Pankajakshi & others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 7[TH] DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944** ## **WP(C) NO. 30566 OF 2021** ## **PETITIONER/S:** 1 PANKAJAKSHI AGED 71 YEARS W/O. BHSAKARAN, CHETTAYIL HOUSE, KOZHIMALA, KANCHIYAR, IDUKKI DISTRICT,PIN-685 511 2 VILASINI AGED 57 YEARS W/O.VASU, MACHERIL HOUSE, KOZHIMALA, KANCHIYAR, IDUKKI DISTRICT,PIN-685 511 3 OMANA KUNJUKUTTY, W/O.KUNJUKUTTY, VATTUKALATHI HOUSE, MURIKKATTUKUDY KARA, IDUKKI DISTRICT,PIN-685 511 4 SAJINI , AGED 42 YEARS W/O. HARIDAS, PUTHENCHIRAYIL HOUSE, MURIKAKTUKUDY, , KANCHIYAR, IDUKKI DISTRICT,PIN-685 511 5 THANKAMMA AGED 62 YEARS W/O. VARGHESE, KOCHUKALLIL HOUSE, KURIKKATUKUDY KARA, KANCHIYAT, IDUKKI DISTRICT,PIN-685 511 6 RAJESH.K.V., AGED 33 YEARS S/O. BHASKARAN, KUZHIKKATTU HOUSE, KOZHIMALA, KANCHIYAR, IDUKKI DISTRICT,PIN-685 511 7 PRABHAKARAN AGED 60 YEARS S/O. CHOWAN, PALAKUZHIYIL HOUSE, KOZHIMALA, KANCHIYAR, IDUKKI DISTRICT,PIN-685 511 8 KAMALAMMA AGED 66 YEARS W/O. APPACHAN, KODITHOTTATHIL HOUSE, KOZHIMALA, KANCHIYAR, IDUKKI DISTRICT,PIN-685 511 9 VIJAYAMMA AGED 65 YEARS W/O. DIVAKARAN, KANIYAMPARAMBIL HOUSE, KOZHIMALA, KANCHIYAR, IDUKKI DISTRICT,PIN-685 511 10 MOLLY AGED 49 YEARS W.P.(C) No.30566 of 2021 -2- W/O. ROY, KODIYANTHARAPPEL HOUSE, MURKKATTUKUDY, KANCHIYAR, IDUKKI DISTRICT,PIN685 511 11 ANNAMMA AGED 7 YEARS W/O. KURIAN, MANDAPATHIL HOUSE, MURKKATTUKUDY, KANCHIYAR, IDUKKI DISTRICT,PIN-685 511 12 KAANCHANA AGED 56 YEARS W/O. MINICHAN, VALLIKKATTU HOUSE, MURKKATTUKUDY, KANCHIYAR, IDUKKI DISTRICT,PIN685 511 13 SALEENA JOSEPH AGED 48 YEARS W/O. JOSEPH,KOMPARAYIL HOUSE, MURKKATTUKUDY, KANCHIYAR, IDUKKI DISTRICT,PIN-685 511 14 KUNJUMON.K.M.@ AMMINI JOHN AGED 41 YEARS KIZHAKKANATH HOUSE, KOZHIMALA P.O., KANCHIYAR, IDUKKI DISTRICT,PIN-685 511 15 NANDINI AGED 67 YEARS W/O. NARAYANAN, PUTHUPARAMBIL HOUSE, KOZHIMALA, KANCHIYAR, IDUKKI DISTRICT,PIN-685 511 16 SARASAMMA AGED 64 YEARS W/O. SUKUMARA PANICKER, PUTHENVEEDU HOUSE, MARUKKATTUKUDY, IDUKKI DISTRICT,PIN-685 511 17 LILAMMA AGED 50 YEARS W/O. BIJU, PANATHOTTATHIL HOUSE, KOVILMALA, KANCHIYAR , IDUKKI DISTRICT,PIN-685 511 BY ADVS. A.C.DEVASIA C.K.JACOB ANCY MATHEW ## **RESPONDENT/S:** - 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001 - 2 LIFE MISSION , REPRESENTED BY ITS CEO, TTC TOWER, 2ND FLOOR, W.P.(C) No.30566 of 2021 -3- - S.S.COVIL RD, THAMBANOOR, THIRUVANANTHAPURAM,PIN-595 001 - 3 KAANCHIYAR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KAANCHIYAR GRAMA PANCHAYAT OFFICE, IDUKKI DISTRICT,PIN-685 511 - 4 STATE OF KERALA, REPRESENTED BY SECRETARY TO FOREST , GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001 - 5 DIVISIONAL FOREST OFFICER, DFO OFFICE, CIVIL STATION, KOTTAYAM,PIN-686 002 - 6 FOREST RANGE OFFICER, RANGE OFFICE, AYYANPANCOIL, KANCHIYAR, IDUKKI DISTRICT, PIN-685511 - 7 VILLAGE EXTENSION OFFICER, KAANCHIYAR GRAMA PANCHAYAT, KANCHIYAR, IDUKKI DISTRICT,PIN-685 511 - 8 THE KING OF KOVILMALA SRI RAMAN RAJAMANNAN, KOZHIMALA, AYYAPPANCOIL, IDUKKI DISTRICT,PIN-685 507 - 9 SPECIAL TAHSILDAR (LA) KATTAPPANA, IDUKKI DISTRICT, PIN-685 508 ## **OTHER PRESENT:** GP P.S.APPU; SPL GP FORESTS T.P.SAJAN **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **12.07.2022, THE COURT ON 07.11.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.30566 of 2021 -4- ## **JUDGMENT** Dated this the 07[th] day of November, 2022 The petitioners claim to be in ownership and possession of lands admeasuring 5 to 25 cents at a place called Kozhimala in Kaanchiyar Grama Panchayat in Idukki District. The petitioners purchased the land from the original settlers who had been in occupation for many decades. Being non-patta land, no registered sale deed was executed at the time of purchase. The petitioners constructed thatched sheds in their land for residence and have been issued with ration cards and provided with electricity connection. The Government of Kerala has introduced the 'Life Mission Scheme' with the objective of providing shelter to the landless and those who are not able to complete the construction of their residential houses. The petitioners applied under the scheme and, on W.P.(C) No.30566 of 2021 -5- being selected as beneficiaries, were disbursed the first installment of Rs.40,000/- for constructing residential buildings. Utilising the amount, the petitioners constructed the foundation of their house and were waiting for the second installment. At that stage, they were served with notices like Ext.P1, informing that the land in their possession falls within reserved forest and is demarcated as tribal land. Under the letter, the petitioners were required to produce documents to prove that the construction is not in forest land and in the absence of such document, to proceed with the construction only after obtaining NOC from the Village Officer. By Ext.P2 and similar letters, the Kaanchiyar Grama Panchayat informed the petitioners that the balance installments will be disbursed only after obtaining sanction from the Government. Aggrieved, this writ petition is seeking the following reliefs; W.P.(C) No.30566 of 2021 -6- _“i) to issue a writ of certiorari or any other appropriate writ, order to quash Ext.P6 order passed by the 6th respondent._ _ii) to issue a writ of mandamus or any other appropriate writ, order or directions, directing the respondents NO.1, 2 and 3 to disburse balance installment to the petitioners for the construction of their residential houses under life mission scheme which is sanctioned by the respondents No.1 to 3._ _iii) To declare that the petitioners are entitled to get patta to the property include in the life mission scheme scheduled by the 3rd respondent._ _iv) to issue a writ of mandamus or any other appropriate writ, order or directions, directing the 9[th] respondent to grant patta to the properties of the petitioners which is included in the life mission scheme scheduled by the 3rd respondent and also direct the 9[th] respondent to receive fresh patta application from the petitioners and assign the properties to the petitioners under Kerala Land Assignment Rules, 1964._ _v) to issue a writ of mandamus or any other appropriate writ, order or directions, directing the respondents No.1 to 3 to consider the representation filed by the petitioners and pass appropriate orders in_ W.P.(C) No.30566 of 2021 -7- _Ext.P2 reply by the 3rd respondent.”_ 2. Adv.A.C.Devasia, learned Counsel for the petitioners, contended that the petitioners are left between the devil and deep sea by the sudden stoppage of further installments. The petitioners had demolished their existing houses for constructing the new house and are now residing in temporary sheds. The foundation for the new house having been constructed, the petitioners are not in a position to rebuild their demolished house. It is contended that having disbursed the first allotment, the Panchayat is bound to disburse the balance amount. 3. It is argued that Kovilmala and nearby areas, which are now part of Kattappana Town, were part of the forest many years ago. During that time, forest settlers belonging to the Mannan community started residing in the area and their kingdom was established at Kozhimala. While so, in the year 1950, the then Government ## W.P.(C) No.30566 of 2021 -8- declared the Grow More Food Scheme pursuant to which, large number of agriculturists and coolie workers migrated to and settled in different parts of Idukki. The petitioners' predecessors were also among those group of settlers. Although the area is declared as tribal settlement area, a number of non-tribes are residing in the area. The Government refused to issue patta to the nontribe settlers. While so, as per the judgment in _**Eacharan Ittiathi v. State of Kerala [1970 KLT**_ _**1069]**_ , this Court held Section 76(a) of the Kerala Forest Act and the Rules framed thereunder to be unconstitutional. Pursuant to the judgment, the Government started issuing patta to the nontribe settled in tribal settlement areas. For that purpose, the Government issued Ext.P7 order. The petitioners are also entitled for patta as per Ext.P7. Even otherwise, there is no restriction or prohibition in the residential houses being constructed in land purchased from W.P.(C) No.30566 of 2021 -9- tribes, utilising the funds allotted under the Life Mission Scheme. 4. In reply, Adv.T.P.Sajan, learned Special Government Pleader, submitted that construction of houses under the "Life Mission Scheme” of the Government is being implemented in the Kozhimala, Pambadikkuzhi and Murikkattukudy Tribal Settlements in Kaanchiyar Grama Panchayath, within Ayyappancoil Range of Kottayam Forest Division. As stated by the petitioners, the 1[st] instalment of Rs. 40000/- each has been disbursed. So, the 8[th] respondent, the tribal King of Kovilamala, submitted a representation alleging that many of the dwellers in tribal settlements do not belonging to the tribal community, but are being granted the benefit under the Life Mission Scheme, while at the same time the benefit is denied to eligible tribe members. It is also alleged that, settlers belonging to the general community and having no ## W.P.(C) No.30566 of 2021 -10- Records of Rights under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 ('the Act') are occupying the settlements. Such non-tribal settlers were sanctioned and allotted funds without obtaining no objection certificate from the Forest Department. On enquiry, the officials found the allegations to be correct, since 18 of the beneficiaries/petitioners are non-tribals. 5. It is submitted that the area in which the petitioners are residing is within the Cardamom Hill Reserve, notified as a reserved forest. In areas notified as reserved forest, only inhabitants of tribal settlements are issued with 'record of rights' as prescribed under Rule 8(h) of the Scheduled Tribes and other Forest Dwellers (Recognition of Rights) Rules, 2007. Accordingly, record of rights was issued to the tribal inhabitants in the settlements. As per the explanation to Section 2(o) of the Act, to be ## W.P.(C) No.30566 of 2021 -11- recognised as 'other traditional forest dwellers', so as to become eligible for record of rights, non-tribes should have resided in or depended on, forest for their bonafide livelihood needs for at least three generations (75 years) immediately prior to 13.12.2005. The petitioner's specific case being that is that their predecessors had settled in the area only since 1950, they are not entitled to be recognised as other traditional forest dwellers. 6. It is submitted that various non-tribal settlements have come up pursuant to the declaration of the Grow More Food Scheme. The contention that the predecessors-in-interest of the petitioners had settled in Kovilmala pursuant to the Grow More Food Scheme is refuted by pointing out that all occupants of forest lands under the Grow More Food Scheme were included in the joint verification lists prepared with respect to the respective ranges. The persons so ## W.P.(C) No.30566 of 2021 -12- identified were assigned their lands. The Kaanchiyar Grama Panchayat included the petitioners as beneficiaries under the life mission scheme and allotted the first installment, without considering these crucial aspects. 7. The petitioners are in possession of their lands based on a purported transfer affected by the previous owners, who admittedly were in possession as settlers. Even according to the petitioners, their predecessors-in-interest had started residence in their lands after 1950. The petitioners' name are not included after the survey conducted by the Government based on the direction in _**Eacharan Ittiathi** ._ The area in which the petitioners are residing is within the Cardamom Hill Reserve and therefore, a notified reserved forest. As such, the right over the land in the petitioner's possession will depend on whether they fall within the definition of 'other ## W.P.(C) No.30566 of 2021 -13- traditional forest dwellers' under the Act. For that, the applicant should have resided in or depended on forest for his bonafide livelihood needs for at least three generations (75 years) immediately prior to 13.12.2005. The admitted case of the petitioners being that their predecessors-in-interest were residing in the land since 1950, the petitioner are not entitled to claim the status of other traditional forest dwellers. Being so, there is substance in the allegation that the life mission funds are being allotted to the non-tribals also. The Central Government had introduced the Act, in terms of the Apex Court decision in _**T.N.Godavarman**_ _**Thirumulpad v. Union of India and others [(1997)**_ _**2 SCC 267].**_ After introduction of the Act in 2006, the petitioners cannot rely on Ext.P7 Government order to contend that they are entitled for assignment of the land in their possession. Their remedy, if any, is to move W.P.(C) No.30566 of 2021 **==> picture [23 x 8] intentionally omitted <==** against the Kaanchiyar Grama Panchayat for having caused them to demolish their existing houses and to construct the foundation of the new house and thereafter stopping the allotment of funds without notice. The petitioners can also approach the Government seeking a favourable decision on the request for grant of NOC by the Forest Department. The writ petition is accordingly dismissed, with liberty to approach the appropriate forum. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.30566 of 2021 -15- ## **APPENDIX OF WP(C) 30566/2021** |PETITIONER|EXHIBITS| |---|---| |Exhibit P1|TRUE COPY OF THE NOTICE ISSUED BY THE| ||7TH RESPONDENT IN FAVOUR OF 1ST| ||PETITIONER DATED 6.10.2020| |Exhibit P2|TRUE COPY OF THE REPLY ISSUED BY THE| ||3RD RESPONDENT ON THE BASIS OF THE| ||COMPLAINT FILED BY THE PETITIONERS| ||11.2.2021| |Exhibit P3|TRUE COPY OF THE NOTICE DATED| ||28.4.2021 TO THE 2ND PETITIONER,| ||NOTICE DATED 6.10.2020 TO THE 4TH| ||PETITIONER, NOTICE DATED 28.4.2021 TO| ||THE 5TH PETITIONER, NOTICE DATED| ||28.4.2021 TO THE 6TH PETITIONER,| ||NOTICE DATED 28.4.2021 TO THE 7TH| ||PETITIONER, NOTICE DATED 6.10.2020 TO| ||THE 8TH PETITIONER, NOTICE DATED| ||6.10.2020 TO THE 9TH PETITIONER,| ||NOTICE DATED 6.10.2020 TO THE 10TH| ||PETITIONER, NOTICE DATED 28.4.2021 TO| ||THE 11TH PETITIONER, NOTICE DATED| ||6.10.2020 TO THE 12TH PETITIONER,| ||NOTICE DATED 6.10.2020 TO THE 14TH| ||PETITIONER, NOTICE DATED 6.10.2020 TO| ||THE 15TH PETITIONER, NOTICE DATED| ||6.10.2020 TO THE 16TH| ||PETITIONER,NOTICE DATED 6.10.2020 TO| ||THE 17TH PETITIONER, ALL TOGETHER| ||TOTAL 14 NUMBERS OF NOTICES ISSUED BY| ||TE 7TH RESPONDENT| |Exhibit P4|TRUE COPY OF THE PHOTOGRAPHS| ||EVIDENCING THE CONSTRUCTION OF| ||BASEMENT OF THE PETITIONERS NO.1 TO 17| ||RESIDENTIAL BUILDING EXCEPT THE PHOTOS| ||OF PETITIONERS NO.3, 5,6, AND 13 ALL| ||TOGETHER 13 SERIES OF PHOTOGRAPHS| |Exhibit P5|TRUE COPY OF THE AGREEMENT JOINTLY| ||EXECUTED BY THE 12TH PETITIONER AND| ||THE 3RD RESPONDENT DATED 12.8.2020| |Exhibit P6|TRUE COPY OF THE NOTICE ISSUED BY THE| ||3RD RESPONDENT TO THE 6TH RESPONDENT| ||DATED 30.9.2020 WHICH IS RECEIVED BY| ||SABU, KOCHUPARAMBIL UNDER RTI ACT| -16- ## W.P.(C) No.30566 of 2021 DATED 24.9.2020 Exhibit P7 TRUE COPY OF THE GOVERNMENT ORDER DATED 20.6.2020 Exhibit P8 TRUE COPY OF THE QUESTION AND ANSWER FROM THE WEBSITE OF LIFE MISSION PROJECT ISSUED BY THE 2ND RESPONDENT LIFE MISSION UNDATED