Micheal Mathew v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940** ## **WP(C).No. 25522 of 2014** ## **PETITIONER/S:** **MICHEAL MATHEW, VAKACHERIL HOUSE, ULLANAD P.O., PALA, KOTTAYAM.** **BY ADVS.** **SRI. KURIAN GEORGE KANNANTHANAM (SR.) SRI. ASHOK KUMAR P.R. SMT. SMITHA MATHEW SRI. JIJI THOMAS** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FOREST, THIRUVANANTHAPURAM - 695 001. 2 PRINCIPAL CHIEF CONSERVATOR OF FORESTS (E&TW), THIRUVANANTHAPURAM - 695 001.** **3 FOREST RANGE OFFICER, RANGE FOREST OFFICE, KUTTIADY - 673 007.** **BY ADVS. R1 TO R3 - SRI.SANDESH RAJA.K. SPECIAL GOVERNMENT PLEADER (FOREST)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.25522 of 2014 2 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P3 notification issued by the Forest Department in the Gazette dated 04.10.2000, bearing No.C4-21437/2000, notifying the property of the petitioner and others under the provisions of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000, which came into effect from the 2[nd] day of June, 2000, with the intention of conservation and management of ecologically fragile lands, minimizing the reduction or degradation of the eco-system and biological diversity therein, and for other consequential reliefs. It is also pointed out that, the Forest Department has registered a criminal case against the petitioner under Sec.52 of the Forest Act, 1961, on account of occupation of the property by the petitioner, which was pending before this Court in a proceedings under Sec.482 of the Code of Criminal Procedure. Even though stay was granted, it was vacated consequent to certain directives issued by the apex court with respect to stay in pending criminal proceedings by this Court. Material contentions raised by the petitioner are as follows: W.P.(C) No.25522 of 2014 3 2. Petitioner purchased about 2.5 Acres of land in 1988 and petitioner was cultivating it. In the year 2000, the Government notified the land as an Ecologically Fragile Land under Sec.3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003 (hereinafter referred to as 'the Act, 2003'). Case of the petitioner is that, no information was given to the petitioner or any other owners of the land, which is mandatory under Sec.3(2) of Act, 2003. However, petitioner continued in possession and cultivated the property unaware of the notification issued. After about 9 years, the Forest officials entered the property, dispossessed the petitioner and destroyed the whole cultivation and a residential house in the property. A case was registered alleging offence under Sec.27(1)(e) of the Forest Act. Even though petitioner approached the statutory authorities, no action was taken to redress the grievances of the petitioner. It is also submitted by the petitioner that the property in question was part of the large extent of property notified under the Kerala Private Forest (Vesting and Assignment) Act. However, ultimately, as per the judgment of the apex court, a W.P.(C) No.25522 of 2014 4 portion of the property was excluded and it was part of the said property purchased by the petitioner and planted with arecanut trees. It is also submitted that, the property is not at all an ecologically fragile land, taking into account the definition of 'ecologically fragile land' provided as per the Ordinance, which was later transformed into Act, 2003, and therefore, the entire action of the respondents against the property of the petitioner and registering criminal case against the petitioner is bad and illegal. 3. A detailed counter affidavit is filed by the 1[st] respondent, justifying the stand adopted in the action initiated against the petitioner, and also submitted that, in spite of the notification of the land in accordance with the provisions of the Ordinance, petitioner continued in the premises, and it was thereupon that a criminal case was registered against the petitioner, invoking the powers conferred under the Forest Act. Anyhow, it is stated that C.C No.571/2010 is pending before the Judicial First Class Magistrate Court, Nadapuram, against the petitioner, which was booked for trespassing and clearing of under growth of the vested forest, and on investigation of 5 W.P.(C) No.25522 of 2014 the case, it is revealed that petitioner was the exowner of the land in question, and he was served with notice to appear before the Range Officer to hear him in person. However, he did not turn up. While charging the case before the J.F.C.M Court, he was also included as one among the accused persons, i.e., A6. It is also submitted that, the land involved in the case is not a revenue land, but a part of the notified Ecologically Fragile Land, and at present, the property is under the custody and control of the State. 4. That apart, it is submitted that, as per Ext.P4, a preliminary report was submitted after registering the forest offence as O.R.No.3/2009, and subsequently, investigation was carried out and the petitioner being the ex-owner of the property of the area in question was included in the list of accused persons, and prior to charging of the case, he was served with notice under Sec.160 of the Cr.P.C on 07.07.2009 by the 3[rd] respondent with the intention of hearing him in person. But, he did not turn up. Therefore, the averment made by the petitioner that he was not aware of the notification and the pending proceedings cannot be sustained under law. 5. Further, it is submitted that, as regards W.P.(C) No.25522 of 2014 6 Ext.P5, it is a matter of policy decision to be taken by the Government, since the property in question is a forest land as defined under Sec.2(b)(1) of the Act, 2003. It also qualifies the criteria of an Ecologically Fragile Land and accordingly vested with Government under Sec.3(1) of the Ordinance/Act, free from all encumbrances and notified and published the same as Ecologically Fragile Land along with other Ecologically Fragile Lands. It is also under the absolute possession and control of the State and the petitioner has no manner of right, title, interest or possession and enjoyment over the same since 02.06.2000. 6. That apart, it is submitted that, the notified area is principally covered with natural vegetation and it was not principally used for the cultivation of any crops of longer duration, such as, tea, coffee and pepper etc., and it is not at all an agricultural land. Further, the notified area predominantly supports thick vegetation and there is no agricultural cultivation. Besides, there is vested forest all around the said land. It is also submitted that, there is no residential building as averred by the petitioner. Petitioner was also entitled to approach the Custodian of the Ecologically Fragile Land as per Sec.19(3)(b) of W.P.(C) No.25522 of 2014 7 Act, 2003. Therefore, the said authority or else the petitioner had every right to approach the Forest Tribunal in accordance with Sec.10 of Act, 2003. Other contentions are also raised justifying the stand adopted by the respondents in issuing notification as well as pending criminal case against the petitioner as per the provisions of the Forest Act. 7. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition. 8. I have heard learned Senior Counsel, Sri. Kurian George Kannanthanam, appearing for the petitioner and Sri. K.Sandesh Raja, learned Special Government Pleader appearing for the respondents. Perused the pleadings and the documents on record. 9. Learned Senior Counsel for the petitioner predominantly contended that the property in question is not having the features of an Ecologically Fragile Land in terms of the provisions of the Ordinance/Act, 2003. It is also not surrounded by any vested forest, and therefore, the notification itself is bad. That apart, it is contended that, petitioner purchased the property which was exempted by the orders passed by the apex court, and has cultivated with arecanut trees. Therefore, the property was an agricultural property W.P.(C) No.25522 of 2014 8 not entitled to be notified under the provisions of Ordinance, 2000/Act, 2003. Various other contentions are also raised. 10. On the other hand, learned Special Government Pleader submitted that the property is surrounded by vested forest and is filled up with natural vegetation and no agricultural activities are carried on in the property in question. That apart, petitioner was aware of the notification issued, and in spite of the same, petitioner occupied the premises and it was thereupon that a criminal case was registered against the petitioner, after providing notice under Sec.160 Cr.P.C. Therefore, petitioner cannot be heard to say that petitioner was not aware of the proceedings pending against the petitioner. 11. Learned Special Government Pleader has also invited my attention to the judgment of a Division Bench of this Court in ' _**Planters Forum, A Private Trust, Calicut and Another v. State of Kerala and**_ _**Another**_ ' [2014 KHC 803 : 2015 (2) KLT 783], and submitted that, the Act was found to be constitutionally valid, and if at all the aggrieved person has a case, he has to approach the Tribunal or the Custodian under Sec.10 or 19 of Act, 2003. W.P.(C) No.25522 of 2014 9 12. I have evaluated the rival submissions made across the Bar, and I find that the circumstances put forth by the petitioner are founded on facts, which are disputed by the respondents. There is a clear remedy available to the petitioner under the provisions of Act, 2003, in order to ventilate the grievances on account of the notification issued by the State Government, notifying the property to be an Ecologically Fragile Land. Since the facts are disputed, this Court is not expected to adjudicate the issue, exercising the powers of judicial review under Article 226 of the Constitution of India. In that view of the matter, I am of the considered opinion that, petitioner is not entitled to get any relief against the notification issued by the State Government under Article 226, and since the petitioner is at liberty to approach the statutory authority in accordance with law. 13. Therefore, the writ petition is disposed of, leaving open the liberty of the petitioner to file any application before the statutory authority in accordance with the provisions of Act, 2003, and if any such application is preferred within a month from the W.P.(C) No.25522 of 2014 10 date of receipt of a copy of this judgment, the statutory authority shall take appropriate action in accordance with law, to finalize the proceedings at the earliest possible time, and every effort shall be made to finalize the same, at the earliest, and at any rate, within three months from the date of receipt of the application. I am also informed that a stay was granted by this Court against Ext.P4 crime registered by the Forest officials, which was finally extended for a period of two months on 21.12.2018. In that view of the matter, I think it is only appropriate that the interim order so granted by this Court against the criminal proceedings as per Ext.P4 is extended till such time the proceedings are finalized, as directed above. Accordingly, I do so. However, I make it clear that, if the petitioner is not complying with the directions made above, the respondents are at liberty to proceed against the petitioner in accordance with law, and the stay granted as above on the criminal proceedings will stand vacated. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** W.P.(C) No.25522 of 2014 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF SALE DEED DATED 25.01.1988 OBTAINED BY THE PETITIONER.** - **EXHIBIT P2** - **TRUE COPY OF THE CERTIFICATE DATED 17.01.2014 ISSUED FROM THE VATAKARA COOPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK.** - **EXHIBIT P3 TRUE COPY OF THE NOTIFICATION DATED 04.10.2000 ISSUED BY THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS.** - **EXHIBIT P4 TRUE COPY OF F.I.R. DATED 12.02.2009 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE PAPER NOTIFICATION DATED 24.02.02014 APPEARED IN THE MALAYALA MANORAMA DAILY PAPER.** - **EXHIBIT P6 TRUE COPY OF ENCUMBRANCE CERTIFICATE DATED 07.02.2014.** - **EXHIBIT P7 TRUE COPY OF THE COURT PROCEEDINGS DATED 28.09.2018 OF THE CHIEF JUDICIAL MAGISTRATE'S COURT.** RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-