Rosamma George and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942** ## **WP(C).No.21815 OF 2012(B)** ## **PETITIONERS:** - **1 ROSAMMA GEORGE AGED 57 YEARS W/O.GEORGE JOSE THIRUVALLA HOUSE NOW RESIDING AT KAVIL HOUSE T.C 3/1599 KESAVADASAPURAM KOWDIAR THIRUVANANTHAPURAM** - **2 ROY GEORGE, S/O.GEORGE JOSE, MANDAMALA ESTATE LUKKIDI P.O KUNNATHIDAVAKA VILLAGE VYTHIRI TALUK WAYANAD DISTRICT** - **3 RONNIE GEORGE S/O.GEORGE JOSE, MANDAMALA ESTATE LUKKIDI P.O KUNNATHIDAVAKA VILLAGE VYTHIRI TALUK WAYANAD DISTRICT PETITIONERS 1 TO 3 REPRESENTED BY POWER OF ATTORNEY HOLDER DR.N.C CHERIAN S/O.CHERIAN NAMBUDAKATH HOUSE CHEVAYOOR P.O NELLICODE KOZHIKODE** ## **BY ADV. SRI.M.C.JOHN** ## **RESPONDENTS:** **1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, FOREST & WILD LIFE DEPARTMENT, SECRETARIAT, TRIVANDRUM PIN - 695 001.** **2. THE CUSTODIAN OF VESTED FORESTS, OLAVAKODE PALAKKAD, PIN 678 008.** **3. THE DIVISIONAL FOREST OFFICER, SOUTH WAYANAD DIVISION, KALPETTA, WAYANAD - 673 121.** WPC.No.21815/2012 -2- **4. WAYANAD - 673 121.** **SRI SANDESH RAJA-SPL GP (FORESTS)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-09-2020, THE COURT ON 15-09-2020 DELIVERED THE FOLLOWING:** WPC.No.21815/2012 -3- ## **JUDGMENT** ## **Dated this the 15[th] day of September, 2020** The petitioners, together, own 10.34 Acres of land in Re-Sy. No. 198 of Kunnathidavaka Village in Vythiri Taluk. According to the petitioners, the properties formed part of a larger extent of an estate known as Mandamala estate originally owned by Edavalath Kovilakath Sankara Varma Raja. The estate had a total extent of 303.92 Acres comprised in old Sy. No.187. The petitioners' case is that the said land was leased to one Thengumoottil Varghese for 45 years as per registered Kanam deed No.601 of 1928, of Sub-Registry office Vythiri. The jenmom rights over the properties were purchased as per registered document No. 2818 of 1962 by Sri K.N.Pothen, the power of attorney holder of the legal heirs of Varghese. The petitioners submit that the 1[st] petitioner’s husband purchased 50 Acres as per registered sale deed No.1375 of 1963 and the 1[st] petitioner purchased 82.84 Acres as per registered sale deed No.198 of WPC.No.21815/2012 -4- 1968. The entire property of the extent of 132.84 Acres, purchased as above, were subject matter of Ext.P1 Taluk Land Board proceedings No.205 of 1973, wherein the properties were exempted as plantations. The 1[st] petitioner later disposed of 69.50 Acres to different persons by the year 1976, retaining only 13.34 Acres. Her husband had transferred 35 Acres of the 50 Acres, as per document No.412 of 1974 and the balance extent of 15 Acres was available with him. The total extent of 28.34 Acres held by the 1[st] petitioner and her husband, along with 5 Acres held by Sri K.N.Pothen, were after resurvey, brought under Re-Sy. No. 198. 2. The petitioners submit that the 1[st] petitioner’s husband obtained permission to convert 15 Acres of cardamom plantation into coffee plantation as per Exhibit P2 proceedings dated 29.5.1973. He thereafter gifted the said 15 Acres to his son, the 2[nd] petitioner, as per document No.114 of 1977. The 2[nd] petitioner sold 10.50 Acres out of the above said 15 Acres as per document No.2833 of 1981 and has only 4.5 Acres remaining WPC.No.21815/2012 -5- with him in Re-Sy. No. 198. The 1[st] petitioner transferred 2.5 Acres to one Tomy Thomas as per document No.2690 of 1981, 5 Acres to one K.Mohammed as per document No.4317 of 1979 and executed a gift regarding 1 Acre to the 3[rd] petitioner as per gift deed No.371 of 1997. According to the petitioners they are paying plantation tax, basic tax, building tax and such other revenues in respect of the properties and at no point of time the property had even the semblance of a forest much less a private forest. It is further submitted that coffee registration certificates were later obtained separately by the petitioners individually, on the basis of their respective holdings. 3. The petitioners submit that the respondents had issued Exhibit P3 notification dated 4.5.2001, notifying the vested forests in South Wayanad Division, which takes in areas in Mepady, Chelath and Kalpetta ranges. Exhibit P3 does not take in properties in Re-Sy. No. 198 of the Kunnathidavaka village. Thereafter, an erratum notification was issued as Exhibit P4 which also did not include properties in Re-Sy. No.198. While so, WPC.No.21815/2012 -6- a survey was conducted at the instance of the 4[th] respondent, resulting in Exhibit P5 report. This was followed by a letter from the 3[rd] respondent to the 4[th] respondent, which is produced as Exhibit P6. The letter says that an extent of 5 Acres in Re-Sy. No. 198 is proposed to be notified as left out vested forests and that proceedings have been initiated. It is the case of the petitioners that, under the guise of the above said proceedings, the 3[rd] respondent and his subordinate officers are obstructing the petitioners' peaceful enjoyment of their properties. They submit that even though they had attempted to get details regarding the notification of left out vested forests, no details are so far forthcoming. The writ petition is hence filed praying for a declaration that no land can be demarcated and notified under Section 6 of the Vesting Act and Rule 2A of the Rules after the expiry of 30 years, a declaration that no portion of the petitioners' property in block No. 25, of Re-Sy. No. 198 of Kunnathidavaka Village is liable to be demarcated and notified as left out vested forest and to restrain the respondents and their WPC.No.21815/2012 -7- subordinates and representatives from interfering in any manner with the petitioners' peaceful possession and enjoyment of their properties. 4. The 3[rd] respondent has filed a statement contending that the writ petition is not maintainable, that the petitioners have no title or possession over the disputed area and that they are not entitled to seek any of the reliefs. According to the respondent, the petitioners have not produced documents to show how the land devolved on them. It is contended that the disputed land is a portion of dense forest contiguous to large extent of evergreen forests extending to the forests of Kozhikode district, that the land was not under the possession of any person on the appointed day of Act 26 of 1971 and that the land had vested in the State with effect from 10.5.1971. It is further contended that document No.2818 of 1962 is null and void, since the same has been executed without obtaining prior permission from the District Collector under Section 3 of the Madras Preservation of Private Forest Act. According to the respondent, WPC.No.21815/2012 -8- the properties in question were never leased out by Sankara Varma Raja or transferred by him. It is also stated that document No.601 of 1928, specifically says that 1 Acre 51 cents on the north-west portion and Lakkidi Chunkappura area was not leased out by the Raja. According to the respondent, the disputed land is the Lakkidi Chunkappura area. The respondent contends that Exhibit P2 coffee registration is not related to the disputed land and that the document numbers 114 of 1977, 3384 of 1979, 2833 of 1981, 2690 of 1981 and 4317 of 1979 and gift deed No. 371 of 1997 are in no way connected with the disputed property. Having said so, it is also stated that the petitioners have not produced any document to show how the land mentioned in those documents devolved from the mother documents. According to the 3[rd] respondent the correctness of the title and identity of the leasehold areas were not properly established. Annexure R3(e) produced along with the statement is a letter dated 25.2.2012, whereby the 3[rd] respondent has requested the Assistant Director of Survey to survey and demarcate the lands WPC.No.21815/2012 -9- in old Sy. No.187/1A1, to identify the left out vested forests. In paragraph 11 of the statement it a stated that on physical inspection of the land in Re-Sy. No.198, it was found that the disputed land is a dense forest. It is submitted that the Forest mini survey is in progress and that only after demarcation, the details can be published by way of a notification, in the manner specified in Rule 2A of the Rules. The respondent submits that there is no legal impediment to notify the land which is statutorily vested with the State. 5. A reply affidavit has been filed by the petitioners producing the previous documents of 1962, 1963 and 1968, which are all prior to the Vesting Act, to contend that the contention in the statement is not correct and that the title of the property in the hands of the petitioners is clearly established. It is stated in the reply affidavit that the petitioner’s property is a compact block of 10.34 Acres with permanent boundaries, a dwelling house, a well and a cattle shed and is situated adjacent to the National Highway 212 and that it is about 1 km away from WPC.No.21815/2012 -10- Re-Sy. No. 172, which is the vested forest. It is contended that it is a well maintained plantation from 19.8.1928 onwards and that there are 2 high-rise buildings on the other side of the road and other buildings such as shops, hospitals, residential houses, etc. It is further contended that properties on the 3 sides of the entire holding are all private properties and that on one side it is the National Highway. The petitioners contend that the property can never be treated as a dense forest. 6. A counter affidavit has been filed on behalf of the 1[st] respondent, producing Exhibit R1(a) which is a joint inspection report. The report relates to the properties in Block No. 25 of ReSy. No. 198. Out of 7 items of properties listed, items 4 and 6 relate to the properties of the petitioners. The report shows the documents by which the petitioners are in possession and also gives details of other transactions by Sri K.N.Pothen. The 3[rd] respondent has thereafter filed an additional statement contending that Exhibit P9 document produced by the petitioners is connected with the leased out properties and that the same WPC.No.21815/2012 -11- has no connection with the disputed property. The contentions in the earlier statement are reiterated and it is stated that the land was never cultivated as claimed by the petitioners. The contention that there is a dwelling house, well, cattle shed etc. is also denied. 7. Heard Sri M.C.John on behalf of the petitioners and Sri Sandesh Raja, Special Government Pleader (Forests), on behalf of the State. At the time of hearing, the counsel for the petitioners placed before me the copy of a letter dated 12.11.2013 from the DFO to the Conservator of Forests, stating that the survey and demarcation is completed and a proposal for notification of 2.9350 hectares in Lakkidy Bit-1 in Re-Sy. No. 198 pt, Block 25 of Kunnathidavaka village, is being submitted for further action. The description of the property would show that the property is bounded on 3 sides by private property and on one side by the National Highway. Another letter dated 7.1.2014 from the Chief Conservator of Forests to the DFO is also placed before me, which shows that the DFO was directed to produce WPC.No.21815/2012 -12- copies of the land records and other records relied upon, for the purpose of finalising the proposal. There is also a direction to furnish the present vegetal status of the land. The letter was issued noticing the fact that, the property is bounded by private lands on 3 sides and the National Highway on the other. The counsel for the petitioner submits that even though such a letter was issued in 2014, no steps have been taken thereafter. 8. On going through the pleadings and the records produced before the Court, it is evident that there is dispute regarding the title to the properties, the identity of the properties and the nature of the property. Whereas the petitioners rely on registered documents to show their title, the State contends that there is no proof regarding the prior title to the property, which according to the State did not form part of the lease executed by Sankara Varma Raja. While the State contends in the statement filed, that the property is contiguous to forest land, the same is denied by the petitioners stating that the property is bounded by private lands on 3 sides and by National Highway on the other. WPC.No.21815/2012 -13- The contention of the petitioners is supported by the proposal for notification sent by the Divisional Forest Officer on 12.11.2013, wherein the properties are described as bounded by private land on 3 sides and the National Highway on the other. While the State contends that the property is part of dense forest and was found to be so on verification and that there are no buildings or well or cattle shed as alleged by the petitioners, the petitioners assert that such improvements are present in the land. The petitioners also placed before me photographs showing the above. Since this Court in exercise of its extraordinary jurisdiction under Article 226, will not be justified in deciding the title over the lands or the identity of the lands, which are disputed questions of facts, I do not propose to place any reliance on the photographs placed before me, to take a decision either way. The Special Government Pleader placed before me several decisions of this Court, to bring home the point that the issues raised in the writ petition cannot be decided in a proceeding under Article 226 and the same has to be subject WPC.No.21815/2012 -14- matter of an original application before the Tribunal constituted under the Kerala Private Forests(Vesting and Assignment) Act, which has necessary powers to take evidence regarding the disputed questions of facts and arrive at a conclusion. According to the Special Government Pleader, if there is a dispute whether a land is a private forest vested in the Government or not, the same has to be decided in a proceedings initiated under Section 8 of the Vesting and Assignment Act. In **Ranga Sesha Hills (P) Ltd., v. State of Kerala,** reported in **[1991(2) KLT 49]** , a Division Bench of this Court held that Section 6 or Rule 2A of the Act/Rules do not postpone the vesting, which takes places on 10.5.1971, by operation of law. Another Division Bench of this Court, in **State of Kerala v. A.George Ninan,** reported in **[2014 KHC 3674]** , held that from the scheme of the Act, it is clear that vesting of private forests in the State was not dependent on any further notification. Yet another Division Bench of this Court in the decision dated 6.2.2018, in **M/s Pambra Coffee Plantations v. State of Kerala and others (W.A.277** WPC.No.21815/2012 -15- **of 2018)** , held that the mere fact that a notification under Rule 2A was issued belatedly, does not defeat the statutory vesting which took place on 10.5.1971. The Court further held that the question whether the land was a private forest or not as defined in the Act or whether the land was excluded from vesting, are matters which involve factual disputes, the adjudication of which is possible only by the Tribunal constituted under Section 8 of the Vesting and Assignment Act. 9. It is thus well settled that under the Act, there is a statutory vesting of private forests in the State and such a vesting does not depend upon the issuance of a notification. The vesting takes place by operation of law and does not get postponed to the date of the notification, which may be issued subsequently, after following the procedure prescribed in the Act and Rules. As far as the reliefs prayed for in this writ petition are concerned, the petitioner is not legally entitled for a declaration that there can be no demarcation and notification under Section 6 of the Act merely because of the expiry of 30 years after the WPC.No.21815/2012 -16- commencement of the Act, since if the petitioners' property is a vested forest, the vesting should relate back to the appointed date by operation of law. There is no prohibition for the belated issuance of a notification, in the Act. There is also no requirement for such a prohibition since the vesting is by operation of law and not by the issuance of a notification. So also the petitioner is not entitled to a declaration that the property in block No. 25, of reSy. No. 198 is not liable to be demarcated and notified as left out vested forest, in a proceedings under Article 226 of the Constitution of India. If a notification is issued with regard to the properties claimed by the petitioners, it is for them to approach the Tribunal and lead evidence regarding the fact that the petitioners' properties are either not vested forests by the definition of the term in the Act or they are exempted from vesting, and seek appropriate relief from the Tribunal, which has been exclusively created for the purpose. Admittedly, no notification has been issued till date and the relief prayed for by the petitioner to restrain the respondents from interfering with WPC.No.21815/2012 -17- their peaceful possession is a matter which can be dealt with by the Tribunal. The Writ petition is hence disposed of, with liberty to the petitioners to challenge the actions of the respondent, before the Tribunal created under the Vesting and Assignment Act. All the contentions raised in this Writ petition are left open. It is made clear that this Court has not expressed any opinion on the merits of the claims raised by either the petitioners or the respondents. In the circumstances of the case, there will be no order as to costs. Sd/- **T.R. RAVI** **JUDGE** dsn WPC.No.21815/2012 -18- ## **APPENDIX** ## **PETITIONERS' EXTS:** EXT.P1: TRUE COPY OF PROCEEDINGS DT.10.8.1976 OF THE TALUK LAND BOARD, SOUTH WYNAD. EXT.P2: TRUE COPY OF THE COFFEE REGISTRATION DT.29.5.1973. EXT.P3: TRUE COPY OF RELEVANT NOTIFICATION DT.4.5.2001 (KALPETTA RANGE) EXT.P4: TRUE COPY OF ERRATUM NOTIFICATION ISSUED BY THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF REPORT DT.12.3.2012 SUBMITTED BY THE SUPERINTENDENT OF SURVEY AND LAND RECORDS. EXT.P6: TRUE COPY OF LETTER DT.9.4.2012 OF THE 3RD RESPONDENT TO THE 4TH RESPONDENT. EXT.P7: TRUE COPY OF REPLY DT.7.7.2012 FURNISHED BY THE 3RD RESPONDENT. EXT.P8: TRUE COPY OF REPLY DT.16.7.2012 OF THE CHIEF CONSERVATOR OF FORESTS, ULAVAKODE. EXT.P9: TRUE COPY OF DOCUMENT No.2818/62 DT.30.9.1962. EXT.P10: TRUE COPY OF DOCUMENT No.1375/63 DT.20.2.63. EXT.P11: TRUE COPY OF SALE DEED No.198/68 DT.16.6.1968. ## **RESPONDENTS' EXTS:** ANNEXURE R3(A): TRUE COPY OF DOCUMENT NO.601/1928 - ANNEXURE R3(B): TRUE COPY OF PETITION DT.21.2.2008 SUBMITTED BY SRI E.K.RAVIVARMA RAJA. - ANNEXURE R3(C): TRUE COPY OF PETITION SUBMITTED BY VANAM PARISTHITHY SAMRAKSHANA FORUM, VYTHIRI. - ANNEXURE R3(D): TRUE COPY OF PETITION DT.13.2.2012 SUBMITTED BY MICHABHOOMI SAMRAKSHANA SANGHAM, LAKKIDI. ANNEXURE R3(E): TRUE COPY OF LETTER DT.25.2.2012 SENT TO THE ASSISTANT DIRECTOR OF SURVEY, FOREST MINI SURVEY, KOZHIKODE. EXT.R1(A): TRUE COPY OF RELEVANT PAGES OF THE REPORT PREPARED BY REVENUE DEPARTMENT BASED ON THE JOINT INSPECTION.