Dismissed

The Sukhiya Muhammadiya Trust v. the District Forest Officer

Kerala HC1 Oct 2019WP(C)/16945/2018

Case brief

AI extract

What is this about?

This writ petition challenging a Forest Department order for seizing a residential house on disputed land was dismissed. The court held that the petitioner failed to prove title, finding the property to be vested forest under Section 3(1) of the Kerala Forest (Vesting and Assignment) Act, 1971. Consequently, the eviction order was sustained.

What did the court decide?

Writ petition dismissed; prayers to quash notice and remove seal rejected; petitioner to be evicted from vested forest.

The Sukhiya Muhammadiya Trust Vs the District… — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 01ST DAY OF OCTOBER 2019 / 9TH ASWINA, 1941

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WP(C).No.16945 OF 2018(P)

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PETITIONER:

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THE SUKHIYA MUHAMMADIYA TRUST SUKHIYA CENTRE, BUILDING NO.592,CHERUVATTA, KARUVATTOOR, KOZHIKODE DISTRICT,REPRESENTED BY ITS TRUSTEE MUHAMMED VALLAKKAL,S/O.KUNHIMU, GOSALAKKAL, MERIKUNNU,PARUVILKADAVU.P.O., KOZHIKODE.

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BY ADV. SRI.SUNNY MATHEW

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RESPONDENTS:

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1 THE DISTRICT FOREST OFFICER OFFICE OF THE DISTRICT FOREST OFFICER,KOZHIKODE.

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2 THE FOREST RANGE OFFICER OFFICE OF THE DISTRICT OFREST OFFICER,THAMARASSERY, KOZHIKODE DISTRICT.

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3 THE TAHSILDAR THAMARASSERY TALUK,KOZHIKODE DISTRICT.

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4 THE DISTRICT COLLECTOR COLLECTORATE, KOZHIKODE.

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5 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,FOREST DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.

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ADV. SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-082019, THE COURT ON 01-10-2019 DELIVERED THE FOLLOWING:

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WP(C).No.16945 OF 2018(P) 2

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JUDGMENT

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This writ petition is filed seeking the

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following prayers :-

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''i) To issue a writ of certiorari or any other appropriate writ order or direction quashing Exhibit P8 notice dated 30.4.2018 issued by the 2^nd respondent.

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ii) To issue a writ of mandamus or any other appropriate writ order or direction commanding the 2^nd respondent to remove the seal put on the residential house of the petitioner.

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iii) To issue a writ of mandamus or any other appropriate writ order or direction commanding respondents 1 and 2 and officers under them not to enter into or make measurements or alter the boundaries of the property covered by Exhibit P1 gift deed comprised in survey No.163/11-2 Pt of Thiruvampady village.

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WP(C).No.16945 OF 2018(P) 3

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iv) To declare that the action of the 2^nd respondent in trespassing into the petitioner's property comprised in survey No.163/11-2 Pt of Thiruvambady village, taking forcible possession of the petitioner's residential house, measuring the property aforesaid and altering the boundary of the petitioner's property etc., as illegal.''

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It is submitted by the learned

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counsel for the petitioner that the petitioner is the owner in possession of 3.36 acres of land in survey No.163/11-2 Pt of Thiruvampady village in Kozhikode

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District. It is also submitted that the petitioner obtained the property by way of Ext.P1 gift deed dated 9.5.2017. It is stated that the property was originally assigned to one Smt.Radhamani Madhavan Nair by the Land Tribunal, Mukkam as per

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WP(C).No.16945 OF 2018(P) 4

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O.A.No.467/1970. It is stated that Ext.P2 purchase certificate dated 3.7.1972 was issued to the said Radhamani Madhavan Nair. It is stated that the property changed to many hands and Sri.Noorudheen purchased the property from several persons and the property was gifted to the petitioner's trust. It is stated that there is a residential building in the property. Ext.P3 being the building permit and Ext.P4 is the basic tax receipt. Ext.P5 possession certificate issued by the Village Officer, Thiruvampady is also produced. Ext.P6 purporting to be the plan of the property is also produced by the petitioner. Ext.P7 plan issued by the Divisional Forest Officer is also produced and it is contended that the property

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WP(C).No.16945 OF 2018(P) 5

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comprised in survey Nos.163/9, 163/10 and 163/11 of Thiruvampady village are private properties including the property of the petitioner. It is contended that officers of the Forest Department have started measurement and survey of the properties including the property of the petitioner and are proposing to take over the property belonging to the petitioner. It is stated that respondents 1 and 2 and officers under them have trespassed into the petitioner's property and affixed a notice stating that the Forest Department has taken possession of the residential

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house on behalf of the State. Ext.P8 notice dated 30.4.2018 which is said to

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have been affixed by the second respondent in the residential house within the

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WP(C).No.16945 OF 2018(P) 6

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property of the petitioner is produced and challenged in this writ petition. It is

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submitted that the petitioners have proper

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title over the property and as such, taking over the property by the

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respondents is completely untenable.

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A statement has been filed by the

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first respondent stating that the petitioner's claim ownership of 3.36 acres land in survey No.163/11-2 in Thiruvampady village on the basis of Exts.P1 and P2.

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It is stated that Ext.P2 shows that the property covered by the same is in survey No.162 of the Kodenchery village and has

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not connected with the property in question. It is submitted that the entire land in survey No.163/11-2 is private forest which is vested in the Government

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WP(C).No.16945 OF 2018(P) 7

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as on 10.5.1971 as per provisions under

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section 3(1) of the Kerala Forest (Vesting and Assignment) Act, 1971. It is stated that the above lands were demarcated with

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survey stones during 1974-77. The above

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vested land was notified as vested forest

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in the year 1980 as per Ext.R1(C) notification dated 25.7.1980. Ext.R1(d)

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demarcation sketch is also produced along with the statement. It is stated that the petitioner had encroached into the above forest land and constructed a resort building in the above vested forest. It is stated that the total extent of private lands in survey No.163/11 is only 0.85

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hectors and this private land has been

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demarcated in the field survey as survey no.163/11-1. It is stated that a detailed

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WP(C).No.16945 OF 2018(P) 8

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survey of the vested forest boundaries in

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survey No.163/11-2 and adjoining areas was

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carried out and it was found that about

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10.00 acres of vested forest was under

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encroachment. Ext.R1(e) report of

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Divisional Surveyor is produced in support of the said contention. It is submitted that the Forest Range Officer,

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Thamarassery had registered an offence as O.R.No.11/2018 on 24.4.2018 for the above

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encroachment and clearing of vested forest. It is submitted that, though one

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Ali Akbar had approached the first respondent on 23.4.2018 and had promised to submit the documents in connection with

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the property in question, no such documents have been produced. It is stated

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that Ext.R1(g) proceedings had been issued

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WP(C).No.16945 OF 2018(P) 9

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by the first respondent on 28.4.2018

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taking note of all the documents submitted, on a finding that the documents are not connected with the vested forest

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in survey No.163/11-2, the first

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respondent had directed taking possession of the building and the encroached forest land with immediate effect. It is

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submitted that Ext.P2 purchase certificate is in respect of properties comprised in survey No.162 of the Kodenchery village and Ext.P1 would show that the property which has been conveyed by the same is unsurveyed property. It is stated that Ext.P3 building permit issued to one

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Noorudeen in respect of unsurveyed

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property in Thiruvampady village and Ext.P4 tax receipt and Ext.P5 possession

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WP(C).No.16945 OF 2018(P) 10

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certificate would also show that the

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property mentioned therein is an

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unsurveyed land. It is submitted that the

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entire property in survey No.163/11-2 of Thiruvampady village is notified forest land and the petitioner has no claim or ownership over the said properties.

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A reply affidavit has also been

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preferred by the petitioner. It is stated that a decision had been taken in 1961 to divide Thiruvampady village into two and

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to create a new village as Kodanchery village and the details had been entered in Ext.P2 Patta on the basis of the said

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bifurcation as informed to the Land

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Tribunal. It is stated that the entire

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property in survey No.162 (Pt) and 75% of

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the land in survey No.163(Pt) of the

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WP(C).No.16945 OF 2018(P) 11

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Thiruvambady had been included in the

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Kodanchery village since the said lands were on the southern side of the river Eravnhi. Thereafter, a decision had been taken to retain the properties in survey Nos.162 and 163 in Thiruvambady village itself and the Eravanhi river was taken as a natural boundary between the Thiruvambady and Kodanchery villages. Ext.P6 certificate to this effect is produced by the petitioner along with the reply affidavit. It is further contended that a joint verification by the revenue department and the forest department has been ordered by Ext.P7 Government Order dated 31.8.1989 and without such a joint verification being conducted, the

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respondents cannot insist that the

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WP(C).No.16945 OF 2018(P) 12

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property in question is forest land. Ext.P10 certificate issued by the Village Officer, Thiruvambady on 17.5.2018 stating that the property covered by Ext.P2 Pattayam is in all survey No.163 (Pt) and not finally resurveyed is also produced along with an application to receive

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documents.

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I have considered the contentions advanced. The petitioner claims title over

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the property on the basis of Ext.P1 registered gift deed. Ext.P1 is dated 9.5.2017. It refers to Ext.P2 purchase certificate No. 517 of 1972 and the various conveyances pursuant thereto. Ext.P2 shows that the property assigned is in survey No.162 of the Kodanchery village. However, the resurvey number in

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WP(C).No.16945 OF 2018(P) 13

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Ext.P1 is shown as unsurveyed. With respect to the old survey number also, the schedule to Ext.P1 document shows the property as unsurveyed. The building permit and possession certificates also refers to the unsurveyed property. The petitioner relies on Ext.P6 and Ext.P7 to contend that the petitioner's property is a private holding. Ext.R1(a) detailed location sketch has been produced by the respondents. The entire property in survey No.163 is shown in the said sketch. It is specifically contended that the entire area in survey No. 163/11-2 is vested Forest in terms of Ext.R1 (c) notification dated 27.5.1918. It is stated that it is

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within the vested forest in survey No.163/11-2 that a resort building has

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WP(C).No.16945 OF 2018(P) 14

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been constructed by the petitioner. It is

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stated that during verification of forest boundaries, this illegal encroachment was

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noticed and after verification of the documents, Ext.R1(g) proceedings were issued as early as on 28.4.2018 taking over the possession of the building and

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illegally occupied vested forest from the petitioner. It is stated that on the basis of an interim order passed by this

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Court on 28.5.2018, the petitioner is

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continuing in illegal possession of the forest land to which he has absolutely no

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title.

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On a consideration of the documents

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produced on either side, I find that the

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petitioner has not produced any documents to show that he has any valid title over

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WP(C).No.16945 OF 2018(P) 15

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any property in survey No.163/11-2 of the Thiruvambady village. The petitioner's claim for title stems from Ext.P2 Pattayam. Ext.P2 would not show that the Pattayam is issued in respect of any property in survey No.163/11-2. The other documents produced by the petitioner is in respect of unsurveyed land in Thiruvambady village.

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In view of Ext.R1(c) notification

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under the Kerala Private Forest (Vesting and Assignment) Act, 1971 as also the specific averment in the counter affidavit to the effect that the entire property in survey No.163/11-2 is vested forest, I am of the opinion that the challenge raised

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in the writ petition as against Ext.P8 order cannot be sustained. The petitioner

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WP(C).No.16945 OF 2018(P) 16

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in the writ petition submits that in the

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wrongly stated as being situated in survey

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No.163/10. If the petitioner has any property in survey No.163/10 and such property is not forest land, it may be

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opened to the petitioner to claim

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ownership and possession in respect of the

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said property. However, in respect of property in survey No.163/11-2, in view of the specific averment that the entire property in survey No.163/11-2 of the Thiruvambady village is vested forest, I am of the opinion that the prayer sought

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for in this writ petition is not liable to

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be allowed. In case the petitioner is in possession of any vested forest, the

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WP(C).No.16945 OF 2018(P) 17

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respondents have every right and indeed the duty, to evict the petitioner from such illegal occupation and to preserve the forest land free from such encroachments and the applications.

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In the above view of the matter, the prayers made in the writ petition cannot be granted. The writ petition fails and the same is accordingly dismissed.

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SD/-

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ANU SIVARAMAN JUDGE

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ACM

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WP(C).No.16945 OF 2018(P) 18

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT	P1 : TRUE COPY OF REGISTERED GIFT DEED EXECUTED BY NOORUDHEEN IN FAVOUR OF THE PETITIONER.
EXHIBIT	P2 : TRUE COPY OF THE PURCHASE CERTIFICATE DATED 3.7.1972 WITH RESPECT TO THE PROPERTY IN FAVOUR OF RADHAMANI MADHAVAN NAIR.
EXHIBIT	P3 : TRUE COPOY OF BUILDING PERMIT HAVING NO.BL 191/1516 DATED 29.9.2015 ISSUED TO SRI.NOORUDHEEN.
EXHIBIT	P4 : TRUE COPOY OF THE LATEST TAX RECEIPT DATED 21.5.2018 WITH RESPECT TO THE PETITIONER'S PROPERTY.
EXHIBIT	P5 : TRUE COPY OF THE POSSESSION CERTIFICATE DATED 19.5.2018 ISSUED BY THE VILLAGE OFFICER, THIRUVAMBADY.
EXHIBIT	P6 TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, THIRUVAMBADY DATED 17-05-2018
EXHIBIT	P6 TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, THIRUVAMBADY DATED 17-05-2018
EXHIBIT	P7 TRUE COPY OF G O M S 655/89 RD DATED 31-08-1989 ISSUED BY THE GOVERNMENT OF KERALA
EXHIBIT	P7 TRUE COPY OF G O M S 655/89 RD DATED 31-08-1989 ISSUED BY THE GOVERNMENT OF KERALA

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WP(C).No.16945 OF 2018(P) 19

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EXHIBIT P8	TRUE 1ST	COPY OF THE REPLY GIVEN BY THE RESPONDENT DATED 13-12-2017
EXHIBIT P8	TRUE 1ST	COPY OF THE REPLY GIVEN BY THE RESPONDENT DATED 13-12-2017
EXHIBIT P9	TRUE THE AREA	COPY OF THE SKETCH PREPARED BY AUTHORITIES REGARDING THE LANDS IN
EXHIBIT P10	TRUE 2018 THIR	COPY OF CERTIFICTE DATED 17-05- ISSUED BY THE VILLAGE OFFICER, UVAMBADY

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RESPONDENT'S/S EXHIBITS:

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ANNEXURE R1(A)	TRUE SURVE VILLA	COPY OF THE LOCATION SKETCH IN Y NUMBER 163/11 OF THIRUVAMBADY GE
ANNEXURE R1(B)	TRUE THE D FORES THIRU	COPY OF THE LAND REGISGER SHOWING ETAILS OF DEMARCATED VESTED TS IN SURVEY NUMBER 163/11 OF VAMBADY VILLAGE
ANNEXURE R1(C)	TRUE 25-07	COPY OF THE NOTIFICATION DATED -1980
ANNEXURE R1(D)	TRUE	COPY OF THE DEMARCATION SKETCH
ANNEXURE R1(E)	TRUE DIVIS	COPY OF THE REPORT OF THE IONAL SURVEYOR
ANNEXURE R1(F)	TRUE BY SR	COPY OF THE STATEMENT SUBMITTED I. ALL AKBAR ON 23-04-2018
ANNEXURE R1(G)	TRUE 1ST R	COPY OF THE PROCEEDINGS OF THE ESPONDENT DATED 28-04-2018
ANNEXURE R1(H)	TRUE 2018	COPY OF THE MAHAZAR DATED 30-04-
ANNEXURE R1(I)	TRUE 2018	COPY OF THE MAHAZER DATED 23-04- IN OR NO. 11/2018

The Sukhiya Muhammadiya Trust v. the District Forest Officer

Case brief

What is this about?

What did the court decide?

The Sukhiya Muhammadiya Trust v. the District Forest Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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