Kerala High Court
Nelliyampathy Plantations vs The Chief Convservator Of Forest on 22 June, 1981
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 10TH DAY OF OCTOBER 2013/18TH ASWINA, 1935
WP(C).No. 6710 of 2013 (K)
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PETITIONER(S):
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NELLIYAMPATHY PLANTATIONS,
MEENAMPARA ESTATE NELLIYAMPATHY(PO),
PALAKKAD DISTRICT REP. BY ITS MANAGING DIRECTOR E.L.THOMAS
BY ADVS.SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
RESPONDENT(S):
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1. THE CHIEF CONVSERVATOR OF FOREST,
EASTERN CIRCLE, OLAVAKKLODE PALAKKAD-678101.
2. DIVISIONAL FOREST OFFICER,
NENMARA FOREST DIVISION, NENMARA , PALAKKAD-678110.
3. THE FOREST RANGE OFFICER,
KOLLANAGODE FOREST RANGE, KOLLANGODE-678109.
4. THE DEPUTY RANGE OFFICER,
THEKKADY RANGE, THEKKADY FOREST STATION,
PALAKKAD DISTRICT-678034.
5. STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT
GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695001.
BY SRI.M.P.MADHAVANKUTTY, SPL. GOVT. PLEADER FOR FOREST
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2013
THE COURT ON 10-10-2013 DELIVERED THE FOLLOWING:
PJ
WP(C).No. 6710 of 2013 (K)
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APPENDIX
PETITIONERS' EXHIBITS
P1: COPY OF THE ORDER OF THE FOREST TRIBUNAL, PALAKKAD IN
O.A.NO.42/77 DATED 22/6/1981.
P2: COPY OF THE PLAN PRODUCED IN OA.42/77.
P3: COPY OF THE JUDGMENT DATED 25/6/87 IN MFA NOS.357/1981 AND 223/1982.
P4: COPY OF THE AFFIDAVIT FILED BY CONSERVATOR OF FOREST,
OLAVAKKODE CIRCLE IN RP.288/2000 IN MFA 223/1982.
P5(A): COPY OF THE BASIC TAX RECEIPT FOR 01-02.
P5(B): COPY OF THE BASIC TAX RECEIPT FOR 07-08.
P6(A): COPY OF THE BUILDING TAX RECEIPT FOR 08-09 ISSUED BY THE
NELLIYAMPATHY GRAMA PANCHAYAT
P6(B): COPY OF THE BUILDING TAX RECEIPT FOR 09-2010 ISSUED BY THE
NELLIYAMPATHY GRAMA PANCHAYAT
P6(C): COPY OF THE BUILDING TAX RECEIPT FOR 2010-2011 ISSUED BY THE
NELLIYAMPATHY GRAMA PANCHAYAT
P6(D): COPY OF THE BUILDING TAX RECEIPT FOR 2011-2012 ISSUED BY THE
NELLIYAMPATHY GRAMA PANCHAYAT
P7: COPY OF THE PLANTATION TAX RECEIPT FOR THE YEARS 1996-97 TO 2000-
2001.
P8: COPY OF THE JUDGMENT DATED 16/12/2009 IN OP.NO.31071/2001.
P9: COPY OF THE ORDER DATED 17/8/2010IN CCC IN 818/2010.
P10: COPY OF THE ORDER DATED 11/2/2011 IN CCC 818/2010.
P11: COPY OF THE JUDGMENT DATD 19/7/2010 IN RP NO.633/2010.
P12: COPY OF THE FIR IN OFFENCE NO.1/2013 BEFORE COURT OF THE JFCM,
CHITTUR.
P13: COPY OF THE RELEVANT EXTRACT OF THE REPORT OF THE CHIEF
CONSERVATOR OF FOREST.
P14: COPY OF THE PAYMENT TO THE EMPLOYEE'S PROVIDENT FUND
ORGANISATION, CALICUT DATED 12-2-2013.
PJ
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WP(C).No. 6710 of 2013 (K)
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P14(A):COPY OF THE PAYMENT TO THE EMPLOYEE'S PROVIDENT FUND
ORGANISATION, CALICUT DATED 14/3/2013
P14(B):COPY OF THE PAYMENT TO THE EMPLOYEE'S PROVIDENT FUND
ORGANISATION, CALICUT DATED 11/4/2013
P14(C):COPY OF THE PAYMENT TO THE EMPLOYEE'S PROVIDENT FUND
ORGANISATION, CALICUT DATED 13/5/2013.
P14(D):COPY OF THE PAYMENT TO THE EMPLOYEE'S PROVIDENT FUND
ORGANISATION, CALICUT DATED 12/6/2013
P15: COPY OF THE PAYMENT TOWARDS AGRICULTURAL INCOME TAX AND SALES
TAX FOR THE PERIOD 1997-98
P15(A):COPY OF THE PAYMENT TOWARDS AGRICULTURAL INCOME TAX AND SALES
TAX FOR THE PERIOD 1998-99
P15(B):COPY OF THE PAYMENT TOWARDS AGRICULTURAL INCOME TAX AND SALES
TAX FOR THE PERIOD 1999-2000
P16: COPY OF THE RECEIPT DATED 24/3/2004 ISSUED BY THE VILLAGE OFFICE,
NELLIAMPATHY.
P17: COPY OF THE BULDING TAX RECEIPT DATED 2/3/2012 ISSUED BY
SECRETARY,NELLIAMPATHY GRAMA PANCHAYAT.
RESPONDENTS' EXHIBITS AND ANNEXURES
R2(A): COPY OF LEASE DEED DATED 4/7/1957
R2(B): COPY OF ASSIGNMENT DEED DATED 2/3/1967
R2(C): COPY OF COUNTER STATEMENT DATED 18/1/80 FILED BY RESPONDENTS IN
OA.NO.42/1977
R2(D): COPY OF THE REPORT SUBMITTED BY THE DISTRICT COLLECTOR,
PALAKKAD IN WA.378/2011.
R2(E): COPY OF THE ORDER OF THE CUSTODIAN DATED 29/5/2010.
R3(A): COPY OF THE FORM I REPORT AND MAHAZAR
ANNEXURE I: COPY OF INTERIM ORDER DATED 3/9/2012 IN SLP(CIVIL)NO.21735/2012
BEFORE THE HONOURABLE SUPREME COURT.
/ TRUE COPY /
P.S. TO JUDGE
PJ
A.M. SHAFFIQUE, J
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W.P.(C). NO. 6710 of 2013
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Dated this the 10th day of October 2013
JUDGMENT
This writ petition is filed seeking the following reliefs:-
i) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to hand over possession of the building No. 96, Ward No. 3 of Nelliyampathy Grama Panchayat which was locked by the respondents on 31.01.2013.
ii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to permit the petitioner to continue with the possession and enjoyment of 200 acres under cultivation of the petitioner as found by this Hon'ble Court in Exhibits P8 and P9.
2. The facts involved in the above writ petition would disclose that the petitioner claimed ownership in respect of 818 acres of land in a proceedings seeking exemption under W.P.(C). NO. 6710 of 2013 2 the Kerala Private Forest (Vesting and Assignment) Act, 1971 (hereinafter referred to as the 'Act'). The petitioner claimed that the said area has not vested in the State Government under the Act. As per order dated 22.06.1981 in O.A. No. 42/77, the Forest Tribunal having considered the rival claims found that the petitioner has leasehold right under the Venkunadu Kovilakam in respect of 818 acres of the property which amounted to title. Further, it is found that out of 818 acres 618 acres continued to be a private forest and the remaining 200 acres comes under Clause (B) of Section 2(f) of the Act, and exempted. While considering the above issue, the Tribunal referred to the available evidence, especially Ext.A6 certificate of registration No.4/68, wherein it was shown that about 200 acres corresponding to 80.1372 hectares is a cardamom estate. It was also found that even at the time of assignment of land as per Ext.A2 which is an agreement executed between the parties as early as on 02.03.1967, the recitals indicated W.P.(C). NO. 6710 of 2013 3 that an area of more or less 205 acres was planted area. The respondent Forest Department produced Ext. B2 plan before the Tribunal and having taken note of the same, the Tribunal found that about 200 Acres is shown as cultivated area, which is not a vested forest. The petitioner as well as the State filed separate Appeals before this Court as MFA Nos. 357/1981 and 223/1982. The appeal filed by the State was allowed and appeal filed by the petitioner was dismissed. However, the Division Bench took note of the fact that "the total extent of the claim for exclusion will, therefore, be 825 + 125 + 68 + 25 = 1043. Admittedly there were areas which were planted and which were excluded from vesting. In short, what the applicant wants is not to obtain exclusion of cultivated areas, but to grab the vested forests by adopting some device or the other". Further in paragraph 11 of the judgment the Division Bench held as under:-
"XXXXXXX W.P.(C). NO. 6710 of 2013 4 It is, therefore, evident that Ext. A1 related to an exact area of 785.2 acres which was specified, surveyed and demarcated as early as in 1957 as specifically agreed to between the parties. The lessee obtained only that of land which was surveyed and demarcated. He could not, therefore, obtain by Ext.A2 lease deed or by reason of any other order an extent in excess of that specified in those two lease deeds. It was evident that the lessee was adopting tactics to grab lands in excess of what was his due. On the materials before us, we are of the opinion that he was trying to do the same thing by filing the application under section 8 of Act 26 of 1971."
3. Subsequently, the Division Bench observed as under:-
"The attempt was, therefore, to get at 750 acres, in addition to the cultivated area in the possession of the applicant. Even if the total extent of the Meenampara Estate was 818 acres as assumed by the Tribunal and 68 acres therein consisted of rocky lands, the applicant could not have claimed exclusion/exemption in respect of 750 acres in W.P.(C). NO. 6710 of 2013 5 excess of the cultivated area in his possession, even if it was just one acre of land. We are of the opinion that the attempt of the applicant is to conceal the actual extent of the cultivated area in his possession and claim further areas from the vested forests by way of exclusion/exemption."
4. Further, the Division Bench observed that in the absence of registration there was no obligation for the Tribunal to accept the case of the applicant that 165 acres remained as Cardamom Plantation after 1966. Proceeding further, Paragraph 18,19,20 of the judgment held as under:
"18. Counsel for the petitioner submitted that if M.F.A. No. 357 of 1981 is to be rejected and M.F.A. No. 223 of 1982 filed by the State is to be allowed, it will result in resumption of the entire areas, including the cultivated area in his possession, by the State. We so not find any substance in this submission. It was the case of the State that certain areas were cultivated prior to 10.05.1971 and such areas were excluded from vesting. The extent of such areas as were vested and those which were excluded as cultivated land W.P.(C). NO. 6710 of 2013 6 are specified in Ext. B2 plan prepared by the Assistant Director of Survey and Land Records. Re-surver, Trichur, we need only state that the judgment does not alter the position in relation to cultivation of the land in the possession of the appellant as specified in Ext. B2 plan. It is for the applicant, if he is so advised, to seek demarcation and survey of such extent of vested forests in the light of Section 6 of Act 26 of 1971.
19. It is in evidence that the entire cultivated area has been excluded from vesting. That may perhaps, be part of the 200 acres which was said to have been registered in 1968 under the Cardamom Act, 1968. The Tribunal has held, that the buildings, roads, windo-belts, shelter-bolts etc are included within the cultivated area. The applicant has not cared to produce any material to specify and particularise such areas, except of course, producing Ext. A-7 plan, the author of which has not been examined. We do not find any justification to hold that the Tribunal was wrong in its conclusion that the ancillary area is also part of the excluded area. The applicant should have taken out a Commission for a local W.P.(C). NO. 6710 of 2013 7 inspection and obtained a report in relation to the nature of the property. He did not do so before the Tribunal for very obvious reasons. Even before this Court, no application in this regard was filed. The effect of the order of the Tribunal was apparently to grant exclusion/exemption in respect of 200 acres in excess of the cultivated area, which was already excluded from vesting. This happened to be so because, the Tribunal did not advert to the specific admission that the certain areas, which were cultivated, had not been vested. It was for the applicant to specify the extent of such excluded areas and to claim further exclusion, if there was a larger extent than that which had already been excluded. He has not chosen to do so. The order of the Tribunal, in so far as it excludes 200 acres in excess of that which was already excluded, seems to us, therefore, to be unsustainable.
20. On a consideration of the entire evidence, we hold that the Tribunal went wrong in finding that 200 acres of land is a cardamom plantation entitled to exclusion under Act 26 of 1971. From the evidence adduced before the Tribunal the only W.P.(C). NO. 6710 of 2013 8 conclusion possible is that the entire extent of property except lands which are already exempted as cultivated lands and as specified in Ext. B2 plan has vested with the State under Act 26 of 1971."
5. On this basis, it is contended by the petitioner that the property covered by Ext.B2 plan which is shown as cultivated lands is not vested Forest and the Forest Department has no right in respect of that property. In fact, the petitioner had filed O.P.No.31671/2001 for a direction to the Forest Department to fix the boundaries. Ext. P8 is the said judgment of this Court. This Court had directed fixation of boundaries after excluding the land coming under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2000 (hereinafter referred to as 'EFL Act'). Though an appeal was filed the same came to be dismissed against which the respondent preferred SLP (Civil) No. 5800/2011 before the Supreme Court. In the meantime, the contempt proceedings were taken, against W.P.(C). NO. 6710 of 2013 9 which also an appeal is pending before the Supreme Court.
6. While so on 31.01.2013, the respondents physically evicted the petitioner's driver and watchman from the building in the petitioner's estate and registered an FIR as Offence No.1/2013 as per Ext.P12. This action of the respondent is challenged inter alia contending that as far as the bungalow from where the petitioner's employees were evicted by the Forest Department the same was situated within the planted area which has not vested in the Government as per Ext. B2 plan produced in the proceedings of the Forest Tribunal as well as this Court in MFA. The property which is shown as cultivated area have been in the possession of the petitioner for over a period of time and what was directed by this Court was only fixation of the boundary stones demarcating the same with that of the private forest area which is vested in the Government.
7. Counter affidavit is filed by the 2nd and 3rd respondents inter alia contending that this property is part W.P.(C). NO. 6710 of 2013 10 of the land for which the petitioner sought exemption under the Act. They claimed exemption in respect of 818 acres of land which was not permitted by this Court in the MFA judgment. Therefore, petitioner cannot claim any part of the land which they have sought for exemption and as far as the bungalow is concerned it is the part of the area which the petitioner has sought for exemption and hence comes within the vested forest area. It is also contended that since two Special Leave Petitions are pending before the Supreme Court, petitioner cannot seek any remedy by filing a writ petition before this Court and therefore this Court should not interfere in the matter at present.
8. The first question that is to be considered in the above writ petition is whether this Court should interfere with the impugned order of eviction passed by the respondent when certain connected matters are pending before the Supreme Court.
W.P.(C). NO. 6710 of 2013 11
9. As far as SLP (Civil) No. 5800/2011 is concerned the matter had arisen out of contempt proceedings CC No. 818/2010. The petitioner filed the contempt case for non- compliance of the order passed in the O.A. by the Forest Tribunal which was confirmed in the MFA's and the order in the Review Petitions filed by the State. The respondent authorities were directed to demarcate the boundaries of the private forest which vested in the Government. The same was not done by the Forest Department and hence the contempt case was filed. The Division Bench of this Court directed proceedings to be taken against two officers and proposed to frame charges, against which the Special Leave Petition is filed and the contempt proceedings had been stayed.
10. Another Special Leave Petition is filed as SLP No. 21735/2012. The petitioner filed O.P. No. 31671/2001 before this Court and a direction was issued by this Court to demarcate the ecologically fragile land as notified from the W.P.(C). NO. 6710 of 2013 12 land held by the petitioner as per Ext. B2 plan in the O.A and to demarcate the same within a period of two months. An appeal was filed as W.A. No. 378/2011 which came to be dismissed against which Special Leave Petition has been filed before the Supreme Court. The issue involved in the said Special Leave Petition is regarding the demarcation of the boundaries in accordance with the decision taken by the Division Bench of this Court in the earlier proceedings including that in MFA. Therefore, it could be seen that the issue pending before the Supreme Court is with reference to demarcation of the private forest by the Forest Department. As far as the petitioner's present case is concerned, its claim is based on the land which is not vested with the Government and shown as cultivable lands as per Ext. B2 plan. The learned counsel for the petitioner relied upon the survey plan produced by the Forest Department which clearly demarcates the cultivable land with that of the vested area. The property had already been measured and a W.P.(C). NO. 6710 of 2013 13 plan has been prepared. From the plan, it is clear that the bungalow does not come within the vested area. Therefore, in this case we are concerned with a property which is not vested in the Government. This case is not concerned with the demarcation of boundaries and therefore the subject matter involved in the present writ petition though with reference to the very same petitioner is not in relation to the land vested with the Government under the Act or the EFL Act as the case may be. Hence, I do not think that this is a case in which this Court should not pass any order, if there is violation of any statutory provision or violation of the constitutional right of the petitioner to hold the property.
11. A perusal of the order passed by the Forest Tribunal as well as the Division Bench of this Court in MFA Nos. 357/1981 and 223/1982 would show that the property coming within the cultivated area as shown in Ext. B2 plan has not vested in the Government. It is argued by the learned Special Government Pleader that in so far as the W.P.(C). NO. 6710 of 2013 14 cultivated lands have not been specifically demarcated as directed in the judgment of the learned Single Judge of this Court in O.P. No. 31671/2001, which matter is pending before the Supreme Court, the petitioner cannot claim possession in respect of any land. That apart, it is contended that the petitioner has no title in respect of the land which was involved in the Original Application pending before the Forest Tribunal.
12. On a reference to the judgment in O.P. NO. 31671/2001 produced as Ext. P8 in the case, it is clear that there was no dispute regarding the cultivated area as shown in Ext. B2 plan produced in the O.A. In other words, the Government never had a case that the cultivated lands as per Ext. B2 plan is vested in the Government. Even in the Review Petition filed by the Government as R.P. No. 282/2000 in the aforesaid MFA, the Division Bench held that the petitioner would be entitled to restoration of more or less 200 acres as against their claim of 295 acres. W.P.(C). NO. 6710 of 2013 15 Therefore, the fact that certain cultivable area was available which did not vest in the Government is clear from the judgment of the Forest Tribunal as well as the Division Bench of this Court in MFA No. 357/1981. In Ext.P8 judgment the learned Single Judge had only directed to demarcate the boundaries. That apart, in the affidavit filed by the Government in the review petition which is produced as Ext.P4, it is contended that "9. It is admitted that B2 plan produced from the side of the Govt. itself and adverted to with out demur by the Hon'ble Forest Tribunal and this Hon'ble Court is erroneous. To correct this, the revised Ext. B2 plan with clarifications showing bit nos.1 to 11 is being filed and to limit the possession of OA petitioner to 200 acres .................... Further the decision of this Hon'ble Court in MFA 223/1982 filed by the State endorses the view that O.A. petitioner is entitled to posses only about 200 acres of cultivated land as exempted from vesting and the rest has vested with the State. Accordingly the revised B2 W.P.(C). NO. 6710 of 2013 16 plan is being filed, a true copy of which is produced herewith and marked as Ext. R2(c)."
13. The relief prayed for in the Review Petition was to restrict the possession of the petitioner to 200 acres as per the revised plan. In other words, there was some difference with Ext. B2 plan given before the Forest Tribunal and a corrected version had been given in terms of Ext. R2(c). In the Review Petition filed the Division Bench held that the petitioner would be entitled to restoration of the said land of more or less 200 acres which is cultivated area. Therefore, as far as the cultivated area which is shown in Ext. B2 modified plan is concerned there cannot be any dispute at all. Even from the judgment of the learned Single Judge at Ext. P8, it is clear that a survey has been conducted and a survey sketch has been furnished to the petitioner. This survey sketch was given excluding the areas vested in the Government under the EFL Act. The said plan is now produced by the petitioner along with a memo dated W.P.(C). NO. 6710 of 2013 17 27.08.2013. In the said sketch, different bits of land had been shown as cultivated area. The cultivable area is lying in 13 bits in separate areas out of which bit nos. 12 and 13 are treated as ecologically fragile lands. The bungalow which is the subject matter of the present writ petition is situated in bit no. 8 wherein it is specifically recorded as Coffee Bungalow. In other words, the revised Ext.B2 plan also shows that the bungalow is situated within the area demarcated as cultivated land. If the bungalow is within the cultivated land as shown in the revised Ext.B2 plan, definitely it was not in the possession of the Forest Department and the Act will have no application. It is clearly indicated in the judgments aforesaid especially the judgment of the Forest Tribunal and this Court in MFA Nos. 357/1981 and 223/1982 that the property covered by cultivable area in Ext.B2 plan has not vested in the Government. There is no change in situation when the revised plan had been issued. That being the position, the W.P.(C). NO. 6710 of 2013 18 very action taken by the Forest Department in evicting the petitioner's employees from the said bungalow is without authority and is liable to be cancelled.
14. The Forest Department can have jurisdiction to take action only if any person had committed any forest offence. In so far as the bungalow in which the petitioner's employees were residing or staying or in occupation does not form part of the vested forest or a reserve forest and forms part of a cultivated land which is excluded from vesting and specifically taken note of by a Division Bench of this Court, it is not open for the Forest Department to take a different view by contending that the said bungalow forms part of the forest area or situated in the forest area. No material had been produced by the respondents to substantiate the said contention.
15. As a result of the above finding, I am of the view that the first relief as prayed for is only to be allowed. W.P.(C). NO. 6710 of 2013 19
16. As far as the second relief is concerned, the direction sought for is to permit the petitioner to continue with the possession and enjoyment of 200 acres under cultivation as found in Ext. P8 and P9. The respondents have raised a dispute that the petitioner is not in possession of the property and it is inter alia contended that they have no right in respect of any property in the said area which forms part of Nellithanam Estate. This contention is also totally incorrect. The learned Special Government Pleader relies upon the fact that the petitioner had sought for exemption of 818 acres of land. The Forest Tribunal granted exemption in respect of 200 acres and the balance 618 acres were treated to be vested under the Act. Though separate Appeals were filed by the State as well as the petitioner, the State Appeal was allowed with reference to the balance 200 acres and therefore the petitioner is not entitled for any exemption at all. But, on a perusal of the judgment, as already indicated the Forest Tribunal as well W.P.(C). NO. 6710 of 2013 20 as this Court had come to the finding that the cultivated land within the said area in occupation of the petitioner is not vested with the Government under the Act. In other words, there could not be any vesting of cultivated land which was demarcated in Ext. B2 plan produced by the Forest Department. The said Ext. B2 plan was later revised at the time of filing the Review Petition by the Department. But as far as bit no. 8 is concerned there is no change. According to the learned Special Government Pleader when the right title in respect of 818 acres vested in the Government, there is no other land left out for which the petitioner has title. This argument may sound primarily appreciable, but on a perusal of the judgment of this Court in MFA Nos. 357/1981 and 223/1982, it could be seen that the petitioner had claimed exemption with respect of large tracts of land and the total area claimed as exemption even without title would come to 1023 acres. This aspect had been dealt by the Division Bench in paragraph 9 of the W.P.(C). NO. 6710 of 2013 21 judgment wherein after considering the total extent of land for which exemption was sought for, the Division Bench observed that the total extent of the claim for exclusion will come to 1043 acres and the intention of the petitioner is to grab vested forest by some device or the other. In other words, the Division Bench has observed that even without title, exemption has been claimed. Therefore, the petitioner is in possession of larger extent of land or rather he claimed exemption and title in respect of larger extent of land. It is found that he was only entitled to possession in respect of the cultivated land covered by Ext.B2 plan which was not "vested" in the Government. That being the position, from the property covered by the estate only such extent of land which is described as cultivated land in Ext. B2 is excluded. Therefore, I am not convinced with the argument of the learned Special Government Pleader that the petitioner's title cannot be traced out in respect of the property. W.P.(C). NO. 6710 of 2013 22
17. Even assuming for argument that the petitioner does not have title, if the petitioner is in possession of a bungalow, it is not open for the Forest Department to claim possession unless it is situated in a private forest as defined under the Act. It is therefore necessary in the interest of justice to issue a direction that as far as the properties covered by bit no. 1 to 11 of Ext. B2 revised plan is concerned, the possession of the said property by the petitioner cannot be disturbed by the Forest Department. If the respondent authorities have a case that the petitioner does not have title to such a property, it is open for the respondent authorities to challenge the said title in appropriate proceedings. But when a Division Bench of this Court had concluded possession of the petitioner with reference to the cultivated lands in Ext.B2 revised plan, I do not think that there will be any justification on the part of the Forest Department to think otherwise and initiate action alleging trespass into the forest area.
W.P.(C). NO. 6710 of 2013 23
18. Another argument raised by the learned Special Government Pleader is based on the FIR registered against the employees of the petitioner. This writ petition is not filed challenging the said FIR and therefore, I do not intend to make any remarks in respect of the said prosecution. But having regard to the nature of order I intend to pass in this case, apparently the employees of the petitioner are not involved in the alleged forest offence. But that is a matter to be considered by the competent Court in which the said proceeding is pending. The forest officials are entitled to take any penal action against the employees of the petitioner only in the event of them being in unauthorised occupation of forest land. Having found that this bungalow is situated in the cultivated land especially in bit no. 8, which is not a forest area, consequently the action taken by the Forest Department will also become without jurisdiction. It shall be open for the petitioner to take up the matter before the appropriate Court and seek necessary reliefs in that W.P.(C). NO. 6710 of 2013 24 regard.
19. With these observations, this writ petition is allowed as follows:-
The respondents are directed to hand over possession of the building No.96, Ward No. 3 of Nelliayampathy Grama Panchayat to the petitioner and the respondents shall not dispossess the petitioner from the property covered by bit nos. 1 to 11 of Ext. B2 revised plan in O.A.No.42/1977.
(sd/-) A.M. SHAFFIQUE JUDGE DCS