IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WP(C).No. 4569 of 2009(R) --------------------------------------- PETITIONER(S): ------------------------- K.G.KURUVILA, POWER OF ATTORNEY HOLDER G.P.NAIR FAMILY TRUST KAYYALACKAKOM, KURAVANKONAM JN., THIRUVANANTHAPURAM 695 003. BY ADV. MR.ANTONY C. ETTUKETTIL RESPONDENT(S): --------------------------- 1. THE SUPERINTENDENT OF POLICE, PALAKKAD. 2. CIRCLE INSPECTOR OF POLICE HEMAMBIKA NAGAR, PALAKKAD. 3. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. *ADDL.R4 & R5 ARE IMPLEADED: R4. THE DISTRICT FOREST OFFICER, PALAKKAD. R5. THE FOREST RANGE OFFICER, WALAYAR, PALAKKAD. (*ADDL.R4 & R5 ARE IMPLEADED AS PER ORDER DTD. 18/02/2009 IN I.A.NO.2478/2009) BY SPL. GOVT. PLEADER(FORESTS) MR. M.P.PRAKASH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.4569/2009 R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DTD. 5/10/2006 IN MFA.NOS.75 OF 2004, 604 AND 610 OF THIS HON'BLE COURT. EXT.P2: COPY OF ORDER OF INJUNCTION IN I.A.NO.1903 OF 2000 IN O.S.NO.405 OF 2000 ON THE FILE OF THE DISTRICT JUDGE, PALAKKAD. EXT.P3: COPY OF THE INTERIM ORDER IN I.A.NO.1247 OF 2003 IN M.F.A.NO.610 OF 2003 DTD. 12/08/2005 OF THIS HON'BLE COURT. EXT.P4: COPY OF THE AFFIDAVIT FILED BY THE DIVISIONAL FOREST OFFICER, PALAKKAD, BEFORE THE DISTRICT JUDGE, PALAKKAD AS CMA NO.26 OF 1997 ON 12/11/1997 IN I.A.NO.1311 OF 1997. EXT.P5: COPY OF THE NOTICE DTD. 23/09/2008 ISSUED BY THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, PALAKKAD TO THE PETITIONER. EXT.P6: COPY OF THE LETTER DTD. 5/02/2009 SENT BY THE PETITIONER TO THE CUSTODIAN AND CONSERVATOR OF VESTED FORESTS, PALAKKAD. EXT.P7: COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE RESPONDENT ON 4/11/2008. EXT.P8: COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE DY.S.P., PALAKKAD. EXT.P9: COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR HOME AFFAIRS, THIRUVANANTHAPURAM ON 23/01/2009. EXT.P10: COPY OF THE JUDGMENT DTD. 09/01/2007 IN WP(C) NO. 525 OF 2006 OF THIS HON'BLE COURT. Kss ..2/- ...2.... WPC.NO.4569/2009 R RESPONDENT'S ANNEXURES: ANNEXURE 1: COPY OF G.O.(MS) 48/93/FORESTS DTD. 18/06/93. ANNEXURE 2: COPY OF THE LETTER DTD. 11/10/2006 OF THE KFDC. ANNEXURE 3: COPY OF ORDER DTD. 19/04/2003 IN O.A.NO.94/92 (WITHOUT APPENDIX). ANNEXURE 4: COPY OF THE JUDGMENT DTD. 27/09/1999 IN O.P.NO. 1117/98. ANNEXURE 5: COPY OF THE JUDGMENT DTD. 18/07/2001 IN O.P.NO. 21140/2001. ANNEXURE 6: COPY OF THE JUDGMENT DTD. 1/03/2007 IN WP(C) NO. 6905/2007. ANNEXURE 7: COPY OF THE JUDGMENT DTD. 2/04/2007 IN W.A.NO. 841/2007. ANNEXURE 8: COPY OF THE JUDGMENT DTD. 13/04/207 IN CMA NO. 63/2006 OF THE DISTRICT COURT, PALAKKAD. ANNEXURE 9: COPY OF THE JUDGMENT DTD. 9/10/2007 IN CRP NO. 356/2007. ANNEXURE 10: COPY OF THE ORDER DTD. 22/07/2008 IN I.A.NO.3446/2008 IN O.S.641/08 OF SUB COURT, THIRUVANANTHAPURAM. ANNEXURE 11: COPY OF THE JUDGMENT DTD. 9/12/2008 IN WP(C) NO. 36080/2008. ANNEXURE 12: COPY OF JUDGMENT DTD. 9/12/2008 IN CRP.NO.839/2008. ANNEXURE 13: COPY OF COUNTER AFFIDAVIT FILED IN COC.1636/08. ANNEXURE 14: COPY OF JUDGMENT DTD. 28/01/2009 IN COC NO.113/2009. ANNEXURE 15: COPY OF INTERIM ORDER DTD. 2/01/2009 IN WP(C) NO. 37660/2008. ANNEXURE 16: COPY OF THE COUNTER AFFIDAVIT WITHOUT EXHIBITS IN WP(C) NO.37660/2008. ANNEXURE 17: COPY OF ORDER DTD. 8/01/2009 IN WP(C)NO.37660/2008. /TRUE COPY/ Kss P.A.TO JUDGE J.B.KOSHY, Ag.C.J. & V.GIRI, J. -------------------------------------- W.P(C)No.4569 of 2009 ------------------------------------- Dated 18th February, 2009 JUDGMENT Koshy, Ag.C.J . There was a dispute between the Forest Department, petitioner and Emoor Bhagavathy Devaswom etc. regarding 1300 acres of land. Finally, the matter resulted in Ext.P1 judgment in M.F.A.No.75 of 2004 and other connected cases. In the above judgment, a Division Bench of this court very specifically held that out of the large extent of land, 67.56 hectares of land is not a private forest at all and forest officials have no say over that area, but, inter se dispute has to be decided between the parties. It was also found that the above 67.56 hectares of land were planted with rubber plants. Police protection is sought for tapping rubber in the above 67.56 hectares of land. Tapping of the existing rubber trees cannot be questioned by the forest officials. The Standing Counsel submitted that various cases were filed in various courts and one of the parties in the earlier MFA also approached this Court for police protection. That was finally dismissed. In Annexure A7 judgment, a Division Bench of this court held that a Commission should be taken to ascertain the details of the agricultural operations in the property in W.P.(C)No.4569/2009 2 question. At that time, CMA.No.63 of 2006 was pending. The Division Bench in Annexure A7 judgment held as follows: “Therefore, we are inclined to dispose of this writ appeal with a direction to the District Judge, Palakkad to dispose of C.M.A.No.63 of 2006 at the earliest with a further direction to dispose of the interim application at the earliest, at any rate on or before 13.4.2007. We make it clear that the respondent if so advised may make an application for appointment of an Advocate Commissioner to ascertain the details of the agricultural operations which he claims to have effected in the property in question and seek appropriate orders in accordance with law before the court below.” It is submitted that the earlier case was filed with regard to 1300 acres of property. Now, in view of judgment in M.F.A.No.610/2003 that is limited to 67.56 acres. Therefore, the above CMA was withdrawn. It is submitted that another suit was filed before the Sub Court, Thiruvananthapuram which was ordered to be withdrawn and to be filed in Palakkad. It is stated by the Government Pleader that an appeal is filed against the judgment in the M.F.A. Findings in the M.F.A. are binding on the department as well as on the parties so long as the M.F.A. Judgment stands and is not stayed and forest department cannot object tapping of rubber trees in the area which is not held to be a private forest area and admittedly rubber is planted W.P.(C)No.4569/2009 3 and ready for tapping. But, since the petitioner is intending to file a suit as there are inter se disputes and on the basis of Annexure A7 judgment with regard to the rubber trees and other agricultural operations existing in the above 67.56 hectares and the yield that is to be taken etc. has to be accounted pending appeal, a Commissioner's report is necessary. Therefore, it is for the petitioner to get appropriate orders from the civil court and petitioner can produce the M.F.A. Judgment (Ext.P1) before that court and in that civil case all other rival claimants also should be made as parties. The writ petition is disposed of accordingly. J.B.KOSHY ACTING CHIEF JUSTICE V.GIRI JUDGE tks