Murukankutty Vs. Amarnath Shetty - Court Judgment

K.A. Abdul Gafoor, J.

1. The grievance raised in this petition, to initiate contempt of court proceedings, is that, in spite of Annexure A judgment containing a time bound direction to restore the land covered by the judgment in M.F.A. No. 804/90, the Custodian is, for one or the other reasons, postponing it, thereby committing contempt of court.

2. The answer by the alleged contemner is that because of the enforcement of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for short 'the Act'), the land, being an ecologically fragile land in terms of Section 3(1) of the Act, lying contiguous to vested forest has statutorily vested with the Government, notwithstanding the judgment directing restoration. Therefore, the Custodian is unable to restore the land.

3. This contention is countered by the petitioner relying on the decision reported in Joseph v. Lissy Jacob 2000 (3) KLT SN 68 wherein it has been held that a plantation which had been directed to be restored could not have been contended to be an ecologically fragile land in the light of the Act. Therefore, the contention of the custodian cannot be accepted, the petitioner submits.

4. First of all, I will deal with the contentions centered around the Division Bench judgment in Joseph's case. That was also an order in a contempt proceedings initiated by the person, who had obtained the order for restoration. That restoration was, as is discernible from the reported decision, a developed plantation. Taking into account that fact and the wording in the Ordinance then in force, the Division Bench said that such a plantation could not have vested. This was so because of Sub-section (2) to Section (3) of the Ordinance. It reads as follows:

Nothing contained in Sub-section (1) shall apply in respect of any land cultivated with coffee or cardamom held by an owner under valid registration for the plantation raised after obtaining due permission from legally competent authorities.

It was in the light of this Sub-Section, it was held by the Division Bench that the plantation could not have vested automatically in terms of Clause 3(1) of the Ordinance as ecologically fragile land.

5. Such a Sub-section (2) is absent in Section 3 of the Act. In other words, there is no provision for exempting a plantation in the Act. Therefore, that Division Bench judgment can no more be applied to the facts of this case, in the light of the present provision in the Act. Moreover, the land in question ordered to be restored is admittedly not a plantation.

6. It is further contended that there is no notification in terms of Section 4 of the Act declaring the land in question as ecologically fragile land. Without a notification, there arises no question of vesting in terms of Section 3, the petitioner contends.

7. I am unable to accept that contention. Section 2(b)(i) defines ecologically fragile land as follows:

(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 or 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 Section 4.

By reason of Section 2(i) as extracted above, any portion of forest land lying contiguous to the reserved forest or vested forest, is also statutorily treated as ecologically fragile land. Ext. R1(a), which is not disputed before me, indicates that the land in question is lying abutting, on its east and west boundaries, vested forests. Therefore, the land in question, prima facie, falls within the definition of ecologically fragile land. When a land is ecologically fragile land, it automatically vests with Government as provided in Section 3(1) which reads as follows:

3. Ecologically fragile lands to vest in Government:(1) Notwithstanding anything contained in any other law for the time being in force, or in any judgment, decree, or order of any Court or tribunal in any custom, contract or other documents, with effect from the date of commencement of this Act, the ownership and possession of all ecologically fragile lands held by any person or any other form of right over them, 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 thereon shall stand extinguished from the said date.

This vesting is automatic.

8. Over and above the ecologically fragile land, which is as such, because of its lie, Clause (2) of Section 2(b) enables the Government to declare any other land also as ecologically fragile land. Only in respect of such land, the declaration and notification as provided for in Section 4 is required before it being vested. In other words, the land which is statutorily meant as ecologically fragile land does not need a further declaration by way of notification. The contention to the contra from the counsel cannot, therefore, be accepted.

9. When the land in question covered by Annexure A direction is thus prima facie vested in Government, it cannot, at present, be restored. Necessarily, there arises no question of any contumacious conduct on the part of the respondent. The vesting in terms of the said Act comes, notwithstanding any judgment. The non-obstante clause affects Annexure A judgment as well. The respondent did not have any liability in terms of Annexure A judgment, because of the supervening statute, to restore it. Therefore, contempt proceedings fail.

10. This does not disable the petitioner to move, in terms of Section 19(3)(b), the Custodian concerned pointing out the objection to the vesting and seeking release from the vesting. It is made clear that the petitioner is free to agitate, interpreting the provisions, notwithstanding any finding or observation contained in this judgment, that the land in question is not lying contiguous to the forest or even if it is lying contiguous to the forest, it does not come within the statutory vesting.

Contempt Petition is accordingly closed.