Kerala High Court
Issac Varghese vs State Of Kerala Represented By The ... on 12 March, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
1
W.P.(C)No.25542 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
WEDNESDAY, THE 12TH DAY OF MARCH 2025 / 21ST PHALGUNA, 1946
WP(C) NO. 25542 OF 2024
PETITIONERS:
1 ISSAC VARGHESE,AGED 77 YEARS
S/O VARGHESE, 9/25, 301 COLONY, SINGUKANDAM P.O.
CHINNAKANAL VILLAGE, IDUKKI DISTRICT, KERALA,, PIN -
685618
2 ISSAC GEORGE,AGED 66 YEARS
S/O GEORGE, 9/26, 301 COLONY, SINGUKANDAM P.O.
CHINNAKANAL VILLAGE, IDUKKI DISTRICT, KERALA,, PIN -
685618
3 ROJAN THOMAS,AGED 36 YEARS
S/O THOMAS PHILIP, 9/27, 301 COLONY, SINGUKANDAM P.O.
CHINNAKANAL VILLAGE, IDUKKI DISTRICT, KERALA,, PIN -
685618
BY ADVS.
JOHNY K.GEORGE
ATHULYA MARTIN
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY
DEPARTMENT OF FOREST AND WILD LIFE ,GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM,KERALA, PIN - 695001
2 DIVISIONAL FOREST OFFICER
CHINNAKKANAL FOREST RANGE, IDUKKI DISTRICT, KERALA,,
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W.P.(C)No.25542 of 2024
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PIN - 685618
3 KERALA STATE ELECTRICITY BOARD (KSEB), REPRESENTED BY
THE CHAIRMAN
VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, KERALA,,
PIN - 695004
4 ASSISTNT ENGINEER
OFFICE OF ASSISATANT ENGINEER. ELECTRICAL
SECTION,RAJAKUMARI,IDUKKI, PIN - 685619
5 RANGE FOREST OFFICER DEVIKULAM
DEVIKULAM, MUNNAR, KERALA 686513.
6 CHINNAKANAL GRAMA PANCHAYATH REPRESENTED BY ITS
SECRETARY,CHINNAKANAL, IDUKKI, KERALA
7 THE DISTRICT COLLECTOR, IDUKKI
COLLECTORATE IDUKKI, KUYILIMALA, PAINAV P.O., IDUKKI,
KERALA STATE 685603
8 REVENUE DIVISIONAL OFFICER, DEVIKULAM
DEVIKULAM CIRCULAR ROAD, DEVIKULAM, TALUK, KANNAN
DEVAN HILLS, KERALA, 686513 (ADDL R5 TO R8 ARE
IMPLEADED AS PER THE ORDER DTD. 07.08.2024 IN IA
No.1/2024)
BY ADV NIRMAL.S
ADV.NAGARAJ NARAYAN,SPECIAL GOVERNMENT PLEADER(FOREST)
ADV.B.PRAMOD, SC, KSEB
SRI.JAFFAR KHAN, SENIOR GOVERNMENT PLEADER
SRI.K.R PRATHISH, SC, CHINNAKANAL GRAMA PANCHAYAT
THIS WRIT PETITION (CIVIL) WAS FINALLY HEARD ON 06.02.2025,
THE COURT ON 12.03.2025 PASSED THE FOLLOWING:
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W.P.(C)No.25542 of 2024
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JUDGMENT
Muralee Krishna, J.
This writ petition is filed under Article 226 of the Constitution
of India by the petitioners seeking the following reliefs:
"a) Issue a writ of certiorari or any other appropriate writ,
order, or direction, calling for the records relating to the
impugned notices marked as Exts. P5, P5A and P5B issued
by the KSEB on 10.07.2024 to the petitioners and quashing
the same.
b) Issue a writ of mandamus or any other appropriate writ,
order, or direction, restraining the 4th respondent from
disconnecting the electricity supply to the petitioners'
residences till the disposal of this writ petition."
2. Going by the pleadings in the writ petition, petitioners are
members of Scheduled Tribe residing at Chinnakanal in Idukki
District of Kerala State and are beneficiaries of Government
Scheme for land distribution. According to them, they have been
residing in their respective lands since 2006. The 3rd respondent
Kerala State Electricity Board ('KSEB' for short) provided
electricity connections to them on 09.07.2024. The electricity line
was drawn through a notified land for the proposed Suryanelli
Reserve Forest which was originally not a forest land. However,
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the notification was frozen by the Government. But despite such
a step by the Government, the 5th respondent Range Forest
Officer issued a notice to the 4th respondent Assistant Engineer
stating that the electricity line was drawn through the forest land
without consent. Consequently, the 3rd respondent KSEB issued
Exts.P5 to P5B notices dated 10.07.2024 to the petitioners
warning disconnection, if they fail to produce the land records.
Hence the petitioners approached this Court.
3. On 17.07.2024 when this matter came up for
consideration, the learned Special Government Pleader (Forest),
on instructions from the Range Forest Officer, Devikulam,
submitted that the area in question comes under the purview of
Chinnakanal Reserve notified under Section 4 of Kerala Forest Act,
1961, vide G.O.(P)No.19/2023/F & WLD dated 20.09.2023. The
learned Special Government Pleader (Forest) and the learned
Standing Counsel for the KSEB sought time to get instructions.
4. On 22.07.2024 the learned Special Government
Pleader made available for perusal of this Court the notification
mentioned above. After hearing the preliminary submissions of
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both sides, we directed the petitioners to file an application to
implead the Range Forest Officer, Devikulam, Chinnakanal Grama
Panchayat represented by its Secretary, the District Collector,
Idukki and the Revenue Divisional Officer, Devikulam as additional
respondents.
5. On 07.08.2024, we allowed the petitioners'
interlocutory application to implead additional respondents 5 to 8.
6. The 2nd respondent Divisional Forest Officer filed a
counter affidavit denying the pleadings in the writ petition and
contending that the status of the petitioners is of rank trespassers.
Exts.R2 (a) to (d) documents were placed on record along with
the counter affidavit filed by the 2nd respondent.
7. Respondents 3 and 4 filed counter affidavits contending
that the electricity connection given to the sheds put up by the
petitioners was legal and Exts.P5 to P5B notices were issued to
the petitioners only on the basis of the notice issued by the Range
Forest Officer.
8. The 6th respondent Grama Panchayath filed counter
affidavit stating that the petitioners have been residing in that
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area for the last 15 years and it is as per the decision of the
Panchayat committee held on 18.11.2022, Exts P1 to P1B
possession certificates were issued to petitioners to avail
electricity connection. It is further stated in the counter affidavit
of the 6th respondent that Ext.P3 primary notification to declare
the area as a Reserved Forest was frozen by the Government on
10.07.2024.
9. Heard the learned counsel for the petitioners, the
learned Standing Counsel for the KSEB, the learned Special
Government Pleader for the Forest department, the learned
Standing Counsel for Chinnakanal Grama Panchayat and the
learned Senior Government Pleader.
10. The learned counsel for the petitioners would submit
that the petitioners are victims of an interdepartmental dispute
between the Forest Department and KSEB. The petitioners have
been in possession of the land in question from 2006 onwards.
Exts P1 to P1B possession certificates issued by the Panchayat
prove their possession and based on those documents electricity
connection was given to the sheds put up by them in the
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property. It was on the basis of a letter sent by the Forest
Department to the Electricity Department, Exts.P5 to P5B notices
were issued by the 2nd respondent to the petitioners. But in order
to claim the land as forest on the basis of notification issued by
the Government, the objections of persons claiming right over that
land shall be heard and decided by the Forest settlement officer
appointed under Section 4 of the Kerala Forest Act. The duty to
obtain permission to draw the line, if necessary, from the Forest
Department is upon the KSEB and the petitioners have no duty to
get the permission from the Forest Department.
11. The learned Standing Counsel for KSEB submitted that
as per the policy of the Government, for ease of doing business,
possession certificate alone is sufficient to give electricity
connection. Hence, on the request of the petitioners, electricity
connection to the sheds put up by them was given on
08.07.2024. Two other persons residing in that area had already
obtained electricity connection on 12.04.2017 and 12.08.2023,
respectively.
12. The learned Standing Counsel for Chinnakkanal Grama
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Panchayat submitted that temporary numbers were assigned to
the sheds put up by the petitioners for revenue collection. As per
Section 235AA of Kerala Panchayat Raj Act 1994, the Panchayat
has a duty to assign such special numbers for unauthorised
buildings and maintain ward-wise special registers recording the
survey number and other details.
13. The learned Special Government Pleader (Forest)
submitted that the petitioners are the tools in the hands of the
land mafia. They have recently trespassed into the area notified
under Section 4 of the Kerala Forest Act and put up makeshift
sheds. Altogether six persons have made such encroachments.
Once notification under Section 4 is issued, no construction is
permitted on that land and it has to be treated as forest land. In
support of his arguments, the learned Special Government Pleader
relied on the judgment of this Court in State of Kerala v. New
World Investment [ILR 2016 (1) Ker. 817].
14. Ext.P1 series are the ownership certificates dated
09.05.2024 issued to the petitioners by the 6 th respondent
Chinnakanal Grama Panchayat, for getting electricity
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connection. The building numbers were shown in those
documents as 25/UA, 26/UA and 27/UA in ward No.9 of
Chinnakanal Grama Panchayat. The 2nd respondent in its counter
contended that the sheds were put up by the petitioners only in
the year 2024. Though the petitioners say that they have been in
occupation of land from 2006 onwards, they did not produce any
document to substantiate the said claim. On the other hand,
Ext.P1 series would show that possession certificates were issued
to them only on 09.05.2024. According to the 3rd respondent
KSEB, electricity connection was given to the petitioners on
08.07.2024 alone. Though in the counter affidavit of the 6 th
respondent Chinnakkanal Grama Panchayath, it is stated that the
petitioners have been in occupation of the land for the past 15
years, it is admitted by the Panchayath that the temporary
building number alone was given to the petitioners, that also in
the year 2024. These facts disprove the claim of the petitioners
that they have been in possession of the land from 2006 onwards.
15. Though the petitioners claim that they are beneficiaries
of a Government Scheme for land distribution, the details of the
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Scheme are not pleaded in the writ petition. How the petitioners
came into possession of the land is also not pleaded in the writ
petition, except relying on Ext.P1 series possession certificates.
Ext.P2 series are the property tax receipts in respect of the sheds
covered by Ext.P1 series ownership certificate for the 1 st and
2nd half of 2024-25. Ext.P6 is a receipt issued to the 3rd petitioner
from the office of the 7th respondent District Collector, Idukki
regarding acceptance of an application on 03.03.2022 for issuance
of patta. The pleadings pertaining to the title of the petitioners are
completely absent in the writ petition. The documents produced
by the petitioners support the contention of the 2 nd respondent
that the petitioners came into possession of the property in the
year 2024.
16. From the counter affidavit of the 2nd respondent and
from the submissions made at the Bar, we could gather that the
Government had identified an extent of 301 acres of land in survey
No.34/1 of Chinnakanal Village for rehabilitation of landless tribal
people under the Kerala Assignment of Government Land to
Scheduled Tribes Rules 2001 and that area is known as 301
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Colony. Though the address of the petitioners was shown as 301
Colony in the cause title of the writ petition, from the submissions
made at the Bar as well as from the counter affidavit, it is clear
that the subject matter property is not in 301 Colony.
17. The property where sheds are constructed by the
petitioners is notified as a proposed Reserved Forest under Section
4 of the Kerala Forest Act. Though the petitioners and 6 th
respondent say that the proposal was later dropped by the
Government, respondents 1 and 2 contended that no such
decision was taken by the Government. As per Section 7(1) of the
Kerala Forest Act, during the interval between the publication of
the notification under Section 4 and the date fixed by the
notification under Section 19, no right shall be acquired in or over
the land included in such notification under Section 4, except
under a grant or contract in writing made or entered into by, or on
behalf of the Government or by, on behalf of, some person on
whom such right or power to create the same was vested when
the notification under Section 4 was published or by succession
from such person; and no clearing shall be made on such land,
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nor shall any person cut, correct, or remove any forest produce
nor shall set fire to such land or kindle or leave burning any fire in
such manner as to endanger the same. As per Section 7(2) of the
Act, even a patta granted by Revenue authorities in the proposed
reserved forest without previous sanction of the Government is
null and void.
18. The final notification declaring the reserved forest has
to be issued by the Government under Section 19 of the Kerala
Forest Act. As per Section 22, no right of any description shall be
acquired in or over a reserved forest except under a grant or
contract in writing made by or on behalf of the Government or by
or on behalf of some person in whom such right or the power to
create such right was vested when a notification under Section 19
was published or by succession from such person. The proviso to
the said Section says that no patta shall, without the previous
sanction of the Government, be granted for any land included
within a reserved forest and every patta granted without such
sanction shall be null and void. The penalties for trespass or
damage in reserved forest and acts prohibited in such forest are
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applicable even to the land proposed to be constituted as a
reserved forest. So till the final notification under Section 19 of
the Kerala Forest Act, the proposed Reserved Forest Land not filed
under Section 4 has the status of Reserved forest and is under the
control of the Forest department.
19. In New World Investment (P) Ltd [ILR 2016 (1)
Ker 817], after elaborately considering the various provisions
under the Kerala Forest Act and also under the law existed prior
to the enactment, this Court held that;
"26. A perusal of the aforesaid statutory provisions of
Regulation III of 1080, 1951 Act and 1961 Act makes it clear
that after an area is declared as reserved forest, there is
prohibition of right of any description under the reserved
forest and the statutory scheme admit only following two
contingencies when acquisition of any right can be admitted.
They are: (i) a grant or contract in writing made by or on
behalf of the Government and (ii) by or on behalf of some
person in whom such right or the power to create such right
was vested when the notification under S.19 was published
or by succession for such person."
20. From the pleadings and materials on record and the
submissions made at the Bar, it is clear that the petitioners put up
temporary sheds in an area notified under Section 4 of the Kerala
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Forest Act and obtained electricity connection by making use of
temporary numbers assigned to those sheds by the Grama
Panchayat. As per the provisions read above, the petitioners
cannot claim any right over an area notified under Section 4 of the
Kerala Forest Act. Though petitioners as well as the 6th respondent
Grama Panchayat, contend that the notification was cancelled by
the Government, except Ext.P3 paper cutting dated 04.12.2023,
which has no evidentiary value, no document has been produced
by them to prove the same. In such circumstances, the petitioners
are not entitled to any of the reliefs sought in the writ petition.
In the result, the writ petition stands dismissed.
Sd/-
ANIL K.NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
sks
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APPENDIX OF WP(C) 25542/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE OWNERSHIP CERTIFICATE
OF PETITIONER 1 DATED 09.05.2024
Exhibit P1A THE TRUE COPY OF THE OWNERSHIP CERTIFICATE
OF PETITIONER 2 DATED 09.05.2024
Exhibit P1B THE TRUE COPY OF THE OWNERSHIP CERTIFICATE
OF PETITIONER 3 DATED 09.05.2024
Exhibit P2 THE TRUE COPY OF THE RECEIPT OF NO DUES TO
GOVERNMENT ISSUED BY CHINNAKANAL GRAMA
PANCHAYAT TO THE PETITIONER 1 DATED
09.05.2024
Exhibit P2A THE TRUE COPY OF THE RECEIPT OF NO DUES TO
GOVERNMENT ISSUED BY CHINNAKANAL GRAMA
PANCHAYAT TO THE PETITIONER 2 DATED
10.05.2024
Exhibit P2B THE TRUE COPY OF THE RECEIPT OF NO DUES TO
GOVERNMENT ISSUED BY CHINNAKANAL GRAMA
PANCHAYAT TO THE PETITIONER 3 DATED
09.05.2024
Exhibit P3 THE TRUE COPY OF DOCUMENT OF THE PAPER
CUTTING REGARDING FREEZING OF NOTIFICATION
ON PUBLISHED IN MALAYALA MANORAMA ON
04.12.2023
Exhibit P4 THE TRUE COPY OF THE DOCUMENT PAPER CUTTING
REGARDING THIS ISSUANCE OF NOTICE TO THE
PETITIONERS PUBLISHED IN MALAYALA MANORAMA
DAILY DATED 13.07.2024
Exhibit P5 THE TRUE COPY OF THE NOTICE ISSUED BY THE
KSEB TO THE PETITIONER 1 TO PRODUCE THE
LAND RECORDS ON 10.07.2024
Exhibit P5A THE TRUE COPY OF THE NOTICE ISSUED BY THE
KSEB TO THE PETITIONER 2 TO PRODUCE THE
LAND RECORDS ON 10.07.2024
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Exhibit P5B THE TRUE COPY OF THE NOTICE ISSUED BY THE
KSEB TO THE PETITIONER3 TO PRODUCE THE LAND
RECORDS ON 10.07.2024
Exhibit P6 THE TRUE COPY OF THE RECEIPT ISSUED BY THE
REVENUE DEPARTMENT TO THE 3RD PETITIONER
DATED 03.03.2022 REGARDING THE SUBJECT
MATTER OF PATTAYAM
Exhibit P7 THE TRUE COPY OF THE PHOTOGRAPH OF THE
HOUSE OF THE PETITIONER 1
RESPONDENT EXHIBITS
EXHIBITR2(B) TRUE COPY OF THE NOTICE ISSUED VIDE
NO.D101/2024 DATED 10.07.2024 TO THE
ASST.ENGINEER KSEB,RAJAKUMARI
EXHIBITR2(C) TRUE COPY OF FORM 1 IN OR 28/2019 OF THE
DEVIKULM FOREST RANGE DATED 30/08/2019
EXHIBITR2(D) TRUE COPY OF THE FORM 1 IN OR 22/2021OF THE
DEVIKULAM FOREST RANGE DATED 13/08/2021
EXHIBITR2(A) TRUE COPY OF THE NOTIFICATION ISSUED VIDE
GO(P)19/2023/FAND WLD DATED 20/09/2023
