IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 WP(C).No. 21171 of 2004(U) --------------------------------------- PETITIONER(S): --------------------- JOSE C.CHACKO, CHIRAKKEKARAN HOUSE, BISHOP PALACE ROAD, THRISSUR-5. BY ADV. SRI.N.JAMES KOSHY SRI.BROSE JOSEPH NEELIYARA RESPONDENT(S): ------------------------- 1. THE FOREST RANGE OFFICER, NELLIAMPATHY RANGE, NENMARA. 2. THE DIVISIONAL FOREST OFFICER, NENMARA DIVISION, NENMARA. 3. THE CHIEF CONSERVATOR OF FOREST, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF KERALA, FOREST AND WILD LIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R4 BY SPL.GOVT.PLEADER SRI.PAULOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.21171/2004 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE OWNERSHIP CERTIFICATE DATED 08/01/2001. P2 COPY OF THE BUILDING TAX RECEIPT DATED 8/1/2000. P3 COPY OF THE TELEPHONE BILL REMITTANCE RECEIPT DATED 07/06/2004. P4 COPY OF THE CASH DEPOSIT RECEIPT ISSUED BY THE KSEB,DATED 14/03/2001. P5 COPY OF THE DEMAND FOR QUIT RENT DATED 12/1/2001. P6 COPY OF THE CASE RECEIPT ISSUED BY THE FIRST RESPONDENT AS PER EXT. P5, DATED 22/1/2001. P7 COPY OF THE COMPLAINT DATED 13/7/2004. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.21171 OF 2004 (U) -------------------------------------------------- Dated this the 4th day of November, 2010 J U D G M E N T Petitioner claims to be the owner of 5 acres of land and two houses situated in Pothundy Village, Nelliampathy, Chittoor Taluk at Palakkad District. 2. According to the petitioner, the said land was leased out by the Maharaja of Cochin to one Sri. C.K. Kuruvila, Cherukara House, Thruvalla Taluk, Alappuzha District by way of perpetual lease. Sri. Kuruvila transferred the said perpetual lease on 5.2.1958 in favour of one Tholoor Kunhilivi, S/o. Aboobacker, Perinthalmanna Taluk, Malappuram District by document No.168 of SRO Nenmara. Subsequently, on 2.8.1979, petitioner claims to have purchased the property for a consideration of Rs.12,000/-. 3. It is stated that, thereafter petitioner constructed two buildings in the property, which are numbered by the Nelliampathy Grama Panchayat as IV/149 and IV/149A respectively. Ext.P1 is the certificate of ownership issued by the Panchayat and Ext.P2 evidences payment of building tax in respect of the aforesaid buildings. According to the petitioner, he WPC.No. 21171/04 :2 : was using the building for residential purposes and Ext.P3 shows that the petitioner had telephone connection in the building. Ext.P4 is the electricity bill. 4. Petitioner states that, while he was enjoying the aforesaid land and building since 1979, when he and his family were away at their native place in Thrissur, on 10.7.2004 at 4 p.m. the first respondent and his subordinates, came to his buildings and asked his maid servant to hand over the keys of the building. It is stated that on being forced by the first respondent and his subordinates, the maid servant handed over the keys, and thereupon, the first respondent removed several valuables including cash worth Rs.10000/-. According to the petitioner thereupon they locked the house and left the place. 5. Petitioner states that, thereafter on 12.7.2004, petitioner approached the first respondent and the 2nd respondent and then he was informed that the take over was effected on the basis of the instructions issued by their superiors. It is the case of the petitioner that thereupon he made Ext.P7 complaint to the police and has filed this writ petition seeking a direction to the respondents to hand over him the keys of the building and return WPC.No. 21171/04 :3 : the possession of the properties seized from him. 6. Counter affidavit has been filed by the respondents. According to the first respondent, the property is an ecologically fragile land and Ext.R1(d) is the notification issued under the EFL Ordinance, 2000. It is also their case that the land leased out is a part of reserve forest which was originally leased out for cardamom cultivation. It is stated that in violation of the provisions of the lease, the land was being used for other purposes and buildings were used as a resort. It is stated that it was on account of violation of the lease conditions and in view of the EFL notification, possession of the land and building were taken over on 10.7.2004. Respondents also justify their action by referring to Sections 66 and 72 of the Forest Act. Petitioner has filed a reply affidavit, disputing the averments in the counter affidavit. 7. After the counter affidavit and reply affidavit have filed, on 5.8.2004, this court passed a detailed interim order directing to return the buildings to the petitioner. Petitioner submits that, in pursuance to the interim order dated 5.8.2004, the buildings were handed over to the petitioner and on that basis WPC.No. 21171/04 :4 : petitioner is continuing in possession of the buildings. 8. In so far as the land is concerned, prima facie it appears that the land is notified as EFL as per Ext.R1(d) notification. Therefore, the land stands vested in Government, and if so, it is for the petitioner to work out his remedies under the EFL Act 2003. In that view, a pronouncement on that aspect of the matter is not necessary in this writ petition. 9. However, the dispute now raised is regarding the claim of the petitioner for retaining the possession of the building. In my view, this issue can be answered with reference to the definition of “Forest” as available in the EFL Act, 2003, which reads as under:- 2.(c) “forest” means nay land principally covered with naturally grown trees and undergrowth and includes any forests statutorily recognised and declared as reserved forest, protected forest or otherwise, but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of residential buildings and surroundings essential for the convenient use of such buildings. 10. Although, Ext.R1(d) notification was issued under Ordinance No.8 of 2000, in view of the provisions contained in Section 19 of the EFL Act, 2003, the matter will have to be WPC.No. 21171/04 :5 : decided as per the provisions of the Act. A reading of the definition “forest” as contained in Section 2(c) extracted above makes it clear that from the purview of forest, sites of residential buildings and the surroundings essential for the convenient use of such buildings stand excluded. If that be so, even if it is assumed that the rest of the property is vested by virtue of Ext.R1 (d) ordinance, still the sites of the residential buildings and the surroundings essential for convenient use of such buildings will have to be excluded. If that be so, at any rate, the right of the petitioner to retain the possession of the buildings, the possession of which were taken over on 10.7.2004 and returned to him by virtue of the interim order referred to above, has to be recognized. As a necessary consequence the petitioner is held entitled to retain possession of the aforesaid buildings without any let or hindrance caused by the respondents on the basis that it is a part of Ecologically Fragile Land. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/