IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 OP.No. 37471 of 2001(J) ----------------------- PETITIONER(S): --------------- V.V.JOSEPH, S/O.VARKEY, VETTIYANKAL HOUSE, PERAMANGALAM, KALOOR P.O., KALLOORKKAD. BY ADV. SRI.M.C.JOHN SRI.JESWIN P.VARGHESE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF CONSERVATOR OF FORESTS (PROTECTION) THIRUVANANTHAPURAM. 3. THE CONSERVATOR AND CUSTODIAN OF FORESTS, VESTED FOREST CIRCLE, OLAVANKODE, PALAKKAD. 4. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE OF ANTI-CORRUPTION BUREAU, WAYANAD. 5. THE DIVISIONAL FOREST OFFICER, NORTH WAYANAD, MANANTHAVADY, WAYANAD DISTRICT. 6. THE FOREST RANGE OFFICER, MANANTHAVADY. 7. THE ASSISTANT DIRECTOR OF SURVEY, FOREST MINI SURVEY, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.M.H. HANIL KUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.37471/01 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- COPY OF THE COMMUNICATION NO.V.C.6/97/WYD. DT:17.12.1997 FROM THE DY.S.P., VIGILANCE AND ANTI-CORRUPTION BUREAU, WAYANAD. EXT.P2:- COPY OF THE JUDGMENT DT.30.3.99 IN W.A.776/97 EXT.P3:- COPY OF THE FORWARDING LETTER NO.A2-436/1990 DT.24.10.01 ISSUED BY ASST. DIRECTOR OF SURVEY. EXT.P4:- COPY OF NOTIFICATION DT.4.5.01 NO.BEING R.S.NO.1130. RESPONDENT'S EXHIBITS:- EXT.R5(a):- COPY OF SURVEYED SKETCH PREPARED BY ADS MINI SURVEY. okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ O.P. No.37471 OF 2001 ------------------------------ Dated this the 15th day of July, 2009 J U D G M E N T ---------------------- 1. This writ petition is filed seeking the following relieves: a) call for the entire records relating to Exts.P3 and P4. b) issue a writ of certiorari quashing Ext.P4 and all proceedings pursuant thereto. c) issue a writ in the form of a declaration that all penal actions taken against the petitioner prior to Exts.P3 and P4 are null and void and without any basis. d) issue a writ of mandamus directing the 4th respondent to submit the final report in V.C.6/97 Wayanad mentioned in Ext.P1 in the light of Ext.P3 forthwith. e) direct the respondents to disburse the full value of the timber auctioned pursuant to the direction of this Hon'ble Court as per Ext.P2 Judgment. f) direct the respondents to furnish a copy of the F.M.Sketch and the area list mentioned in Ext.P3 forthwith; and to release the entire 74 Acres to the petitioner free from all encumbrances. And-- g) issue such other writ, order or direction including interim orders as that are necessary in the circumstances of the case and to allow this original petition with costs.” The dispute arises more or less as an off-shoot of Ext.P2 Judgment. The contentions of the petitioner in brief are as follows. One Sri.Kuningarath Kunhayamkutty Hajee and his sister Ayisa Hajumma along with some of their relatives were in joint possession of 1080.43 Acres of land comprised in O.P.37471/01 2 R.S.No.1130 of Thondernad Village in Mananthavady Taluk in Wayanad District. Out of this, 297 Acres of property was leased out to the petitioner, his brother and another relative by virtue of lease deed executed as Document Nos:663, 664 and 665 of the year 1969. The lease was created after obtaining permission from the District Collector under the provisions of the Madras Preservation of Private Forests Act 1949. When Land Reforms Act was introduced in the cealing case the Taluk Land Board had exempted 108.31 Acres out of the 297 Acres. The Taluk Land Board found that out of the total extent 96.75 Acres is plantation. The contention of the petitioner is that out of this area the petitioner, his wife and children have got 'Purchase Certificates' issued from the Land Tribunal with respect to 74 Acres. When the Kerala Private Forests (Vesting And Assignment) Act 1971 came into effect an extent of 360.63 Hectares of land comprised in R.S.No:1130 was notified under the provisions of the said Act through notification dt:13.7.1978. The petitioner and his family members approached the Tribunal constituted under the said Act claiming exemption with respect to 198 Acres of property notified under the provisions of the Act. The Tribunal granted exemption only with respect to 18 Acres and declared that 180 Acres of land comprised in Sy.No:1130 is vested forest. Out of O.P.37471/01 3 the 18 Acres exempted, the petitioner has got Cardamom registration certificate obtained from the Tahsildar, Mananthavadi with respect to 9 Acres. The order of the Forest Tribunal was confirmed in appeals. But subsequently on the basis of 'No Objection Certificate' obtained from the Forest authorities and possession and ownership certificates obtained from the Revenue authorities, the Land Tribunal had issued purchase certificates as stated above, with respect to 74 Acres. 2. According to the respondents the petitioner had obtained all the certificates illegally in collusion with the authorities of the Forest and Revenue Departments, and the purchase certificates obtained on the basis of such illegal documents are null and has no validity. However, it is submitted by the learned counsel appearing for petitioner, that when the proceedings were initiated for cancellation of the purchase certificates the petitioner had approached this Court and such proceedings were quashed by this Court in a writ petition. 3. The present dispute arose when the petitioner attempted to cut trees standing in the property, which he claims to be from the 74 Acres covered under the purchase certificates. The Forest authorities interdicted and had taken into custody of the timber already felled. It is submitted that a criminal case O.P.37471/01 4 was registered in this regard against the petitioner and his family members, but it was quashed by orders of this Court in Crl:M.C.Nos:6636/02 and 1663/04. 4. With respect to release of the timber the petitioner had earlier approached this Court in O.P.No:2246/97. This Court appointed a commission and the report received is to the effect that about 60 to 70 lorry loads of timber is lying in the Estate. This Court disposed of the original petition permitting the petitioner and others to remove the timber already cut from the 74 Acres for which there are Pattayams, on condition of executing a bond for the value of the Timber. But it is made clear that the judgment will not preclude the authorities from issuing notification with respect to land in question under the provisions of the Preservation of Trees Act or under the Vesting Act, according to law, subject to the petitioner's legal rights. The judgment was taken in appeal by the Forest authorities and Ext.P2 herein is the judgment in the Writ Appeal. The Government took the stand that the trees were fell from the land which is vested with the Government under the provisions of the Kerala Private Forests (Vesting And Assignment) Act, 1971. It is contended that the timber which was seized from the vested land is the absolute property of the Government and that the O.P.37471/01 5 petitioner and others have no right over the same. On the basis of the rival contentions the Division Bench found that the exact legal possession of the land can be determined only after a detailed survey is conducted and the forest land in R.S. No.1130 is to be computed pursuant to the survey after taking encumbrance from the Sub Registrar Office. It was noticed in Ext.P2 judgment that proposals have already been mooted by the Chief Conservator for conducting survey in this regard. Therefore the writ appeal was disposed of with the following directions: “5. We therefore, direct the appellants to follow the procedure for auctioning the trees which have already been cut and sell the same in public auction and deposit the entire sale proceeds in a nationalised bank till the re- survey is conducted and completed. The auction shall be conducted within two months from the date of receipt of a copy of this judgment either from this Court or on production of the same by either parties; whichever is earlier. The re-survey shall be conducted within a period of six months from today after giving notice to the respondents. Respondents are also permitted to participate in the auction along with others. Since the matter is remitted back to the Forest authorities for resurvey, we order maintenance of status quo as on the date of filing of the Original Petition by both parties. Depending upon the final outcome of the resurvey, both parties may work out their rights in accordance with law. We make it clear that the respondents shall not raise any cardamom or coffee plants till the re-survey is completed. Likewise, the appellants also shall not destroy the cardamom or coffee plants and the building situated in RS 1130 of Thondernadu village till the re- survey is completed.” 5. The petitioner has produced Ext.P3 letter issued by O.P.37471/01 6 the Assistant Director of Survey to the Divisional Forest Officer in which it is stated that the survey work with respect to land in question has been completed and the sketch and other details is forwarded for further action by the Forest Department. But it is contended that no action was taken pursuant to Ext.P3 by the authorities of the Forest Department and no decision is taken in view of the directions contained in Ext.P2 judgment. On the other hand it is contended by the petitioner that even before a survey as directed in Ext.P2 judgment was completed, the respondents had issued a further notification, Ext.P4, under the provisions of the Kerala Private Forests (Vesting And Assignment) Act 1971 through which a total extent of 77.51 Hectares comprised in Survey No.1130, 1134 and 1132 was declared as vested forests. It is pointed out in the explanatory note attached to the notification that, the lands mentioned in the notification lie within the boundaries of the schedule of land already vested in the Government under the provisions of the said Act, with effect from 10.5.1971 and that the lands were not notified as vested forest under the Rules till that date. 6. The contention of the petitioner is that Ext.P4 notification issued after a long lapse of 30 years of coming into force of the Act on 10.5.1971 is totally unsustainable. It is O.P.37471/01 7 contended that the demarcation of vested forest has already stood completed and published through the initial notification and the further notification issued through Ext.P4, without satisfying the extent of land covered under each of the survey numbers, is quite arbitrary and amounts to a colourable exercise of power. Therefore the present writ petition is filed seeking to quash Ext.P4 and also seeking declaration that all penal actions taken with respect to cutting of trees from the 74 Acres is null and void. The petitioner, inter alia, seeks direction for disbursal of the value of the timber auctioned pursuant to Ext.P2 judgment and also for release of the 74 Acres of land covered under the purchase certificate, after issuing a copy of the FM sketch prepared as evidenced by Ext.P3. 7. In the counter affidavit filed by the 5th respondent the locus standi of the petitioner to file this writ petition on behalf of others, is seriously disputed. It is stated that the claim of the petitioner for exempting land from the notification issued in the year 1978 with respect to 36 Acres of land was dismissed through judgment in O.A.121/77 of the Tribunal which stood confirmed by judgment in MFA.122/80 of this Court. Therefore it is contended that the petitioner is not entitled to claim exemption for 74 Acres on behalf of himself and others. It is O.P.37471/01 8 further stated that the O.A. application claiming exemption with respect to 180 Acres stands dismissed and therefore the land in question stands vested in the Government as on 10.5.1971. According to the respondents, the extent of 74 Acres for which the purchase certificate was obtained from the Land Tribunal, is covered within the extent of 180 Acres which stand already vested in the Government. The purchase certificates were obtained only on the basis of illegal documents procured by virtue of collusion between the petitioner and others with the officials of the Forest Department and Revenue Department. A Vigilance case is pending trial in this regard, in which the officials of the Forest Department and Revenue Department are the accused. According to the respondents in the explanatory note in Ext.P4 notification it is made clear that the land notified therein is already situated within the schedule of the vested land notified earlier, and Ext.P4 notification was necessitated only because that extent was excluded in the earlier notification. The sum and substance of the contention of the respondents is that the land from which the timber was cut and removed is the land vested under the provisions of the Kerala Private Forests (Vesting And Assignment) Act and the timber which is seized is the property of the Government. O.P.37471/01 9 8. The respondents have produced another notification, Ext.R5(b), issued under the provisions of the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Ordinance. In the said notification dt:4.10.2000 an extent of 30.2 Hectares comprised in R.S.No:1130 of Thondernadu village was declared as 'ecologically fragile land' vested in the Government. Under the above circumstances the learned Government Pleader contended that the land in question upon which the petitioner claims ownership stands vested in the Government as per Ext.P4 notification issued under the Provisions of the Kerala Private Forests (Vesting And Assignment) Act 1971 and also under Ext.R5(b) notification issued under the provisions of the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Ordinance. Hence the contentions of the petitioner are not at all sustainable. 9. The challenge against Ext.P4 notification cannot be entertained and adjudicated in this writ petition since the petitioner has got effective alternate statutory remedy under Section 8 of the Kerala Private Forests (Vesting And Assignment) Act 1971. So also the petitioner has got effective remedy provided under the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003 against Ext.R5(b) O.P.37471/01 10 notification. Therefore the disputes pertaining to those notifications could not be decided herein. It is made clear that the petitioner can work out his remedies available under the relevant statutes against those notifications. 10. The question as to whether the felling of trees was from the extent of 74 Acres covered under the purchase certificates (Pattayams) or as to whether the land from where the trees were cut and removed, stands vested in the Government, are basically questions of fact which has to be adjudicated on the basis of survey conducted by the competent authorities. From the directions contained in Ext.P2 judgment it is clear that this Court has issued directions to conduct a survey in this regard and to arrive at a final conclusion thereon. It is specifically stated in Ext.P2 judgment that the parties are at liberty to work out their remedies on the basis of such conclusions arrived pursuant to the survey. It is evident from Ext.P3 that the survey conducted pursuant to the directions of this Court stands completed and a sketch was already prepared and forwarded to the Forest authorities. The specific contentions of the petitioner is that the petitioner was not furnished with copies of the sketch and he was denied of opportunity to raise contentions based on that. It is stated in the O.P.37471/01 11 counter affidavit that the original of survey sketch so prepared was taken into custody by the Vigilance authorities for the purpose of the case pending before the Vigilance Court and a copy alone is available with the 5th respondent. The contention of the petitioner is that based on Ext.P4 notification the contention that the land from which trees were fell stood vested in the Government at the relevant time, is not at all sustainable. On the other hand the contention of the respondents seems to be that even the 74 Acres of land covered by Ext.P4 notification is situated within the schedule of land already notified under the provisions of the Act. 11. However, it is evident that a final decision pursuant to the directions contained in Ext.P2 judgment has not so far been taken by the authority concerned. The timber in question was sold in auction on a provisional basis pursuant to directions contained in Ext.P2 judgment. The value of the timber now stands in deposit in the Nationalised Bank as directed by this Court. Therefore it is only just and proper that a final decision with respect to the right of the petitioner for cutting and removal of the trees from the disputed land and the right over the timber seized, need be taken. Needless to say that such decision will always be subject to the statutory rights available to the O.P.37471/01 12 petitioner against Ext.P4 and R5(b) notifications. In the result, the writ petition is disposed of directing the 3rd respondent to adjudicate on the issue with respect to right of the petitioner on the land from which trees were cut and also with respect to the right of the petitioner's claim over the value of timber seized by the forest officials. The petitioner shall be furnished with copies of the survey reports, sketches and area list of the property in question which is prepared pursuant to Ext.P2 Judgment, as evidenced by Ext.P3 letter. He shall be given opportunity of personal hearing before taking a final decision in the matter. The decision as above may be taken by the 3rd respondent as early as possible, at any rate within a period of 3 months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb