Kerala High Court

Shajan K.John vs State Of Kerala on 5 April, 2022

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944
                       WP(C) NO. 10066 OF 2020
PETITIONER/S:

    1          SHAJAN K.JOHN, AGED 54 YEARS
               S/O. LATE JOHN VARGHESE, KALLUPALATHINGAL HOUSE,
               MUTTAMBALAM KARA, KOTTAYAM DISTRICT.
    2          SHIBU K. JOHN, AGED 48 YEARS
               S/O. LATE JOHN VARGHESE, KALLUPALATHINGAL HOUSE,
               MUTTAMBALAM KARA, KOTTAYAM DISTRICT.
               BY ADVS.
               ENOCH DAVID SIMON JOEL
               SRI.RONY JOSE
               SRI.GEORGE A.CHERIAN
               SRI.LEO LUKOSE
RESPONDENT/S:
    1    STATE OF KERALA
         REPRESENTED BY THE SECRETARY, DEPARTMENT OF
         FOREST, GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM - 695 001.
    2    THE DIVISIONAL FOREST OFFICER
         MANNARKKAD FOREST DIVISION, MANNARKKAD - 678582.
    3    THE FOREST RANGE OFFICER
         MANNARKKAD RANGE, PALAKKAD - 678582.
    4    THE DEPUTY FOREST RANGE OFFICER
         PALAKKAYAM FOREST DEPARTMENT, MANNARKKAD,
         PALAKKAD - 678582.
         BY ADV GOVERNMENT PLEADER
OTHER PRESENT:
         SRI.NAGARAJ NARAYANAN, SPL.GP(FOREST)
        THIS    WRIT   PETITION     (CIVIL)    HAVING    COME    UP    FOR
ADMISSION       ON   05.04.2022,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                                      -2-
W.P.(C). No. 10066 of 2020



                             P.V.KUNHIKRISHNAN, J.
                             ======================================================

                              W.P.(C) No. 10066 of 2020
                       =============================================================

                     Dated this the 5th day of April, 2022

                                          JUDGMENT

The above writ petition is filed with following prayers:

"i. Issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 2 to 4 not to illegally interfere with petitioners right of enjoyment over the 33 acres of rubber plantation situated in R.Sy.No.2268/Part of Palakkayam Village, covered by Ext.P1 judgment.

ii. Issue a writ of mandamus or other appropriate writ, order or direction, directing respondents 2 to 4 to permit petitioners to carry out replantation work in the property covered by ext.P1 judgment.

iii. Issue such other appropriate writ order or direction that may be deemed to be just and equitable in the facts and circumstances of the case."

2. The main prayer in this writ petition is to issue a

direction directing the respondents 2 to 4 not to illegally

interfere with petitioners right of enjoyment over the 33 acres of

rubber plantation situated in R.Sy.No.2268/Part of Palakkayam

W.P.(C). No. 10066 of 2020

Village, covered by Ext.P1 judgment. The petitioners

purchased 33 acres of rubber plantation in the year 2006. In the

year 2008, forest officials had registered a case against the

petitioners and their staff for cutting trees in the said property.

It was alleged that the petitioners property was a notified

property under the Ecologically Fragile Land under the Kerala

Forest (Vesting and Management of Ecologically Fragile Lands)

Act, 2003. The petitioner approached the Forest Tribunal. The

Forest Tribunal dismissed the claim petition. Thereafter, the

petitioners filed an appeal before this Court and as per Ext.P1

judgment, this Court set aside the order of the Forest Tribunal

and the original application was allowed. Even though a review

petition was filed by the Government, the same was also

dismissed by Ext.P3. Ext.P1 order is dated 25.10.2019 and

Ext.P3 order is dated 08.04.2021. The grievance of the

petitioners is that even now the respondents are obstructing the

W.P.(C). No. 10066 of 2020

petitioners for doing their agricultural activities, including

replantation.

3. Heard the learned counsel for the petitioners and the

learned Special Government Pleader.

4. The counsel for the petitioners reiterated his

contentions in the writ petition and submitted that in the light of

Exts.P1 and P3, respondents have no authority to interfere with

the peaceful possession of the property by the petitioners.

5. On the other hand, the learned Special Government

Pleader submitted that challenging Exts.P1 and P3 an SLP is

filed before the Apex Court and the same is even now pending.

In such circumstances, this Court may not pass any orders is the

submission.

6. This Court considered the contentions of the

petitioner and the learned Government Pleader.

W.P.(C). No. 10066 of 2020

7. When this writ petition came up for consideration on

23.02.2022, this Court passed the following order:

"The learned Govt.Pleader submitted that the respondents approached the Apex Court challenging the orders passed by this Court. The review petition was dismissed by this Court in April, 2021. Now almost one year elapsed. The matter cannot be kept pending unnecessarily. Therefore, this writ petition is posting finally on 21.03.2022.

In the meanwhile, if there is no interim order in the pending matter before the Apex Court, appropriate orders will be passed in this writ petition."

8. Thereafter, the matter came up for consideration on

21.03.2022. On that day also the learned Government Pleader

seeks further time and this Court passed the following order:

"Even though this Court passed an order dated 23.02.2022, today also the learned Special Government Pleader seeks further time to get orders from the Supreme Court stating that an SLP is pending. As I observed earlier, simply because an SLP is pending before the Supreme Court, the respondents cannot violate the directions in Ext.P1 judgment.

Ext.P1 judgment is dated 25.10.2019. A review petition was filed to review Ext.P1 judgment. The

W.P.(C). No. 10066 of 2020

same was also dismissed as per Ext.P3, which is dated 08.04.2021. Now almost one year elapsed after the dismissal of the review petition.

Therefore, simply because an SLP is pending before the Supreme Court, the respondents cannot violate the directions in Ext.P1 judgment. But, considering the submission of the learned Special Government Pleader, one more opportunity can be granted.

Post on 31.03.2022."

9. Today also, the learned Government Pleader

submitted that the SLP is pending before the Apex Court and

therefore, this Court may not pass any further order.

10. I am not in a position to agree with the submission

made by the Special Government Pleader (Forest). Admittedly,

Exts.P1 and P3 orders are in force as on today. Simply because

an SLP is pending before the Apex Court, the petitioners need

not wait indefinitely for peaceful possession of their property.

If there is any interference from the Apex Court to Exts.P1 and

P3 orders, the consequence will follow at that time. But as on

W.P.(C). No. 10066 of 2020

today, there is nothing to show that there is any interim order

passed by the Apex Court in the SLP staying Exts.P1 and P3

orders.

Therefore, this writ petition is allowed in the following

manner:

1. The peaceful possession and enjoyment of the property covered by the Exts.P1 and P3 by the petitioners shall not be interfered by respondents 2 to 4 as long as Exts.P1 and P3 are in force.

2. No prosecution steps shall be initiated against the petitioners for any agricultural activities including replantation done by the petitioners in the property covered by Exts.P1 and P3, as long those orders are in force.