IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 OP.No. 309 of 2002(J) --------------------- PETITIONERS: ------------ 1. V.SHEKARAN, S/O.CHIDAYAN, AGED 56 YEARS, KALARIKODU KUNNU COLONY, THARIODE AMSOM AND DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. 2. MANI, S/O.VALLY, AGED 48 YEARS, ATHIRATHIL VEEDU, THARIODE AMSOM AND DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.K.J.KURIACHAN RESPONDENTS: ------------- 1. THE STATE OF KERALA,REPRESENTED BY THE CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM. 2. THE KERALA STATE, ELECTRICITY BOARD, VAIDHUDHI BHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 3. THE EXECUTIVE ENGINEER, KUTTIDAY AUGMENTATION SCHEME AND BANASURA IRRIGATION PROJECT (K.A.S. & B.S.I.P.),PADINJARATHARA, VYTHIRI TALUK, WAYANAD DISTRICT. 4. THE SPECIAL TAHSILDAR (LA) KUTTIADY AUGMENTATION SCHEME AND BANASURA IRRIGATION PROJECT (K.A.S. & B.S.I.P.) THARIODE NO-1, THARIODE NORTH P.O., VYTHIRI TALUK, WAYANAD DISTRICT. R1, R3 & R4 BY GOVT. PLEADER SMT.LATHA T.THANKAPPAN R2 BY ADV.SRI.C.K.KARUNAKARAN, SC FOR KSEB THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP 309/02 ORDER ON CMP NO.453 OF 2002 IN O.P.NO.309 OF 2002 DISMISSED. 19.8.2008 SD/- PIUS C.KURIAKOSE, JUDGE. APPENDIX PETITIONERS EXTS.: EXT.P1: TRUE COPY OF THE POSSESSION CERTIFICATE DATED 9.1.1996 ISSUED BY THE VILLAGE OFFICER, THARIODE IN FAVOUR OF THE 1ST PETITIONER. EXT.P2: TRUE COPY OF THE CERTIFICATE DATED 17.1.1996 ISSUED BY THE VILLAGE OFFICER, THARIODE IN FAVOUR OF THE 2ND PETITIONER. EXT.P3: TRUE COPY OF THE NOTICE DATED 2.7.1994 ISSUED BY THE 4TH RESPONDENT ISSUED TO 1ST PETITIONER. EXT.P4: TRUE COPY OF THE NOTICE DATED 2.7.1994 ISSUED BY THE 4TH RESPONDENT ISSUED TO 2ND PETITIONER. RESPONDENTS EXTS.: ANNEXURE A1: TRUE COPY OF THE REPORT OF THE DISTRICT COLLECTOR, WAYANAD. PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - O.P.No.309 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 19th August, 2008 JUDGMENT The petitioners are Adivasees and the grievance which they have voiced is that if the Kuttiady Augmentation Scheme and Banasura Irrigation Project were implemented, their properties assigned to them by the Government will become submerged. Therefore they want their properties to be acquired by the Government under the Land Acquisition Act. In other words, they want for their properties the same treatment given to their nearby properties known as 'Bible Land'. Considering C.M.P.No.453 of 2002 filed by the petitioners, the District Collector, Wayanad was directed to conduct inspection and submit a report regarding the present position of the petitioners properties and also regarding the possibility of the petitioners property being submerged in water on completion of the Kuttiady Augmentation Scheme and the Banasura Irrigation Project. Pursuant to orders passed by this court, the District Collector conducted inspection and Annexure A1 report has been filed before this court. In paragraphs 5 and 6 of the report it is reported as follows: “5. The land mentioned in the OP is situated in Survey No.686 O.P.No.309/02 - 2 - of Thariode Village of Vythiri Taluk, Wayanad District. The land is a part of the surplus land taken possession from Sri.K.P.Madhavan Nair as excess land as per Order No.65/76 dated 11.4.1978 of Taluk Land Board, South Wayanad. Then the land was assigned to 50 tribal people including the petitioners and 4 others as per Proceedings No.L4/46950/77 dated 17.10.78 of the District Collector, Kozhikode. Some of the assignees including the petitioners had remitted Basic Tax upto 1994-95 for the land. Enquiry reveals that the assignees including petitioners were not in physical possession of the land. The land assigned to the petitioners could not be identified by them who were accompanied the Deputy Collector(LA) at the time of site inspection. Nobody is residing in the land and there is no cultivation in the land. 6. The argument that, the land is included in the submergible area of the Kuttiadi Augmentation Scheme is not correct. The land is situated above submergible area. The land is not an isolated area. A newly constructed road by name Replacement Road No.II which starts from 11th Mile of Vythiri – Tharuvana Road is passing near to this land. The land is not required for the Kuttiadi Augmentation Scheme as stated by the Executive Engineer, Kuttiadi Augmentation O.P.No.309/02 - 3 - Scheme, KA Division, Thariyode North.” Lastly at paragraph 7 it is reported as follows: “7. An extent of 387 acres of land in Survey No.686 is declared as Vested Forest land as per the Notification No.D.5272/77 dated 8.7.77 of Divisional Forest Officer, Spl. Division, Kozhikode. Later an extent of 100 Hectors has been declared as vested forest land comprised in Survey No.686 of Thariode Village as per Notification No.43 dated 31.10.2000 under Kerala Forest (Vesting and Management of Ecologically Frigile Lands) Ordinance 2000. The land in question which is said to be in possession of the petitioners is the part of the Vested forest land extends 100 Hectors taken from Sri.K.P.Madhavan Nair. As the re-survey is not completed in the Village, the sketch of the land could not be submitted.” The Government has also produced gazette notification dated 31.10.2000 notifying the petitioners properties as lands vested with the Government as per the notification on the reason that they are ecologically fragile lands. 2. I have heard the submissions of Mr.K.J.Kuriachan, counsel for the petitioners, Mr.C.K.Karunakaran, Standing Counsel for the K.S.E.B. and Smt.Latha T.Thankappan, learned Government Pleader. O.P.No.309/02 - 4 - Considered the materials available including Annexure A1 report. Having heard the submissions and having considered the materials, I am of the view that the reliefs sought for in the Original Petition which is for a direction to the Government to acquire the petitioners property cannot be granted in view of the report of the District Collector. Declining the reliefs, the Original Petition will stand disposed of. However it is made clear that right and remedy of the petitioners to seek appropriate remedies in the light of the gazette notification notifying the petitioners lands as ecological fragile lands vested with the Government are not foreclosed. srd PIUS C.KURIAKOSE, JUDGE