M.K.Radha vs Tahasildar (Lr), Thodupuzha ...
2021 Latest Caselaw 18725 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
                       WP(C) NO. 28853 OF 2020
PETITIONER:

          M.K.RADHA, AGED 71 YEARS, W/O.LATE M.I.KESEAVAN,
          MODENPLACKAL HOUSE, METHOTTY, KOOVAKANDAM P.O.,
          IDUKKI DISTRICT-685 588.

          BY ADVS.
          S.NIDHEESH
          SMT.JISHY P.S.
          SHRI.DHANIL KUMAR.


RESPONDENTS:

    1     TAHASILDAR (LR), THODUPUZHA TALUK,
          IDUKKI DISTRICT-685 584.

    2     TALUK SURVEYOR, THODUPUZHA TALUK,
          IDUKKI DISTRICT-685 584.

    3     DISTRICT SURVEY SUPERINTENDENT,
          IDUKKI DISTRICT-685 566.

    4     DIVISIONAL FOREST OFFICER,
          KOTHAMANGALAM, IDUKKI DISTRICT-686 666.

    5     DISTRICT TRIBAL WELFARE OFFICER,
          PROJECT OFFICE, ITDP, IDUKKI, THODUPUZHA P.O.,
          IDUKKI DISTRICT-685 584.

    6     DISTRICT COLLECTOR, IDUKKI DISTRICT,
          PIN-685 603.

          SHRI.T.P.SAJAN - SPL GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 28853/20
                                        2



                           JUDGMENT

The petitioner says that she is the widow of

late M.I.Kesavan and that both of them belong to a

Scheduled Tribe community by name "Mala Arayan".

The petitioner says that she and her husband

possessed property in the Tribal Settlement Area

and that this is evident from Exts.P1 and P2. She

says that, however, since the property has not

been properly surveyed or demarcated, she is

finding it difficult to put it to profitable use;

and therefore, that she preferred Ext.P3

application before the 1st respondent - Tahsildar

(LR), seeking that necessary action for such

purpose be initiated without any delay. The

petitioner says that, however, her application has

not been considered by the 1st respondent, thus

constraining her to approach this Court through

this writ petition.

2. I have heard Shri.Dhanil Kumar, learned WPC 28853/20

counsel for the petitioner and Shri.T.P.Sajan,

learned Special Government Pleader appearing for

the respondents.

3. Interestingly, Shri.T.P.Sajan conceded that

no action on Ext.P3 has been yet completed; but

added that the 1st respondent - Tahsildar has

already instructed the Taluk Surveyor to initiate

appropriate action. He then submitted that on a

preliminary enquiry, it has been found that there

is a road through the petitioner's property and

thus prayed that this Court allow the Tahsildar to

take the same into account, while completing the

proceedings based on Ext.P3.

4. In reply, Sri.Dhanil Kumar - learned

counsel for the petitioner, submitted that the

afore assertion of Sri.T.P.Sajan is not merely

untenable but also baseless. He submitted that

since Ext.P1 clearly shows that petitioner has

been given permission to occupy forest land under WPC 28853/20

the provisions of the applicable law, no road

could have been constructed therein and that if

there is any such, it can only be construed that

same has been constructed in complete

contravention of law.

       5.    When        I        consider       the         afore         rival

submissions,         it          cannot    be    disputed           that     the

petitioner        has        a    right     to       have    the     property

covered by Exts.P1 and P2 properly surveyed and

demarcated. In fact, this is even conceded by

Sri.T.P.Sajan. Hence, the only other question is

whether there is a road through the property and

whether the petitioner had agreed to the

construction of such. This is a question of fact,

which will have to be considered by the competent

Authority in terms of law and this Court cannot

speak affirmatively on it, while acting under

Article 226 of the Constitution of India.

In the afore circumstances, I direct the 2nd

respondent to complete the survey of the property WPC 28853/20

of the petitioner covered by Exts.P1 and P2, after

following due procedure, as expeditiously as is

possible, but not later than three months from the

date of receipt of a copy of this judgment.

Once the survey is completed and the sketch is

prepared by the Taluk Surveyor, he will present it

before the 1st respondent-Tahsildar, who will

complete the proceedings thereon; during which he

will verify if there is a road through the

property in question and if no, it has been

constructed with the permission of the petitioner.

Needless to say, if the road has been

constructed without the permission of the

petitioner, then the 1st respondent-Tahsildar will

also specifically consider whether same should be

allowed to continue, particularly under the ambit

of the Scheduled Tribes and Other Traditional

Forest Dwellers (Recognition of Forest Rights)

Rules, 2007 and then take necessary consequential

action as is required in law.

WPC 28853/20

While completing the afore exercise, the 1 st

respondent-Tahsildar will hear the petitioner, the

competent official of the Forest Department, the

authorised officer of the Panchayat, as also any

other interested person, as he may deem fit.

This writ petition is thus ordered.

Sd/-

MC/RR                          DEVAN RAMACHANDRAN

                                    JUDGE
 WPC 28853/20


               APPENDIX OF WP(C) 28853/2020

PETITIONER EXHIBITS

EXHIBIT P1            TRUE COPY OF THE TITLE FOR FOREST LAND

UNDER OCCUPATION DATED 11.08.2011.

EXHIBIT P2 TRUE COPY OF SURVEY MAP DATED NIL.

EXHIBIT P3 TRUE COPY OF THE APPLICATION BEFORE THE 1ST RESPONDENT DATED 17.12.2020.