Kerala High Court
State Of Kerala vs V.K. Ramachandran on 5 April, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
Tuesday, the 5th day of April 2022 / 15th Chaithra, 1944
WA NO. 434 OF 2022
AGAINST JUDGMENT DATED 07.01.2022 IN WP(C) 15694/2021 OF THIS COURT
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APPELLANTS/RESPONDENTS IN WP(C):
1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF FOREST,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
2. CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS, FOREST HEADQUARTERS,
THIRUVANANTHAPURAM, PIN - 695001.
3. CUSTODIAN OF VESTED FORESTS, OFFICE OF CUSTODIAN OF VESTED FORESTS,
ARANYA BHAVAN, OLAVAKKODE PALAKKAD, PIN - 678002.
4. DIVISONAL FOREST OFFICER, DIVISIONAL FOREST OFFICE,
KALLEKULANGARA.P.O, PALAKKAD, PIN - 678009.
5. RANGE OFFICER, WALAYAR FOREST RANGE OFFICER, WALAYAR, PALAKKAD
DISTRICT, PIN - 678651.
BY SPECIAL GOVERNMENT PLEADER SRI.T.P.SAJAN
RESPONDENT/PETITIONER IN WP(C):
V.K. RAMACHANDRAN, AGED 62 YEARS, S/O K.P. MADHAVA MENON,
THAPOVANAM, DHONI.P.O, PALAKKAD DISTRICT, PIN - 678009.
BY ADV.V.M.KRISHNAKUMAR
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation and implementation of the impugned Judgment dated
07.01.2022 in WP(C) No.15694/21 pending disposal of the above Writ Appeal.
This Writ Appeal coming on for orders on 05.04.2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
EXT.P2:TRUE COPY OF THE JUDGMENT IN OS.272/1994 DAED 31.10.2000
OF MUNSIFF COURT PALAKKAD.
EXT.P3:TRUE COPY OF THE PROCEEDINGS OF CUSTODIAN OF
ECOLOGICALLY FRAGILE LAND DATED 05.03.2014.
EXT.P1:TRUE COPY OF THE "PASS" NO.188455 ISSUED BY THE FOREST
DEPARTMENT DATED 12.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(a):TRUE COPY OF THE "PASS" NO.188456 ISSUED BY THE FOREST
DEPARTMENT DATED 12.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(b):TRUE COPY OF THE "PASS" NO.188457 ISSUED BY THE FOREST
DEPARTMENT DATED 13.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(c):TRUE COPY OF THE "PASS" NO.188458 ISSUED BY THE FOREST
DEPARTMENT DATED 13.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(d):TRUE COPY OF THE "PASS" NO.188459 ISSUED BY THE FOREST
DEPARTMENT DATED 13.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(e):TRUE COPY OF THE "PASS" NO.188460 ISSUED BY THE FOREST
DEPARTMENT DATED 13.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(f):TRUE COPY OF THE "PASS" NO.188461 ISSUED BY THE FOREST
DEPARTMENT DATED 13.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(g):TRUE COPY OF THE "PASS" NO.188462 ISSUED BY THE FOREST
DEPARTMENT DATED 14.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(h):TRUE COPY OF THE "PASS" NO.188463 ISSUED BY THE FOREST
DEPARTMENT DATED 15.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(i):TRUE COPY OF THE "PASS" NO.188464 ISSUED BY THE FOREST
DEPARTMENT DATED 15.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(j):TRUE COPY OF THE "PASS" NO.188465 ISSUED BY THE FOREST
DEPARTMENT DATED 16.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(k):TRUE COPY OF THE "PASS" NO.188466 ISSUED BY THE FOREST
DEPARTMENT DATED 16.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(l):TRUE COPY OF THE "PASS" NO.188467 ISSUED BY THE FOREST
DEPARTMENT DATED 17.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
EXT.P1(m):TRUE COPY OF THE "PASS" NO.188468 ISSUED BY THE FOREST
DEPARTMENT DATED 17.12.70 TO THE PETITIONER FOR TRANSPORTING MISCELLANEOUS
FIREWOOD FROM PETITIONER'S CASHEW PLANTATION
S. MANIKUMAR, CJ
&
MURALI PURUSHOTHAMAN, J
----------------------------------------------------
W.A.No.434 of 2022
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Dated this the 05th day of April, 2022
ORDER
S. Manikumar, CJ
Before the writ court, respondent/writ petitioner
has sought for the following relief:
Issue a writ in the nature of mandamus
commanding the respondents2and3 to remove the
chain blocking the entrance to the petitioner's
property covered by Ext.P2, and not to prevent any
hindrance for enjoying petitioner's property by
blocking traffic including goods vehicles to
petitioner's property.
2. Short facts leading to the filing of the writ
petition are as under:
2.1. According to the writ petitioner, the writ
petitioner his mother, brother and sisters are the owners
of a total extent of 17.195 hectares of land comprised in
old Sy.No.1/AIA (revised Sy.No.121, 122/1, 122/2, 123/1,
123/2, 124/1, 124/2, 124/3, 124/4) of Akathethara Village
WA NO. 434 OF 2022 ..2..
in Palakkad district. Even when the Kerala Private
Forests (Vesting and Assignment) Act,1971 came into
force, writ petitioners property was not vested with the
Government as forest land, since the property was a
cashew plantation in 1971. Aforesaid cashew plantation is
even exempted under the ceiling provision of Land
Reforms Act, 1963 and plantation is recognized as
industry, by the Government of Kerala. Thus, it is
absolutely clear that even in 1968, writ petitioner and his
family members were conducting cashew plantation
activity, which is a commercial activity.
2.2. On the southern side of the writ petitioner's
property is the property of one Narayana Iyer and there
is a road starting from the Panchayat situated in the
extreme south of entire properties and fire woods were
being transported from the writ petitioner's property
through the aforesaid road. The right for using the road
WA NO. 434 OF 2022 ..3..
is also declared by Ext.P2 judgment dated 31.10.2000 by
the civil court. However, the road which is starting from
Panchayat road and ending in the southern extremity, and
passing through various properties, including private
property and property in possession of forest Department
is being used for ingress and egress of vehicles including
lorries by the petitioner as well as other adjacent private
owners of the land. To the shock of the writ petitioner,
now the respondents had erected a chain across the road,
blocking the passage of vehicles to the petitioner's
property alone.
2.3 While conducting an enquiry, the Range Officer,
the 5th respondent herein informed the writ petitioner to
remove the chain and take vehicles. The Divisional Forest
Officer, the 4th respondent herein informed the writ
petitioner that the department will issue one key to the
petitioner. Later, the Range Officer has informed that no
WA NO. 434 OF 2022 ..4..
vehicles can be taken into the property. Hence, the writ
petitioner cannot use his plantation properly and he
cannot even bring vehicles to the property for better
management of the property. The petitioner contends that
his restriction is only to his property alone.
3. Before the writ court, the respondents opposed
the relief sought for by the writ petitioner.
4. After hearing the respective counsel for the
parties and perusing the materials on record, writ court,
by judgment dated 07.01.2022, ordered as under:
7. The petitioner states that the property in
question is a cashew plantation since the year 1968
and it has not vested with the Government as Vested
Forest under the Kerala Private Forests (Vesting and
Assignment) Act, 1971. But, a Committee appointed
by the Principal Chief Conservator of Forests
conducted a study and held that the land is Vested
Forest as per Notification No.D 1383/77 dated
26.11.1985 and 06.12.1985, contends the 5th
respondent.
8. The Custodian (Ecologically Fragile Lands)
WA NO. 434 OF 2022 ..5..
and Additional Principal Chief Conservator of Forests
(WP&R) in Ext.P3 Order has found that there is a
compound wall around the property building as early
as 1968. The land was planted with cashew and was
replanted in 1988. Ext.P3 Order of the Custodian
(EFL) and Additional Principal Chief Conservator of
Forests (WP&R) would indeed indicate that the land
of the petitioner is not vested forest or EFL though it
lies contiguous to forest land.
9. Ext.P12 communication of the Divisional
Forest Officer states that the land was never involved
in any dispute with Forest Department and is not a
vested Forest. Ext.P12 also asserts that the land is
cashew plantation. A Committee consisting of DFO
and two Assistant Conservators of Forests has also
found in Ext.P17 that the property was not vested
previously under the provisions of the Kerala Forest
(Vesting and Assignment) Act, 1971. Ext.P18
communication of the Divisional Forest Officer
addressed to the Tahsildar in 1985 would also show
that the land in question is a Cashew Plantation.
10. Ext.P1 series of permits would indicate that
vehicular movements were permitted through the
road since the year 1970 for transportation of timber.
Ext.P3 order of the Custodian(Ecologically Fragile
Land) and Additional Principal Chief Conservator of
WA NO. 434 OF 2022 ..6..
Forests (WP&R) would also show that there is a
metal road running east-west with an entry gate to
the area. The contention of the respondents that
there is no road and there is only a pathway, is
therefore unacceptable.
11. The petitioner has been using the road for
plantation purposes and as vehicular access to his
property. The vehicular access has been blocked by
the Forest Officials by placing a chain. The action is
obviously arbitrary. The fact that the road passes
through EFL can also be no reason to deny the
petitioner vehicular access, in the absence of
alternate way to the property of the petitioner. It has
to be noted that the blockade made by the
respondents is not for stopping use of motor vehicles
through the entire length of the road where it passes
through Ecologically Fragile Land. The blockade is
made to deny access only to the petitioner's land.
This is obviously arbitrary. In the facts and
circumstances of the case, the writ petition is
allowed. There will be a direction to respondents 2
and 3 to remove the chain erected blocking the
entrance to the petitioner's property covered by
Ext.P2.
Being aggrieved, the instant writ appeal is filed.
WA NO. 434 OF 2022 ..7..
5. Though Sri.T.P.Sajan, the learned Special
Government Pleader for the Forest Department,
submitted that the property is a vested forest, perusal of
material on record, indicates that there is cashew
plantations since 1968 onwards and it is not vested with
the Government as Vested Forest, under the Kerala
Private Forests (Vesting and Assignment) Act, 1971.
6. The Committee appointed by the Principal Chief
Conservator of Forests, conducted a study and held that
the land is Vested Forest, as per Notifications
No.D1383/77 dated 26.11.1985 and 06.12.1985
respectively.
7. The Custodian (Ecologically Fragile Lands) and
Additional Principal Chief Conservator of Forests
(WP&R), has fairly stated in Ext.P3 order dated
05.03.2014 that there is a compound wall around the
property building as early as 1968. There is a cashew
WA NO. 434 OF 2022 ..8..
plantation and replanted in 1988. The Custodian (EFL)
and Additional Principal Chief Conservator of Forests
(WP&R) has also indicated that the land of the writ
petitioner is not a vested forest or EFL, though it lies
contiguous to forest land. As per Ext.P1 series,
permission has also been granted for transportation from
1970 on wards. Thus, it is evident from the material on
record that the writ petitioner has been using the road
for plantation purposes and for transporting the cashew
and other products cultivated. It is also observed by the
writ court that there is no alternate way to the property
of the writ petitioner and the blockade made to deny
access only to the petitioner's land is obviously arbitrary.
8. During the course of hearing, Sri.T.P.Sajan, the
learned Special Government Pleader, Forest Department,
submitted that when the writ petitioner filed an
application for usage of the road for quarrying activity,
WA NO. 434 OF 2022 ..9..
taking note of the Notification stated supra and EFL, the
chain was put up in 2019. It could be deduced that the
usage of the road for transporting the plantation products
since 1968 has been upheld by the writ court.
9. Further, a reading of the counter affidavit filed by
the 5th respondent in the writ petition indicates that
before the writ court, the 5th respondent has raised a
contention that the passage of vehicles through this area
causes destruction of wild animal habitat and
destruction of wild animals. So, a chain gate was fixed at
the entry point of the above footpath from private area to
EFL. According to the 5th respondent therein, the main
object of fixing chain gate in this area is to avoid
poaching and destructions of natural vegetation and
protect wild animals and Forest.
10. Perusal of the materials on record would indicate
that there are no supporting documents to arrive at a
WA NO. 434 OF 2022 ..10..
conclusion that the passage of vehicles through this area
would cause destruction of wild animal habitat and cause
destruction of wild animals. If the main object of the
chain put in the area is to avoid poaching, the Forest
Officers can always cause sufficient man power to
monitor and to prevent such activity. The road is being
used for many years for plantation purposes and for
transporting cultivated products.
11. Though Sri.T.P.Sajan, learned Special
Government Pleader, submitted that the finding of the
writ court that there is plantation, requires to be revised
and ought to have been adjudicated before the Tribunal,
at this juncture, we are not inclined to interfere with the
same, for the reason that the usage of road should not be
obstructed for the purpose stated supra.
12. In view of the above, though we are inclined to
adjudicate the issues raised in this appeal, we are not
WA NO. 434 OF 2022 ..11..
inclined to grant any stay of the operation of the
impugned judgment, directing removal of the chain put
up by the Forest Department. The direction issued by the
writ court to respondents 2 and 3 therein to remove
chain erected, blocking the entrance to the writ
petitioner's property covered by Ext.P2, be implemented,
pending disposal of the writ appeal.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SB/06/04/2022
05-04-2022 /True Copy/ Assistant Registrar
