C. Raghvan and Others v. State of Kerala and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 23RD DAY OF JULY 2019 / 1ST SRAVANA, 1941** ## **WP(C).No.25549 of 2007** ## **PETITIONER/S:** **1 C. RAGHAVAN, S/O. LATE C. KUMARAN NAIR, VIJAYALEKSHMI MANDIRAM, GOVERNMENT HOSPITAL ROAD, CHALAKUDY P.O., THRISSUR DISTRICT.** - **2 C. ASHOK KUMAR, S/O. LATE C.KUMARAN NAIR, VIJAYALEKSHMI MANDIRAM, GOVERNMENT HOSPITAL ROAD, CHALAKUDY P.O., THRISSUR DISTRICT.** - **3 C. PRAKASH KUMAR, S/O. LATE C.KUMARAN NAIR, VIJAYALEKSHMI MANDIRAM, GOVERNMENT HOSPITAL ROAD, CHALAKUDY P.O., THRISSUR DISTRICT. (DELETED)** **(PETITIONER P.3 IS DELETED AS PER ORDER DATED 16.01.2015 IN IA NO.405/15.)** **4 P.B. SREEKUMARI, VIJAYALEKSHMI MANDIRAM, GOVERNMENT HOSPITAL ROAD, CHALAKUDY P.O., THRISSUR DISTRICT.** - **5 SAROJINI AMMA, VIJAYALEKSHMI MANDIRAM, GOVERNMENT HOSPITAL ROAD, CHALAKUDY P.O., THRISSUR DISTRICT.** **BY ADVS. SRI. T. KRISHNANUNNI (SR.) SRI.R.RAMADAS** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE PRINCIPAL SECRETARY TO GOVERNMENT, FOREST & WILD LIFE DEPARTMENT, GOVERNMENT OF, KERALA, THIRUVANANTHAPURAM.** W.P.(C) No.25549 of 2007 2 - **3 THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** - **4 THE CONSERVATOR OF FORESTS AND CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD.** - **5 THE CHIEF CONSERVATOR OF FORESTS, FOREST HEADQUARTERS, THIRUVANANTHAPURAM.** - **6 THE DIVISIONAL FOREST OFFICER, NILAMBUR (SOUTH).** **BY ADVS. R1 - R6 - SRI.SANDESH RAJA K., SPECIAL GOVERNMENT PLEADER (FORESTS)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.06.2019, THE COURT ON 23.07.2019 DELIVERED THE FOLLOWING:** W.P.(C) No.25549 of 2007 3 ## **JUDGMENT** Petitioners are the legal heirs of one C. Kumaran Nair, and succeeded to an extent of 222.3490 hectares of land, on the death of Kumaran Nair. The said properties are now proceeded under the provisions of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity, 'the Act, 2003'), and is suffered with Ext.P6 notification and Ext.P19 order of the Custodian. The following are the reliefs sought for by the petitioners: _“a) Call for the records of the case leading upto Ext.P6, in so far as it is against the petitioners, and to quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction;_ _b) Declare that Sections 3, 4 and 19 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (Act 21 of 2005) are unconstitutional, null and void and illegal;_ _c) Pass an order staying all further proceedings in pursuance of Ext.P6 notification, in so far as it is against the petitioners, pending disposal of the Writ Petition (Civil);_ _d) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to forbear from taking any steps which would result in preventing the petitioners from exercising their legal rights to use the entire area (Kumaragiri Estates) owned and possessed by them as cultivated land;_ W.P.(C) No.25549 of 2007 4 _e) Declare that Section 3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (Act 21 of 2005) is unconstitutional;_ _f) Issue a writ in the nature of mandamus, or any other appropriate writ, order or direction, commanding the respondents not to attempt to divest the petitioners of their property situated in Sy.No.1, 3, 64/A of Mankada - Cheriyam and Koottil Villages (Kumaragiri Estates) under the colour of authority under the provisions of Act 21 of 2005;_ _ff) Call for the records of the case leading up to Ext.P19 order in so far as it is against the petitioners and to quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction; and_ _g) Issue such other appropriate writ, order or direction as may be prayed for and which this Hon'ble Court may deem fit to grant under the circumstances of the case.”_ 2. Brief material facts for the disposal of the writ petition are as follows: 3. According to the petitioners, after the death of Kumaran Nair, the afore-specified properties were partitioned as per a deed of settlement-cum-partition executed on 13.03.1971, and thus the properties vested in the petitioners. During the year 1966 to 1969, late C.Kumaran Nair had obtained permissions from the District Collectors of Palakkad and Malappuram under Sec.3(2) of the Madras Preservation of Private Forests Act, 1949 (in short, 'the MPPF Act') for conversion of the land into Rubber plantations after clear felling, W.P.(C) No.25549 of 2007 5 and the rubber plantation so developed is known as “Kumaragiri Group Estates” (Mankada Plantations). The Rubber plantations were developed after obtaining registration from the Rubber Board, during different periods. 4. While so, the Kerala Private Forest (Vesting and Assignment) Act, 1971 (hereinafter called 'the Act, 1971') came into force with effect from 10.05.1971. Since the definition “Private Forest” provided in the said Act includes lands to which the provisions of MPPF Act applied, the authorities of the Forest Department took steps to demarcate the properties in question, as if the same are vested in the Government. Thereupon, petitioners approached the Forest Tribunal, Manjeri by filing O.A.Nos.81, 82, 83 and 84 of 1976 for settlement of disputes regarding the status of the land. As per a common order dated 21.07.1978, it was held by the Tribunal that the properties owned by the petitioners are 'Rubber Plantations' and the same are not liable to be vested in the Government, except, approximately 200 Acres of rocky land and 8 Acres of Eucalyptus plantations covered in O.A.No.84/76 belonging to late C. Gopalakrishnan, and approximately 40 Acres of rocky land covered under O.A.No.83/76 belonging to C. Ashok W.P.(C) No.25549 of 2007 6 Kumar. The State Government challenged the order of the Forest Tribunal by preferring M.F.A No.605/1978, which was dismissed by this Court as per Ext.P2 judgment. The matter was taken to the Supreme Court by the State Government by filing S.L.P (C) No.8599/85, which was dismissed by the apex court as per Ext.P3 judgment. 5. After the promulgation of the Kerala Land Reforms Act, there was a proceeding initiated by the Taluk Land Board with respect to the properties held by the petitioners' family members. Initially, the Taluk Land Board ordered to surrender an extent of 2067 Acres of land, finding the same as excess land in the possession of the petitioners' family. The land ordered to be surrendered includes 1501 Acres purchased by late C.Kumaran Nair, which was covered under Ext.P1 judgment of the Forest Tribunal. The order of the Taluk Land Board was challenged before this Court by filing C.R.P No.1654/1991. The revision was allowed by this Court, and aggrieved by the order, the State Government took up the matter before the Supreme Court by filing Civil Appeal Nos.321 and 322 of 1998. But the appeals were dismissed as per Ext.P5 judgment, holding that the land in question had already been W.P.(C) No.25549 of 2007 7 converted as Rubber Plantations and that the same is liable to be exempted from the ceiling area under the provisions of the Kerala Land Reforms Act. Therefore, according to the petitioners, it is clear from the various judgments rendered by this Court as well as the apex court, that the land in question is agricultural land converted into Rubber Plantations and it is not a forest. It is also the case of the petitioners that, since the proceedings under the Act, 1971 remain stayed by the Forest Tribunal, during the pendency of the applications, the land remained in the possession and enjoyment of the petitioners. 6. While so, the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000 came into force. The said ordinance was replaced by subsequent ordinances, which were in force till 17.07.2001, and the last ordinance being 16/01. Later, Act 2003 promulgated as per Act 21/2005 and has deemed to have come into force on the 2[nd] day of June, 2000 (hereinafter called, 'the Act, 2003'). In spite of the fact that the land in question will not come within the purview of the definition of 'Ecologically Fragile Land' provided under the Act, 2003, the authorities of the Forest Department had included an extent of 222 W.P.(C) No.25549 of 2007 8 hectares of land in Ext.P6 notification issued under Sec.3(1) of the above said Ordinance. According to the petitioners, the inclusion of the above land in the notification issued under the Ordinance is illegal, erroneous and improper. The lands notified are already declared by the Forest Tribunal, this Court as well as the apex court as not vested forest. 7. It is also submitted that, this Court as well as the apex court in the Land ceiling case has categorically found that the land in question is agricultural land cultivated with Rubber Plantations. Therefore, the lands will not come within the purview of the definition of 'Ecologically Fragile Land' mentioned in the Act. The Conservator of Forests, Olavacode conducted a detailed enquiry and visited the properties on 18.07.2001 and collected report from the concerned D.F.O, and the Forest officials were convinced that the properties of the petitioners are fully cultivated with rubber and coffee. After the enquiry, the Conservator of Forests had already given a report to Chief Conservator of Forests, Thiruvananthapuram, stating that there are some defects crept in the notification, which has to be rectified. However, no action has been taken to rectify the W.P.(C) No.25549 of 2007 9 defects in the notification. It is also the case of the petitioners that, evident from Ext.P7, even according to the Forest officials, only 22.328 hectares will come within the purview of the Ordinance and Act 2003. 8. Therefore, basically, the writ petition was filed challenging the constitutional validity of Sections 3, 4 and 19 of Act 21 of 2005 and also challenging Ext.P6 notification issued under Sec.3(1) of Ordinance, 2000. However, as per an interim order dated 09.06.2014, this Court directed the Custodian & Additional Principal Chief Conservator of Forests to pass orders on Exts.P10 to P13 applications within a period of two months from the date of receipt of a copy of the order. Accordingly, Ext.P19 order is passed by the Additional Principal Chief Conservator of Forests, dated 09.12.2014. Thereafter, the writ petition was amended extending the challenge to Ext.P19 also. 9. The paramount contention advanced by the petitioners is that, neither the primary authority nor the Custodian has taken into account Ext.P14 report submitted by the Committee constituted under Rule 18 of the EFL Rules, 2007, as well as Exts.P15 to P18 reports submitted by the competent officials of the Forest W.P.(C) No.25549 of 2007 ## 10 Department who have conducted a thorough and proper inspection of the petitioners' property before submitting the aforesaid Exts.P15 to P18 reports. However, in Ext.P19, the Custodian has merely relied on the report and GPS Survey sketch said to have been submitted by the Divisional Forest Officer, Nilambur South, as per his letter dated 08.12.2014, to come to a different conclusion than the conclusion arrived at by the Expert Committee in Ext.P14 report. The Custodian as well as the D.F.O went to the property of the petitioners on 04.12.2014 and had just spent about three hours in the property, and they had not conducted any proper inspection or field verification of the property before issuing Ext.P19 order. According to the petitioners, it is humanly not possible to inspect the entire 222.349 hectares of land notified as EFL within a time of three hours on a single day. Other contentions are also raised by the petitioners to contend that Ext.P19 order passed by the Custodian under Sec.19 of Act, 2003 is illegal and arbitrary. It is predominantly pointed out that, none of the aspects and the documents available were considered by the Custodian. Fact remains, Ext.P19 order was passed by the Custodian after providing an opportunity of hearing W.P.(C) No.25549 of 2007 11 to the petitioners, and taking into account various inputs provided by the petitioners as well as ascertained by the Custodian in accordance with the available records, as per Sec.19(3) of Act, 2003 r/w Rule 17 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Rules, 2007. 10. I have heard Sri. T. Krishnanunni, learned Senior Counsel appearing for the petitioners, assisted by Advocate R. Ramadas, and the learned Special Government Pleader (Forests), Sri. Sandesh Raja K., and perused the pleadings and the documents on record. 11. As is discussed above, the prime contention advanced by learned Senior Counsel for the petitioners is that, the findings rendered by the Custodian in Ext.P19 order passed as per the direction of this Court is violative of the principles of natural justice and without taking into account Ext.P14 report submitted by the EFL Committee constituted under the Rules. It is also pointed out that, the inspection conducted by the Custodian was just an eyewash and it was humanly and practically impossible to conduct inspection of the property in three hours time. So also, it is submitted that, the relevant aspects, by virtue of the judgments rendered by the Forest Tribunal, this Court as well as W.P.(C) No.25549 of 2007 12 the apex court in various its proceedings were not taken into account. It is also pointed out that, it is well established that the property in question is a rubber plantation and, therefore, it will never come under the definition of EFL as per the provisions of Act, 2003. Therefore, the sum and substance of the contention advanced by learned Senior Counsel is that, since there are documents available before this Court produced along with the writ petition, this Court is vested with ample powers to adjudicate the issue as to whether the notification issued by the primary authority and the order passed by the Custodian are in accordance with law. 12. On the other hand, learned Special Government Pleader pointed out that, the order passed by the Custodian is capable of being challenged before the Forest Tribunal in accordance with the provisions of the Act, 2003 and the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal Rules, 2007 (hereinafter called, the 'Tribunal Rules, 2007'), and has invited my attention to the judgment rendered by a Division Bench of this Court in ' _**Planters Forum v. State of Kerala**_ ' [2015 (2) KLT 783], wherein the constitutional validity of the provisions of Act, W.P.(C) No.25549 of 2007 13 2003 was considered elaborately and has arrived at the conclusion that the provisions of Act, 2003 are constitutionally valid. Therefore, since the petitioners are left with a clear alternative and efficacious remedy, I do not think petitioners are entitled to get any reliefs, invoking the powers of this Court under Article 226 of the Constitution of India, especially due to the fact that Ext.P19 order passed by the Custodian is absolutely depending upon various factual circumstances involved in the matter and providing opportunity to the petitioners. 13. Having evaluated the situations and the arguments put forth by the respective counsel across the Bar, I am of the considered opinion that, there is a clear remedy available to the petitioners to approach the Forest Tribunal in accordance with the provisions of Act, 2003, the Rules, 2007 and the Tribunal Rules, 2007. I am constrained to hold so, since after going through Ext.P19, I am convinced that the order was passed by the Custodian taking into account various factual circumstances and therefore, truth, veracity and legality could only be deciphered and adjudicated by a fact finding body. I could not also identify any patent illegality or arbitrariness in the matter of W.P.(C) No.25549 of 2007 14 consideration of representations submitted by the petitioners, as directed by this Court as per its interim order, since it was passed after providing sufficient opportunity of hearing and participation to the petitioners and taking into account various factual, documentary and other circumstances. So also, since the factual circumstances rendered by the Custodian are disputed by the petitioners, it is only appropriate that the petitioners are relegated to the Tribunal constituted for the purpose. 14. Therefore, the reliefs sought for by the petitioners with respect to the constitutional validity and the challenge made to Exts.P6 and P19 are declined, especially in view of the judgment in the ' _**Planters Forum'**_ referred to _supra_ . But it is explicit and clear, petitioners are entitled as of right to move the Tribunal. However, since the subject matter was pending before this Court for unduly long period, the time period of three months prescribed under Rule 3 of Rules, 2007 for moving the Tribunal from the decision of the Custodian is already over. But, in order to protect the interest of justice and to enable the petitioners to approach the Tribunal as per their entitlement under Act, 2003, and Rules 2007, it is only 15 W.P.(C) No.25549 of 2007 appropriate and fair that an opportunity is granted to the petitioners. 15. In that view of the matter, if the petitioners make any application/(s) before the Forest Tribunal within a month from the date of receipt of a copy of this judgment, it shall be considered as within time, and adjudicate the issues on merits of the matter, after providing sufficient opportunity of hearing and participation to the respective parties and in accordance with law, at the earliest, and at any rate, within a period of four months from the date of receipt of the application/(s) from the petitioners. I also make it clear that all the questions of fact and law raised in the writ petition, so far concerning Ext.P6 notification, and Ext.P19 order passed by the Custodian are all left open and the petitioners are at liberty to take up all contentions available to them before the Forest Tribunal. Petitioners are also at liberty to move any interlocutory application pending the proceedings. The writ petition is disposed of accordingly. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** W.P.(C) No.25549 of 2007 16 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 21/07/1978 OF THE FOREST TRIBUNAL, MANJERI IN O.A. NOS. 81, 82, 83 AND 84 OF 1976.** - **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 08/11/1984 IN MFA NO.605/1978.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 18/04/1988 SLP CIVIL NO.8599/85.** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 11/09/1995 IN C.R.P NO.1654/1991.** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 14/10/2003 OF THE HON'BLE SUPREME COURT OF CIVIL APPEAL NOS.321 AND 322 OF 1998.** - **EXHIBIT P6 TRUE COPY OF THE NOTIFICATION NO.C421437/00 DATED 20/10/2000 PUBLISHED IN THE GAZETTE NO.1 DATED 02/01/2001.** - **EXHIBIT P7 TRUE COPY OF THE LETTER NO.C6/9234/01 DATED 18/09/2002 ISSUED BY THE CHIEF CONSERVATOR OF FORESTS TO THE SECRETARY TO GOVERNMENT.** - **EXHIBIT P8 A TRUE COPY OF THE INSPECTION REPORT. EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 28/03/2014 FROM THE CUSTODIAN TO THE PETITIONERS.** - **EXHIBIT P10 TRUE COPY OF THE REPRESENTATION BEFORE THE CUSTODIAN BY THE 1ST PETITIONER.** - **EXHIBIT P11 TRUE COPY OF THE REPRESENTATION BEFORE THE CUSTODIAN BY THE 2ND PETITIONER.** - **EXHIBIT P12 TRUE COPY OF THE REPRESENTATION BEFORE THE CUSTODIAN BY THE 3RD PETITIONER.** - **EXHIBIT P13 TRUE COPY OF THE REPRESENTATION BEFORE THE CUSTODIAN BY THE 4TH PETITIONER.** - **EXHIBIT P14 TRUE COPY OF THE INSPECTION REPORT SUBMITTED BY THE EXPERT COMMITTEE TOGETHER WITH THE VEGETATION MAP PREPARED BY THE COMMITTEE.** W.P.(C) No.25549 of 2007 17 - **EXHIBIT P15 TRUE COPY OF THE LETTER DATED 10/10/2001 ISSUED BY THE CONSERVATOR OF FORESTS TO THE CHIEF CONSERVATOR OF FORESTS, THIRUVANANTHAPURAM.** - **EXHIBIT P16 TRUE COPY OF THE LETTER DATED 18/09/2002 SUBMITTED BEFORE THE SECRETARY TO GOVERNMENT, FORESTS AND WILD LIFE DEPARTMENT.** - **EXHIBIT P17 TRUE COPY OF THE LETTER DATED 17/08/2001 TOGETHER WITH VEGETATION MAP SUBMITTED BY THE D.F.O., NILAMBUR SOUTH TO THE CONSERVATOR OF FORESTS.** - **EXHIBIT P18 TRUE COPY OF THE LETTER DATED 15/03/2014 TOGETHER WITH THE INSPECTION REPORT SUBMITTED BY THE CHIEF CONSERVATOR OF FORESTS TO THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS.** - **EXHIBIT P19 TRUE COPY OF THE ORDER DATED 09/12/2014 ISSUED BY THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS.** - **EXHIBIT P20 TRUE COPY OF THE REPORT DATED 06/02/2015 ISSUED BY THE SENIOR LIAISON OFFICER, COFFEE BOARD, KALPETTA.** - **EXHIBIT P21 TRUE COPY OF THE REPLY DATED 10/01/2012 RECEIVED FROM THE PUBLIC INFORMATION OFFICER ATTACHED TO THE TALUK OFFICE, PERINTHALMANNA.** - **EXHIBIT P22 TRUE COPY OF THE LETTER DATED 13/02/2015 ISSUED BY THE RELATIONSHIP MANAGER OF THE HDFC BANK, ANGAMALY BRANCH TO THE 2ND PETITIONER.** - **EXHIBIT P23 TRUE COPY OF THE LETTER DATED 27/12/2014 ISSUED BY THE CHIEF MANAGER OF STATE BANK OF INDIA, CHALAKUDY BRANCH.** **RESPONDENTS' EXHIBITS: NIL** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **St/-**