IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 OP.No. 15539 of 2003(Y) ------------------------------- PETITIONER: --------------- SUHARA, AGED 42 YEARS, W/O.MAKKAR BABU, RESIDING AT ERAKKAL VEEDU, PAMBLA KAVALA, PANAMKUTTY, KEERITHODE, IDUKKI. BY ADV. SRI.P.K.JOSE SRI.JOICE GEORGE RESPONDENTS: --------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT THIRUVANANTHAPURAM.P.O, THIRUVANANTHAPURAM. 2. THE DIVISIONAL FOREST OFFICER, MUNNAR, MUNNAR.P.O, IDUKKI DISTRICT. 3. THE FOREST RANGE OFFICER NERIYAMANGALAM, NERIYAMANGALAM.P.O. GOVERNMENT PLEADER SHRI.M.H.HANIL KUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON 20/08/2009 DELIVERED THE FOLLOWING: OP.No. 15539 of 2003(Y) 2 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE ASSESSMENT ORDER DATED 23/1/1989 OF KANJIKUZHY PANCHAYATH EXHIBIT P2 : TRUE COPY OF THE RECEIPT DT.28/11/1991 FOR PAYMENT OF PROPERTY TAX FOR THE YEAR 1989-90 EXHIBIT P3 : TRUE COPY OF THE ASSESSMENT ORDER DT.17/12/1993 BY EXE.OFFICER OF PANCHAYATH. EXHIBIT P4 : TRUE COPY OF THE RECEIPT SHOWING PROPERTY TAX UPTO THE YEAR '99. EXHIBIT P5 : TRUE COPY OF THE JOINT VERIFICATION REPORT DT.10/8/2002. EXHIBIT P6 : TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER DT.25/7/2000. EXHIBIT P7 : TRUE COPY OF THE LETTER DT.13/5/2003 BY THE 3RD RESPONDENT. EXHIBIT P8 : TRUE COPY OF THE JUDGMENT IN O.P.No.16658/99 DT.16/8/99. EXHIBIT P9 : TRUE COPY OF THE RECEIPT DT.10/5/1989 ISSUED BY THE KANJIKUZHY GRAMAPANCHAYATH. EXHIBIT P10 : RECEIPT DATED 20/6/1987 ISSUED BY OTHER KANJIKUZHY GRAMA PANCHAYATH. EXHIBIT P11 : DEMAND NOTICE DATED 2/4/1986 ISSUED BY MANAGER UNION BANK OF INDIA. EXHIBIT P12 : TRUE COPY OF REPORT DATED 10/5/2000 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS ANNEXURE R1(a) : TRUE COPY OF THE LETTER ISSUED TO THE MINISTER OF FORESTS, GOVERNMENT OF KERALA, BY THE HUSBAND OF THE PETITONER. ANNEXURE R1(b) : TRUE COPY OF THE LETTER DT.1/11/2000 OF THE DIVISIONAL FOREST OFFICER TO THE FOREST RANGE OFFICER, NERIYAMANGALAM. ANNEXURE R1(c) : TRUE COPY OF THE LETTER DT.28/4/2003 OF THE SUPERINTENDENT OF POLICE. V.K.MOHANAN, J. ---------------------------------------- O.P. No.15539 OF 2003 ---------------------------------------- Dated, 20th day of August , 2009 JUDGMENT Petitioner claims that she is in absolute possession of one acre land lying in R.S.No.2 of Ward No.2 of Kanjikuzhy village, Thodupuzha Taluk. She approached this Court praying inter alia to issue a direction to respondents 1 and 2 to assign land occupied by the petitioner and her husband in their favour under the provisions of Kerala Land Assignment (Regularisation of Occupation of Forest land prior to 1.1.1977) Special Rules, 1993. It is also prayed for issuing a writ of mandamus commanding respondents to see that the petitioner and her family is not evicted from the house and premises in the Kanjikuzy Village of Idukki District in which they are living. 2. The case of the petitioner is that herself, her family including her children and husband and parents are residing in the property in question for the last 33 years with family. Her husband is a mental patient. In support of OP 15539/03 -:2:- her contention and to establish the possession , they have produced Ext.P1 to P5 and P9 receipts etc. It is also the case of the petitioner that as they were in possession in the property prior to 1.1.1977, a joint verification was conducted by the Forest as well as Revenue department for the purpose of assigning the land after having obtained permission from the Central Government in terms of Forest Conservation Act 1980. According to the petitioner, Ext.P5 is the outcome of such verification. Thereafter, the Government sent a proposal to the Central Government along with other proposal in favour of similarly situated persons for approval of the Central Government and, accordingly, the Central Government approved the proposal of the Statement Government and subsequently, the Statement Government promulgated the Kerala Land Assignment (Regulation of Occupation of Forest Land prior to 1.1.1977) Special Rules 1993 . The constitutionality and vires of the said rules challenged in a Public Interest Litigation which ultimately culminated in the judgment of the Apex Court in Nature OP 15539/03 -:3:- Lovers Movement v. State of Kerala ( {2009 ) 5 SCC 373}. According to the petitioner, on the strength of the verification conducted by the State Government as indicated above, 28588.159 Hectres of forest land all over the State has been identified and earmarked for giving pattayam to the occupants of the land. Out of the said Hectares of land, 25000 hectares of land situate in Idukki district and the property in the petitioner's possession will come under the above extent of property earmarked for giving pattayam. According to the petitioner, she approached this Court when the forest officials tried to evict her and her family under the guise of Ext.P8 judgment. Therefore it is the specific case of the petitioner that in view of the above facts and circumstances, the petitioner and her family is entitled to get assigned land in their possession under the provisions of the above rules. 3. Resisting the contentions and assertion made by the petitioner in this writ petition, on behalf of the forest department, a statement is seen filed stating that the OP 15539/03 -:4:- Petitioner is not a bona fide occupier of the land and she is not entitled to get assigned the land especially for the reason that her occupation in the land was in 1988. It is also submitted that the petitioner has approached the concerned authorities with a request for assignment of land. 4. I have heard the learned counsel appearing for the Petitioner as well as the learned Government Pleader for the forest department. 5. As evidenced by Ext.P5, the petitioner is in possession of one acre and the petitioner and her family is residing in a house constructed therein and the concerned Panchayat has granted house number also and realizing the house tax as well as land tax. Ext.P5 is not effectively controverted. Going by the documents produced by the petitioner, it appears that her claims and demands are genuine which require favourable consideration by the authorities concerned. Of course, it is for the petitioner to establish and convince the authorities concerned that they were in possession of the property prior to 1.1.77. OP 15539/03 -:5:- 6. The learned counsel for the petitioner submitted that the Government is taking steps to appoint authorities in terms of the provisions contained in the rules so as to take further steps towards the materialisation of the purpose envisaged by the said rules. If that be so, the petitioner can be directed to file a proper application before the concerned authority setting forth her claim and request for the assignment of the land in question in accordance with appropriate provisions of the relevant Act or rules. 7. When this writ petition came up for admission, this Court issued an interim order on 3.6.2003 directing the respondents not to evict the petitioner for one week. The said interim order was subsequently extended from time to time and finally as per order dated 7.3.2005, this court extended the interim order, stating that the interim order passed on 3.6.2003 and extended from time to time, shall remain in force until further orders. 8. In the light of the above facts and circumstances, I am of the view that the petitioner's request can be considered by OP 15539/03 -:6:- competent authority for which the petitioner can be relegated to approach such authority. Thus the writ petition is disposed of directing the petitioner to approach the competent authority by filing a proper application under the relevant provisions of law for the assignment of land. Such application shall be filed before the authority appointed as per the provisions of the above rules and the same shall be done within one month from the date of receipt of a copy of this judgment or within one month from the date of the appointment of such officer whichever is earlier. The interim order passed by this Court made is absolute and the same shall be in force till the application of the petitioner is disposed of by a competent authority. The Writ petition is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- OP 15539/03 -:7:- V.K.MOHANAN, J. O.P.No. 15539/2003 JUDGMENT Dated:.20.8.2009.