Kerala High Court
Joby Vettiyadan vs State Of Kerala on 6 November, 2020
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A.No.202 of 2020 & Cross Objection 1
No.33 of 2020 in W.A.No.202 of 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942
WA.No.202 OF 2020
AGAINST THE JUDGMENT IN WP(C) 32102/2018(K) OF HIGH COURT OF
KERALA
APPELLANTS/PETITIONERS:
1 JOBY VETTIYADAN,
AGED 45 YEARS
VETTIYADAN HOUSE, JELLIPARA P.O., KURUKKANKUNDU,
PALAKKAD.
2 THRESIAMMA,
AGED 52 YEARS, ERUMATHANATHU HOUSE, JELLIPPARA
P.O., KURUKKANKUNDU, PALAKKAD.
3 MARIYAKKUTTY THOMAS,
AGED 84 YEARS
KOLLAMPARAMBIL HOUSE, KARIMBA P.O., PALAKKAD.
4 ROSILY,
AGED 51 YEARS
KUDILIL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
5 CHACKO JOSEPH,
AGED 86 YEARS
ERUMATHANATHU HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
6 M. BALAKUMAR,
AGED 49 YEARS
HOUSE NO. 56, VELIJAWAR LINE KOVAI.
7 SHAJI,
AGED 44 YEARS
VATTUKALATHIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
W.A.No.202 of 2020 & Cross Objection 2
No.33 of 2020 in W.A.No.202 of 2020
8 ANNAMMA,
AGED 54 YEARS
ERUMATHANATHU HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
9 V.T. SEBASTIAN,
AGED 66 YEARS
VATTUKALATHIL HOUSE, , JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
10 THRESSIAMMA,
AGED 80 YEARS
MUZHIKALCHALIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
11 ANNIE KUSMOSE,
AGED 31 YEARS
VARIKAYAMAKAL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
12 SALI KUSMOSE,
AGED 55 YEARS
VARIKAYAMAKAL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
13 AUGUSTIAN JOSEPH,
AGED 73 YEARS
PAREKUDIYIL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
14 SIJO SEBASTIAN,
AGED 38 YEARS
VATTUKALATHIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
15 GRACY MATHEW,
AGED 62 YEARS
MAMPARAMBIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
16 MARIAMMA,
AGED 86 YEARS
ERUMATHANATHU HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
17 JOSE THOMAS,
AGED 76 YEARS
W.A.No.202 of 2020 & Cross Objection 3
No.33 of 2020 in W.A.No.202 of 2020
VATTUKALATHIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
18 THOMAS JOSEPH,
AGED 56 YEARS
CHOVVATTUKKUNNEL HOUSE, MUTHUKAD P.O., PERAMBRA,
KOZHIKODE.
19 WILSON JOSEPH,
AGED 47 YEARS
VATTUKALATHIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
20 E.J. KURIAN JOSEPH,
AGED 68 YEARS
ERUMATHANATHU HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
21 MARIAKUTTY THOMAS,
AGED 74 YEARS
ERUMATHANATHU HOUSE, , JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
22 SURAJ,
AGED 40 YEARS
CHARALINGAL HOUSE, MALAMELKAVU P.O., PATTAMBI,
PALAKKAD.
23 PREMSI,
AGED 35 YEARS
CHARALINGAL HOUSE, MALAMELKAVU P.O., PATTAMBI,
PALAKKAD.
24 JAYAN,
AGED 50 YEARS
PUTHENVEETIL HOUSE, KOOTTANADU, PALAKKAD.
25 ANNAKKUTTY,
AGED 39 YEARS
PUTHENVEETTIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
26 SUNDARAN,
AGED 50 YEARS
JELLIPPARA P.O., KURUKKANKUNDU, PALAKKAD.
27 CHURCH VICAR,
SANTHINATHA CHURCH, SANTHITHADAM, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
W.A.No.202 of 2020 & Cross Objection 4
No.33 of 2020 in W.A.No.202 of 2020
28 T.T. GEORGE,
AGED 60 YEARS
THURACKAL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
29 A.C. THOMAS,
AGED 52 YEARS
ARAKKAPARAMBIL HOUSE, KARARA P.O., PALAKKAD.
30 SCARIA,
AGED 56 YEARS
VETTUKUZHIYIL HOUSE, KALLAMALA P.O., PALAKKAD.
31 CHRISTY MATHEW,
AGED 35 YEARS
MAMPARAMBIL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
32 JOSE VARGHESE,
AGED 43 YEARS
THODIYIL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
33 ELIYAMMA,
AGED 39 YEARS
VATTUKALAHIL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
34 ANNAKKUTTY,
AGED 63 YEARS
ERUMATHANATH HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
35 CHINNAMMA SCARIA,
AGED 51 YEARS
VETTUKUZHIYIL HOUSE, KALLAMALA P.O., PALAKKAD.
36 SHAJU,
AGED 51 YEARS
ERUMATHANATH HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
37 MARY JOSEPH,
AGED 72 YEARS
KULATHINAL HOUSE, KARARA P.O., MUNDANPARA,
PALAKKAD.
W.A.No.202 of 2020 & Cross Objection 5
No.33 of 2020 in W.A.No.202 of 2020
38 SALOMI,
AGED 44 YEARS
VATTUKALATHIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
39 MINI,
AGED 33 YEARS
THOTTIYIL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
40 SAJI JOSEPH,
AGED 39 YEARS
VATTUKALATHIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
41 N.J. THOMAS,
AGED 61 YEARS
NOORUPARAYIL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
BY ADVS.
SRI.GEORGE POONTHOTTAM (SR.)
SRI.JAMES KURIAN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT
KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-
695001.
2 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY, FOREST AND
WILDLIFE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3 THE CHIEF CONSERVANCY OF FOREST (PROTECTION),
FOREST HEAD QUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695014.
4 THE CONSERVATOR OF FOREST,
OLAVACODE, PALAKKAD DISTRICT-678002.
5 THE DISTRICT COLLECTOR,
PALAKKAD COLLECTORATE, PALAKKAD DISTRICT-678001.
6 THE DIVISIONAL FOREST OFFICER,
MANNARKKAD DIVISION, PALAKKAD DISTRICT-678582.
W.A.No.202 of 2020 & Cross Objection 6
No.33 of 2020 in W.A.No.202 of 2020
7 THE DIRECTOR,
DEPARTMENT OF SURVEY AND LAND RECORDS, SURVEY
BHAVAN, COTTON HILL ROAD, VAZHUTHACAUD,
THIRUVANATHAPURAM-695014.
R1-R7 BY SPL.GOVERNMENT PLEADER SRI.SANDESH RAJA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02-11-2020,
ALONG WITH CO.33/2020, THE COURT ON 06-11-2020 DELIVERED THE
FOLLOWING:
W.A.No.202 of 2020 & Cross Objection 7
No.33 of 2020 in W.A.No.202 of 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942
CO.No.33 OF 2020 IN WA. 202/2020
PETITIONERS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF
KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
- 695001
2 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY, FOREST AND
WILDLIFE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3 THE CHIEF CONSERVANCY OF FOREST (PROTECTION),
FOREST HEAD QUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695014.
4 THE CONSERVATOR OF FOREST,
OLAVACODE, PALAKKAD DISTRICT-678002.
5 THE DISTRICT COLLECTOR,
PALAKKAD COLLECTORATE, PALAKKAD DISTRICT-678001.
6 THE DIVISIONAL FOREST OFFICER,
MANNARKKAD DIVISION, PALAKKAD DISTRICT-678582.
7 THE DIRECTOR,
DEPARTMENT OF SURVEY AND LAND RECORDS, SURVEY
BHAVAN, COTTON HILL ROAD, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695014.
BY SPECIAL GOVERNMENT PLEADER SRI.SANDESH RAJA
W.A.No.202 of 2020 & Cross Objection 8
No.33 of 2020 in W.A.No.202 of 2020
RESPONDENTS:
1 JOBY VETTIYADAN,
AGED 45 YEARS
VETTIYADAN HOUSE, JELLIPARA P.O., KURUKKANKUNDU,
PALAKKAD.
2 THRESIAMMA,
AGED 52 YEARS, ERUMATHANATHU HOUSE, JELLIPPARA
P.O., KURUKKANKUNDU, PALAKKAD.
3 MARIYAKKUTTY THOMAS,
AGED 84 YEARS
KOLLAMPARAMBIL HOUSE, KARIMBA P.O., PALAKKAD.
4 ROSILY,
AGED 51 YEARS
KUDILIL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
5 CHACKO JOSEPH,
AGED 86 YEARS
ERUMATHANATHU HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
6 M. BALAKUMAR,
AGED 49 YEARS
HOUSE NO. 56, VELIJAWAR LINE KOVAI.
7 SHAJI,
AGED 44 YEARS
VATTUKALATHIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
8 ANNAMMA,
AGED 54 YEARS
ERUMATHANATHU HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
9 V.T. SEBASTIAN,
AGED 66 YEARS
VATTUKALATHIL HOUSE, , JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
10 THRESSIAMMA,
AGED 80 YEARS
MUZHIKALCHALIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
W.A.No.202 of 2020 & Cross Objection 9
No.33 of 2020 in W.A.No.202 of 2020
11 ANNIE KUSMOSE,
AGED 31 YEARS
VARIKAYAMAKAL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
12 SALI KUSMOSE,
AGED 55 YEARS
VARIKAYAMAKAL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
13 AUGUSTIAN JOSEPH,
AGED 73 YEARS
PAREKUDIYIL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
14 SIJO SEBASTIAN,
AGED 38 YEARS
VATTUKALATHIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
15 GRACY MATHEW,
AGED 62 YEARS
MAMPARAMBIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
16 MARIAMMA,
AGED 86 YEARS
ERUMATHANATHU HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
17 JOSE THOMAS,
AGED 76 YEARS
VATTUKALATHIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
18 THOMAS JOSEPH,
AGED 56 YEARS
CHOVVATTUKKUNNEL HOUSE, MUTHUKAD P.O., PERAMBRA,
KOZHIKODE.
19 WILSON JOSEPH,
AGED 47 YEARS
VATTUKALATHIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
20 E.J. KURIAN JOSEPH,
AGED 68 YEARS
ERUMATHANATHU HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
W.A.No.202 of 2020 & Cross Objection 10
No.33 of 2020 in W.A.No.202 of 2020
21 MARIAKUTTY THOMAS,
AGED 74 YEARS
ERUMATHANATHU HOUSE, , JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
22 SURAJ,
AGED 40 YEARS
CHARALINGAL HOUSE, MALAMELKAVU P.O., PATTAMBI,
PALAKKAD.
23 PREMSI,
AGED 35 YEARS
CHARALINGAL HOUSE, MALAMELKAVU P.O., PATTAMBI,
PALAKKAD.
24 JAYAN,
AGED 50 YEARS
PUTHENVEETIL HOUSE, KOOTTANADU, PALAKKAD.
25 ANNAKKUTTY,
AGED 39 YEARS
PUTHENVEETTIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
26 SUNDARAN,
AGED 50 YEARS
JELLIPPARA P.O., KURUKKANKUNDU, PALAKKAD.
27 CHURCH VICAR,
SANTHINATHA CHURCH, SANTHITHADAM, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
28 T.T. GEORGE,
AGED 60 YEARS
THURACKAL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
29 A.C. THOMAS,
AGED 52 YEARS
ARAKKAPARAMBIL HOUSE, KARARA P.O., PALAKKAD.
30 SCARIA,
AGED 56 YEARS
VETTUKUZHIYIL HOUSE, KALLAMALA P.O., PALAKKAD.
31 CHRISTY MATHEW,
AGED 35 YEARS
MAMPARAMBIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
W.A.No.202 of 2020 & Cross Objection 11
No.33 of 2020 in W.A.No.202 of 2020
32 JOSE VARGHESE,
AGED 43 YEARS
THODIYIL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
33 ELIYAMMA,
AGED 39 YEARS
VATTUKALAHIL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
34 ANNAKKUTTY,
AGED 63 YEARS
ERUMATHANATH HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
35 CHINNAMMA SCARIA,
AGED 51 YEARS
VETTUKUZHIYIL HOUSE, KALLAMALA P.O., PALAKKAD.
36 SHAJU,
AGED 51 YEARS
ERUMATHANATH HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
37 MARY JOSEPH,
AGED 72 YEARS
KULATHINAL HOUSE, KARARA P.O., MUNDANPARA,
PALAKKAD.
38 SALOMI,
AGED 44 YEARS
VATTUKALATHIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
39 MINI,
AGED 33 YEARS
THOTTIYIL HOUSE, JELLIPPARA P.O., KURUKKANKUNDU,
PALAKKAD.
40 SAJI JOSEPH,
AGED 39 YEARS
VATTUKALATHIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
41 N.J. THOMAS,
AGED 61 YEARS
NOORUPARAYIL HOUSE, JELLIPPARA P.O.,
KURUKKANKUNDU, PALAKKAD.
W.A.No.202 of 2020 & Cross Objection 12
No.33 of 2020 in W.A.No.202 of 2020
BY ADV. GEORGE POONTHOTTAM (SR.)
BY ADV. SRI.JAMES KURIAN
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD
ON 02-11-2020, ALONG WITH WA.202/2020, THE COURT ON 06-11-2020
DELIVERED THE FOLLOWING:
W.A.No.202 of 2020 & Cross Objection 13
No.33 of 2020 in W.A.No.202 of 2020
JUDGMENT
SHAJI P.CHALY,J The captioned writ appeal is filed by the petitioners in W.P.(C) No.32102/2018, challenging the judgment of the learned Single Judge dated 4.12.2019, whereas the cross objection is filed by the respondents in the writ petition challenging the interim arrangement made by the learned Single Judge during consideration of the application directed to be submitted before the Forest Tribunal under the provisions of the Kerala Private Forest (Vesting and Assignment) Act, 1971, hereinafter called, "Act, 1971". For the sake of convenience The parties would be referred hereinafter as appellants and respondents . Brief material facts for the disposal of the aforesaid appeal and the cross objection as is discernible from the proceedings in the writ petition are reproduced hereunder for clarity and convenience:
2. According to the appellants, through their predecessors-in-interest and some of them by themselves came into possession of the properties covered by Exts.P1 and P2 notices dated 10.9.2018 issued by the Divisional Forest Officer, Mannarkkad Division, Palakkad District, whereby the appellants were directed to vacate the forest land occupied by them immediately since the pattayam issued to them without the permission of the Forest Department is not legally sustainable.
3. Case of the appellants is that they or their predecessors-in-interest W.A.No.202 of 2020 & Cross Objection 14 No.33 of 2020 in W.A.No.202 of 2020 were in possession of the properties in question from 1950 to 1960 and at any rate before 1971. It is submitted that Ext.P1 notice has been issued to appellants 1 to 27, who have been granted purchase certificates by the Land Tribunal, Agaly, which are produced as Exts.P3, P7, P8 and P9 series and P11 to P19. Order of Land Tribunal, Agaly issued to one of the appellants is produced as Ext.P4, and some other orders are also produced . It is also submitted that, Ext.P2 notice has been issued to other appellants, who have not yet obtained purchase certificates. According to the appellants, Exts.P1 and P2 notices were issued without advertence to any provisions of law and directions issued by the State Government.
4. Claim of the appellants in the writ petition was that, they are agriculturists settled in the land as per preliminary certificate Survey No.2019 in Kallamala Village, Mannarkkad Taluk, Palakkad District, and are the legal heirs or the successors-in-interest of the original settlers. It is also pointed out that appellants are mostly successors of those who were originally tenants of Mannarghat Mooppil Nair on oral lease and had been cultivating various agricultural crops like paddy, pepper vines, lemon grass, tubers, arecanut, coffee, banana, rubber plantation etc. in their respective holdings since 1961. It is further submitted that the appellants, who have not obtained purchase certificates, were also holding lands since 1961, and they were also carrying out agricultural crops in the land since then. Therefore, it is submitted that appellants were enjoying uninterrupted possession of the W.A.No.202 of 2020 & Cross Objection 15 No.33 of 2020 in W.A.No.202 of 2020 property and even availing bank loans by mortgaging their properties. While holding so, Forest Officials started claiming that the land cultivated by the appellants were vested forests and they have no right in the said property and thereupon Forest Officials started obstructing activities of the appellants.
The case projected by the appellants is that till date no demarcation of the boundaries of the alleged private forest vested in the Government as envisaged under section 6 of the Act, 1971 has been carried out . It is further submitted that no notification or publication as envisaged under rule 2A of the Kerala Private Forest (Vesting and Assignment) Rules, 1974, hereinafter called, "Rules, 1974", have been made till date. It is also pointed out that Forest Officials have objected to the appellants availing electricity connections to their homes or for irrigation of agricultural land thereby negating the very basic needs for a dignified human life and even objecting to the repairing or relaying of Panchayat roads connecting the lands of the appellants to the nearest hospital or school. It was also pointed out that they have submitted various representations before the authorities, however, no action was taken to redress their grievances. Accordingly, they have approached the Kerala State Human Rights Commission and have secured Ext.P5 order. That apart it is submitted that lands possessed by them have not vested in the Government under the Act, 1971 and therefore, they are the absolute owners of the land by virtue of the purchase certificates issued by the Land Tribunal as per the provisions of the Kerala Land Reforms Act 1963. W.A.No.202 of 2020 & Cross Objection 16 No.33 of 2020 in W.A.No.202 of 2020
5. It was also the case of the appellants that, on 21.7.2017 Forest Officials numbering 70 without any notice to the appellants indiscriminately uprooted banana plants and destroyed fencing put up by one of the lessees. Thereupon, people of the locality objected to the actions of the Forest Officials and consequently mediations were held and accordingly it was decided that the issue regarding the vested forest be settled finally. These were the basic material facts projects by the appellants in the writ petition and sought for the following reliefs:
(a) call for the records relating to Exts.P1 & P2 and quash the same by issue of a writ of certiorari or such other appropriate writ, direction or order.
(b)To direct the 2nd respondent by issue of a writ of mandamus or such other appropriate writ, direction or order to initiate necessary proceedings for carrying out a joint survey of the lands in Sy.No.2019 in Kallamala Village, Mannarkkad Taluk, Palakkad at the earliest thereby demarcating the forest boundary from the agricultural land owned by the petitioners and duly considering the representations made by the petitioners while carrying out such survey.
(c) Pass such other orders as are deemed just and necessary in the facts and circumstances of the case.
6. A statement was filed by the 6th respondent, Divisional Forest Officer, Mannarkkad Division, refuting the claims and demands and allegations raised by the appellants in the writ petition. According to the 6 th respondent, the W.A.No.202 of 2020 & Cross Objection 17 No.33 of 2020 in W.A.No.202 of 2020 lands involved in the writ petition is a vested forest by virtue of notification published as envisaged under Act, 1971. It is further contended that the appellants encroached the forest land in VFC item No.124B, Onthumala Malavaram, which is notified vide No.D-1383/77 dated 10.10.1977, evident from Annexure R6(a). It was submitted that, any question as to whether the land is a private forest or not is to be considered under section 8 of Act, 1971 by the Forest Tribunal which is the statutory remedy available to the appellants and therefore, the writ petition is not maintainable under law. It was further submitted that as per section 4 of Act, 1971, all private forests vested in the Government under sub-section (1) of section 3 shall, so long as they remain vested in the Government, be deemed to be reserved forest constituted under Kerala Forest Act, 1961 and provisions of that Act shall so far as may be, apply to such private forest. It was also contended that as per section 22 of the Kerala Forest Act, 1961, no right can be acquired in or over a reserved forest except under a grant or contract in writing made by or on behalf of the Government. So also consequent to the enactment of Forest (Conservation) Act, 1980, forest land can be diverted only with the prior permission of the Union Government under section 2 of Act, 1980. That apart it was submitted that the purchase certificates and allied documents obtained by the appellants were without the knowledge of the Forest Department and hence they are all null and void, and further that all appellants are encroachers post 1.1.1977,liable to be evicted, and the Forest Officials under W.A.No.202 of 2020 & Cross Objection 18 No.33 of 2020 in W.A.No.202 of 2020 the Forest Act are vested with powers to evict the encroachers.
7. Therefore, the sum and substance of the contention advanced by the respondents was that, Exts.P1 and P2 notices were issued in accordance with law and if the appellants had any genuine grievances, they ought to have approached the Forest Tribunal in terms of section 8 of Act, 1971 and ought to have established their claims before the Tribunal. It is also submitted that in view of the disputed facts, the appellants are not entitled to get any reliefs as is sought for in the writ petition.
8. The learned Single Judge on consideration of the facts and circumstances has dismissed the writ petition holding as follows in paragraphs 11 to 13:
"11. On a consideration of the contentions advanced, I am of the opinion that it is for the petitioners in this writ petition to establish their contentions with regard to their title and possession with respect to the properties in question. This Court exercising the jurisdiction of judicial review cannot consider the issue whether the petitioners or any one of them have title to the properties or are in possession of the properties prior to 1977. If the petitioners are found to be encroachers after 1.1.1977, the directions contained in the judgment of the Division Bench of this Court in W.P.(C) No. 18467 of 2002 and connected cases would squarely apply to them and they would liable to be evicted from the property. It is pertinent in this respect to note that the decision of the W.A.No.202 of 2020 & Cross Objection 19 No.33 of 2020 in W.A.No.202 of 2020 Apex Court relied on by the learned counsel for the petitioners was one rendered in a Civil Appeal filed by the State against a judgment of this Court in an MFA filed under the Kerala Private Forests (Vesting and Assignment) Act, 1971. The factual aspect whether the land in question was 'Forest' as defined in the Act as on the appointed day and as to whether the petitioners are in possession of the properties lawfully cannot be decided by this Court exercising jurisdiction under Article 226 of the Constitution of India. In case the petitioners have a case that they are in possession of the lands on the basis of valid title deeds which would show that the property was being cultivated by them on the appointed day, it is for them to agitate the matter before the Forest Tribunal in terms of Section 8 of the 1971 Act.
12. After the matter was reserved for judgment, the petitioners made a submission that further documents may be permitted to be produced. Thereafter, the writ petition was posted again on 22.11.2019. A petition was filed seeking the acceptance of additional documents produced as Exhibits P21 to P26. The documents produced are the Asset Register of Agali Grama Panchayat, report of the Petitions Committee of the Legislative Assembly, printout of the joint survey plans obtained from the official website of the Kerala BioDiversity Board, a joint verification statement and correlation statement of the properties in Kallamala village and Agali village etc. These documents are relied on by the writ petitioner in support of the contention that the properties from which eviction is W.A.No.202 of 2020 & Cross Objection 20 No.33 of 2020 in W.A.No.202 of 2020 now ordered is not Forest land. As I have already stated, this Court cannot enter into a factual appreciation as to the nature of the lands in respect of which the petitioners claimed possession. It is the specific case of the respondents that the properties in question are vested forest and are covered by notification issued under the Kerala Private Forest (Vesting and Assignment) Act, 1971 to that effect. If that be so, the factual examination as to the claims of the individual petitioners has to be taken up through a process provided by law, that is, by approaching the Forest Tribunal with an original application under Section 8 raising a dispute that the properties in question are not forest lands or that the petitioners have a right to possess the properties in accordance with law. I am of the opinion that it is not for this Court to consider the issue in a writ petition filed challenging a notice for eviction issued by the respondents on the specific ground that the properties are vested forest. The challenge against the notices of eviction therefore must fail.
13. However, in view of the contentions raised by the petitioners in this writ petition that at least some of the petitioners are in possession on the basis of valid purchase certificates issued after due enquiry, such of the petitioners who have put up tenements in the properties and are actually residing in the properties will not be dispossessed until the application if any to be preferred by them before the Forest Tribunal within two months from today is considered and disposed of in accordance with law. The petitioners who are not residing in the W.A.No.202 of 2020 & Cross Objection 21 No.33 of 2020 in W.A.No.202 of 2020 properties or are not in actual possession shall not be permitted to enter into the properties or to cut or remove any trees or other forest produce therefrom on the basis of the protection granted. In case the petitioners do not move the Forest Tribunal within the time provided herein, it is made clear that further action in pursuance to the notices can be taken against them in accordance with law."
9. It is thus challenging the legality and correctness of the judgment of the learned Single Judge, this appeal is preferred by the writ petitioners. However, while dismissing the writ petition as above, the learned Single Judge granted an interim relief to some of the appellants, who have put up tenements in the properties and are actually residing in the properties, by directing that such persons shall not be dispossessed until application if any, to be preferred by them before the Forest Tribunal within two months from the date of judgment is considered and disposed of in accordance with law. It is basically challenging the said direction of the learned Single Judge, the captioned cross objection is filed by the State and its officials.
10. The paramount contentions raised by the appellants in the appeal is that the property originally situated in Agaly Village was comprised in Sy.No.2019/Pt., which area has been used for agricultural related human settlement purposes for all these years and continues to be so till date. Later the said area was made part of Kallamala Village by bifurcation, and re-survey was conducted and at present properties are comprised in Re-Sy.No.1139. That W.A.No.202 of 2020 & Cross Objection 22 No.33 of 2020 in W.A.No.202 of 2020 apart it is pointed out that, the Act 1971 was made for the purpose of assigning land for agriculturalists and agricultural labourers for cultivation and not for any forest purposes and therefore, it can never be construed as a forest land in letter and spirit.
11. In the appeal, appellants have also raised issues depending upon the reports of the Gadgil Committee and Oommen V. Oommen Committee in relation to the eco sensitive area lands and according to the appellants, as per the report of the Oommen V.Oommen Committee, the area earmarked as Kurukkankundu area is a human settlement area and therefore, the issue is to be considered taking into account the findings rendered by the Oommen V.Oommen Committee in the report. It is also submitted that the respondents have failed to produce any notification showing that the properties in question were vested with the State Government. Other findings rendered by the learned Single Judge in the judgment are also assailed contending that those findings are rendered without any supporting materials.
12. That apart it is predominantly contended that since most of the appellants have secured pattayam from the Land Tribunal, Agaly, the Forest Officials have no power to cause disturbance to them. That apart it was submitted that in spite of the recommendation made by the Kerala State Human Rights Commission as per Ext.P5 order dated 29.7.2013, the Government has not taken any steps to grant pattayam to the appellants. Appellants have also filed counter affidavit to the cross objection filed by the W.A.No.202 of 2020 & Cross Objection 23 No.33 of 2020 in W.A.No.202 of 2020 State Government and have also produced various documents, photographs and periphery sketches prepared by the Forest Department and have advanced arguments relying upon them. Appellants have also produced purchase certificates issued by the Land Tribunal to some of them during the year 1974 to 1976 as an attempt to establish that they are the title holders of the properties in question and therefore, Exts.P1 and P2 notices issued by the Divisional Forest Officer, Mannarkkad is liable to be quashed under Article 226 of the Constitution of India.
13. The 6th respondent i.e., the Divisional Forest Officer, Mannarkkad, has also filed a statement in the writ appeal and produced various documents including periphery sketch prepared by the Forest Department to show that encroachments were made by the appellants in the vested forest lands. A reply affidavit is filed by the appellants to the said statement also, reiterating the stand adopted in the appeal and disputing the contentions put forth in the statement and also assailing the documents produced along with the statement. Apart from the same, along with I.A.No.3 of 2020 in the writ appeal, the appellants have produced various documents and orders issued by various forests/ revenue authorities, and notifications issued by the Ministry of Environment and Forests, and Ministry of Environment , Forests and Climate Change Government of India dated 10.3.2014 and 3.10.2018.
14. It is also submitted relying upon Annexure 14 produced along with W.A.No.202 of 2020 & Cross Objection 24 No.33 of 2020 in W.A.No.202 of 2020 the said I.A., which is an order passed by the National Green Tribunal, that the land in question is a human settlement area and decided it as an eco sensitive zone. It is submitted that Annexure R6(a) evidencing the occupied land and vested forest produced along with the cross objection is quite contrary to Annexure R6(a) details of the occupants produced along with the statement filed in the writ petition. It is also submitted that Annexure R6(a) sketch produced along with the statement in the appeal is a fabricated document. That apart it is submitted that there are patent contradictions in the periphery sketches produced in the writ appeal by the appellants and respondents which by itself would lead to the conclusion that the Forest officials are not having a definite case with respect to the area occupied by the appellants and that the impugned notices were issued without even, preparing a boundary sketch in accordance with rules 1974 and identifying the exact area of forest land.
15. It is also the case of the appellants that when the Forest Officials destroyed the plantains cultivated by some of the appellants in Kurukkankundu area, the Forest Authorities never had a case that it was a vested forest. However, the revenue authorities have issued documents in favour of most of the appellants entitling them to occupy the land in question and therefore, presumption is available to the appellants that they are holding the properties in accordance with the title secured by them from the competent Land Tribunal.
W.A.No.202 of 2020 & Cross Objection 25No.33 of 2020 in W.A.No.202 of 2020
16. Learned senior counsel for appellants has also explained the circumstances put forth with respect to the periphery sketch produced by the respondents as well the appellants with the help of magnifying glass and submitted that the markings made in the sketch would make it clear that the area in question where the appellants have secured purchase certificate from the Land Tribunal, and occupied by others, would not come within the forest as defined by the Forest Authorities in the statement filed. Again it is contended that by shading the area now by the Forest Authorities in the sketch produced by them, is only an attempt to mislead this Court by making it appear that the entire area occupied by the appellants are vested forests covered by the provisions of Act, 1971.
17. Learned Special Government Pleader has strenuously submitted that this is a subject matter to be considered by the Forest Tribunal taking into account the facts and figures and documents produced by the appellants and verifying their veracity and legality, taking into account the provisions of Act, 1971, Rules, 1974 and the relevant provisions of the Forest Act, 1961 and the Forest Conservation Act, 1980, and so also the Kerala Land Reforms Act, 1963. It is also pointed out by learned Special Government Pleader that notifications were issued by the Ministry of Environment, Forest and Climate Change and the Ministry of Environment and Forest, Government of India, so as to tackle the situations under the Environment Protection Act, 1986 and the Rules thereto, which has no bearing to the issues on hand. An additional W.A.No.202 of 2020 & Cross Objection 26 No.33 of 2020 in W.A.No.202 of 2020 counter affidavit is also filed by the respondents controverting the documents produced along with I.A.No.3 of 2020 and the averments thereto. It is clearly specified in the said statement that Kurukkankundu area is not an area which is there in any of the revenue records. It is further submitted that Kurukkankundu area is newly incorporated by the appellants to create confusion and to mislead this Court. It is also submitted that the demarcation sketch in accordance with the Rules has been prepared and approved by the Department and the above sketch includes the land held by the appellants.
18. We have heard Senior Counsel appearing for appellants Sri.George Poonthottam, assisted by Advocates Sri James Kurian and Sri Alex Skaria, and learned Special Government Pleader Sri.Sandesh Raja and perused the pleadings and materials on record.
19. Learned Senior Counsel has addressed arguments in accordance with the contentions recorded as above. The basic challenge made in the writ petition was in respect of Exts.P1 and P2 notices dated 10.9.2018 issued to the appellants by the divisional forest officer directing them to vacate the properties in question forthwith since they are occupying the properties without securing permission from the Forest Authorities. Undoubtedly and undisputedly Exts.P1 and P2 notices are issued by virtue of powers conferred under the provisions of Act, 1971 ,Act 1961 and Rules, 1974. It is true the photo copies of purchase certificates said to be secured by some of the appellants are produced along with the writ petition as well subsequently W.A.No.202 of 2020 & Cross Objection 27 No.33 of 2020 in W.A.No.202 of 2020 along with an affidavit. Purchase certificates are seen to be issued during the years 1974 and 1976 by the Land Tribunal, Agaly in various proceedings.
20. It is an admitted fact that all the appellants have not secured purchase certificates, however, it is stated that they were occupying the land prior to the introduction of Act, 1971. Normally when proceedings are initiated under the provisions of Act, 1971, a clear remedy is available under section 8 of Act, 1971 for settlement of disputes. In order to understand the scheme of Act, 1971, it is only appropriate to extract sections 3, 4 & 8 of Act, 1971.
"3. Private forests to vest in Government.- (1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other, but subject to the provisions of sub-sections (2) and (3), with effect on and the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government Free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.
(2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.
Explanation.- For the purposes of this sub section, "cultivation" includes cultivation of trees or plants of any species.
W.A.No.202 of 2020 & Cross Objection 28No.33 of 2020 in W.A.No.202 of 2020 (3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling area applicable to him under Section 82 of the said Act, (4) Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of sub-section (2) or sub-section (3), be deemed to be lands to which Chapter III of the said Act is applicable and for the purposes of calculating the ceiling limit applicable to an owner, private forests shall be deemed to be "other dry lands" specified in Schedule II to the said Act.
8. Settlement of disputes.- (1) Where any dispute arises as to whether
(a) any land is a private forest or not; or
(b) any private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, '[may, within such period as may be prescribed apply to the Tribunal] for decision of the dispute.
(2) Any application under sub-section (1) shall be in such form as may be prescribed.
(3) If the Tribunal decides that any land is not a private forest or that a private forest or portion thereof has not vested in the Government and,
(a) no appeal has been preferred against the decision of the Tribunal within the period specified therefor; or
(b) such appeal having been preferred has been dismissed by the High Court, the custodian shall, as soon as may be after the expiry of the period referred to in clause (a) Or, as the case may be, after the date W.A.No.202 of 2020 & Cross Objection 29 No.33 of 2020 in W.A.No.202 of 2020 of the order of the High Court dismissing the appeal, restore possession of such land or private forest or portion, as the case may be, to the person in possession thereof immediately before the appointed day]."
21. On a reading of section 3 of Act, 1971, it is clear that it starts with a non obstante clause and stipulates that notwithstanding anything contained in any other law or any other contract or other document subject to the provisions of sub-sections (2) & (3) on and with effect from the appointed date i.e., 10.5.1971, the ownership and possession of all private forests in the State of Kerala shall by virtue of Act, 1971 stand transferred to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.
22. True, the intricacies with the provisions of the Kerala Land Reforms Act, 1963 is referred to in sub-sections (2) (3) and (4) for the purposes prescribed thereunder. By virtue of section 4 of Act, 1971 all private forests vested in the Government under sub-section (1) of Section 3 shall, so long as they remain vested in the Government, be deemed to be reserved forests constituted under the Kerala Forest Act, 1971 and so far as may be applied to the private forest as are guided by Act, 1971. As we said earlier, there is no dispute that proceedings as per Ext.P1 and Ext.P2 are initiated under Act, 1971, the rules 1974 and other related laws.
W.A.No.202 of 2020 & Cross Objection 30No.33 of 2020 in W.A.No.202 of 2020
23. In our view section 8 of Act, 1971 assumes significance because, from the contentions put forth by the appellants it is clear that they are disputing that the properties in question are private forest. Therefore, on appreciation of the provisions of section 8 of Act, 1971, in our view, the subject issues raised by the appellants are matters to be considered by the Forest Tribunal in terms of section 8 of Act, 1971, which is clear from section 8 of Act, 1971 extracted above.
24. However, learned Senior Counsel for appellants submitted that in view of the judgment of the Apex Court in State of Kerala and Another v. Mohammed Basheer [(2019)2 SCC 260], which was brought to the notice of the learned Single Judge, the learned Single Judge ought to have considered the matter on its merit taking into account the proposition of law laid down by the Apex Court in Mohammed (supra) and ought to have given a quietus to the issues raised by the appellants on account of Exts P1 and P2 notices issued by the divisional forest officer. Since learned Senior Counsel for appellants argued extensively on the issues based on Mohammed (supra), we are of the considered opinion that advertance to some of the provisions of the Kerala Land Reforms Act, 1963 is required. Chapter II of Act, 1963 deals with provisions regarding tenancies. Section 3(1)(i) deals with exemptions, which is relevant to the context.
" Exemptions.--(1) Noting in this Chapter shall apply to--
(i) leases of lands or buildings or both belonging to or vested in W.A.No.202 of 2020 & Cross Objection 31 No.33 of 2020 in W.A.No.202 of 2020 the Government of Kerala or the Government of any other State in India or the Government of India or a local authority or the Cochin Port Trust or a corporation owned or controlled by the Government of Kerala or the Government of any other State in India or the Government of India.
[Provided that in the case of a sub-lease of Kandukrishi lands or a mortgage of such lands falling under Section 4A, granted or created by a tenant holding such lands under the Government, the provisions of Sections 13 to 26 shall, so long as the lease granted by the Government subsists, apply to the tenant or mortgagee holding under the sublease or mortgage, as the case may be, as they apply to a tenant holding lands other than Government lands.] Explanation I.- "lands belonging to or vested in the Government of Kerala" shall, for the purposes of this clause, have the same meaning as "Government lands" under subsection (1) of Section 2 of the Kerala Government Land Assignment Act, 1960, "[but leases subsisting at the commencement of this Act of lands escheated to the Government shall not be deemed to be leases of lands belonging to or vested in the Government of Kerala if the lessees or their predecessors-in-interest were in possession of the lands at the time of escheat as tenants under leases whether current or time-expired.] [Explanation IA.- Lands, the right, title and interest in respect of which have vested in the Government under sub-section (9) of Section 66 or Section 72, shall not be deemed to be lands belonging to or vested in the Government of Kerala for the purposes of this clause.
Explanation IB.- For the purposes of this clause, lands held under leases whether current or time-expired at the time when such lands came to belong to or vested in a local authority shall not be deemed to be lands belonging to or vested in a local authority if the lessee or his successor-in- W.A.No.202 of 2020 & Cross Objection 32 No.33 of 2020 in W.A.No.202 of 2020 interest was continuing in possession of such lands at the commencement of this Act.] Explanation II.--" For the purposes of this clause, "kandukrishi lands"
means lands covered by the Kandukrishi Proclamation, 1124, and includes kandukrishi pattam and kandukrishi thanathu lands, but shall not include lands assigned on registry under the Kandukrishi Land Assignment Rules, 1958"
25. Therefore, it is clear from the aforesaid provisions that nothing in Chapter II contained in Act, 1963 shall apply to leases of lands or buildings or both belonging to or vested in the Government of Kerala or the Government of any other State in India or the Government of India or a local authority or the Cochin Port Trust or a corporation owned or controlled by the Government of Kerala or the Government of any other State in India or the Government of India. However, the Explanation 1A makes it clear that sub-section (9) of section 66 or section 72 shall not be deemed to be lands belonging to or vested in the Government of Kerala for the purposes of clause 1 of section 3(1) of Act, 1963.
26. It is only appropriate at this juncture to state that Chapter II contains section 3 to section 89A. As per explanation 1A to section 3 (1) (i) extracted above, the lands vested in the Government under sub-section (9) of section 66 or section 72 shall not be deemed to be lands belonging to or vested in the Government of Kerala for the purpose of clause 1 of section 3(1) W.A.No.202 of 2020 & Cross Objection 33 No.33 of 2020 in W.A.No.202 of 2020 of Act, 1963. Section 66 of Act, 1963 deals with procedure for vesting of rights of religious, charitable or educational institutions in Government and for determination of annuity. Sub-section (9) deals with determination of annuity in respect of all holdings specified in the application under sub-section (1) of section 65 and the procedure to be followed by the Government to issue a notification in the gazette declaring that the right, title and interest of the institution in respect of such holdings shall vest in the Government with effect from the date to be specified in the notification. Section 72 deals with vesting of landlord's rights in Government, which is relevant to the context and accordingly extracted hereunder:
"72.Vesting of landlord's rights in Government.-- (1) On a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date.
Provided that nothing contained is this sub-section shall apply to a holding or part of a holding in respect of which an application for resumption under the provisions of this Act is pending on such date before any Court or (2) Where in the case of a holding or part of a holding mentioned in the proviso to sub-section (1), the order rejecting the application for resumption, either in part or in full, has become final, the right, title and interest of the landowner and the intermediaries, if any, of the holding or part of the W.A.No.202 of 2020 & Cross Objection 34 No.33 of 2020 in W.A.No.202 of 2020 holding, as the case may be, in respect of which resumption has not been allowed shall, with effect from the date on which the application for resumption has been finally rejected, vest in the Government free from all encumbrances created by the landowner and the Intermediaries, if any, and subsisting thereon on the said date.
(3) Where any land or portion of a land is restored to the possession of any person under the provisions of this Act after the date notified under sub-
section (1), the right, title and interest of the landowner and intermediaries, if any, in respect of such land or portion of land shall, from the date of such restoration, vest in the Government free from all encumbrances created by the landowner and intermediaries and subsisting thereon on the said date. (4) Where in the case of a holding or part of a holding, the landowner or an intermediary is a minor or a person of unsound mind or a member of the Armed Forces or a seaman or a legal representative of any such member or seaman, or a small holder, the right, title and interest of the landowner and intermediaries, if any, in respect of such holding or part of a holding shall vest in the Government
(a) on the expiry of six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969, or on the date notified under subsection (1), whichever is later, in cases where no application for resumption of the holding or part of the holding has been preferred;
(b) in any case where application for resumption has been preferred, on the date on which the order rejecting such application, either in part or in full, has become final or on the date notified under sub-section (1),whichever is later.
(5) Where an intermediary has resumed any land under the provisions of this Act, the right, title and interest of the landowner and the other W.A.No.202 of 2020 & Cross Objection 35 No.33 of 2020 in W.A.No.202 of 2020 intermediaries, if any, in respect of the said land shall vest in the Government free from all encumbrances created by the landowner and the other intermediaries, with effect from the date of resumption or the date notified under sub-section (1), whichever is later."
27. Therefore, the exemption contained in Explanation 1A to section 3 (1) (i)of Act, 1963 may not have a bearing to the issue raised by the appellants in the appeal because the claims raised by the appellants are in accordance with section 72k of Act, 1963 dealing with issue of certificate of purchase. The provisions extracted above of Act, 1963 were discussed in order to understand the implication of the judgment of the Apex Court in Mohammed supra wherein it was held that the purchase certificates issued is a conclusive proof binding on the State Government . But it is clear that the said judgment was rendered by the Apex Court in an appeal pursuant to the proceedings of the Forest Tribunal under section 8 of Act, 1971. As we have stated earlier, the judgment in Mohammed Basheer was rendered taking into consideration sections 72, 72(b) and 72(k) of the Kerala Land Reforms Act, 1963 alone, and we do not think that the apex court had occasion to consider the issues involved in the said case applying the provisions of section 3 (1) (i) of Act 1963 as discussed above . In our considered view the said judgment was rendered taking into account the factual circumstances constricted to the said appeal. This could be made further made clear by making a reference to the section 72K of Act 1963, which reads thus: W.A.No.202 of 2020 & Cross Objection 36
No.33 of 2020 in W.A.No.202 of 2020 "72K. Issue of certificate of purchase.-- (1) As soon as may be after the determination of the purchase price under Section 72F or the passing of an order under sub-section (3) of Section 72MM the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries, if any.
Explanation.- For the removal of doubts, it is hereby declared that on the issue of the certificate of purchase, the landowner or any intermediary shall have no right in the land comprised in the holding, and all his rights including rights, if any, in respect of tress reserved for his enjoyment shall stand extinguished.
(2) The certificate of purchase issued under sub-section (1) shall be conclusive proof the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. (3) The purchase price payable by the cultivating tenant shall be a first charge on the land comprised in the holding or part thereof to which the assignment relates and shall be recoverable together with interest as provided in sub-section (3) of Section 72M, under the provisions of the Revenue Recovery Act for the time being in force."
28. Be that as it may, learned Senior Counsel for appellants had submitted that the Kerala Land Reforms Act, 1963 being a special enactment to cater the needs of the cultivating tenants and distribution of land among the landless, it is a special statute introduced by the Government of Kerala and therefore, the purchase certificate issued by the competent Land Tribunal would have precedence over the provisions of the Kerala Private Forest W.A.No.202 of 2020 & Cross Objection 37 No.33 of 2020 in W.A.No.202 of 2020 (Vesting and Assignment) Act, 1971 and therefore, contended that even though section 3 of Act, 1971 is a sweeping provision, it cannot overlook the purchase certificate issued by the Land Tribunal. The said contention is objected to by the learned Special Government Pleader stating that even though Act, 1971 is later introduced by the State Government, it is a general enactment to protect the forest and its flora and fauna and therefore, by virtue of the non obstante clause contained under section 3 of Act, 1971, it would have a binding precedence over the provisions of Act, 1963.
29. Having regard to the relevance of the question so raised, we prefer to refer a passage from Maxwell on the Interpretation of Statutes, referred to in AIR 1966 SC 1931:
" A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, 'where there are general words in a latter Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the Special Act.".
30. Which thus means, if the latter general enactment has its own characteristics as is interpreted by Maxwell as above, then the general law introduced later would have precedence over the earlier special enactment. The issue is no more res integra in view of the judgment of the Apex Court in W.A.No.202 of 2020 & Cross Objection 38 No.33 of 2020 in W.A.No.202 of 2020 Ajoy Kumar Banerjee and Ors. v. Union of India and Ors. [(1984) 3 SCC 127], wherein a Three Judge Bench of the Apex Court had held as follows at paragraphs 38 & 39:
"38. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x . As mentioned hereinbefore if the scheme was held to be valid, then the question what is the general law and what is the special law and which law in case of conflict would prevail would have arisen and that would have necessitated the application of the principle "Generalia specialibus non derogant". The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied.
(i) The two are inconsistent with each other.;
(ii) There is some express reference in the later to the earlier enactment.
If either of these two conditions is fulfilled, the later law, even though general, would prevail.
39. From the text and the decisions, four tests are deducible and these are : (i) The legislature has the undoubted right to alter a law already promulgated through subsequent legislation, (ii) A special law may be alternated or repealed by a later general law by an express provision, (iii) later general law will override a prior special law if the two are so repugnant to each other that they cannot co-exist even though no express provision in that behalf is found in the general law, and (iv) It is only in the absence of a provision to the contrary and of a clear inconsistency that a special law will remain wholly unaffected by a later general law. See in this connection, Maxwell on "The Interpretation of Statutes' Twelfth Edition, Page 196-198."
W.A.No.202 of 2020 & Cross Objection 39No.33 of 2020 in W.A.No.202 of 2020
31. Anyhow looking at section 3 of Act, 1971 extracted above, it is clear that the issue in respect of a private forest referred to in Act, 1963 and Act, 1971 are inconsistent with each other and there is also a clear expression of reference in the later to the earlier enactment. To understand this position better, definition of private forest contained under section 2(27) of Act, 1963 is extracted hereunder:
"2(47) private forest means a forest which is not owned by the Government but does not include---
(i) areas which are waste and are not enclaves within wooded areas;
(ii)areas which are gardens or nilams;
(iii) areas which are planted with tea, coffee, cocoa, rubber, cardamom or cinnamon; and
(iv) other areas which are cultivated with pepper, arecanut, coconut, cashew or other fruit-bearing tress or are cultivated with any other agricultural crop."
32. In that view of the matter, we have no hesitation to hold that the provisions of Act, 1971 would have a binding force than the provisions of Act, 1963 in respect of the issues in regard to the property said to be involved under the provisions of Act, 1971. Thus cogitating the issues taking into account the whole lot of facts and the legal provisions discussed, we are unable to concur with the contentions put forth by the learned Senior Counsel for appellants that the purchase certificate issued would be a conclusive evidence against the State Government also. This is more so in view of the W.A.No.202 of 2020 & Cross Objection 40 No.33 of 2020 in W.A.No.202 of 2020 imperative stipulations contained under section 72K of Act, 1963 with respect to the conclusiveness of the certificates. Section 102 of Act, 1963 dealing with powers to prefer an appeal to the Appellate Authority, enables the State Government to prefer appeal under the limited circumstances enunciated thereunder. Anyhow we are not expressing any opinion on the said aspect since it was submitted by learned Special Government Pleader for Forest that State/Forest Authorities have preferred appeal against the purchase certificates/other proceedings in favour of some of the appellants.
33. Therefore, from a conjoint reading of the provisions of Act 1963 discussed above it is vivid and expressive that the conclusiveness of the purchase certificate is by and between the tenant, landlord and intermediaries only. Here is a case where the appellants have based their claims on the purchase certificates issued by the Land Tribunal, and also that the periphery sketch prepared by the Forest Authorities are not in accordance with the notification issued with respect to the private forests, that are vested in the Government in terms of section 3 of Act, 1971. As we have pointed out earlier, the contentions raised by the appellants are disputed by the State Government and its officials stating that the appellants have encroached into the vested forests after introduction of Act, 1971 and the cut off date prescribed thereunder.
34. The purchase certificates are all issued during the period 1974 to 1976. Even though the appellants have a case that by virtue of the purchase certificates W.A.No.202 of 2020 & Cross Objection 41 No.33 of 2020 in W.A.No.202 of 2020 issued by the competent Land Tribunal, they are entitled to enjoy the properties as of right, and since they are doing agriculture operations in the properties in question, the properties in question can never termed to be a vested forest in contemplation of Act, 1971, according to us, it is a factual circumstance to be deciphered by a fact finding body. True, some receipts are produced to show that land tax was paid against some of the properties in question. However, the Special Government Pleader submitted that, that by itself will not provide title to the appellants. It is also pointed out that the State Government was not issued with any notice by the Land Tribunal before issuance of the purchase certificate and no such procedure is contemplated under Act 1963,especially due to the fact that the provisions of chapter 11 of Act 1963 other than the ones carved out are not binding on the State Government .
35. It is an admitted fact that the purchase certificates were issued by the Land Tribunal in suo motu proceedings in contemplation of the provisions of Act, 1963 and the Rules thereto. According to us, the judgment of the Apex Court in Mohammed was rendered after assimilating the facts unearthed by the Forest Tribunal under section 8 of Act, 1971 and consequential proceedings before this Court in the miscellaneous first appeal. The circumstances pointed out by the appellants themselves make it clear that the claims raised by the appellants are surrounded by various factual and legal issues as is discussed above. Even the learned Senior Counsel for appellants invited us to verify the periphery sketch with the help of magnifying glass and attempted to explain that the area W.A.No.202 of 2020 & Cross Objection 42 No.33 of 2020 in W.A.No.202 of 2020 occupied by the appellants are at Kurukkankundu whereas the vested forest is situated far away from the same and therefore, the Forest Officials were not empowered to issue Exts.P1 and P2 notices.
36. On assimilating the factual and legal situations, we are of the considered opinion that the contentions raised by the appellants and the State would make it clear that the factual issues raised are complicated and complex which could be unearthed only by a fact finding body like Forest Tribunal, by virtue of the powers conferred on it under section 12 of Act, 1971, which reads thus:
" 12. Power of Tribunal.-- The Tribunal shall, for the purpose of exercising any power conferred by or under this Act, have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), in respect of the following matters, namely:-
(a)summoning and enforcing the attendance of any person and examining him on oath;
(b)requiring the discovery and production of any document;
(c)receiving evidence on affidavit;
(d)issuing commission for the examination of witnesses or for local investigation;
(e)inspecting any property or thing concerning which any decision has to be taken;
(f)requisitioning of any public record or copy thereof from any Court or office; and
(g)any other matter which may be prescribed."W.A.No.202 of 2020 & Cross Objection 43
No.33 of 2020 in W.A.No.202 of 2020
37. So also in the appeal, appellants have deviated materially from the pleadings put forth in the writ petition, which makes the situation more vulnerable and disables this Court to decide the issues in a proceeding under Article 226 of the Constitution of India which is of summary nature. Additional statements made and documents produced after filing of the writ petition cannot be said to be a part of the pleadings of the writ petition until the writ petition is amended incorporating such pleadings and documents. Therefore, it is quite clear and evident that the Tribunal has all the powers to take a decision considering all the aspects that are raised by an applicant. It is also a well settled legal proposition that when facts are disputed, especially in matters involving landed properties, a writ court under Article 226 of the Constitution of India shall not venture to convert itself into a fact finding body and decide the issues. The said question was considered by the Apex Court in Roshina T. v. Abdul Azeez K.T. and others [(2019)2SCC 329] and held as follows at paragraph 14:
"14. It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace W.A.No.202 of 2020 & Cross Objection 44 No.33 of 2020 in W.A.No.202 of 2020 the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant. (See Mohan Pandey v. Usha Rani Rajgaria and Dwarka Prasad Agarwal v. B.D. Agarwal.)
38. That apart section 13 of Act, 1971 makes it clear that except as provided under Act, 1971 no Civil Court shall have jurisdiction to decide or deal with any question or to determine any matter which by or under the Act required to be decided or dealt with or to be determined by the Tribunal, the custodian or any other officer. The said provision would show that the Tribunal has to take a decision taking into account the entire pros and cons and facts and figures involved in the circumstances of the case. It was taking into account the said circumstances alone, the learned Single Judge has held that the appellants have to approach the Forest Tribunal under section 8 of the Act, 1971. The issue with respect to the purchase certificate, occupation in the forest land before introduction of Act, 1971, payment of tax and the encumbrance made to the properties by mortgaging them are all matters to be considered by the Tribunal also by verifying the relevant documents and to arrive at appropriate conclusions. This is more so in the case at hand since the appellants even dispute the location of the properties covered by Exts. P1 and P2 the area marked in the periphery sketch, and even contended that the periphery sketch produced in the appeal is a fabricated document. We also find that certain material deviations are made by the appellants from the basic W.A.No.202 of 2020 & Cross Objection 45 No.33 of 2020 in W.A.No.202 of 2020 pleadings made in the writ petition, in the appeal .
39. So we are of the view that the learned Single Judge was right in relegating the appellants to the Forest Tribunal. In fact the learned Single Judge while relegating the appellants to the Tribunal has protected the interests of some of the appellants by restricting coercive action against those of the appellants, who have put up tenements in the properties and are actually residing in the properties, by directing not to dispossess until the application if any, to be preferred by them is considered by the Forest Tribunal within two months from the date of judgment. The judgment was dated 4.12.2019 and evidently the period prescribed by the learned Single Judge for preferring application before the Tribunal have elapsed.
40. However, the learned Special Government Pleader has a case that due to the interim order so secured by some of the appellants, they have cut and removed trees on the properties in question, which allegation is disputed by the learned Senior Counsel for the appellants. However, from the facts admitted, it can be seen that even according to the appellants, third persons have cut and removed trees from the properties in question. Learned Special Government Pleader also submitted that the disposal of the applications, if any preferred by the appellants within two months would be quite difficult in view of the peculiar nature of the terrain of the area to be identified to the satisfaction of the Tribunal and also due to the intrinsic nature of the facts W.A.No.202 of 2020 & Cross Objection 46 No.33 of 2020 in W.A.No.202 of 2020 involved in the case at hand.
41. Taking into account the aforesaid aspects, we do not find any reason to interfere with the material findings rendered by the learned Single Judge so far as the appeal is concerned. However, we make it clear that the time period granted by the learned Single Judge is extended by a period of two months for the appellants to prefer the applications before the Forest Tribunal and till such time the coercive action as is prohibited by the learned Single Judge would continue to be in force. If the applications are filed within two months, we have no reason to think that the Tribunal will not take adequate steps to dispose of the applications at the earliest possible. Which thus means in order to secure any interim orders from the Tribunal, the appellants may have to submit suitable applications and the interim order granted by the learned Single Judge to the appellants, who have put up tenements in the properties and are actually residing in the properties, would continue to be in force, only for a period of two months enabling the appellants to move appropriate application seeking any interim orders. This we do so because the tribunal would be in a better position to understand the situations and regulate the proceedings accordingly. We also make it clear that we have discussed the provisions of the Act, 1971, the rules, 1974 and the Act 1963 only to arrive at appropriate conclusions in view of the arguments advanced by the respective counsel, however the Forest Tribunal W.A.No.202 of 2020 & Cross Objection 47 No.33 of 2020 in W.A.No.202 of 2020 shall dispose of the applications, if any, filed as directed above, in accordance with law .
42. Even though learned Special Government Pleader has invited our attention to various judgments rendered by this Court in relation to consideration of the application vis-a-vis the provisions of Act, 1971 and the Kerala Land Reforms Act, 1963, since we are relegating the parties to the Forest Tribunal, we do not think it appropriate to discuss those judgments since there is a likelihood of prejudice occurring , but the parties are at liberty to take up all appropriate contentions in terms of any binding precedence before the Tribunal.
Resultantly writ appeal and cross objection are disposed of in terms of the observations, directions and modifications contained as above.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE
W.A.No.202 of 2020 & Cross Objection 48
No.33 of 2020 in W.A.No.202 of 2020
APPENDIX OF W.A.202 OF 2020
ANNEXURE 8 TRUE COPY OF THE STATEMENT FILED BY THE
ASSISTANT RANGE OFFICER BEFORE THIS
HONOURABLE COURT IN BA 6799/2019, WHICH WAS
MOVED BY ONE OF THE APPELLANTS NAMED SIJO
SEBATIAN, WITHOUT ANNEXURES.
ANNEXURE 9 TRUE COPY OF THE DEMARCATION SKETCH
PRODUCED AS ANNEX-RD(d) IN THE ANNEXURE 8
STATEMENT.
ANNEXURE 10 TRUE COPY OF THE LETTER NO.H1-
017/6443/9/300 DATED 21.7.2017 ISSUED BY
THE THAHSILDAR MANNARKKAD, ALONG WITH ITS
TYPED COPY AND ENGLISH TRANSLATION.
ANNEXURE 11 TRUE COPY OF THE RELEVANT PORTION OF THE
NEWSPAPER NAMED SUPRABHATHAM DAILY DATED
07/08/2017 OF PALAKKAD EDITION, WITH THE
NEWS REPORT IN CONNECTION WITH THE DECISION
OF THE MINISTER FOR FOREST DEPARTMENTN
DIRECTING ACTION AGAINST THE ERRING
OFFICIALS, WHO DESTROYED THE CULTIVATIONS
IN KURUKKANKUNDU, WITH ITS ENGLISH
TRANSLATION.
ANNEXURE 12 TRUE COPY OF THE DRAFT ESA NOTIFICATION BY
MOEF, THE GAZETTE NOTIFICATION DATED
10.3.2014 BEARING NO.SO NO.733(E)
ANNEXURE 13 TRUE COPY OF THE FINAL DRAFT AS PER THE
NOTIFICATION DATED 03.10.2018 BEARING NO.SO
5135(E) ISSUED BY MoEF
ANNEXURE 14 TRUE COPY OF THE ORDER DATED 24.8.20148 IN
OA 597/2018 BY THE HONOURABLE NGT.
W.A.No.202 of 2020 & Cross Objection 49
No.33 of 2020 in W.A.No.202 of 2020
APPENDIX OF CO 33/2020
RESPONDENT'S EXHIBITS:
ANNEXURE R1(A) TRUE COPY OF THE DETAILS OF THE OCCUPATION
OF THE APPELLANTS IN THE WRIT APPEAL.
ANNEXURE R1(B) TRUE COPY OF THE LETTER DATED 14/03/1989.
ANNEXURE R1(C) TRUE COPY OF THE CIRCULAR DATED 09/09/1991.
ANNEXURE R1(D) TRUE COPY OF FORM I ENGLISH TRANSLATION OF
FORM I.
ANNEXURE R1(E) TRUE COPY OF THE PHOTOGRAPH OR THE SCENE OF
OCCURRENCE.
ANNEXURE R1(F) TRUE COPY OF THE PHOTOGRAPH OF THE SCENE OF
OCCURRENCE.
ANNEXURE R1(G) TRUE COPY OF THE PHOTOGRAPH OF THE SCENE OF
OCCURRENCE.
ANNEXURE R1(H) TRUE COPY OF THE PHOTOGRAPH OF THE SCENE OF
OCCURRENCE.
ANNEXURE R1(I) TRUE COPY OF THE PHOTOGRAPH OF THE SCENE OF
OCCURRENCE.
ANNEXURE R1(J) TRUE COPY OF THE PHOTOGRAPH OF THE SCENE OF
OCCURRENCE.