T.P. Unnikrishnan and others v. State of Kerala and Divisional Forest Officer, Palakkad Division

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **WP(C).No.10460 OF 2019(F)** ## **PETITIONERS:** |**1**|**T.P.UNNIKRISHNAN,**| |---|---| ||**AGED 60 YEARS,**| ||**S/O LATE VELAYUDHAN,**| ||**THOZHUTHPARAMBIL HOUSE,**| ||**KOONATHARA AMSOM DESOM,**| ||**KOONATHARA P.O.,**| ||**OTTAPALAM TALUK,**| ||**PALAKKAD DISTRICT - 679 523**| |**2**|**RATNAKUMARI,**| ||**W/O T.P. UNNIKRISHNAN,**| ||**THOZHUTHPARAMBIL HOUSE,**| ||**KOONATHARA AMSOM DESOM,**| ||**KOONATHARA P.O.,**| ||**OTTAPALAM TALUK,**| ||**PALAKKAD DISTRICT - 679 523**| |**3**|**RIDHESH,**| ||**S/O T.P. UNNIKRISHNAN,**| ||**THOZHUTHPARAMBIL HOUSE,**| ||**KOONATHARA AMSOM DESOM,**| ||**KOONATHARA P.O., OTTAPALAM TALUK,**| ||**PALAKKAD DISTRICT - 679 523**| |**4**|**RIJI,**| ||**D/O T.P. UNNIKRISHNAN,**| ||**THOZHUTHPARAMBIL HOUSE,**| ||**KOONATHARA AMSOM DESOM,**| ||**KOONATHARA P.O., OTTAPALAM TALUK,**| ||**PALAKKAD DISTRICT - 679 523**| ||**BY ADVS.**| ||**SRI.SHYAM PADMAN**| ||**SRI.C.M.ANDREWS**| ||**SRI.P.T.MOHANKUMAR**| ||**SMT.BOBY M.SEKHAR**| ||**KUM.LAYA MARY JOSEPH**| WP(C) No.10460/2019 : 2 : ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF FOREST AND WILDLIFE, SECRETARIAT, THIRUVANANTHAPURAM - 695 001 2 DIVISIONAL FOREST OFFICER, OFFICE OF THE DIVISIONAL FOREST OFFICER, PALAKKAD DIVISION, KALLEKULANGARA P.O., PALAKKAD - 678 009 BY SPL. GOVERNMENT PLEADER (FORESTS) SRI NAGARAJ NARAYANAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.10460/2019 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.10460 of 2019 ````````````````````````````````````````````````````````````` _Dated this the 30[th] day of March, 2021_ ## **J U D G M E N T** ## _**~ ~ ~ ~ ~ ~ ~ ~ ~**_ Petitioners, owners of 9 Acres and 60 cents of land in Re-Survey No.11/4 of Ongallur-I Village, Pattambi, are challenging Ext.P11 notice of the 2[nd] respondent-Divisional Forest Officer and seek to direct the respondents not to interfere with the peaceful enjoyment of their properties. 2. The petitioners purchased the property in question in the year 2004 from the successors-in-interest of late Raman Nair. The said Raman Nair obtained the property under a Partition Deed of the year 1970. In the Partition Deed, the property was described as paramba/garden land. The property was being cultivated with tapioca, vegetables, etc. 3. The Forest Officials obstructed late Raman Nair from cultivating the land in the year 1975 alleging that the land WP(C) No.10460/2019 : 4 : is a vested forest coming under the purview of the Kerala Private Forests (Vesting and Assignment) Act, 1971. Raman Nair filed O.A. No.82/1975 in the Forest Tribunal, Palakkad. The Forest Tribunal found that the land is being cultivated with tapioca and the claim of the petitioners for exemption under Section 3(2) of the Act is legitimate. The claim was therefore allowed, as per Ext.P1 order dated 18.10.1977. 4. The State filed M.F.A. No.273/1978 before this Court, challenging Ext.P1 order of the Tribunal. In Ext.P2 judgment dated 23.06.1982, this Court found that the land claimed by late Raman Nair was cultivated land and did not exceed the ceiling limit. The State thereupon filed R.P. No.190/1984 against Ext.P2 judgment. The R.P. was dismissed as per Ext.P3 order of this Court, on 08.11.1993. Thereafter, on 14.07.1997, the land was restored to the successors-in-interest of late Raman Nair. 5. The legal heirs of late Raman Nair sold 9 Acres and 6 cents out of the 12.67 Acres of land on 10.08.2004 to the petitioners. The Forest Officials obstructed the petitioners WP(C) No.10460/2019 : 5 : from cultivating in the property alleging that the land is ecologically fragile land. Thereupon, the petitioners approached the Kerala Forest Tribunal, Palakkad seeking to declare that the property is not Ecologically Fragile Land. The Tribunal, as per Ext.P4 order dated 07.04.2015, held that the land is not Ecologically Fragile. The said Ext.P4 judgment was challenged before this Court in MFA No.79/2016. This Court found that the property continued to be land held under the personal cultivation of late Raman Nair and that the previous order passed by this Court is binding. M.F.A. No.79/2016 was dismissed by this Court on 19.12.2016, as per Ext.P5 judgment. 6. In spite of Exts.P2, P3 and P5 judgments, the respondents did not restore the land to the petitioners. The 1[st] petitioner therefore filed W.P.(C) No.5742/2017 before this Court. By Ext.P6 judgment dated 14.03.2017, this Court directed the respondents to restore the property to the 1[st] petitioner within four months. Ext.P6 judgment was not complied with. The 1[st] petitioner therefore filed Contempt WP(C) No.10460/2019 : 6 : Case(C) No.1237/2017. The Government thereupon filed S.L.P. No.35634/2017 in the Supreme Court challenging Ext.P6 judgment. The Apex Court dismissed the S.L.P. on 27.11.2017, as per Ext.P7. The Government then filed R.P. No.766/2018 in Ext.P7. The Apex Court dismissed the said R.P. also as per Ext.P10, on 05.04.2018. 7. Yet, only 7.97 Acres out of 9.6 Acres were granted mutation in favour of the petitioners. While the petitioners were struggling to get mutation of remaining land, as a bolt from the blue, the 2[nd] respondent-Divisional Forest Officer issued Ext.P11 notice informing that the land of petitioners qualifies as ‘Forest Land’ for the purpose of the Forest Conservation Act, 1980, as per the judgment in _**T.N. Godavarman Thirumulpad v. Union of India and others**_ _[(1997) 2 SCC 267]_ , of the Apex Court and the petitioners shall not destroy or damage any tree or undergrowth or other vegetation and not to undertake any agriculture operation, cultivation, cleaning undergrowth, etc. Ext.P11 notice is under challenge in this writ petition. WP(C) No.10460/2019 : 7 : 8. The learned counsel for the petitioners argued that Ext.P11 notice lacks _bonafides._ The respondents were preventing the petitioners and their predecessors since 1975 from enjoying their properties, dragging them into litigations. Even after the highest court of the land found in favour of the petitioners, the respondents are now trying to circumvent the binding decisions of this Court and of the Apex court. The right of cultivation in the land existed even prior to the coming into force of the Forest Conservation Act, 1980. Therefore, no further sanction is required under Section 2 of the said Act. 9. Only statutorily recognised forest or any area recorded as forest by the Government, would come under the ambit of forest and forest land, irrespective of its ownership as per the decision of the Apex Court in _**T.N. Godavarman Thirumulpad**_ (supra). The property of the petitioners cannot even be described as private forest, because the land is exempted under Section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The provisions of the Forest Conservation Act, 1980 cannot be operated in respect WP(C) No.10460/2019 : 8 : of lands exempted under Sections 3(1) and 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. 10. The learned counsel for the petitioners further urged that the term 'Forest' cannot have a connotation different from the Kerala Private Forests (Vesting and Assignment) Act, 1971 and the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2005 since those operate in the same field. The land was earlier being cultivated and resumption or continuance of cultivation or doing any agricultural operations in the land, cannot hence be described as Non-Forest activity. 11. The learned Special Government Pleader (Forests) pointed out that the land owned and possessed by the petitioners is having the physical status of forest as understood in common parlance. Ext.R2(b)–Report on tree density and physical status of the land prepared by the Forest Range Officer and Ext.R2(c)-Report on the Ecological and Biodiversity status of the land along with the list of forest species, trees and flora, endemic species, rare endangered WP(C) No.10460/2019 : 9 : threatened species, tree density, etc. would show that the land is a thick forest. The Forest Department has only brought to the notice of the petitioners the actual physical 'Forest' status of the land. 12. The learned Special Government Pleader pointed out that in the judgment of the Apex Court in _**T.N. Godavarman Thirumulpad**_ (supra), the Apex Court has held that the term 'Forest Land' occurring in Section 2, will not only include Forest as understood in the dictionary sense, but also any area recorded as Forest in the Government records irrespective of the ownership. Therefore, the land of the petitioners, which is actually a Forest, would come within the provisions of the Forest Conservation Act, 1980, irrespective of the ownership or classification thereof. 13. The Special Government Pleader pointed out that in the judgment in _**Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority and others** [(1997) 11 SCC 605]_ , the Apex Court held that the term 'Forest Land' has to be understood as including an extensive WP(C) No.10460/2019 : 10 : track of land covered with trees and undergrowth, sometimes intermingled with pasture i.e., it will have to be understood in the broad dictionary sense. The learned Special Government Pleader argued that in that sense, the land of the petitioners is Forest. 14. The learned Special Government Pleader also relied on the judgment of the Apex Court in _**Samatha v. State of Andhra Pradesh and others** [(1997) 8 SCC 191]_ to contend that prior approval of the Central Government is required for any non-forest activity within the area of any Forest. The term 'Forest' bears extended meaning of a tract of land covered with trees, shrubs, vegetation and undergrowth intermingled with trees and pastures, be it of natural growth or man-made forestation, contended the learned Special Government Pleader. 15. Deforestation causes ecological imbalance and leads to environmental deterioration. Deforestation had been taking place on a large scale in Kerala and it has caused widespread concern, contended the learned Special WP(C) No.10460/2019 : 11 : Government Pleader. Placing reliance on the judgment of the Hon'ble Apex Court in **R** _**ural Litigation and Entitlement Kendra v. State of U.P.** [1989 Supp (1) SCC 504]_ , the learned Special Government Pleader argued that it is to meet the alarming situation of deforestation that the Forest (Conservation) Act, 1980 was brought into effect. The petitioners cannot do anything in their land, which would contravene the Act, 1980. As the land of the petitioners satisfies the common parlance and dictionary meaning of the term 'Forest', the petitioners cannot be permitted to resort to any non-agricultural activity in the land, in violation of the provisions contained in the Forest (Conservation) Act, 1980, contended the Special Government Pleader. 16. Heard the learned counsel for the petitioners and the learned Special Government Pleader appearing for the respondents. 17. The pleadings and arguments in this case narrate the arduous legal battles the petitioners and their predecessors had to fight, to enjoy the right to property WP(C) No.10460/2019 : 12 : guaranteed to them by the Constitution of India. In the year 1975, the predecessors-in-interest of the petitioners approached the Forest Tribunal, Palakkad filing O.A. No.820/1975 seeking exemption under Section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Forest Tribunal, on 18.10.1977, held that the claim for exemption made by the applicants therein is legitimate. The State of Kerala filed M.F.A. No.273/1978 before this Court challenging the said order of the Forest Tribunal, in 1978. The appeal filed by the State was dismissed after four years, as per Ext.P2 on 23.06.1982. In Ext.P2 judgment, this Court found that the land is described as a garden land. In Ext.P2, it was noted that all the boundaries of the land are also described as garden lands. 18. The State was relentless. The State, after two years, invoked Section 8C(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 to file R.P. No.190/1984. The said R.P. remained on the files of this Court till 1993. On 08.11.1993, this Court dismissed the R.P., as per Ext.P3 order WP(C) No.10460/2019 : 13 : noting that the properties were being cultivated with crops like tapioca, vegetables, etc. 19. While so, the property was notified under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act. The land of the petitioners was garden land and hence the petitioners, invoking Section 19(3) of the EFL Act, submitted an application for denotification of the land. The Conservator of Forests dismissed the application. The petitioners had to approach the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal, Palakkad, filing O.A. No.11/2012, invoking Section 10 of the Act, 2005. 20. The Tribunal noted that this Court had already found that the property is cultivated with crops. The Tribunal held that in the light of the findings of this Court, it has to be found that the scheduled properties are cultivated lands. The Tribunal further found that there is no evidence to find that the properties are principally covered with natural vegetation. The Tribunal further held that the ingredients to attract the WP(C) No.10460/2019 : 14 : definition of Ecologically Fragile Land, are absent. Accordingly, the Tribunal held that the land of the petitioner is not Ecologically Fragile and consequently allowed the O.A. as per Ext.P4 order dated 07.04.2015. 21. The State, however, filed M.F.A No.79/2016 before this Court. This Court noted that exemption has already been granted to the land since it is held under the personal cultivation of the claimants. Since the proceedings under the Kerala Private Forests (Vesting and Assignment) Act, 1971 which was the subject matter of challenge by the State had been unsuccessful, the land of the petitioners has to be considered as land held under personal cultivation. This Court further noted that due to the stand of the respondents, the land was remaining without being cultivated from 1971 to 1997 for about 26 years and hence there cannot be any doubt that during the long period, the land would have become covered with wild growth and continuous vegetation. 22. This Court in Ext.P5 further noted that the land of the petitioners is not encircled by Reserve Forest or Private WP(C) No.10460/2019 : 15 : Forest and hence it cannot be said that the petitioners' land was Forest Land or that it was one predominantly supporting natural vegetation. 23. Thus, in Ext.P1 order dated 18.10.1977 in O.A. No.820/1975 filed by Raman Nair, the predecessor-in-interest, the Forest Tribunal found that the land is being cultivated with tapioca, modan, etc. Ext.P2 judgment in MFA No.273/1978, this Court noted that the land is described in records as garden land and probabilises the position of the lands as cultivated lands. In Ext.P4 order dated 07.04.2015 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal, Palakkad, in O.A. No.11/2012 filed by the petitioner, after examination of evidence, the Tribunal held that the property is a cultivated land. In Ext.P5 judgment in MFA No.79/2016, this Court again found that exemption was granted to the land since it was under cultivation. This Court further noted that the land was remaining without cultivation for long period due to litigations and therefore would have become covered with wild growth and spontaneous WP(C) No.10460/2019 : 16 : vegetation. 24. In Ext.P5, this Court also considered the judgments in _**State of Kerala v. Kumari Varma** [2011 (1) KLT 1008]_ and _**State of Kerala v. Unnikrishnan** [2013 (2) KLT 420]_ . This Court held that once the land is exempted under Section 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, it is not necessary that there should be any actual cultivation. 25. The petitioners and their predecessors were litigating for peaceful enjoyment of the land since 1975. During this period, they might not have cultivated the land due to litigations and resistance by the respondents. During more than four decades of litigation, natural wild growth including wild tree growth, can be expected. 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. Those are inter-parte judgments which have attained finality. The petitioners have a constitutional right to hold and enjoy their property under Article 300A of the WP(C) No.10460/2019 : 17 : Constitution of India. The respondents cannot be permitted to expropriate that Constitutional right from the petitioners. Ext.P11 notice dated 07.01.2019 of the 2[nd] respondent is therefore set aside. The respondents are directed not to interfere with the peaceful enjoyment of the properties by the petitioners. The writ petition is allowed as above. Sd/- **N. NAGARESH, JUDGE** aks/26.03.2021 WP(C) No.10460/2019 : 18 : ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DATED 18.10.1977 PASSED BY THE FOREST TRIBUNAL, PALAKKAD EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN M.F.A.NO.273/1978 DATED 23.06.1982 PASSED BY THE HON'BLE HIGH COURT OF KERALA EXHIBIT P3 TRUE COPY OF THE ORDER IN R.P.NO.190/1984 DATED 08.11.1993 PASSED BY THE HON'BLE HIGH COURT OF KERALA** **EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, PALAKKAD DATED 07.04.2015** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 19.12.2016 PASSED BY THE HON'BLE HIGH COURT OF KERALA IN M.F.A.NO.79/2016** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 14.03.2017 IN WP(C).NO.5742/2017 PASSED BY THE HON'BLE HIGH COURT OF KERALA EXHIBIT P7 TRUE COPY OF THE ORDER DATED 27.11.2017 PASSED BY THE HON'BLE SUPREME COURT OF INDIA IN SLP(C) NO.35634/2017** **EXHIBIT P8** **TRUE COPY OF THE JUDGMENT DATED 30.01.2018 PASSED BY THE HON'BLE HIGH COURT OF KERALA IN CON.CASE(C).NO.1237/2017** WP(C) No.10460/2019 : 19 : ## **EXHIBIT P9** **TRUE COPY OF THE ORDER ALLOWING EXTENSION OF TIME IN I.A.NO.1080/2018 IN WP(C) NO. 5742/2017 DATED 30.01.2018 PASSED BY THE HON'BLE HIGH COURT OF KERALA** ## **EXHIBIT P10** **TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT OF INDIA IN R.P. (C) NO.766/2018 IN SLP(C) NO.35634/2017 DATED 05.04.2018** **EXHIBIT P11** **TRUE COPY OF THE NOTICE DATED 07.01.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS** **EXHIBIT P12** **TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 07.01.2019** - **EXHIBIT P13 TRUE COPY OF THE RECEIPT OF BASIC TAX DATED 13.03.2019 PAID BY THE PETITIONERS** **EXHIBIT P14** - **TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 14.03.2019** - **RESPONDENTS' EXHIBITS:** **EXHIBIT-R2(A) TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE GOVERNMENT GAZETTE DATED 10.07.2018 DE-NOTIFYING THE LAND IN QUESTION FROM THE EFL ACT AND FROM VESTING IN THE STATE.** **EXHIBIT-R2(B) TRUE COPY OF THE REPORT OF TREE DENSITY AND PHYSICAL STATUS OF THE SUBJECT MATTER LAND PREPARED BY THE FOREST RANGE OFFICER DATED 12.01.2018 ALONG WITH THE SAMPLE PLOT ANALYSIS.** WP(C) No.10460/2019 : 20 : **EXHIBIT-R2(C) TRUE COPY OF THE REPORT ON THE ECOLOGICAL AND BIODIVERSITY STATUS OF THE SUBJECT MATTER LAND ALONG WITH THE LIST OF FOREST SPECIES TREES AND FLORA, ENDEMIC SPECIES, RARE ENDANGERED THREATENED (RET) SPECIES, TREE DENSITY ETC., DATED 15.06.2019. EXHIBIT-R2(D) TRUE COPIES OF THE PHOTOGRAPHS OF THE SUBJECT MATTER LAND.** SR