IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 OP.No. 29131 of 1999(R) --------------------------------- PETITIONER: ----------------- S. MOHAMMED RAFI, S/O. LATE SAID MOHAMMED RAWTHER, MANIKUTTIKALATHIL HOUSE, KALLEKKAD, PIRAYIRI, PALAKKAD. BY ADV. SRI.D.KRISHNA PRASAD SRI.JOJI VARGHESE RESPONDENTS: ---------------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE. 3. THE DIVISIONAL FOREST OFFICER, DIVISIONAL FOREST OFFICE, RAILWAY COLONY, PALAKKAD. BY SPL.GOVERNMENT PLEADER SRI. RENJIT THAMBAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO. 49593/1999 IN OP NO. 29131/1999 R. DISMISSED 16/01/2008. SD/- K.M.JOSEPH, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE ORDER DT. 30/09/76 IN OA NO. 1364/74 OF THE FOREST TRIBUNAL, PALAKKAD. EXT.P2. COPY OF THE LEGAL HEIRSHIP CERTIFICATE BEARING NO. K.DIS 629/87 BY THE TAHSILDAR, PALAKKAD. EXT.P3. COPY OF THE PETITION DT. 28/12/94 SUBMITTED BY THE PETITIONER BEFORE THE R3. EXT.P4. COPY OF THE LAWYER NOTICE SENT BY ADVOCATE M. UDAYASANKAR, PALAKKAD TO THE RESPONDENTS, DT. 23/3/98. EXT.P5. COPY OF THE PETITION DT. 12/11/99 BY THE PETITIONER ALONG WITH HIS TWO BEFORE THE CONSERVATOR OF FORESTS, PALAKKAD. EXT.P6. COPY OF THE ORDER DT. 23/1/2003 IN IA NO. 202/2002 IN OA NO. 1364/74 OF THE FOREST TRIBUNAL, KOZHIKODE. RESPONDENT'S EXHIBITS NIL. True copy tga K. M. JOSEPH, J. ------------------------------------ O.P NO. 29131 OF 1999 R ------------------------------------ Dated this the 16th January, 2008 R JUDGMENT Ext.P1 is the copy of an Order in O.A. No.1364/74 dated 30.9.1976 obtained by the father of the petitioner from the Forest Tribunal, Palghat declaring that the property in question was excluded from the purview of the vesting Act. The Tribunal directed the Authority to measure and demarcate from out of the 18 Acres within the ambit of the Act. It is also stated that if the property was taken possession of, the same shall be restored to the possession of the applicant after demarcation of the rocky area. Though the State carried the matter in appeal in MFA No.337/77, this Court dismissed the Appeal and Ext.P1 came to be confirmed. Petitioner is one of the legal heirs. Ext.P2 is produced as the legal heirship certificate. The Original Petition is filed on behalf of the other legal heirs also. Petitioner has filed this Original Petition seeking a direction to the respondents to comply with the direction in Ext.P1 and in the OP NO.29131/99 R 2 alternative, to take a decision on Exts.P3, P4 and P5 after affording an opportunity of being heard. A mandamus is also sought commanding the respondents to refrain from allowing or issuing Passes to any third party to blast the rocks in the area covered by Ext.P1. 2. A Counter Affidavit is filed by the third respondent, inter alia, stating that the respondent will take necessary steps to restore the area after completing the formalities. It is stated that as the applicant in the O.A. is no more, the petitioner has not produced Succession Certificate. A Reply Affidavit is also filed. 3. I heard the learned counsel for the petitioner and the learned Special Government Pleader appearing for the respondents. Shri Renjith Thampan, learned Special Government Pleader would submit that there is a proposal to notify the area as vested under the Ecological Fragile Act. The Ecological Fragile Act came into force with effect from 2/2000. The Original Petition was filed in the year 1999. Ext.P1 order OP NO.29131/99 R 3 of the Tribunal came to be passed on 30.9.1976 and it became final in the year 1981. It is also stated in the Counter Affidavit that steps have been initiated by the respondents to restore the area as per the Court direction. For this purpose, the assistance of the Assistant Director of Survey was requested to complete the survey demarcation and to forward the survey sketch. He has also stated that on verification, the survey number mentioned in the schedule to the OA is incorrect. Hence the survey could not be conducted as instructed in the order. It is stated that the petitioner had to approach the Forest Tribunal to get the Schedule to the Order in the OA and the OA as amended incorporating the correct survey number. In the Reply Affidavit, petitioner has produced Ext.P6 which is the Order of the Forest Tribunal, Kozhikode dated 23.1.2003. Ext.P6 reveals that the application filed by the petitioner for amendment by incorporation of Survey No.17 before the sub-division 24B in para 1, para 4 and also for item No.3 of the property Schedule description was allowed. Having regard to all facts and OP NO.29131/99 R 4 circumstances of this case, the Original Petition is disposed of with a direction to restore the land covered by Ext.P1 read with Ext.P6 to the legal heirs of the original applicant within a period of two months from the date of receipt of a copy of this Judgment, unless a Notification is issued under Section 3 of the Ecological Fragile Act in the meantime. K. M. JOSEPH, JUDGE kbk. K. M. JOSEPH, J. O.P NO. 29131 OF 1999 R JUDGMENT 16th January, 2008.