IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 OP.No. 28598 of 1999(D) ----------------------------------- PETITIONER: ------------------- N.P.JAYAPRAKASH, S/O.KUNHIRAMAN, NELLIYULLAPARAMBATH VEEDU, P.O.PUTHUR, (VIA) PANUR, KANNUR DISTRICT. ( D I E D) *ADDL.P2 TO P5 ARE IMPLEADED: P2. BAVITHA, W/O.LATE N.P.JAYAPRAKASH, NELLIYULLAPARAMBATH VEEDU, P.O. PUTHUR, (VIA) PANUR, KANNUR DISTRICT. P3. VISHNU, (10 YARS – MINOR), S/O.LATE N.P.JAYAPRAKASH, REPRESENTED BY HIS MOTHER BAVITHA, W/O.LATE N.P.JAYAPRAKASH, NELLIYULLATH VEEDU, P.O.PUTHUR, (VIA) PANUR, KANNUR DISTRICT. P4. JISHNU, (10 YEARS (MINOR), OF ...DO...DO.... P5. JEEVU, (8 YEARS (MINOR), OF ....DO...DO..... (*ADDL.P2 TO P5 ARE IMPLEADED AS PER ORDER DTD. 19/02/2008 IN I.A.NO.2596/2008) BY ADV. SRI.V.C.JAMES SRI.GEORGE MECHERIL Kss ..2/- ...2.... O.P.NO.28598/1999 D RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIVISIONAL FOREST OFFICER, KANNUR. 3. FOREST RANGE OFFICER, KANNAVAM. 4. SPECIAL TAHSILDAR (VFLA), TELLICHERRY, KANNUR DISTRICT. BY SPL.GOVERNMENT PLEADER(FORESTS) SRI. RENJITH THAMPAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.48588/1999 IN O.P.NO.28598/1999 D DISMISSED 19/02/2008 SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF SALE DEED NO.2448/96 DTD. 19/10/1996 OF SRO, TELLICHERRY. EXT.P2: COPY OF REGISTERED SALE DEED NO.3205/94 DTD. 23/111994 OF SRO ULIYIL FROM ONE GIRIDHARAN. EXT.P3: COPY OF THE PATTA ISSUED BY THE 4TH RESPONDENT DTD. 23/01/1979. EXT.P4: COPY OF BASIC TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, ARALAM. EXT.P5: COPY OF THE MORTGAGE DEED EXECUTED BY THE GIRIDHARAN WITH THE LAND MORTGAGE BANK, TELLICHERRY. EXT.P6: COPY OF THE DEATH CERTIFICATE. EXT.P7: COPY OF TAX RECEIPT DTD. 24/05/2005. EXT.P8: COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, AYYANKUNNU DTD. 16/06/2005. 1ST RESPONDENT'S EXHIBITS: EXT.R1(A): COPIES OF THE V.F.C.NOTIFICATION NO.82055/FS.2-1/76/ AD DTD. 11/01/1977 AND NO.82055/FS.2-2/76 DTD.11/1/1977 (COVER PAGE AND PAGES 1,4 & 12). EXT.R1(B): COOPY OF SURVEY (SUB-DIVISION) SKETCH OF AYYANKUNNU MALA. EXT.R1(C): COPY OF PROCEEDINGS NO.C-4320/95 DTD.22/05/1997 ISSUED BY THE R.D.O.,THALASSERY. EXT.R1(D): COPY OF PROCEEDINGS NO.C-4320/95 DTD. 28/01/2000 OF ...DO..... /TRUE COPY/ P.S.TO JUDGE Kss P.N.Ravindran, J. ============= O.P.No.28598 of 1999 =============== Dated this the 19th day of February, 2008. JUDGMENT The petitioner is the owner of a parcel of land, 5 acres in extent, situated in R.S.No.1297 of Aralam Village, Thalassery Taluk, Kannur District. The said parcel of land, which stood vested in the State of Kerala by virtue of and in terms of the provisions of the Kerala Private Forests (Vesting and Assignment) Act, 1971, was assigned under Rule 23 of the Kerala Private Forests (Vesting and Assignment) Rules, 1974, hereinafter referred to as the "Rules" for short, to one Nellikka Giridharan. Ext.P3 the Patta issued to Nellikka Giridharan stipulates that the assignee shall not alienate the land for a period of five years. By Ext.P2 assignment deed dated 23.11.1994 executed after the said period of five years, Nellikka Giridharan transferred the lands described to Sri. A.M.Janardhanan. The petitioner in turn purchased the said land from Sri. A.M. Janardhanan as per Ext.P1 sale deed executed on 19.10.1996. This original petition was OP 28598/99 -: 2 :- filed in view of the obstruction caused by the officers of the Forest Department to the petitioner's possession and enjoyment of the property. 2. The petitioner has in the original petition averred that after Ext.P3 assignment, Nellikka Giridharan had mortgaged the lands with the Thalassery Co-operative Land Mortgage Bank Limited. Ext.P5 dated 23.8.1985 is the mortgage deed executed in that regard. The petitioner has also averred in the original petition that after obtaining Ext.P3 assignment, the assignee had paid the land tax after mutation was effected in the revenue records. It is stated that as the property was validly conveyed by the assignee and as the assignment in favour of Sri.A.M.Janardhanan is long after the expiry of the period of five years, the respondents have no right to prevent the petitioner from possessing and enjoying the property. 3. A counter affidavit has been filed on behalf of respondents 1 to 3 wherein it is stated inter alia that the assignment in favour of Nellikka Giridharan was cancelled by the Revenue Divisional Officer, Thalassery for non occupation of the land assigned to him as per Ext.R1(c) proceedings dated OP 28598/99 -: 3 :- 22.5.1997, that as in the said order, the name of the assignee was wrongly shown as Nellikka Sasidharan instead of Nellikka Giridharan, Ext.R1(d) order dated 28.1.2000 was issued to rectify the said mistake. Shorn of details, the defence put forward in the counter affidavit is that the assignment in favour of Nellikka Giridharan stands cancelled and therefore, the petitioner is not entitled to any relief in the original petition. It is further contended that as the land is vested in the State, the Forest Officials are entitled to protect the land and that the petitioner is not in possession and enjoyment thereof. 4. The petitioner who instituted the original petition expired on 23.8.2006. By order passed on I.A.No.2596 of 2008 his wife and children have been impleaded as supplemental petitioners 2 to 5 in this original petition. The supplemental petitioners have also filed I.A.No.2601 of 2008 to amend the original petition by incorporating a challenge to Ext.R1(c) and Ext.R1(d) and by order passed today, I have allowed the said application as well. 5. I heard Sri.George Mecheril, the learned counsel appearing for the petitioners and Sri.Ranjith Thampan, the learned Special Government Pleader appearing for the OP 28598/99 -: 4 :- respondents. The learned counsel for the petitioner contended with reference to Rule 25 of the Rules that Ext.R1(c) order cancelling the assignment in favour of Nellikka Giridharan is one passed by an incompetent authority and is rested on untenable grounds. With pointed reference to Rule 25(1) of the Rules, the learned counsel for the petitioner contended that the assignment was not cancelled for any of the reasons stated therein. The learned counsel for the petitioner pointed out that in the counter affidavit filed in the original petition and also in Ext.R1(c), the respondents have no case that the assignment in favour of Nellikka Giridharan was made in contravention of the provisions of the Rules or that it was found to be inequitable or was made under a mistake of fact or owing to misrepresentation of facts or in excess of the limits of the powers of the District Collector or that there was gross irregularity in the procedure for assignment or that the assignee did not turn up to take possession of the land, within three months. The learned counsel also brought to my notice Rule 25(3) of the Rules which stipulates that the authority competent to order cancellation of the assignment is the District Collector or the State Government and that the OP 28598/99 -: 5 :- Revenue Divisional Officer had no jurisdiction or authority to issue Ext.R1(c) as modified by Ext.R1(d). The learned counsel for the petitioner submitted with reference to Ext.R1(c) that there is no finding therein that the assignee Nellikka Giridharan did not turn up to take possession of the land assigned as per Ext.P3 within three months from the date of assignment. The learned counsel also pointed out that the name of Nellikka Giridharan does not figure in Ext.R1(c) and that no notice had been issued either to the assignee or the transfrees including Sri.A.M. Janardhanan and that in any event, the cancellation of the assignment was not in compliance with the provisions of Rule 25 (4) of the Rules. 6. Per contra, Sri.Ranjith Thampan, the learned Special Government Pleader appearing for the respondents contended that Ext.R1(c) was issued after a joint verification conducted by the Forest Officials and the Revenue Officials on 25.1.1997 and 11.2.1997 and that in Ext.R1(c) the name of the assignee Nellikka Giridharan was wrongly shown as Nellikka Sasidharan due to an inadvertent mistake and that the said mistake was later rectified by issuing Ext.R1(d) dated 28.1.2000. The learned OP 28598/99 -: 6 :- Special Government Pleader submitted with reference to the particulars relating to the assignment in favour of Nellikka Giridharan that the entry relates to Nellikka Giridharan and not to anyone else. The learned Special Government Pleader also pointed out that the name of Nellikka Giridharan does not figure in the list of persons who were found to be in occupation on joint inspection. It was also brought to my notice that the assignments were cancelled only in respect of the assignees who did not occupy the land. The learned counsel further submitted that as the petitioners have not chosen to challenge Ext.R1(c) as modified by Ext.R1(d) in time, they are not entitled to any relief in the original petition. It was also submitted that even in I.A.No.2601 of 2008 the petitioners have not raised the contention that Ext.P3 was cancelled by an competent officer. 7. I have considered the rival contentions. As rightly pointed out by the learned counsel appearing for the petitioners, under Rule 25(3) of the Rules, the authority competent to order cancellation of the assignment is the District Collector or the State Government. The proviso to Rule 25(3) of the Rules stipulates that the Government may for strong and sufficient OP 28598/99 -: 7 :- grounds subsequently brought to their notice review the order cancelling the assignment, within three months. Rule 26 of the Rules provides that an appeal shall lie to the Government against an order passed by the District Collector under the Rules. The Rule also prescribes that such appeals shall be presented within thirty days from the date of receipt of the order sought to be appealed against. The Rule also empowers the Government to admit an appeal presented after the expiry of the said period of thirty days if they are satisfied that the appellant was prevented by sufficient cause from presenting the appeal in time. In the instant case, it is not in dispute that the order cancelling the assignment was passed by the Revenue Divisional Officer. Going by the Rules, the Revenue Divisional Officer is not competent to cancell the assignment. There is serious dispute between the parties as to whether the assignee was in occupation of the lands. The case set out by the respondents is that the assignee was not in occupation. The respondents do not have a case that the assignee did not turn up to take possession of the land. This being a disputed question of fact, at least in the first instance, it can be resolved only by the appellate authority. In that view of OP 28598/99 -: 8 :- the matter, I am of the opinion that the petitioners should be relegated to the alternative remedy of filing an appeal to the State Government. 8. In the result, I dispose of the original petition with a direction that if the petitioners file an appeal within six weeks from today before the State Government, such appeal shall be treated as one filed in time and the State Government shall dispose of the said appeal on the merits within three months thereafter after giving the petitioners and the officers of the Forest Department an opportunity of being heard. The petitioners will be free to raise all their contentions including the contention based on the proviso to Rule 25(1) of the Rules, in the said appeal. The Original Petition is disposed of as above. No costs. P.N.Ravindran, Judge. ess 21/2