Yeshwanth Shenoy vs State Of Kerala & Ors.

Soumen Sen, C. J.

Heard Mr. Yeshwanth Shenoy, party-in-person, Ms. Hasna Jabil, learned counsel representing Mr. Sasith Panicker, learned Standing Counsel for the respondent Panchayat, and Mr. V. Tekchand, learned Senior Government Pleader.

A preliminary objection is taken with regard to the maintainability of this public interest litigation. This public interest litigation has been filed by an Advocate of this Court. It is submitted that inhabitants belonging to the Scheduled Tribe and marginalised sections of society have been illegally dispossessed by declaring their land to fall within the purview of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (Act of 2003). The petitioner submits that the statutory compliances prior to taking possession have not been complied with. The petitioner has referred to Section 3(2) of the Act of 2003 to contend that the mandatory requirement of referring the matter to an Advisory Committee before implementing the provisions of the Act has not been complied with.

The learned Senior Government Pleader submits that this public interest litigation is not maintainable, as the persons alleged to be aggrieved by the said decision have an efficacious alternative remedy before the Tribunal constituted under Section 10 of the Act of 2003.

In Ext. R2(c) filed along with the counter affidavit, the 2^nd respondent has furnished particulars of litigations instituted by persons claiming rights over the properties covered by the impugned notification. It is further submitted that the Forest Department, on 26.10.2013 (Ext. P4), issued a notification under Section 3(1) of the Act of 2003 declaring that the ownership and possession of the ecologically fragile lands described in the Schedule thereto, held by any person or any other form of right over them, would vest in the State free from all encumbrances, and that the said notification has been challenged only after nearly 12 years. In between, representations have been made, including mass representations on 01.10.2021 and 06.01.2022. Several persons aggrieved by the notification had approached the Tribunal, and it is disclosed in the counter affidavit that, in some matters, the applicants have been granted favourable orders.

Prima facie, it appears that the said notification has not been fully implemented, or could not have been implemented, due to the intervention of the Tribunal or the Court, as the case may be. Moreover, we are of the view that the question as to whether the land can be classified as ecologically fragile requires an examination of facts, which the Tribunal is better equipped to decide.

Mr. Yeshwanth Shenoy, the Advocate appearing in person, submitted that he had raised the issue in the Committee meeting of KeLSA for extending legal aid to persons who are unable to approach the Court; however, no final decision has been taken in this regard. It is further submitted that the Tahsildar has permitted the transfer of land in favour of one Mr. George Thomas, as would appear from Ext. P25, which could not have been allowed if the Government had considered the land to be ecologically fragile land.

Without entering into the controversy as to whether legal aid ought to have been extended at that point of time, we permit the petitioner before us to approach KeLSA for the purpose of redressal of the grievance and to seek assistance for invoking legal remedies before the Tribunal constituted under the Act of 2003, and if the said Tribunal is approached, applications from such persons shall be accepted by the Tribunal without insisting on a separate application for condonation of delay, having regard to the fact that the Tribunal is already considering matters in which the said issues are pending and that the matter concerns the livelihood of the persons affected by the said notification.

We direct the Member Secretary, KeLSA, and the Secretary, DLSA, Idukki, to obtain immediate and proper instructions from the persons mentioned in Ext. P12 and to take immediate steps to file appropriate applications before the Tribunal after obtaining the necessary consent and approval from such persons. It would be open to the applicants in the said applications to pray for interim protection or restoration of possession, as the case may be. The Tribunal deciding the said applications shall first ascertain whether the land was ever treated as ecologically fragile land and examine the subsequent conduct of the Government in relation to those lands, as prima facie, it appears that on 30.10.2021, a patta was issued in favour of Mr. George Thomas by the Tahsildar in respect of a portion of land which falls within the ecologically fragile land. There could be numerous instances of such transfers having been permitted, and the Tribunal shall direct the authorities concerned to produce the entire records for a proper adjudication of the dispute, as the Government cannot treat the land as partly fragile and partly non-fragile for the purpose of extending the provisions of the Act.

We make it clear that we have not gone into the merits of the matter and the Tribunal shall decide the matter in accordance with law.

Accordingly, the writ petition is disposed of.