State of Kerala v. T.P. Unnikrishnan and others

W.A. No. 1683/2021 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943 ## WA NO. 1683 OF 2021 JUDGMENT DATED 30.03.2021 IN WP(C) 10460/2019 OF HIGH COURT OF KERALA ## APPELLANTS/RESPONDENTS IN W.P.(C): - 1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF FOREST AND WILDLIFE, SECRETARIAT, THIRUVANANTHAPURAM-695 001 - 2 DIVISINAL FOREST OFFICER, OFFICE OF THE DIVISIONAL FOREST OFFICER, PALAKKAD DIVISION, KALLEKULANGARA P.O., PALAKKAD-678 009. BY ADV SRI. NAGARAJ NARAYANAN, SPL. GOVERNMENT PLEADER ## RESPONDENTS/PETITIONERS IN W.P.(C) - 1 T.P.UNNIKRISHNAN AGED 62 YEARS - S/O. LATE VELAYUDHAN, THOZHUTH PARAMBIL HOUSE, KOONATHARA AMSOM DESOM, KOONATHARA P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT-679 523. - 2 RATNAKUMARI - W/O. T.P.UNNIKRISHNAN, THOZHUTH PARAMBIL HOUSE, KOONATHARA AMSOM DESOM, KOONATHARA P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT-679 523. - 3 RIDHESH - S/O. T.P.UNNIKRISHNAN, THOZHUTH PARAMBIL HOUSE, KOONATHARA AMSOM DESOM, KOONATHARA P.O., OTTAPALAM TALUK, W.A. No. 1683/2021 : 2 : PALAKKAD DISTRICT-679 523. - 4 RIJI D/O. T.P.UNNIKRISHNAN, THOZHUTH PARAMBIL HOUSE, KOONATHARA AMSOM DESOM, KOONATHARA P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT-679 523. BY SRI.SHYAM PADMAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 1683/2021 : 3 : ## **Dated this the 17[th] day of December, 2021.** ## **JUDGMENT** ## **SHAJI P. CHALY.** The State and the Divisional Forest Officer, Palakkad Division, who were respondents in the writ petition, have filed this writ appeal challenging the judgment of the learned single Judge dated 30.03.2021 in W.P.(C) No. 10460 of 2019, whereby the learned single Judge allowed the writ petition and quashed Ext. P11 notice dated 07.01.2019 issued by the second appellant i.e., the Divisional Forest Officer, Palakkad Division informing that the land in possession of the writ petitioners is a forest land to which the Forest (Conservation) Act, 1980 ('Act, 1980' for short) applies; that they are not entitled to destruct or damage any tree or undergrowth or other vegetation in the above land and; and that they are not entitled to undertake any non forest activity, including agricultural operation, cultivation, clearing undergrowth etc. except with the prior approval of the Central Government. 2. Brief material facts for the disposal of the appeal are as follows: The writ petitioners are the owners in possession of a total W.A. No. 1683/2021 : 4 : extent of 9.60 acres of property situated in resurvey No. 11/4 of Ongallur I village, by virtue of the assignment deed Nos. 1970/2004, 1971/2004, 1972/2004 and 1973/2004 of the Office of the Sub Registrar, Pattambi, Palakkad District. The subject property has a checkered history though only in the year 2004, writ petitioners had purchased the properties from the successors in interest of one late Raman Nair, who had obtained properties having a total extent of 12.67 acres under a partition deed of the year 1970. In the partition deed, the properties are described as 'parambas' and 'garden land' and the properties were also being cultivated with crops like modan, tapioca, vegetables etc. and even as per the village records, the lands were classified as occupied lands. 3. While so, in the year 1975, the Forest officials obstructed the predecessor in title of the property of the writ petitioners from cultivating the land stating that it was vested forest land coming within the purview of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ('Act, 1971' for short), which was successfully challenged by the predecessor in title of the property before the Forest Tribunal by filing O.A. No. 82 of 1975, whereby the Tribunal held that the properties come under the exempted category under Section 3(2) of the Act, 1971. Even though the State has preferred an appeal, MFA W.A. No. 1683/2021 : 5 : No. 273 of 1978, it was dismissed by this Court as per Ext. P2 judgment dated 23.06.1982. Pursuing the battle, the State preferred RP No. 190 of 1984 to review the said judgment, but it also was dismissed by this Court as per Ext. P3 order dated 08.11.1983. Thus, on 14.07.1997, the land was restored back to the successors in interest of the late Raman Nair. Thereafter, on 02.01.2001, the property was notified under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance. 4. While so, the legal heirs of late Raman Nair sold an extent of 9.60 acres of land to the writ petitioners as per the deeds specified above. Thereupon, the Forest officials obstructed the writ petitioners from cultivating the property and it was accordingly on enquiry they came to know that the properties were notified as ecologically fragile land. Being aggrieved by the said notification, the writ petitioners approached the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 ('Act, 2003' for short) for declaring that the properties belonging to them are not ecologically fragile lands. 5. The predominant contention advanced by the writ petitioners in the Original Petition was that, no notice was sent to them by the W.A. No. 1683/2021 : 6 : authorities as mandated under the Act. The Tribunal allowed O.A.No.11/2012, as per Ext. P4 judgment dated 07.04.2015. Even though the order of the Tribunal was challenged before this Court by filing MFA.No. 79 of 2016, it was dismissed as per Ext. P5 judgment dated 19.12.2016. 6. However, the State did not restore the land to the petitioners and consequent to which W.P.(C) No. 5742 of 2017 was filed before this Court and secured Ext. P6 judgment dated 14.03.2017, whereby the Forest officials were directed to restore the land to the writ petitioners within 4 months, subject to any orders passed by the Apex Court in any Special Leave Petition filed by the State. But, in spite of a lapse of 4 months, the property was not restored, consequent to which C.O.(C) No. 1237 of 2017 was filed. While the contempt Petition was pending, the State approached the Hon'ble Apex Court by filing S.L.P(C) No. 35634 of 2017; but it was dismissed as per Ext. P7 order dated 27.11.2017. 7. Anyhow, the Contempt Petition was closed, since the appellants sought extension for implementing the judgment by filing I.A.No. 1080 of 2018 in W.P.(C) No. 5742 of 2017. In the interregnum, the appellants filed RP(C) No. 766 of 2018 before the Hon’ble Apex Court seeking to review Ext. P7 order. However, it was W.A. No. 1683/2021 : 7 : dismissed by the Apex Court as per Ext. P10 order dated 05.04.2018. Whatever that be, an extent of 7.97 Acres of land was mutated in favour of the writ petitioners and steps were being taken in respect of the balance property to be mutated. 8. While so, Ext. P11 impugned notice is issued under the provisions of the Act, 1980 stating that the status of the land transferred to the possession of the writ petitioners is that of a 'forest land' as understood by the ordinary dictionary meaning, since it consists of several naturally grown forest species trees, shrubs, plants, climbers, bushes and other natural vegetation and is also rich in biodiversity. It is also stated that by virtue of the proposition of law laid down by the Apex Court in _**T.N Godavarman Thirumulpad v. Union of India**_ [(1997) 2 SCC 267], the word 'forest' for the purpose of the Act, 1980 could include any land which is forest as understood according to its dictionary meaning and covers any land irrespective of its ownership. Therefore, the writ petitioners were directed not to utilise the property for any non forest activity in contemplation of the Act, 1980. It was, thus, challenging the legality and correctness of the said order, the writ petition was filed. 9. The learned single Judge, after taking into account the judgments in _**Godavarman**_ (supra), _**Samatha v. State of Andhra**_ W.A. No. 1683/2021 : 8 : _**Pradesh and others**_ [1997) 8 SCC 191, _**Rural Litigation and Entitlement Kendra v. State of U.P**_ . [1989 Supp (1) SCC 504], DB judgment of this Court in _**State of Kerala v. Kumari Varma**_ [2011 (1) KLT 1008] and _**State of Kerala v. Unnikrishnan**_ [2013 (2) KLT 420] arrived at the conclusion that the writ petitioners and their predecessors were litigating for peaceful enjoyment of the land since 1975; that during that period, they might not have cultivated the land due to litigations and resistance made by the respondents; during more than four decades of litigation, natural wild growth including wild tree growth, can be expected; that due to the said reason, the findings of fact made by the competent Tribunals and by this Court in Exts.P1 to P5 orders/judgments cannot be unsettled; that those are inter-parte judgments which have attained finality; and that since the petitioners have a constitutional right to hold and enjoy their property under Article 300A of the Constitution of India, the respondents cannot be permitted to expropriate that Constitutional right from the petitioners. It was accordingly that Ext. P11 impugned notice was set aside. 10. The paramount contention advanced by the appellants in the appeal is that the learned single Judge failed to apply the relevant legal propositions laid down by the Hon'ble Apex Court; that the reasoning given by the learned single Judge that the writ petitioners W.A. No. 1683/2021 : 9 : have a constitutional right to hold and enjoy their property under Article 300A of the Constitution of India, is irrelevant, baseless and untenable, since no expropriation of the land of the writ petitioners have taken place as the ownership of the subject land continues with the ownership and possession of the writ petitioners, subject to regulation of the same under the provisions of the Act, 1980; that the learned single Judge has not pointed out any illegality under the said legislation,and more importantly, the learned single Judge has not even considered the issue of application of the said legislation to the instant case, which is the basis for Ext. P11 notice; and that the reasoning was deficient and cryptic, and without any application of mind or adjudication of the real issues of law involved in the case. Other contentions are also raised absolutely relying upon the judgment of the Apex Court in _**T.N. Godavarman**_ and _**Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority and others**_ [(1997) 11 SCC 605] _**, Samatha**_ and _**Rural Litigation and Entitlement Kendra**_ [(1989) Supp (1) SCC 504]. It is also contended that the learned single Judge failed to adjudicate the issues raised by the appellants, taking into account the proposition of law laid down by the Apex Court in the aforementioned judgments. 11. We have heard, Sri. Nagaraj Narayanan, learned special W.A. No. 1683/2021 : 10 : Government Pleader appearing for the appellants and Sri. Shyam Padman for the respondents, and perused the pleadings and materials on record. 12. The question that emerges for consideration is whether any manner of interference is required to the judgment of the learned single Judge. The deliberation made above would make it clear that the very same property was the subject matter of the proceedings under the Act, 1971 and Act, 2003 apart from the instant proceedings under Act 1980. Ext. P5 judgment was rendered by a Division Bench of this Court in regard to the proceedings initiated under the Act, 2003 and the findings thereunder is very relevant with respect to the issue of the naturally grown forests, so as to identify as to whether the provisions of the Act, 1980 would be attracted. 13. In Ext. P5 judgment dated 19.12.2016 in MFA No. 79 of 2016, this issue was considered and it was found by the Division Bench that the land was being cultivated by late Raman Nair, the original title holder of the property from whose legal heirs the writ petitioners have purchased the properties in question. It was also found that the land is not encircled by reserve forest or private forest and for that sole reason, it cannot be said that it was forest land or that it was one predominantly supporting the natural vegetation. It was accordingly W.A. No. 1683/2021 : 11 : held that the land in the present case is not one that would come within the definition of an 'ecologically fragile land' as defined by the Act, 2005. 14. The contention now advanced by the appellants that the land is at present remaining covered with natural cultivation, was taken up before the Division Bench in MFA No. 79 of 2016 and the learned Division Bench found that a similar contention had been taken up before another Division Bench of this Court, which has rendered the judgment in _**Kumar Varma**_ (supra) and the contention was negatived by holding that if a particular piece of land can be described as forest land held by a private person by definition under Section 2(b)(i) of the Act, 2005, the same can be classified as ecologically fragile land if the same is either contiguous or encircled by reserved forest or a vested forest or any other forest land owned by the Government. It was further held in _**Kumari Varma**_ , that the expression “reserved forest” or forest” occurring under S.2(b)(i) are themselves defined under S.2(h) and (j) of the Act, 2003, to mean that the forest reserved under Section 19 of the Kerala Forest Act, 1961, and includes forests notified under Section 4 of the said Act. 15. The definition provided to the expression 'vested forest' under Section 2(j) means any forest vested in Government under S.3 W.A. No. 1683/2021 : 12 : of the Act, 1971. Therefore, it was held in _**Kumari Varma**_ that the lands in dispute were not lands falling within any notified “Reserved Forest” under the Kerala Forest Act; nor are they demonstrated to the “Protected Forests” under the above mentioned Act. Therefore, the Division Bench in MFA No. 79 of 2016 has arrived at the finding that no material was produced before the court to substantiate the contention that the property is covered with natural vegetation and therefore, it can only be presumed that the land has continued to retain its status probably with some wild undergrowth. 16. Anyhow, in our considered opinion, the issue with respect to the wild growth was taken into account and held that the land was under the cultivation of the title holders. We have gone through the judgments relied upon by the appellants mentioned above, and we find, the contention that the Act, 1980 would take in any naturally grown forest or man made Forest, is no doubt correct. In order to understand the intrinsic aspects of the law and out of curiosity, we have gone through Section 2 of the Act, 1980, which deals with restriction on the dereservation of forests or use of forest land for nonforest purpose, which specifies that notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior W.A. No. 1683/2021 : 13 : approval of the Central Government, any order directing that (i) any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved; (ii) that any forest land or any portion thereof may be used for any non-forest purpose; (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by Government; and (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for re-afforestation. The explanation thereto reads thus: “Explanation.—For the purposes of this section “non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for,- (a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants; (b) any purpose other than reafforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes. W.A. No. 1683/2021 : 14 : 17. We have no doubt with respect to the said statutory aspects. But, fact remains, this is a case where the predecessor in title of the property and the writ petitioners were prevented from entering the subject property and cultivate the land by the Forest authorities under the Forest enactments discussed above. It is an admitted fact that the property was restored to the writ petitioners, after a prolonged litigation from the year 1975, only in the year 2017 or 2018. It was, accordingly, that the learned single Judge found that the writ petitioners were prevented from entering into their property and therefore, one could clearly visualize that there would be wild growth or undergrowth, which cannot be termed as naturally grown or man made Forest. 18. We are of the clear opinion that by preventing the owner of the property from entering into the property and thereby wild growth has occurred, it cannot be said that the property would be termed as Forest in contemplation of the Act, 1980, whatever be its form or manner. Undisputedly, from the facts and circumstances of the case, it is clear that the State has engaged its might and power, and superiority to prevent the predecessors in title and the writ petitioners from entering into the property in question, and in our considered view that is what is not contemplated in the Act, 1980 in order to gather the W.A. No. 1683/2021 : 15 : meaning of forest, thus requiring previous permission to carry out any non-forest activity by the owners of land. 19. Learned Special Govt Pleader also submitted that it was not correct on the part of the learned single Judge to arrive at the conclusion that the property was expropriated since as per Exhibit P11 impugned notice only the restrictions in terms of Act, 1980 was made. But, in our view, the learned Single Judge might have used the said expression to denote the kind of ordeal undergone by the property owners. 20. Be that as it may, we are of the view that the owner of a property is entitled to enjoy the same in a manner at his choice; but consequent to the restrictions now, they are put to innumerable difficulties interfering with the autonomy at their command and thus, interfering with the fundamental rights to engage in any avocation of their choice and the right to life guaranteed under the Constitution of India. 21. We are also of the clear opinion that the judgments of the Apex Court as above in respect of any wild growth as well as the man made Forest would attract the definition of the Act, 1980; however, the judgments were rendered by the Apex Court under different facts and circumstances involved therein, thus attracting the provisions of the W.A. No. 1683/2021 : 16 : Act, 1980. Taking into account all the above legal and factual circumstances, we do not think the appellants have made out any case of jurisdictional error or other legal infirmities justifying us to interfere in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958. Needless to say, writ appeal fails and accordingly, it is dismissed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_