Chandrasekhara Panicker Vijaya Estate and Others v. District Collector Palakkad and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY,THE 08TH DAY OF NOVEMBER 2018/ 17TH KARTHIKA, 1940** ## **WP(C).No. 4501 of 2018** ## **PETITIONERS:** - **1 CHANDRASEKHARA PANICKER VIJAYA ESTATE, VADASSERY P.O.,PALAKKAD-678641, MOB : 9496142527.** - **2 RADHAMANI W/O.GOPALAKRISHNAN, VIJAYA ESTATE, VADASSERY P.O., PALAKKAD-678641, MOB : 9846910880.** - **3 THULASEEBHAYI W/O.LATE VIJAYA PANICKER, VIJAYA ESTATE,VADASSERY P.O., PALAKKAD-678641,MOB : 8547330601.** - **4 RAMESH BABU S/O.LATE RAMAN NAIR, PAZHUTHUNDATHIL HOUSE, PEROOR P.O., PALAKKAD-686637,MOB : 9447136251.** - **5 PRASANNA KUMARI D/O.LATE RAMAN NAIR, KOTTAPPURATH HOUSE, PAZHAYANNUR P.O., VADAKKETHARA, THRISSUR DISTRICT, MOB : 9962308366.** - **6 JALAJAMONI D/O.LATE RAMAN NAIR, KOTTAMKUNNATHU HOUSE, CHERAYA P.O., KONDOTTU, PALAKKAD-678631,MOB : 04810535943.** - **7 JAYASREE D/O.LATE RAMAN NAIR, PUNNANVEETTIL HOUSE, KALLUVAZHY P.O., THIRUVAZHIYODU, PALAKKAD679514,MOB : 09489452063.** - **8 GEETHAKUMARI M.R.** - **D/O.LATE RAMAKRISHNA PANICKER, VALOKKOTTUMADATHIL HOUSE, PUTHANNOOR P.O.,MUNDOOR, PALAKKAD-678592, MOB: 9072984368.** W.P.(C).No.4501/18 2 - **9 ASWATHY M.R.** - **D/O.LATE RAMAKRISHNA PANICKER, MUNDANMELIL HOUSE, NJAKKATTIRI P.O.,KANNANNUR, PATTAMBI, PALAKKAD-679303,MOB : 9539675060.** - **10 SUSHAMA DEVI** **W/O.LATE MURALEEDHARAN NAIR, MOHANALAYAM HOUSE, KUNDALASSERY P.O.,KERALASSERY, PALAKKAD678641,MOB : 9833615450.** - **11 AMBIKA** **W/O.LATE MOHANA KUMAR, MOHANALAYAM HOUSE, KUNDALASSERY P.O.,KERALASSERY, PALAKKAD678641,MOB : 9447607347.** - **12 SURYA** **D/O. LATE MOHANA KUMAR,MOHANALAYAM HOUSE, KUNDALASSERY P.O.,KERALASSERY, PALAKKAD678641,MOB : 8086932647.** - **13 PRASANNA KUMARI M.R. D/O.LATE RAMAKRISHNA PANICKER, MOHANALAYAM HOUSE, KUNDALASSERY P.O.,KERALASSERY, PALAKKAD678641,MOB :9447607347.** - **14 UNNIKRISHNAN M.R.** **D/O.LATE RAMAKRISHNA PANICKER,MOHANALAYAM HOUSE, KUNDALASSERY P.O.,KERALASSERY, PALAKKAD678641,MOB :9745590523.** - **15 C.A.RAMANKUTTY** **S/O.LATE ARUMUGHAN, MANJU NIVAS, MAYILAMPULLY, NAMBULLIPURA, MUNDOOR, PALAKKAD-678592,MOB : 9446238282.** **BY ADVS. SRI.P.BABU KUMAR SRI.P.YADHU KUMAR SRI.VISHNU BABU** W.P.(C).No.4501/18 3 ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR**| |---|---| ||**CIVIL STATION, PALAKKAD-678001.**| |**2**|**THE ADDITIONAL THASILDAR TALUK OFFICE**| ||**PALAKKAD-678001.**| |**3**|**THE DIVISIONAL FOREST OFFICER**| ||**DIVISIONAL FOREST OFFICE, OLAVAKKODE, PALAKKAD-**| ||**678002.**| |**4**|**THE FOREST RANGE OFFICER**| ||**FOREST RANGE OFFICE, OLAVAKKODE,PALAKKAD-**| ||**678002.**| |**5**|**THE PRINCIPAL SECRETARY**| ||**REVENUE (L) DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**ANNEX NO.II, THIRUVANANTHAPURAM-695001.**| |**6**|**THE PRINCIPAL SECRETARY**| ||**FOREST WILD LIFE (C) DEPARTMENT, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695001.**| ||**BY ADVS.**| **SRI.SANDESH RAJA.K. SPL. G.P. FOREST** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).No.4501/18 4 ## **JUDGMENT** ## 1. This writ petition is filed seeking the following reliefs:- “i)Issue a writ of mandamus or any other appropriate writ order or direction commanding respondents 3 to 6 not to disturb the agricultural operation of the petitioners and not to evict the petitioners in violation of the directions sworn to the Government in the judgment in OP No.18467/2002. ii)issue a declaration that petitioners are eligible for pattayam as per Rule 6 of the Kerala Land Assignment Regularisation of Occupation of Forest land prior to 1.1.1977 and joint verification report.” 2.Heard learned counsel for the petitioner and the learned Special Government Pleader for Forests. 3.The contention of the learned counsel for the petitioners is that the petitioners are in possession and enjoyment of 19.96 Acres of land in Re-survey No.7/1,7/2,7/4 and 7/7 in Block No.7, Keralassery village, Palakkad. The contention is that the land was in the possession of the petitioners and their predecessor-in-interest prior to 1.1.1997. It is stated that the petitioners are residing in the properties and are cultivating the same. Relying on Exhibit P1 joint verification report, the petitioners contend that they are entitled to be assigned the W.P.(C).No.4501/18 5 land in terms of the Kerala Land Assignment (Regularization of Occupations of Forest Lands prior to 1.1.1977) Special Rules 1993. It is submitted that the requests made by the petitioners are pending before the respondents and that they are entitled to be issued pattayam in respect of the property held by them as found in the joint verification report on the basis of 1993 Rules. 4.The learned Government Pleader has placed a statement on record. It is submitted that 1993 Rules are applicable only with regard to 'land' as defined in the said Rules. It is stated that the said Rules would apply only to Forest lands subjected to joint verification as defined in sub-clause (e) which have been transferred from the Forest Department to the Revenue Department and covered in the resurvey reports and the list of land recommended to Government of India for concurrence under Section 2 of the Forest (Conservation) Act, 1980 but does not include land in wild life sanctuaries. It is the contention of the learned Government Pleader that only those lands in respect of which concurrence of the Central W.P.(C).No.4501/18 6 Government is sought under the Forest Conservation Act, 1980 would be available for assignment in terms of 1993 Rules. In the instant case, it is submitted that the predecessorin-interest of the petitioners was one Sri.Adam Bava. He had filed OA No.1178/1974 before the Forest Tribunal, Palakkad for exemption of 29.20 Acres of land, which includes the properties which the petitioners are occupying also. The Tribunal initially allowed the OA on 09.2.1978. The Government filed I.A.No.371/1985. The review was allowed by the Forest Tribunal and the order dated 9.2.1978 in OA No.1178/1974 was set aside and the O.A. was dismissed. Exhibit R3(b) produced by the learned Government Pleader along with the statement is the order dismissing the O.A. It is stated that MFA No.664/1998 and 708 of 1998 had been filed against Exhibit R3(b) and these MFAs were dismissed by Exhibit R3(c) order. The occupants of the vested forests were ordered to be evicted. It is further submitted that it is clear from the judgment of the Apex Court in **Nature Lovers Movement v. State of Kerala and others** [(2009) 5 SCC 373] that the assignment of forest land prior to 1.1.1977 which W.P.(C).No.4501/18 7 was directed to be regularised was the encroachment as shown in the said judgments amounting to an extent of 28,588.159 hectars. It is stated that the list of such encroachments and the forest divisions and districts where such encroachments were in existence are seen from the judgment itself. It is stated that there is no property in Palakkad district which is included in the 28,588.159 hectars made mention of in the judgment of the Apex Court. It is further stated that the though there was a proposal with regard to the assignment of 10000 hectares of forest land at the relevant time, the judgment itself would clearly reveal that no orders had been passed by the Government taking any decision as to the assignment of any further land and no proposal had been mooted before the Central Government also for any permission in respect of any such land. It is submitted by the learned Special Government Pleader that the land held by the petitioners is included in the list proved in Exhibit P5 counter affidavit and Exhibit P6 judgment of this Court specifically directed the removal of encroachments from the forest land after issuing notices. It is, therefore, contended W.P.(C).No.4501/18 8 that the reliefs sought for in this writ petition cannot be granted. - 5.I have considered the contentions advanced. The Kerala Land Assignment (Regularization of Occupations of Forest Lands prior to 1.1.1977) Special Rules 1993 defines land at Clause (f) as follows:- - “(f)”Land” means the Forest land subjected to joint verification as defined in sub-clause(e) and Cardamom Hill Reserve land which are converted for non-cardamom cultivation prior to 1-11977 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.” - 6.The joint verification referred to in the said Rules means verification of forest lands conducted by the revenue authority to establish eligibility of for regularization of occupation of said lands prior to 1.1.1977. Clause (g) of Section 2 reads as follows:- W.P.(C).No.4501/18 9 “Regularisation of occupation” means regularization of occupation prior to 1.1.1977 of forest land and lands in Cardamom Hill Reserve of Idukki District.” - 7.I am of the opinion that since it is the specific case of the learned Special Government Pleader that the land in question which are held by the petitioners are not land which are covered by the definition of the Rules, the relief sought for by the petitioner cannot be granted. It is only in respect of land which have been transferred from the Forest Department to Revenue Department and recommended to the Government of India for concurrence under Section 2 of the Forest (Conservation) Act, 1980 that the rules can be applied. Further, the Rules would have no application in a case where the lands in question have been found to be vested forests or ecologically fragile lands in terms of either the 1971 Act or the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 Act. It is only in respect of the specified lands as pointed out and which are covered by the definition of 'land' in terms of the Rules that any application W.P.(C).No.4501/18 10 for assignment is entertainable in terms of the Rules. In the above view of the matter, I am of the opinion that the reliefs sought for in this writ petition cannot be granted. The writ petition fails and is accordingly dismissed. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.4501/18 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE JOINT VERIFICATION PERFORMA AND MAHAZER NIL.** **EXHIBIT P2 TRUE PHOTOCOPY OF THE PROCEEDINGS OF DISTRICT COLLECTOR DATED 20.9.2017.** **EXHIBIT P3 TRUE PHOTOCOPY OF THE PROCEEDING DATED 1.12.2017.** **EXHIBIT P4 TRUE PHOTOCOPY OF THE NOTICE DATED 22.12.2017.** - **EXHIBIT P5 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE DEPUTY SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT DATED 23.9.2011.** **EXHIBIT P6 TRUE PHOTOCOPY OF THE JUDGMENT IN O.P.NO.18467/2002 OF THIS HON'BLE COURT DATED 4.9.2014.** - **EXHIBIT P7 TRUE PHOTOCOPY OF THE JUDGMENT DATED 12.1.2018 IN W.P.(C) NO.40214/2017 OF THIS HON'BLE COURT.** - **EXHIBIT P8 TRUE PHOTOCOPY OF THE JUDGMENT DATED 21-2-2018 IN WPC.NO.28849/17 OF THIS HON'BLE COURT.** **EXHIBIT P9 TRUE PHOTOCOPY OF THE INTIMATION ISSUED BY THE ADDL.CHIEF SECRETARY TO REVENUE DATED 20.1.2018 WHICH OBTAINED UNDER THE R.I.ACT.** **EXHIBIT P10 TRUE PHOTOCOPY OF THE PROCEEDING OF THE MEETING DATED 16.8.2017** W.P.(C).No.4501/18 12 **EXHIBIT P11** - **TRUE PHOTOCOPY OF THE DRAFT OF THE AFFIDAVIT WHICH OBTAINED UNDER THE R.I.ACT.** - **EXHIBIT P12** - **TRUE PHOTOCOPY OF THE DIRECTION GIVEN BY THE OFFICE OF THE DISTRICT COLLECTOR, PALAKKAD DATED 14.3.2017 WHICH OBTAINED UNDER THE R.I.ACT.** - **EXHIBIT P13 TRUE COPY OF THE REPLY ISSUED BY THE CONSERVATOR OF FOREST DATED 24.4.2009** - **EXHIBIT P14 TRUE COPY OF THE BASIC TAX REGISTER OF DISPUTED LAND.** - **EXHIBIT P15 TRUE COPY OF THE BASIC TAX REGISTER OF DISPUTED LAND** - **EXHIBIT P16 TRUE COPY OF THE JUDGMENT IN OA NO 1178/74 OF FOREST TRIBUNAL PALAKKAD DATED 9.2.1978.** - **EXHIBIT P17 TRUE COPY OF THE SALE DEED NO 261/1980 DATED 18.2.80** - **EXHIBIT P18 TRUE COPY OF THE OWNERSHIP CERTIFICATE ON 18.7.2008 ISSUED BY PANCHAYAT DATED 18.7.2008** - **EXHIBIT P19 TRUE COPY OF THE CERTIFICATE ISSUED BY PANCHAYAT DATED NIL** - **EXHIBIT P20 TRUE COPY OF THE CERTIFICATE ISSUED BY RUBBER BOARD DATED 27.10.1987** - **EXHIBIT P21** - **TRUE COPY OF THE GO(MS) NO 172/92 DATED 3.3.1992.** W.P.(C).No.4501/18 13 ## **RESPONDENT'S EXHIBITS:** **ANNEXURE R3(A) TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION NO D-1383/77 DATED 18.3.1978. ANNEXURE R3(b) TRUE COPY OF THE ORDER DATED 16.7.1988 IN I.A NO.371/1985 OF O.A 1178/1974. ANNEXURE R3(C) TRUE COPY OF THE ORDER DATED 25.2.2000 IN MFA NO 664/1998 ANNEXURE R3(D) TRUE COPY OF THE MAHAZAR DATED 3.6.2008** **True copy** **PS to Judge**