IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 22920 of 2007(C) --------------------------------------- PETITIONER: ------------------- N. RAJAGOPAL, S/O. P.NARAYANAN NAIR, BABU VIHAR, KOWDIAR, THIRUVANANTHAPURAM. BY ADV. MR.G.S.REGHUNATH. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT (REVENUE), SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, COLLECTORATE, CALICUT. 3. THE TAHSILDAR, VADAKARA, KOZHIKODE DISTRICT. 4. THE VILLAGE OFFICER, KOVILAMPARA VILLAGE, VADAKARA, KOZHIKODE DISTRICT. R1 TO R4 BY SR.GOVERNMENT PLEADER MR. M.R. SABU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.22920/2007-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE TAX RECEIPT IN THE NAME OF PETITIONER'S FATHER. EXT.P.2: COPY OF THE PLAN SHOWING THE AFORESAID 80 ACRES ALLOWED TO BE OWNED AND POSSESSED BY PETITIONER'S FATHER. EXT.P.3: COPY OF THE JUDGMENT IN W.A. 12299/99 DTD. 02/12/1999 OF THIS HONOURABLE COURT. EXT.P.4: COPY OF THE REPRESENTATION TO THE DISTRICT COLLECTOR, CALICUT TO DIRECT THE R.4. EXT.P.5: COPY OF THE PETITON DTD. 20/10/2004. EXT.P.6: COPY OF THE JUDGMENT IN W.P.(C).1298/2006 DTD. 21/03/2007 OF THIS HONOURABLE COURT. EXT.P.7: COPY OF THE ORDER DTD. 15/06/2007. EXT.P.8: COPY OF THE JUDGMENT IN MFA 24/1980 OF THIS HONOURABLE COURT. RESPONDENTS' EXHIBIT: EXT.R3.A: COPY OF THE GOVT. ORDER DTD. 31/10/2000. //TRUE COPY// P.A. TO JUDGE. Prv. V.K.MOHANAN, J. --------------------------------------------- W.P(C)No. 22920 of 2007 --------------------------------------------- Dated this the 14th day of August, 2009 J U D G M E N T Originally, the petitioner approached this Court challenging Ext.P7 order dated 20.6.2007 issued by the District Collector after considering his application i.e., Ext.P4, in the light of the direction issued by this Court vide Ext.P6 judgment dated 21.3.2007. While the matter is pending and during the course of hearing of the above writ petition, the respondents have produced Ext.R3(a) notification issued in the Gazette dated 31.10.2000. The above notification was produced by the Forest Department along with a statement dated 10.9.2007. So far, no counter affidavit is seen filed. 2. On filing the above statement and producing Ext.R3(a) notification, the petitioner, WP(C) NO.22920 of 2007 :-2-: by amending the writ petition, challenged the said notification also. Thus, in the amended writ petition, it is prayed to quash Ext.P7 and also Ext.R3 (a) so far as it relates to any claim with regard to the property of the petitioner as detailed in Ext.P2. It is also prayed to issue a writ of mandamus or order declaring that the alleged declaration, if any, passed as stated in Ext.P7 order under the Kerala Forest Vesting and Management of Ecological Fragile Lands Ordinance (I) C4-21437/2000 PCCF Tvm. dated 4.10.2000 and order (2) dated 31.10.2000 published in the Kerala Gazette are and not binding on the petitioner with respect to the property mentioned in Ext.P2 and that the petitioner is entitled to transfer of the registry regarding the property in his name. It is also sought for a declaration that Ext.R3(a) is illegal, arbitrary , void and not relating to the property of the petitioner WP(C) NO.22920 of 2007 :-3-: detailed in Ext.P2 and not binding on the petitioner and his properties as detailed in Ext.P2. It is also prayed for a direction to effect Transfer of Registry regarding the property in Ext.P2 in the name of the petitioner. 3. The specific case of the petitioner is that the petitioner acquired the ownership of 80 Ares of rubber plantation lying in Sy.No.276/1 and 276/2 of Kavilampara village, Vadakara Taluk, Kozhikode District as per partition deed dated 19.2.1996. It is also pointed out that though the father of the petitioner approached the Forest Tribunal, Kozhikode by filing O.A.No.101/1977 for a declaration that 350 Acres of land including the 80 Acres of land, will not come within the purview of Act 26 of 1971, the same was dismissed by the Tribunal. But, by judgment dated 10.10.1980, in MFA 24/1980, a Division Bench of this Court as per WP(C) NO.22920 of 2007 :-4-: Ext.P8 judgment declared that the said 80 acres of land will not be vested with the Government and the same will be excluded and only the rest of the land involved in the case will be taken as vested with the State under the Act as on 10.5.1971. In the above judgment, it was also held that the above extent of 80 acres has to be demarcated and the appellant is to be given possession of the same. The petitioner also relied upon the judgment of this Court in O.P.No.4264 of 1999 and also W.A.No.2299/1999 in support of the claim. At the time of filing the writ petition, the grievance of the petitioner is that though this Court, by Ext.P6, directed the District Collector to dispose of Exts.P4 and P5, an order namely, Ext.P7 was issued without considering the relevant material aspects in terms of Rules 2 and 3 of Transfer of Registry Rules, 1966 (for short 'the Rules'). WP(C) NO.22920 of 2007 :-5-: 4. I have gone through Ext.P7. Admittedly, Exts.P4 and P5 are preferred by the petitioner under the provisions of the Rules, but in Ext.P7, no reason is stated to reject his application after considering the relevant input in terms of the above rules. But, in Ext.P7, the reason stated is that the Tahsildar has reported that the property covered by the application of the petitioner has already been recovered and declared as forest land in the light of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, (1)C4- 21437/2000 P.C.C.F., Thiruvananthapurm dated 4.10.2000 and Kerala Gazette dated 31.10.2000. 5. It was under the above circumstances, the petitioner sought amendment of the writ petition and challenged Ext.R3(a) notification as well. Learned counsel took me through the various provisions contained in the above Act and pointed WP(C) NO.22920 of 2007 :-6-: out the failure on the part of the Government in complying with the procedure contemplated therein. He has also advanced the argument challenging the legality and the vires of the notification. It is further pointed out by the learned counsel that Ext.R3(a) notification does not cover the property of the petitioner since the exact sub-division, survey number, the location of the property are not given in the notification. It is also pointed out that no material is shown as to how the property vested with the Government. Thus, according to the learned counsel, the notification itself is defective and at no stretch of imagination, it can be concluded that the petitioner's property is covered by Ext.R3(a) notification. It is also pointed out that the property is not identified by the Expert committee and no notice was issued to the petitioner, in spite of the fact that the possession of WP(C) NO.22920 of 2007 :-7-: the petitioner on the property was approved by this Court by the judgment referred above. As such, the petitioner challenged the legality and vires of Ext.R3 (a) notification. 6. Rule 2 of the Transfer of Registry Rules, 1966 (for short 'the Rules') says that transfer of revenue registry takes place either by voluntary action of the owners, by virtue of decree of civil courts or by revenue sales or by succession. Rule 3 (a) of the Rules deals with voluntary transfer of title. Therefore, the petitioner approached the Tahsildar, who is the competent authority to get transfer of title under Rule 3(a). Procedures are prescribed under Rule 3. If the requirements stated in Rule 3 are fulfilled, the petitioner is entitled to get transfer of the revenue registry. No reason is stated by the District Collector in Ext.P7 order, as to why the said request was rejected and whether it WP(C) NO.22920 of 2007 :-8-: was due to any failure in compliance of the procedure contemplated therein. On the other hand, as indicated earlier, the request was rejected due to some extraneous reason when considering the Transfer of Registry Rules, 1966. 7. It is also contended by the learned counsel for the petitioner that as I indicated earlier, the property is not covered by Ext.R3(a) notification due to various reasons. But, it appears that the procedural and factual defects, which are highlighted by counsel for the petitioner with respect to Ext.R3(a), are not brought to the notice of the District Collector by the Tahsildar. Had it been brought to their notice, it is for them to enter into a finding on these aspects. 8. In the light of the above facts and circumstances, I am of the view that the Tahsildar, who is the third respondent herein, and also the WP(C) NO.22920 of 2007 :-9-: competent authority under the Transfer of Registry Rules, 1966, can be directed to reconsider Exts.P4 and P5 in the light of the above rules and the statutory requirement indicated above. It is also for the third respondent to consider the contention of the petitioner with respect to the correctness of Ext.R3(a), particularly with respect to the property of the petitioner. 9. In the light of the above discussion, this writ petition is disposed of directing the third respondent to reconsider Exts.P4 and P5 as indicated above, after giving notice to the petitioner to ensure effective opportunity of being heard. The notice shall be given to the petitioner within one month from the date of receipt of a copy of this judgment, which will be produced by the petitioner and enquiry shall be concluded as expeditiously as possible, at any rate, within three months from the WP(C) NO.22920 of 2007 :-10-: date of issuance of notice by the Tahsildar as indicated above. Without expressing any opinion on merit about Ext.P7, the same is quashed, so as to enable the third respondent to pass fresh orders as indicated above. 10. The contentions raised by the petitioner against Ext.R3(a) Notification including its correctness and legality are left open as I am not proposed to enter into any finding on that aspect, especially the matter is relegated to the third respondent. The petitioner is at liberty to approach this Court challenging Ext.R3(a), as and when required. The writ petition is disposed of as above. V.K.Mohanan, MBS/ Judge. WP(C) NO.22920 of 2007 :-11-: V.K.MOHANAN, J. ----------------------------------------- --- WP(C) NO.22920 of 2007 :-12-: Crl.R.P.NO. OF 200 -------------------------------------- ------ J U D G M E N T DATED: -2-2008 WP(C) NO.22920 of 2007 :-13-: