Kerala High Court
Issac Varghese vs State Of Kerala Represented By The ... on 12 March, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
1
W.P.(C)No.25542 of 2024
2025:KER:20555
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
WEDNESDAY, THE 12TH DAY OF MARCH 2025 / 21ST PHALGUNA, 1946
WP(C) NO. 25542 OF 2024
PETITIONERS:
1 ISSAC VARGHESE,AGED 77 YEARS
S/O VARGHESE, 9/25, 301 COLONY, SINGUKANDAM P.O.
CHINNAKANAL VILLAGE, IDUKKI DISTRICT, KERALA,, PIN -
685618
2 ISSAC GEORGE,AGED 66 YEARS
S/O GEORGE, 9/26, 301 COLONY, SINGUKANDAM P.O.
CHINNAKANAL VILLAGE, IDUKKI DISTRICT, KERALA,, PIN -
685618
3 ROJAN THOMAS,AGED 36 YEARS
S/O THOMAS PHILIP, 9/27, 301 COLONY, SINGUKANDAM P.O.
CHINNAKANAL VILLAGE, IDUKKI DISTRICT, KERALA,, PIN -
685618
BY ADVS.
JOHNY K.GEORGE
ATHULYA MARTIN
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY
DEPARTMENT OF FOREST AND WILD LIFE ,GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM,KERALA, PIN - 695001
2 DIVISIONAL FOREST OFFICER
CHINNAKKANAL FOREST RANGE, IDUKKI DISTRICT, KERALA,,
2
W.P.(C)No.25542 of 2024
2025:KER:20555
PIN - 685618
3 KERALA STATE ELECTRICITY BOARD (KSEB), REPRESENTED BY
THE CHAIRMAN
VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, KERALA,,
PIN - 695004
4 ASSISTNT ENGINEER
OFFICE OF ASSISATANT ENGINEER. ELECTRICAL
SECTION,RAJAKUMARI,IDUKKI, PIN - 685619
5 RANGE FOREST OFFICER DEVIKULAM
DEVIKULAM, MUNNAR, KERALA 686513.
6 CHINNAKANAL GRAMA PANCHAYATH REPRESENTED BY ITS
SECRETARY,CHINNAKANAL, IDUKKI, KERALA
7 THE DISTRICT COLLECTOR, IDUKKI
COLLECTORATE IDUKKI, KUYILIMALA, PAINAV P.O., IDUKKI,
KERALA STATE 685603
8 REVENUE DIVISIONAL OFFICER, DEVIKULAM
DEVIKULAM CIRCULAR ROAD, DEVIKULAM, TALUK, KANNAN
DEVAN HILLS, KERALA, 686513 (ADDL R5 TO R8 ARE
IMPLEADED AS PER THE ORDER DTD. 07.08.2024 IN IA
No.1/2024)
BY ADV NIRMAL.S
ADV.NAGARAJ NARAYAN,SPECIAL GOVERNMENT PLEADER(FOREST)
ADV.B.PRAMOD, SC, KSEB
SRI.JAFFAR KHAN, SENIOR GOVERNMENT PLEADER
SRI.K.R PRATHISH, SC, CHINNAKANAL GRAMA PANCHAYAT
THIS WRIT PETITION (CIVIL) WAS FINALLY HEARD ON 06.02.2025,
THE COURT ON 12.03.2025 PASSED THE FOLLOWING:
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W.P.(C)No.25542 of 2024
2025:KER:20555
JUDGMENT
Muralee Krishna, J.
This writ petition is filed under Article 226 of the Constitution of India by the petitioners seeking the following reliefs:
"a) Issue a writ of certiorari or any other appropriate writ, order, or direction, calling for the records relating to the impugned notices marked as Exts. P5, P5A and P5B issued by the KSEB on 10.07.2024 to the petitioners and quashing the same.
b) Issue a writ of mandamus or any other appropriate writ, order, or direction, restraining the 4th respondent from disconnecting the electricity supply to the petitioners' residences till the disposal of this writ petition."
2. Going by the pleadings in the writ petition, petitioners are members of Scheduled Tribe residing at Chinnakanal in Idukki District of Kerala State and are beneficiaries of Government Scheme for land distribution. According to them, they have been residing in their respective lands since 2006. The 3rd respondent Kerala State Electricity Board ('KSEB' for short) provided electricity connections to them on 09.07.2024. The electricity line was drawn through a notified land for the proposed Suryanelli Reserve Forest which was originally not a forest land. However, 4 W.P.(C)No.25542 of 2024 2025:KER:20555 the notification was frozen by the Government. But despite such a step by the Government, the 5th respondent Range Forest Officer issued a notice to the 4th respondent Assistant Engineer stating that the electricity line was drawn through the forest land without consent. Consequently, the 3rd respondent KSEB issued Exts.P5 to P5B notices dated 10.07.2024 to the petitioners warning disconnection, if they fail to produce the land records. Hence the petitioners approached this Court.
3. On 17.07.2024 when this matter came up for consideration, the learned Special Government Pleader (Forest), on instructions from the Range Forest Officer, Devikulam, submitted that the area in question comes under the purview of Chinnakanal Reserve notified under Section 4 of Kerala Forest Act, 1961, vide G.O.(P)No.19/2023/F & WLD dated 20.09.2023. The learned Special Government Pleader (Forest) and the learned Standing Counsel for the KSEB sought time to get instructions.
4. On 22.07.2024 the learned Special Government Pleader made available for perusal of this Court the notification mentioned above. After hearing the preliminary submissions of 5 W.P.(C)No.25542 of 2024 2025:KER:20555 both sides, we directed the petitioners to file an application to implead the Range Forest Officer, Devikulam, Chinnakanal Grama Panchayat represented by its Secretary, the District Collector, Idukki and the Revenue Divisional Officer, Devikulam as additional respondents.
5. On 07.08.2024, we allowed the petitioners' interlocutory application to implead additional respondents 5 to 8.
6. The 2nd respondent Divisional Forest Officer filed a counter affidavit denying the pleadings in the writ petition and contending that the status of the petitioners is of rank trespassers. Exts.R2 (a) to (d) documents were placed on record along with the counter affidavit filed by the 2nd respondent.
7. Respondents 3 and 4 filed counter affidavits contending that the electricity connection given to the sheds put up by the petitioners was legal and Exts.P5 to P5B notices were issued to the petitioners only on the basis of the notice issued by the Range Forest Officer.
8. The 6th respondent Grama Panchayath filed counter affidavit stating that the petitioners have been residing in that 6 W.P.(C)No.25542 of 2024 2025:KER:20555 area for the last 15 years and it is as per the decision of the Panchayat committee held on 18.11.2022, Exts P1 to P1B possession certificates were issued to petitioners to avail electricity connection. It is further stated in the counter affidavit of the 6th respondent that Ext.P3 primary notification to declare the area as a Reserved Forest was frozen by the Government on 10.07.2024.
9. Heard the learned counsel for the petitioners, the learned Standing Counsel for the KSEB, the learned Special Government Pleader for the Forest department, the learned Standing Counsel for Chinnakanal Grama Panchayat and the learned Senior Government Pleader.
10. The learned counsel for the petitioners would submit that the petitioners are victims of an interdepartmental dispute between the Forest Department and KSEB. The petitioners have been in possession of the land in question from 2006 onwards. Exts P1 to P1B possession certificates issued by the Panchayat prove their possession and based on those documents electricity connection was given to the sheds put up by them in the 7 W.P.(C)No.25542 of 2024 2025:KER:20555 property. It was on the basis of a letter sent by the Forest Department to the Electricity Department, Exts.P5 to P5B notices were issued by the 2nd respondent to the petitioners. But in order to claim the land as forest on the basis of notification issued by the Government, the objections of persons claiming right over that land shall be heard and decided by the Forest settlement officer appointed under Section 4 of the Kerala Forest Act. The duty to obtain permission to draw the line, if necessary, from the Forest Department is upon the KSEB and the petitioners have no duty to get the permission from the Forest Department.
11. The learned Standing Counsel for KSEB submitted that as per the policy of the Government, for ease of doing business, possession certificate alone is sufficient to give electricity connection. Hence, on the request of the petitioners, electricity connection to the sheds put up by them was given on 08.07.2024. Two other persons residing in that area had already obtained electricity connection on 12.04.2017 and 12.08.2023, respectively.
12. The learned Standing Counsel for Chinnakkanal Grama 8 W.P.(C)No.25542 of 2024 2025:KER:20555 Panchayat submitted that temporary numbers were assigned to the sheds put up by the petitioners for revenue collection. As per Section 235AA of Kerala Panchayat Raj Act 1994, the Panchayat has a duty to assign such special numbers for unauthorised buildings and maintain ward-wise special registers recording the survey number and other details.
13. The learned Special Government Pleader (Forest) submitted that the petitioners are the tools in the hands of the land mafia. They have recently trespassed into the area notified under Section 4 of the Kerala Forest Act and put up makeshift sheds. Altogether six persons have made such encroachments. Once notification under Section 4 is issued, no construction is permitted on that land and it has to be treated as forest land. In support of his arguments, the learned Special Government Pleader relied on the judgment of this Court in State of Kerala v. New World Investment [ILR 2016 (1) Ker. 817].
14. Ext.P1 series are the ownership certificates dated 09.05.2024 issued to the petitioners by the 6 th respondent Chinnakanal Grama Panchayat, for getting electricity 9 W.P.(C)No.25542 of 2024 2025:KER:20555 connection. The building numbers were shown in those documents as 25/UA, 26/UA and 27/UA in ward No.9 of Chinnakanal Grama Panchayat. The 2nd respondent in its counter contended that the sheds were put up by the petitioners only in the year 2024. Though the petitioners say that they have been in occupation of land from 2006 onwards, they did not produce any document to substantiate the said claim. On the other hand, Ext.P1 series would show that possession certificates were issued to them only on 09.05.2024. According to the 3rd respondent KSEB, electricity connection was given to the petitioners on 08.07.2024 alone. Though in the counter affidavit of the 6 th respondent Chinnakkanal Grama Panchayath, it is stated that the petitioners have been in occupation of the land for the past 15 years, it is admitted by the Panchayath that the temporary building number alone was given to the petitioners, that also in the year 2024. These facts disprove the claim of the petitioners that they have been in possession of the land from 2006 onwards.
15. Though the petitioners claim that they are beneficiaries of a Government Scheme for land distribution, the details of the 10 W.P.(C)No.25542 of 2024 2025:KER:20555 Scheme are not pleaded in the writ petition. How the petitioners came into possession of the land is also not pleaded in the writ petition, except relying on Ext.P1 series possession certificates. Ext.P2 series are the property tax receipts in respect of the sheds covered by Ext.P1 series ownership certificate for the 1 st and 2nd half of 2024-25. Ext.P6 is a receipt issued to the 3rd petitioner from the office of the 7th respondent District Collector, Idukki regarding acceptance of an application on 03.03.2022 for issuance of patta. The pleadings pertaining to the title of the petitioners are completely absent in the writ petition. The documents produced by the petitioners support the contention of the 2 nd respondent that the petitioners came into possession of the property in the year 2024.
16. From the counter affidavit of the 2nd respondent and from the submissions made at the Bar, we could gather that the Government had identified an extent of 301 acres of land in survey No.34/1 of Chinnakanal Village for rehabilitation of landless tribal people under the Kerala Assignment of Government Land to Scheduled Tribes Rules 2001 and that area is known as 301 11 W.P.(C)No.25542 of 2024 2025:KER:20555 Colony. Though the address of the petitioners was shown as 301 Colony in the cause title of the writ petition, from the submissions made at the Bar as well as from the counter affidavit, it is clear that the subject matter property is not in 301 Colony.
17. The property where sheds are constructed by the petitioners is notified as a proposed Reserved Forest under Section 4 of the Kerala Forest Act. Though the petitioners and 6 th respondent say that the proposal was later dropped by the Government, respondents 1 and 2 contended that no such decision was taken by the Government. As per Section 7(1) of the Kerala Forest Act, during the interval between the publication of the notification under Section 4 and the date fixed by the notification under Section 19, no right shall be acquired in or over the land included in such notification under Section 4, except under a grant or contract in writing made or entered into by, or on behalf of the Government or by, on behalf of, some person on whom such right or power to create the same was vested when the notification under Section 4 was published or by succession from such person; and no clearing shall be made on such land, 12 W.P.(C)No.25542 of 2024 2025:KER:20555 nor shall any person cut, correct, or remove any forest produce nor shall set fire to such land or kindle or leave burning any fire in such manner as to endanger the same. As per Section 7(2) of the Act, even a patta granted by Revenue authorities in the proposed reserved forest without previous sanction of the Government is null and void.
18. The final notification declaring the reserved forest has to be issued by the Government under Section 19 of the Kerala Forest Act. As per Section 22, no right of any description shall be acquired in or over a reserved forest except under a grant or contract in writing made by or on behalf of the Government or by or on behalf of some person in whom such right or the power to create such right was vested when a notification under Section 19 was published or by succession from such person. The proviso to the said Section says that no patta shall, without the previous sanction of the Government, be granted for any land included within a reserved forest and every patta granted without such sanction shall be null and void. The penalties for trespass or damage in reserved forest and acts prohibited in such forest are 13 W.P.(C)No.25542 of 2024 2025:KER:20555 applicable even to the land proposed to be constituted as a reserved forest. So till the final notification under Section 19 of the Kerala Forest Act, the proposed Reserved Forest Land not filed under Section 4 has the status of Reserved forest and is under the control of the Forest department.
19. In New World Investment (P) Ltd [ILR 2016 (1) Ker 817], after elaborately considering the various provisions under the Kerala Forest Act and also under the law existed prior to the enactment, this Court held that;
"26. A perusal of the aforesaid statutory provisions of Regulation III of 1080, 1951 Act and 1961 Act makes it clear that after an area is declared as reserved forest, there is prohibition of right of any description under the reserved forest and the statutory scheme admit only following two contingencies when acquisition of any right can be admitted. They are: (i) a grant or contract in writing made by or on behalf of the Government and (ii) by or on behalf of some person in whom such right or the power to create such right was vested when the notification under S.19 was published or by succession for such person."
20. From the pleadings and materials on record and the submissions made at the Bar, it is clear that the petitioners put up temporary sheds in an area notified under Section 4 of the Kerala 14 W.P.(C)No.25542 of 2024 2025:KER:20555 Forest Act and obtained electricity connection by making use of temporary numbers assigned to those sheds by the Grama Panchayat. As per the provisions read above, the petitioners cannot claim any right over an area notified under Section 4 of the Kerala Forest Act. Though petitioners as well as the 6th respondent Grama Panchayat, contend that the notification was cancelled by the Government, except Ext.P3 paper cutting dated 04.12.2023, which has no evidentiary value, no document has been produced by them to prove the same. In such circumstances, the petitioners are not entitled to any of the reliefs sought in the writ petition.
In the result, the writ petition stands dismissed.
Sd/-
ANIL K.NARENDRAN, JUDGE Sd/-
MURALEE KRISHNA S., JUDGE sks 15 W.P.(C)No.25542 of 2024 2025:KER:20555 APPENDIX OF WP(C) 25542/2024 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE OWNERSHIP CERTIFICATE OF PETITIONER 1 DATED 09.05.2024 Exhibit P1A THE TRUE COPY OF THE OWNERSHIP CERTIFICATE OF PETITIONER 2 DATED 09.05.2024 Exhibit P1B THE TRUE COPY OF THE OWNERSHIP CERTIFICATE OF PETITIONER 3 DATED 09.05.2024 Exhibit P2 THE TRUE COPY OF THE RECEIPT OF NO DUES TO GOVERNMENT ISSUED BY CHINNAKANAL GRAMA PANCHAYAT TO THE PETITIONER 1 DATED 09.05.2024 Exhibit P2A THE TRUE COPY OF THE RECEIPT OF NO DUES TO GOVERNMENT ISSUED BY CHINNAKANAL GRAMA PANCHAYAT TO THE PETITIONER 2 DATED 10.05.2024 Exhibit P2B THE TRUE COPY OF THE RECEIPT OF NO DUES TO GOVERNMENT ISSUED BY CHINNAKANAL GRAMA PANCHAYAT TO THE PETITIONER 3 DATED 09.05.2024 Exhibit P3 THE TRUE COPY OF DOCUMENT OF THE PAPER CUTTING REGARDING FREEZING OF NOTIFICATION ON PUBLISHED IN MALAYALA MANORAMA ON 04.12.2023 Exhibit P4 THE TRUE COPY OF THE DOCUMENT PAPER CUTTING REGARDING THIS ISSUANCE OF NOTICE TO THE PETITIONERS PUBLISHED IN MALAYALA MANORAMA DAILY DATED 13.07.2024 Exhibit P5 THE TRUE COPY OF THE NOTICE ISSUED BY THE KSEB TO THE PETITIONER 1 TO PRODUCE THE LAND RECORDS ON 10.07.2024 Exhibit P5A THE TRUE COPY OF THE NOTICE ISSUED BY THE KSEB TO THE PETITIONER 2 TO PRODUCE THE LAND RECORDS ON 10.07.2024 16 W.P.(C)No.25542 of 2024 2025:KER:20555 Exhibit P5B THE TRUE COPY OF THE NOTICE ISSUED BY THE KSEB TO THE PETITIONER3 TO PRODUCE THE LAND RECORDS ON 10.07.2024 Exhibit P6 THE TRUE COPY OF THE RECEIPT ISSUED BY THE REVENUE DEPARTMENT TO THE 3RD PETITIONER DATED 03.03.2022 REGARDING THE SUBJECT MATTER OF PATTAYAM Exhibit P7 THE TRUE COPY OF THE PHOTOGRAPH OF THE HOUSE OF THE PETITIONER 1 RESPONDENT EXHIBITS EXHIBITR2(B) TRUE COPY OF THE NOTICE ISSUED VIDE NO.D101/2024 DATED 10.07.2024 TO THE ASST.ENGINEER KSEB,RAJAKUMARI EXHIBITR2(C) TRUE COPY OF FORM 1 IN OR 28/2019 OF THE DEVIKULM FOREST RANGE DATED 30/08/2019 EXHIBITR2(D) TRUE COPY OF THE FORM 1 IN OR 22/2021OF THE DEVIKULAM FOREST RANGE DATED 13/08/2021 EXHIBITR2(A) TRUE COPY OF THE NOTIFICATION ISSUED VIDE GO(P)19/2023/FAND WLD DATED 20/09/2023