IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 WP(C).No. 11252 of 2008(M) --------------------------------- PETITIONER(S): --------------- 1. CHUNAYAMAKKAL JOSEPH, S/O.CHANDY, AGED 70 YEARS, RESIDING AT NADUVIL AMSOM AND DESOM, TALIPARAMBA TALUK, KUDYANMALA (P.O) 2. CHUNAYAMAKKAL MATHAI, S/O.CHANDY, AGED 68 YEARS, RESIDING AT NADUVIL AMSOM DESOM, TALIPARAMBA TALUK, KUDYANMALA. BY ADVS. MR.MAHESH V RAMAKRISHNAN MR.V.JOHN MANI RESPONDENT(S): --------------- 1. VILLAGE OFFICER, NEW NADUVIL VILLAGE, TALIPARAMBA TALUK, KANNUR DISTRICT. 2. TAHSILDAR, TALIPARAMBA TALUK, KANNUR DISTRICT. 3. THE DISTRICT COLLECTOR, KANNUR. 4. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 5. THE DIVISIONAL FOREST OFFICER, KANNUR. 6. THE RANGER FORESTER, KARAMARAMTHATTU (P.O) KARUVANCHAL. ADV. MR. P.M. POULOSE – SPL. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11252 of 2008 APPENDIX PETITIONERS' EXHIBITS EXT.P1: COPY OF CERTIFICATE OF PURCAHSE NO.101 OF 1979 ISSUED BY THE LAND TRIBUNAL NO.2, TALIPARAMBA. EXT.P2: COPY OF THE CERTIFICATE OF PURCHASE NO.818 OF 1975 ISSUED BY THE LAND TRIBUNAL NO.II, TALIPARAMBA. EXT.P3: COPY OF THE BASIC TAX RECEIPT DTD 8.05.1990 ISSUED BY R1 FOR THE YEAR 1990-91. EXT.P4: COPY OF THE POSSESSION CERTIFICATE DTD 4.06.1990 ISSUED BY R1. EXT.P5: COPY OF THE ORDER DTD 11.01.2008 IN I.A.NO.21 OF 2005 IN O.S. NO. OF 2005 ON THE FILE OF THE MUNSIFF COURT, TALIPARAMBA. EXT.P6; COPY OF THE ORDER DATED 22.09.2004 IN A.A.41/2002 OF THE APPELLATE AUTHORITY (LAND REFORMS,), KANNUR. EXT.P7: COPY OF THE ORDER DATED 22.09.2004 IN A.A.NO.40 OF 2002 OF THE APPELLATE AUTHORITY (LAND REFORMS), KANNUR. EXT.P8: COPY OF THE COUNTER AFFIDAVIT DTD 29.01.1990 FILED BY R8 IN O.A. NO.14 OF 1986 ON THE FILE OF THE FOREST TRIBUNAL, KOZHIKODE. EXT.P9: COPY OF THE COUNTER AFFIDAVIT DTD 29.01.1990 FILED BY R5 IN O.A.NO.13 OF 1986 ON THE FILE OF THE FOREST TRIBUNAL, KOZHIKODE. EXT.P10; COPY OF THE JOINT PETITION DTD 2.11.2007 FILED BY THE PETITIONER BEFORE R2. EXT.P11: COPY OF THE JUDGMENT DTD 2.11.2007 IN W.P.(C)NO.20099 OF 2007 OF THIS HON'BLE COURT. EXT.P12: COPY OF THE ORDER OF THE FOREST TRIBUNAL, KOZHIKODE IN O.A.55/90) EXT.P13: COPY OF ORDER OF THE COMMON JUDGMENT IN O.S.NO.2/2005 AND O.S.NO.3/2005 ON THE FILE OF THE MUNSIFF COURT, TALIPARAMBA. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------ W.P.(C) No.11252 OF 2008 ------------------------------- Dated this the 8th day of July, 2010 JUDGMENT The petitioners are two in number. They obtained certain properties by virtue of Exts.P1 and P2 certificates of purchase issued by the Taliparamba No.I and Taliparamba No.II Land Tribunals, issued under the Kerala Land Reforms Act, in recognition of their status as cultivating tenants of the said properties as defined under the said Act. Proceedings were initiated under the Kerala Private Forests (Vesting and Assignment) Act against the petitioners allegedly in respect of the above said properties. The petitioners filed O.A.Nos.14/86 and 13/86 before the Forest Tribunal, Kozhikode challenging those proceedings. There was delay in filing the same. The petitions to condone the delay in filing the same were dismissed and consequently, O.As were also dismissed. Apparently, based on the dismissal of the O.As, the forest officials approached the Land Tribunal for cancellation of Exts.P1 and P2 certificates of purchase. On the assumption that in view of dismissal of the OAs, W.P.(C)No.11252/08 2 the properties vested as private forest in the Government, the Land Tribunals cancelled the certificates of purchase. The petitioners filed Appeal Nos.41/2002 and 40/2002 before the appellate authority under the Kerala Land Reforms Act. By Exts.P6 and P7 orders, the appellate authority allowed the appeals and remanded the matter to the Land Tribunals which are pending before the Land Tribunals. In the meanwhile, there was a dispute regarding possession of the properties. The petitioners filed O.S.Nos.2 and 3 of 2005 before the Munsiff's Court, Taliparamba, seeking injunction against the forest officials on the ground that they are in possession of the properties in question. Those suits were decreed by Ext.P13 common judgment, upholding the possession of the petitioners in respect of the properties. The learned Government Pleader submits that the judgment in those suits is pending in appeals before the Sub court, Payannur as A.S.Nos.71 and 72 of 2009. 2. The petitioners' contention in this writ petition is that in the O.As before the Forest Tribunal, the Divisional Forest Officer, Special Division, Tellichery, had filed Exts.P8 and P9 counter affidavits specifically admitting that the areas occupied by the petitioners are excluded from survey of the W.P.(C)No.11252/08 3 Vested Forest and the petitioners are in possession of that excluded occupied land. It was also specifically stated therein that the areas in possession of the petitioners have been excluded from the Vested Forests Survey at the time of original survey and that being occupied area there is no need to declare that excluded occupied area as an area not vested in the Government. The petitioners would contend that in view of the specific averment in the counter affidavits filed by the Custodian of Forests, they did not pursue the O.As, in so far as it was not necessary in view of the counter affidavits stating that the particular lands in their possession were not vested forests. As a result, the petitioners continued to be the owners in possession of the properties covered by Exts.P1 and P2 certificates of purchase is their contention. In fact, for some time, the land tax was continued to be received from them for some time in respect of the properties as evidenced by Ext.P3 tax receipt. The petitioners filed this writ petition at a time when the first respondent refused to accept the basic tax of the properties from the petitioners. It is under the above circumstances, the petitioners have approached this court seeking the following relief: W.P.(C)No.11252/08 4 “(i) To issue a Writ of Mandamus or any other appropriate Writ, order or direction, directing the 2nd respondent to dispose Ext.P10 within a time frame to be fixed by this Hon'ble Court, directing the 1st respondent to accept the Basic Tax of the properties from the petitioners”. 3. A statement is filed on behalf of the fifth respondent, wherein the contention taken is that the properties are vested forests and therefore, the Land Tribunal was moved for cancellation of certificate of purchase which has subsequently been cancelled. Therefore, according to the fifth respondent, the petitioners are not entitled to pay tax in respect of the properties. 4. In the writ petition, the specific contention of the petitioners is that in view of Exts.P8 and P9 counter affidavits filed in the O.As before the Forest Tribunal, it has been specifically stated by the Custodian of Forests that the properties in possession of the petitioners have been excluded from the survey of vested forests, the properties covered by Exts.P1 and P2 certificates of purchase are belonging to the petitioners and therefore, they are entitled to pay tax in respect of the property. In the statement filed on behalf of the fifth respondent, this specific contention of the petitioners in the writ petition is not controverted. Therefore, on 1/7/2010, W.P.(C)No.11252/08 5 after hearing the writ petition for some time, I passed the following order: “This writ petition is filed alleging that the revenue authorities refused to accept basic tax in respect of the property in question from the petitioners. The contention in the statement of the fifth respondent is that the properties involved in this writ petition were declared as private forest by issuing a notification under the Private Forests (Vesting and Assignment) Act. The petitioners had filed two O.As against that notification, which were dismissed by the Forest Tribunal. Therefore, according to the 5th respondent the petitioners cannot now raise a contention that they are entitled to pay land tax in respect of the property. The learned counsel for the petitioners submits that in Exts.P8 and P9 counter affidavits filed by the Divisional Forest Officer in those O.As before the Forest Tribunal, they had categorically stated that the properties involved in the O.As which are the properties involved in this writ petition are not included in the notification, and therefore, it is not necessary to challenge the notification to declare that the area in question is not an area vested in the Government. In the statement filed in this writ petition on behalf of the 5th respondent it is further stated that pursuant to that O.As, pattas issued in favour of the petitioners were cancelled and appeals filed against the same by the petitioners are pending. In respect of that also, the learned counsel for the petitioners points out that by Exts.P6 and P7 orders, the appellate authority under the Kerala Land Reforms Act had allowed the appeals filed against the orders cancelling the patta and remanded the matter to the Land Tribunal for fresh consideration. When confronted with these contentions of the learned counsel for the petitioners, which are proved by documents on record, the learned Government Pleader seeks time to obtain clarification from the 5th respondent in respect thereof. No clarification or additional counter affidavit is filed by the 5th respondent. The learned Government Pleader again seeks time for that. The writ petition was filed in 2008. The W.P.(C)No.11252/08 6 contentions on the basis of Exts.P8 and P9 counter affidavits filed before the Forest Tribunal are not new contentions, but are contentions included in the writ petition filed as early as on 27.3.2008. Therefore, I refused to grant any further time and heard the matter finally. 5. I have considered the rival contentions in detail. It is not disputed before me by the respondents that Exts.P8 and P9 are the counter affidavits filed by the Divisional Forest Officer, Special Division, Tellichery in O.A.Nos.14/86 and 13/86 filed by the petitioners. In the same, Exts.P8 and P9 are verbatim identical. Both contained the following specific averment: “........... Since the occupied area has been excluded from survey of the vested Forest and the petitioner is in possession of this excluded occupied land even now, the department has no claim over this excluded occupied area in R.S.322/1(New survey No.). The contention of the petitioner that he is in possession of 15 acres of land is not true to the facts. As per the purchase certificate produced he is in possession of only 12 acres and this 12 acres of the land is even now under his possession. Since this area has been excluded from Vested Forest Survey at the time of original survey, being occupied area there is no need to declare this excluded occupied area as an area not vested in Government. Exactly identical sentences have been repeated in Ext.P9 counter affidavit filed in the other O.A also. Although the O.As have been dismissed on the ground of limitation, the specific W.P.(C)No.11252/08 7 averments in Exts.P8 and P9 counter affidavits filed in the two O.As remain uncontroverted even today, despite the filing of this writ petition and producing those counter affidavits along with the writ petition as Exts.P8 and P9 and relying on the same to prove the case of the petitioners. As such, I do not think that the respondents, particularly the fifth respondent can take a different stand in this writ petition. In fact, in respect of Exts.P8 and P9, they do not take any stand at all in the statement filed on behalf of the fifth respondent. Despite granting time to give clarification in respect thereof, no clarification or counter affidavit is forthcoming also. Therefore, the respondents are bound by their statements in the said counter affidavits. Naturally, when in a counter affidavit before a judicial authority, the concerned Forest Officer files such an affidavit, the petitioners can take an advantage of the same and decide not to pursue the OAs further. Although the O.As were dismissed, the respondents have no escape from their own averments in their sworn counter affidavits. In the sworn counter affidavits, they have admitted that the properties in the possession of the petitioners covered by Exts.P8 and P9 certificates of purchase are not vested forests W.P.(C)No.11252/08 8 under the Private Forest (Vesting and Assignment) Act. That being so, they cannot now take a contrary stand in order to refuse to accept the tax from the petitioners. Therefore, respondents 1 and 2 are bound to accept tax in respect of that property from the petitioners under the Kerala Land Tax Act. There would be a direction to the second respondent to issue an appropriate order in that regard disposing of Ext.P10 as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.11252/08 9 W.P.(C)No.11252/08 10