Kerala High Court
A.V.Abdul Gafoor vs The Divisional Forest Officer on 26 November, 2020
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942
WP(C).No.18405 OF 2020(A)
PETITIONERS:
1 A.V.ABDUL GAFOOR,
ARAKKAL VETTATH HOUSE, POONKUNNAM P.O.,THRISSUR.
2 ABDUL JABBAR,
S/O LATE MONUTTY, CHUNNAT HOUSE, PUTHUMANASSERY,
PAVARATTY P.O.,THRISSUR DISTRICT
3 BRINDA K,
W/O K. MOHAN KUMAR, KARUTHEDATH HOUSE, PANAMANA
LANE P.O., POONKUNNAM, THRISSUR-680 002.
4 GAABY GAFOOR,
S/O A.V.ABDUL GAFOOR, 30/642/1, ARAKKAL VETTATH
HOUSE, POONKUNNAM P.O., THRISSUR-680 002.
5 KHADEEJA K.A,
W/O LATE MOHAMMED JALEEL A.V, CHNUNNAT HOUSE,
PUTHUMANASSERY P.O., PAVARATTY, THRISSUR.
6 K.MOHAN KUMAR,
S/O BALAKRISHNAN NAIR, KARUTHEDATH HOUSE,
PANAMANA LANE P.O., POONKUNNAM, THRISSUR-680 002.
7 MOOSA A.T,
S/O HYDROSEKUTTY, PERUMBADY HOUSE,
ORUMANANAYOOR P.O., THRISSUR-680 512.
8 PREMA T,
W/O RAVI PRASAD K, KARUTHEDATH HOUSE,
KOORKKANCHERY P.O., THRISSUR-680007.
W.P.(C)No.18405 of 2020 -2-
9 RAHMATH P.A,
W/O A.V.ABDUL GAFOOR, ARAKKAL VETTATH HOUSE,
POONKUNNAM P.O., THRISSUR-680 002.
10 RAVI PRASAD.K,
S/O VALLATH BALAKRISHNA NAIR, KARUTHEDATH HOUSE,
KOORKKANCHERY P.O., THRISSUR-680 007.
11 RUKKIYA MOOSA,
W/O MOOSA A.T, PERUMBADY HOUSE,
ORUMANANAYOOR P.O.THRISSUR-680 512.
12 SARHAN GAFOOR,
S/O A.V.ABDUL GAFOOR, 30/642/1ARAKKAL VETTATH
HOUSE, POONKUNNAM P.O., THRISSUR-680 002.
13 T.K. ABUBACKER,
KADBROS ESTATE, PONNANI P.O., MALAPPURAM-679 583.
14 K.A.IBRAHIM KUTTY,
S/O KADPRATHAKATH ABDULLA HAJI, KADBROS ESTATE,
PONNANI P.O., MALAPPURAM-679 583.
15 HAFFSSA,
W/O T.K. ABDUBACKER, KADBROS ESTATE, PONNANI
P.O.MALAPPURAM-679 583.(PETITIONERS 2 TO 15
REPRESENTED BY THEIR DULY CONSTITUTED POWER OF
ATTORNEY, 1ST PETITIONER HEREIN).
BY ADVS.
SRI.MATHEW JOHN (K)
SRI.MATHEW DEVASSI
SRI.ABY J AUGUSTINE
RESPONDENTS:
1 THE DIVISIONAL FOREST OFFICER,
DIVISIONAL FOREST OFFICE, NILAMBOOR,
KERALA-679 329.
2 THE FOREST RANGE OFFICER,
WANDOOR RANGE OFFICE, MALAPPURAM-679 328.
W.P.(C)No.18405 of 2020 -3-
3 THE DEPUTY FOREST RANGE OFFICER,
KAALIKAVU FOREST RANGE, MALAPPURAM-676 525.
4 THE DEPUTY SUPERINTENDENT OF POLICE,
PERUMTHALMANNA-679 322, MALAPPURAM
5 THE CIRCLE INSPECTOR POLICE,
KARUVARUKUNDU-676 523,MALAPPURAM
6 THE SUB INSPECTOR OF POLICE,
KARUVARUKUNDU-676 523,MALAPPURAM
7 SUHAIB,
S/O EDAVANGARAN ABDU, KERALA ESTATE VILLAGE
P.O.MALAPPURAM DISTRICT-676 525.
8 RASHEED,
S/O KODAKKUNNAN ISMAIL, KERALA ESTATE VILLAGE
P.O.MALAPPURAM DISTRICT-676 525.
R1-6 BY GOVERNMENT PLEADER
SRI SANDESH RAJA K- SPL GOVERNMENT PLEADER (FOREST)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-
2020, THE COURT ON 26-11-2020 DELIVERED THE FOLLOWING:
W.P.(C)No.18405 of 2020 -4-
JUDGMENT
The petitioners, who are stated to be absolute owners in possession of 350 acres of plantation, which is known as Aarthala Estate, comprised in Block No.156, Sy.No.134 of Kerala Estate Village in Nilambur Taluk, have filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that no permission from respondents 1 to 3, namely, the Divisional Forest Officer, Nilambur; the Forest Range Officer, Vandoor Range; and the Deputy Forest Officer, Kaalikavu Forest Range, is necessary for the purpose of cutting, loading and transporting reeds from 350 acres of plantation, namely, Aarthala Estate. The petitioners have also sought for a writ of mandamus or any other appropriate writ, order or direction interdicting respondents 1 to 3 and their subordinates from interfering with the cutting, loading and transportation of reeds from Aarthala Estate owned and possessed by the petitioners, covered by Ext.P2 series of basic tax receipts; a writ of mandamus commanding respondents 1 to 3 to pass orders on Ext.P1 representation dated 26.08.2020, without any further delay; a writ of mandamus commanding respondents 2 and 3 to forthwith pay an amount of Rs.70,000/- to the petitioners, towards the loss suffered by them on W.P.(C)No.18405 of 2020 -5- account of illegal interception of lorry bearing registration No.KL- 50/3059, on 17.08.2020; a writ of mandamus commanding respondents 4 to 6 to afford adequate and meaningful protection to the petitioners, the auction purchaser and also the workers engaged in cutting, loading and transporting from Aarthala Estate, covered by Ext.P2 series of basic tax receipts, without being interfered with in any manner, either by respondents 7 and 8 or their men; and a writ of mandamus commanding respondents 4 to 6, namely, the Deputy Superintendent of Police, Malappuram, the Circle Inspector of Police, Karuvarakundu and the Sub Inspector of Police, Karuvarakundu, to pass orders on Ext.P3 petition dated 31.08.2020, without any delay.
2. Going by the averments in the writ petition, within the limits of Aarthala Estate, there are large quantities of reeds. The same was being auctioned annually and the auction purchaser has been regularly cutting and transporting reeds without any interruption. Since reeds are not a forest produce, as defined under the Kerala Forest Produce Transit Rules, 1975, no permission from respondents 1 to 3 is required for cutting and transporting reeds from the registered holdings/estate of the petitioners. This year also ripened reeds were auctioned for being cut and removed. On W.P.(C)No.18405 of 2020 -6- 17.08.2020, the auction purchaser was removing one lorry load of reeds, respondents 2 and 3 intercepted the lorry bearing registration No.KL-50/3059 and insisted that the reeds must be unloaded, least they would seize the lorry as well. The workers of the auction purchaser unloaded reeds from the lorry, which is lying exposed to sun and rain ever since 17.08.2020, which has become completely useless. The value of one lorry load of reeds comes to Rs.50,000/-. Apart from this, towards loading and unloading charges, the auction purchaser has to incur an amount of Rs.30,000/- (Rs.22,000/- towards loading and Rs.8,000/- towards unloading). The petitioners will have to reimburse the said amount to the auction purchaser. On account of the aforesaid action of respondents 2 and 3, the petitioners were constrained to abruptly stop the cutting and removal of the auctioned reeds, and the auction purchaser is likely to claim damages from the petitioners. Since reeds are ripe for being cut and removed, the petitioners cannot afford to wait any further. Apprehending that respondents 2 and 3 may again intercept the lorry transporting reeds, the 1st petitioner submitted Ext.P1 petition dated 26.08.2020 before the 1st respondent Divisional Forest Officer, with copy to respondents 2 and 3. Though the 1 st respondent has W.P.(C)No.18405 of 2020 -7- acknowledged the receipt of Ext.P1, he has not even chosen to enquire about the correctness or otherwise of the allegations contained therein. Relying on the provisions under the Kerala Forest Act, 1961 and also the Kerala Forest Produce Transit Rules, the petitioners would contend that, reeds cut and removed from their registered holdings covered by Ext.P2 series of basic tax receipts, having a total extent of 350 acres, would not be a forest produce, either under the provisions of the said Act or the said Rules.
3. In the writ petition it is alleged that, respondents 7 and 8 are instrumental for persuading the forest officials, namely, respondents 2 and 3, to interfere with the transporting of reeds cut and removed from the petitioners registered holdings. Respondents 7 and 8 have already decided to somehow or otherwise prevent the cutting and transportation of reeds, even if the forest officials are persuaded to permit the petitioners to cut and transport reeds from their estate. The attempt of respondents 7 and 8 is to hold the petitioners for ransom and thus make profit from the aforesaid illegal activity. In such circumstances, the 1 st petitioner submitted Ext.P3 petition dated 31.08.2020 before the 4 th respondent Deputy Superintendent of Police, with copy to respondents 5 and 6, pointing W.P.(C)No.18405 of 2020 -8- out the attempt on the part of respondents 7 and 8, and requesting for adequate and effective police protection to the petitioners, the auction purchaser and also the workers involved in cutting, loading and transporting ripened reeds from Aarthala Estate, from being interfered with in any fashion by respondents 7 and 8 or their men. As evidenced by Exts.P4 and P5 receipts, respondents 4 to 6 have already acknowledged the receipt of Ext.P3 petition. According to the petitioners, after the receipt of Ext.P3 petition, respondents 5 and 6 expressed their inability to intervene in the matter on account of political cloud wheeled by respondents 7 and 8. In such circumstances, the petitioners have approached this Court in this writ petition seeking the reliefs stated hereinbefore.
4. On 08.09.2020, when this writ petition came up for admission, the learned Special Government Pleader took notice for respondents 1 to 6. The petitioners were directed to take out notice to respondents 7 and 8 by speed post or through e-mail, fax, WhatsApp, etc. In that order it was made clear that, if service is attempted electronically, the petitioners shall attach the copy of the writ petition and shall produce the proof of service before the Registry.
5. On 22.09.2020, when this writ petition came up for W.P.(C)No.18405 of 2020 -9- consideration, the Registry was directed to place materials to show service of notice on respondents 7 and 8.
6. The learned counsel for the petitioners has filed a memo dated 14.09.2020, wherein it is stated that the petitioners have served notice of the writ petition on the party respondents 7 and 8, namely, Suhaib and Rasheed by WhatsApp in their respective phone numbers, attaching the copy of the writ petition together with exhibits. The screen shots evidencing the receipt of WhatsApp were enclosed along with that memo.
7. In the order dated 08.10.2020, this Court noticed that the Apex Court has held in the decision in Suo Motu v. In Re :
Cognisance for Extension of limitation [ILR 2020 (3) Kerala 311] on 10.07.2020 as follows;
"Service of notices, summons and exchange of pleadings/documents, is a requirement of virtually every legal proceeding. Service of notices, summons and pleadings etc. have not been possible during the period of lockdown because this involves visits to post offices, courier companies or physical delivery of notices, summons and pleadings. We, therefore, consider it appropriate to direct that such services of all the above may be effected by e-mail, FAX, commonly used instant messaging services, such as WhatsApp, Telegram, Signal etc. W.P.(C)No.18405 of 2020 -10- However, if a party intends to effect service by means of said instant messaging services, we direct that in addition thereto, the party must also effect service of the same document/documents by email, simultaneously on the same date." (underline supplied)
8. Since there was no appearance for respondents 7 and 8, by the order dated 08.10.2020, the petitioners were directed to take out notice by special messenger to the said respondents, returnable by 13.10.2020.
9. On 16.09.2020, the petitioners have filed I.A.No.1 of 2020, seeking an order to accept Exts.P6 to P17 as additional documents.
10. A statement on behalf of the 1 st respondent Divisional Forest Officer has been filed through the learned Special Government Pleader (Forests), opposing the reliefs sought for in this writ petition. In the said statement it is pointed out that, the petitioners have not produced any documents before the 1st respondent, along with Ext.P1 petition, to prove their title over the property. The petitioners have produced Exts.P6 to P17 title deeds, along with I.A.No.1 of 2020, with regard to various extent of land in Kerala Estate Village in Nilambur Taluk, stated to have been purchased by them. It is not clear from Exts.P6 to P17 whether the prior deeds are genuine and have been W.P.(C)No.18405 of 2020 -11- executed in accordance with law. The recitals in Ext.P7 would only show that the above property was purchased by one among the petitioners from one P.K. Muhammed Ashraf, who is stated to have been in possession of the property by virtue of deed No.2946/1989. Exts.P6 and P8 are sale deeds, whereby the above property has been acquired by the petitioners by virtue of sale proceedings in O.P.No.85 of 1984 on the file of the District Court, Kozhikode. When the above property was put in auction sale, the partnership business of the firm C.P. Jose and Sons was dissolved. The recitals of other title deeds are to the effect that the prior deeds are the deeds of the year 1989, whereby various persons were holding the said property. Those prior deeds are not produced by the petitioners. The land involved in this case is part of the leasehold land and the lease has expired during 2004 and 2007. The Land Revenue Commissioner has given Annexure-R1(a) report dated 15.04.2013 on the issue connected with Kerala Estate C II Division. As evident from that report, the land involved in this case is part of 3596.45 acres of the Kerala Calicut Estate Ltd. An extent of 998.52 acres of un-surveyed forest land along with other lands were leased out by Babalassery Sankunni Menon to Mr.Edward Lionel Kirwan, for a period of 99 years. An extent W.P.(C)No.18405 of 2020 -12- of 1466.45 acres of forest land was also given on lease for 90 years to Mr.Edward Lionel Kirwan by another document dated 11.06.1914. By virtue of various documents, a total extent of 3596.45 acres of land in Sy.No.202 came in possession of the Kerala Calicut Estate Ltd., in 1934. It is stated in Ext.R1(a) report that the land originally belonging to Babalassery Balakrishna Menon or his legal heirs will vest with the Government, as on 01.01.1970. The documents of 1908 and 1914 would show that the land comprises of blocks of forest land, reserved forest and hills and it was leased for the purpose of plantation and cultivation. Only private forest can be leased out and in 1970 all private forests are vested with the Government as per the provisions of the Kerala Private Forest (Vesting and Assignment) Act, 1971. The entire land held by Babalassery Balakrishna Menon has been sold after 1970 to various persons, which is a case of fragmentation of estate and its transfer has to be treated as a case of conversion of plantation into some other category of land, in violation of provisions of the Kerala Land Reforms Act. Annexure R1(a) report is pending before the Government. The observations and conclusions in Annexure R1(a) report has to be probed further and it has to be verified as to whether any land involved in this writ petition is part of W.P.(C)No.18405 of 2020 -13- vested forest or reserved forest, as observed in that report.
11. The petitioners have filed a reply affidavit (wrongly titled as counter affidavit) to the statement filed on behalf of the 1 st respondent. In the said affidavit, the petitioners have stated that, Exts.P6 to P17 are the title deeds in respect of the properties involved in the instant case. The derivation of title is specifically recited in each of the title deeds. More so, a prima facie case, with respect to the title of the property involved in the litigation in favour of the petitioners, is established by production of Exts.P6 to P17 documents and Ext.P2 series of basic tax receipts for the period 2020-21. A reference to Annexure.R1(a) report produced by the 1st respondent would show that the same does not relate to the property belonging to the petitioners, which is exclusively lying in Sy.No.134/1pt. There is no reference anywhere in Annexure R1(a) report to the property involved in the instant litigation. In that view of the matter, Annexure R1(a) is totally irrelevant for the purpose of resolving the issue that has fallen for consideration in this writ petition. The property involved in this writ petition is known as Aarthala Estate. The Deputy Collector, Vigilance Cell, Kozhikode had conducted a detailed enquiry at the instance of the Deputy Commissioner (Land Revenue), W.P.(C)No.18405 of 2020 -14- Thiruvananthapuram, into the affairs relating to the property in Aarthala Estate. After detailed enquiry, Ext.P18 report dated 20.04.2005 has been submitted by the Deputy Collector, Vigilance Cell, Kozhikode, to the Deputy Commissioner (Land Revenue), Thiruvananthapuram. In that report, the enquiring authority had gone in depth into the allegations levelled against the properties involved in Aarthala Estate and found that each of the allegations are without any substance. The petitioners would contend that, in the light of Ext.P18 report, there is absolutely no substance in various averments in the statement filed on behalf of the 1 st respondent. A reference to the averments in paragraph 4 of the said statement and various statement in Annexure R1(a) report would show that those averments do not relate to the property involved in the instant case, which are specifically dealt with in Ext.P18 report. In the concluding portion of that report, it is specially found that there is absolutely no substance in the various allegations levelled against the property, popularly known as Aarthala Estate.
12. Heard the learned counsel for the petitioner and also the learned Special Government Pleader (Forests) appearing for respondents 1 to 6. Despite service of notice, none appears for W.P.(C)No.18405 of 2020 -15- respondents 7 and 8.
13. As already noticed hereinbefore, the first relief sought for in this writ petition is for a declaration that no permission from respondents 1 to 3 is necessary for the purpose of cutting, loading and transporting reeds from 350 acres of plantation, by name, Aarthala Estate.
14. In Bharat Singh v. State of Haryana [(1988) 4 SCC 534] the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter-affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of W.P.(C)No.18405 of 2020 -16- such facts have to be pleaded and annexed to it.
15. The law laid down by the Apex Court in Bharat Singh has been followed in the Division Bench decisions of this Court in Shaji T.G v. The Kerala Public Service Commission and others [2017 (3) KHC 459], Sophia M. v Asha V. and others [2019 (4) KHC 378], Asif Salam v. Registrar of Co-operative Societies and others [2020 (1) KLT 521] and State of Kerala and others v. Vishalakshi Amma [2020 (3) KHC 581].
16. In the instant case, the only documents placed on record along with the writ petition, in order to prove the title of the petitioners over the property having an extent of 350 acres of land, are Ext.P2 series of basic tax receipts. Along with I.A.No.1 of 2020, the petitioners have produced Exts.P6 to P17 sale deeds in respect of that property. Paragraph 2 of the affidavit filed in support of that interlocutory application reads thus;
"2. In the nature of the relief sought for in the above writ petition and in the nature of the submission made by the learned Special Government Pleader on behalf of respondents 1 to 3, it has become just and necessary to produce the copy of the title deeds of the petitioners in the above case. A true copy of the title deed of the property of the 1 st petitioner is produced herewith and may be marked as Ext.P6. Similarly, the 2nd W.P.(C)No.18405 of 2020 -17- petitioner Abdul Jabbar obtained the properties in question on the strength of 2 sale deeds. True copies of those sale deeds is produced herewith and may be marked as Exts.P7 and P7(a). Copies of the sale deeds in favour of the 3 rd petitioner is produced herewith and may be marked as Exts.P8 and P8(a). Similarly, the copy of the sale deed in favour of the 4 th petitioner is produced herewith and may be marked as Ext.P9. The sale deeds in favour of the 5th petitioner are produced herewith and may be marked as Exts.P10 and P10(a). The sale deeds in favour of 6th petitioner are produced herewith and may be marked as Exts.P11, P11(a), P11(b) and P11(c). The sale deeds in favour of 7th petitioner are produced herewith and may be marked as Exts.P12 and P12(a). The sale deeds in favour of 8 th petitioner are produced herewith and may be marked as Exts.P13 and P13(a). The sale deeds in favour of 9th petitioner is produced herewith and may be marked as Ext.P14. The sale deeds in favour of 10th petitioner are produced herewith and may be marked as Exts.P15 and P15(a). The sale deeds in favour of 11th petitioner are produced herewith and may be marked as Exts.P16 and P16(a). The sale deed in favour of 12 th petitioner is produced herewith and may be marked as Ext.P17. A reference to Exts.P6 to P17 are absolutely essential for a fair and just resolution of the dispute that has arisen for consideration in the above writ petition. Therefore I pray that this Hon'ble Court may be pleased to receive Exts.P6 to P17 as additional evidences in the above writ petition. In case, these documents are not received as additional evidence, I will be put to considerable hardship and irreparable injury. A separate W.P.(C)No.18405 of 2020 -18- application for the said relief is filed along with this affidavit and I pray that the same may be allowed."
17. Clause (f) of Section 2 of the Kerala Forest Act, 1951 define 'forest produce' to includes includes- (i) the following whether found in, or brought from, a forest or not, that is to say-timber, charcoal, wood-oil, gum, resin, natural varnish, bark, lac, fibres and roots of sandalwood and rosewood; and (ii) the following when found in, or brought from, a forest, that is to say,- (a) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees; (b) plants not being trees (including grass, creepers, reeds and moss) and all parts or produce of such plants; and (c) silk cocoons, honey and wax; (d) peat, surface soil, rock and minerals (including limestone, laterite, mineral oils and all products of mines or quarries).
18. As per clause (c) of Rule 2 of the Kerala Forest Produce Transit Rules, 1975, forest produce in transit includes forest produce as defined in clause (f), timber as defined in clause (k) and tree as defined in clause (l) of Section 2 of the Kerala Forest Act found on or on the road margin of any public road, whether loaded in carts or other vehicles or not and forest produce found in any river or stream W.P.(C)No.18405 of 2020 -19- whether tied into rafts or not.
19. Relying on the provisions under clause (f) of Section 2 of the Kerala Forest Act and clause (c) of Rule 2 of the Transit Rules, the learned counsel for the petitioner would contend that reeds cut and removed from the registered holding of the petitioners is not a 'forest produce' as defined in clause (f) of Section 2 of the Kerala Forest Act and as such, the reeds loaded in the vehicles brought by the auction purchaser cannot be treated as 'forest produce in transit' falling under clause (c) of Rule 2 of the Transit Rules. Therefore, no permission under the Transit Rules is required for transportation of reeds cut and removed from the registered holding of the petitioners.
20. The learned counsel for the petitioners would also point out that Kerala Estate Village in Nilambur Taluk is not notified by the State Government, in exercise of its powers conferred by sub-section (3) of Section 6 of the Kerala Promotion of Tree Growth in Non-forest Areas Act, 2005 and as such, no permission under Section 6 of the said Act read with Rule 5 of the Kerala Promotion of Tree Growth in Non-forest Areas Rules, 2011 is required for cutting and removing reeds on the registered holding of the petitioners.
21. The issue that has to be considered, in the context of the W.P.(C)No.18405 of 2020 -20- declaratory relief sought for in this writ petition, that no permission from respondents 1 to 3 are necessary for the purpose of cutting, loading and transporting reeds from Aarthala Estate, is as to whether the petitioners can be granted such a relief on the strength of Ext.P2 series of basic tax receipts or even Exts.P6 to P17 sale deeds produced along with I.A.No.1 of 2020.
22. Relying on Ext.P18 report dated 20.04.2005 of the Deputy Collector, Vigilance Cell, Kozhikode, the petitioners would contend that the enquiring authority, after in-depth enquiry, found that the allegations levelled against the properties of Aarthala Estate without any substance.
23. In Ext.P18 report dated 20.04.2005 of the Deputy Collector, Vigilance Cell, Kozhikode it is noted as follows;
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വനക ശസ ൽകരണ ന യമ വനത മന ത ടർന2 ആർതല എകQ% നമറ
വ യ യ ളത മ ൻപ കതയ ല സ സ രണതന ള വ റക കശഖര കനത ന
മ%< Tഷ യ ല? മത ടനര നത മ യ (സ1 ര വന ) 802.64 ഏകർ
സർക ര ൽ ന കപതമ യ ട<ളത ണ. കന ട E കകഷൻ-ഐ% നമർ 36- ണത2
മലവ ര 1541.25 മഹകടർ വനതൽ കമൽ ണച 802.64 ഏകർ വനവ
ഉൾമ.ട നണ2. (അന ബന ക ജ നമർ 101-105) വനക ശസ ൽകരണ
ന യമപ ര ഭ മ നഷമ.ടത മനത മര ആർതല എകQ%2 റസവർ പശ . നകൽ
കവല യ ധന മന പ തനധയ യ പശ . എൻ. എസ. ക വ സ ക-ർന2
മകZര കE റQ2 ക ടത യ ൽ ഒ. എ. 279/76 നമറ യ ക സ Eയൽ
മ-യ< യ ഉണ യ . എന ൽ ക ടത ഹരജ ക ര മട വ നര രക യ
സല വനമ മണന2 ഉതരവ റക യ മ-യത . (ഐ. എ. നമർ385 /78)
ഇത മനത മര റസവറ പശ . ക വ സ ക രള കഹകക ടത യ ൽ ഒ. . നമർ.
3770/78, എ . എഫ. എ. 440/78 നമറ യ അ.ൽ Eയൽ മ-യ< യ ബഹ.
ക രള കഹകക ടത 08-1-1981 ന ഹരജ ക ര മട വ നര ര രക യ
സല വനമ യ ന ലന ർത ൻ ഉതരവ യ ആണ ഉണ യത. (അന ബന
ക ജ നമർ 107-120) വ യ സ ഖ വസ ൽ മ-യ<നത ന ക ഴ കക ട ജ ല?
ക ടത 14-10-1981 ൽ കലല മ-യതത 12-3-1984 ന കലലതൽ വ ള മചട ത
പശ . സ . . കജ സ ന ക വശ മ ടത എന റയ ന 802.64 ഏകർ
അൺസർവ ഭമ 08-1-1981 ന തമന ക രള കഹകക ടത വനമ യ
ന ലന ർത ൻ ഉതരവ യ ഭ മ യ ണ. കഹകക ടത വനമ മണന2 ഉതരവ യ
ഭമ കലല മ-യതത ത ടർ നട ട ൾ സ1 ര ചത ശര യ മണന2
W.P.(C)No.18405 of 2020 -22-
കത നനല?. കE റQ2 ഡ . ർട2മമന^18-7-1981, 23-12-1982, 22-7-1983
ത യത ള മല റ ക. ർട< ള ൽ ആർതല എകQ% കന ട ക-ർന അൺ സർവ
ഭ മ യ ൽ സ1 ര ക വശതല ള 60 ഏകർ ഴ ച<ള മ ഴ വൻ സലവ
കE റQ2 വ . നമറ അധ നതയ ല മണന2 ണച2 9-8-1981 ത യത യ ൽ
മ ര നൽമണ2 കE റQ2 കറZ2 ഓEസർ ന ലമ ർ കE റQ2 സaത2 ഡ വ ഷണൽ ഓEസർക2 റ ക. ർട2 അയച ട<ണ2. (അന ബന ക ജ നമർ 12-1-130) വന വ .2 സ1ന അധ നതയ ല മണന2 ണച 774.32 ഏകർ ഭമ ഉൾമ.മടയ ണ ക ഴ കക ട ജ ല? ക ടത 14-10-1981 ന കലല മ-യതത ആമൻ 12-3-1984 ൽ കലലതമലട ത ആള ന ക വശ മ ടത എന റയ നത . ആയത രസ രവ ര ദമ യ ര ങള ണ."
24. In Ext.P18 report dated 20.04.2005 the enquiring authority noticed irregularity in the sale of land by the District Court, Kozhikode, which is the transaction referred to in Exts.P6, P8, P10 and P11 sale deeds. Annexure R1(a) report dated 15.04.2013, which is now pending consideration before the Government, is one submitted by the Land Revenue Commissioner on the issue connected with Kerala Estate C II Division. As discernible from Annexure R1(a) report, the land involved in this case is part of 3596.45 acres of the Kerala Calicut Estate Ltd. As per that report, the land originally belonging to Babalassery Balakrishna Menon or his legal heirs will vest with the Government, as on 01.01.1970. Though the petitioners are seeking declaratory reliefs in respect of the property covered by Ext.P2 series of basic tax receipts, for reasons best known to them, they have not chosen to implead the Land Revenue Commissioner and W.P.(C)No.18405 of 2020 -23- other officials in the Revenue Department as parties to this writ petition. They have also not disclosed the pendency of Annexure R1(a) report of the Land Revenue Commissioner, before the State Government. At any rate, the petitioners cannot seek declaratory reliefs touching their title over the property covered by Ext.P2 series of basic tax receipts, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India.
25. Though, it is averred in the writ petition, that 350 acres of land, popularly known as Aarthala Estate, is a plantation, it is not disclosed as to whether the estate is planted with tea or rubber. In relief No.(i), which is a declaratory in nature, declaration is sought for in respect of 350 acres of plantation for the purpose of cutting, loading and transporting reeds.
26. On a specific query made by this Court, the learned counsel for the petitioners would submit that, though the nature of plantation is not mentioned in the writ petition, as can be seen from the documents placed on record along with I.A.No.1 of 2020, the property which was originally planted with tea is presently planted with rubber. The learned counsel would also clarify that, though the declaratory relief sought for in the writ petition is for cutting, loading W.P.(C)No.18405 of 2020 -24- and transporting reeds from the property having an extent of 350 acres of land, reads are there only on the periphery of the estate, occupying an area of around 5 acres.
27. The learned Special Government Pleader, on instructions, would submit that the area occupied by reeds is less than 5 acres. The learned Special Government Pleader would submit further that there is no law and order problem in the locality. When the auction purchaser attempted to transport a lorry load of reeds form Aarthala Estate, the Forest officials intercepted the vehicle, since there is serious disputes as to the petitioners' title over the property, as borne out from Annexure R1(a) report of the Land Revenue Commissioner, which is now pending before the State Government.
28. The 1st petitioner submitted Ext.P1 petition before the 1 st respondent Divisional Forest Officer apprehending that respondents 2 and 3 may again intercept the lorry transporting reeds. That petition is still pending consideration. Therefore, it is for the 1 st respondent to take an appropriate decision on Ext.P1 petition, after obtaining necessary clarification from the Land Revenue Commissioner, who has already submitted Annexure R1(a) report before the State Government, with notice to the 1st petitioner and after affording him W.P.(C)No.18405 of 2020 -25- an opportunity of being heard. Based on the decision so taken, the 1 st respondent shall issue necessary instructions to respondents 2 and 3 in the matter of cutting and removal of reeds from Aarthala Estate.
29. Another relief sought for in this writ petition is a writ of mandamus commanding respondents 4 to 6 to afford adequate and meaningful police protection to the petitioners, the auction purchaser and the workers engaged in the cutting, loading and transporting of reeds from Aarthala Estate, without being interfered with in any fashion either by respondents 7 and 8 or their men.
30. During the course of arguments, the specific stand taken by the learned Special Government Pleader is that the forest officials intercepted the vehicle loaded with reeds since there is serious disputes as to the petitioners' title over the property, as borne out from Annexure R1(a) report of the Land Revenue Commissioner, which is now pending before the State Government. In Ext.P3 petition filed before the 4th respondent Deputy Superintendent of Police, the 1st petitioner has no case that respondents 7 and 8 have physically obstructed transportation of reeds on lorry bearing registration No.KL- 50/3059, on 17.08.2020. The only apprehension in Ext.P3 petition is that respondents 7 and 8 and their men have made arrangements to W.P.(C)No.18405 of 2020 -26- intercept any further lorry loads of reeds cut and removed from Aarthala Estate. In case of any law and order issues in the locality, it is for the 1st petitioner to move a petition before the 5th respondent Station House Officer, seeking police protection, with appropriate pleadings.
In the result, this writ petition is disposed of by directing the 1 st respondent to take an appropriate decision on Ext.P1 petition, after obtaining necessary clarification from the Land Revenue Commissioner, with notice to the 1 st petitioner and after affording him an opportunity of being heard, as expeditiously as possible, at any rate, within a period of three weeks from the date of receipt of a certified copy of this judgment. Based on the decision so taken, the 1st respondent shall issue necessary instructions to respondents 2 and 3 in the matter of cutting and removal of reeds from Aarthala Estate.
Sd/-
ANIL K.NARENDRAN, JUDGE yd W.P.(C)No.18405 of 2020 -27- APPENDIX PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PETITION DATED 26.8.2020 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT WITH COPIES TO RESPONDENTS 2 AND 3 EXHIBIT P2 TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S NO 1329549 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 1ST PETITIONER EXHIBIT P2 (A) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S. NO 1329553 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 3RD PETITIONER EXHIBIT P2 (B) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S. NO 1329554 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 10TH PETITIONER EXHIBIT P2 (C) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S. NO 1329555 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 4TH PETITIONER EXHIBIT P2 (D) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S. NO 1329556 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 2ND PETITIONER EXHIBIT P2 (E) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 1329557 EVIDENCING PAYMENT OF PROPERTY TAX.
EXHIBIT P2 (F) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 1329558 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 1ST PETITIONER EXHIBIT P2 (G) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 1329559 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 11TH PETITIONER EXHIBIT P2 (H) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 1329560 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 13TH PETITIONER W.P.(C)No.18405 of 2020 -28- EXHIBIT P2 (I) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 1329565 EVIDENCING PAYMENT OF PROPERTY TAX EXHIBIT P2 (J) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 132955 E4VIDENING PAYMENT OF PROPERTY TAX.
EXHIBIT P2 (K) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 1329550 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 12TH PETITIONER EXHIBIT P2 (L) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 1329551 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 5TH PETITIONER EXHIBIT P2 (M) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 1329544 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 11TH PETITIONER EXHIBIT P2 (N) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 132955 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 7TH PETITIONER EXHIBIT P2 (O) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 1329546 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 6TH PETITIONER EXHIBIT P2 (P) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 1329548 EVIDENCING PAYMENT OF PROPERTY TAX BY THE 8TH PETITIONER EXHIBIT P2 (Q) TRUE COPY OF THE CURRENT TAX RECEIPT VIDE S.NO 1329547 EVIDENCING PAYMENT OF PROPERTY TAX.
EXHIBIT P3 TRUE COPY OF THE PETITION DATED 31.8.2020 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 4TH RESPONDENT WITH COPIES TO RESPONDENTS 5 AND 6 EXHIBIT P4 TRUE COPY OF THE RECEIPT EVIDENCING THE ACCEPTANCE OF EXT P3 BY THE 4TH RESPONDENT ON 2.9.2020 W.P.(C)No.18405 of 2020 -29- EXHIBIT P5 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT OF EXT P3 DULY ACKNOWLEDGED BY RESPONDENTS 5 AND 6 ON 1.9.2020 EXHIBIT P6 TRUE COPY OF THE TITLE DEED OF THE PROPERTY OF THE 1ST PETITIONER DATED 09/08/1989.
EXHIBIT P7 TRUE COPY OF THE SALE DEED DATED
24/11/2004 IN FAVOUR OF THE 2ND PETITIONER
EXECUTED BY K.A.MUHAMMED.
EXHIBIT P7(a): TRUE COPY OF THE SALE DEED DATED
24/11/2004 IN FAVOUR OF THE 2ND PETITIONER
EXECUTED BY K.A.KHADEEJA.
EXHIBIT P8: TRUE COPY OF THE SALE DEED DATED
19/08/1989 IN FAVOUR OF THE 3RD
PETITIONER.
EXHIBIT P8(a): TRUE COPY OF THE SALE DEED DATED
24/11/2004 IN FAVOUR OF THE 3RD
PETITIONER.
EXHIBIT P9: TRUE COPY OF THE SALE DEED DATED
24/11/2004 IN FAVOUR OF THE 4TH
PETITIONER.
EXHIBIT P10: TRUE COPY OF THE SALE DEED DATED
24/11/2004 IN FAVOUR OF THE 5TH
PETITIONER.
EXHIBIT P10(a): TRUE COPY OF THE SALE DEED DATED
09/08/1989 IN FAVOUR OF THE 5TH
PETITIONER.
EXHIBIT P11: TRUE COPY OF THE SALE DEED DATED
24/11/2004 IN FAVOUR OF THE 6TH
PETITIONER.
EXHIBIT P11(a): TRUE COPY OF THE SALE DEED DATED
19/08/1989 IN FAVOUR OF THE 6TH
PETITIONER.
W.P.(C)No.18405 of 2020 -30-
EXHIBIT P11(b): TRUE COPY OF THE SALE DEED DATED
24/11/2004 IN FAVOUR OF THE 6TH PETITIONER
BY M.R.MURALEEDHARAN.
EXHIBIT P11(c): TRUE COPY OF THE SALE DEED DATED
24/11/2004 IN FAVOUR OF THE 6TH PETITIONER
BY M.S.UNNI.
EXHIBIT P12: TRUE COPY OF THE SALE DEED DATED
28/04/2000 EXECUTED IN FAVOUR OF THE 7TH
PETITIONER.
EXHIBIT P12(a): TRUE COPY OF THE SALE DEED DATED
28/04/2020 EXECUTED IN FAVOUR OF THE 7TH
PETITIONER BY GOPALAN NAIR.
EXHIBIT P13: TRUE COPY OF THE SALE DEED DATED
24/11/2004 EXECUTED IN FAVOUR OF THE 8TH
PETITIONER BY M.R.MURALEEDHARAN.
EXHIBIT P13(a): TRUE COPY OF THE SALE DEED DATED
24/11/2004 EXECUTED IN FAVOUR OF THE 8TH
PETITIONER BY GOPALAN NAIR.
EXHIBIT P14: TRUE COPY OF THE SALE DEED DATED
09/08/1989 EXECUTED IN FAVOUR OF THE 9TH
PETITIONER.
EXHIBIT P15: TRUE COPY OF THE SALE DEED DATED
09/08/1989 EXECUTED IN FAVOUR OF THE 10TH
PETITIONER .
EXHIBIT P15(a): TRUE COPY OF THE SALE DEED DATED
24/11/2004 EXECUTED IN FAVOUR OF THE 10TH
PETITIONER .
EXHIBIT P16: TRUE COPY OF THE SALE DEED DATED
24/11/2004 EXECUTED IN FAVOUR OF THE 11TH
PETITIONER.
EXHIBIT P17: TRUE COPY OF THE SALE DEED DATED
24/11/2004 EXECUTED IN FAVOUR OF THE 12TH
PETITIONER.
W.P.(C)No.18405 of 2020 -31-
EXHIBIT P18: TRUE COPY OF THE REPORT DATED 20/04/2005
SUBMITTED BY THE DEPUTY COLLECTOR,
VIGILANCE CELL, KOZHIKODE TO THE DEPUTY
COMMISSIONER (LAND REVENUE)
THIRUVANANTHAPURAM.
1ST RESPONDENT'S ANNEXURE:
ANNEXURE R1(A): TRUE COPY OF THE REPORT OF THE LAND
REVENUE COMMISSIONER DATED 15.04.2013.