IN THE HIGH COURT OF KERALA, AT ERNAKULAM

Present:

The Hon'ble the Chief Justice Mr. B.N.Srikrishna

&

The Honourable Mr. Justice G. Sivarajan

Tuesday, the 25th June, 2002/4th Ashadha, 1924.



O.P.No...1 9 8 8 5...OF 1995-P



Nature Lovers Movement Vs. State of Kerala and others


J U D G M E N T


 

Srikrishna, C.J.


1. This original petition in the nature of a public interest litigation has been brought by a society which is concerned with preservation and conseration of nature and natural resources. The crux of the contention raised in this writ petition under Article 226 of the Constitution is that, after the coming into force of the Forest (Conservation) Act, 1980 (Central Act 69 of 1980), no forest land anywhere in the State could be assigned or otherwise dealt with my any quasi judicial authority for the purpose of determining whether the forest land has really vested in the State of Kerala or not. An examination and comparative evaluation of the relevant provisions becomes necessary to appreciate the contention.

2. The Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act 26 of 1971), hereinafter referred to as 'the State Act, 1971', was brought into force from 23-8-1971 after being reserved for and receiving the assent of the President. The Act is intended to provide for the vesting in the Govenrment of private forests in the State of Kerala and for the assignment thereof to agriculturists and agricultural laborers for cultivation. It is provided in the preamble that the government considered that private forests in the State of Kerala are agricultural population in the State. For this purpose, it was considered necessary that the private forests should vest in the State Government so that they could be properly utilised. The date of coming into force of the Act is 10th May, 1971. The expression into force of the Act is 10th May, 1971. The expression "private forest" is defined in section 2(f) as under:

"(f) "private forest" means -

(1) in relation to the Malabar district referred to in sub-section (2) of Section 5 of the State Re-organisation Act, 1956 (Central Act 37 of 1956) -

(i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding -

(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1965)

(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.

Explanation:- Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops;

(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and

(D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;

(ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.

(2) in relation to the remaining areas in the State of Kerala any forest not owned by the Govenrment including waste lands which are enclaves within wooded areas.

Explanation:- For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;"

Sub-section (1) of section 3 of the State Act, 1971 provides that notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall, by virtue of this Act, 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. There are two exceptions made by sub-sections (2) and (3) to this general rule. Sub-section (2) carves out an exception in respect of lands comprised in private forests held by an owner under his personal cultivation, and that too, within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto. The second exception to this general rule is provided by sub-section (3) which exempts private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, so long as that too is within the ceiling limit prescribed by the Kerala Land Reforms Act, 1963. Sub-section (4) deems private forests to be lands within the meaning of Chapter III of the Kerala Land Reforms Act, 1963 applicable to private forests. Section 4 of the State Act, 1971 provides that all private forests vested in the Government under sub-section (1) of section 3 shall, so long as they remain vested in the Government, be deemed to be 'reserved forests' constituted under the Kerala Forest Act, 1961 and the provisions of the said Act shall, apply also to such private forests.

3. The exceptions provided in sub-sections (2) and (3) of section 3(1) are hedged in by several conditions. As to whether the qualified exceptions to exempt any particular land from the operation of section 3(1) of the State Act, 1971 would apply or not could be a matter of dispute. To resolve such a dispute the State Act, 1971 constituted a Tribunal under Section 7. Under Section 8(1) it is provided that where any dispute arises as to whether - (a) any land is a private forest or not; or (b) and private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, may make an application in the prescribed form to the Tribunal for decision of the dispute. On such application being made, the Tribunal has to decide whether the land is not a private forest or whether the private forest or portion thereof has not vested in the Government. There is an appeal to the High Court under Section 8-A. There is a power of review, of even decided matters, under section 8-B at the instance of the custodian of forest. Section 8-C gives power to the State to file an appeal or an application for review in certain cases. Section 8-D provides that wherever such applications are made for reviewing of any existing decision the effect of such decision shall stand stayed for a period of six months. Section 9 debars anyone from claiming compensation for the vesting in the State of any private forest or for the extinguishment of the right, title and interest of the owner or any other person in any private forest by reason of section 3(1) of the State Act, 1971. Then comes section 10 which is of importance.

4. Section 10 reads as under:

"10. Assignment of private forests:- (1) The Government shall after reserving such extent of the private forest vested in the Government under sub-section (1) of Section 3 or of the lands comprised in such private forests as may be necessary for purposes directed towards the promotion of agriculture or the welfare of the agricultural population or for purposes ancillary thereto, assign on registry or lease to -

(a) agriculturists;

(b) agricultural laborers;

(c) members of Scheduled Castes and Scheduled Tribes who are willing to take up agriculture as means of their livelihood;

(d) unemployed young persons belonging to families of agriculturists and agricultural laborers, who have no sufficient means of livelihood and who are willing to take up agriculture as means of their livelihood;

(e) laborers belonging to families of agriculturists and agricultural laborers, whose principal means of livelihood before the appointed day was the income they obtained as wages for work in connection with or related to private forests and hwo are willing to take up agriculture as means of their livelihood;

the remaining private forests or the lands comprised in the private forests on such terms and subject to such conditions and restrictions as may be prescribed.

(2) The Government may, by notification in the Gazette, delegate their power under sub-section (1) to any officer of the Government or any class of officers of Government, subject to such restrictions and control as may be specified in the notification.

(3) The extent of private forests or lands comprised in private forests which may be assigned to each of the categories of persons specified in sub-section (1) and the order or preference in which assignment may be made shall be such as may be prescribed."

Section 10 is intended to advance the intention indicated in the preamble for utilisation of the agricultural land which are private forests for the purposes of increasing the agricultural production and for promotion of the welfare of the agricultural population in the State. Broadly stated, section 10 empowers the State Government to assign lands of private forests which are vested in it by section 3(1), on registry or lease, to different classes of persons. Section 11 requires that such assignment should be completed within two years from the date of coming into force of the Act. Section 12 provides the powers of the Tribunal and custodian. Section 13 deals with bar of jurisdiction of civil court to entertain disputes which are required to be dealt with or determined by the Tribunal. There are certain other provisions which are not relevant.

5. The Forest (Conservation) Act, 1980 (Central Act 69 of 1980), hereinafter referred to as 'the Central Act, 1980', came into effect from 27th December, 1980. Section 2 of this Act provides as under:

"2. Restriction on the de-reservation of forests or use of forest land for non-forest purposes:- Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing,-

(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;

(ii) that any forest land or any portion thereof may be used for any non-forest purpose.

(iii) that any forest land or any portion thereof may be assigned byway of lease or otherwise to any private person or to any authority, Corporation, Agency or any other organisation not owned, managed or controlled by Government;

(iv) that any forest land or any portion thereof maybe cleared of trees which have grown naturally in that land or portion, for the purpose of using if for re-afforestation.

Explanation:- For the purpose of this section "non forest purpose" means the breaking up or clearing of any forest land or portion thereof for -

(a) the cultivation of tea, coffee, spices, rubber, palms, oil bearing plants, horticulture crops or medicinal plants:

(b) any purpose other than re-afforestation,

but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams withholds, trench marks, boundary marks, pipelines or other like purposes.

Section 3 of the said Act requires the Central Government to constitute an Advisory Committee consisting of certain qualified persons as it may deem fit to advise that Government with regard to the grant of approval under Section 2 and other matters connected with the conservation of forests as may be referred to it by the Central Government. There are provisions with regard to penalty for offences under the Act and such other matters with which we are not concerned.

6. The main contention urged by the learned counsel for the petitioner is that by reason of Section 2 of the Central Act, 1980 coming into force, and particularly taking into consideration the non obstante clause with which Sec.2 commences, all provisions of the State Act, 1971 are over-ridden and no assignment of any forest land could be made irrespective of whether the Tribunal decides that the land does not actually amount to private forest which could vest in the State Government under Sec.3(1) of the State Act, 1971.

7. In our view, the contention is too broadly pitched and cannot be accepted in its entirety. Under Section 2 of the Central Act, 1980 prior approval of the Central Government or other authority makes an order directing (i) that any reserved forest shall cease to be reserved or (ii) that any forest land or any portion thereof may be used for any non forest purpose, or (iii) for assignment of any forest land or portion thereof by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government, or (iv) for use of any forest land for non forest purpose and clearing of any forest land of the trees which have grown naturally except for re-afforestation. Out of all these contingencies, we shall focus our attention on contingency (iii) which deals with the right of assignment, which is the bone of contention in the present writ petition.

8. The right to assign forest land under the State Act, 1971 would arise only after the land has vested in the State Government. Section 3(i) of the State act, 1971 provides for the legal effect of the coming into force of the said Act. It is not as if all lands in the State vests in the State Government. It is only 'private forests' in the State which stand vested in the State Government and all rights, title and interest thereon in any private owner stand extinguished from the appointed day. The expression 'private forest' is defined in section 2(f) of the State Act, 1971 makes two recognised exceptions in sub-sections (2) and (3). If any land falls within the exceptions carved out in sub-sections (2) (3), then the sweep of sub-section (1) of Section 3 does not apply to it and the land does not stand vested in the State Government as a result of coming into force of the State Act, 1971. Conceivably, there may be disputes as to whether the conditions prescribed in sub-sections (2) and (3) of Section 3 are fulfilled and whether any particular land qualifies for exemption under the aforesaid sub-sections. Those disputes are necessarily to be resoved by some one and we can conceive of no better person than a judicial officer constituted as Tribunal under Section 7 of the State Act, 1971. Incidentally, the presiding officer of the Tribunal is of the rank of a sitting District Judge as required under Sec.7(2). When the Tribunal constituted under Sec.7 hears such disputes and decides, if in favour of an applicant, the legal result would be that the land in dispute does not become vested in the State Government by reason of Section 3(1) of the State Act, 1971. In other words, the Tribunal has been made the sole arbiter to decide whether the land is exempted by reason of the exceptions carved out in sub-sections (2) and (3) of Sec.3 of the State Act, 1971. In our view, therefore, the provisions in Sec.2 of the Central Act, 1980 cannot operate or apply on that plane. They can only apply with respect to lands which have already vested in the State Government by operation of Sec.3(1) of the State Act, 1971. This view of ours gathers strength from the provisions of Section 4 of the State Act, 1971. Even this section provides that only private forests which have vested in the Government under sub-section (1) of Sec.3 shall be deemed to be reserve forests within the meaning of the Kerala Forest Act, 1961. The contention of the learned counsel that even the Tribunal cannot adjudicate a dispute under Sec.7 of the State Act, 1971, without prior approval of the Central Government, is, therefore, without substance and cannot be accepted.

9. The contention of the learned counsel for the petitioner, however, is liable to succeed partly. Once the land has legally vested in the State Government by operation of Sec.3(1) of the State Act, 1971 the power of assignment of such private forest under Sec.10 of the State Act, 1971 must be deemed to have been subjected to the overriding provisions of the Central Act, 1980 by reason of Sec.2(iii), as a result of Art.254(1) of the Constitution. Since Sec.2 of the Central Act, 1980, an Act made by Parliament, is inconsistent with the powers of the State Government in Sec.10 of the State Act, 1971, the law made by the Parliament must prevail. Thus, in our judgment, irrespective of what is provided in Section 10 of the State Act, 1971, all such forests which are vested in the State Government by reason of the conditions of Sec.3(1) of the said Act cannot be assigned except with the prior approval of the Central Government as a result of the overriding provision contained in Sec.2 of the Central Act, 1980. Only to this extent are we inclined to accept the contention of the learned counsel for the petitioner.

10. Learned counsel relies on the judgment of the Supreme Court in T.N.Godavarman Thirumulpad v. Union of India (AIR 1997 SC 1228), particularly the observations contained in paragraphs 3 and 4. In our view, the question that is raised before us was neither canvassed before the Supreme Court, nor considered by it. The Supreme Court was making general observations with regard to the implementation of the Forest (Conservation) Act, 1980, and that too, to indicate that the provisions of the said Act would override all executive orders which made different classification of forests and carved out exceptions. In our view, the Supreme Court judgment was not concerned with the contention urged before us and, therefore, could not be considered as an authority for the wide proposition canvassed before us which we have rejected.

In the result, we partly allow the original petition by partly upholding the contention with regard to Sec.10 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 as above. No order as to costs.


25th June, 2002. Sd/-

 B.N.Srikrishna, Chief Justice.

Sd/- G. Sivarajan, Judge.