Kerala High Court
State Of Kerala vs V.K. Ramachandran on 5 April, 2022
Author: S. Manikumar
Bench: S.Manikumar, Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
Tuesday, the 5th day of April 2022 / 15th Chaithra, 1944
WA NO. 434 OF 2022
AGAINST JUDGMENT DATED 07.01.2022 IN WP(C) 15694/2021 OF THIS COURT
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APPELLANTS/RESPONDENTS IN WP(C):
1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF FOREST,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
2. CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS, FOREST HEADQUARTERS,
THIRUVANANTHAPURAM, PIN - 695001.
3. CUSTODIAN OF VESTED FORESTS, OFFICE OF CUSTODIAN OF VESTED FORESTS,
ARANYA BHAVAN, OLAVAKKODE PALAKKAD, PIN - 678002.
4. DIVISONAL FOREST OFFICER, DIVISIONAL FOREST OFFICE,
KALLEKULANGARA.P.O, PALAKKAD, PIN - 678009.
5. RANGE OFFICER, WALAYAR FOREST RANGE OFFICER, WALAYAR, PALAKKAD
DISTRICT, PIN - 678651.
BY SPECIAL GOVERNMENT PLEADER SRI.T.P.SAJAN
RESPONDENT/PETITIONER IN WP(C):
V.K. RAMACHANDRAN, AGED 62 YEARS, S/O K.P. MADHAVA MENON,
THAPOVANAM, DHONI.P.O, PALAKKAD DISTRICT, PIN - 678009.
BY ADV.V.M.KRISHNAKUMAR
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation and implementation of the impugned Judgment dated
07.01.2022 in WP(C) No.15694/21 pending disposal of the above Writ Appeal.
This Writ Appeal coming on for orders on 05.04.2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
EXT.P2:TRUE COPY OF THE JUDGMENT IN OS.272/1994 DAED 31.10.2000
OF MUNSIFF COURT PALAKKAD.
EXT.P3:TRUE COPY OF THE PROCEEDINGS OF CUSTODIAN OF
ECOLOGICALLY FRAGILE LAND DATED 05.03.2014.
EXT.P1:TRUE COPY OF THE "PASS" NO.188455 ISSUED BY THE FOREST
DEPARTMENT DATED 12.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(a):TRUE COPY OF THE "PASS" NO.188456 ISSUED BY THE FOREST
DEPARTMENT DATED 12.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(b):TRUE COPY OF THE "PASS" NO.188457 ISSUED BY THE FOREST
DEPARTMENT DATED 13.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(c):TRUE COPY OF THE "PASS" NO.188458 ISSUED BY THE FOREST
DEPARTMENT DATED 13.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(d):TRUE COPY OF THE "PASS" NO.188459 ISSUED BY THE FOREST
DEPARTMENT DATED 13.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(e):TRUE COPY OF THE "PASS" NO.188460 ISSUED BY THE FOREST
DEPARTMENT DATED 13.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(f):TRUE COPY OF THE "PASS" NO.188461 ISSUED BY THE FOREST
DEPARTMENT DATED 13.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(g):TRUE COPY OF THE "PASS" NO.188462 ISSUED BY THE FOREST
DEPARTMENT DATED 14.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(h):TRUE COPY OF THE "PASS" NO.188463 ISSUED BY THE FOREST
DEPARTMENT DATED 15.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(i):TRUE COPY OF THE "PASS" NO.188464 ISSUED BY THE FOREST
DEPARTMENT DATED 15.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(j):TRUE COPY OF THE "PASS" NO.188465 ISSUED BY THE FOREST
DEPARTMENT DATED 16.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(k):TRUE COPY OF THE "PASS" NO.188466 ISSUED BY THE FOREST
DEPARTMENT DATED 16.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(l):TRUE COPY OF THE "PASS" NO.188467 ISSUED BY THE FOREST
DEPARTMENT DATED 17.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(m):TRUE COPY OF THE "PASS" NO.188468 ISSUED BY THE FOREST
DEPARTMENT DATED 17.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
S. MANIKUMAR, CJ
&
MURALI PURUSHOTHAMAN, J
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W.A.No.434 of 2022
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Dated this the 05th day of April, 2022
ORDER
S. Manikumar, CJ Before the writ court, respondent/writ petitioner has sought for the following relief:
Issue a writ in the nature of mandamus commanding the respondents2and3 to remove the chain blocking the entrance to the petitioner's property covered by Ext.P2, and not to prevent any hindrance for enjoying petitioner's property by blocking traffic including goods vehicles to petitioner's property.
2. Short facts leading to the filing of the writ petition are as under:
2.1. According to the writ petitioner, the writ petitioner his mother, brother and sisters are the owners of a total extent of 17.195 hectares of land comprised in old Sy.No.1/AIA (revised Sy.No.121, 122/1, 122/2, 123/1, 123/2, 124/1, 124/2, 124/3, 124/4) of Akathethara Village WA NO. 434 OF 2022 ..2..
in Palakkad district. Even when the Kerala Private Forests (Vesting and Assignment) Act,1971 came into force, writ petitioners property was not vested with the Government as forest land, since the property was a cashew plantation in 1971. Aforesaid cashew plantation is even exempted under the ceiling provision of Land Reforms Act, 1963 and plantation is recognized as industry, by the Government of Kerala. Thus, it is absolutely clear that even in 1968, writ petitioner and his family members were conducting cashew plantation activity, which is a commercial activity.
2.2. On the southern side of the writ petitioner's property is the property of one Narayana Iyer and there is a road starting from the Panchayat situated in the extreme south of entire properties and fire woods were being transported from the writ petitioner's property through the aforesaid road. The right for using the road WA NO. 434 OF 2022 ..3..
is also declared by Ext.P2 judgment dated 31.10.2000 by the civil court. However, the road which is starting from Panchayat road and ending in the southern extremity, and passing through various properties, including private property and property in possession of forest Department is being used for ingress and egress of vehicles including lorries by the petitioner as well as other adjacent private owners of the land. To the shock of the writ petitioner, now the respondents had erected a chain across the road, blocking the passage of vehicles to the petitioner's property alone.
2.3 While conducting an enquiry, the Range Officer, the 5th respondent herein informed the writ petitioner to remove the chain and take vehicles. The Divisional Forest Officer, the 4th respondent herein informed the writ petitioner that the department will issue one key to the petitioner. Later, the Range Officer has informed that no WA NO. 434 OF 2022 ..4..
vehicles can be taken into the property. Hence, the writ petitioner cannot use his plantation properly and he cannot even bring vehicles to the property for better management of the property. The petitioner contends that his restriction is only to his property alone.
3. Before the writ court, the respondents opposed the relief sought for by the writ petitioner.
4. After hearing the respective counsel for the parties and perusing the materials on record, writ court, by judgment dated 07.01.2022, ordered as under:
7. The petitioner states that the property in question is a cashew plantation since the year 1968 and it has not vested with the Government as Vested Forest under the Kerala Private Forests (Vesting and Assignment) Act, 1971. But, a Committee appointed by the Principal Chief Conservator of Forests conducted a study and held that the land is Vested Forest as per Notification No.D 1383/77 dated 26.11.1985 and 06.12.1985, contends the 5th respondent.
8. The Custodian (Ecologically Fragile Lands) WA NO. 434 OF 2022 ..5..
and Additional Principal Chief Conservator of Forests (WP&R) in Ext.P3 Order has found that there is a compound wall around the property building as early as 1968. The land was planted with cashew and was replanted in 1988. Ext.P3 Order of the Custodian (EFL) and Additional Principal Chief Conservator of Forests (WP&R) would indeed indicate that the land of the petitioner is not vested forest or EFL though it lies contiguous to forest land.
9. Ext.P12 communication of the Divisional Forest Officer states that the land was never involved in any dispute with Forest Department and is not a vested Forest. Ext.P12 also asserts that the land is cashew plantation. A Committee consisting of DFO and two Assistant Conservators of Forests has also found in Ext.P17 that the property was not vested previously under the provisions of the Kerala Forest (Vesting and Assignment) Act, 1971. Ext.P18 communication of the Divisional Forest Officer addressed to the Tahsildar in 1985 would also show that the land in question is a Cashew Plantation.
10. Ext.P1 series of permits would indicate that vehicular movements were permitted through the road since the year 1970 for transportation of timber. Ext.P3 order of the Custodian(Ecologically Fragile Land) and Additional Principal Chief Conservator of WA NO. 434 OF 2022 ..6..
Forests (WP&R) would also show that there is a metal road running east-west with an entry gate to the area. The contention of the respondents that there is no road and there is only a pathway, is therefore unacceptable.
11. The petitioner has been using the road for plantation purposes and as vehicular access to his property. The vehicular access has been blocked by the Forest Officials by placing a chain. The action is obviously arbitrary. The fact that the road passes through EFL can also be no reason to deny the petitioner vehicular access, in the absence of alternate way to the property of the petitioner. It has to be noted that the blockade made by the respondents is not for stopping use of motor vehicles through the entire length of the road where it passes through Ecologically Fragile Land. The blockade is made to deny access only to the petitioner's land. This is obviously arbitrary. In the facts and circumstances of the case, the writ petition is allowed. There will be a direction to respondents 2 and 3 to remove the chain erected blocking the entrance to the petitioner's property covered by Ext.P2.
Being aggrieved, the instant writ appeal is filed.
WA NO. 434 OF 2022 ..7..
5. Though Sri.T.P.Sajan, the learned Special
Government Pleader for the Forest Department,
submitted that the property is a vested forest, perusal of material on record, indicates that there is cashew plantations since 1968 onwards and it is not vested with the Government as Vested Forest, under the Kerala Private Forests (Vesting and Assignment) Act, 1971.
6. The Committee appointed by the Principal Chief Conservator of Forests, conducted a study and held that the land is Vested Forest, as per Notifications No.D1383/77 dated 26.11.1985 and 06.12.1985 respectively.
7. The Custodian (Ecologically Fragile Lands) and Additional Principal Chief Conservator of Forests (WP&R), has fairly stated in Ext.P3 order dated 05.03.2014 that there is a compound wall around the property building as early as 1968. There is a cashew WA NO. 434 OF 2022 ..8..
plantation and replanted in 1988. The Custodian (EFL) and Additional Principal Chief Conservator of Forests (WP&R) has also indicated that the land of the writ petitioner is not a vested forest or EFL, though it lies contiguous to forest land. As per Ext.P1 series, permission has also been granted for transportation from 1970 on wards. Thus, it is evident from the material on record that the writ petitioner has been using the road for plantation purposes and for transporting the cashew and other products cultivated. It is also observed by the writ court that there is no alternate way to the property of the writ petitioner and the blockade made to deny access only to the petitioner's land is obviously arbitrary.
8. During the course of hearing, Sri.T.P.Sajan, the learned Special Government Pleader, Forest Department, submitted that when the writ petitioner filed an application for usage of the road for quarrying activity, WA NO. 434 OF 2022 ..9..
taking note of the Notification stated supra and EFL, the chain was put up in 2019. It could be deduced that the usage of the road for transporting the plantation products since 1968 has been upheld by the writ court.
9. Further, a reading of the counter affidavit filed by the 5th respondent in the writ petition indicates that before the writ court, the 5th respondent has raised a contention that the passage of vehicles through this area causes destruction of wild animal habitat and destruction of wild animals. So, a chain gate was fixed at the entry point of the above footpath from private area to EFL. According to the 5th respondent therein, the main object of fixing chain gate in this area is to avoid poaching and destructions of natural vegetation and protect wild animals and Forest.
10. Perusal of the materials on record would indicate that there are no supporting documents to arrive at a WA NO. 434 OF 2022 ..10..
conclusion that the passage of vehicles through this area would cause destruction of wild animal habitat and cause destruction of wild animals. If the main object of the chain put in the area is to avoid poaching, the Forest Officers can always cause sufficient man power to monitor and to prevent such activity. The road is being used for many years for plantation purposes and for transporting cultivated products.
11. Though Sri.T.P.Sajan, learned Special Government Pleader, submitted that the finding of the writ court that there is plantation, requires to be revised and ought to have been adjudicated before the Tribunal, at this juncture, we are not inclined to interfere with the same, for the reason that the usage of road should not be obstructed for the purpose stated supra.
12. In view of the above, though we are inclined to adjudicate the issues raised in this appeal, we are not WA NO. 434 OF 2022 ..11..
inclined to grant any stay of the operation of the impugned judgment, directing removal of the chain put up by the Forest Department. The direction issued by the writ court to respondents 2 and 3 therein to remove chain erected, blocking the entrance to the writ petitioner's property covered by Ext.P2, be implemented, pending disposal of the writ appeal.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
MURALI PURUSHOTHAMAN JUDGE SB/06/04/2022 05-04-2022 /True Copy/ Assistant Registrar