Kerala High Court
M.M.Joseph @ Joseph Fenzor vs State Of Kerala Reqpresented By ... on 23 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 23RD DAY OF FEBRUARY 2021/4TH PHALGUNA, 1942
WP(C).No.22934 OF 2012(N)
PETITIONERS:
1 M.M.JOSEPH @ JOSEPH FENZOR,
AGED 69 YEARS, S/O.THOMMAN,
IRUVELIKKUNNEL, KALKANDI P.O.,
ATTAPADI, AGALI VILLAGE,
MANNARKADU TALUK, PALAKKADU DISTRICT.
2 K.V.NEELAKANDAN NAIR, S/O.BHASKARAN NAIR,
KANJIRAKKATH HOUSE, CHOLAKKADU, KAKKUPPADY,
KALKANDI P.O., ATTAPADI, AGALI VILLAGE,
MANNARKADU TALUK, PALAKKADU DISTRICT.
BY ADVS.
SRI.A.X.VARGHESE
SRI.A.V.JOJO
RESPONDENTS:
1 STATE OF KERALA REQPRESENTED BY SECRETARY,
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 FOREST SECRETARY, MINISTRY OF
FOREST & WILD LIFE, KERALA STATE,
SECRETARIAT, THIRUVANANTHAPURAM.
3 THE DISTRICT COLLECTOR,
PALAKADU, PIN-678 001.
4 THE DIVISIONAL FOREST OFFICER,
MANNARKADU, PALAKKADU DISTRICT, PIN-678 583.
BY SRI.SANDESH RAJA.K.,
SPECIAL GOVERNMENT PLEADER(FOREST)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23.02.2021, ALONG WITH WP(C).26025/2012(C), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.22934 & 26025 of 2012
:2 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY,THE 23RD DAY OF FEBRUARY 2021/4TH PHALGUNA,1942
WP(C).No.26025 OF 2012
PETITIONERS:
1 ABDUL HAMEED, AGED 48 YEARS,
S/O.HAMSA,KORANATH HOUSE, KAKKUPADY,
KALKANDY P.O., ATTAPADI, PALAKKADU.
2 PRABHAKARAN, S/O.NANDANAN,
CHETTIYAMPARAMBIL HOUSE, KAKKUPADY,
KALKANDY P.O., ATTAPADI, PALAKKADU.
BY ADVS.
SRI.A.X.VARGHESE
SRI.A.V.JOJO
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY SECRETARY,
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 FOREST SECRETARY, MINISTRY OF FOREST &
WILD LIFE, KERALA STATE, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 THE DISTRICT COLLECTOR,
PALAKADU, PIN-678 001.
4 THE DIVISIONAL FOREST OFFICER,
MANNARKADU, PALAKKADU DISTRICT, PIN-678 583.
BY SRI.SANDESH RAJA.K.,
SPECIAL GOVERNMENT PLEADER(FOREST)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23.02.2021, ALONG WITH WP(C).22934/2012(N), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.22934 & 26025 of 2012
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JUDGMENT
~~~~~~~~~
Dated this the 23rd day of February, 2021
The petitioners in both these writ petitions seek to
desist the respondents from interfering into the possession
and enjoyment of the petitioners' properties. The petitioners
also seek to direct the respondents to receive land tax from
the petitioners.
2. In the writ petitions, it is stated that they and their
forefathers were the cultivating tenants of one "Mooppil Nair"
who was the landlord in Attappadi area. The Land Tribunal,
Agali, Attappadi, assigned the land in favour of the farmers
invoking Section 72 of the Kerala Land Reforms Act. The
petitioners also obtained 'Patta' from Land Tribunal. The
petitioners have been remitting land tax regularly.
3. But, from 1998 onwards, the Revenue authorities
refused to receive land tax from the petitioners. The
WP(C) No.22934 & 26025 of 2012
petitioners thereupon submitted representation to higher
authorities. In fact, the Revenue Department had passed
orders directing all the District Collectors, Secretary of Land
Board, Commissioner of Land Revenue, etc. to receive land
tax from the farmers in respect of Patta land and for which tax
was accepted earlier.
4. In the meanwhile, Forest Authorities started to
trespass into the Patta land of the petitioners and erected
'jundas'. The petitioners and similarly placed others filed W.P.
(C) No.23100/2007 seeking to direct the respondents not to
evict the petitioners. By judgment dated 17.02.2012, this
Court directed that the petitioners shall not be evicted from
their property except after issuing a notice and calling for
objections from the aggrieved persons. This Court further
directed that they should be granted an opportunity of hearing.
5. Notices were issued to the petitioners
subsequently. Without considering the objections raised by
the petitioners, orders were issued directing the petitioners to
vacate from their respective land. It is aggrieved by such
WP(C) No.22934 & 26025 of 2012
directions that the petitioners are before this Court.
6. The petitioners contended that in spite of the
directions of this Court, the petitioners were not given an
opportunity of personal hearing. The petitioners have been
regularly paying land tax and the respondents cannot forcibly
evicted the petitioners from their land.
7. The 4th respondent filed a statement and resisted
the writ petition. The 4th respondent stated that the land
possessed by the petitioners is private forest vested in the
Government. In view of Section 22 of the Kerala Forest Act,
1961, no right can be acquired in or over a reserved forest
except under a grant or contract in writing made by or on
behalf of the Government. No 'Patta' can be issued without the
previous sanction of the Government. If the petitioners have
any genuine claim, they could have approached the Forest
Tribunal constituted under the Kerala Private Forests (Vesting
and Assignment) Act, 1971.
8. Heard learned counsel for the petitioners and
learned Special Government Pleader for Forests representing
WP(C) No.22934 & 26025 of 2012
the respondents.
9. Going by the pleadings in the writ petition and the
arguments raised on either side, it is evident that the
adjudication of dispute would involve disputed questions of
fact, which this Court cannot decide under Article 226 of the
Constitution of India.
10. Learned Government Pleader would point out that
similar dispute relating to the same and nearby areas came up
for consideration before a Division Bench of this Court in W.A.
No.202/2020. The Division Bench disposed of the said Writ
Appeal on 06.11.2020 relegating the appellants therein to the
Forest Tribunal to establish their claims. In the circumstances
of the case, this Court is of the opinion that the petitioners in
these writ petitions can also be permitted to raise their
grievance before the Forest Tribunal.
The writ petitions are therefore disposed of
relegating the petitioners to approach the Forest Tribunal. If
the petitioners file appropriate applications before the Forest
Tribunal within two months along with applications for
WP(C) No.22934 & 26025 of 2012
condonation of delay, the Tribunal shall consider such
application for condoning the delay in accordance with law,
treating that the petitioners have been bona fide prosecuting
their claim before this Court filing writ petitions.
Sd/-
N. NAGARESH, JUDGE
aks/23.02.2021
WP(C) No.22934 & 26025 of 2012
APPENDIX OF WP(C) 22934/2012
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER PASSED BY THE LAND
TRIBUNAL, AGALI, ASSIGNING THE LAND IN
FAVOUR OF THE 1ST PETITIONER
EXHIBIT P2 TRUE COPY OF THE PATTA ISSUED BY THE LAND
TRIBUNAL, AGALI IN FAVOUR OF THE 2ND
PETITIONER.
EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 09-02-1993
ISSUED TO THE 1ST PETITIONER BY THE
VILLAGE OFFICER, KALLAMALA ON RECEIPT OF
THE TAX FEE FOR THE PERIOD 1991-1993.
EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 10-01-2012
ISSUED TO THE 2ND PETITIONER BY THE
VILLAGE OFFICER, KALLAMALA ON RECEIPT OF
THE TAX FEE FOR THE PERIOD 2011-2012.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 25-10-2004
EXHIBIT P6 TRUE COPY OF THE ORDER PASSED BY THE
SECRETARY, REVENUE DEPARTMENT DATED 23-
01-2005.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER BEFORE THE 1ST
RESPONDENT DATED 10-07-2007.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 17-02-
2012 IN W.P.(C) 23100/2007
EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 22/05/2012
EXHIBIT P10 TRUE COPY OF THE REPLY SUBMITTED BY THE
1ST PETITIONER DATED 2-6-2012
EXHIBIT P11 TRUE COPY OF THE REPLY SUBMITTED BY THE
2ND PETITIONER DATED 5/6/2012.
WP(C) No.22934 & 26025 of 2012
EXHIBIT P12 TRUE COPY OF THE ORDER NO. G1-5591/07
DATED 14/09/2012.
EXHIBIT P13 TRUE COPY OF THE LETTER OBTAINED UNDER
RIGHT TO INFORMATION ACT DATED 28/2/1990
EXHIBIT P14 TRUE COPY OF THE LIST OF BOGUS PATTA IN
KALLAMALA VILLAGE.
EXHIBIT P15 TRUE COPY OF THE GOVERNMENT ORDER DATED
8/6/2010
EXHIBIT P16 TRUE COPY OF THE CIRCULAR DATED 27/7/2010
RESPONDENTS' EXHIBITS:
ANNEXURE R4(a) TRUE COPY OF RELEVANT PAGES OF
NOTIFICATION DATED 10-10-1977 OF VFC
ITEM NO. 124 A
ANNEXURE R4(b) TRUE COPY OF SURVEY SKETCH PREPARED BYT
HE ASSISTANT DIRECTOR OF SURVEY,
KOZHIKKODE.
ANNEXURE R4(c) TRUE COPY OF LETTER NO. B2-1143/07 DATED
16/10/2008 OF THE ASSISTANT DIRECTOR OF
FOREST MINI SURVEY, KOZHIKKODE.
ANNEXURE R4(d) TRUE COPY OF THE SURVEY SKETCH OF
ANNEXURE R4(e) TRUE COPY OF THE A&B REGISTER SHOWING
DETAILS OF SURVEY NUMBER AS PER VILLAGE
RECORDS
ANNEXURE R4(f) TRUE COPY OF THE LETTER NO.LB(A)2-
2437/89 DATED 14.3.1989
ANNEXURE R4(g) TRUE COPY OF THE CIRCULAR VIDE
NO.17359/P1/91/RD DATED 09.09.1991.
ANNEXURE R4(h) TRUE COPY OF THE LETTER DATED 06.04.20
ADDRESSED TO VILLAGE OFFICER,
KALLAMALA.
ANNEXURE R4(i) TRUE COPY OF THE NOTICE DATED
24.02.2020 SENT TO THE PETITIONERS.
WP(C) No.22934 & 26025 of 2012
ANNEXURE R4(j) TRUE COPY OF THE STATEMENT GIVEN BY THE
2ND PETITIONER BEFORE THE 4TH
RESPONDENT DATED 19.03.2020.
ANNEXURE R4(k) TRUE COPY OF THE NOTICE DATED
11.06.2020 SENT TO THE PETITIONERS
ANNEXURE R4(l) TRUE COPY OF THE REPLY LETTER DATED
16.06.2020 SENT TO THE 4TH RESPONDENT
ANNEXURE R4(m) TRUE COPY OF THE ATTENDANCE STATEMENT
OF JOINT VERIFICATION DATED 14.12.2016
AND REPORT OF THE DIVISION SURVEYOR
ANNEXURE R4(n) TRUE COPY OF THE ENQUIRY REPORT OF THE
DIVISIONAL FOREST OFFICER, FLYING
SQUAD, PALAKKAD DATED 15.03.2011
ADDRESSED TO FOREST CONSERVATOR
(INSPECTION AND EVALUATION),
KOZHIKKODE.
ANNEXURE R4(o) TRUE COPY OF THE REPORT DATED
27.02.2012 OF THE ADDITIONAL PRINCIPAL
CHIEF FOREST CONSERVATOR (VIGILANCE)
ADDRESSED TO PRINCIPAL SECRETARY,
FOREST AND WILDLIFE DEPARTMENT.
WP(C) No.22934 & 26025 of 2012
APPENDIX OF WP(C) 26025/2012
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SALE DEED DATED
18/5/1993.
EXHIBIT P2 TRUE COPY OF THE PATTA ISSUED IN FAVOUR
OF UMMAR MOULAVI
EXHIBIT P3 TRUE COPY OF THE SALE DEED DATED
21/12/1984 EXECUTED BY SAID UMMAR MOULAVI
IN FAVOUR OF 2ND PETITIONER.
EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 11/10/1994
ISSUED TO THE 1ST PETITIONER BY THE
VILLAGE OFFICER, KALLAMLA.
EXHIBIT P5 TRUE COPY OF THE LAND TAX RECEIPT DATED
2/1/98 ISSUED TO THE 2ND PETITIONER BY
THE VILLAGE OFFICER, KALLAMALA.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 25/10/2004
EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE
SECRETARY, REVENUE DEPARTMENT DATED
23/2/2005
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER BEFORE THE 1ST
RESPONDENT DATED 10/7/2007.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 17/2/2012
IN WP(C)23100/2007
EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 22/5/2012
EXHIBIT P11 TRUE COPY OF THE ORDER NO.G1-5591/07
DATED 14/9/2012
EXHIBIT P12 TRUE COPY OF THE INTERIM ORDER DATED
3/10/2012 IN WP(C)22934/2012(N)
WP(C) No.22934 & 26025 of 2012
EXHIBIT P13 TRUE COPY OF THE LETTER OBTAINED UNDER
RIGHT TO INFORMATION ACT DATED 28/2/1990
EXHIBIT P14 TRUE COPY OF THE LIST OF BOGUS PATTA IN
KALLAMALA VILLAGE.
EXHIBIT P15 TRUE COPY OF THE GOVERNMENT ORDER DATED
8/6/2010
EXHIBIT P16 TRUE COPY OF THE CIRCULAR DATED 27/7/2010
RESPONDENTS' EXHIBITS:
ANNEXURE R4(a) TRUE COPY OF RELEVANT PAGES OF
NOTIFICATION DATED 10-10-1977 OF VFC
ANNEXURE R4(b) TRUE COPY OF SURVEY SKETCH PREPARED BYT
HE ASSISTANT DIRECTOR OF SURVEY,
KOZHIKKODE.
ANNEXURE R4(c) TRUE COPY OF LETTER NO. B2-1143/07 DATED
16/10/2008 OF THE ASSISTANT DIRECTOR OF
FOREST MINI SURVEY, KOZHIKKODE.
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