Fr. Robin vs State Of Kerala
2021 Latest Caselaw 17332 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                          PRESENT
                 THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                             &
                      THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
           WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
                                  WP(C) NO. 8083 OF 2018
PETITIONERS:

      1        FR. ROBIN, AGED 32 YEARS, PADINJAREKUTTU,
               VICAR, ST.GEORGE CHURCH, POOYAMKUTTY, KUTTAMPUZHA VILLAGE,
               KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.

      2        BAVA @ BABUKKA, AGED 89 YEARS
               S/O.KUNJUPILLAI, MUNDETHAN HOUSE, POOYAMKUTTY, KUTTAMPUZHA
               VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.

               BY ADVS. SRI.A.C.DEVASIA
               SMT.ANCY MATHEW
               SRI.MATHEW DEVASSI

RESPONDENTS:

      1        STATE OF KERALA, REPRESENTED BY SECRETARY TO REVENUE, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM,PIN-695001.

      2        CHIEF CONSERVATOR OF FOREST, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM,PIN-695001.

      3        DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE,
               KAKKANAD, COCHIN, PIN-682030.

      4        REVENUE DIVISIONAL OFFICER, RDO OFFICE
               MUVATTUPUZHA, ERNAKULAM DISTRICT-686661.

      5        TAHSILDAR, TALUK OFFICE, KOTHAMANGALAM, ERNAKULAM DISTRICT-686691.

      6        VILLAGE OFFICER, VILLAGE OFFICE, KUTTAMPUZHA
               ERNAKULAM DISTRICT, PIN-686691.

      7        THE DIRECTOR, HARIJAN WELFARE DEPARTMENT
               GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.

               BY ADVS. SRI.S.RENJITH, SPL.G.P.
                        SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.8083 OF 2018
                                         :: 2 ::



                                      JUDGMENT

Dated this the 25th day of August 2021

S.MANIKUMAR, C.J.

This public interest writ petition is filed with an intention to protect

the interest of the agriculturists and settlers in Manikandanchal for getting

patta under the Kerala Land Assignment (Regularization of occupation of

forest land prior to 1.1.1977) Special Rules, 1993 as per Exts.P1/joint

verification list and P2/list of present occupants prepared on the basis of

joint verification. Reliefs sought for in this writ petition are as follows:

"i) issue a writ of mandamus or any other appropriate writ, order or direction to the respondents 1, 3, 5 and 6 to take immediate steps to issue patta to the settlers in Manikandanchal as per Ext.P1 and P2 on the basis of the Kerala Land Assignment (Regularization of Occupants of forest lands prior to 1.1.1977) Special Rules, 1993.

ii) to declare that as per Ext.P1, the settlers in Manikandanchal area is entitled to get patta for their properties.

iii) to issue a writ of mandamus or any other appropriate writ, order or directions directing the respondents 1, 2, 5 and 6 to take immediate steps to delete the word hill men settlement from the resurvey records in respect of the Ext.P1 properties.

iv) to issue a writ of mandamus or any other appropriate writ, order or directions directing the respondents 1, 3 and 5 to consider P7 representation."

W.P.(C)No.8083 OF 2018 :: 3 ::

2. According to Mr.A.C.Devasia, learned counsel for the petitioners, it

is evident from Ext.P1 joint verification list obtained under Right to

Information Act on 1.7.2013 issued by the Tahsildar, Kothamangalam that

joint verification was conducted by the Revenue and Forest Department in

Manikandanchal and Kallelumedu area. Since 1968, agriculturists and other

persons are residing in the said area and they are holding two cents to two

acres of properties.

3. Learned counsel for the petitioners contended that after the

completion of the resurvey, the properties are described in the revenue

records as hill men settlement area. Therefore, as per Ext.P4, the 5 th

respondent/Tahsildar, Kothamangalam has stated that, it is not able to

initiate land acquisition proceedings in respect of Ext.P1 properties. But as

per Ext.P5 Government Order, the 1st respondent has directed the

authorities to issue patta in favour of both hillmen and non-hill men on the

basis of the present occupation. Ext.P5 order is passed pusuant to the

judgment of this court - 1970 KLT 1069 in Eacharan Ittiyathi Vs. State of Kerala.

It is also evident from Ext.P6 that pursuant to Ext.P5, the District Collector,

Idukki has issued directions to the Special Tahsildar, Idukki and patta was

issued to the land holders. Therefore, as per law there is no hindrance to W.P.(C)No.8083 OF 2018 :: 4 ::

issue patta to the Ext.P1 property holders under Kerala Land Assignment

(Regularization of Occupants of forest lands prior to 1.1.1977) Special Rules,

1993. Hence this writ petition.

4. Though a detailed counter affidavit has been filed, referring to

Ext.P9 Government Order issued by the Revenue Department dated 27 th

April, 2017 Mr.S.Renjith, learned Special Government Pleader submitted that

orders have been issued to assign pattas in respect of lands in possession of

Scheduled Caste and Scheduled Tribes and other private persons in Idukki,

Pathanamthitta, Kottayam and Ernakulam districts subject to the provisions

of the Kerala Land Assignment Rules, 1964. For brevity, said Government

Order dated 27.4.2017 is extracted below:

KERALA GOVERNMENT BRIEF

As per the Land Assignment Rules, 1964 those lands which are recorded as dry land and wet land in revenue records and those lands which are situated outside the Forest Juntas in Idukki, Kottayam, Pathanamthitta and Ernakulam Districts is hereby orders to be assigned to Schedule caste/Schedule Tribe including private persons.

---------------------------------------------------------------------------------

Revenue (R) Department G.O(Ordinary) No.2020/2020/R. Dated, Thiruvananthapuram 27.04.2017

Reference: 1. G.O(Ordinary) No.2023/2017/R Dated 27.04.2017

2. Letter No. 5521/2018-C3 of the District Collector, Idukki, dated 19.12.2019.

W.P.(C)No.8083 OF 2018 :: 5 ::

ORDER

1. As per reference one stated above the Schedule tribes who are in possession of forest lands as defined in Kerala Land Assignment Rules, 1993 (regularization of occupation of forest lands prior to 1/1/1977) Special rule 2(F), patta shall be issued in accordance to the Rules for the above stated forest lands to the schedule tribes. It was also order under reference one that if possession certificates have been issued with respect to the above said forest lands the same shall be cancelled and patta shall be issued.

2. Various organizations of people in Mala Araya Cast has submitted petitions to the government as per the above stated Government order that the names of scheduled cast people who are living in Udumbannoor, Malayinchi, Peringasserry, Uppukunnu, Veliyamattam, Arakkulam, Vannapuram situated in Thodupuzha Taluk are not included in the joint verification list and hence patta is not issued to them.

3. The matter was discussed in the meeting under the chairmanship of the Chief Minister on 29/04/2019. From the commencement of the Hillman Rules, 1964, those lands which were in possession of Scheduled Tribes who are living in Udumbannoor village were cross checked and clarified with the help of revenue records and possession details whether the above lands are revenue lands or forest lands. The District Collecto Idukki has ordered to submit a detailed report on the legal aspect of the repeal of the Hill man Rules by judgment in Case No.O.P.No.3373/1966 and, if so, whether the ownership of the land is vested in Revenue Department or the forest department.

4. The District Collector, Idukki as per the reference two stated above has reported that the land held by the Scheduled Tribes in the settlement of Udumbannoor village has been cultivating for generations without being able to accurately determine the age of possession even before 1960 and has become fully inhabited. In addition, it has been reported that more than 7,000 families in the area who have inherited land from their predecessors for generations have not received a title deed and settlement prepared I the 1930 and other available revenue records show that the land in question includes paddy land, fallow and dry land. The collector has also reported that, as of now forest land are demarcated and W.P.(C)No.8083 OF 2018 :: 6 ::

protected using Juntas and the forest department has not made any claim on those lands which are situated outside the Juntas. In Nature Lovers Vs. State of Kerala (C.A No.2116/2000) Judgment dated 20/3/2009 of the Hon'ble Supreme court, the apex court has clearly stated that all lands which are assigned and all steps taken for assignment before the commencement of the Central Forest Act, 1980 will not come under the purview of the forest act. Under these circumstance the District Collector, Idukki has reported that as per G.O.(M.S)No.250/73/A.D dated 24/07/1973 that those lands included in hill men settlement shall be assigned and the said land will not come under the Central Forest law. In addition to that the Idukki District Collector has also reported that as per judgment of the Hon'ble High Court in Eacharan Ittiyathi Vs. State of Kerala (O.P. No.3373/1966), it has been declared that Section 76(a) of Kerala Forest Act read with the Kerala Hillman Rules, 1964 are also declared unconstitutional. It is also ordered that those lands which are included in Hillman settlement are to be surveyed and the possessions must be assigned to the possessors as per G.O (M.S) No.250/73/A.D dated 24/07/1973. In such circumstances, the District Collector Idukki has reported that after determining the people in possession of the land with respect to the land situated outside the Juntas erected by the forest department and included in the Hillman settlement, can be verified on the basis of the nature of the land and the records of settlement and can be vested and assigned among the eligible persons as per the Kerala Land Assignment Rules, 1964.

5. The government has made a detailed enquiry about the same. Lands referred in the settlement register prepared in the year 1930 and other revenue records are described as Dry, barren and paddy land. These lands are situated outside the Juntas of forest department and the forest department has not made any claim on the land in question. Any land which does not fall within the scope of Rule 1 A of the Kerala Kerala Land Assignment Rules, 1964 and falls within the scope of and falls within the scope of "government lands"as defined in Rule 2(e) of the said Rules shall be subject to the provisions of Rule 5 and 6 for the purpose specified in Rule 4 and in accordance to the other conditions mentioned in the rules shall be assigned in favour of the Scheduled Cast and Scheduled Tribes and other private persons. Apart from Idukki district, from Kottayam, W.P.(C)No.8083 OF 2018 :: 7 ::

Pathanamthitta and Ernakulam districts complaints with regard to the non issuance of patta with respect to the similarly placed land are also received by the government. In the above circumstance it seems appropriate to issue a general directive in the manner mentioned above, applicable to the holdings of the above said districts.

6. In the above circumstances, lands in possession of Scheduled Cast and Scheduled Tribe and other private persons in Idukki, Kottayam, Pathanamthitta and Ernakulam Districts described in revenue records as dry, fallow, barren and paddy lands which are situated outside the juntas erected by the forest department assignment shall be issued in their favour. Any land which does not fall within the scope of Rule 1 A of the Kerala Land Assignment Rules, 1964 and falls within the scope of "government lands" as defined in Rule 2(e) of the said Rules shall be subject to the provisions of Rule 5 and 6 for the purpose specified in Rule 4 and in accordance to the other conditions mentioned in the rules shall be assigned in favour of the Scheduled Cast and Scheduled Tribes and other private persons.

7. With respect to the same proceedings shall be initiated by the District Collectors of Idukki, Kottayam, Pathanamthitta and Ernakulam.

(As per the order of The Governor) S.Suresh Kumar

Deputy Secretary

5. In the light of the above Government Order, at this stage, we are of

the view that there is no need to advert to the rival contentions raised in

this writ petition. However, there shall be a direction to the respective

District Collectors of Idukki, Pathanamthitta, Kottayam and Ernakulam

districts to consider and pass appropriate orders on the applications already W.P.(C)No.8083 OF 2018 :: 8 ::

filed and pending or to be filed by the settlers in Manikandanchal, for

the issuance of patta in terms of G.O.(Ordinary)No.2020/2020/R dated,

27.04.2017 and in accordance with law, without any further delay.

Writ petition is disposed of.

SD/-

S.MANIKUMAR CHIEF JUSTICE

SD/-

SHAJI P. CHALY JUDGE jes W.P.(C)No.8083 OF 2018 :: 9 ::

APPENDIX

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE JOINT VERIFICATION LIST UNDER RIGHT TO INFORMATION ACT ON 1.7.2013 ISSUED FROM TAHSILDAR KOTHAMANGALAM.

EXHIBIT P2 TRUE COPY OF THE PRESENT OCCUPANTS LIST PREPARED BY THE PETITIONERS ON THE BASIS OF THE JOINT VERIFICATION AT MANIKANDANCHAL UNDATED.

EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 27.7.2017 BY THE 5TH RESPONDENT AND ITS ENGLISH TRANSLATION.

EXHIBIT P4 TRUE COPY OF THE LETTER ISSUED UNDER RIGHT TO INFORMATION ACT DATED 1.11.2017 AND ITS ENGLISH TRANSLATION.

EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER DATED 24.7.1973.

EXHIBIT P6 TRUE COPY OF THE DIRECTION ISSUED BY THE DISTRICT COLLECTOR IDUKKI TO THE SPECIAL TAHSILDAR, IDUKKI AND ITS ENGLISH TRANSLATION.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 25.11.2017 AND ITS ENGLISH TRANSLATION.

EXHIBIT P8 TRUE COPY OF THE EXTRACT OF RECORDS OF JOINT VERIFICATION ISSUED BY 5TH RESPONDENT DATED 04.4.1990 AND ITS ENGLISH TRANSLATION.

EXHIBIT P9 TRUE COPY OF THE GOVERNMENT ORDER DATED 2.6.2020 AND ITS ENGLISH TRANSLATION.

// TRUE COPY //

P.S. TO JUDGE