IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 WP(C).No. 16458 of 2009(B) -------------------------- PETITIONER(S): --------------- 1. BABU GEORGE, VELLOOKUNNEL, PUTHIYAPARAMBIL, SURYANELLI P.O., CHINNAKKANAL , DIST. IDUKKI. 2. JAMES GEORGE, VELLOOKUNNEL, PUTHIYAPARAMBIL,SURYANELLI P.O., CHINNAKKANAL , DIST. IDUKKI. 3. SHIBU GEORGE, VELLOOKUNNEL, PUTHIYAPARAMBIL,SURYANELLI P.O., CHINNAKKANAL , DIST. IDUKKI. 4. SEBASTIAN GEORGE, VELLOOKUNNEL, PUTHIYAPARAMBIL,SURYANELLI P.O., CHINNAKKANAL , DIST. IDUKKI. BY ADV. SRI.K.REGHU KOTTAPPURAM RESPONDENT(S): --------------- 1. THE AGRICULTURAL PRODUCTION COMMISSIONER, & SECRETARY TO GOVERNMENT, FOREST ENVORINMENT & WILD LIFE (C) DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE COMMISSIONER, LAND REVENUE, GOVT. OF KERALA, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, PAINAVU, IDUKKI DIST. 4. THE TAHSILDAR, UDUMBANCHOLD TALUK, DIST. IDUKKI. 5. THE SECRETARY TO GOVT. OF INDIA, MINISTRY OF FOREST & ENVORONMENT, DEPARTMENT OF FOREST & WILD LIFE, GOVT OF INDIA, KRISHIBHAVAN, NEW DELHI. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R5 MR.POULOSE, SPL. GOVERNMENT PLEADER FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.16458/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF POSSESSION CERTIFICATE DATED 23/06/1995 ISSUED TO 1ST PETITIONER. P2 : COPY OF POSSESSION CERTIFICATE DATED 23/06/1995 ISSUED TO THE 2ND PETITIONER. P3 : COPY OF POSSESSION CERTIFICATE DATED 23/06/1995 ISSUED TO 3RD PETITIONER. P4 : COPY OF POSSESSION CERTIFICATE DATED 23/06/1995 ISSUED TO 4TH PETITIONER. P5 : COPY OF OWNERSHIP CERTIFICATE DATED 04/03/2003 ISSUED TO 1ST PETITIONER IN RESPECT OF HOUSE. P6 : COPY OF OWNERSHIP CERTIFICATE DATED 04/03/2003 ISSUED TO 2ND PETITIONER. P7 : COPY OF APPLICATION DATED 15/07/1993 FOR ASSIGNMENT FILED BY 1ST PETITIONER. P8 : COPY OF APPLICATION DATED 15/07/1993 FOR ASSIGNMENT FILED BY 3RD PETITIONER. P9 : COPY OF APPLICATION DATED 15/07/1993 FOR ASSIGNMENT FILED BY 4TH PETITIONER. P10 : COPY OF APPLICATION DATED 15/07/1993 FOR ASSIGNMENT FILED BY 2ND PETITIONER. P11 : COPIES OF POSTAL RECEIPTS DATED 24/07/1993. P12 : COPIES OF POSTAL A.D. CARDS. P13 : COPY OF BUILDING TAX ASSESSMENT REGISTER. P14 : COPY OF JUDGMENT DATED 20/10/2006 IN O.P.NO.11617/2003. P15 : COPY OF ORDER NO.C8-45402/06 DATED 06/05/08. P16 : COPY OF APPEAL DATED 04/07/08. P17 : COPY OF ORDER NO.LR(K) 1-32619/08 DATED 30/09/2008. P18 : COPY OF NOTICE DATED 24/10/2008. P19 : COPY OF SKETCH PREPARED BY SURVEY AND LAND RECORDS SUPERINTENDENT DATED 24/12/2003. WPC NO.16458/2009 P20 : COPY OF JUDGMENT DATED 30/03/2009 IN CIVIL APPEAL NO.2116/2000 OF HONOURABLE SUPREME COURT. P21 : COPY OF COMMISSION REPORT IN O.S.173/2008 DATED 04/02/2009. P22 : COPY OF NOTICE NO.K2-6029/03 DATED 01/07/09. RESPONDENT'S EXHIBITS R3(a) : COPY OF ORDER IN WP(C) NO.31746/2008 DATED 01/12/2008. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.16458 of 2009 --------------------------------- Dated, this the 29nd day of September, 2009 J U D G M E N T The prayer sought in this writ petition is to quash Exts.P15 & P17 and to declare that the petitioners, having occupied and cultivated forest lands prior to 01/01/1977, are entitled to have the land assigned as per the provisions contained under the Kerala Land Assignment (Regularisation of Occupation of Forest Land Prior to 01/01/1977) Special Rules, 1993. There is a further prayer to declare that the eviction of the petitioners in pursuance to Ext.P17 vide Ext.P18 is illegal. They also seek a direction to the respondents to assign the land mentioned in Exts.P7 to P10. 2. The petitioners claim that since 1973, their father, late Shri.P.J.George, was in occupation of 13.59 acres of forest land situated in Survey No.34/1 of Chinnakkanal Village. Referring to Ext.P21, a Commission Report, submitted by an Advocate Commissioner appointed in O.S.No.173/08 on the file of the Sub Court, Kattappana, the petitioners submit that the land in question is a fully developed cardamom plantation. It is stated that their WP(C) No.16458/2009 -2- father expired on 23/05/1985 and being the legal representatives, they continued in possession, although the property has been partitioned among themselves. 3. It is stated that it was while so that in 1993, the Kerla Land Assignment (Regularisation of Occupation of Forest Land prior to 01/01/1977) Special Rules, 1993 (hereinafter referred to as the 1993 Rules for short) was framed by the Government of Kerala exercising their powers under the Kerala Government Land Assignment Act, 1960. It is stated that the validity of this Rule was upheld by a Full Bench of this Court in the judgment in Nature Lovers Movement v. State of Kerala and Others (ILR 2000(Vol.1) Kerala 677), and that the judgment has been confirmed by the Apex Court as per Ext.P20 judgment. In terms of the said Rule, eligibility has been conferred on some of the persons who have occupied forest lands prior to 01/01/1977 to apply for assignment of the land in accordance with the procedure laid down thereunder. 4. Referring to Exts.P1 to P4 possession certificates issued on 23/06/1995, the petitioners submit that they and their predecessor were in occupation of the land prior to 01/01/1977. It is stated that by Exts.P5 and P6 ownership certificates issued by the Panchayat, the petitioners 1 & 2 are certified to be the occupants of WP(C) No.16458/2009 -3- the houses constructed by them from 1993-94 onwards. Ext.P13 is stated to be the building tax assessment register concerning the buildings mentioned in Exts.P5 & P6. 5. According to the petitioners, they submitted Exts.P7 to P10 applications dated 15/07/1993 for regularisation of their occupation and assignment of the land under the 1993 Rules. Exts.P11 and P12 are stated to be the postal receipts and acknowledgment cards, which according to the petitioners, evidences that Exts.P7 to P10 applications made them under 1993 Rules have been received by the 4th respondent. It is alleged that complaining that orders were not passed on Exts.P7 to P10 applications made under the 1993 Rules, the petitioners approached this Court by filing O.P.No.11617/2003. That original petition was disposed of by Ext.P14 judgment directing 3rd respondent to consider the applications. 6. It is stated that in pursuance to Ext.P14 judgment, Ext.P15 order was passed by the District Collector rejecting the applications referring to a report to the effect that the land in respect of which the claim was made was earmarked for assignment to Scheduled Tribe Community, and that no application made by the petitioners under the 1993 Rules was pending. Thereafter, the WP(C) No.16458/2009 -4- petitioners filed Ext.P16 appeal before the 2nd respondent and approached this Court by filing WP(C) No.20823/2008 complaining of delay in the disposal of Ext.P16 appeal, and that in the meanwhile their possession is being disturbed. That writ petition was disposed of by judgment dated 21/07/2008 directing the 2nd respondent to consider and dispose of the appeal and to maintain status quo in the meanwhile. 7. Accordingly, the appeal was considered and by Ext.P17 order rendered on 30/09/2008, the 2nd respondent rejected the appeal confirming Ext.P15. It is stated that thereafter the District Collector issued order dated 24/10/2008 and on that basis, the Village Officer issued Ext.P18 notice dated 24/10/2008 and resumed possession of the land from the petitioners, evicting them from the residential premises where they have been living for years. Although, that was challenged in WP(C) No.31746/2008, that writ petition was dismissed as withdrawn, and thereafter this writ petition was filed with the prayers mentioned above. 8. The main claim raised by the petitioners is for the benefit of the 1993 Rules. According to the petitioners, they and their predecessor were in possession of the land in question since 1973, and therefore, are eligible for the benefit of regularisation of WP(C) No.16458/2009 -5- occupation and assignment as provided under the 1993 Rules. It is stated that Ext.P15 order passed on the basis that Exts.P7 to P10 applications were not pending, is erroneous, in as much as Exts.P7 to P10 dated 15/07/1993 were delivered to the 4th respondent, as is seen from Exts.P11 & P12. It is also their case that it was producing Exts.P7 to P10 that O.P.No.11617/2003 was filed and that in Ext.P14 judgment, the direction was to consider the aforesaid applications. On this basis, the learned counsel submits that the impugned orders are liable to be set aside. 9. The 3rd respondent has filed a counter affidavit. The main contention raised by the 3rd respondent is that the attempt of the petitioners, as reflected in this writ petition, is to mislead this Court. The relevant averments made in the counter affidavit are in paragraph 3, which reads as under:- “3. It is brought to the notice of the this Hon'ble Court, the petitioner herein prior to the filing of WP(C) No.31746/2008 filed O.P.No.11617/2003 in which it was prayed for to dispose of Exhibit P7 to P10 produced therein as expeditiously as possible. This Hon'ble Court by judgment dated 20/10/2006 directed to dispose of Exhibit P7 to P10 in accordance with law with notice to the petitioners. Exhibit P7 to P10 produced in the said Writ Petition were dated 12/07/1996 and were alleged to be preferred under the Kerala Land Assignment Rules, 1964. In pursuance to the judgment dated 20/10/2006 in WP(C) No.11617/2003, the District Collector by order dated 06/05/2008 rejected the claim of WP(C) No.16458/2009 -6- the petitioners by Exhibit P15 in the present Writ Petition. On perusal of Exhibit P15 it is seen the Tahsildar after detailed enquiry had reported that Exhibit P7 to P10 Assignment applications were not submitted before the authorities and the same have not been entered into the No.1 Account Register. The Tahsildar's report further revealed that there is no application pending before him for assignment of land to the petitioners. Exhibit P15 was challenged before the Land Revenue Commissioner and Land Revenue Commissioner affirmed Exhibit P15 by Exhibit P17 order. The present Exhibit P15 and P17 were challenged in WP(C) No.31746 of 2008. In the said Writ Petition also there was a prayer for disposal of Exhibit P7 to P10 afresh. Exhibit P7 to P10 in the said Writ Petition was also alleged to be under the Kerala Land Assignment Rules, 1964 and dated 12/07/1996. Surprisingly now in the present Writ Petition the petitioners have prayed for disposal of Exhibit P7 to P10 series which were filed as early as in 15/07/1993 and that under the Kerala Land Assignment (Regularisation of Occupation of Forest Lands prior to 01/01/1977) Special Rules, 1993. Hence the applications mentioned by the petitioner in O.P.11617/2003 and WP(C) No.31746/2008 are different from the applications mentioned in the present Writ Petition. The Tahsildar, the District Collector and the Land Revenue Commissioner have verified the pendency of the applications mentioned in the earlier two Writ Petitions and found that no such applications were submitted by the petitioners. Now the veracity of the present application have to be examined.” 10. A reading of the aforesaid paragraph of the counter affidavit thus show that as against the claim of the petitioners that Exts.P7 to P10 in this writ petition allegedly made by them under the 1993 Rules were directed to be considered in Ext.P14 judgment WP(C) No.16458/2009 -7- in O.P.No.11617/2003, the case set up in the counter affidavit is that the direction in Ext.P14 judgment, was to consider the applications mentioned in O.P.No.11617/2003, and that those applications were dated 12/07/1996, and were made by the petitioners under the Kerala Land Assignment Rules, 1964. It is stated it was these applications made under 1964 Rules, which were dealt with in Ext.P15 order of the District Collector, which has been confirmed in Ext.P17 order dated 30/09/2008 passed by the Land Revenue Commissioner. According to the respondents, neither were they directed to consider, nor did they in fact consider any application made by the petitioners, under the 1993 Rules. 11. There is no reply affidavit filed in this writ petition. Even otherwise, there is no material to doubt the genuineness of the aforesaid averments made in paragraph 3 of the counter affidavit. If so, necessary inference is that facts have not been correctly pleaded in this writ petition. 12. The learned Government Pleader, further contends that the case presently set up by the petitioners for the benefit of the 1993 Rules is deliberately done. According to the learned Government Pleader, going by the 1964 Rules, unless one is in occupation of the land prior to 1971, assignment cannot be WP(C) No.16458/2009 -8- claimed, and admittedly, even going by the pleadings in the writ petition, the claim of the petitioners is that they and their predecessor are in occupation of the land only since 1973. It is contended that it is because of the ineligibility of the petitioners for the benefit of 1964 Rules for the aforesaid reason, that they are now shifting their case and pleading for the benefit of the 1993 Rules. 13. It is also stated that even under 1993 Rules, only lands which are found on joint survey to be assignable and included in the list of assignable lands can be assigned, provided applications have been made in the manner as provided in Rule 6(2) thereof. It is stated that there is no pleading in the writ petition that any such application has been made in the manner as provided in the Rules. Yet another case that is argued by the learned Government Pleader is that the land in question is Revenue land reserved for assignment for Scheduled Tribes and is not available for assignment, which, of course, is sought to be contradicted by the learned counsel for the petitioners referring to Ext.P19. 14. In this writ petition all that this Court needs to consider is the validity of Exts.P15 & P17 orders. As already stated, going by the uncontroverted averments in the counter affidavit, the applications, which were directed to be considered in Ext.P14 WP(C) No.16458/2009 -9- judgment and dealt with in Exts.P15 and P17 orders, are those made under the 1964 Rules and not 1993 Rules, as claimed by the petitioners. In such a situation, there is no question of this Court examining the validity of these orders, in the light of Exts.P7 to P10 herein which are made under the 1993 Rules or the provisions contained in the 1993 Rules itself. Further, nowhere in the writ petition, have the petitioners a case that any application was made by them under the 1964 Rules or that Ext.P15 or P17 orders are against those Rules. In the absence of such a case, there is no question of examining the validity of these orders in the context of the 1964 Rules as well. 15. Such being the case, I cannot find fault with the respondents for having stated that no application made under the 1993 Rules was pending, especially when the petitioners themselves did not urge such a case in O.P.No.11617/2003, resulting in Ext.P14 judgment. In view of the fact that the petitioners did not have a consistent case, I am not inclined to grant any relief in this writ petition. Therefore, the claim raised in this writ petition will stand dismissed. 16. Be that as it may, if the petitioners have made any valid and proper application under the 1993 Rules, it will be open to the WP(C) No.16458/2009 -10- petitioners to pursue such applications independently. 17. At this stage, the learned counsel for the petitioners submitted that they have been evicted illegally from the lands, which have been in their possession since 1973. According to the learned counsel, in a Full Bench judgment of this Court in Nature Lovers Movement v. State of Kerala and Others (ILR 2000 (Vol.1) Kerala 677), in paragraph 103(L), this Court has directed that the land in excess of four acres in the possession of occupants alone shall be resumed. Relying on this paragraph, it is argued that eviction was illegal and the petitioners are entitled to be put in possession of the land and buildings. However, a reading of paragraphs 73 & 74 of the aforesaid judgment shows that the direction to permit continued occupation up to four acres of land, can be claimed only by those who have been included in the list prepared following the joint verification that has been conducted by the Forest and Revenue Officials in various districts including Idukki District. In this case, nothing has been placed on record to indicate that the petitioners' names have been included in the list prepared following the joint verification. Therefore, on the materials available, I am not prepared to hold that the petitioners are entitled to the benefit of the aforesaid direction contained in the Full Bench WP(C) No.16458/2009 -11- Judgment. 18. The learned counsel for the petitioners further complains that even if the petitioners are eligible for the benefit of the 1993 Rules, unless they are in continued occupation, they can not be given assignment of land. If as stated by the petitioners, they were in occupation of the lands since 01/01/1973 and are eligible for regularisation of occupation and assignment of the land in question in terms of the provisions contained in the 1993 Rules, the fact that they were evicted from the lands during the pendency of their applications, cannot deprive them of their legal entitlements. Therefore, it is clarified that if the petitioners have made any valid and proper application under the 1993 Rules, that will be considered in the light of the provisions contained in the Rules and if found eligible, the benefits under the Rules will be extended to them, ignoring the fact that the petitioners have been evicted from their lands following the District Collector's order dated 24/10/2008 and Ext.P18 notice issued by the Village Officer. The writ petition is disposed of with the above observations. (ANTONY DOMINIC, JUDGE) jg