Kerala High Court
Fazaludeen Kunju vs The Tahsildar on 7 September, 2015
Author: A.V.Ramakrishna Pillai
Bench: A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
MONDAY,THE 7TH DAY OF SEPTEMBER 2015/16TH BHADRA, 1937
WP(C).No. 31896 of 2005 (V)
---------------------------------------
PETITIONER(S):
-----------------------
FAZALUDEEN KUNJU, AGED 51,
S/O.IDROSE KUNJU, THADATHIL VEEDU, OTTAKAL,
THENMALA, PATHANAPURAM TALUK, KOTTAYAM DISTRICT.
BY ADV. SRI.JOHNSON MANAYANI
RESPONDENT(S):
-------------------------
1. THE TAHSILDAR,
PATHANAPURAM, PUNALUR.
2. THE REVENUE DIVISIONAL OFFICER,
KOLLAM.
3. THE DISTRICT COLLECTOR,
KOLLAM.
4. THE STATE OF KERALA, REPRESENTED BY
ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.
5. THE VILLAGE OFFICER, THENMALA,
THENMALA VILLAGE, KOLLAM DISTRICT.
BY SENIOR GOVERNMENT PLEADER SRI.K.K.SAIDALAVI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07-09-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
WP(C).No. 31896 of 2005 (V)
---------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS:
--------------------------------------
EXT.P1: THE TRUE COPY OF THE COMPLAINT FILED BEFORE THE HON'BLE CHIEF
MINISTER DTD.28.4.1998.
EXT.P2: THE TRUE COPY OF THE PETITIONER FILED BY THE PETITIONER BEFORE
THE FIRST RESPONDENT DTD.22.7.1999.
EXT.P3: THE TRUE COPY OF THE LAND CONSERVANCY NOTICE ISSUED BY THE
FIRST RESPONDENT TO THE PETITIONER DTD.24.9.1999.
EXT.P4: THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P3
NOTICE DTD.16.10.1999.
EXT.P5: THE TRUE COPY OF THE PATTAYAM.
EXT.P6: THE TRUE COPY OF ORDER PASSED BY THE FIRST RESPONDENT
DTD.8.2.2000.
EXT.P7: THE TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DTD.17.11.2004.
EXT.P8: THE TRUE COPY OF THE PETITIONER'S REVISION AND ADDITIONAL
GROUNDS FILED BEFORE THE THIRD RESPONDENT.
EXT.P9: THE TRUE COPY OF THE ORDER OF THE THIRD RESPONDENT
DTD.15.10.2005.
EXT.P10: TRUE COPY OF THE REVENUE RECOVERY NOTICE ISSUED AGAINST THE
PETITIONER BY THE FIRST RESPONDENT FOR RS.11212 WITH INTEREST.
EXT.P11: TRUE COPY OF THE THREE MAHAZAR ATTACHED TO EXT.P6.
EXT.P12: TRUE COPY OF THE SWORN STATEMENT FILED BY THE PRIOR OWNER
BEFORE THE FIRST RESPONDENT DTD.18.10.1999.
EXT.P13: TRUE COPY OF THE STATEMENT GIVEN BY THE PRIOR OWNER BEFORE
THE THIRD RESPONDENT DISTRICT COLLECTOR DTD.5.10.2005.
EXT.P14: TRUE COPY OF THE REPORT OF THE FOREST VIGILANCE DEPARTMENT.
EXT.P15: TRUE RELEVANT EXTRACT OF THE TREE REGISTER WITH REGARD TO THE
PETITIONER KEPT BY THE 5TH RESPONDENT.
RESPONDENT(S)' EXHIBITS:
-----------------------------------------
NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
A.V.RAMAKRISHNA PILLAI, J.
= = = = = = = = = = = = = = = = =
W.P(C) No.31896 of 2005
= = = = = = = = = = = = = = = = = =
Dated this the 7th day of September, 2015
JUDGMENT
Under challenge in this writ petition are Exts.P6, P7 and P9 on the basis of which the respondents have initiated steps to recover a sum of 100/- as fine under the Kerala Land Conservancy Act and a sum of 11,212/- towards twice the value of two teak trees which, according to the respondents, were cut and removed from the property assigned to the predecessor-in-interest of the petitioner.
2. The case of the petitioner is that he had made a complaint with regard to the illegalities committee by respondents 1 and 5 as evident from Exts.P1 and P2 and as a counter blast proceedings were initiated by issuing a notice under the Land Conservancy Act and to recover the value of the trees said to have been cut and removed by the petitioner. According to the petitioner, those trees were not there at the time of purchase by him. Even if at the time of assessment of the property in the name of the predecessor-in- interest of the petitioner, there were only two seedlings as could be seen from Ext.P5. According to the petitioner, Exts.P3, P6, P7 and P9 WP(C)31896/05 -:2:- were initiated due to the animosity of respondents 1 and 3 and steps have been initiated to recover the amount mentioned above.
3. Respondents 1 and 3 have filed separate counter affidavits wherein it was contended that an extent of 2.37 acres of land comprised in Sy. No.872/1/220/1 of Thiruvananthapuram village was assigned to one Madhavan Kunjukunju as per L.A.C No.196/65. According to them, two teak seedlings were there in the said property. After assignment, the petitioner purchased 1.37 ares in 1995 in which reserve trees were found by the Village Officer, Thenmala on his inspection on 3.1.1994. Notice under section 12 of the KLC Act in B form has been issued and served upon the petitioner on 27.9.1999 directing him to appear before the first respondent. The petitioner appeared before the Tahsildar and filed objections against the charges framed against him. His objections were examined, considered and he was heard in detail. It was found that the petitioner is trying to fix the responsibility of the loss of trees on the shoulders of previous owner. They maintained the stand that there is no procedural irregularities in the action initiated against the petitioner.
4. The petitioner has filed a detailed reply to the counter affidavit filed by the respondents.
WP(C)31896/05 -:3:-
5. Arguments have been heard.
6. The definite stand taken by the petitioner is that even at the time of assignment of the property to the his predecessor-in- interest, there were only two seedlings of teak trees and when the petitioner purchased the same, those seedlings were not there. The petitioner has produced the copy of the mahazar attached to Ext.P5 which he obtained under the Right to Information Act as Ext.P11. The same would substantiate the case of the petitioner that when the petitioner purchased the property, no teak trees were on the property. Had there been teak trees as alleged by the respondent State, it was the duty of the respondent to make periodical inspection of the property under assignment and to prepare mahazars to show the age as well as the size of the trees. Even as per the notice issued, the trees were having a height of 80 cms. only which itself would improbablise the case of the respondent.
7. The petitioner has also relied on Ext.P12 which is the true copy of the sworn statement filed by the prior owner before the first respondent on 18.10.1999. The learned Senior Government Pleader tried his level best to convince this Court that the time of assessment, the teak trees were there and the petitioner had cut and removed those trees. Unfortunately, no evidence is forthcoming WP(C)31896/05 -:4:- from the State to support their case.
8. It is surprising to note that the Government has imposed a sum more than 10,000/-, which according to the respondent, is twice the value of the trees. However, the date on the basis of which the said amount has been arrived at by the respondent is not forthcoming. The petitioner's predecessor-in-interest had given yet another sworn statement before the District Collector on 5.10.2005. Ext.P13 is the copy of the said statement. In Exts.P12 and P13, the prior owner has categorically stated that there were no teak trees in the property and he has also stated that no official has inspected the property in question. The petitioner has clearly stated that Exts.P1 and P2 are the cause of Ext.P3 proceedings.
9. The learned counsel for the petitioner invited my attention to Ext.P14, which is the copy of a report of the Forest vigilance Department, which would substantiate the case of the petitioner that there were illegal quarrying and blasting operations as stated in Ext.P1 and, therefore, it was argued that Ext.P1 and consequential enquiry were the immediate provocation for the respondent to initiate proceedings against the petitioner under the Land Conservancy Act.
WP(C)31896/05 -:5:-
10. Though it was strenuously argued by the learned Government Pleader that on inspection it was found that the petitioner has destroyed the stump of the trees, there is no mahazar or details with regard to the growth or the size of the stump said to have been reserved. As Exts.P12 and P13 itself would reveal that no periodical inspection was done by the respondents, I see valid force in the submission of the learned counsel for the petitioner that the case initiated against the petitioner is without any basis.
11. The tree register would prove that the there were no trees as alleged in the property. The relevant extract of the tree register with regard to the property of petitioner kept by the fifth respondent is produced as Ext.P15. It is crucial to note that there is no measurement with regard to the seedlings in the tree register. As rightly pointed out by the learned counsel for the petitioner, periodical inspection is a must as per Rule 22 of the Kerala Land Assignment Rules 1964. The patta as well as the mahazar would show that there were only seedlings at the time of assignment which, according to the petitioner, were planted by the occupier at that time. As per the conditions of patta, the assignee is not liable to pay tree tax which is having a height of less than 9 cms. WP(C)31896/05 -:6:-
12. On a consideration of the entire materials now placed on record, this Court is of the view that the petitioner is entitled to get the relief prayed for in the writ petition.
In the result, the writ petition is allowed. Exts.P3, P6, P7 and P9 are quashed. The petitioner is exonerated from paying any amount as fine or compensation as alleged in the impugned orders.
Sd/-
A.V.RAMAKRISHNA PILLAI JUDGE krj