Kerala High Court
Kurien E.Kalathil vs Tom Jose on 17 March, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 17TH DAY OF MARCH 2020 / 27TH PHALGUNA, 1941
Con.Case(C).No.1762 OF 2018 IN MFA. 31/2018
AGAINST THE ORDERS IN IA NOS.1330/2018 & 1992/2018 IN MFA 31/2018
OF HIGH COURT OF KERALA
PETITIONER/RESPONDENT:
KURIEN E.KALATHIL,
AGED 70 YEARS,
PROPRIETOR, PONMUDI ESTATE, T.C.14/1004,
VAZHUTHACADU, THIRUVANANTHAPURAM-695 001.
BY ADVS.
SRI.M.RAMESH CHANDER (SR.)
SMT.K.A.SANJEETHA
RESPONDENTS/APPELLANTS:
1 TOM JOSE
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,
CHIEF SECRETARY TO GOVT. OF KERALA,
SECRETARIAT, TRIVANDRUM-695 001.
2 DR.VENU V., IAS,
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,
PRINCIPAL SECRETARY, FOREST AND WILD LIFE DEPARTMENT,
ROOM NO.374, 1ST FLOOR, MAIN BLOCK, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 BENNICHAN THOMAS,
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,
THE CUSTODIAN (ECOLOGICALLY FRAGILE LANDS) AND
PRINCIPAL CHIEF CONSERVATOR OF FORESTS (E & TW)
FOREST HEAD QUARTERS, TRIVANDRUM -695 001.
4 D.RATHISH IFS,
AGED 57 YEARS
S/O.DANIEL, DIVISIONAL FOREST OFFICER, OFFICE OF THE
DIVISIONAL FOREST OFFICE, THIRUVANANTHPAURAM-695 001.
Cont. Case (C)No.1762 of 2018
2
5 ABDUL JALEEL,
AGE AND FATHER'S NAME NOT KNOWN TO THE
PETITIONER, FOREST RANGE OFFICER, KULATHUPUZHA
RANGE, P.O.KULATHUPUZHA, DT.KOLLAM-691 310.
6 THULASIDHARAN NAIR
AGE AND FATHER'S NAME NOT KNOWN TO THE
PETITIONER, SECTION OFFICER, PONMUDI FOREST
SECTION, KULATHUPUZHA FOREST RANGE, P.O.
KULATHUPUZHA, DT.KOLLAM-691 310.
7 VISNU
AGE AND FATHER'S NAME NOT KNOWN TO THE
PETITIONER
BEAT FOREST OFFICER,PONMUDI FOREST SECTION,
KULATHUPUZHA FOREST RANGE, P.O.KULATHUPUZHA,
KOLLAM DISTRICT - 691 310.
8 RAJENDRAN
S/O ACHUTHAN, AGE NOT KNOWN TO THE PETITIONER
FOREST WATCHER, PONMUDI FOREST SECTION,
KULATHUPUZHA FOREST RANGE, P.O.KULATHUPUZHA,
KOLLAM DISTRICT - 691 310.
R1-8 BY SPL. GOVERNMENT PLEADER (FOREST)
SRI.SANDESH RAJA
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN
FINALLY HEARD ON 17.03.2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Cont. Case (C)No.1762 of 2018
3
JUDGMENT
Dated this the 17th day of March, 2020 S.Manikumar, C.J.
On 13.3.2020, we passed the following order:
"On 10.02.2020, this Court passed the following order:
"On 27.6.2019, a Hon'ble Division Bench of this Court has passed the following order:
"Two Contempt Cases have been filed. The Cont. Case No.1762 of 2018 is by the owner of the Ponmudi Estate alleging obstruction by the Forest authorities with the agricultural operations permitted in those areas of the Estate, where such activities were going on for past several years. Whereas the Contempt Case No.131 of 2019 is filed by the Custodian of Ecologically Fragile Lands alleging that the owner of the Estate is extending the area of agricultural operations, in violation of the status-quo order passed by this court.
2. The rival submission made by Smt. K.A. Sanjeetha, representing the petitioner in Contempt Case No.1762 of 2018 and Sri.Nagaraj Narayanan, the Special Government Pleader (Forest) representing the Custodian indicates that the total Estate area measures around 872.56 acres, but the entire Estate area was declared to be ecologically fragile land. However, in the proceedings before the Forest Tribunal, such stand of the Forest authorities was rejected and therefore the State has filed the M.F.A. (Forest) No.31 of 2018, impugning the order of the Tribunal, in favour of the Estate owner.
3. In the proceedings initiated under the Kerala Private Forest (Vesting and Assignment) Act, 1971, out of the total land under the Estate, around 263 acres, were found to be vested Forest and the remaining around 600 acres, were exempted from vesting. In the proceedings under the 1971 Act before the Forest Tribunal, the vested forest area is confined to around 27 acres, out of the original 263 Cont. Case (C)No.1762 of 2018 4 acres, that were considered for vesting.
4. There is lack of clarity as to the precise location of the areas, which are excluded from vesting, the extent of area which is covered by the court's status quo order where the agricultural operations can be permitted. The learned Government Pleader as well as the counsel for the Estate owner should therefore file their respective response providing details and demarcation of the areas, covered by the status quo order. It would be helpful if a location map, indicating the total extent of Estate area, the extent of vesting area and the extent kept out of vesting is provided with their respective survey numbers.
5. Three weeks time is accordingly granted for the purpose, as prayed for."
2. Pursuant thereto, the Divisional Forest Officer, Thiruvananthapuram has taken up survey work in Ponmudi Estate to demarcate the area and to prepare a survey sketch with the help of the Assistant Director, Forest Mini Survey, Kozhikode. Survey teams have been formed to demarcate the area under the supervision of the Assistant Director stated supra. However, due to intermittent rains, the survey work could not be completed in time and thus I.A.No.4 of 2019 has been filed for extension of time for a further period of two months from 19.10.2019. The said application has not been ordered though the period of two months has expired. Hence I.A.No.2 of 2020 has been filed on 24.1.2020, seeking extension of time. Supporting the prayers sought for, Custodian of Ecologically Fragile Lands, Forest Headquarters, Thiruvananthapuram, has contended thus:
"6. During the aforesaid period of 2 months from 22.10.2019 to 19.12.2019, for which period extension of time was sought and thereafter till Cont. Case (C)No.1762 of 2018 5 08.01.2020, though the survey work could not be done on many days, still on several days' work was interrupted or could not be done due to rain and mist. During the months of October, November and December 2019 and during 1st week of January 2020, there were intermittent showers hampering the progress of the survey. True copies of details of daily rainfall in Nedumangad and Ponmudi Stations in which the disputed land lies, for the period of October, November and upto 16th December, 2019 are produced herewith and marked as Annexure- XVI.
7. Further the intensity of mist during the 2 nd part of November and entire period of December, was comparatively high and this was also hampering the progress of survey. As a result, as on 08.02.2020, out of 873 acres (353 Ha.), survey could not be completed in respect of 550 acres (223 Ha.) and the balance extent to which survey is to be done is 322 acres (130 Ha.) which has to be surveyed and verified. So 63% of the area in dispute has been surveyed and the remaining 47% is to be completed, and it could not be completed only due to intermittent showers and heavy mist during the past 2 months.
8. Break up of area surveyed so far is as follows. Vested Forest area to be surveyed is 263 acres (106.5 Ha.) of which survey and verification has been completed for demarcation in respect 170 acres (68.7966 Ha.) and remaining area to be surveyed and verified is 93 acres (37.6358 Ha.). Regarding the rest of the area, which is also notified as EFL which includes plantation areas, natural vegetation areas, roads, buildings etc., the total area is 610 acres (246.858 Ha.). Of his, 380 acres (153.781 Ha.) have already been surveyed and verified for the purpose of demarcation for classification of different categories of land and 230 acres (93.0777 Ha.) remains to be surveyed and verified. Thus, 550 acres (222.577 Ha.) out of 873 acres (353.297 Ha.) have been surveyed and verified so far, which means 63% area has been surveyed and verified and demarcated and 47% area remain to be surveyed. The disputed area, being located in a geographically sensitive area of Western Ghats having proximity to Tamil Nadu, is subjected to incessant and unexpected Cont. Case (C)No.1762 of 2018 6 rain showers. It is expected that the intermittent rains will be less during January and February 2020. So the remaining survey work could be completed during this period. So it is expected that the survey and verification of the remaining 47% area could be completed by 29.02.2020."
3. C.M.Appln.No.3 of 2020 has also been filed to condone the delay of 37 days in filing I.A.No.2 of 2020. Supporting the averments that there were heavy rains which prevented the Custodian of Ecologically Fragile Lands, Forest Headquarters, Thiruvananthapuram, in completing the survey works, certain documents have been filed. Hence I.A.No.1 of 2020 has been filed to receive the documents. We are satisfied with the reasons assigned and C.M.Appln.No.3 of 2020 and I.A.No.1 of 2020 are allowed. Period for which extension of time was sought for has lapsed and hence I.A.No.4 of 2019 has become infructuous and accordingly dismissed.
4. Ms.K.A.Sanjeetha, learned counsel for the contempt petitioner in Cont. Case (C)No.1762 of 2018 submitted that under the guise of survey, new demarcation of boundaries is being done. She prayed that survey be conducted with reference to the existing boundaries.
5. Heard learned counsel for the parties and perused the material available on record.
6. Though contra submission on behalf of the contempt petitioner in Cont. Case (C)No.1762 of 2018 has been made, we are not inclined to direct the Divisional Forest Officer, Thiruvananthapuram to start survey afresh, instead having satisfied with the reasons assigned in the supporting affidavit of I.A.No.2 of 2020, we permit the said Cont. Case (C)No.1762 of 2018 7 Authority and the survey teams to complete the process of survey and submit a report, as expeditiously as possible, by not later than 15 days from today.
Post the cases on 9.3.2020."
2. Pursuant to the above, a report dated 12.03.2020 of the survey conducted by the Forest Mini Survey Team, on behalf of the Custodian of Ecologically Fragile Lands along with survey sketch is filed in CO(C) No.131 of 2019.
3. We have gone through the report and the sketch enclosed along with the report. We are satisfied that the Custodian of Ecologically Fragile Lands has conducted resurvey as directed. However, learned counsel representing Smt.K.A.Sanjeetha, learned counsel for the contempt petitioner on record in CO(C) No.1762 of 2018, seeks time.
Post on 17.03.2020."
2. Per contra, Ms.K.A.Sanjeetha, learned counsel for the contempt petitioner submitted that the petitioner had filed a detailed report and according to her, entire subject area is under cultivation. Thus, it is seen from the report that there is factual dispute with regard to the area under cultivation. Writ court, under Article 226 of the Constitution of India, cannot venture to enter into disputed question of fact, in contempt proceedings.
3. Thus, we are not inclined to retain the contempt petition.
Cont. Case (C)No.1762 of 2018 8If the petitioner is aggrieved by the report submitted by the Custodian (Ecologically Fragile Lands) and Principal Conservator of Forests, Thiruvananthapuram, it is always open to the writ petitioner to assail the correctness of the same in the manner known to law and in accordance with law.
Contempt petition is accordingly closed.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
S.Manikumar, Chief Justice Sd/-
Shaji P.Chaly Judge vpv Cont. Case (C)No.1762 of 2018 9 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE-A1 CERTIFIED COPY OF THE ORDER IN IA NO.1330/18 DATED 10/4/2018 ANNEXURE-A2 PHOTOSTAT COPY OF THE LETTER TO THE DFO, THIRUVANANTHAPURAM DATED 12/4/2018 ANNEXURE-A3 PHOTOSTAT COPY OF THE LETTER TO THE DFO, THIRUVANANTHAPURAM DATED 20/4/2018 ANNEXURE-A4 PHOTOSTAT COPY OF THE REPLY ISSUED BY THE DFO, THIRUVANANTHAPURAM DATED 24/4/2018 ANNEXURE-A5 CERTIFIED COPY OF THE ORDER IN IA 1992/18 DATED 9/7/2018 ANNEXURE-A6 PHOTOSTAT COPY OF THE NOTICE ISSUED BY RANGE FOREST OFFICER, KULATHUPUZHA DATED 16.8.2018 WITH ENGLISH TRANSLATION.
/TRUE COPY/ P.A. TO JUDGE