IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 28TH OCTOBER 2008 / \TH KARTHIKA 1930 WA.No.2124 of 2008 ------------------------------ (AGAINST THE JUDGMENT IN W.P.(C).No.25516/2008 Dated 16/9/2008) APPELLANTS/ PETITIONERS: ----------------------------------------- 1. K.J.USHA, KANIATTIL HOUSE, CHIRAYIL, BATHERI, WAYANAD DIST. 2. K.J.BEENA, KADUNGAMALAYIL HOUSE, THAYAMPALLI, MANANTHAVADY. 3. K.J.SHAN, KURITHIKKULAM HOUSE, PERIYA VILLAGE, VARAYAL DESOM, P.O.VARAYAL , VIA THALAPUZHA, DISTRICT WAYANAD. BY ADV.SRI.M.C.SEN (SENIOR) SMT.VIDHYA. A.C RESPONDENTS/ RESPONDENTS: ----------------------------------------------- 1. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF KERALA, DEPARTMENT OF FOREST AND WILD LIFE, SECRETARIATE, THIRUVANANTHAPURAM. 2. THE CHIEF CONSERVATOR OF FOREST (WILD LIFE), THIRUVANANTHAPURAM. 3. THE DEPUTY CONSERVATOR OF FOREST, WAYANAD WILD LIFE SANCTUARY, SULTHAN BATHERY, WAYANAD DISTRICT. 4. THE DIVISIONAL FOREST OFFICER, KANNUR. WA.No.2124 of 2008 -2- 5. THE DIVISIONAL FOREST OFFICER, WAYANAD, MANANTHAVADY. 6. THE DISTRICT COLLECTOR, KANNUR. 7. THE RANGE OFFICER, PERIYA. BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ----------------------------------------------------- W.A.No.2124 of 2008 ---------------------------------------------- Dated, this the 28th day of October, 2008 JUDGMENT A.K.Basheer, J. Appellants claim that they are in actual possession and ownership of 2 acres of land in R.S.No.1/1A 1A of Periya Village in Wayanad District. It is further contended by them that appellant No.3 is in fact residing in the residential building in the said property, the right of possession and ownership of which had been concluded by the earlier proceedings before the Land Tribunal, Mananthavady and this Court in C.R.P.No.135/1990. 2. The specific case of the appellants is that in C.R.P.No.135/1990, the Advocate Commissioners appointed by this Court had measured the property with the help of a retired District Surveyor and conducted detailed enquiry into their claim and submitted a plan and report. The Taluk Land Board, based on the findings of the commission report and the Authorised Officer's remarks, had exempted the said property from the excess land to be surrendered by the land holder/declarant in the ceiling case. 3. It appears that, the appellants had earlier filed W.P.(C) No.5991/2004 before this Court with a prayer to issue a writ in the nature W.A.No.2124/2008 -2- of mandamus directing the respondents “ to acquire their property situated in R.S.No.1A 1A of Periya Village in Wayanad District before any further acquisition is made for the Kottiyoor Elephant Corridor Project.” The above writ petition was disposed of by this Court by judgment dated August 1, 2007 directing the Government to take an appropriate decision in the matter with notice to the petitioners. 4. Pursuant to the above direction, the Government passed Ext.P13 order on July 26, 2008 , which was impugned by the appellants in the present writ petition. There was a further prayer “to prohibit the respondents from interfering with the rights of the petitioners over their properties in R.S.No.1/1A 1A of Periya Village in Wayanad District and exempted from ceiling case TLB/1083/73 as per P3 order of Taluk Land Board.” 5. When the writ petition came up for consideration before the learned Single Judge, it was noticed that the forest officials had taken up a specific plea that the land in question over which the appellants claim possession and ownership was covered under Notification VFC No.4713/77-B dated 8.7.1977. The claim of the appellants was opposed by the Forest Department allegedly relying on the Survey conducted by the Divisional Surveyor. The Government had accepted the above W.A.No.2124/2008 -3- contention raised by the Forest Department and rejected the prayer made by the appellants. In short, the stand of the Government is that the property in question is part of a notified forest and therefore appellants have absolutely no manner of right over the same. 6. While dealing with the above aspect of the matter, the learned Judge noticed that, on the face of the dispute raised by the Forest Department and the Government with regard to the status of the land involved in the case, it would be appropriate that the appellants approach the competent Forest Tribunal to establish their rights under Section 3 of the Kerala Private Forests (Vesting and Assignment) Act, 1971. Thus, the learned Judge had directed the appellants to pursue the remedy available to them under the Act. 7. Learned senior counsel appearing for the appellants would vehemently contend that the stand now taken by the Forest Department is contrary to the orders passed in the earlier proceedings which clearly established the right of possession and ownership of the appellants. It is also contended by the learned senior counsel that the finding entered by the Government in Ext.P13 is a bolt from the blue since such a contention was not raised either by the Forest Department or by the Government in the earlier proceedings. W.A.No.2124/2008 -4- 8. In our view, the dispute which is now raised with regard to the eligibility of the appellants to claim possession and ownership over the property has to be resolved before the Statutory Tribunal as directed by the learned Single Judge. We do not find any illegality or irregularity in the order passed by the learned Single Judge. However, we make it clear that, the Tribunal, while dealing with the issue shall not be influenced by the observations made by the Government in Ext.P13 order. The interim relief granted by the learned Single Judge for six months is not disturbed by us. The Writ Appeal is disposed of as above. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS