IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WP(C).No. 26730 of 2008(F) ----------------------------------- PETITIONERS : ----------------- 1. PREETHI ALJO ,W/O. ALJO, PUTHUPPARA HOUSE, ERAVOOR VILLAGE, ALUVA, ERNAKULAM. 2. JOICY LAGI, W/O. LAGI, PUTHUPPARA HOUSE, ERAVOOR VILLAGE, ALUVA, ERNAKULAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS : ------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF FORESTS GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. CHIEF CONSERVATOR OF FORESTS GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. DIVISIONAL FOREST OFFICER IDUKKI. 4. RANGE OFFICER, ERUMELY RANGE UDUMBANCHOLA TALUK, IDUKKI. SPL.GOVERNMENT PLEADER SRI.RANJITH THAMPAN (FOREST) - R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2008, ALONG WITH WPC NO.28700 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING : V.RAMKUMAR, J. -------------------------------------------------------- W.P.(C) Nos.26730 & 28700 OF 2008 -------------------------------------------------------- Dated this the 12th day of November, 2008 JUDGMENT The common petitioners in these writ petitions claim to be absolute owners in possession of an extent of 10 acres of land comprised in Sy.No.185/1 of Vagamon Village. According to them, the only access to the said property is through a private mud road having a length of 1 km. As per notification dated 29.11.2006 produced as Ext.P8(a) in W.P.(C) No.26730 of 2008 issued under Section 4 of the Kerala Forest Act, certain properties including a small segment of 40 ft. of the aforesaid private road has been notified as an area proposed to be declared as reserved forest. According to the petitioners, forest officials obstructed the private road on the spot where it connects the panchayath road on the north-west. Thereupon the petitioners filed a suit on 24.04.2008 before the District Court, Thodupuzha during vacation. The suit was to be filed before Munsiffs Court, Peermade. The suit was for a perpetual injunction restraining the forest officials and the State of Kerala from interfering with the aforesaid 40 ft. long segment W.P.(C) Nos.26730 & 28700 of 2008 2 of the private road described as the plaint 'C' schedule property over which the petitioners claim a right of easement by way of prescription for having used the same for more than 30 years. Along with the suit the petitioners filed I.A.No.361 of 2008 for a temporary injunction in terms of the plaint. The court did not pass an ex-parte order of injunction. But instead, ordered notice only. Ext.P2 in W.P.(C) No.26730 of 2008 is the plaint in the said suit. The case was posted to 28.06.2008. In the meanwhile on the application filed by the petitioner the court had issued a Commission to inspect the property and submit its report. Ext.P3 in W.P.(C) No.26730 of 2008 is the report dated 17.05.2008 of the Advocate Commissioner, who had visited the property on 26.04.2008. With regard to the plaint 'C' schedule property Commissioner reported in Ext.P3 report that towards western end of the private road there is an attempt to block the road by digging a trench across the road which appears to be an old one. Alleging that the attempt to cause obstruction to the road had been progressed by stacking granite stones in the plaintiffs' property, the plaintiffs filed I.A.No.422 of 2008 for the issue of a second Commission. W.P.(C) Nos.26730 & 28700 of 2008 3 Ext.P3(a) in W.P.(C) No.26730 of 2008 is the report of the second Commissioner, who visited the property on 17.06.2008. In paragraph 2 of the said report, the Commissioner had stated that granite stones to a length of 500 ft. for the purpose of closing the plaint 'C' schedule way has been collected in the plaint 'A' and 'B' schedule properties belonging to the plaintiffs. On 28.06.2008 when I.A.No.361 of 2008 (petition for temporary injunction) came up for consideration, the court passed the following order : “ G.P. filed memo of appearance. G.P. Absent. Heard counsel for the petitioners. Status quo as on 17.06.2008 as reported in the second CR filed by Advocate Stephen is ordered till 19.07.2008. ” Alleging that the defendants had violated the order for status quo the petitioners/plaintiffs filed I.A.505 of 2008 for issuing a third Commission. The Commissioner visited the property on the third occasion on 08.07.2008. Ext.P6 is the third report of the Commissioner. The Commissioner who was deputed pursuant to I.A.No.505 of 2008 was the very same Commissioner who submitted the second report after visiting the property on 17.06.2008. In the third report of the W.P.(C) Nos.26730 & 28700 of 2008 4 Commissioner marked as Ext.P6 in W.P.(C) No.26730 of 2008 the Commissioner reported that on inspection on 08.07.2008 he noted that the plaint 'C' schedule road had been completely blocked using granite stones upto a height of 3 ft. Thereupon the petitioners/plaintiffs filed I.A.No.508 of 2008 for removal of the obstruction. As per Ext.P7 order dated 17.07.2008, the learned Munsiff directed the defendants namely, the Government of Kerala, represented by the District Collector, Divisional Forest Officer, Idukki, Range Officer, Erumeli and the Section Officer Kakkathodu Section, to remove the obstruction caused to the plaint 'C' schedule property. Thereafter on 18.07.2008 the defendants filed Ext.P8 counter affidavit stating that 40 ft. long portion, that is, the plaint C schedule property forms part of a reserved forest as notified by the Government on 25.11.2006 in the Government Gazette dated 29.11.2006 produced as Ext.P8(a) in W.P.(C) No.26730 of 2008. The defendants wanted the court to decide the jurisdiction of the court to entertain the suit as a preliminary issue. As per Ext.P9 judgment dated 31.07.2008 the learned Munsiff after hearing both sides rejected the plaint under W.P.(C) Nos.26730 & 28700 of 2008 5 Order VII Rule 11(d) C.P.C. holding that by virtue of Section 5 of the Kerala Forest Act and Section 13 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 the jurisdiction of the civil court to entertain the suit of this nature was barred. On the same day as per Ext.P10 order, the learned Munsiff dismissed all interlocutory applications filed as I.A.No.507 of 2008 for arrest and detention and attachment under Order XXXIX, Rule 2A C.P.C., I.A.No. 508 of 2008 for removal of obstruction to restore the status quo and I.A.No.558 of 2008 to appoint the Amin to implement. Ext.P7 order directing the defendants to remove the obstruction caused to plaint 'C' schedule road. The said Ext.P10 order is challenged in W.P.(C) No.28700 of 2008. In W.P.(C) No.26730 of 2008, the petitioner seeks a direction against respondents 2, 3 and 4 i.e. Chief Conservator of Forests, Divisional Forest Officer, Idukki and Range Officer, Erumely, for removal of the obstruction created in the private way and to abide by Section 24 of the Kerala Forest Act before the rights of way of the petitioner is interfered with and also for a declaration that Section 5 of the Kerala Forest Act is W.P.(C) Nos.26730 & 28700 of 2008 6 unconstitutional so far as it ousts the jurisdiction of the civil courts to decide rights purely of a civil nature and for having vested such right on a non-legal person namely, the Forest Settlement Officer. 2. I heard the learned counsel for the petitioner as well as the Special Government Pleader for Forest. Now that the Government has produced Ext.R3(a) notification dated 26.08.2008 under Section 6 of the Kerala Forest Act, it may not be permissible to the petitioner to sustain its contention that the civil court has jurisdiction to entertain the suit. If so, the view taken by the learned Munsiff in Ext.P9 can be sustained though not for the reasons stated therein. But then, it was only on 31.07.2008 that the court held that it has no jurisdiction to entertain the suit. All interim orders passed until then cannot be said to be passed without jurisdiction in the light of the decision of the Apex Court reported in Tayabbhai M.Bagasarwalla and another Vs. Hind Rubber Industries Pvt. Ltd. - AIR 1997 SC 1240. Hence the court below was not justified in dismissing all interlocutory applications by passing Ext.P10 order which is accordingly set W.P.(C) Nos.26730 & 28700 of 2008 7 aside and I.A.No.508 of 2008 for removal of obstruction for the purpose of restoring status quo as ordered in Ext.P4 order in W.P.(C) No.28700 of 2008 shall stand allowed. It is needless to say that the petitioners are free to move the Forest Settlement Officer under Section 6 (1)(d) of the Forest Act for establishing the nature of their right over the disputed segment of land by producing documentary and other evidence in support thereof. The learned Munsiff shall cause removal of the obstruction through the Amin under the supervision of the Advocate Commissioner within two weeks of receipt of a copy of this judgment. These writ petitions are disposed of accordingly. V.RAMKUMAR, JUDGE pac