N. Ramesh v. State of Kerala and Others (W.P.(C) No. 1671 of 2005-Y)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI ``` ## **`&`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` TUESDAY, THE 13[TH] DAY OF JUNE 2023 / 23RD JYAISHTA, 1945 ``` ``` WP(C) NO. 1671 OF 2005-Y ``` ## **`PETITIONER:`** ``` N.RAMESH, S/O.K. NARAYANAN RESIDING AT MARUTHARODE AMSOM, PALAKKAD TALUK. ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.LEJU T.BALAN SRI.SREEKANTH.K.R SMT.M.R.VALSA ``` ## **`RESPONDENTS:`** - **`1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO FOREST DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.`** - **`2 THE CUSTODIAN OF VESTED FORESTS VESTED FORESTS CIRCLE, KOZHIKODE.`** ``` 3 THE DIVISIONAL FOREST OFFICER OLAVAKKODE, PALAKKAD. BY ADVS. SRI.P.B KRISHNAN NAGARAJ NARAYANAN, SPL. GP ``` ``` OTHER PRESENT: ``` ``` P. DEEPAK FOR PETITIONER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **2** ## **W.P.(C)No.1671 of 2005** ## **JUDGMENT** Dated this the 13[th] day of June, 2023 **S. V. N. Bhatti, C.J.** We have heard Advocate P. Deepak and Special Government Pleader Mr. Nagaraj Narayanan for the parties. 2. The narrative can be shortened and made very brief for the view we are proposing to take for disposing of the writ petition. The petitioner prays for a direction to restore the possession of property covered by order dated 18.05.2001 in I.A.No.17 of 2001 in O.A.No.52 of 2000 on the file of the Forest Tribunal, Kozhikode. The Tribunal while considering the prayer of review made by the Custodian of Vested Forests and Conservator of Forests, Kozhikode and the State of Kerala represented by the Conservator of Vested Forests in I.A.No.17 of 2001 recorded the following finding and accepted the case of the petitioner for restoration under section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The relevant portion reads thus: **W.P.(C)No.1671 of 2005** **3** “19. It is the admitted case of the parties that some portion of 4 acres owned by the applicant was excluded by the petitioner in the review petition and the petitioners admits that the excluded property have the house, pump set, shed etc erected before the appointed day. Those indicates cultivation of a portion of the schedule property. When the fact that the total extent of the property is 4 acres is taken into account the possibility is that they were erected to cultivate the property. Usually pump sets are erected after cultivation. These in my opinion shows cultivation before the appointed day. In any view of the matter it was done with the intention of cultivating the remaining property. 20. The fact that the total extent of 4 acres is bounded by private lands and it is described as parambas in Ext. A1 cannot be lost sight of. It is very difficult to believe that a property, bounded by private properties in October 1970, measuring 4 acres, which had a house and pump set, remained uncultivated. 21. The conclusion that is available from the materials placed is that the schedule property was a cultivated land as on 10-5-1971. In other words even though the review is maintainable the petitioners were unable to adduce any satisfactory evidence to conclude that the Tribunal came to the conclusion that the **W.P.(C)No.1671 of 2005** **4** schedule property is not a private forest erroneously. It being so I find that the order of the Forest Tribunal dated 19-6-1979 is not liable to be reviewed. In view of that finding I find that the review petition is liable to be dismissed as such I dismiss the same.” 3. There is no dispute between the contesting parties that the portion excerpted above has become final and the expectation of the successful party is that 4 acres of land is vested with the petitioner as one of the co-owners entitled to receive the benefit for and on behalf of other co-owners as well. The writ petition has been filed praying for, stated in plain language, execution of order dated 18.05.2001 in I.A.No. 17 of 2001. It is noted that the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for short “Act 21 of 2005”) was enacted with effect from 02.06.2000. The said enactment is pressed into service by the respondents firstly to resist the claim of the petitioner for restoration of 4 acres of land covered by order dated 18.05.2001 and secondly the subject land is an ecologically fragile land. **5** ## **W.P.(C)No.1671 of 2005** 4. The learned counsel for the petitioner by referring to the principle laid down by this court in **State of Kerala v. Kumari Varma[1]** argues that the difference at each one of the stages under sections 3 and 4 has been rightly appreciated by the Division Bench in **Kumari Varma** ’s case. Keeping in perspective the view taken by this court in **Kumari Varma** , the argument proceeds that the subject land does not, in any way, satisfy the definition or the contingencies which are _sine qua non_ for applying the provisions of Act 21 of 2005. The finding recorded by the Tribunal, according to him, removes any contest on the subject land being ecologically fragile. Therefore, he presses for implementation of Exhibit P2 order. 5. Special Government Pleader Nagaraj Narayanan contends that the consideration of vesting and the claim of a person are different from the method and manner of vesting ecologically fragile forest land in the Government under the Act 21 of 2005. He argues with considerable force that the ratio > 1 **[2011 (1) KLT 1008]** **6** ## **W.P.(C)No.1671 of 2005** of **Kumari Varma** has not attained finality for the State has filed Civil Appeal Nos.8570 and 8571 of 2011 and they are pending adjudication before the Supreme Court. He invites our attention to the judgments reported in **A.K. Balan v. P.K. Kesavan and Another[2]** ; **P. Murukankutty v. Amarnath Shetty[3]** ; **Sreedhara Menon O.P. and Others v. K. Amarnath Shetty and Others[4]** ; **Planters Forum v. State of Kerala[5]** ; **Narayanabhat K. v. State of Kerala and Another[6]** ; **Radhakrishnan L. v. Parakulangara Devaswom and Another[7]** ; **Custodian Vested Forest Palakkad and Others v. P.V. Kunhiraman and Others[8]** and **Government of Kerala** > 2 **[2006 KHC 1019]** > 3 **[2007 (1) KHC 29]** - 4 **[2012 (1) KHC 761]** - 5 **[2015 (2) KLT 783]** - 6 **[2017 KHC 1012]** - 7 **[2018 (1) KHC 158]** - 8 **[2018 (3) KHC 768]** **7** ## **W.P.(C)No.1671 of 2005** **and Another v. Jacob Thomas Arikupuram and Others[9]** and contends that the remedy open to the petitioner is under section 10 of the Act 21 of 2005. In support of his view, he invited our attention to the principle laid down in all the reported judgments. We are not proposing to excerpt the view taken in all the judgments relied on by the Special Government Pleader for definitely these judgments relegate the parties to work out the remedy before the Tribunal. 7. After perusing the citations on which reliance is made by the Special Government Pleader, we are of the view that a fact in issue and consequence in law will have to be considered independently on the case, the petitioner chooses to place before the Tribunal and such case will have to be considered by having due regard to all the relevant circumstances. Therefore, the direction as prayed for in the background of prohibition under the Act 21 of 2005, we find it difficult to enforce the claim made by the petitioner. However, we hasten > 9 **[2019 (4) KHC 625]** **8** ## **W.P.(C)No.1671 of 2005** to add that the right declared in favour of the petitioner by Exhibit P2 needs to be worked out before the Forum under section 10 of the Act 21 of 2005 and we grant the liberty accordingly. With the above observation, the writ petition stands disposed of. Sd/- **S. V. N. Bhatti Chief Justice** Sd/- **Basant Balaji Judge** **vpv** **W.P.(C)No.1671 of 2005** **9** ## **`APPENDIX OF WP(C) 1671/2005`** |`PETITIONER’S ANNEXURES`|`PETITIONER’S ANNEXURES`| |---|---| |`EXT.P1`|`TRUE COPY OF THE JUDGMENT IN MFA`<br>`NO.117/1989 ON THE FILE OF THIS`<br>`HON’BLE COURT DATED 2.8.2000.`| |`EXT.P2`|`TRUE COPY OF THE ORDER IN IA`<br>`NO.17/2001 IN OA.NO.52/2000 ON THE`<br>`FILE OF THE FOREST TRIBUNAL, KOZHIKODE`<br>`DATED 18.5.2001.`| |`EXT.P3`|`TRUE COPY OF THE REPRESENTATION`<br>`SUBMITTED BY THE MOTHER OF THE`<br>`PETITIONER TO THE THIRD RESPONDENT`<br>`DATED 16.7.2001.`| |`EXT.P4`|`TRUE COPY OF THE REPRESENTATION`<br>`SUBMITTED BY THE PETITIONER TO THE`<br>`THIRD RESPONDENT DATED 20.8.2004.`| |`RESPONDENTS’ ANNEXURES`|| |`Annexure 1`|`True copy of the relevant page of`<br>`Ecologically Fragile Land Notification`<br>`No. EFL 10-311/2013 DATED 26.10.2013.`| |`ANNEXURE R3(A)`|`A LIST OF TREES STANDING IN THE LAND.`| |`ANNEXURE R3(B)`|`TRUE PHOTOGRAPHS SHOWING CLEAR DENSE`<br>`FOREST NATURE OF THE LAND.`| |`ANNEXURE R3(C)`|`TRUE COPY OF LETTER NO.G1-OA 164/76`<br>`DT. 31.5.2013.`| //TRUE COPY// P.A. TO JUDGE