IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 23066 of 2008(U) -------------------------------------- PETITIONER(S): ----------------------- DR.GEORGE.T.NINAN, S/O.T.C.NINAN, KUNNATHUR MEDU,PALAKKAD TALUK, PALAKKAD DISTRICT- REPRESENTED BY HIS POWER OF ATTORNEY HOLDER THOMAS JOSEPH, S/O.JOSEPH, AGED 44 YEARS MANNURAMPARAMBIL, KANJIRAPUZHA, MANNARAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.MOHANAKANNAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT FOREST & WILD LIFE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CONSERVATOR/CUSTODIAN OF VESTED FORESTS OLAVAKKODE,PALAKKAD. 3. THE DIVISIONAL FOREST OFFICER, OLAVAKKODE, PALAKKAD. 4. THE RANGE OFFICER, OLAVAKKODE, PALAKKAD. SPL. GOVT. PLEADER SRI.P.M.POULOSE (FOREST) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.23066/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT DTD. 28.5.1976 IN OA. 913/1974 ON THE FILE OF THE FOREST TRIBUNAL, PALAKKAD. P2:- COPY OF THE PATTAYAM DTD. 14.6.1993 OBTAINED BY THE PETITIONER FROM THE LAND TRIBUNAL , PALAKKAD. P3:- COPY OF THE LAND TAX RECEIPT NO.65951 DTD. 20.7.2006. P4:- COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE MUNDUR-I, VILLAGE OFFICER ON 23.7.2006. P5:- COPY OF THE PROCEEDINGS ISSUED BY THE 3RD RESPONDENT IN OA. 913/1997 DTD. 22.12.2005. P6:- COPY OF THE APPLICATION SUBMTITED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT ON 11.7.2008. P7:- COPY OF THE NOTIFICATION PUBLISHED IN THE KERALA GAZETTE ON 19.5.2005. P8:- COPY OF THE JUDGMENT REPORTED IKN 1998(2) KLT 934 (KOTTAL AYISHUMMA VS. STATE OF KERALA). P9:- COPY OF THE JUDGMENT REPROTED IN 2006(2) KLT SN CASE NO.118(ARYA VAIDYA SALA VS. STATE OF KERALA). RESPONDENT'S EXHIBITS R3(a):- COPY OF THE RECEIPT ISSUED ON THE PETITIONER ON 17.11.2005. R3(b):- COPY OF THE RELEVANT PAGES OF THE JUDGMENT OF HONOURABLE SUPREME COURT, IN WPC. NO.202/95. TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 23066 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of June, 2010 J U D G M E N T The petitioner challenges Ext.P7 notification issued by the Government under Section 5 of the Kerala Preservation of Trees Act, 1986. The contention raised is that Section 5 applies only to private forests, cardamom hills reserve and areas cultivated with cardamom. According to the petitioner, the area is neither cardamom hills reserve no area cultivated with cardamom. Therefore if at all Section 5 can be invoked that can only be on the ground that it is a private forest. The question is as to whether the area is a private forest was considered by the Forest Tribunal under the Kerala Private Forests (Vesting and Assignment) Act, 1971 in O.A. No.913/1997 and by Ext.P1 order of the Forest Tribunal, Palghat, the Tribunal has declared that the property in question is not a private forest. In those proceedings it was held that, the property is an agricultural W.P.(C)No. 23066 of 2008 -2- holding not liable to be vested in the Government under any of the provisions of the Act. The petitioner therefore submits that in view of the declaration in Ext.P1 order, Section 5 is not attracted to the land in question. The petitioner therefore seeks the following reliefs: (i) To issue a Writ of Certiorari or any other appropriate Writ, order or direction to call for the records leading to Ext.P7 and quash the same. (ii) To issue a Writ or any other appropriate writ, order or direction, declaring that Ext.P7 is nonest in the eye of law and Sec. 5 of the Preservation of Trees Act, 1986 is not applicable to the property covered by Ext.P1 and declared as not vested forest; (iii) To award the cost of these proceedings to the petitioner and; 2. The respondents have filed a statement. They raise a technical contention to the effect that the petitioner was aware of Ext.P7 notification as early as on 17.11.2005 when pursuant to Ext.P1 order the land was restored to the petitioner. While accepting possession of the properties the petitioner through his power of attorney holder, executed Ext.R3 (a) receipt, wherein he has specifically accepted that the property has been restored to him subject to Ext.P7 W.P.(C)No. 23066 of 2008 -3- notification. In that receipt he has also acknowledged receipt of a copy of that notification. After having executed Ext.R3 (a) as early as on 17.11.2005 the petitioner has filed this writ petition on 29.07.2008 feigning ignorance about the notification until he obtained a copy of the same by resort to proceedings under the Right to Information Act. The respondents would therefore contend that this writ petition is liable to be dismissed not only on the ground of delay and laches but also for approaching this court with unclean hands, in so far as the petitioner has suppressed material facts. They would further contend that in so far as the area covered by the notification is an area coming within the purview of MPPF Act. The area is therefore deemed to be a forest and therefore notwithstanding Ext.P1 order, in view of the definition of 'forest' in the Kerala Private Forest (Vesting and Assignment) Act in respect to areas covered by the MPPF Act, Section 5 is automatically attracted to the area in question. Therefore according to the respondents, Ext.P7 is perfectly valid and proper and is W.P.(C)No. 23066 of 2008 -4- not liable to be interfered with by this court. 3. I have considered the rival contentions in detail. I am inclined to hold that the respondents are entitled to succeed on the ground of delay and laches and suppression of material facts on the part of the petitioner. As rightly pointed out by the respondents, the petitioner drafted this writ petition on the premise that until the petitioner filed Ext.P6 petition under the Right to Information Act and obtained copy of Ext.P7 notification, petitioner was not aware of the notification. Petitioner does not now dispute the execution of Ext.R3 (a). Ext.R3 (a) is executed by the power of attorney holder of the petitioner. Admittedly, in the same, the petitioner has specifically acknowledged the fact that the property is covered by notification under Section 5 of the Kerala Preservation of Trees Act. By the same he has also acknowledged receipt of a copy of the notification as well. As such the petitioner was aware of the notification as early as on 17.11.2005. When this was pointed out in the counter affidavit and Ext.P3 (a) was W.P.(C)No. 23066 of 2008 -5- produced along with the counter affidavit the petitioner has come forward with the following explanation in paragraph 2 of the reply affidavit which reads thus: “2. It can be seen from the Exhibit R3(a) that the power of Attorney Holder of the petitioner has accepted the property and issued acknowledgment. It is also stated that the property has been notified under Section 5 of the Act vide G.O. P dated 13-8-05. Though there was an acknowledgment to the effect that he has received a copy of the G.O. since there was no further action in the matter of cultivation of the property, the petitioner had no occasion to cut and remove the trees. I have specifically averred in the W.P.(C) that when there was obstruction from the Forest department regarding the cutting of the trees I have filed an application after paying requisite fee which is evidenced from Exhibit P6 dated 11-7-08 and in terms of the same. Exhibit P7 notification was duly issued to me. Therefore I am not aware about the consequence of the Govt. order and the implementation of Ext.P7 was effected only in July 2008 which necessitated filing the application Ext.P6 on 11-7-08. Therefore it can be seen that there is no delay in the matter of approaching this Honourable Court.” 4. That explanation is clearly an afterthought. Petitioner was very much aware of the fact that the area is covered under the notification issued under the Kerala Preservation of Trees Act at the time of restoration of possession of the property in 2005. The writ petition is filed W.P.(C)No. 23066 of 2008 -6- almost after three years from the date when the petitioner obtained a copy of the notification and acknowledged receipt of the same by Ext.R3 (a). Therefore the petitioner is guilty not only of delay and laches but also of suppression of material facts. Therefore I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner. For those reasons the writ petition is dismissed. S. SIRI JAGAN JUDGE shg/