IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 WP(C).No. 8783 of 2004(U) -------------------------------- PETITIONERS: ----------------- 1. P.V.KUNHIRAMAN, S/O. AMMALU AMMA, KRIPALAYAM, PULLENGODE, KALIKAVU P.O., MALAPPURAM DISTRICT. 2. P.K.KUNHIKRISHNAN, -DO- -DO-. 3. P.V.NANIKKUTTY, -DO- -DO-. 4. P.RAMACHANDRAN, S/O. LATE K.PADMANABHAN NAIR, ANIMANAL, P.O. ATAKKAKUNDU, KALIKAVU, MALAPPURAM DISTRICT. 5. P.NIRMALA, D/O.LATE K.PADMANABHAN NAIR, -DO- -DO-. 6. P.PADMAJA, D/O. -DO- -DO-. 7. KL.GIRIJA, KRIPALAYAM, PULENGODE P.O., MALAPPURAM DISTRICT. 8. M.K.PRABHAKARAN NAIR, -DO- -DO-. 9. K.ACHUTHANKUTTY, -DO- -DO-. 10. K.RAMAKRISHNAN, -DO- -DO-. 11. K.VENUGOPAL, -DO- -DO-. 12. PARUKKUTTY AMMA, -DO- -DO-. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR WP(C).No. 8783 of 2004 RESPONDENTS: ------------------- 1. CUSTODIAN OF VESTED FOREST, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. PRINCIPAL CHIEF CONSERVATOR OF VESTED FOREST, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. BY SPL. GOVERNMENT PLEADER (FOREST) SRI. RENJITH THAMPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8783 of 2004 APPENDIX EXT.P1: COPY OF THE ORDER OF THE CUSTODIAN OF VESTED FOREST, PALAKKAD, 1ST RESPONDENT DATED 12.2.1976. EXT.P2: COPY OF THE JUDGMENT IN O.P.NO.5204/1981 DATED 28.2.1983 OF THIS HON'BLE COURT. EXT.P3: COPY OF THE MEMO FILED BY THE GOVERNMENT PLEADER IN O.P.NO.5204/1981 OF THIS HON'BLE COURT DT. NIL. EXT.P4: COPY OF THE ORDER OF THE APEX COURT IN C.A.NO.4253/1984 AND THE CONNECTED MISCELLANEOUS APPLICATIONS DATED 22.7.1999. EXT.P5: COPY OF THE JUDGMENT DATED 27.7.1999 IN CIVIL APPEAL NO. 4253/1984 AND CONNECTED CASES OF THE HON'BLE SUPREME COURT. EXT.P6: COPY OF THE PETITION FILED BY THE 12TH PETITIOENR BEFORE THE 1ST RESPONDENT DTD 31.8.1999. EXT.P7: COPY OF THE PETITION SUBMITTED BY THE 12TH PETITIONER BEFORE HON'BLE MINISTER FOR FOREST DT. 16.7.2001. EXT.P8: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO.27696/03 DATED 3.9.2003. EXT.P9: COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 8.10.2003. EXT.P10: COPY OF THE LETTER DT. 14.11.2003 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS. EXT.P11: COPY OF THE DETAILED STATEMETN SUBMITTED BY PETITIONERS BEFORE THE 1ST RESPONDENT DT. 31.10.2003. EXT.P12: COPY OF STATEMENT SUBMITTED BY THE 12TH PETITIONER BEFORE THE 1ST RESPONDENT DTD 26.11.2003. EXT.P13: COPY OF THE ORDER OF THE 1ST RESPONDENT NO.B1-1609/87 DTD 07.01.2004. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.8783 OF 2004 ---------------------------------------- Dated this the 15th day of September, 2008 JUDGMENT The petitioners are members of Kookil Tharawad of Thalassery. The Tharawad owned vast extent of forest land in Ernad Taluk. In family partition, those properties were partitioned and each member was given 57 and odd acres of property. In respect of those properties, proceedings were initiated by the Custodian of Vested Forests under the Kerala Private Forests (Vesting and Assignment) Act, which resulted in Ext.P1 order by which the Custodian directed exemption in respect of different extents of land to each petitioner, totalling 80 acres. Since no action was taken to implement Ext.P1, the first petitioner, on behalf of the petitioners, approached this Court by filing O.P.No.5204/1981, which resulted in Ext.P2 judgment, whereby this Court directed the Custodian to complete the work of demarcation of the exempted properties as expeditiously as possible at any rate, within a period of six months from the date of receipt of a copy of the judgment, pursuant to Ext.P1 and W.P.(c)No.8783.2004 2 another similar order. But before Ext.P2 judgment could be implemented, a Company named Pullengode Rubber and Produce Company Limited, which had obtained rights over certain of the other properties, as also the State of Kerala approached the Supreme Court of India challenging orders passed by the Forest Tribunal and this Court, under the Kerala Private Forests (Vesting and Assignment) Act, in which there was an interim order of status quo. Therefore, by Ext.P2 memo filed in O.P.No.5204/1981, the learned Government Pleader, on behalf of the Custodian, informed this Court that the direction in Ext.P2 judgment cannot be implemented in view of the order of the Supreme Court. In the above circumstances, the petitioners sought to implead themselves in the cases pending before the Supreme court. However, their interlocutory applications for impleading were dismissed on the ground that their claim has no relation to the issues involved in the appeals, pending before the Supreme Court. Further the appeals pending before the Supreme Court was disposed of by Ext.P5 judgment finally. Thereafter the petitioners again approached the Custodian for implementation of Ext.P1 order W.P.(c)No.8783.2004 3 by filing Ext.P6 representation. Since there was no action from the Custodian, the petitioners again approached this Court by filing W.P.(C) No.27696/2003, in which Ext.P8 judgment was passed, which reads as follows: “Aggrieved by the non implementation of Ext.P1 order rendered by the Custodian of Vested Forest dated 12.12.1976, the petitioners approached this court for appropriate direction to implement the same. By Ext.P2 judgment the matter was disposed of. 2. It was the contention of the respondents that the matter is now pending before the Supreme Court. Ultimately Ext.P5 judgment was rendered by the Supreme Court. Therefore according to the petitioners nothing stands in the way of considering their request since the matter is finally disposed of by the Supreme Court as evidenced by Ext.P5 judgment. Hence the petitioners again approached the Custodian of Vested Forest by submitting fresh application Ext.P6. According to them Ext.P6 is still not disposed off. 2. Heard the Special Government Pleader for the respondents. 3. Having heard both sides and considering the materials on records, there will be a direction to the 1 st respondent Custodian of Vested Forest to consider Ext.P1 and dispose the same in accordance with law, if the petitioners have not so far produced the copy of the Supreme Court judgment, he will do so and place all their contention before the 1 st respondent. Considering the contentions of the petitioners and after referring the Supreme Court W.P.(c)No.8783.2004 4 judgment, the 1 st respondent shall dispose the same in accordance with law within a period of four months from the date of receipt of a copy of this judgment. 4. Even though Exts.P6 and P7 are applications filed by the 12 th petitioner, the similar applications are also filed by the other petitioners as well. But they are not exhibited in this case and hence if others also filed similar applications the same may be jointly disposed of. The petitioners shall also produce a copy of this judgment along with a copy of the Writ Petition before the 1 st respondent for information and compliance. The writ petition is disposed of as above.” Pursuant thereto, proceedings were initiated by the Custodian which resulted in Ext.P13 order whereby the Custodian cancelled Ext.P1 order. Ext.P13 order is under challenge before me. 2. The contention raised by the petitioners is that the import of Ext.P8 judgment was not to reconsider Ext.P1 order as has been done by the Custodian. But relying on a very apparent mistake in Ext.P8 judgment, the Custodian has treated Ext.P8 as a direction to reconsider Ext.P1, which according to them is clearly unwarranted by law. The petitioners therefore seek the following reliefs: W.P.(c)No.8783.2004 5 “i) to call for the records leading to Exhibit P13 order and to quash the same; ii) issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to demarcate and restore the property ordered to be released to the petitioners as per Exhibit P1 order and has directed by this Hon'ble Court as per Exhibit P2 judgment; iii) to award the cost of the proceedings”. 3. A counter affidavit has been filed by the 1st respondent, in which the Custodian of Vested Forests take the stand that Ext.P13 order has been passed in accordance with the direction in Ext.P8 judgment. 4. I have considered the rival contentions in detail. Presently, the only question I have to consider in this writ petition is as to whether the action of the Custodian in reconsidering Ext.P1 order relying on Ext.P8 judgment is valid or not. I am of opinion that for deciding this question it is not necessary to rack one's brains. Apparently the Custodian relied on paragraph 3 of the judgment quoted above. But he has simply ignored the other parts of the judgment, for example, the 1st paragraph itself starts with the sentence that: “Aggrieved by the non implementation of Ext.P1 order rendered by the Custodian of Vested Forest W.P.(c)No.8783.2004 6 dated 12.12.1976, the petitioners approached this court for appropriate direction to implement the same”. Again in paragraph 2 it is stated that: “Hence the petitioners again approached the Custodian of Vested Forest by submitting fresh application Ext.P6. According to them Ext.P6 is still not disposed off". Again in paragraph 4 it is stated thus: “Even though Exts.P6 and P7 are applications filed by the 12 th petitioner, the similar applications are also filed by the other petitioners as well. But they are not exhibited in this case and hence if others also filed similar applications the same may be jointly disposed of”. Therefore, it is for anybody to see that the use of words Ext.P1 in paragraph 3 of the Ext.P13 is clearly a mistake and what was in contemplation, was disposal of Exts.P6 and P7 and similar applications filed by the other petitioners. That being so, the 1st respondent could not have, by relying on Ext.P8 judgment reconsidered Ext.P1 order. This is further clear from the fact that earlier in Ext.P2 judgment, this Court had directed the Custodian to complete the work of demarcation in accordance with Ext.P1 and another similar order. Neither in O.P.No.5204/1998 nor in W.P.(C)No.27696/2003 the W.P.(c)No.8783.2004 7 Custodian had any case that Ext.P1 order was in any way wrong. Therefore, by Exts.P2 and P8 judgments, the validity of Ext.P1 order has been confirmed. Therefore, under law, the Custodian could not have validly reopened Ext.P1 order. That being so, the finding in Ext.P13 order by which the Custodian has cancelled Ext.P1 order is clearly illegal and unsustainable. Accordingly, Ext.P13 order of the 1st respondent is quashed and the 1st respondent is directed to implement Ext.P1 order by demarcating the properties exempted as per Ext.P1 order and putting the petitioners in possession of the same. The said exercise shall be undertaken and completed as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.8783.2004 8