IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 WP(C).No. 36718 of 2008(U) -------------------------- PETITIONER: -------------- MUHAMMED NAJEEB, S/O. MUHAMMEDALI, AGED 38 YEARS, ELAYAD HOUSE, KARIMPUZHA, CHANDAKUNNU.P.O, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.DEVIDAS.U.K RESPONDENTS: ----------------- 1. STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, MALAPPURAM DISTRICT. 2. DIVISIONAL FOREST OFFICER, NILAMBUR NORTH, MALAPPURAM DISTRICT. 3. THE FOREST RANGE OFFICER, FOREST RANGE OFFICE, NILAMBUR, MALAPPURAM DISTRICT. R1 TO R3 BY SPL. GOVERNMENT PLEADER, SRI.V.M. POULOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36718 of 2008(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THEPURCHASE CERTIFICATE NO.331 OF 1984 DATED 31.05.1984. EXT.P2 : TRUE COPY OF THE DOCUMENT NO.136 OF 1990 OF SRO, NILAMBUR. EXT.P3 : TRUE COPY OF THE DOCUMENT NO.5193 OF 2004 OF SRO, NILAMBUR. EXT.P4 : TRUE COPY OF THE DOCUMENT NO.1212 OF 2007 OF SRO, NILAMBUR. EXT.P5 : TRUE COPY OF THE EXTRSCTS OF THE BUILDING TAX ASSESSMENT REGISTER OF THE ABOVE SHOP ROOMS FROM THE YEAR 1973 TO 1978 AND FROM 1983 TO 1998. EXT.P6 : TRUE COPY OF THE BUILDING TAX RECEIPT OF THE SHOPROOMS DATED 31.01.2008 ISSUED BY THE NILAMBUR GRAMA PANCHAYAT. EXT.P7 : TRUE COPY OF THE REVENUE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, NILAMBUR DATED 18.08.1993. EXT.P8 : PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER. EXT.P9 : TRUE OCPY OF THE NOTICE DATED 23.10.2008 ISSUED BY THE THIRD RESPONDENT. EXT.P10 : TRUE COPY OF THE APPLICATION FOR PUCHASE CERTIFICATE IN THE PROCEEDINGS NO.338 OF 1983. EXT.P11 : TRUE COPY OF THE REPORT DATED 26.05.1984 FILED BY THE FOREST RANGE OFFICER, NILAMBUR BEFORE THE DEPUTY COLLECTOR, MALAPPURAM. EXT.P12 : TRUE COPY OF THE ORDER DATED 24.05.1984 PASSED BY THE DEPUTY COLLECTOR, MALAPPURAM IN THE PROCEEDINGS NO.338 OF 1983. EXT.P13 : TRUE COPY OF THE BASIC TAX RECEIPT OF THE ABOVE LAND DATED 28.04.1983. RESPONDENT'S EXHIBITS: EXT.R3(A) : TRUE COPY OF THE SURVEY SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER IN IA NO.2314/98 IN OS NO.548/98. EXTR3(B) : TRUE COPY OF JUDGMENT DATED 27.11.03 IN OS NO.548/98 OF THE HON'BLE MUNSIFF COURT, MANJERI. EXTR3(C) : TRUE COPY OF LETTER DT.25.09.2008 BY ASS. DIRECTOR, FOREST MINI SURVEY. WP(C).No. 36718 of 2008(U) EXT.R3(D) : TRUE COPY OF SKETCH PREPARED BY THE ASST. DIRECTOR, FOREST MINI SURVEY. EXT.R3(E) : TRUE COPY OF THE FORM A-1 DATED 11.12.2008. /TRUE COPY/ PS TO JUDGE T.R.Ramachandran Nair, J. ------------------------------------------ W.P.(C) No.36718 of 2008 ------------------------------------------ Dated this the 9th day of March, 2010 JUDGMENT Petitioner is aggrieved by Ext.P9 notice issued by the third respondent Forest Range Officer whereby he was directed to demolish the encroached portion of the shop constructed as per No.N5/270. 2. Heard learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. 3. Ext.P1 is the copy of the purchase certificate whereby the petitioner is assigned with three cents of land in Resurvey No.378/8 of Nilambur Village. It is the case of the respondents that the petitioner has encroached upon the forest land and made construction in Resurvey No.379 which is part of the reserve forest in Nilambur Village. 4. Learned counsel for the petitioner submits that the W.P.(C) No.36718 of 2008 - 2 - shop in question situated in Sy.No.378/8 is within the patta land. This is strongly refuted by the learned Government Pleader appearing for the respondents. It is pointed out that the petitioner has filed a civil suit as O.S.No.548 of 1998 before the Munsiff's Court, Manjeri which was dismissed by Ext.R3(b) judgment. Thereafter, the Mini Survey Department of the Forest Department also conducted a survey of the forest land and found that the petitioner had encroached upon forest land. Ext.R3(c) is the letter showing the same and Ext.R3(d) is the sketch also. A forest offence was also booked against the petitioner as O.R.No.15 of 2008 which is now pending before the Judicial First Class Magistrate Special Court (Forest) Manjeri. 5. What is evident from the pleadings is that the petitioner asserts that he is having title to the property where the shop in question is situated, whereas going by the records produced by the respondents, it is beyond the patta land. Learned Government Pleader submits that even the notice W.P.(C) No.36718 of 2008 - 3 - Ext.P9 was not required as they were entitled to evict the petitioner who has encroached upon the forest land. 6. What is mainly contended by the petitioner is that before Ext.P9 was issued, he was not heard. Ext.P9 shows that a portion of shop No.N5/270 is in the forest land. Therefore, the boundary of the property of the petitioner and the forest land will have to be demarcated, if it is not already done, and only thereafter further action will have to be taken. 7. In that view of the matter, the second respondent will hear the petitioner and take appropriate decision with regard to the claim raised by the petitioner that the disputed portion is within the patta land and with regard to the stand of the Forest Range Officer that it is part of the forest land. Appropriate decision will be taken by the second respondent within a period of two months from today and based on such decision further action will be taken by the departmental authorities. Petitioner will be free to produce all materials W.P.(C) No.36718 of 2008 - 4 - before the second respondent in support of his claim. The interim order passed by this Court will continue till such orders are passed. Writ petition is disposed of as above. T.R.Ramachandran Nair, Judge vns