhibit P2). Regarding the applicability of the Act of 1986, the learned Single Judge noted that due to the non obstante clause in Section 5 of the Act of 1986, there was no merit in the argument of the Petitioners that the lands are not private forests and that the Act of 1986 has an overriding effect on the Act of 1971. The learned Single Judge left it open for the State or any authority to challenge Exhibit P2 order dated 23 September 2015, in accordance with the law.
21. Challenging the order of setting aside Exhibit-P9 dated 22 June 2018, the State has come up in appeal (W.A. No.980 of 2020) before us under Section 5 of the Kerala High Courts Act, 1958 and challenging the restrictions placed on the cutting of trees, the Petitioners have filed W.A. No.1017 of 2020. The learned Special Government Pleader clarifies that the appeal has been filed by way of abundant caution and the State maintains that the Exhibit-P9 order is correct both in law and on facts.
22. We have heard Mr. S. Sreekumar, learned Senior Advocate for the Writ Petitioners and Mr. T.P. Sajan, learned Special Government Pleader for the State Forest Department.
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23. Before the learned Single Judge, the Petitioners argued that the Act of 2003 does not confer any power on Mr. Bennichan Thomas, the Custodian to review the orders passed under Section 19(3)(b) and, therefore, the second order (Exhibit-P9) issued on 22 June 2018 is without jurisdiction. It was also argued that the finding rendered by Mr. Bennichan Thomas, the Custodian in Exhibit-P9 order to recall the first order (Exhibit-P2) dated 23 September 2015 is incorrect and unsustainable. It was also contended that the finding in Exhibit-P9 order that Exhibit-P2 order was one passed on the application preferred by Petitioner No.1 was factually incorrect. Under Section 19(3)(b) of the Act of 2003, the Mr. Bennichan Thomas, the Custodian has suo motu power to exclude the properties already notified. The Petitioners argued that there are no definite charges or findings of fraud in Exhibit-P2 order and it could not be reviewed on the ground. It was also argued that the Act of 1986 applies only to private forests and cardamom plantations and as lands involved in the matter are neither cardamom plantation nor private forest, the said provision does not apply.
24. On the other hand, the State contended that although the land was restored to the parties in 1994 and 1995, there was no cultivation on the land. Under these circumstances, the land was notified under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000 (the Ordinance) and later under the Act. It was argued that unlike the inclusive definition of "forest" in the Ordinance, the definition of "forest" in Section 2(c) of the Act does not include lands W.As. 980 & 1017/2020 -:19:- 2024:KER:89303 which are primarily used for the cultivation of long-duration crops. According to the State, it was in light of the change in the definition of "forest" that power was conferred on Mr. Bennichan Thomas, the Custodian under Section 19(3)(b) of the Act of 2003, to revise the notification issued under the Ordinance. It was contended that the report of the Committee indicated that the teak found on the lands existed prior to 1994 and was not planted by the Petitioners. Furthermore, it was pointed out that, based on this, the Petitioners were not entitled to have the land de-notified under the Act of 2003, as the teak plantation does not align with crops like tea, coffee, rubber, pepper, cardamom, coconut, arecanut, or cashew. It was also argued that although the application was made concerning only 3.51 acres of land, relief was granted by the Custodian for the entire land involved in Exhibit-P1 order dated 28 April 1982. It is not clear as to how Mr. Teggi, the Custodian concluded that the land is not ecologically fragile, without conducting a further inquiry. The materials on record indicate beyond doubt that only naturally grown trees are present on the land involved. The first order issued by Mr. Teggi, the Custodian, is vitiated by fraud on power. If the order is vitiated by fraud on power, the competent authority may recall the order. It was also contended that this is all in light of the non obstante clause contained in Section 5 of the statute. According to the State, the restriction was justified.
25. In W.A. No. 1017 of 2020, the State challenges the cancellation of Exhibit-P8 notification dated 10 July 2018 and Exhibit-P9 order dated W.As. 980 & 1017/2020 -:20:- 2024:KER:89303 22 June 2018 issued by Respondent No.2, the Custodian of Ecologically Fragile Lands. W.A. No.980 of 2020 filed by the Petitioners concerns the applicability of Section 5 of the Act of 1986.
26. It is not debated that if the challenge of the State succeeds, the challenge of the Petitioners regarding the applicability of Section 5 of the Act of 1986 would be rendered academic. Even otherwise, if the challenge of the State to the impugned judgment fails, the Government order dated 17 June 1993, notifying the disputed property under the Act of 1986 does not entirely prohibit the Petitioners from managing the property, as Section 5 of the Act of 1986 states that no tree shall be cut without permission. This is not a case where permission has been denied to the Petitioners; therefore, the cause of action has not arisen and is premature. As previously stated, the outcome of the appeal preferred by the Petitioners will hinge on the challenge of the State to the impugned judgment.
27. In the impugned judgment, the contentions of the parties are recorded. The learned Single Judge framed two issues: whether Mr. Bennichan Thomas, the Custodian was justified in recalling or revisiting Exhibit-P2 order dated 23 September 2015, and whether the Petitioners were entitled to a declaration that the Act of 1986 did not apply to the lands involved in the case. The learned Single Judge in the impugned judgment has primarily proceeded on the ground that Exhibit- P9 order dated 22 June 2018 does not provide any specific instances of W.As. 980 & 1017/2020 -:21:- 2024:KER:89303 fraud, and reasons cannot be supplied in the counter affidavit. Thereafter, the learned Single Judge summarized the findings in Exhibit-P9 order and concluded that the reasons stated therein are only related to merits. Even assuming Exhibit-P2 was a palpably wrong order, it was not a ground for review, as the Custodian, being a quasi-judicial authority, is not entitled to review the said order.
28. The learned Single Judge in the impugned judgment held that it is correct that Exhibit-P2 order dated 23 September 2015 was not passed in suo motu proceedings. However, since the power exists, Exhibit-P2 order cannot be considered illegal. Thereafter, the learned Single Judge framed the question of whether Mr. Bennichan Thomas, the Custodian has the power to recall the first order (Exhibit-P2) and whether the power of review existed. The learned Single Judge concluded that all the contentions recorded in the impugned judgment and argued relate to the merits, and the reason mentioned in Exhibit-P9 order is that Exhibit-P2 order is palpably wrong on merits. The learned Single Judge proceeded to hold that a quasi-judicial authority is not empowered to recall the first order on merits unless the power is conferred under the statute.
29. The impugned judgment has discussed the law as regards fraud with reference to the decisions of the Hon'ble Supreme Court. The impugned judgment thereafter has reproduced the conclusion and found that though it is recited in Exhibit-P9 order that there were fraud in Exhibit-P2 order, however, it does not give the particulars of fraud, either W.As. 980 & 1017/2020 -:22:- 2024:KER:89303 on the part of the Petitioners or the Custodian. The impugned judgment states that to constitute fraud, culpable mind has to be demonstrated. The reasoning of the learned Single Judge, after reproducing the conclusion in Exhibit-P9 order, is as under:-
"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 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 W.As. 980 & 1017/2020 -:23:- 2024:KER:89303 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 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 custodian had no power to recall Ext.P2 order..."
30. The impugned judgment refers to a legal position stating that an order can be recalled if it was obtained through fraud upon a quasi- judicial authority. Accepting this position, the judgment concludes that Exhibit-P9 order does not indicate any fraud. In paragraph (16), the judgment extracts the conclusion from Exhibit-P9 order and notes that it does not provide any specifics of fraud by the Petitioners or the W.As. 980 & 1017/2020 -:24:- 2024:KER:89303 incumbent Custodian. It asserts that quasi-judicial authorities dealing with property rights cannot recall evidently erroneous orders without specific power conferred by statute. Based on this reasoning, the judgment sets aside Exhibit-P8 notification and Exhibit-P9 order. Thus, the judgment concludes that the Custodian, a quasi-judicial authority, did not have the power to recall the earlier order (Exhibit-P2) and that Exhibit-P9 does not disclose any fraud or collusion.
31. The Petitioners had relied on the decision in the case of Shiv Kumar Sharma v. Santosh Kumari [(2007) 8 SCC 600] in furtherance of the argument based on the requirement for establishing fraud. The Petitioners also relied on the decision in the case of Dr. Kuntech Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Others [(1987) 4 SCC 525] to contend that unless the power of review is expressly conferred by a statute under which it derives jurisdiction, it cannot be exercised. In the case of Indian Bank v. Satyam Fibres (India) Pvt. Ltd. [(1996) 5 SCC 550], relied upon by the Petitioners, the issue arose before the Hon'ble Supreme Court as to the question under the inherent powers, an order can be recalled if it was obtained by fraud. In the said decision, the Hon'ble Supreme Court observed that the judiciary in India also possesses the inherent powers, specially under Section 151 of the Code of Civil Procedure, 1908, to recall a judgment or order if it is obtained by fraud on a party to the suit or a proceeding. It was further observed that inherent powers are resident in all Courts, especially of superior jurisdiction and that the power is held to be necessary for W.As. 980 & 1017/2020 -:25:- 2024:KER:89303 orderly administration of the Court's business. In the above said decision, the Hon'ble Supreme Court held as under:
"22. The judiciary in India also possesses inherent power, specially under S.151 CPC to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent power are powers which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the construction of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business.
23. Since fraud affects the solemnity, regularly and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. (See: Benoy Krishna Mukherjee v. Mohanlal Goenka, AIR 1950 Cal. 287; Gajanand Sha v. Dayanand Thakur AIR 1943 Patna 127; Krishna Kumar v. Jawand Singh, AIR 1947 Nag. 236; Devendra Nath Sarkar v. Ram Rachpal Singh, ILR (1926) 1 Lucknow 341: AIR 1926 Oudh 315; Saiyed Muhammad Raza v. Ram Saroop, ILR (1929) 4 Lucknow 562: AIR 1929 Oudh 385 (FB): Bankey Behari Lal v. Abdul Rahman, ILR (1932) 7 Lucknow 350: AIR 1932 Oudh 63;W.As. 980 & 1017/2020 -:26:-
2024:KER:89303 Lekshmi Amma Chacki Amma v. Mammen Mammen, 1955 KLT 459). The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court (Ishwar Mahton v. Sitaram Kumar, AIR 1954 Patna 450) or to set aside the order recording compromise obtained by fraud. (Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh, AIR 1958 Patna 618; Smt. Tara Bai v. V. S. Krishnaswamy Rao, AIR 1985 Karnataka 270).
***
32. The above principal will apply not only to Courts of law but also to statutory tribunals which, like the Commission, are conferred power to record evidence by applying certain provisions of the Code of Civil Procedure including the power to enforce attendance of the witnesses and are also given the power to receive evidence on affidavits. The Commission under the Consumer Protection Act, 1986 decides the dispute by following the procedure indicated in S.22 read with S.13(iv) and (v) of the Act."
There is no debate before on the principle that if the order of a quasi- judicial authority is vitiated on account of fraud by the parties or collusion, then the authority is entitled to recall the order. The question is whether the finding of the learned Single Judge in the impugned judgment that Exhibit-P9 order dated 22 June 2018 did not specify any instances of fraud or collusion is correct.
32. It has to be emphasised at the outset that the concept of fraud and collusion in public law stands on a different footing. In the case of Commissioner of Customs, Kandla v. M/s. Eassar Oil Ltd. and Ors.
W.As. 980 & 1017/2020 -:27:-2024:KER:89303 [(2004) 11 SCC 364], the Hon'ble Supreme Court considered the aspect of fraud in a public law. The matter arose from the evasion of legitimate duty payments through fraud abetted by collusive acts of the officers. An investigation was carried out by the department, revealing fraud and collusion between officials of the importer company and the department. Not only was the importer found guilty, but it was also determined that he was assisted by customs officers. The Commissioner concluded that fraud and collusion occurred, passing an order that was later set aside by the Tribunal. The question that arose before the Hon'ble Supreme Court was whether the Tribunal was correct in reversing the Commissioner's order. The Hon'ble Supreme Court elaborated on the concept of fraud, emphasizing that fraud in public law differs from fraud in private law, and that the ingredients which establish fraud in commercial transactions are not useful for determining fraud in administrative law. The extensive delineation by the Hon'ble Supreme Court in the aforementioned decision is as follows:
"13. "Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International dictionary "fraud" in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's W.As. 980 & 1017/2020 -:28:- 2024:KER:89303 Legal Dictionary, "fraud" is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Indian Contract Act, 1872 defines "fraud" as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact, which he knows to be untrue yet he succeeds in misleading the represented by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes "fraud"
was described thus: "fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false". But "fraud" in public law is not the same as "fraud" in private law. Nor can the ingredients, which establish "fraud" in commercial transaction, be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home Deptt. (1983) 1 All ER 765, that it is dangerous to introduce maxims of common law as to effect of W.As. 980 & 1017/2020 -:29:- 2024:KER:89303 fraud while determining fraud in relation of statutory law. "Fraud" in relation to statute must be a colourable transaction to evade the provisions of a statute. "If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction, which otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which the power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. "In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive. [See Shrisht Dhawan (Smt.) v. Shaw Brothers, (AIR 1992 SC 1555)].
(emphasis supplied) Therefore, it is clear that the concepts of fraud, bad faith, and collusion differ, particularly when public law elements are involved. This is W.As. 980 & 1017/2020 -:30:- 2024:KER:89303 especially true when the impact of the order extends beyond individual rights to broader ecological and environmental issues. The matter cannot be viewed restrictively, similar to a private law dispute, when exercising jurisdiction under Article 226 of the Constitution of India. This aspect is entirely absent in the impugned judgment.
33. Prior to the coming in force of the Act of 2003, certain Ordinances were holding the field, which contained different clauses than under the Act, and therefore, power was given to the Custodian to suo motu or an application made by the owner, scrutinise the notification issued under the Ordinance. Section 19 of the Act of 2003 reads as under:
"19. Validation and Transitory Provisions:-
(1) Notwithstanding the expiry of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2001 (16 of 2001) (hereinafter referred to as the said Ordinance),-
(a) all ecologically fragile lands vested in the Government under the said ordinance shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been vested under this Act;
(b) anything done or deemed to have been done or any action taken or deemed to have been taken under the said Ordinance shall, in so far it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under this Act;
(2) The expiry of the said Ordinance shall not,-
(a) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or W.As. 980 & 1017/2020 -:31:- 2024:KER:89303
(b) affect any legal proceedings or remedy in respect of any such right, privilege, obligation or liability and any such legal proceedings or remedy may be instituted, continued or enforced under the provisions of this Act in so far as it is inconsistent with the provisions of this Act.
(3) Notwithstanding anything contained in the said Ordinance or in any judgment, decree or order of any court,-
(a) no land other than the ecologically fragile land as defined in this Act, whether notified under sub-section (3) of section 3 of the said ordinance or not, shall be deemed to have vested or ever to have been vested in Government and
(b) every notification issued in respect of any land under sub-section (3) of section 3 of the said Ordinance shall be scrutinized by the custodian suo motu or an application made by the owner or any person having the right of possession or enjoyment of such land and if necessary, such notification shall be revised and issued in accordance with the provisions of this Act."
34. Under Section 19(3)(b), the Custodian is thus empowered to scrutinize suo motu or an application made by the owner or any person having the right of possession or enjoyment of such land and, if necessary, such notification shall be revised and issued in accordance with the provisions of this Act. The procedure for making this application under Section 19(3) is contemplated under Rule 17 under Chapter V of the Rules of 2007, which reads as under:
"17. Owner claiming exemption to apply. - (1) Any owner or any person having the right of possession or enjoyment of any land notified under sub-section (1) of W.As. 980 & 1017/2020 -:32:- 2024:KER:89303 section 3 of the Act may file an application before the custodian giving details of the location, extent, survey number, crops cultivated etc.; seeking a scrutiny of the notification and to decide whether such land qualify to be notified as ecologically fragile in accordance with the provision of the Act.
(2) Every application field under sub-rule (1) shall be accompanied by the following documents.
(a) documents to prove ownership or possession or enjoyment of the land;
(b) documents to prove that the land is cultivated by such crops that are exempted under the Act.
(c) documents to prove the existence of a residential building if any, with the details thereof;
(d) any other documents as may be necessary for the verification of the particulars mentioned in the application.
(3) Every application under sub-rule (1) shall be accompanied by an affidavit certifying that the records produced along with the application and the particulars mentioned therein are true and valid.
(4) Every application under sub-rule (1) shall be accompanied by a court fee stamp of Rupees One Hundred."
(emphasis supplied) Thus, any owner or person with possession or enjoyment rights over land notified under Section 3(1) of the Act of 2003 can apply to the Custodian for a review of the notification to determine if the land qualifies as ecologically fragile under the Act. The application has to include details such as the location, extent, survey number, and cultivated crops, and must be supported by documents proving ownership, W.As. 980 & 1017/2020 -:33:- 2024:KER:89303 cultivation of exempted crops, the existence of residential buildings (if any), and other necessary verification records. It should also be accompanied by an affidavit certifying the validity of the submitted records and a court fee stamp of ₹100/-. Rule 18 of the Rules of 2007 deals with inspection of lands on the application and it reads as under:
"18. Inspection of the land. - (1) On receipt of the application under rule 17 the custodian shall as soon as possible cause a local inspection of the land through a committee consisting of the following members:
(a) Divisional Forest Officer of the Territory where the land situated of Wildlife Warden having jurisdiction of the area, as the case may be, who shall act as the convener of the Committee.
(b) The Technical Assistant of the Conservator of Forests of the area.
(c) The Working Plan Officer.
(d) Assistant Conservator of Forests, Social Forestry Department of the district concerned. (translated)
(e) Any local Assistant Conservator of Forests who is directed by and comes under the circle limit of the Conservator of Forests concerned.
However, during the inspection of the land, at least three members including the Convener shall mandatorily be present.
(2) The Committee shall inspect the land in respect of which application has been filed and shall prepare a report as to whether the notified area is consistent with the provisions of this Act or not, and submit the same to the custodian with in one month from the date of W.As. 980 & 1017/2020 -:34:- 2024:KER:89303 receipt of the order from the custodian for local inspection of the land."
Upon receiving an application under Rule 17, the Custodian directs local inspection of the land through a Committee comprising of the Divisional Forest Officer or Wildlife Warden (as applicable) as the convener, the Technical Assistant to the Conservator of Forests, the Working Plan Officer, and other designated members. The Committee will inspect the land in question, assess whether it is in consonance with the provisions of the Act, and submit a report to the Custodian within one month of receiving the order for inspection. This is the statutory procedure for reviewing the Notifications issued under the Ordinance.
35. To decide the controversy whether the land is ecologically fragile, a Tribunal is constituted under Section 9 of the Act of 2003, manned by a Judicial Officer not below the rank of District Judge. The Tribunal can decide all the matters within its competence. Under Section 10 of the Act of 2003, the Tribunal can determine disputes regarding whether any land is ecologically fragile or whether any ecologically fragile land or portions thereof have vested in the Government, as well as whether the compensation determined under Section 8 is sufficient. After the decision of the Tribunal, an appeal will lie to the High Court under Section 11 of the Act of 2003. Under Section 12, the Tribunal has all the powers of a Civil Court as if it were trying a case under the Civil Procedure Code, 1908. Therefore, as pointed out by the learned Special Government Pleader, if the Custodian declines to exercise the powers W.As. 980 & 1017/2020 -:35:- 2024:KER:89303 under Section 19(3)(b) of the Act of 2003, the right of the party to approach the Tribunal and the High Court is not lost.
36. The inspection report of the Committee, which led to passing of Exhibit-P9 order dated 22 June 2018, is part of the record. It is necessary, at this juncture, to reproduce the relevant portions of the Inspection Report, which are as under:
"Inspected the Ramagirikkotta area on 12.06.2018 under the jurisdiction of Ottappalam Range in Palakkad Division particularly the land involved in the OA 103/1979, OA 203/1979 and OA 257/1979 which was exempted by the Custodian of EFL as per Order No. EFL. 06-1061/2007 dated 23.09.2015. Sri. Bennichan Thomas, IFS, Principal Chief Conservator of Forests (F, L & R) & Custodian (EFL), Dr. R. Adalarasan, IFS, Chief Conservator of Forests, Eastern Circle, Sri. Narendranath Veluri, IFS, Divisional Forest Officer, Palakkad, Sri. Mohamed Zainul Abideen, Working Plan Officer, Palakkad, Sri. I.P. Sanil, Assistant Conservator of Forests, Social Forestry Division, Palakkad, Sri.K.M. Sreekumar, Technical Assistant, Eastern Circle and Sri. Ashique Ali, Forest Range Officer, Ottappalam along with the field staff were present at the time of inspection.
The Range Officer, Ottappalam had provided the copy of the sketch of Ramagirikkotta VFC Item No.70 showing the three Bits of land exempted by the Custodian of EFL from EFL Act on 23.09.2015 and subsequently de- notified on 14.01.2016. The details of the land are given as below:
Sl. OA No. Village Survey No. Extent
No.
1. OA 103/79 Ongallur-I 203/6, 17.0252 Ha.
W.As. 980 & 1017/2020 -:36:-
2024:KER:89303
43/part (42.069 Acres)
2. OA 203/79 Ongallur-I 203/3,4,5/ 9.7920 Ha.
part (24.196 Acres)
3. OA 257/79 Ongallur-I 235/1/part 22.9921 Ha.
& 245 (56.81 Acres)
Total 49.8093 Ha.
(123.08 Acres)
OA 103/79
Boundary
North - Land involved in OA 203/79
East - Private Land and Vested Forest
South - Vested Forest
West - Revenue Land and Vested Forest.
Extent: 17.0252 Ha.
The land is with rocky out-crops and smaller boulders with shallow soil in most of the portions. The area supports naturally grown moist-deciduous vegetation consisting of trees of all ages and of species commonly found in the locality with teak as the dominant species. The heights of the trees vary due to the age-growth differences and accordingly occupy different canopy tiers. The structure, composition and age of vegetation in the bit are found to be similar and comparable to the adjoining Vested Forest bits. The major species noted in this bit are Teak, Chenthoori, Irul, Pala, Kanjiram, Maruthu, Kazhani, Murikku, Chadachi and Poovam. Many of the teak trees and the other trees are of above 90 cm. girth at breast height, which have an age of more than 30 years. The undergrowth is quite thick comprising of various natural herbs, shrubs and saplings of natural tree species. Sandal regeneration is seen in some portion. The land is principally covered with naturally grown trees and undergrowth. There is absolutely no symptom of any kind of human cultivation or W.As. 980 & 1017/2020 -:37:- 2024:KER:89303 permanent improvements in the land. Considering more than 90 cm. girths at breast height possessed by many of the trees, above 30 years age of these bigger trees, total absence of any human cultivation or permanent improvements in the lands and the contiguity of the land to Vested Forests, we are convinced that the land qualifies for EFL under section 3(1) of the Act 21 of 2005 as on 02.06.2000.
OA 203/79
Boundary
North - Private Land and Vested Forest
East - Vested Forest
South- Land involved in OA 103/79 and Private Land
West- Vested Forest
Extent: 9.7920 Ha.
The land is with rocky out-crops and smaller boulders with shallow soil in most of the portions. The area supports the naturally grown moist-deciduous vegetation consisting of trees of all ages and of species commonly found in the locality with teak as the dominant species. The heights of the trees vary due to age-growth differences and accordingly occupy different canopy tiers. The structure, composition and age of vegetation in the bit are found to be similar and comparable to the adjoining Vested Forest bits. The major species noted in this bit are Teak, Pala, Maruthu, Kanjiram, Irul, Chenthoori, and Poovam. Many of the teak trees and the other trees are of above 90 cm. girth at breast height, which have an age of more than 30 years. The undergrowth is quite thick comprising of various natural herbs, shrubs and saplings of natural tree species. Sandal regeneration is seen in some portion. The land is principally covered with naturally grown trees and undergrowth.W.As. 980 & 1017/2020 -:38:-
2024:KER:89303 There is absolutely no symptom of any kind of human cultivation or permanent improvements in the land. Considering more than 90 cm girths at breast height possessed by many of the trees, above 30 years age of these bigger trees, total absence of any human cultivation or permanent improvements in the lands and the contiguity of the land to Vested Forests, we are convinced that the land qualifies for EFL under section 3(1) of the Act 21 of 2005 as on 02.06.2000.O.A 257/79
Boundary North - Private Land and Vested Forest East - Private Land and Vested Forest South - Private Land and Vested Forest West - Private Land and Vested Forest Extent: 22.9921 Ha.
The land is with rocky out-crops and smaller boulders with shallow soil in the most of the portions. The area supports the naturally grown moist-deciduous vegetation consisting of trees of all ages and of species commonly found in the locality with teak as the dominant species. The heights of the trees vary due to age-growth difference and accordingly occupy different canopy tiers. The structure, composition and age of vegetation in the bit are found to be similar and comparable to the adjoining Vested Forest bits. The major species noted in this bit are Teak, Irul, Maruthu, Chadachi, Sindhooram, Kanikonna, Kanakaitha, Kanjiram, Karivaka, Cheru, Edana and Vaka. A few rosewood trees are also here. Many of the teak trees and the other trees are of above 90 cm. girth at breast height, which have an age of more than 30 years. The undergrowth is quite thick comprising of various natural herbs, shrubs and saplings of natural tree species. Sandal W.As. 980 & 1017/2020 -:39:- 2024:KER:89303 regeneration is seen in some portion. The land is principally covered with naturally grown trees and undergrowth. There is absolutely no symptom of any kind of human cultivation or permanent improvements in the land. Considering more than 90 cm girths at breast height possessed by many of the trees, above 30 years age of these bigger trees, total absence of any human cultivation or permanent improvements in the lands and the continuity of the land to Vested Forests, we are convinced that the land qualifies for EFL under section 3(1) of the Act 21 of 2005 as on 02.06.2000."
(emphasis supplied) In the underlined portions, the Committee has observed that the size and species of trees indicate the presence of naturally grown trees of all ages. These species are commonly found in the locality, with teak being the dominant species. The Committee recommended that the area has all the characteristics as such and be retained as ecologically fragile lands.
37. The finding in the impugned judgment that Exhibit-P9 order does not specify any grounds of fraud, with respect, is incorrect. The basis of the impugned judgment is that though fraud can empower a quasi- judicial authority to recall its earlier order, Exhibit-P9 does not refer to any fraud. In the impugned judgment, reference is made only to the conclusions in Exhibit-P9 order and the detailed reasoning in Exhibit-P9 is not referred to. The following observations were made in Exhibit-P9 order dated 22 June 2018 regarding fraud and collusion:
"The action of the Committee in inspecting and submitting the Inspection Report for the entire lands of 123.08 Acres covered under 3 OAs as against the W.As. 980 & 1017/2020 -:40:- 2024:KER:89303 application of Sri. Easwaran Unni, Edakkuni Madom, Variyam Lane, Thrissur - 1, (reference 2) claiming 3.51 acres comprised in one OA and against the direction of the Custodian of EFL (reference 3) to inspect and submit the Inspection Report for 3.51 acres of land claimed by Sri. Easwaran Unni in one OA, is fraudulent and is a very serious mistake from the part of the Committee, and is violative of Rules 17 and 18 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Rules 2007. Moreover, no suo motu proceedings were initiated by the Custodian and direction issued to Committee for inspection and report on 123.08 acres of land. Hence the Report of Committee itself is without jurisdiction or authority and hence null and void.
** The above mentioned failure to take representative sufficient sample size for the enumeration of trees and the different procedures adopted for recording the tree girths have resulted in serious errors and thereby mis-representative of facts.
** The Custodian vide Lr. No. EFL (6) -
1061/2007 dt. 08.07.2015 had sent the notices for the personal hearing to 31 persons, the name of the applicant under reference (2) Sri. Easwaran Unni, Edakkuni Madom, Variyam Lane, Thrissur - 1, is figuring as serial number 31. It is not known as how the Custodian had decided the above 31 names. As a matter of fact, only the name of Sri. Easwaran Unni, Edakkuni Madom, Variyam Lane, Thrissur - 1 figures in the reference (2) application. The above action of the Custodian in sending the letter for personal hearing to 31 persons as against the application of one person, Sri. Easwaran Unni, Edakkuni Madom, W.As. 980 & 1017/2020 -:41:- 2024:KER:89303 Variyam Lane, Thrissur - 1, is illegal as is against the provisions of the EFL Act, 2003 and the Rules, 2007. It is a very serious mistake and fraudulent action on the part of the Custodian of EFL in scrutinizing and exempting from EFL the entire extent of 123.08 acres covered under three OAs as against the application of Sri. Easwaran Unni, Edakkuni Madom, Variyam Lane, Thrissur - 1, (reference 2) claiming exemption for only 3.51 acres of land comprised in one OA.
** In the instant case, there is only one application by Sri. Easwaran Unni, Edakkuni Madom, Variyam Lane, Thrissur - 1, under reference (2) claiming an excemption of 3.51 acres of land comprised in one OA numbering OA 103/79. Such application itself is not in accordance with Sec. 17(1), since it is without accompanying documents which is mandatory. The act of Custodian of EFL in sending the notices for personal hearing to 30 other persons is illegal and against the provisions of Section 19(3)(b) of the Act and Rule 17 of the Rules, 2007. The above 30 persons did not apply or produce any documents as required under Rule 17(2) of the Rules, 2007. They did not produce the affidavits as required under Rule 17(3) or the court fee stamp required under Rule 17(4) of the Rules, 2007. The action of the above persons in claiming the notified EFL lands without Section 19(30(b) applications, without producing the documents as required under Rule 17(2), without producing the affidavits as required under Rule 17(3) and without the court fee stamps as required under Section 17(4) of the Rules, 2007 is a clear case of fraud.
** W.As. 980 & 1017/2020 -:42:- 2024:KER:89303 In their representations, they had claimed that, the lands were planted with teak during different periods prior to 1950 and up to 1970. The teak trees were stated to be sold prior to 1950 and subsequently up to 1970. They have mentioned in their representations that the teak trees in the land show different girths, because of the reason that, the teak was planted and felled during different periods and also due to the existence of rocky area and the structure of the soil there in. The above contention is not correct, as the lands were allowed by the Forest Tribunal, Palakkad, by a common judgment dt. 28.04.1982, finding that the above properties continue to be a Vested Forest within the meaning of Act, 26 of 1971 and that there is no cultivation as on 10.05.1971 and on the basis of the oral evidence of the applicant about the intention to cultivate, the Tribunal granted exemption from Vesting under Section 3(3) of Act 26 of 1971. As such, the contention raised in the written representations that the teak trees were planted during different periods up to 1970 is factually wrong and is made fraudulently to obtain orders by misinterpreting facts. Had the area were planted with teak prior to 1971, the Forest Tribunal would have allowed the land to the applicants under Section 3(2) of Act 26 of 1971 as for the purpose of Section 3(2), "cultivation"
includes cultivation of trees or plants of any species. As such, it can be safely concluded that the teak trees occurring in the lands covered under OA 103/79, OA 203/79 and OA 257/79 are of natural origin. The Custodian of EFL while issuing the reference (8) Order dt. 23.09.2015, did not consider the above facts on record.
** As a matter of fact, planting of an area with teak is possible only with clear felling of the area as teak is a W.As. 980 & 1017/2020 -:43:- 2024:KER:89303 strong light demander. No cutting permissions were sought for or obtained by anybody in the area during the period from the date of restoring the land to the applicants in the OAs on 15.07.1994 to the date of notification of the area as EFL during 2000-01 vide reference (1) EFL Notification.
** Custodian of EFL in reference (8) Order has treated teak as covered under the exempted category of crops eligible for exclusion from EFL. He has stated that, "the list of exempted cultivated crops of long duration mentioned in Section 2 (c) of EFL Act is prefixed with words "such as". Hence, the scope of exempted crops is not restricted to a few crops such as rubber, tea, etc., mentioned therein. I find teak, if cultivated, is eligible for exemption". The above finding of Custodian in treating teak in the exempted category of cultivation of crops of long duration along with tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew as per Section 2 (c) of Act, 2003 in reference (8) Order is a very serious mistake as it is totally violative of Section 2 (h) (vii) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Rules, 2007 and Section 2 (h) (vii) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal Rules, 2007. As per Section 2(h) of these Rules, "Permanent improvements" means any work or products of work, which adds the value of the holding, and includes:-
(vii) the planting or protection or maintenance of fruit trees or other valuable trees or plants except royal trees such as Sandalwood, Rosewood and Teak."
Planting or protection or maintenance of teak trees are exempted from the category of permanent improvement.
W.As. 980 & 1017/2020 -:44:-2024:KER:89303 ** As discussed above, the reference (8) Order of the Custodian is 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. As such, the reference (8) Order is without authority and jurisdiction and hence is void in law."
** As per the total enumeration lists, the percentage of teak trees and pole crops are 21.25% in the land comprised in OA 103/79, 38.66% in the land comprised in OA 203/79 and 23.62% in the land comprised in OA 257/79. On the other hand, the 0.72% sample enumeration list prepared by the Committee discussed under point B above showed teak trees and pole crops as 90.79% in the land comprised in OA 103/79, 85.71% in the land comprised in OA 203/79, and 81.71% in the land comprised in OA 257/79. As such, the 0.72% sample enumeration lists prepared by the Committee which was relied upon by the Custodian of EFL in issuing reference (8) Order are proved to be wrong. As per the total enumeration lists, the percentage of trees and pole crops other than teak are 78.75% in the land comprised in OA 103/79, 61.34% in the land comprised in OA 203/79, and 76.38% in the land comprised in OA 257/79. The average per Ha.
number of the trees and pole crops other than teak work out to be 614 for the lands comprised in OA 103/79, 64 for the lands comprised in OA 203/79 and 297 for the lands comprised in OA 257/79. As per the total enumeration lists, many of the teak trees and other trees have a girth of above 90 cms. at breast heights, which are of more than 30 years of age. As per the total enumeration lists, the average per hectare W.As. 980 & 1017/2020 -:45:- 2024:KER:89303 number of teak trees and teak pole crops work out to be only 166 for the lands comprised in OA 103/79, 40 for the lands comprised in OA 203/79, and 92 for the lands comprised in OA 257/79. Such a low per hectare number of teak trees and pole cops rules out any chance of a teak cultivation in the area. As per the teak planting procedures adopted in Kerala forest Department, 2500 numbers of teak stumps or seedlings are planted in one Ha. at a spacing of 2m x 2m. In the result, as per the total enumeration lists, it is proved beyond any doubt that the areas support the naturally grown moist-deciduous vegetation consisting of trees of all ages and of species commonly found in the locality with teak as the dominant species. The total enumeration lists also disprove the finding of the Custodian in reference (8) Order that "the teak in the land is not naturally grown, but planted".
38. Exhibit-P9 is not a judgment written by a Court to arrive at specific findings upon framing issues. The Exhibit-P9 order has to be viewed in totality to understand its implications. The order Exhibit-P9 clearly attributes misrepresentation and fraud to the Petitioners, as demonstrated by the above passages, and all such aspects were consciously overlooked by the previous Custodian. All the points stated in Exhibit-P9 order must be collectively read to determine whether the State found elements of fraud and collusion. Unfortunately, the impugned judgment has focused only on the conclusion part and not the earlier discussion that pointed out the case of fraud and collusion. Ultimately, the endeavour under Exhibit-P9 order has to be assessed in the context of the legislation and its objectives. The needless exemption of ecologically fragile lands W.As. 980 & 1017/2020 -:46:- 2024:KER:89303 obtained through fraud and collusion with the officials would seriously infringe upon the larger public interest for which the Act of 2003 was enacted. The loss of a large tract of ecologically fragile lands poses lasting damage to the ecology of the area, and therefore, the State found it necessary to recall the decision (Exhibit-P2) of the earlier Custodian. The powers exercised by the State in larger public interest in such circumstances cannot be reduced to formulas, and their validity must be examined in the context of each case.
39. The Petitioner Mr. T. Easwaran Unni had requested Mr. Teggi, the Custodian, to exclude 3.51 acres of land by letter dated 9 May 2007. However, there was no progress at all in the application. After a gap of eight years, a Committee was constituted as per Rule 18(1) of the Rules of 2007. The Committee recommended retaining the area as ecologically fragile lands. Thereafter, on 15 July 2015, a personal hearing was fixed, but the Petitioners did not attend. However, Mr. Teggi, the Custodian did not accept the report of the Committee. The Committee constituted under the provisions of the Rules of 2007 specifically recommended that the land be kept as ecologically fragile. Once the declaration of de- notification was issued, there was a public protest regarding the manner in which Mr. Teggi, the Custodian exempted the land just prior to his retirement, particularly on an application that had remained pending for eight years. Therefore, the State took the matter seriously and Mr. Bennichan Thomas, the Custodian himself visited the site.
W.As. 980 & 1017/2020 -:47:-2024:KER:89303
40. The learned Special Government Pleader contended that, even if the land is to be cultivated, it should be used for a principal crop where it is less than 50%. His contention is that the interpretation of Mr. Teggi, the Custodian in Exhibit-P2 order regarding Section 2(c) of the Act of 2003, which defines "forest" to include teak, is entirely incorrect. Mr. Teggi, the Custodian in Exhibit-P2 order stated that since Section 2(c) of the Act of 2003 has prefixed the words "such as," the scope of exempted crops is not restricted to rubber, teak, etc. The learned Special Government Pleader contended that exempted crops are those that can be harvested, whereas teak is not a crop that can be harvested but can only be felled. It is also contended that the inspection report has shown that some forest lands are in continuity with the vested forest, thus surrounded by the vested forest. Such an important characteristic, placed on record through the report of the Committee, could not have been ignored by Mr. Teggi, the Custodian, who is supposed to have domain expertise on the subject. It is also contended that the Forest Tribunal in Exhibit-P1 order dated 28 April 1982 found that the lands involved in the original applications were private forest, but it was exempted because the Petitioners had proven that they intended to cultivate the property under Section 3 of the Private Forests Act, 1971. The learned Special Government Pleader also pointed out that the case presented by the Petitioners is dishonest, as they claimed that the property was being cultivated for the purpose of growing tapioca while seeking exemption under the Act of 1961 before the Tribunal.
W.As. 980 & 1017/2020 -:48:-2024:KER:89303
41. Ultimately, the wider impact on the actions of Mr. Teggi, the Custodian in passing Exhibit-P2 order dated 23 September 2015 could not have been overlooked. The impugned judgment only referred to the conclusion in Exhibit-P9 order dated 22 June 2018 and treated the grounds Exhibit-P9 merely as an order on merit. It is clear that the manner in which the matter progressed suggests collusion on the part of Mr. Teggi, the Custodian. It involves an application submitted by a single individual that remained pending for an astonishing eight years, only to be acted upon just before the retirement of Mr. Teggi, the Custodian. A notice was issued to 31 individuals, but the applications lacked requisite documents, and no proper application for the 31 individuals was found on file. The decision in Exhibit-P2 order reflects a clear misinterpretation of the legal provisions. The report of the Committee categorically identifying the land as ecologically fragile was disregarded by Mr. Teggi, the Custodian, as was the statement of the Petitioners made before the Forest Tribunal regarding tapioca cultivation. It is important to note that Mr. Teggi, the Custodian was not an inexperienced layperson, but held a senior position within the Forest Department, a position that required domain expertise. Such a fundamental oversight, allowing ecologically fragile forest land to be taken out of the notified lands, is not something any competent Forest Officer would reasonably commit. Fraud and collusion in public law can manifest in various forms and when all aspects are considered in totality, the case at hand serves as a clear example.
W.As. 980 & 1017/2020 -:49:-2024:KER:89303
42. There is one more aspect, which lost sight of in the impugned judgment. It is settled law that if quashing and setting aside an order revives another wrong and illegal order, or one that is grossly against the public interest, then the writ court may not interfere and refuse to exercise its discretionary power conferred under Article 226 of the Constitution of India. Therefore, the inquiry in writ jurisdiction was not limited only to ascertaining whether there exists a power of Review in the authority, but also extends to examining whether quashing an order would revive a wrong illegal order or one that is grossly against the public interest. The Hon'ble Supreme Court has settled this position in the cases of Gadde Venkateswara Rao v. Govt. of A.P. and Others [AIR 1966 SC 828] and Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Others [(1999) 8 SCC 16]. The legislation under which the controversy had arisen and the impact of an order if restored, cannot be overlooked. The enquiry cannot be confined only as to whether there exists a power of Review and, if not, the order to be automatically set aside, leaving it to the party to challenge the original order.
43. It has to be kept in mind that the matter did not arise from a dispute between two private parties or only concerned with the rights of the Petitioners alone, but involved a public law element. The Act of 2003 has a larger purpose to achieve which can be discerned from its preamble. The preamble highlights the importance of biological resources, which hold ecological, genetic, economic, social, cultural, scientific, educational, recreational, and aesthetic value. These resources are recognised as global W.As. 980 & 1017/2020 -:50:- 2024:KER:89303 assets and a public trust essential for sustainable economic and social development, ecological balance, and the survival of humanity. The Act emphasises that conserving biological diversity requires protecting ecosystems, preserving natural habitats, and ensuring the survival of species in their natural environments. The Act specifically refers to the tropical forests of the Western Ghats as rich in biodiversity but highly vulnerable to irreversible damage. In view of their vulnerability, it is crucial to conserve ecologically fragile lands to prevent the loss or degradation of these ecosystems and the biodiversity. The Act mandates the management of such lands in an integrated and uniform manner, guided by management plans rooted in sound scientific principles and within their ecological boundaries. Though the right to hold property under Article 300A of the Constitution of India is vested in an individual, if the property is an ecologically fragile forest, the State, in the larger societal interest, has the power to protect the same. In the backdrop of the avowed purpose of this legislation, though this facet of law regarding revival of an illegal order was not specifically argued, the Court, considering the nature of the legislation, was not precluded from keeping the same in mind. According to us, not doing so, in the facts of this case, is an error in the impugned judgment.
44. Now, we address the aspect of hearing to the Petitioners when Exhibit-P9 order dated 22 June 2018 was passed. Before the learned Single Judge, the Petitioners argued that Exhibit-P9 order was issued without providing an opportunity for a hearing. The learned Single W.As. 980 & 1017/2020 -:51:- 2024:KER:89303 Judge referred to this contention. The position of the State in paragraph (22) of the counter affidavit stated that since Exhibit-P2 order was issued without providing an opportunity for a hearing, it was unnecessary to afford the Petitioners such an opportunity while passing Exhibit-P9 order. The question is whether the finding that Exhibit-P9 order was passed without a hearing would automatically result in quashing it and restoring the order of exemption of lands. Principles of natural justice are not rigid and inflexible rules; their application depends on the facts of the case. In this case, we note that when Exhibit-P2 order was issued, the Petitioner No.1 - Mr. Easwaran Unni did not attend the hearing, yet Mr.Teggi, the Custodian passed a detailed order. Furthermore, in both the Writ Petition and Appeals, the Petitioners have raised all the contentions regarding the exercise of power under Section 19(3)(b) of the Act of 2003 and they have been dealt with.
45. Be that as it may, even if the power under Section 19(3)(b) is not exercised, a statutory remedy is still available to the Petitioners. Under Section 9 of the Act of 2003, a Tribunal can determine a dispute whether any land is ecologically fragile or whether any ecologically fragile land or a portion thereof has vested in the Government. After the decision of the Tribunal, an appeal is provided to the High Court under Section 11 of the Act of 2003. The scope of scrutiny under Section 19 and before the Tribunal is qualitatively different, even though both provisions are under the same statute. The proceedings before the Tribunal are extensive with the power of a Civil Court conferred on the Tribunal. Therefore, even if W.As. 980 & 1017/2020 -:52:- 2024:KER:89303 the power under Section 19 is not exercised, it does not preclude the Petitioners from approaching the Tribunal for a full hearing. It is not the case of the State that if Exhibit-P9 order is sustained, the Petitioners cannot approach the Tribunal. The appropriate course of action would be to clarify that if the Petitioners approach the Tribunal under the Act, the issue of whether the subject lands are ecologically fragile or not and whether they have been rightfully vested in the Government will be decided on its own merits. Similar directions can be given regarding the condonation of delay in filing the appeal.
46. Therefore, if the State, through the Custodian, taking note of a public outcry of wrongful loss of a large tract of ecologically fragile lands, examined the matter, and, having found that the order of its officer to remove the lands from the notification under the transitional powers under Section 19(3)(b) of the Act was vitiated by fraud on the part of the Petitioners and collusion by the officer, decided to restore their status as being covered by the Notification in the larger public interest, we find no error in the same. Cases of fraud and collusion against societal interest, particularly when committed by the officers entrusted with safeguarding public resources, cannot be countenanced. These actions, jeopardizing the public interest, are not merely in breach of administrative duty, but are betrayal of public trust that undermines societal interests and environmental protection. In such circumstances, the State not only has the power but also a duty to rectify such conduct. Therefore, according to us, there was no error in passing Exhibit-P9 order dated 22 June 2018.
W.As. 980 & 1017/2020 -:53:-2024:KER:89303 In any case, the Petitioners have the remedy of approaching a Tribunal, and thereafter, filing an appeal.
47. Thus, W.A. No.980 of 2020 is allowed. The judgment delivered by the learned Single Judge dated 6 February 2020 in W.P.(C) No.37939 of 2017 and consequently Exhibit-P2 order dated 23 September 2015 issued by the Custodian are quashed and set aside.
48. We make it clear that in case the Petitioners file an appeal before the Tribunal within a period of 90 days from the date of receipt of a copy of this judgment, the Tribunal will consider the same on its own merits without raising any objection as to the delay and without being influenced by the orders passed in the proceedings arising under Section 19 of the Act of 2003 and the observations on merits in the impugned judgment and this judgment.
49. As regards the challenge of the Petitioners in W.A. No.1017 of 2020 is concerned, in the light of setting aside of Exhibit-P2 order, dated 23 September 2015, the challenge does not survive, and even otherwise, the same, as stated earlier, was premature. This appeal is accordingly disposed of.
Sd/-
NITIN JAMDAR, CHIEF JUSTICE Sd/-
S. MANU,
JUDGE
krj/- //TRUE COPY// P.A. TO C.J.