Kutty@Janardhanan and Madhu Kutty v. State of Kerala and others (W.P.(C).No.30428/2011)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** # **`THURSDAY,THE 1[ST] DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944 WP(C) NO. 30428 OF 2011`** ## **`PETITIONERS:`** ``` 1KUTTY@JANARDHANAN AGED 58 YEARS, KIZHAKKEL HOUSE,, ARAIKKAPPU, KAPPAYAM TRIBAL COLONY,, MALAKKAPARA P.O., CHALAKKUDY, THRISSUR. 2MADHU KUTTY, AGED 29 YEARS S/O.KUTTY, KIZHAKKEL HOUSE,, ARAIKKAPPU, KAPPAYAM TRIBAL COLONY,, MALAKKAPARA P.O., CHALAKKUDY, THRISSUR. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.K.P.UNNIKRISHNAN ELOOR ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, TRIBAL WELFARE DEPARTMENT,, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-, 695 001.` - `2 THE DISTRICT COLLECTOR CIVIL STATION, AYYANTHOLE,, THRISSUR-680 003.` - `3 THE DIVISIONAL FOREST OFFICER MALAYATTOOR DIVISION, KODANADU, PERUMBAVOOR, ERNAKULAM DISTRICT-683 544.` - `4 THE DEPUTY COLLECTOR CIVIL STATION, AYYANTHOLE, THRISSUR-680 003.` - `5 TRIBAL DEVELOPMENT OFFICER INTEGRATED TRIBAL DEVELOPMENT PROJECT (ITDP), CHALAKUDY, THRISSUR-680 307.` - `6 THE VILLAGE OFFICER, PARIYARAM MUKUNDAPURAM TALUK, CHALAKUDY, THRISSUR-680 307.` WP(C).No.30428/2011 **2** ``` 7ATHIRAPPILLY GRAMA PANCHAYATH REP. BY ITS SECRETARY, ATHIRAPPILLY P.O.,, THRISSUR DISTRICT-680 307. 8RAJESH SUKUMARAN KIZHAKKEL HOUSE, ARAIKKAPPU,, KAPPAYAM TRIBAL COLONY, MALAKKAPARA P.O.,, CHALAKKUDY, THRISSUR-680 307. ADV.T.P.SAJAN, SPL GP (FOREST) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.30428/2011 **3** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.30428 of 2011** **---------------------------------------------Dated this the 01[st] day of December, 2022** ## **JUDGMENT** This writ petition is filed with following prayers: - i. To call for the records which lead to the issuance Ext.P8 and to issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the same. - ii. To issue a writ in the nature of mandamus or any other appropriate writ, order or direction declaring that the 2[nd] petitioner is entitled to title for forest land under occupation in respect of compartment No.T-9/12 in Araikkappu Kappayam Settlement Colony in Pariyaram Village of Mukundapuram taluk in Thrissur District; - iii. To issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents 2 to 6 to issue title for forest land under occupation in respect of compartment No.T-9/12 in Araikkappu Kappayam Settlement Colony in Pariyaram Village of Mukundapuram taluk in Thrissur District. - iv. To issue a writ in the nature of mandamus or any WP(C).No.30428/2011 **4** other appropriate writ, order or direction declaring that the respondents 2 to 6 to initiate action on Exts. P5 and P6 based on Ext.P7 and cancel Ext.P8 in respect of compartment No.T9/12 in Araikkappu Kappayam Settlement Colony in Pariyaram Village of Mukundapuram taluk in Thrissur District. v. To grant such other reliefs and costs as this Hon'ble Court may deem fit and proper to grant in the nature and circumstances of the case. **==> picture [36 x 12] intentionally omitted <==** 2. Petitioners are tribes and forest dwellers. According to the petitioners, they are entitled to the benefits under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (for short, Act 2006). It is the case of the petitioners that in violation of express provision contained in Act 2006 and in total disregard to the tradition and custom and Ext.P7 report, respondents 2 to 6 issued document of title to the 8[th] respondent. According to the petitioners, it is against the provisions of Act 2006 and the Rules framed therein. Based on the application filed by the 8[th] respondent, it is stated in the writ petition that the 7[th] WP(C).No.30428/2011 **5** respondent is going to issue construction permit for a building in the subject property. According to the petitioners, the right acquired by them is by operation of law and the same cannot be taken away. It is also stated in the writ petition that Ext.P8 also will not confer on the 8[th] respondent any right over the subject property as he was not an occupier before the year 2005. The petitioners rely on Ext.P7. It is the further case of the petitioners that no action is taken on the complaints filed by the petitioners, even after the respondents are convinced of the fact that the 8[th] respondent was nowhere there and no title can be issued in his name. Hence this writ petition. 3. Heard the learned counsel for the petitioner an the learned Special Government Pleader (Forest). 4. When this writ petition came up for consideration, the Special Government Pleader takes me through Section 6 of Act 2006. It will be better to extract Section 6(1), (2) and proviso and (3) of Act 2006: “6. Authorities to vest forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers and procedure thereof. (1) The Gram Sabha shall be the authority to WP(C).No.30428/2011 **6** initiate the process for determining the nature and extent of individual or community forest rights or both that may be given to the forest dwelling Scheduled Tribes and other traditional forest dwellers within the local limits of its jurisdiction under this Act by receiving claims, consolidating and verifying them and preparing a map delineating the area of each recommended claim in such manner as may be prescribed for exercise of such rights and the Gram Sabha shall, then, pass a resolution to that effect and thereafter forward a copy of the same to the Sub-Divisional Level Committee. (2) Any person aggrieved by the resolution of the Gram Sabha may prefer a petition to the SubDivisional Level Committee constituted under subsection (3) and the Sub-Divisional Level Committee shall consider and dispose of such petition: Provided that every such petition shall be preferred within sixty days from the date of passing of the resolution by the Gram Sabha: Provided further that no such petition shall be disposed of against the aggrieved person, unless he has been given a reasonable opportunity to present his case. (3) The State Government shall constitute a SubDivisional Level Committee to examine the resolution passed by the Gram Sabha and prepare the record of forest rights and forward it through WP(C).No.30428/2011 **7** the Sub-Divisional Officer to the District Level Committee for a final decision.” 5. A perusal of Section 6(2) will show that any person aggrieved by the resolution of the Gram Sabha may prefer a petition to the Sub-Divisional Level Committee constituted under sub-section (3) and the Sub Divisional Level Committee shall consider and dispose of such petition. It is also stated that no such petition shall be disposed of against the aggrieved person, unless he has been given a reasonable opportunity to present the case and also such petition shall be preferred within sixty days from the date of passing of the resolution by the Gram Sabha. Admittedly the petitioners have not availed this alternative remedy available as per Act 2006. This writ petition is pending before this Court from 2011 onwards. 6. Considering the facts and circumstances of the case and also in the light of the fact that the petitioners are bonafidely pursuing this writ petition, I think an opportunity can be given to the petitioners to avail the alternative remedy as per Section 6(2) of Act 2006. The petitioners shall file the WP(C).No.30428/2011 **8** petition, if any, within thirty days from today so that the appropriate authority can consider the same in accordance to Section 6 of Act 2006. Therefore, this writ petition is disposed of in the following manner: 1. The petitioners are free to file appropriate petition in tune with Section 6(2) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, within thirty days from today. 2. If such a petition is received, the appellate authority constituted as per Section 6(3) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, will consider the same and pass appropriate orders in accordance to law, after giving an opportunity of hearing to the petitioners and other affected parties, as expeditiously as possible, at WP(C).No.30428/2011 **9** any rate, within four months from the date of receipt of the petition. 3. Ext.P8 will be subject to the final decision to be taken by the appellate authority as directed above. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C).No.30428/2011 **10** ## **`APPENDIX OF WP(C) 30428/2011`** |`PETITIONER`|`EXHIBITS`| |---|---| |`Exhibit P1`|`TRUE COPY OF THE CERTIFICATE DTD.`| ||`27.06.1997.`| |`Exhibit P2`|`TRUE COPY OF THE DTD. 17.06.2003.`| |`Exhibit P3`|`TRUE COPY OF THE RELEVANT PAGE OF`| ||`ASSESSMENT REGISTER FOR THE PERIOD`| ||`2003-2004.`| |`Exhibit P4`|`TRUE COPY OF THE CERTIFICATE DTD.`| ||`18.07.2011.`| |`Exhibit P5`|`TRUE COPY OF THE COMPLAINT DTD.`| ||`20.07.2011.`| |`Exhibit P6`|`TRUE COPY OF PETITIONER DTD.`| ||`20.07.2011.`| |`Exhibit P7`|`TRUE COPY OF THE REPORT NO. 17/11`| ||`DATED 10.10.2011.`| |`Exhibit P8`|`TRUE COPY OF THE TITLE FOR FOREST LAND`| ||`DTD. 19.01.2011.`|