Thankappan Narayanan v. District Collector, Painavu; Tahsildar, Devikulam; Divisional Forest Officer, Mankulam; and Sri K.J. Mohammed Anzar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940** ## **WP(C).No. 1432 of 2019** ## **PETITIONER:** **THANKAPPAN NARAYANAN, CHERAPLACKAL HOUSE, MANKULAM, IDUKKI DISTRICT.** **BY ADVS. SRI.AUGUSTINE JOSEPH, SRI.GEORGE RENOY SRI.K.S.ROCKEY, SRI.TONY AUGUSTINE** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR,**| |---|---| ||**PAINAVU, IDUKKI DISTRICT-685603**| |**2**|**THE TAHASILDAR**| ||**DEVIKULAM, IDUKKI DISTRICT-685 613**| |**3**|**THE DIVISIONAL FOREST OFFICER**| ||**MANKULAM, IDUKKI-685 561**| ||**SRI.K.J.MOHAMMED ANZAR, SPL.GOVT.PLEADER(REVENUE)**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ---------------------------------- ## W.P.(C) No. 1432 of 2019 --------------------------------Dated this the 20[th] day of February, 2019 ## J U D G M E N T The prayers in the above Writ Petition (Civil) are as follows. " - _i. Call for the records relating to Ext.P9._ - _ii. Issue a writ of certiorari to quash Ext.P9._ - _iii. Issue a writ of mandamus or any other writ, order or direction to the 1[st] respondent to sell the trees described in Ext.P4, P5, P6 and P7 to the petitioner on payment of seignorage rate prevailed at the time of assignment of the land._ - _iv. Issue a writ of mandamus to the 2[nd] respondent to issue challan based on Ext.P6 to cut and remove the trees by the petitioner._ - _v. Issue such other writs, orders, directions including interim orders deem fit in the circumstances of the case._ - _vi. Allow this writ petition with costs. "_ ## 2. Heard Sri.Augustine Joseph, learned counsel appearing for the petitioner and Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) appearing for the respondents. 3. The petitioner is in possession of 1 hectare of land in survey No.77/1 of Mankulam Village, Devikulam Taluk, Idukki revenue district, on the basis of Ext.P-1 assignment order dated 24.3.1997 and pursuant to which the petitioner was granted W.P.(C).No.1432/2019 ..3.. pattayam in respect of the subject property as per Ext.P-2 patta dated 21.10.1997 issued by the 2[nd] respondent Tahsildar under the provisions of the Kannan Devan Hills (Resumption of Lands) Act, 1971 and Kannan Devan Hills (Reservation and Assignment of Vested Lands) Rule 1977 framed under that enactment. As per the conditions in Ext.P-2 patta, though the land is assigned to the petitioner, the right over all the trees standing at the time of assignment or which have come to existence subsequently in the assigned land area shall vest with the Government. But as per Rule 18 of the Kannan Devan Hills (Reservation and Assignment of Vested Lands) Rule 1977, the 1[st] respondent has power to dispose of those trees if they are found dead, deceased, wind fallen or dangerous to life and property. In the case of such disposal of such trees the assignee may purchase such trees on payment of seignorage rate prevailing at the time of assignment of the land. The petitioner had earlier approached this Court by filing WP(C).No.35327/2004 on account of non consideration of his application to cut and remove some trees which were decayed and standing dangerous to life and property. W.P.(C).No.1432/2019 ..4.. 4. Aggrieved by the refusal to grant permission to cut and remove such trees, the petitioner had initially approached this Court by filing O.P.No.7220/2001 which was disposed of by this Court along with O.P.No.6587/2001 as per judgment dated 20.3.2001, wherein this Court had held that the matter should be decided in accordance with the directions issued earlier by this Court in another judgment, whereby it was ordered that seignorage fee should be as prevailing at the time of assignment of land. The said direction was not challenged by the respondents and the subsequent refusal order was also impugned later and thereupon the respondents had taken the stand that the directions in the earlier judgment that the seignorage fee should be the one prevailing at the time of assignment of land is legally wrong inasmuch as Rule 18 specifically stipulates that the applicable seignorage fee shall be the one prevailing seignorage rates which means that the seignorage rates which are prevailing at the time of cutting and removal of the trees. This Court held that the said legal contention raised by the respondents is correct and tenable but since the earlier judgment had become final and conclusive W.P.(C).No.1432/2019 ..5.. _inter-partes_ , it will have the binding effect and that therefore the respondents cannot challenge co-laterally the same in the further proceedings and held that the matter should be considered on the basis of the directions in the earlier judgments that seignorage fee shall be payable as prevailing at the time of assignment of the land. 5. It is later that the petitioner has filed WP(C).No.35327/2004 challenging the subsequent refusal order in which this Court had rendered Ext.P-3 judgment dated 27.7.2009 in WP(C).No.35327/2004 taking the said view that in view of the concluded _inter partes_ judgment, it is not open to the respondents to challenge co-laterally the correctness of the directions issued in the earlier concluded judgments and that though the legal contention is correct, but that the respondents are bound to charge seignorage fee only as one prevailing at the time of assignment of land, etc. On that basis, this Court had directed in Ext.P-3 judgment that the impugned rejection order is quashed and the matter is remitted to the respondent District Collector for fresh decision in accordance with law. However, this Court had clarified that it is not mandatory that the respondent District Collector W.P.(C).No.1432/2019 ..6.. should necessarily decide to sell the trees to the petitioners, as the statutory functionary has discretion to consider and take a decision appropriately. However, the petitioner then pointed out that that in a case of neighbouring land owner, the respondent District Collector had decided to sell the trees and therefore the same line of decision may be taken in the case also. This Court had specifically directed that the respondent District Collector should advert to that aspect also and had thereupon directed the respondent District Collector to hear the petitioner and then take a decision on the application for grant of permission to cut and remove the trees in question. 6. It appears that though Ext.P-3 judgment was rendered in WP(C).No.35327/2004 as early as on 27.7.2009, a final decision was not taken immediately thereafter presumably because no specific time limit was stipulated therein. If no specific time limit has been stipulated in a judgment like Ext.P-3 then the respondent District Collector was legally obliged to pass an order so as to comply with the judgment atleast within a period of 3 months. It appears that pursuant to Ext.P-3 judgment permission was granted W.P.(C).No.1432/2019 ..7.. to the petitioner to cut and remove some of the trees but no permission was granted to cut and remove the two remaining dead and decayed trees which are mentioned in Ext.P-4. 7. Since no decision was forthcoming, the petitioner was constrained to file Ext.P-4 representation dated 10.12.2012 before the 1[st] respondent District Collector, again seeking permission to cut and remove two dead and decayed trees from his patta land on payment of seignorage fee prevailing at the time of assignment as ordered in Ext.P-3 judgment and in the previous round of litigative proceedings. The 1[st] respondent had issued Ext.P-5 letter dated 20.6.2013 to the Forest Range Officer, Mankulam requesting to calculate the seignorage rate of the trees that prevailed at the time of assignment to be collected from the petitioner. In Ext.P-5 the 1[st] respondent District Collector has clearly mentioned that permission could be granted to the petitioner to cut and remove the said trees on payment of the seignorage fee prevailing at the time of assignment. By Ext.P-6 letter dated11.12.2013, the Forest Range Officer, Mankulam has given the details of the seignorage fee applicable for the two trees. Thereafter the Village Officer W.P.(C).No.1432/2019 ..8.. concerned had submitted Ext.P-7 report dated 10.12.2014 to the 1[st] respondent District Collector stating that the two remaining trees are dead and decayed and is dangerous and also gave the details of measurement of the trees. Since no effective action was forthcoming, the petitioner was again constrained to approach this Court by filing WP(C).No.4833/2016 in which this Court had rendered Ext.P-8 judgment on 31.3.2016 that the 1[st] respondent District Collector should expedite the process and conclude the proceedings within one month. Thereafter the 1[st] respondent District Collector has passed the impugned Ext.P-9 order dated 28.3.2017 holding that permission may be granted to the petitioner to cut and remove only one among the two trees viz , jackfruit tree and that permission was refused to cut and remove the other tree, Vellakil tree (വവെള ള്ള്കിൽ മരര) and that the same is to be appropriated to the government and thereby the 1[st] respondent had directed in Ext.P-9 that the 3[rd] respondent DFO should take steps to appropriate the said tree to the government. The 3[rd] respondent DFO by Ext.P-10 letter dated 11.6.2017 had apprised the District W.P.(C).No.1432/2019 ..9.. Collector that the Forest Department has no jurisdiction in the area as the trees are standing in patta land and that it is for the 1[st] respondent District Collector to proceed further in the matter. This proceedings at Ext.P-9 that is under challenge. 8. It is indisputable that the petitioner has approached this Court atleast on occasions more than one as is discernible from Ext.P-3 judgment of the Division Bench. In the prior round of litigative proceedings, this Court had directed that permission should be considered based on seignorage fee that is prevailing at the time of the assignment of the land. When the refusal order was subsequently challenged, the respondents have taken the plea that the said direction issued in the earlier judgment is legally wrong eventhough they have not challenged the said earlier _inter-partes_ judgment and this Court has held that such plea is not maintainable and that eventhough the objection is otherwise legally tenable going by the provisions contained in Rule 18 of the KDH Rules, the contention is not available to the respondents as the concluded judgment is a _inter parte_ judgment which has become final and conclusive W.P.(C).No.1432/2019 ..10.. between the parties as no challenge was raised against the judgment by filing review or appeal,e tc This Court accordingly held that the request of the petitioner seeking to cut and remove the trees in question should be considered by the 1[st] respondent District Collector and that the seignorage fee applicable would be the one prevailing at the time of assignment of land and that the 1[st] respondent District Collector should take decision in the matter after adverting to all aspects including the aspect that permission was granted to the neighbouring land owner concerned. 9. It is also not in dispute that pursuant to the directions issued in Ext.P-3 judgment, the 1[st] respondent has given permission to the petitioner to cut and remove all the trees other than the two trees covered by Ext.P-4 application and the impugned Ext.P-9 order. It is also indisputable that none other than the 1[st] respondent District Collector had clearly taken the stand in Ext.P-5 proceedings dated 20.6.2013 that permission could be granted to the petitioner to cut and remove the two remaining trees mentioned in Ext.P-4 application provided he pays the seignorage fee applicable at the time of assignment of land as W.P.(C).No.1432/2019 ..11.. directed in Ext.P-3 judgment and thereupon the 1[st] respondent has directed the Forest Range Officer to furnish the details of the seignorage fee applicable for the two trees in question as prevailing at the time of assignment of land. In response to Ext.P-5 the 3[rd] respondent DFO has given all the requisite details regarding the applicable seignorage in respect of two trees as per Ext.P-6 letter dated 11.12.2013. The Village Officer concerned had also given the report as per Ext.P-7 dated 10.12.2014. This Court had again directed the 1[st] respondent District Collector to consider and expedite the process without any further delay as per Ext.P-8 judgment dated 31.3.2016 rendered in WP(C).No.4833/2016. Thereafter the 1[st] respondent District Collector had made _“volte face”_ by reversing his earlier stand in Ext.P-5 as well as in the other orders granting permission to the petitioner pursuant to Ext.P-3 judgment by taking a stand that permission could be granted to the petitioner to cut and remove only one among the two tress viz, the jackfruit tree and that permission is refused to cut and remove the other remaining Vellakil tree (വവെള ള്ള്കിൽ മരര) and W.P.(C).No.1432/2019 ..12.. that it is to be appropriated by the government for which the 3[rd] respondent DFO was directed to take further steps. The 3[rd] respondent DFO has clearly taken the stand in Ext.P-10 that the said matter does not come within the jurisdiction of Forest Department as the tree in question is lying in patta land. 10. After hearing both sides, this Court is of the considered view that the rejection order in Ext.P-9 rendered by the 1[st] respondent District Collector is vitiated by arbitrariness and irrelevant considerations. It is not in dispute that pursuant to the directions in Ext.P-3 judgment, permission was indeed granted by the 1[st] respondent District Collector to the petitioner to cut and remove all the trees other than the two trees mentioned in Ext.P-4 application and impugned Ext.P-9 order. It is also not in dispute that permission was also granted to a similarly situated land owner as is discernible from Ext.P-3 judgment. None other than the 1[st] respondent District Collector has already taken the stand in Ext.P-5 that permission could be granted to the petitioner to cut and remove the two trees mentioned in Ext.P-4 application provided he pays the seignorage fee prevailing at the time of W.P.(C).No.1432/2019 ..13.. assignment of land.The details of the applicable seignorage fee has also been furnished by the 3[rd] respondent DFO as per Ext.P-6 in response to Ext.P-5. The permission is also granted by the 5[th] respondent to cut and remove one among the two trees. No proper ground is made out by the 5[th] respondent in the impugned Ext.P-9 order to justify rejection in the case of other remaining tree. The present dispute has gone through at least 3 rounds of writ litigative proceedings. The matter should have been decided atleast within a period of 3 to 4 months after the rendering of Ext.P-3 judgment dated 27.7.2009 rendered by the Division Bench of this Court. Merely because no explicit time limit has been stipulated by the Division Bench in Ext.P-3 judgment does not mean that the 1[st] respondent can indefinitely prolong the matter and a decision should have been taken atleast within 3 to 4 months therefrom. The impugned Ext.P-9 rejection order was issued only on 28.3.2017 after the lapse of more than 8 long years after the rendering of Ext.P-3 judgment by the Division Bench. 11. As stated herein above, this Court is of the considered view that the impugned rejection order at Ext.P-9 is vitiated by W.P.(C).No.1432/2019 ..14.. taking into consideration irrelevant aspects and not taking into consideration crucial and relevant aspects of the matter. In that view of the matter the impugned Ext.P-9 rejection order to the extent it rejects the request of the petitioner to cut and remove one among the two trees mentioned therein will stand quashed. There is no point in again remitting the matter to the 1[st] respondent as more than 8 long years have elapsed after the rendering of Ext.P-3 judgment dated 27.7.2009. Accordingly it is ordered that the 1[st] respondent will permit the petitioner to cut and remove the other remaining tree Vellakil tree (വവെള ള്ള്കിൽ മരര) without any further delay. Since permission has been granted by the 1[st] respondent District Collector, to cut and remove the jackfruit tree and as Ext.P-9 has been quashed only to the limited extent it was rejected the request to cut and remove the other tree, it goes without saying that as the petitioner has already secured permission to cut and remove the jackfruit tree then in case he has not already cut and remove the same, he may take further steps thereon. The petitioner will pay the seignorage fee mentioned in Ext.P-6 letter dated 11.12.2013 issued by the 3[rd] respondent DFO W.P.(C).No.1432/2019 **==> picture [24 x 9] intentionally omitted <==** and on remittance of the said seignorage fee the petitioner shall be immediately permitted by the respondents, more particularly respondents 1 and 2 to cut and remove the said trees mentioned in Ext.P-4 and Ext.P-9. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C).No.1432/2019 ..16.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ASSIGNMENT ORDER DATED 24.03.1997** **EXHIBIT P2 TRUE COPY OF THE PATTAYAM DATED 21.10.1997. EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 27.7.2009 IN W.P.(C) NO. 35327/2004** **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 10.12.2012 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE LETTER DATED 20.6.2013 FROM THE 1ST RESPONDENT TO THE FOREST RANGE OFFICER, MANKULAM.** **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 11.12.2013 FROM THE FOREST RANGE OFFICER, MANKULAM. EXHIBIT P7 TRUE COPY OF THE REPORT DATED 10.12.2014 FROM THE VILLAGE OFFICER, MANKULAM. EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 31.3.2016 IN W.P.(C) NO. 4833/2016 EXHIBIT P9 TRUE COPY OF THE ORDER DATED 28.3.2017 OF THE 1ST RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE LETTER DATED 11.6.2017 FROM THE 3RD RESPONDENT TO THE 1ST RESPONDENT. RESPONDENTS' EXHIBIT:** **ANNEXURE R1(A) TRUE COPY OF THE LETTER NO.PRO(6) 19343/16 DATED 4.5.2016**