Kerala High Court
Joseph Abraham vs State Of Kerala on 29 March, 2012
Author: S. Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
THURSDAY, THE 29TH DAY OF MARCH 2012/9TH CHAITHRA 1934
WP(C).No. 4613 of 2012 (B)
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PETITIONER(S):
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1. JOSEPH ABRAHAM,
MANAGING PARTNER, ZEENATH ESTATE
(PREVIOUSLY KNOWN AS RAVIVARMA ESTATE)
NELLIYAMPATHY P.O., PALAKKAD DISTRICT.
2. ABU K. ABRAHAM,
S/O.ABRAHAM, KANNENKERIL HOUSE, KUTTOOR VILLAGE
KUTTOOR POST, THIRUVALLA, PATHANAMTHITTA DISTRICT
PIN-689160.
3. RIYA PRINCE,
W/O.PRINCE ABRAHAM, VALLAMKULAM P.O.
ERAVIPEROOR VILLAGE, THIRUVALLA TALUK
PATHANAMTHITTA DISTRICT.
4. P.K.MOHAMMED FAROOK,
S/O.BAPPU, KAYANAYIL HOUSE, PUNNAYOORKULAM VILLAGE
CHAVAKKAD TALUK, THRISSUR DISTRICT.
5. N.K.SUKUMARAN,
S/O.KESAVAN, MAPRANAM NEDIYIRIPPIL HOUSE
PURATHUSERRY VILLAGE, MUKUNDAPURAM TALUK
THRISSUR DISTRICT.
BY ADVS.SRI.N.JAMES KOSHY
SRI.T.SANJAY
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W.P.(C) NO.4613/2012
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY THE SECRETARY
FOREST AND WILDLIFE DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM-696001.
2. THE PRINCIPAL SECRETARY TO GOVERNMENT,
FOREST AND WILDLIFE (C) DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM, PIN-695001.
3. THE CHIEF CONSERVATOR OF FORESTS,
CUSTODIAN OF VESTED FOREST, EASTERN CIRCLE
OLAVAKKODE, PALAKKAD-678 002.
4. THE DIVISIONAL FOREST OFFICER,
NENMARA, P.O.NENMARA-678 508, PALAKKAD DISTRICT.
5. THE FOREST RANGE OFFICER,
NELLIAMPATHY RANGE, P.O.NENMARA-678 508
PALAKKAD DISTRICT.
6. THE DISTRICT COLLECTOR,
PALAKKAD, P.O.PALAKKAD, 678001.
7. THE TAHSILDAR,
CHITTOOR TALUK, PALAKKAD DISTRICT, PIN-678 101.
BY ADV. GOVERNMENT PLEADERSMT.SANJEETHA K.A.
BY SRI.M.P.MADHAVANKUTTY, (SPL. GOVT. PLEADER FOR FOREST
DEPARTMENT)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C) NO.4613/2012
APPENDIX
PETITIONER'S EXHIBITS:-
P1:- COPY OF THE SALE DEED NO.27/66 DTD. 9.1.1966 OF THE NENMARA SUB
REGISTRY.
P2:- COPY OF THE FORM A REGISTRATION CERTIFICATE OF ZEENATH ESTATE ISSUED
BY THE REGISTRAR OF FIRMS DT. 4.6.1998.
P3:- COPY OF THE DEED OF PARTNERSHIP AGREEMENT DT. 8.11.2000 EXECUTED
BETWEEN THE EXISTING PARTNERS AND THE IST PETITIONER IN RESPECT OF
ZEENATH ESTATE.
P4:- COPY OF THE ORDER IN OA. 258/1979 DTD. 30.1.1982 OF THE FOREST TRIBUNAL,
PALAKKAD.
P5:- COPY OF THE JUDGMENT IN M.F.A NO.340/1982 DTD. 17.3.1988 OF THE
HONOURABLE HIGH COURT OF KERALA, ERNAKULAM.
P6:- COPY OF THE NOTIFICATION DTD. 3.12.1985 ISSUED BY THE STATE OF KERALA.
P7:- COPY OF THE POSSESSION CERTIFICATE DTD. 10.3.2006 ISSUED BY THE
TAHSILDAR, CHITTOOR TO THE PETITIONERS PROPERTY.
P8:- COPY OF THE PROCEEDINGS OF THE TAHSILDAR, CHITTOOR AND CERTIFICATE
OF REGISTRATION DT.D 26.1.1980.
P9:- COPY OF THE REGISTRATION CERTIFICATE DTD. NIL IN RESPECT OF 50 ACRES OF
CARDAMOM PLANTATION IN RAVI VARMA ESTATE ISSUED BY THE TAHSILDAR ,
CHITTUR.
P10:- COPY OF THE LETTER DTD. 29.11.1979 ISSUED BY THE DIVISIONAL FOREST
OFFICER, PALAKKAD ADDRESSED TO THE TAHSILDAR , CHITTUR.
P11:- COPY OF THE COMMUNICATION DTD. 15.6.2005 OF THE CONSERVATOR OF
FORESTS, PALAKKAD TO THE DIVISIONAL FOREST OFFICER, NEMMARA.
P12:- COPY OF THE COMMUNICATION DTD. 5.5.2006 SENT BY THE ASSISTANT
DIRECTOR, FOREST MINI SURVEY, KOZHIKODE TO THE DIVISIONAL FOREST OFFICER,
NEMMARA ALLONG WITH THE PLAN & SKETCH.
P13:- COPY OF THE APPLICATION DTD. 3.7.2006 SUBMITTED BY THE IST PETITIONER TO
THE 1ST AND 3RD RESPONDENT.
P14:- COPY OF THE JUDGMENT DTD. 25.5.2010 IN WPC. 22088/2006 OF THE
HONOURABLE HIGH COURT OF KERALA.
P15:- COPY OF THE NOTIFICATION DTD. 30.1.2007 ISSUED BY THE IST RESPONDENT
STATE OF KERALA.
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W.P.(C) NO.4613/2012
P16:- COPY OF THE INTERIM ORDER DTD. 11.4.2007 WP(C) 12594/2007 OF THE
HONOURABLE HIGH COURT OF KERALA.
P17:- COPY OF THE LAND TAX RECEIPT FOR THE YEAR 2008-09 AND 2009-10 PAID ON
17.12.2009 ISSUED BY THE VILLAGE OFFICER, NELLIAMPATHY.
P18:- COPY OF THE POSSESSION CERTIFICATE DTD. 17.12.2009 ISSUED BY THE
VILLAGE OFFICER, NELLIAMPATHY.
P19:- COPY OF THE NO OBJECTION CERTIFICATE DTD. 13.3.1999 ISSUED BY THE 6TH
RESPONDENT.
P20:- COPY OF THE LEGAL ADVISE DTD. 7.1.2006 ISSUED BY THE DISTRICT
GOVERNMENT PLEADER, PALAKKAD TO THE DISTRICT COLLECTOR, PALAKKAD.
P21:- COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE DISTRICT
COLLECTOR PALAKKAD DTD. 15.3.2006.
P22:- COPY OF THE BASIC TAX REGISTER MAINTAINED IN NELLIAMPATHY VILLAGE IN
RESPECT OF THE PETITIONERS' PLANTATION.
P23:- COPY OF THE ACCOUNT DETAILS OF THE LOAN OF THE AVAILED BY THE
PETITIONER ISSUED STATE BANK OF INDIA ON 5.2.2008.
P24 SERIES:- COPY OF THE PHOTOGRAPHS SHOWING THE SEALED LOCKS CLOSED
HOUSES, PEPPER AND COFFEE SEEDS KEPT IN THE COURTYARD OF THE PREMISES,
VESSEL ARTICLES AND FOOD ITEMS THROWN OUT.
P25:- COPY OF THE PETITION DTD. 17.2.2012 SUBMITTED BY THE IST PETITIONER TO
THE DISTRICT COLLECTOR, PALAKKAD.
P26:- COPY OF THE RECEIPT DTD. 18.2.2012 ISSUED BY THE SUB INSPECTOR OF
POLICE, PADAGIRI, PALAKKAD.
P27:- COPY OF THE REPRESENTATION DTD. 17.2.2012 SUBMITTED BY THE IST
PETITIONER BEFORE THE MINISTER FOR FOREST, KERALA STATE.
P28:- COPY OF THE JENMUM SALE DEED NO.3345/2008 DTD. 29.9.2008 OF THE SUB
REGISTRY , NENMARA.
P29:- COPY OF THE INTERIM ORDER DTD. 16.12.2011 IN W.P.(C) 33300/2011 OF THE
HONOURABLE HIGH COURT OF KERALA.
P30:- COPY OF THE JUDGMENT IN WP(C) 33300/2011 DTD. 13.1.2012 OF THE
HONOURABLE HIGH COURT OF KERALA.
P31:- THE COPY OF 545/1960 DTD. 10.5.1950 EXECUTED BY MALLOO'S CHILDREN (1)
VELAYUDHAN, GOVINDAN AND MUTHUKRISHNAN OF THE SUB REGISTRY OF
KOLLAMKODE.
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W.P.(C) 4613/2012
P32:- COPY OF THE DOCUMENT NO.570/1950 DTD. 20.09.1950 EXECUTED BY THE
MALLOOS CHILDREN IN FAVOUR OF SRI, MADHAVAN NAIR OF THE SUB REGISTRY OF
KOLLAMGODE.
P33:- COPY OF THE REGISTERED RELEASE DEED. 1188/1951 DTD. 6.12.1951 OF THE SUB
REGISTRY OF KOLLAMKODE.
P34:- COPY OF THE DOCUMENT NO.668/1951 DTD. 21.12.1951 OF THE SUB REGISTRY OF
KOLLAMKODE.
P35:- COPY OF THE DOCUMENT NO.597/1952 DTD. 16.1.1952 EXECUTED SRI.V.MADHAVA
RAVI VARMA OF KOLLAMKODE KOVILAKAM TRANSFERRED 271.45 ACRES OF LAND IN
FAVOUR OF SRI.RAVI VARMA THAMPAN AND TWO BROTHERS OF THE SUB REGISTRY
OF KOLLAMKODE.
P436:- COPY OF THE DOCUMENT NO.57/1952 DTD. 16.1.1952 EXECUTED A LEASE DEED
IN FAVOUR OF SRI.V.RAVI VARMA THAMPAN AND TWO BROTHERS OF THE SUB
REGISTRY OF KOLLAMKODE.
P37:- COPY OF THE TIMBER SALE AGREEMENT NO.76/1952 DTD. 21.2.1952 OF THE SUB
RTEGISTRY OF KOLLAMKODE
P38:- COPY OF THE PAPER REPORT APPEARED IN THE KERALA KOUMUDI DTD.
26.12.2012.
P39:- COPY OF THE REPRESENTATION DTD. 25.2.2012 SUBMITTED BY THE 2ND
PETITIONER TO THE DIVISIONAL FOREST OFFICER, DISTRICT COLLECTOR,
HONOURABLE MINISTER FOR FOREST, CHIEF MINISTER OF KERALA.
P40:- COPY OF THE TOP SKETCH SHOWING THE LAND OWNED AND POSSESSED BY
THE RAVI VARMA ESTATE, NELLIYAMPATHI PREPARED BY THE SURVEY DEPARTMENT
AND NEMMARA ON 9.10.197O-9.
P41:- COPY OF THE PROCEEDINGS OF THE TAHSILDAR, CHITTUR DTD. 12.5.1986
TRANSFERRING THE PETITIONER'S ESTATE FROM POTHUNDDY VILLAGE TO
NELLIYAMPATHY VILLAGE OF 133.55 ACRES.
P42:- COPY OF THE TAX RECEIPT DTD. 17.2.2011 ISSUED BY THE NELLIAMPATHY
VILLAGE OFFICER.
P43:- COPY OF THE REQUEST SUBMITTED BY THE IST PETITIONER DTD. 16.3.2012
BEFORE THE RESPONDENTS 3 AND 4.
P44:- COPY OF THE RECEIPTS DTD. 16.3.2012 ISSUED BY RESPONDENTS 3 AND 4.
P45:- COPY OF THE REPRESENTATION SUBMITTED BEFORE THE CHIEF MINISTER OF
KERALA ON 16.3.2012.
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W.P.(C) NO.4613/2012
RESPONDENT'S EXHIBITS:-
R4(a):- COPY OF THE DEED NO.1449/1913
R4(b):- COPY OF THE LEASE DEED. NO.536/1957.
R4(c):- COPY OF THE DOCUMENT NO.228/1961.
R4(d):- COPY OF THE SALE DEED. NO.27/1966.
R4(e):- COPY OF NOTIFICATE DTD. 8.5.1909.
R4(f):- COPY OF LETTER DTD. 16.2.2012 ISSUED BY THE DIVISIONAL SURVEYOR TO THE
DIVISIONAL FOREST OFFICER, NEMMARA.
R4(g):- COPY OF TOPO SHEET PERTAINING TO THE DISPUTED LAND.
R4(h):- COPY OF THE ORDER DTD. 1.8.2011 IN WPC. 20140/2011.
R4(i):- COPY OF ORDER DTD. 10.8.2011 IN WPC. 21347/2011.
R4(j):- COPY OF ORDER DTD. 12.8.2011 IN WA. 1195/2011.
R4(k):- COPY OF THE ABOVE ORDER DTD. 25.8.2011 IN WPC. 21347/2011.
//TRUE COPY//
P.A. TO JUDGE
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S. SIRI JAGAN, J.
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W.P.(C) No.4613 of 2012
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Dated this the 29th day of March, 2012
JUDGMENT
The petitioners claim to be the owners in possession of a property by name Zeenath Estate comprised of 133.5 acres of land in Survey No.888 of Nelliyampathy Village, Chittoor Taluk. The same was taken possession of by the respondents, which is the cause of action for filing this writ petition. The matter was elaborately heard and on 12.3.2012 I passed the following interim order:
"Admit. The learned Government Pleader takes notice on behalf of the respondents.
2. The petitioners are challenging their dispossession from the land, which, according to them, belongs absolutely to them, alleging that they have trespassed into reserved forest. One of the contentions raised by the petitioners is that had the petitioners been given an opportunity of being heard, they would have been able to satisfy the 4th respondent that the petitioners had not encroached into any forest land and they are in possession only of properties belonging to them and are in their and their predecessors-in-interest's possession for over 100 years, under valid title.
3. The learned Advocate General submits that the action has been taken under Section 66 of the Kerala Forest Act, which does not contemplate any notice or hearing for W.P.(C)No.4613/12 2 eviction of encroachers into forest land. In support of that contention, the learned Advocate General relies on the decision of the Division Bench of this Court in W.A. Nos.12/ 1978 and 316 and 347/1977, wherein, according to the learned Advocate General, this Court has categorically held that for evicting encroachers of forest land no notice is contemplated under Section 66.
4. On a consideration of the rival contentions, I am not satisfied that the judgment in the Writ Appeal lays down such an absolute law that, for eviction, under Section 66, no notice or hearing is necessary. On going through that judgment, I find that in the properties involved in that judgment, there was a tacit admission by the other party that they are encroachers into the land and that is why the Division Bench has held that no notice is necessary for taking action under Section 66 against such encroachers. That being so, the action now taken against the petitioners' property which admittedly is without notice or hearing is clearly in violation of principles of natural justice, especially when the petitioners categorically dispute the stand of the respondents that the property forms part of reserved forest and that the petitioners are encroachers.
In the above circumstances, I am prima facie satisfied that the eviction of the petitioners is against principles of natural justice. Accordingly, I direct the respondents to restore possession to the petitioners within one week. But, this will not stand in the way of the respondents taking appropriate action, after issuing a notice to the petitioners and affording them an opportunity of being heard. But, in such case, the concerned office shall pass a reasoned order considering all the contentions of the petitioners and referring to the documents relied upon by them.
Although I was inclined to dispose of the writ petition itself on the above terms, the learned Advocate General, who appeared for the State, requested that if the Court is inclined to accept the contentions of the petitioners, an interim order may be passed. W.P.(C)No.4613/12 3 That is why although the interim relief is one of the prayers in the writ petition I have passed this interim order."
2. The counsel for the petitioners and the learned Special Government Pleader (Forest) now submit that the writ petition itself can be disposed of in terms of the interim order. The learned counsel for the petitioners submits that the petitioners' prayer for compensation for damages allegedly suffered by the petitioners on account of the action of the respondents may be reserved to be agitated in appropriate other proceedings.
In the above circumstances, this writ petition is disposed of in terms of the interim order without prejudice to the right of the petitioners to initiate appropriate proceedings for claiming damages as per prayer No.(v) in the writ petition appropriately. I also record the submission of both parties that pursuant to the interim order, the petitioners have been put in possession of the property on 28.3.2012.
S. SIRI JAGAN, JUDGE acd W.P.(C)No.4613/12 4 S. SIRI JAGAN, J.
------------------------------------------- W.P.(C) No.4613 of 2012
---------------------------------------------- Dated this the 12th day of March, 2012 ORDER W.P.(C)No.4613/12 5 Admit. The learned Government Pleader takes notice on behalf of the respondents.
2. The petitioners are challenging their dispossession from the land, which, according to them, belongs absolutely to them, alleging that they have trespassed into reserved forest. One of the contentions raised by the petitioners is that had the petitioners been given an opportunity of being heard, they would have been able to satisfy the 4th respondent that the petitioners had not encroached into any forest land and they are in possession only of properties belonging to them and are in their and their predecessors-in-interest's possession for over 100 years, under valid title.
3. The learned Advocate General submits that the action has been taken under Section 66 of the Kerala Forest Act, which does not contemplate any notice or hearing for eviction of encroachers into forest land. In support of that contention, the learned Advocate General relies on the decision of the Division Bench of this Court in W.A. Nos.12/ 1978 and 316 and 347/1977, wherein, according to the learned Advocate General, this Court has categorically held that for evicting W.P.(C)No.4613/12 6 encroachers of forest land no notice is contemplated under Section 66.
4. On a consideration of the rival contentions, I am not satisfied that the judgment in the Writ Appeal lays down such an absolute law that, for eviction, under Section 66, no notice or hearing is necessary. On going through that judgment, I find that in the properties involved in that judgment, there was a tacit admission by the other party that they are encroachers into the land and that is why the Division Bench has held that no notice is necessary for taking action under Section 66 against such encroachers. That being so, the action now taken against the petitioners' property which admittedly is without notice or hearing is clearly in violation of principles of natural justice, especially when the petitioners categorically dispute the stand of the respondents that the property forms part of reserved forest and that the petitioners are encroachers.
In the above circumstances, I am prima facie satisfied that the eviction of the petitioners is against principles of natural justice. Accordingly, I direct the respondents to restore possession to the petitioners within one week. But, W.P.(C)No.4613/12 7 this will not stand in the way of the respondents taking appropriate action, after issuing a notice to the petitioners and affording them an opportunity of being heard. But, in such case, the concerned office shall pass a reasoned order considering all the contentions of the petitioners and referring to the documents relied upon by them.
Although I was inclined to dispose of the writ petition itself on the above terms, the learned Advocate General, who appeared for the State, requested that if the Court is inclined to accept the contentions of the petitioners, an interim order may be passed. That is why although the interim relief is one of the prayers in the writ petition I have passed this interim order.
S. SIRI JAGAN, JUDGE acd H/o.
W.P.(C)No.4613/12 8 W.P.(C)No.4613/12 9