M. Hamsa vs State Of Kerala
2021 Latest Caselaw 14985 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
        FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
                        WP(C) NO. 30196 OF 2012
PETITIONER:

            M. HAMSA
            AGED 57 YEARS
            S/O. MUHAMMED, KONNACHM HOUSE KOCHITHODUTHIL, ANAKKALLU
            P.O., MALAMPUZHA TALUK, MALAMPUZHA VILLAGE.

            BY ADVS.
            SRI.T.V.GEORGE
            SMT.DENNIS VARGHESE
            SRI.JIMMY GEORGE THADATHIL



RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY THE SECRETARY TO REVENUE DEPARTMENT,
            GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001

    2       DIVISIONAL FOREST OFFICER
            PALAKKAD - 678 001

    3       RANGE OFFICER
            WALAYAR FOREST RANGE, PALAKKAD - 678 001

    4       TAHSILDAR
            TALUK OFFICE, MALAMPUZHA - 678 651

            BY ADV.SRI.SANDESH RAJA, SPECIAL GOVERNMENT
            PLEADER(FORESTS).




    THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.30196/2012
                                              2

               P.V.KUNHIKRISHNAN, J
         -------------------------------
             W.P.(C)No.30196 of 2012
        --------------------------------
        Dated this the 16th day of July 2021

                                     JUDGMENT

The above writ petition is filed with the

following prayers:

" (i) call for the entire records relating to the above case;

(ii) issue a writ of mandamus or any other appropriate, writ, direction or order, commanding the respondents to conduct a joint verification and survey of the property having an extent of 1.73 acres of land in Survey No: 383/2A of Malampuzha Village and assign the same in the name of the petitioner as provided under Kerala Land Assignment Act, 1960 and Kerala Land Assignment (Regularization Of Occupations of Forest Lands prior to 01/01/1977) Special Rules, 1993.

(iii) issue a writ of mandamus or any other appropriate, writ, direction or order, commanding the respondents not to make any attempt to evict the petitioner by force or make any obstructions to the peaceful possession, enjoyment and cultivation of the property having an extent of 1.73 acres of land without due process of law.

(iv) Grant such other and further reliefs which this Hon'ble Court feels just and proper to grant in the circumstances of the case, including the entire costs of the proceedings."

WP(C) NO.30196/2012

2. The short facts for disposal of the writ

petition are like this: According to the

petitioner, he is in absolute possession,

enjoyment and cultivation of 1.73 acres of land

in Sy.No.383/2A of Malampuzha Village.

According to the petitioner, he obtained the

same as per Ext.P1 sale deed in the year 1981.

It is also submitted in the writ petition that

the land originally belongs to Emur Bhagavati

Devasom. The specific case of the petitioner is

that the petitioner's predecessor's predecessor

obtained the same from Emur Bhagavati Devasom

for cultivation on Verumpaattam basis in the

year 1950. Thereafter it is stated that the

petitioner's predecessor and the petitioner are

continuously occupying the said land and

effecting cultivation without any break. In the

year 1981, the Forest authorities tried to evict

the petitioner by force. Therefore the

petitioner approached the Forest Tribunal with a

petition under Section 8 of the Act 26/71 WP(C) NO.30196/2012

seeking a relief of declaration that the

petition scheduled property with an extent of

1.73 acres situated in Sy.No.383/2A in

Malampuzha village of Palakkad Taluk is not a

private forest and to permit the petitioner to

retain possession since it can not vest. The

Forest Tribunal passed Ext.P2 order allowing the

original application. Subsequently, as per

Ext.R2(a) order, this Court was pleased to set

aside the order passed by the Tribunal.

Thereafter, this writ petition is filed with a

prayer that the petitioner is entitled the

benefit of the Kerala Land Assignment

(Regularization of Occupations of Forest Lands

prior to 01.01.1977) Special Rules 1993 (in

short 'the Rule').

3. The learned counsel appearing for the

petitioner submitted that, if a joint

verification and survey is conducted, the

contentions of the petitioner can be proved.

Therefore, it is submitted that the prayers in WP(C) NO.30196/2012

the writ petition may be allowed.

4. The learned Special Government Pleader

submitted that it is a vested Forest. The

contention of the petitioner is that he is

entitled to the benefit of 'the Rule 1993'. The

learned Special Government Pleader relied on the

judgment of this Court dated 08.11.2018 in W.P.

(C)No.4501/2018 which is confirmed by the

Division Bench as per judgment dated 18.03.2019

in W.A.No.694/2019.

5. The learned counsel for the petitioner

reiterated the contentions in the writ petition.

6. After hearing both sides, according to

me, the prayers in the writ petition can not be

allowed. This Court in the judgment dated

08.11.2018 in W.P.(C)No.4501/2018 considered the

matter in detail. The relevant portion of the

judgment is extracted hereunder:

"5. I have considered the contentions advanced. The Kerala Land Assignment (Regularization of Occupations of Forest Lands prior to 1.1.1977) Special Rules 1993 defines land at Clause (f)as follows:

"(f) "Land" means the Forest land WP(C) NO.30196/2012

subjected to joint verification as defined in sub-clause(e) and Cardamom Hill Reserve land which are converted for non-cardamom cultivation prior to 1-1-1977 in Idukki district which have been transferred from Forest Department to Revenue Department and covered in the Resurvey Records and list of lands recommended to Government of India for concurrence under Section 2 of the Forest (Conservation) Act, 1980 (Central Act 69 of 1980) but does not include lands in wild life Sanctuaries."

6. The joint verification referred to in the said Rules means verification of forest lands conducted by the revenue authority to establish eligibility of for regularization of occupation of said lands prior to 1.1.1977. Clause (g) of Section 2 reads as follows:

"Regularisation of occupation" means regularization of occupation prior to 1.1.1977 of forest land and lands in Cardamom Hill Reserve of Idukki District."

7. I am of the opinion that since it is the specific case of the learned Special Government Pleader that the land in question which are held by the petitioners are not land which are covered by the definition of the Rules, the relief sought for by the petitioner cannot be granted. It is only in respect of land which have been transferred from the Forest Department to Revenue Department and recommended to the Government of India for concurrence under Section 2 of the Forest (Conservation) Act, 1980 that the rules can be applied. Further, the Rules would have no application in a case where the lands in question have been found to be vested forests or ecologically fragile lands in terms of either the 1971 Act or the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 Act. It is only in respect of the specified WP(C) NO.30196/2012

lands as pointed out and which are covered by the definition of 'land' in terms of the Rules that any application for assignment is entertainable in terms of the Rules. In the above view of the matter, I am of the opinion that the reliefs sought for in this writ petition cannot be granted. The writ petition fails and is accordingly dismissed."

The above judgment is confirmed by the

Division Bench as per the judgment dated

18.03.2019 in W.A.No.694/2019. In the light of

the above judgments, according to me, the prayer

in the writ petition can not be allowed.

Therefore, this writ petition fails and

dismissed.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

DM WP(C) NO.30196/2012

APPENDIX OF WP(C) 30196/2012

PETITIONER'S EXHIBITS:

EXHIBIT P1 True copy of sale deed 2014/85 of sub registry office, palakkad.

EXHIBIT P2 True copy of order in o.a.no.142/81 of district judge, forest tribunal, palakkad dated 30.06.1986.

RESPONDENTS EXHIBITS:    NIL




                        //TRUE COPY//

                         PA TO JUDGE