Allowed

Joseph v. State of Kerala

Kerala HC3 Dec 2020WP(C)/16640/2020

Case brief

AI extract

What is this about?

The High Court allowed a Writ Petition directing the Divisional Forest Officer to remove Jendas from land in Palakkad which a Tribunal had already declared was not Ecologically Fragile Land under the Kerala Forest Act, 2005. The Court ordered the restoration of properties to the petitioners despite pending appeals.

What did the court decide?

Directed the 3rd Respondent to remove Jendas and restore properties in O.A. Nos. 30 and 31 of 2010 to the petitioners forthwith.

Joseph Vs State of Kerala — Land Acquisition | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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THURSDAY, THE 03RD DAY OF DECEMBER 2020/12TH AGRAHAYANA, 1942

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WP(C).No.16640 OF 2020(D)

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PETITIONERS:

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1 JOSEPH, AGED 49 YEARS, S/O.KURIAKOSE, KANJIRAMKUZHY HOUSE, KANJIKULAM POST, KALLADIKODE-678 596, PALAKKAD DISTRICT.

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2 MINI, AGED 47 YEARS, W/O.JOSEPH, KANJIRAMKUZHY HOUSE, KANJIKULAM POST, KALLADIKODE-678 596, PALAKKAD DISTRICT.

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BY ADVS. SHRI.SARATH M.S. SRI.B.PREMNATH (E)

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE PRINCIPAL CHIEF CONSERVATOR OF FOREST, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.

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3 THE DIVISIONAL FOREST OFFICER, MANNARKKAD-678 582, PALAKKAD DISTRICT.

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SPL GOVERNMENT PLEADER (FORESTS) SRI. NAGARAJ NARAYANAN, GOVERNMENT PLEADER SRI B.R.MURALEEDHARAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

~ ~ ~ ~ ~ ~ ~ ~ ~

Dated this the 3^rd day of December, 2020

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The petitioners seek to issue a writ of Mandamus directing the Divisional Forest Officer, Mannarkkad to remove Jendas, if any, erected and restore the properties in O.A. No.30/2010 and O.A.No.31/2010 on the files of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal, Palakkad.

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Petitioners 1 and 2 are husband and wife. The petitioners state that the 1^st petitioner is the absolute owner of 58.31 cents of land in Survey No.2288 Pt. situated in Palakkayam Village, Mannarkkad Taluk. The 1^st petitioner is in actual possession and enjoyment of the property. The Forest Department declared the said land as vested forest under Ecologically Fragile Lands Act. The 1^st petitioner thereupon filed O.A. No.30/2010 before the Kerala Forest

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(Vesting and Management of Ecologically Fragile Lands) Tribunal, Palakkad. On 25.09.2018, after a period of eight years, the Tribunal declared that the property involved in O.A. No.30/2010 is not under the ambit of the EFL (Ecologically Fragile Lands) Act. The Tribunal, as per Ext.P1 order, directed the respondents not to interfere with the possession or enjoyment of the property by the 1^st petitioner.

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The 2^nd petitioner had 37.5 cents of land in Survey No.2288 Pt. in the same Village. The 2^nd petitioner was also in actual possession and enjoyment of the property. The property is not forest land. Still the officials of the Forest Department erected jendas stating that the said land is Ecologically Fragile Land. The 2^nd petitioner thereupon filed O.A. No.31/2010 before the Tribunal. The said O.A. was also ordered on 10.04.2018 as per Ext.P2. By Ext.P2, the Tribunal declared that the 2^nd petitioner's property is not an Ecologically Fragile Land. The petitioners state that they are farmers and living from the income derived from the properties involved in OA Nos. 30/2010 and 31/2010.

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The petitioners filed Ext.P3 and P4 applications on 10.02.2019 before the Divisional Forest Officer seeking restoration of their respective property. Their applications were not processed. The petitioners thereafter filed Exts.P5 and P6 applications. Exts.P7 and P8 applications were filed before the Chief Secretary to the Government of Kerala also. Their applications are not considered. At the same time, the Forest Officials are threatening the petitioners. Under the circumstances, the petitioners seek interference of this Court and a direction to remove jendas, if any, erected in their land.

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I have heard learned counsel for the petitioners and learned Special Government Pleader (Forests) appearing for respondents 1 to 3.

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Ext.P1 application was filed by the petitioner in the year 2010, under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2005. The Divisional Forest Officer contested the said O.A. filing written statement. The Tribunal considered the oral evidence of PW1 and RW1 and examined Exts. A1 to A12 and B1 and

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C1 produced in the court. After appreciation of evidence, the Tribunal allowed the O.A. and declared that the property of the 1^st petitioner is not Ecologically Fragile Land vested in the Government. The Tribunal further directed respondents 1 to 3 that they shall not in any way interfere with the 1^st petitioner's possession or enjoyment of the property.

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Similarly, the 2^nd petitioner also filed O.A. No.31/2010. Exts.A1 to A6 documents were produced by the 2^nd petitioner. The 2^nd petitioner examined herself as DW1. The respondents produced Exts.B1 and B2 documents and examined Range Forest Officer as RW1. A Commission Report was marked as Ext.C1. The Tribunal, after detailed appreciation of evidence, declared that the scheduled property of the 2^nd petitioner extending in total to 37.5 cents, is not Ecologically Fragile Land.

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It may be noted that the petitioners filed the Original Applications before the Tribunal in the year 2010 and orders were delivered only after prolonged litigations extending to eight years, in 2018. The petitioners thereafter

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submitted Exts.P3 and P4 applications before the 3^rd respondent seeking to remove the jendas, if any, erected and technically restore the land to the petitioners. However, the respondents have not removed jendas so far, but officials are continuing to harass the petitioners.

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The learned Government Pleader would submit that Exts.P1 and P2 orders of the Tribunal are illegal and the respondents were proceeding to file appeal against the said orders. Exts.P1 and P2 were passed on 25.09.2018 and 10.04.2018 respectively. The petitioners could get orders from the Tribunal in their favour, after undergoing horrendous litigations prolonging to eight years. The petitioners represented before the respondents immediately thereafter to avail the benefits of the orders passed by the Tribunal. However, the grievance of the petitioners remains unredressed.

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The learned Government Pleader would submit that O.A. No.53/1997 filed in respect of the same land was dismissed by the Tribunal earlier and the appeal MFA

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No.1010/2020 filed thereon also stands dismissed by this Court. The Government Pleader submits that the Government is proposing to file appeals against Exts.P1 and P2 orders of the Tribunal and hence this Court should desist from passing any orders in this writ petition.

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This Court is not inclined to accept the submission made by the Government Pleader. The petitioners have been litigating for the last one decade for peaceful enjoyment of their property. A competent Tribunal, after confronted litigations, has passed orders in favour of the petitioners. More than two years have lapsed since passing of Exts.P1 and P2 orders and the respondents have not filed appeal against those orders in spite of the expiry of two years. Under the circumstances, the respondents cannot be heard to contend that orders need not be passed in this writ petition since Government is proposing to file appeals.

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In the facts and circumstances stated above, this writ petition is allowed. The 3^rd respondent is directed to remove jendas, if any, erected in the property of the

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petitioners. The respondents shall restore the properties in OA Nos.30 and 31 of 2010 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal,

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Palakkad, to the petitioners forthwith.

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Sd/- N. NAGARESH, JUDGE

aks/07.12.2020

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APPENDIX

PETITIONERS' EXHIBITS:

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EXHIBIT P1	TRUE COPY OF	THE JUDGMENT IN OA NO.30/2010
	ON THE FILE O AND MANAGEMEN LANDS) TRIBUNA	F THE KERALA FOREST (VESTING T OF ECOLOGICALLY FRAGILE L, PALAKKAD DATED 25.09.2018.
EXHIBIT P2	TRUE COPY OF J 10.04.2018 ON (VESTING AND FRAGILE LANDS)	UDGMENT IN OA NO.31/2020 DATED THE FILE OF THE KERALA FOREST MANAGEMENT OF ECOLOGICALLY TRIBUNAL, PALAKKAD.
EXHIBIT P3	TRUE COPY OF	APPLICATION DATED 10.02.2019
	FILED BY THE DIVISIONAL FOR	1ST PETITIONER BEFORE THE EST OFFICER.
EXHIBIT P4	TRUE COPY OF	APPLICATION DATED 10.02.2019
	FILED BY THE DIVISIONAL FOR	2ND PETITIONER BEFORE THE EST OFFICER.
EXHIBIT P5	TRUE COPY OF 1ST PETITIONER CONSERVATOR OF	DATED 16.01.2020 FILED BY THE BEFORE THE PRINCIPAL CHIEF FOREST, GOVERNMENT OF KERALA.
EXHIBIT P6	TRUE COPY OF FILED BY THE	APPLICATION DATED 16.01.2020 2ND PETITIONER BEFORE THE
	PRINCIPAL CHI GOVERNMENT OF	EF CONSERVATOR OF FOREST, KERALA.

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EXHIBIT P7	TRUE FILED PETIT	COPY BEFOR IONER.	OF APPLICATION DATED 16.01.2020 E THE CHIEF SECRETARY BY THE 1ST
EXHIBIT P8	TRUE FILED PETIT	COPY BEFOR IONER.	OF APPLICATION DATED 16.01.2020 E THE CHIEF SECRETARY BY THE 2ND
EXHIBIT P9	TRUE 16.01 DAILY	COPY .2019 .	OF NEWSPAPER PUBLICATION DATED APPEARED IN MALAYALA MANORAMA

Joseph v. State of Kerala

Case brief

What is this about?

What did the court decide?

Joseph v. State of Kerala

Case brief

What is this about?

What did the court decide?

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