IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 WP(C).No. 23422 of 2010(C) ---------------------------------------- PETITIONER(S): ------------------------ 1. ABDULLA, S/O.AIMU, PATTARIKADAVU, PANAKKADAM DESOM, ERNAD TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, KUNHI MOHAMMED, S/O.VELLANKARA SAITHALAVI, KOODARANJI AMSOM DESOM, KOZHIKODE. 2. THIYAI MARAKKARAKATH TAZLEEM FATHIMA, W/O.ABDULLA, PATTARIKADAVU, PANAKKADAM DESOM, ERNAD TALUK,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, KUNHI MOHAMMED, S/O.VELLANKARA SAITHALAVI, KOODARANJI AMSOM DESOM, KOZHIKODE. 3. THIYAI MARAKKARAKATH FAHADBIN ABDULLA, S/O.ABDULLA,PATTARIKADAVU, PANAKKADAM DESOM, ERNAD TALUK,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, KUNHI MOHAMMED, S/O.VELLANKARA SAITHALAVI, KOODARANJI AMSOM DESOM, KOZHIKODE. 4. THIYAI MARAKKARAKATH FAYIZBIN ABDULLA, S/O.ABDULLA, PATTARIKADAVU, PANAKKADAM DESOM, ERNAD TALUK,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, KUNHI MOHAMMED, S/O.VELLANKARA SAITHALAVI, KOODARANJI AMSOM DESOM, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN, SMT.RESMI NANDANAN. RESPONDENT(S): -------------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. WP(C).No. 23422 of 2010(C) 2. CUSTODIAN (ECOLOGICALLY FRAGILE LANDS) & CHIEF CONSERVATOR OF FOREST, BIO DIVERSITY CELL, THIRUVANANTHAPURAM. 3. THE DIVISIONAL FOREST OFFICER, KOZHIKODE, CIVIL STATION, KOZHIKODE. 4. THE FOREST RANGE OFFICER, THAMARASSERY, KOZHIKODE. R1 TO R4 BY SR.GOVT. PLEADER MR.BENNY VARGHESE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.23422 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2010 J U D G M E N T Properties belonging to the petitioners were sought to be vested with the Government under the Kerala Private Forests (Vesting and Assignment) Act, 1971. The predecessor-in-interest of the petitioners filed O.A. No.138/1977 before the Forest Tribunal, Kozhikode, against the notification declaring vesting of the land in the Government. The Forest Tribunal exempted the land from the purview of the Act, under Section 3 (3) of the Act. Subsequently the petitioners purchased the properties and petitioners are in possession and enjoyment of the same. Their grievance in this writ petition now is that, the forest authorities are interfering with the possession and enjoyment of the land by the petitioners. According to them, the respondents have no manner of right to interfere with the possession and enjoyment of the property by the petitioner. They assert that, the land has not been notified under the Kerala Forest (Vesting and Management of W.P.(C)No.23422 of 2010 -2- Ecologically Fragile Lands) Act. Therefore that Act has also no application to the petitioners' property is their contention. Despite the same the respondents are interfering with the possession and enjoyment of the petitioners is their grievance in this writ petition. Therefore they seek the following reliefs: “i) Issue a writ of certiorari or any other appropriate writ, order declaring that the land held by the petitioners forming part of Ext.P1 decision of the Forest tribunal is not liable to vest or to be taken under the EFL Act. ii) Issue a writ of mandamus or any other appropriate writ, order or direction against the respondents not to include or notify the property of the petitioners under the EFL Act and/or consider Ext.P21, P22, P23 and P24 submitted by the petitioners and exempt the property if already taken as Ecologically Fragile Land. iii. Issue a writ of mandamus or any other appropriate writ or direction to the respondents not to obstruct or interfere in any manner with the peaceful possession, cultivation and enjoyment of petitioners' property covered by Ext.P4, P8, P12 and P16 under the guise of application of EFL Act or otherwise.” 2. I directed the learned Government Pleader to obtain instructions in the matter. The learned Government Pleader on instructions submits that, although a proposal for notifying the lands under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 is W.P.(C)No.23422 of 2010 -3- under consideration of the Government, so far no decision has been taken on the same. If that be so, the respondents cannot, as of now, interfere with the possession and enjoyment of the property by the petitioners. Accordingly there would be a direction to the respondents not to obstruct or interfere in any manner with the peaceful possession, cultivation and enjoyment of the petitioners in respect of properties covered by Exts.P4, P8, P12 & P16. Needless to say, this will not stand in the way of the Government taking action under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, if they are of opinion that the land qualifies as an ecologically fragile land, subject, of course, to the right of the petitioners to challenge such notification if and when issued. The writ petition is disposed of as above. S. SIRI JAGAN JUDGE shg/