K.J. Philip Kuthiramattom House v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY ,THE 01ST DAY OF NOVEMBER 2018 / 10TH KARTHIKA, 1940** ## **WP(C).No. 13970 of 2016** ## **PETITIONER/S:** **K.J. PHILIP KUTHIRAMATTOM HOUSE,PAYYANADAM P.O., KRAPADAM, MANNARKKAD COLLEGE(VIA),PALAKKAD DISTRICT.** **BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 CUSTODIAN (ECOLOGICALLY FRAGILE LANDS) ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FOREST(WORKING PLAN AND RESEARCH), FOREST HEAD QUARTERS, THIRUVANANTHAPURAM-695 014.** - **3 THE DIVISIONAL FOREST OFFICER MANNARKKADU, PALAKKAD-678 581.** **BY ADV. SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 13970 of 2016** 2 ## **J U D G M E N T** Exts.P7 and P8 orders are under challenge in this writ petition on the ground that those orders were passed after the demise of the petitioner's father and therefore, those orders cannot have any force in law. 2. Petitioner's father Joseph died on 30.07.2013. 3.88 acres of properties covered by Ext.P3 proceedings and which was in possession of late Joseph was notified under the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003 ('EFL Act' for short). Late Joseph had preferred an application under Section 10 A of the EFL Act for exemption of the 3.88 acres of land covered by Ext.P3 from the notification, submitting Ext.P6 application which was disposed of, as per Ext.P7 order dated 29.11.2013, subsequent to the death of the petitioner's father. Petitioner alleges that the decision of the Government under Section 10(A)(4) of the EFL Act is a nullity, as the said **WP(C).No. 13970 of 2016** 3 decision was taken against a dead person. It is also pointed out that even the report of the Claim Dispute Redressal Committee based on which Ext.P7 decision was taken, was submitted only on 29.10.2013, which also was after the death of petitioner's father. Petitioner therefore seeks to set aside Ext.P7 order and for a direction to reconsider the application after a fresh adjudication on Ext.P6 application after affording an opportunity of hearing to petitioner. 3. The respondents have filed a counter affidavit stating that the property which is the subject matter of the case was already notified as Ecological Fragile Land as per Ann.R3(a) notification dated 20.10.2010. The application submitted by the petitioner's father under Section 10(A) of the Act before the Custodian of EFL, Thiruvananthapuram was rejected by Government as per Ann.R3(b) order dated 29.11.2013. It is stated that Government passed the order in accordance with the provisions contained in **WP(C).No. 13970 of 2016** 4 Section 10(A) of the Act. 4. I heard the learned Senior Counsel for the petitioner and learned Special Government Pleader. 5. The contention raised by Sri.Jaju Babu, the learned Senior Counsel for the petitioner is that any order passed against a dead person is a nullity and therefore a fresh consideration is necessary on the application after hearing the legal heirs. At the same time, Sri.Sandesh Raja, the learned Special Government Pleader argues that Ext.P7 is not an order passed by the civil court so as to nullify the same. On the other hand the decision of Government in Ext.P7 on Ext.P6 application was with respect to the nature of the property and it was rendered in exercise of the statutory power conferred under the provisions contained in the EFL Act and such an administrative order would not amount to nullity on the ground that the person, who submitted application is no more. 6. Ext.P7 order shows that an EFLCDR Committee **WP(C).No. 13970 of 2016** 5 which was constituted under Section 10(B) of Kerala Forest (Vesting and Management of Ecologically Fragile Land) Amendment Act, 2009, submitted an inspection report in which it was stated that the land in question is predominantly covered with naturally grown trees and it is a steep and sloppy area with dense undergrowth etc., contiguous to vested forest having vast extent of land. The recommendation made by the Committee is to maintain the area from the purview of Kerala Forest (Vesting and Management of Ecologically Fragile Land) Amendment Act, 2009. It is after accepting the recommendation of the EFLCDR Committee, to maintain the land as Ecologically Fragile Land that the application submitted by the petitioner's father was rejected. On the basis of Ext.P7 decision, the Divisional Forest Officer was requested to take steps to maintain this particular land as Ecologically Fragile Land. It is therefore stated that a decision rendered on the status of the land cannot have any **WP(C).No. 13970 of 2016** 6 difference or cannot have any effect on the death of the applicant. 7. Learned Senior Counsel relied on the Division Bench judgment dated 23.03.2016 of the High Court of Madras in Tax Case Appeal No.199 of 2016 and the judgment in **Savithriammal v. State of Tamil Nadu** [2006 (3) MLJ 389] in support of the contention that the order passed against a dead person is a nullity. 8. At the same time, the learned Special Government Pleader relying on the judgments in **Smt.Lila Vati Bai v. State of Bombay** [AIR 1957 SC 521], **Gopalakrishnan and others v. Government of Tamilnadu and others** [2006 KHC 1694] as well as **Varkey v. District Collector:** [1979 KLT 218] argued that the death of petitioner's father cannot have any impact on Ext.P7 decision of Government. 9. In order to determine whether a reconsideration is necessary on the application filed under Section 10A, it is necessary to examine the procedure to be followed on an application under **WP(C).No. 13970 of 2016** 7 Section 10A and to the judgments relied on by both sides. 10. In the judgment dated 23.03.2016 of the Madras High Court in the Tax Appeal, the Division Bench was considering a case where the Commissioner of Income Tax issued a show cause notice under Section 263 of the Income Tax Act, after three months of death of the assessee. The show cause notice was returned with the endorsement 'addressee died'. Thereafter the very same show cause notice addressed to the deceased assessee was served on his son and the department continued the proceedings and set aside the original assessment order. The appeal filed against that order was allowed by the Tribunal. The Commissioner of Income Tax challenged it before the High Court with the contention that notice issued against a dead person, under Section 292BB of the Act is not a nullity. The Division Bench observed that there is distinction between initiating proceedings against a dead person and continuing proceedings **WP(C).No. 13970 of 2016** 8 after the death of a person. It was further found that the appearance of the son of the assessee would not validate the proceedings, so as to invoke Section 292BB of the Act. It was further found that the liability of legal heirs would have arisen only if an order was passed against the assessee under Section 263. In that case Department chose to pursue the matter even after it came to know about the death of the assessee with the very same notice. In the above circumstances, the Tax Appeal filed by the Revenue was dismissed. 11. In the present case the decision is on an application submitted by the petitioner's father. There was no hearing or any adjudication. The final decision is arrived at in accordance with the provisions in the Act. 12. The judgment of the Madras High Court in W.A.No.2105 of 2004, relied on by the Senior Counsel was in respect of the land acquisition proceedings initiated after the death of the owner of the **WP(C).No. 13970 of 2016** 9 property. Notification under Section 4, enquiry proceedings under Section 5A and declaration under Section 6 of the Land Acquisition Act, were found issued in the name of the father of the appellant despite her objection that father died in 1987, against the notification issued in the year 1995. It was found that notification issued in the name of dead person and the proceedings pursuant to that cannot be sustained. 13. As already found, in this case no proceedings were initiated against the father of petitioner. The Government had only taken a decision on the application submitted by the deceased. 14. In **Smt.Lila Vati Bai v. State of Bombay** [AIR 1957 SC 521], the Constitution Bench was considering a case where the order of requisition passed under Section 6(4)(a) of the Bombay Land Requisition Act, 1948 as well as the vires of the Act were challenged. One of the contentions was that the order of requisition was directed against the husband **WP(C).No. 13970 of 2016** 10 of the petitioner who was dead at the time when order was passed. The Apex Court held that an order under Section 6(4)(a) of the Act was not in the nature of an order in judicial proceedings between Government and other parties. If the proceedings were intended by the Act in the sense of judicial or quasi judicial proceedings between named parties, it could have been said that an order passed against a dead man is a complete nullity. It was found that it did not affect the enforceability of the order. It could affect only the lodger who had been, and the petitioner, who had either no complaint or was very well aware of the order. Therefore the contention of petitioner was found unsustainable. 15. In the judgment of this Court in **Varkey v. District Collector** [1979 KLT 218], this Court found that an award under the Land Acquisition Act is not one passed against a particular person but it is made in respect of the property acquired. Therefore, the contention that the award is a nullity was rejected. **WP(C).No. 13970 of 2016** 11 16. In the judgment of Madras High Court in **Gopalakrishnan and others v Government of Tamilnadu and others** [2006 KHC 1694], it was held that the normal principle that proceedings against a dead person is a nullity cannot be imported to proceedings under the Land Acquisition Act, 1894, unless it was established that the factum of death was brought to the notice of the authorities at the appropriate stage. It was also found that the proceedings under the Land Acquisition Act provides sufficient opportunities not only to owners but also to all persons interested, to object. The authorities need not find out whether the owner is dead or alive. 17. In the present case, the decision is in respect of application under Section 10 A of EFL Act which reads as follows: - **“[10.A. Dispute Redressal in respect of lands having an extent of not more than two hectares.-** - (1) Notwithstanding anything contained in Section 10, if any owner of the land which has been notified under Section 3 and having an extent of not more than two hectares as on 2[nd] day of June, 2000 has any dispute as to whether such land is an ecologically fragile land or not, may file an application before the Principal Chief **WP(C).No. 13970 of 2016** 12 Conservator of Forests for the settlement of such dispute: Provided that no dispute in respect of any land which was already been decided by the Tribunal under Section 10 shall be re-opened under subsection (1). (2) On receipt of an application under subsection(1), the Principal Chief Conservator of Forests shall refer the dispute to the Ecologically Fragile Land Claim Dispute Redressal Committee constituted under Section 10B and shall if any proceedings pertaining to the land referred to in the said application is pending before any Tribunal, communicate the fact to the said Tribunal and on such communication further proceedings in respect of said land before the Tribunal shall stand suspended. (3) On the reference under Section (2), the Ecologically Fragile Land Claim Dispute Redressal Committee shall after inspecting the land in dispute furnish a detailed report within six months from the date of receipt of the application to the Principal Chief Conservator of Forests regarding the nature of the land, trees and other vegetation on the land. (4) Immediately on receipt of the report under subsection (3), the Principal Chief Conservator of Forests shall forward the same with his recommendations to Government and the decision of the Government thereon shall be final. (5) If the decision under sub-section (4) is that any land or portion thereof is an ecologically fragile land, the Tribunal shall at the option exercised by the applicant, within such time as may be prescribed, continue the proceedings suspended temporarily under sub-section (2) in respect of such land. (6) If the decision under sub-section(4) is that any land or portion thereof is not an ecologically fragile land, the custodian shall, as soon as may return the possession of such land or portion thereof, as the case may be, to the owner of such land and that the said land shall not be purported to have been vested in the Government at any time under the provisions of this Act, and in respect of the land which is returned, the Tribunal shall put an end to the proceedings **WP(C).No. 13970 of 2016** 13 which is pending before the Tribunal and suspended temporarily under sub-section(2) and pass orders thereon. - (7) No application for settlement of dispute under this section shall be filed after the expiry of six months, as the case may be, from the date of publication of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Amendment Act, 2009 or from the date of notification declaring such land as ecologically fragile land under Section 3. - (8) The form, the manner and fees for filing an application under sub-section (1) shall be such as may be prescribed.” 18. The aforesaid provision does not envisage a hearing or adjudication on the application either before the Chief Conservator of Forests (CCF) or before the Committee constituted under Section 10B or before the Government before it takes a decision. What is provided is that CCF has to refer the application to the Committee constituted under Section 10(B) of the Act, 2003; the Committee has to furnish the report to the CCF, as to the nature of the land after conducting inspection; the CCF has to forward it along with his recommendation to the Government and Government has to take a decision. No personal hearing or adjudication is envisaged before any of these authorities. Therefore, it cannot be **WP(C).No. 13970 of 2016** 14 said that the order passed by the Government is a nullity, just because the decision was rendered subsequent to the death of the petitioner's father. Even if the petitioner's father was alive, there would not have been any personal hearing or adjudication adducing evidence. Therefore, I do not find any illegality in the orders Exts.P7 and P8. In the judgment in **Planter's Forum v. State of Kerala** [2015 (2) KLT 783] which upheld the validity of the EFL Act, the parties who challenged the notification were granted one month's time to submit application before the Forest Tribunal under Section 10(1). Petitioner will also be free to approach the Tribunal within a period of 'one month' from the date of receipt of a copy of the judgment. The writ petition is accordingly dismissed. Sd/- **P.V.ASHA, JUDGE.** AS **WP(C).No. 13970 of 2016** 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **P1 COPY OF THE PURCHASE CERTIFICATE DTD.30.12.1982 IN LA 227/82 OF THE MANNARKADU LAND TRIBUNAL. P2 COPY OF THE JUDGMENT DTD.26.3.1997 IN OP NO.2018/1994 OF THIS HON'BLE COURT. P3 COPY OF THE RECEIPT DTD.16.9.1998 SHOWING THE RESTORES POSSESSION OF 3.88 ACRES IN THE NAME OF PETITIONER'S FATHER. P4 COPY OF THE JUDGMENT DTD.22.2.2000 IN OP NO.2544/1999 OF THIS HON'BLE COURT. P5 COPY OF THE DEATH CERTIFICATE DTD.19.8.2013 ISSUED BY THE KUMARAMPUTHUR GRAMA PANCHAYAT IN FAVOUR OF PETITIONER'S FATHER. P6 COPY OF THE AFFIDAVIT SUBMITTED BY THE PETITIONER'S FATHER BEFORE THE 2ND RESPONDENT ON 25.2.2008 IN SUPPORT OF THE APPLICATION. P7 COPY OF THE LETTER NO.13521/E2/2013/F & WLD DTD.29.11.2013 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. P8 COPY OF THE INTIMATION VIDE NO.DFL-7177/08 DTD.11.12.2013 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.** ## **RESPONDENT'S ANNEXURES:** **ANN.R3(A) TRUE COPY OF THE NOTIFICATION NO.C421437/2000 DATED 20.10.2000 AND PUBLISHED IN KERALA GAZETTE NO.I DATED 2.01.2001.** **ANN.R3(B) TRUE COPY OF THE ORDER NO.13521/E2/2013/F&WLD DATED 29.11.2013.**