ANILKUMAR P.D. and others v. STATE OF KERALA and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937** ## **WP(C).No. 18607 of 2015 (A)** ## **----------------------------** **PETITIONER(S): --------------------------** **1. ANILKUMAR P.D., AGED 42 YEARS, S/O DAMODARAN, PUNNACKAL HOUSE,** **CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **2. V.V. DEVASIA, AGED 60 YEARS, S/O VARKEY, VETTUKATTIL HOUSE,** **CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **3. MATHEW JOSEPH, AGED 41 YEARS, S/O JOSEPH, SOURYAMKUZHIYIL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **4. PETER JOSE, AGED 41 YEARS, S/O JOSEPH, SOURYAMKUZHIYIL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **5. RAJAN C.C., AGED 54 YEARS, S/O SREEDHARAN, KURIKILUMKKUNNEL HOUSE, CHEMPAKAPPARA P.O, IRATTAYAR VILLAGE.** **6. CYRIAC JOSEPH, AGED 49 YEARS, S/O JOSEPH, PADIPPURACKAL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **7. ROY JOSEPH, AGED 47 YEARS,S/O JOSEPH, PADIPPURACKAL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **8. MANOJ M., AGED 42 YEARS, S/O CHERIAN, PADIPPURACKAL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **9. REENA,AGED 49 YEARS, W/O MANOJ M. CHERIAN, MALAMACKAL HOUSE, CHEMPAKAPPARA P.O, IRATTAYAR VILLAGE.** **10. JOSE DOMINIC, AGED 56 YEARS, S/O DOMINIC, PUTHUPPARAMBIL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **11. JAMES XAVIER, AGED 55 YEARS, S/O XAVIER, AZHEECKAL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **2/-** **sts** **-2-** ## **WP(C).NO.18607/2015** **12. NARAYANAN, AGED 58 YEARS, S/O KRISHNAN, KUMARAMKULATHU HOUSE,** **CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE** **13. THOMMICHEN JOSEPH, AGED 47 YEARS, S/O JOSEPH, MADAKKATTU HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **14. K.K.JOSEPH, AGED 70 YEARS, S/O N.KURIAKOSE, KONGAMALAYIL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **15. MATHEW, AGED 63 YEARS, POOVATUMOOTTIL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **16. ANNAMMA, AGED 59 YEARS, W/O MATHEW, POOVATUMOOTTIL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **17. THOMAS, AGED 49 YEARS, S/O JOSEPH, KOYIKKAL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **18. MARY SHANI, AGED 47 YEARS, W/O THOMAS, KOYIKKAL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **19. ELSAMMA, AGED 50 YEARS, W/O JOSEPH, KANNEZHATH HOUSE,M.K.PADY.P.O., M.K.PADY, THANKAMANI VILLAGE.** **20. BIJU, AGED 40 YEARS, S/O FRANCIS, MUNDANANIYIL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **21. MINI, AGED 36 YEARS, W/O BIJU, MUNDANANIYIL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **22. SURESH, AGED 44 YEARS, S/O SUKUMARAN, KADAVUMKOTTU HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **23. BABU A.S., AGED 39 YEARS,S/O SREEDHARAN, ANDUKKUNNEL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE.** **24. SEBASTIAN, AGED 39 YEARS, S/O JOSEPH, MALAMACKAL HOUSE, CHEMPAKAPPARA P.O., IRATTAYAR VILLAGE** ## **BY ADV. DR.GEORGE ABRAHAM** **3/-** **-3-** ## **WP(C).NO.18607/2015** **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001** ## **2. DISTRICT COLLECTOR, IDUKKI DISTRICT.** - ***3. SPECIAL TAHSILDAR (L.A), KUMILY, IDUKKI DISTRICT. (CORRECTED)** - ***ADDRESS OF R3 CORRECTED AS:** **SPECIAL TAHSILDAR (L.A), KATTAPPANA, IDUKKI DISTRICT.** ***AS PER ORDER DATED 28/07/2015 IN IA.NO.10570/2015** **4. ASSISTANT CARDAMOM SETTLEMENT OFFICER, KUMILY, IDUKKI DISTRICT.** ## **5. SUPERINTENDENT,** - **RE-SURVEY DEPARTMENT, PERUMED,** - **IDUKKI DISTRICT.** ## **6. VILLAGE OFFICER,** - **ERATTAYAR VILLAGE, IDUKKI DISTRICT.** ## ***ADDL.R7 IMPLEADED** - ***ADDL.R7: DIVISIONAL FOREST OFFICER, CIVIL STATION, COLLECTORATE.P.O., KOTTAYAM-686 002.** - ***ADDL.R7 IS IMPLEADED AS PER ORDER DATED 18/02/2016 IN IA.NO.2384/2016** **BY SPL.GOVERNMENT PLEADER SMT. SUSHEELA BHATT** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 18607 of 2015 (A)** ## **------------------------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-------------------------------------**|| |**EXT.P1:**|**TRUE COPY OF THE FILED REGISTER MAINTAINED IN THE VILLAGE**| ||**AS PER THE RESURVEY RECORDS**| |**EXT.P2:**|**TRUE COPY OF THE REPRESENTATION DATED 12/12/2014**| |**EXT.P3:**|**TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER ALONG WITH**| ||**THE LIST OF PERSONS IN POSSESSION OF BLOCK NO .44**| |**EXT.P4:**|**TRUE COPY OF THE FILES OBTAINED UNDER RIGHT TO**| ||**INFORMATION**| |**EXT.P5:**|**TRUE COPY OF THE FILES OBTAINED FROM THE ASSISTANT**| ||**CARDAMOM SETTLEMENT OFFICER, KUMILY RELATING TO THE**| ||**PROPERTIES OF THE PREVIOUS OWNERS.**| |**EXT.P6:**|**TRUE COPY OF THE FILED NO.11,12,13,18,19,20 AND 21.**| |**EXT.P7:**|**TRUE COPY OF THE GOVERNMENT ORDER DATED 9/8/1958.**| **RESPONDENT(S)' EXHIBITS: NIL ------------------------------------------** **/TRUE COPY/ P.A.TO JUDGE** **sts** ## A.MUHAMED MUSTAQUE, J. ================== W.P.(C).No. 18607 of 2015 ================== Dated this the 18[th] day of February, 2016 ## J U D G M E N T The issue in this writ petition is relating to assignment of a land under the Kerala Land Assignment (Regularization of Forest Lands, prior to 1.1.1977), Special Rules 1993 (for short, the “Special Rules, 1993”). 2. According to the petitioners they have purchased the land years ago and this land remained as a non cardamom cultivation land, prior to 1.1.1997. The petitioners also submit that the land has been transferred from the Forest Department to the Revenue Department. The petitioners rely on Ext.P7 Government order. It is submitted that there is no impediment in assigning the land to the petitioners in terms of the above said Rule. The petitioner submits that their applications are pending before the 3[rd] respondent. 3. In the counter affidavit in para 8, it is stated as - : 2 :- W.P.(C).No. 18607 of 2015 ## follows: “8. It is submitted that the land for which assignment is sought is shown to be cultivated with Cardamom in the Resurvey Fair Land Register. The possession of the petitioners or their predecessors - in - interest as depicted in the Resurvey records does not indicate any non-cardamom cultivation prior to 01-011977. Even though the petitioners claim that the lands were converted to non-cardamom cultivation prior to 01-01-1977, there are no records to show that the lands have been transferred from Forest Department to Revenue Department and that the lands are covered in the list of lands recommended to Government of India for concurrence under Section 2 of the Forest Conservation Act 1980. None of the lists prepared in this connection includes the names of the petitioners as beneficiaries of assignment. Therefore, the lands in possession of the petitioners does not become eligible for assignment under the Kerala Land Assignment (Regularisation of Occupation of Forest Lands prior to 01-01-1977 (Special Rules) 1993.” ## 4. It is further stated in para 9 as follows: “9. It is submitted that the petitioners' eligibility for assignment may be considered afresh, if the petitioners produce documents showing that the lands have been transferred from Forest Department to Revenue Department and that the lands are covered in the list of lands recommended to Government of India for concurrence under Section 2 of the Forest Conversation Act 1980.” 5. The Special Rules 1993 was enacted in the year 1993 by virtue of the powers conferred on the State in terms of Section 7 of the Kerala Land Assignment Act 1960 for assignment, settlement and regularisation of Forest Land under occupation prior to 1.1.1997. ## 6. The land is defined in Section 2 is as follows: “Land” means the Forest land subjected to joint - : 3 :- W.P.(C).No. 18607 of 2015 verification as defined in sub-clause (e) and Cardamom Hill Reserve land which are converted for non-cardamom cultivation prior to 1.1.1997 in Idukki District which have been transferred from Forest Department to Revenue Department and covered in the Resurvey Records and list of lands recommended to Government of India for concurrence under Section 2 of the Forest (Conservation) Act, 1980 (Central Act 69 of 1980) but does not include lands in wild life Sanctuaries.” ## 7. The petitioners consistent case is that the land has been already transferred from the Forest Department to the Revenue Department. 8. It is to be noted that the Hon'ble Supreme Court in Civil Appeal No.2116/2000 reported in Nature Lovers Movement vs. State of Kerala, in para 18 held as follows: “18. We shall now consider whether Section 2 of the 1980 Act is prospective in operation and the State Government etc. are not required to obtain prior approval of the Central Government before regularizing use of any forest land for any non-forest purpose or issue patta or grant lease to unauthorised occupants/ encroachers of forest land, or the provision contained in Section 2 is applicable qua any action which the State Government or other authority may take with reference to activity undertaken in any reserved forest or any forest land prior to 25-10-1980. Undisputedly, the object of the 1980 Act is conservation of forest and to prevent depletion thereof. Therefore, the Court is bound to interpret the provisions of that Act which would further the object of the legislation. After enforcement of the 1980 Act, the State Governments were denuded of suo moto power to deal with reserved forest or forest land and permit use thereof for nonforest purposes. They could do so only after obtaining prior approval of the Central Government. However, as large tracts of reserved forests and forest land had been occupied by landless poor, who also undertook cultivation for their sustenance many decades before the enactment of the 1980 Act, and there was demand from several quarters that old occupation of the forest land may be regularised, the Government of India, after taking note of the recommendations made in the Forest Ministers - : 4 :- W.P.(C).No. 18607 of 2015 Conference and committee appointed by it, issued guidelines for grant of approval to the decision taken by the State Governments before the enforcement of the 1980 Act, i.e., 25-10-1980 to regularize encroachments made on forest land and / or use thereof for non-forest purpose. This necessarily implies that where the State Government had not taken any policy decision to regularize pre-25-10-1980 occupation/ encroachment of forest land no order for regularization of such occupation/encroachment can be passed without obtaining prior approval of the Central Government in terms of Section 2 of the 1980 Act which, as mentioned above, contains a non obstante clause.” 9. In the light of above judgment, based on Ext.P7 Government Order, no further approval is necessary from the Central Government. 10. However, all other conditions have to be satisfied for processing application. Therefore the 3[rd] respondent shall take the assignment application into logical conclusion after conducting joint verification as contemplated under the special Rules. Needful shall be done within a period of six months from the date of receipt of the copy of this judgment. The writ petition is disposed of, as above. sd/- sab A.MUHAMED MUSTAQUE, JUDGE W.P.(C).No. 18607 of 2015 - : 5 :-