IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 OP.No. 7683 of 2001(M) ---------------------- PETITIONER: --------------- V.N.RADHAKRISHNAN, S/O.DEVAKI NETHIAR, NELLIKKAL EDOM, VENDAZHI, PALAKKAD. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN(SR.) SRI.T.SETHUMADHAVAN RESPONDENTS: -------------------- 1. DIVISIONAL FOREST OFFICER, NEMMARA. 2. STATE OF KERALA – REPRESENTED BY THE SECRETARY TO GOVT., FOREST WILD LIFE (E) DEPT., THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI M.R.SABU FOR R1 & R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.12525/2001 IN OP.NO.7683/2001 ---------- DISMISSED 19/1/2009 Sd/- HARUN-UL-RASHID, JUDGE APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE JUDGMENT IN MFA NO.374/86 DTD. 31/1/97 OF THIS COURT. EXT.P2 TRUE COPY OF THE JUDGMENT IN OP.6466/98 DT D. 10/6/98 OF THIS COURT. EXT.P3 TRUE COPY OF THE ORDCER DTD.28/12/98 OF THE 2ND RESPONDENT. EXT.P4 TRUE COPY OF THE NOTIFICATION ISSUED UNDER SECTION 5 OF THE KERALA PRESERVATION OF TREES ACT 1986 AND APPENDED WITH EXT.P3. EXTP5 TRUE COPY OF THE CERTIFICATE ISSUED BY THE IST RESPONDENT DTD. 14/1/99. EXT.P6 TRUE COPY OF THE ROUGH SKETCH REGARDING THE AREA RESTORED TO THE PETITINER AND BALANCE AREA TO BE RETORED BY THE IST RESPONDENT. EXTP7 TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE IST RESPONDENT DATE 10/12/2000. EXT.P8 TRUE COPY OF THE COMMUNICATION DTD. 26/12/2000 ISSUED BY THE IST RESPONDENT. RESPONDENTS' EXTS: EXT.R1A PHOTOCOPY OF THE LETTER NO.198/98 DTD. 14/4/2000 OF THE SUPERINTENDENT OF SURVEY, FOREST MINI SURVEY, KOZHIKODE. HARUN-UL-RASHID,J. --------------------------- O.P.NO.7683 OF 2001 ---------------------------- DATED THIS THE 9TH DAY OF JANUARY,2009 JUDGMENT This writ petition is filed by the Power of Attorney holder for and on behalf of the applicants in O.A.Nos.331/76, 333/76, 334/76 and 336/76 on the file of the Forest Tribunal, Palakkad. The total extent of property involved in the said O.As. is 69.57 acres in Sy. Nos. 336, 365/1 part and 296 of Vandazhi Village. By the common order dated 31/7/1986 the Forest Tribunal held that the applicants in O.A.Nos.331/76 and 334/76 are entitled to restoration of 7.50 acres of land each and the applicants in O.A.Nos.333/76 and 336/76 are entitled to 16 and 18 acres of land respectively. The claim of the applicants had been upheld by the Forest Tribunal under Section 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. Ext.P1 is the judgment in M.F.A.No.374/87. The appeal was filed by the State and the Custodian and Conservator of Forests. This Court -2- O.P.No.7683/2001 confirmed the orders passed by the Forest Tribunal and dismissed the appeal. The Special Leave petition filed before the Apex Court also ended in dismissal. 2. In spite of the judgment of the Forest Tribunal as confirmed by this Court in Ext.P1 judgment, the respondents did not take any follow up action. Therefore, the petitioner filed O.P.No.6466/98 seeking restoration of the land directed to be re- conveyed by the Forest Tribunal, which was confirmed by this Court. This Court by judgment dated 10/6/1998 disposed of the said original petition with a direction to restore the land as directed by the Forest Tribunal within six months from the date of the judgment. Ext.P2 is the said judgment. Pursuant to Ext.P2 judgment, the Principal Secretary to the Government issued directions to the Chief Conservator of Forests (Protection) to restore possession of 19.836 hectares of land equivalent to 49 acres exempted under orders in the O.As. of the Forest Tribunal, Palakkad. There was also a direction to restore the property after proper survey, verification and demarcation as required under the -3- O.P.No.7683/2001 Kerala Private Forests (Vesting and Assighment) Act, 1971 and the rules made thereunder and after notifying the area under Section 5 of the Kerala Preservation of Tree Act, 1986. Pursuant thereto, the Divisional Forest Officer, Nemmara issued a certificate certifying that an extent of 17.48 hectares involved in the four O.As. has been restored to its ex-owners on 14/1/1999 as per the judgment of Forest Tribunal, Palakkad and as per the Government Order referred to therein. It is also certified that the above areas have been excluded from the vested forests of Nemmara Division. 3. It is the case of the petitioner that the extent of property ordered to be re-conveyed is 19.836 hectares and that as per Ext.P6, only l7.48 hectares were restored and the balance extent is 2.356 hectares, which the Government is bound to re- convey as per the orders stated above. According to the petitioner, he is legally entitled to get back the balance extent of 2.356 hectares, which is liable to be restored by the respondents as ordered in the four O.As. The petitioner further submitted that -4- O.P.No.7683/2001 by Ext.P8 his request for re-conveying the balance extent is rejected by the Divisional Forest Officer. I have perused Ext.P8 communication of the Divisional Forest Officer. It is stated therein that on survey of the schedule area in Sy.no.365, 366 & 296 of Vandazhy Village involved in the above O.As., it is found that only 17.48 hectares have been vested in the Government. The total extent vested in the Government being only 17.48 hectares the said area was restored to the applicants on 14/1/1999. It is also stated in Ext.P8 that the above area being an ecologically fragile land, the right, title or interest of the petitioner over the area stands vested in the Government as on 2/6/2000 by virtue of Section 3(1) of the Ordinance 6/2000, now 8/2000. Ext.P8 also pointed out that the area is notified as Item No.153 of the Notification No. C4-21437 dated 20/10/2000 of the Principal Chief Conservator and Custodian, Thiruvananthapuram. 4. Petitioner has approached this Court for a direction to the 1st respondent to restore the balance extent of -5- O.P.No.7683/2001 2.356 hectares of land to him. The further relief sought for is to quash Ext.P8. In paragraph 5 of the affidavit filed by the Divisional forest Officer, Nammara in support of I.A.No.15019/2008 it is stated that 'detailed survey and re- fixation of Assistant Director of Survey, Forest Mini Survey, Trivandrum had found that only 17.48 hectares exist in respect of OA scheduled property and this extent was only restored to the petitioner.' In paragraph 6 it is stated that the property is 1.1800 hectares in Sy.No.366/pt in Vandazhi Village as against 3.036 hectares ordered to be restored. Similarly only 2.5400 hectares of land is exist in Sy.365/pt in the same Village as against 3.036 hectares ordered to be restored. In paragraph 7 it is stated that Sy.No.296/pt in the same Village is only the survey number in which OA. schedule property and vested forest co-exist, wherein there is no variation in the extent claimed in OA (OA 333/76 & OA 334/76) and extent available in the field. In the same paragraph it is also stated that moreover, Sy.No.297 is no way connected with OA schedule property which property is vested -6- O.P.No.7683/2001 forest. Therefore, it is submitted in the affidavit that it is evident that the claim of the respondent (petitioner herein) for 2.530 hectares is no way connected with OA schedule property. The extent of 2.530 hectares is vested forest existing in two bits in Sy.No.296/pt and Sy.No.297/pt in Vandazhi Village which is entirely separated bits from OA schedule property. It is stated in the same paragraph that the respondent ( petitioner herein) is not legally entitled to get back the portion of vested forest 2.356 hectares. A rough sketch showing the survey number of the land, which is ordered to be restored is also produced as Annexure-R1 (a) along with the affidavit. 5. I have examined the rival contentions of the parties. Ext.P8 order was passed by the Divisional Forest Officer. The impact of the judgment of the Forest Tribunal and this Court, the measurement and demarcation of the property and the exact extent found in the survey are all matters to be examined in detail with the assistance of the survey records and documents. The Divisional Forest Officer did not go into all the details in Ext.P8 -7- O.P.No.7683/2001 communication dated on 26/12/2000. 6. In view of the orders passed by the Tribunal and the judgment of this Court, the petitioner has every right to get back the balance extent ordered to be restored. At the same time, if such an extent is not existing in the field, I cannot direct the Government to restore the said extent to the petitioner. It is a matter to be examined by the Government. Therefore, I direct the 2nd respondent to consider the issue involved and take a decision thereon, after hearing both sides and after affording an opportunity to them to produce documents, if any. A final order shall be passed in the matter within a period of six months from today. Original Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.