Kerala High Court
M.K.Varkey vs State Of Kerala Represented By on 30 November, 2020
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY,THE 30TH DAY OF NOVEMBER 2020/9TH AGRAHAYANA,1942
WP(C).No.16249 OF 2020(E)
PETITIONER:
M.K.VARKEY, S/O. KURIAN,
AGED 76 YEARS, MADHAVASSERIL HOUSE,
AGALI,MANNARKKAD TALUK,
PALAKKAD, PIN-678 581.
BY ADV. SMT.K.SUNITHA VINOD
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY
THE CHIEF SECRETARY, SECRETARIAT
BUILDING, TRIVANDRUM, PIN-695 001.
2 CUSTODIAN OF VESTED FOREST,
ARANYABHAVAN, FOREST COMPLEX,
OLAVAKKODU, PALAKKAD, PIN-678 002.
3 THE DIVISIONAL FOREST OFFICER,
MANNARKKAD , PIN-678 582.
4 THE RAGE FOREST OFFICER,
AGALI PIN-678 581.
5 THE DISTRICT COLLECTOR,
PALAKKAD DISTRICT COLLECTORATE BUILDING,
PALAKKAD, PIN-678 013.
6 THE TAHASILDAR,
MANNARKKAD TALUK OFFICE,
PIN-678 762.
7 THE SPECIAL THAHASILDAR,
LAND TRIBUNAL, AGALI, PIN-678 762.
WPC No.16249/2020
:2:
8 THE VILLAGE OFFICER,
KALLAMALA, AGALI, PIN-678 581.
SPL. G.P. FORESTS SRI. K. SANDESH RAJA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 30-11-2020, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WPC No.16249/2020
:3:
N. NAGARESH, J.
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W.P.(C) No.16249 of 2020
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Dated this the 30th day of November, 2020
JUDGMENT
~~~~~~~~~ Petitioner has approached this Court invoking Article 226 of the Constitution of India, seeking the following reliefs:-
(i) To declare that the property owned by the petitioner comprised in Sy No.2019/ part in Kallamala Village, Mannarkkad Taluk, Palakkad District extending to 5 acres is revenue land having valid pattayam under the provisions of the Kerala Land Reforms Act.
(ii) To declare that the property owned by the petitioner comprised in Sy No.2019/ part in Kallamala Village, Mannarkkad Taluk, Palakkad District extending to 5 acres is not a private forest coming under the provisions of The Kerala Private Forest (Vesting and Assignment) Act, 1971.
(iii) To declare that the property owned by the petitioner comprised in Sy No.2019/ part in Kallamala Village, Mannarkkad Taluk, Palakkad District extending to 5 acres is an agricultural land specifically mentioned under exemption (A) to section 2 (f) (1) (i) of the Act 1971 which excludes lands which are WPC No.16249/2020 :4: gardens or nilams as defined in the Kerala Land Reforms Act from the definition of forest land.
(iv) To declare that the petitioner's title and possession cannot be interfered by the respondents 2 to 4 in view of the amendment brought in by The Kerala Private Forest (Vesting and Assignment) Amendment Ordinance 2020, without affording an opportunity for hearing.
(v) To declare that the respondents 2 and 4 has in no manner any right to interfere with the title and possession of the property of the petitioner nor to construct jandas within or enclosing the property to forest land which is comprised in Sy No.2019/ part in Kallamala Village, Mannarkkad Taluk, Palakkad District extending to 5 acres.
(vi) To issue a writ of mandamus or any other writ, Order or direction to the 1st respondent to hold a joint meeting of the Secretaries to Forest and Revenue department as expeditiously as possible considering the urgency in the matter to settle the issue of migrant farmers settled before 01-01-1977, having valid pattayam for their properties.
(vii) To issue a writ of mandamus or any other writ, Order or direction to the 1st respondent to convene a joint verification of the properties in Kallamala Village by the Forest and Revenue department and exclude the settlors prior to 01.01.1977 from eviction proceedings.
(viii) To issue a writ of mandamus or any other writ, order or direction to the 5th respondent to take appropriate steps to protect the property of the petitioner from the encroachment and trespass made by the forest department, convening a joint meeting of the respondents 2 to 8.
(ix) To issue a writ of mandamus or any other writ, Order or direction to the 3rd and 5th respondents to consider and dispose Exts.P9 and P10 representations submitted by the petitioner.WPC No.16249/2020 :5:
2. Petitioner's case, in brief, is as follows:-
One Ulahannan Varkey, a cultivating tenant, obtained Ext.P2 Purchase Certificate No.1855/1976 dated 09.12.1976 from Land Tribunal No. I/II, Agali in respect of 5 Acres of land in Survey No.2019/part of Kallamala Village, Mannarkkad Taluk. The Special Sale Officer, Perinthalmanna Co-operative Agricultural and Rural Development Bank sold the said property to the petitioner under Section 23 of the Kerala State Co-operative Agricultural Development Banks Act, 1984, as per Ext. P1 Sale Certificate dated 15.02.1995.
3. The petitioner has been paying tax for the said 5 Acres of land. The petitioner is holding Possession Certificate also in respect of the land. When a dispute arose in receiving tax from migrant farmers, who are not having pattayam, a joint inspection was conducted by authorities of the Forest, Revenue and Survey Departments and they identified certain properties having Pre-1977 pattayam. On the basis of such inspection, the authorities decided to receive tax from 170 property owners, including the WPC No.16249/2020 :6: petitioner. The petitioner paid land tax up to 23.06.2020.
4. To the surprise and the predicament of the petitioner, respondents 2 to 4 are attempting to erect jandas in the property of the petitioner and to evict the petitioner from his land. The petitioner states that the property in question will not come under the purview of private forest under the Madras Preservation of Private Forests Act. The property has never been vested with the Government under the Kerala Private Forest (Vesting and Assignment) Act, 1971.
5. The petitioner submitted Exts.P10 and P11 representations requesting for joint verification of property and for keeping in abeyance the construction of jandas, pending joint verification of property. As Exts.P10 and P11 did not yield any positive response, the petitioner has filed this writ petition.
6. The 3rd respondent filed a detailed statement and contested the writ petition. The 3 rd respondent stated that the land of the petitioner is part of the Vested Forests in WPC No.16249/2020 :7: Nellipathi Malavaram in Kallamala Village (old Agali Village) of Mannarkkad Taluk. The demarcation of vested forests in the area was completed in the year 1977 and 603.75 Hectares of private forest in old Survey Nos.1335 and 2019 in Agali Village was notified as vested forest.
7. The property possessed by the petitioner is a reserved forest. In view of Section 22 of the Kerala Forest Act, Ext. P2 Purchase Certificate is null and void. If any purchase certificate was issued by the Land Tribunal without previous sanction from the Government, that is to be cancelled. The State Government has taken a decision to complete boundary consolidation of all forest area in the State immediately, to protect forests. The survey work for retracing survey marks fixed during the demarcation of these western forests and construction of cairns are in progress in this locality.
8. On receipt of the representation of the petitioner, the Divisional Forest Officer issued Annexure-R3(i) letter to the petitioner informing him that the land in question is a WPC No.16249/2020 :8: forest land and if the petitioner has any dispute regarding the ownership of the land, he has to approach the Forest Tribunal. The writ petition is not maintainable and it is only to be dismissed.
9. Heard learned counsel for the petitioner and learned Government Pleader (Forest).
10. Ext.P3 order of the Land Tribunal would show that the property of Ulahannan Varkey which was purchased by the petitioner, was classified as wet/dry land. Such classification was on the basis of the report submitted by the Special Village Officer and after inspection of the land. The Tribunal also found that the said Ulahannan Varkey has been doing cultivation in the land since 1964-'65.
11. The petitioner purchased the said land from the Special Sale Officer, Perinthalmanna Co-operative Agricultural and Rural Development Bank and he was issued Ext.P1 Certificate of Sale under Section 23 of the Kerala State Co-operative Agricultural Development Banks Act, 1984. The petitioner has been paying land tax in respect of WPC No.16249/2020 :9: the said land, as is evidenced by Ext.P7.
12. From Ext.P6 order of the Tahsildar, it is evident that pursuant to certain complaints from farmers in respect of refusal of the authorities to accept land tax, the Revenue Department and Forest Department decided to conduct a joint inspection. In the said joint inspection, the authorities decided to accept land tax from certain farmers, including the petitioner, finding that those lands are dry lands and are under cultivation.
13. Therefore, there is some force in the contention of the petitioner that the land possessed by the petitioner is not Vested Forest and the land is liable to be exempted. According to the petitioner, the 5 Acres of land possessed by him is not 'private forest' falling within the definition under Section 2(f) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. Lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963, stand excluded from the definition of 'private forest', as per Section 2(f)(1)(i)(A). Furthermore, in view of Section 3(2) of the Act, WPC No.16249/2020 : 10 : 1971, the land held by the petitioner under his personal cultivation cannot vest with the Government. The land in question is therefore liable to be exempted, if at all it falls within the definition under Section 2(f).
14. However, the arguments of the petitioner involve questions of fact and the petitioner having an effective remedy before the Forest Tribunal, this Court is of the opinion that the petitioner shall approach the Forest Tribunal concerned, for enforcement of his claims and for redressal of grievances.
In the circumstances, the writ petition is disposed of permitting the petitioner to approach the Forest Tribunal for appropriate relief.
Sd/-
N. NAGARESH, JUDGE aks/26.11.2020 WPC No.16249/2020 : 11 : APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SALE CERTIFICATE NO. 233/95 DTD 15.02.1995 ISSUED IN EXECUTION PROCEEDINGS AS EP 127/93-
94.
EXHIBIT P2 A TRUE COPY OF THE PATTAYAM/PURCHASE
CERTIFICATE NO 1855/1976 DTD.
09.12.1976 ISSUED BY THE 7TH
RESPONDENT.
EXHIBIT P3 A TRUE COPY OF ORDER DTD. 09.12.1976
IN SM NO. 831/1976 OF THE LAND
TRIBUNAL NO. 1/11, AGALI.
EXHIBIT P4 A TRUE COPY OF THE AVAILABLE PART OF
TORN TAX RECEIPT DTD 01.06.95 TO THE
EXTENT IT REMAIN AFTER LONG YEARS.
EXHIBIT P5 A TRUE COPY OF THE AVAILABLE PART OF
THE POSSESSION CERTIFICATE DTD
01.06.95 WHICH IS ALSO TORN AFTER
LONG YEARS.
EXHIBIT P6 A TRUE COPY OF ORDER DTD 27.07.2005
ISSUED BY THE 6TH RESPONDENT.
EXHIBIT P7 A TRUE COPY OF THE LAND TAX RECEIPT
NO. 1032108 DTD 23.06.2020 ISSUED BY
THE 8TH RESPONDENT.
EXHIBIT P8 A TRUE COPY OF THE LETTER NO. GI-
85194/11 DT. 21.11.2011 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT.
EXHIBIT P9 A TRUE COPY OF THE GAZETTE NOTIFICATION NO. 3751/LEG.GI/2020/LW DTD 25.05.2020 ISSUING ORDINANCE NO. 35/2020 CALLED KERALA PRIVATE FOREST VESTING AND ASSIGNMENT AMENDMENT ORDINANCE.WPC No.16249/2020 : 12 :
EXHIBIT P10 A TRUE COPY OF THE REPRESENTATION DTD. 30.06.2020 SUBMITTED TO THE 5TH RESPONDENT.
EXHIBIT P11 A TRUE COPY OF THE REPRESENTATION DTD. 03.07.2020 SUBMITTED TO THE 3RD RESPONDENT.
RESPONDENTS' EXHIBITS ANNEXURE R3(a) TRUE COPY OF THE NOTIFICATION NO.1383/77 DATED 10.10.1979.
ANNEXURE R3(b) TRUE COPY OF THE SURVEY SKETCH OF THE
VESTED FORESTS
ANNEXURE R3(c) TRUE COPY OF THE LOCATION SKETCH
ANNEXURE R3(d) TRUE COPY OF THE CIRCULAR
NO.9102/E1/86/FOREST DATED
23.06.1986.
ANNEXURE R3(e) TRUE COPY OF THE LETTER NO.LB(A)2-
2437/89 DATED 14.03.1989.
ANNEXURE R3(f) TRUE COPY OF THE CIRCULAR
NO.17359/P1/91/RD DATED 09.09.1991.
ANNEXURE R3(g) TRUE COPY OF THE DOCUMENT NO.60/1988 OF SRO, AGALI ANNEXURE R3(h) TRUE COPY OF THE DOCUMENT NO.331/1999 OF SRO, AGALI ANNEXURE R3(i) TRUE COPY OF THE LETTER DATED 17.08.2020.