Varghese @ Appachan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940** ## **WP(C).No. 5154 of 2018** ## **PETITIONER/S:** **VARGHESE @ APPACHAN AGED 59 YEARS, S/O.THOMAS, MALEKANDIYUR, JELLIPARA P.O., MANNARKADU, KALLAMALA VILLAGE, PALAKKAD DISTRICT.** **BY ADV. SRI.T.M.ABDUL LATHEEF** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM-695001.** - **2 THE DISTRICT COLLECTOR COLLECTORATE, PALAKKAD-678001.** - **3 THE DEPUTY COLLECTOR-LA PALAKKAD-678001.** - **4 THE VILLAGE OFFICER KALLAMALA VILLAGE, KALLAMALA-678582.** - **5 THE CHIEF CONSERVATOR OF FOREST THIRUVANANTHAPURAM-695001.** - **6 THE DIVISIONAL FOREST OFFICER MANNARKKAD-678582.** - **7 THE LAND REVENUE COMMISSIONER LA OFFICE OF THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAN-695001. BY ADVS. SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)** ## **OTHER PRESENT:** ## **GP B VINITHA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 5154 of 2018 2** ## **JUDGMENT** The petitioner has approached this Court challenging Ext.P21 order issued by the Deputy Collector in pursuance of the directions of this Court in Ext.P16 judgment. The petitioner contends that the petitioner is the owner and in possession of 4 acres of land in old survey No.1841/1/part of Kallamala Village of Mannarkadu Taluk. It is stated that the Jenmom right of the property was with the Mannarkad Mooppil Sthanam and that the predecessor-in-interest of the petitioner had acquired Verumpattom lease in respect of the property. The petitioner contends that in respect of one acre of property, he had acquired the property from one Mari, who had been issued with Ext.P8 pattayam. The learned counsel for the petitioner would contend that tax is being accepted from the petitioner in respect of the properties. The petitioner had planted the property with cashew nut tree, pepper wine, coconut, jack fruit, nutmeg, ginger etc. 2. It is stated that after the year 1998, the land tax was refused to be accepted from the petitioner. The reason stated was that the property of the petitioner was notified as vested forest. The petitioner had submitted representation before the ## **WP(C).No. 5154 of 2018 3** respondents. By Ext.P16 judgment, this Court had directed the 2[nd] respondent to conduct a proper enquiry under the Land Tax Act and to issue orders on the request made by the petitioner for acceptance of tax on the strength of title. It is submitted by the learned counsel for the petitioner that the petitioner had made an application under the Right to Information Act for the details pertaining to old survey No.1841, since the boundaries in the resurvey number were not clear. It is stated that Exts.P19 and 20 replies were issued to the petitioner stating that the records in respect of purchase certificate No.697 of 1974 were not available. It is stated that the petitioner had appeared before the 2[nd] respondent and had raised valid contentions. The petitioner made further applications for information under the Right to Information Act, but all his efforts were in vain, it is submitted. Pursuant to Ext.P16 judgment, the 2[nd] respondent took up the matter and on the finding that the petitioner's property is included in resurvey No.605 of Kallamala Village and on a finding that the entire property in survey No.605 has been notified as vested forest under the Kerala Private Forests (Vesting and Assignment) Act, 1971, the request for acceptance of land tax has been rejected. 3. The learned counsel for the petitioner submits that several applications preferred by the petitioner for getting the details of ## **WP(C).No. 5154 of 2018 4** resurvey and the maps of the boundaries relied on for the resurvey have not been fruitful. It is contended that the properties of the neighbouring property owners of the petitioner i.e.,Rajendran and Samuel have been shown to be part of resurvey No.548 and that the petitioner's property which shared boundaries with the properties of Rajendran and Samuel ought to have been included in the said survey number as well. It is submitted by the learned counsel for the petitioner that there is absolutely no material to hold that petitioner's property which was comprised in Survey No.1841/1/ part in the old survey formed a part of new Survey No.605 of the Kallamala Village. The learned counsel for the petitioner therefore contends that Ext.P21 order which proceeds on the basis of no reliable material is illegal and is liable to be quashed. 4. A statement has been filed on behalf of the 6[th] respondent. It is stated that the property of the petitioner was found to be a part of VFC item No.22 and 103, Kallamala Malavaram and is notified as vested forest as per notification dated 10.10.1979. The copy of the notification is produced as Ext.R6(a). It is further stated that a joint verification was conducted by the officers of the Forest and Revenue Department and it was found, without any doubt, that the property is part of **WP(C).No. 5154 of 2018 5** the vested forest as notified. A report of the joint verification is also produced as Ext.R6(b). 5. It is further contended by the learned Special Government Pleader that in view of the fact that the petitioner's contention that the petitioner's property is not comprised in resurvey No. 605 and is therefore not a vested forest, it is for the petitioner to approach the Forest Tribunal as per the provisions of Section 8(1) of Kerala Private Forests (Vesting and Assignment) Act, 1971. It is contended that the disputed question of fact whether the petitioner's property is comprised in Survey No.605 of Kallamala Village or not is not a matter which can be adjudicated by this Court exercising jurisdiction under Article 226 of the Constitution of India. 6. A reply affidavit has been placed on record by the petitioner claiming that the contentions in Ext.P21 order issued by the Deputy Collector are self contradictory. It is stated that Ext.P8 purchase certificate itself shows that the land in question was surrounded by private property. It is stated that the finding in Ext.P21 to the effect that three sides of the property have forest land as boundaries is therefore absolutely incorrect. It is further stated that the joint verification conducted by the Forest and the Revenue Departments in 2017 would not be conclusive, ## **WP(C).No. 5154 of 2018 6** since the question to be considered is whether the property of the petitioner is comprised in survey No.605 of Kallamala Village. The petitioner contends that he is in lawful possession of the property in terms of Exts.P1 and P8 documents and that he has cultivated the property and is in possession of the same. It is further contended that the contention that the property is a part of the vested forest is completely erroneous and that no reliance can be placed on such assumption. 7. The learned Special Government Pleader would place reliance on a decision of Division Bench of this Court in **State of Kerala v. Alexander [1993 KHC 168]** to contend that where the property is notified as private forest under the provisions of Kerala Private Forests (Vesting and Assignment) Act, 1971, tax receipts or pattayams issued cannot be conclusive proof as to the title. It is contended that even in case the petitioner has valid title of the property, the notification under Section 3 of the Act would amount to divesting the title of the petitioner and vesting of the property in the Government. It is therefore contended that the possession of the pattayam is not conclusive as to the nature of the property in question. 8. I have considered the contentions advanced. The specific contention of the petitioner appears to be that the property ## **WP(C).No. 5154 of 2018 7** covered by title deeds as possessed by him is not comprised in survey No.605 of Kallamala Village. The petitioner does not dispute the fact that survey No.605 of Kallamala Village is a vested forest. The contention of the petitioner is that going by the description of the property in his title deeds as also to the pattayam issued to the predecessor-in-interest, the property could not form a part of the vested forest as notified in Ext.R6(a). The petitioner contends that the petitioner's property was comprised in old survey No.1841/1/part and that several items of property which were forming a part of old survey No.1841 are excluded from Ext.R6(a) notification. The contention of the petitioner is that the petitioner's property is also so excluded, and as such, the finding in Ext.P21 is not justifiable. 9. On a consideration of the contentions advanced and the pleadings placed on record, I am of the opinion that the question whether the petitioner's property is included in vested forest is clearly a question of fact, which has to be agitated on the basis of the materials and the survey sketch as well as the notification issued. It is contended by the learned Special Government Pleader that once an assertion is made by the State that the property in question is a vested forest, the petitioner has essentially to approach the Forest Tribunal to rebut such ## **WP(C).No. 5154 of 2018 8** contention on the facts and on reliable evidence. 10. Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, provides that where any dispute arises as to whether- ## (a) any land is a private forest or not or (b) any private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, may apply to the Tribunal for decision of the dispute. The question raised by the petitioner is therefore a dispute which is to be raised before Forest Tribunal. In the above view of the matter, I am of the opinion that the proper course of action for the petitioner is to approach the Forest Tribunal in terms of Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971. Accordingly, leaving open the contentions of the petitioner and the rights of the petitioner to approach the Forest Tribunal in terms of Section 8 and seek appropriate relief therein, the writ petition is closed. ## **SD/-** ## **ANU SIVARAMAN** **JUDGE** rmm **WP(C).No. 5154 of 2018 9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1TRUE COPY OF THE SALE DEED NO.21/1995 DATED 12/01/1995 OF SRO, AGALI.** - **EXHIBIT P2TRUE COPY OF THE SALE DEED DATED 23/08/1985.** - **EXHIBIT P3TRUE COPY OF THE SALE DEED DATED 30/01/1984.** - **EXHIBIT P4TRUE COPY OF THE TAX RECEIPT NO.40 DATED 23/05/1984.** - **EXHIBIT P5TRUE COPY OF THE TAX RECEIPT NO.14 DATED 22/05/1984.** - **EXHIBIT P6TRUE COPY OF THE TAX RECEIPT NO.75 DATED 26/03/1997.** - **EXHIBIT P7TRUE COPY OF THE TAX RECEIPT NO.20 DATED 23/03/1998.** - **EXHIBIT P8TRUE COPY OF THE PURCHASE CERTIFICATE 697/1974 DATED 16/06/1976.** - **EXHIBIT P9TRUE COPY OF THE PHOTOGRAPHS.** - **EXHIBIT P10TRUE COPY OF THE RELEVANT PAGE OF BASIC TAX RECEIPT OF KALLAMALA VILLAGE, MANNARKAD TALUK IN RESPECT OF SURVEY NO.546/1 (OLD SY.NO.1841/1 PART.** - **EXHIBIT P11TRUE COPY OF THE RELEVANT PAGE OF BASIC TAX RECEIPT OF KALLAMALA VILLAGE, MANNARKAD TALUK IN RESPECT OF SURVEY NO.546/3 (OLD SY.NO.1841/1 PART.** - **EXHIBIT P12TRUE COPY OF THE RELEVANT PAGE OF BASIC TAX RECEIPT OF KALLAMALA VILLAGE, MANNARKAD TALUK IN RESPECT OF SURVEY NO.548/5 (OLD SY.NO.1841/21 PART.** ## **WP(C).No. 5154 of 2018 10** - **EXHIBIT P13TRUE COPY OF THE RELEVANT PAGE OF BASIC TAX RECEIPT OF KALLAMALA VILLAGE, MANNARKAD TALUK IN RESPECT OF SURVEY NO.548/4 (OLD SY.NO.1841/21 PART.** - **EXHIBIT P14TRUE COPY OF THE PETITION DATED 15/02/2016 SUBMITTED BY THE PETITIONER BEFORE THE PREVIOUS HONOURABLE CHIEF MINISTER OF KERALA.** - **EXHIBIT P15TRUE COPY OF THE PETITION DATED 29/02/2016 ISSUED TO THE PETITIONER FROM THE OFFICER OF THE HONOURABLE CHIEF MINISTER OF KERALA.** - **EXHIBIT P16TRUE COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN W.P.(C)NO.34013 OF 2016 DATED 15/11/2016.** - **EXHIBIT P17TRUE COPY OF THE APPLICATION DATED 02/11/2017 FILED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P18TRUE COPY OF THE LETTER NO.14/17 DATED 30/11/2017 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P19TRUE COPY OF THE APPLICATION DATED 02/11/2017 FILED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT BEFORE THE SPECIAL TAHSILDAR (L.R), OTTAPPALAM.** - **EXHIBIT P20TRUE COPY OF THE LETTER NO.B.4257/17 DATED 11/2017 ISSUED BY THE TAHSILDAR (L.R) OTTAPPALAM TO THE PETITIONER.** - **EXHIBIT P21TRUE COPY OF THE ORDER NO.LRA.52017/1963/9 DATED 27/09/2017 OF THE 3RD RESPONDENT.** - **EXHIBIT P22TRUE COPY OF THE SKETCH.** - **EXHIBIT P23TRUE COPY OF THE PETITION DATED 17/01/2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P24TRUE COPY OF THE APPLICATION DATED 15/12/2017 FILED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT SUBMITTED BY THE PETITIONER BEFORE THE 4TH** **WP(C).No. 5154 of 2018 11** **RESPONDENT.** **EXHIBIT P25-** **TRUE COPY OF THE LETTER NO.MO-1/2018 DATED 17/01/2018 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** ## **RESPONDENTS EXHIBITS** **ANNEXURE R6(a) : TRUE COPY OF NOTIFICATION OF THE VFC ITEM NO.22 AND 103 KALLAMALA MALAVARAM DATED 10.10.1979** **ANNEXURE R6(b):- TRUE COPY OF THE REPORT.** **// TRUE COPY //** **P.A. TO JUDGE**