Dismissed

Kerala Karshaka Samrakshana Association, v. State of Kerala

Kerala HC5 Oct 2020WP(C)/19416/2020

Case brief

AI extract

What is this about?

The Division Bench dismissed a public interest writ petition filed by a farmers' association seeking land assignment. The court held the petition was not maintainable as it asserted individual rights, found material suppression of facts regarding prior judgments on the same issue, and ruled declaratory reliefs were unsustainable.

What did the court decide?

Writ petition dismissed; costs of Rs.10,000 imposed on petitioners to be paid to the Forest Department.

Kerala Karshaka Samrakshana Association, Vs… — Pension and Retirement Benefits | 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 THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942

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WP(C).No.19416 OF 2020(S)

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PETITIONERS:

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1 KERALA KARSHAKA SAMRAKSHANA ASSOCIATION, REP. BY ITS CHAIRMAN N.K. SIVARAMAN, S/O.KRISHNANKUTTY, NOKKARA HOUSE, VELLAPARAKUNNU, KAVASSERY P.O., PALAKKAD-678 543, MOB.9847816442.

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2 BHAVADASAN,

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S/O.KRISHNAN, VALIYAVEEDU HOUSE, KONNANCHERI, AYAKKAD P.O., PALAKKAD-678 863, MOB.8921487427

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3 NARAYANANKUTTY, S/O.LATE MUTHU NAIR, KANAKANDATH HOUSE, VEPPILASSERY, KAVASSERY P.O., ALATHUR TALUK, PALAKKAD-678 543, MOB.8089688799.

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4 JOHN ANDREWS,

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MOOLEKARIYIL HOUSE, ANAKKALLIL P.O., IYYAPPANPATTA, MALAMPUZHA, PALAKKAD-678 864, MOB.9447391064.

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5 SAHADEVAN,

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S/O.LATE DAMODARAN, PUSHPAMANGALATH HOUSE, PANNIYAMPADAM, MUTTIKULANGARA P.O., PALAKKAD TALUK, PALAKKAD-678 594, MOB.994606170.

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6 CHACKO, S/O.LATE CHANDI, NARIKUZHIYIL HOUSE, SOUTH MALAMPUZHA, MALAMPUZHA P.O., PALAKKAD-678 651, MOB.9605121951.

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7 CHANDRIKA,

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W/O.PAZHANIMALA, ALANKODE HOUSE, OLAVAKKODE P.O., PALAKKAD TALUK, PALAKKAD-678 002, MOB.9446055489, 9349601194.

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8 T.S. JOSEPH, S/O.LATE DEVASSIA, THOPPIL HOUSE, MALAMPUZHA, PALAKKAD TALUK, PALAKKAD-678 651, MOB.9400580069.

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WP(C).No.19416 OF 2020(S)

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9 JOBY, S/O.LATE KUNJU VAREED, THEKKUMTHALA HOUSE, KAITHONDA ESTATE, CHITTILAMCHERI KAVASSERY P.O., ALATHUR TALUK, PALAKKAD.

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10 HARIDASAN, S/O.LATE NARAYANAN, CHEENIKULAMBU HOUSE, VAVULLIAPURAM P.O., KAVASSERY, ALATHUR TALUK, PALAKKAD-678 543, MOB.9846355405.

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BY ADVS. SRI.P.BABU KUMAR SRI.VISHNU BABU

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RESPONDENTS:

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

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2 ADDITIONAL CHIEF SECRETARY, FOREST AND WILD LIFE, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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3 ADDITIONAL CHIEF SECRETARY, REVENUE (L) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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4 THE CHIEF FOREST CONSERVATOR, EASTERN CIRCLE, ARANYA BHAVAN, OLAVAKKODE, PALAKKAD-678 002.

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5 UNION OF INDIA REPRESENTED BY SECRETARY TO FOREST AND WILD LIFE DEPARTMENT,CENTRAL SECRETARIAT, NEW DELHI-640001

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R5 BY ADV. MR.P.R.AJITH KUMAR, CGC

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SRI. SANDESH RAJA, SPECIAL GOVERNMENT PLEADER FOR R1 TO R4,

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SRI. P.R.AJITH KUMAR, CGC FOR R5

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.19416 OF 2020(S)

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JUDGMENT

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SHAJI P. CHALY, J

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This is a public interest writ petition filed by a registered association, said to be working for the welfare of small scale farmers and 9 others, seeking the following reliefs:

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i) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to take appropriate action to issue pattayam to all the eligible applicants in occupation in the forest land in Palakkad District as per Exhibit P13 after getting permission from the Central Government under the Forest Conservation Act, 1980 and for the land in other districts where the joint verification is completed and found eligible.

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ii) Issue a declaration that the provision of the Kerala Land Assignment (Regularisation of Occupation of Forest Land prior to 1.01-1977) Special Rules, 1993 is applicable to the land vested to the government under the Private Forest Vesting and Assignment Act 1971 and The Kerala Forest(Vesting and Management of Ecologically Fragile Land) Act, 2003 and Reserve Forest Kerala Forest Act, 1961

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iii) Issue a declaration that judgments in W.P.(C) No.4501/18 and W.A.No.696/19 of this Hon'ble Court is not binding on the pattayam of 8203.5690 Hectors of land at various districts issued after getting Central Government permission in the reserved forest in Idukki, Ernakulam, Thrissur, Pathanamthitta, Kollam districts.

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iv) Issue a writ of mandamus or any other appropriate writ order or direction, commanding the respondents to take further action on the basis of mahazar prepared by the forest officials after conducting joint verification as per

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WP(C).No.19416 OF 2020(S)

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Judgment in W.P.(C) No.326/13.

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v) Issue a writ of mandamus or any other appropriate writ order or direction, commanding the respondents to take appropriate action to implement orders passed by the District Collector, Palakkad.

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vi) Issue a declaration that orders in W.P.(C) No.4501/18 and W.A.No.696/19 of this Hon'ble Court is not binding on the joint verification conducted as per judgment of W.P.(c) No.326/13 and the order passed by the District Collector, Palakkad.

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vii)Issue any other appropriate order or direction which this Hon'ble Court deems fit and proper in the nature and circumstances of the case.

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The contention put forth by the petitioners is that, as per the definition of land provided to the Kerala Land Assignment (Regularisation of Occupation of Forest Land prior to 1.01-1977) Special Rules, 1993, hereinafter called Rules, 1993, land means “ forest land subjected to joint verification as defined in subclause(e) and Cardamom Hill Reserve land which are converted for noncardamom cultivation prior to 1-1-1977 in Idukki district, which have been transferred from Forest Department to Revenue Department and covered in the Resurvey Records and list of lands recommended to Government of India for concurrence under Section 2 of the Forest (Conservation) Act, 1980 (Central Act 69 of 1980) but does not include lands in wild life Sanctuaries.”

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Petitioners are relying upon the definition under Rule 2(e) of Rules, 1993 dealing with joint verification, means verification of forest land conducted

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WP(C).No.19416 OF 2020(S)

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by the Revenue and Forest Department to establish the eligibility for regularisation of occupation of said lands prior to 1.1.1977. Reliance is placed by the petitioners in above definitions to canvass for the proposition that it is evident from the above two definitions that all forest lands which are in possession of a settler prior to 1.1.1977 is eligible for pattayam. It is also the contention of the petitioners that the land which is vested under the 1971 Act will not attract 1993 Rules but only the reserve forest will attract the 1993 Rules.

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It is also submitted that as per Section 4 of the Private Forest Vesting and Assignment Act, 1971, all the private forests vested in the Government under sub-Section (1) of Section 3 shall stand alone as they remain vested in the Government deemed to be reserve forest constituted under the Kerala Forest Act, 1971. Therefore, according to the petitioners, from the above definitions, it is clear that the land vested in the Government under the 1971 Act also has legal status of a reserve forest and therefore, the interpretation of the Forest Department otherwise is absolutely illegal and against the provisions of the 1993 Rules and 1971 Act.

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It is also the case of the petitioners that as per Section 5 of the Ecological Fragile Land Act, it is clearly stated that ecologically fragile land is deemed to be reserved forest. Other contentions are also raised. However, it is admitted by the petitioners that the issue with respect to whether lands other than the lands specified under 1993 Rules would be eligible for assignment was

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WP(C).No.19416 OF 2020(S)

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considered by a learned Single Judge in W.P.(C) No.4501/2018, rendered Ext P16 Judgment, and held as follows in paragraphs 5 to 7, which read thus:

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“5. I have considered the contentions advanced. The Kerala Land Assignment (Regularization of Occupations of Forest Lands prior to 1.1.1977) Special Rules 1993 defines land at Clause (f) as follows:-

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“(f)”Land” means the Forest land subjected to joint verification as defined in sub-clause(e) and Cardamom Hill Reserve land which are converted for non-cardamom cultivation prior to 1-1- 1977 in Idukki district which have been transferred from Forest Department to Revenue Department and covered in the Resurvey Records and list of lands recommended to Government of India for concurrence under Section 2 of the Forest (Conservation) Act, 1980 (Central Act 69 of 1980) but does not include lands in wild life Sanctuaries.”

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6.The joint verification referred to in the said Rules means verification of forest lands conducted by the revenue authority to establish eligibility for regularization of occupation of said lands prior to 1.1.1977. Clause (g) of Section 2 reads as follows:-

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“Regularisation of occupation” means regularization of occupation prior to 1.1.1977 of forest land and lands in Cardamom Hill Reserve of Idukki District.”

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I am of the opinion that since it is the specific case of the learned Special Government Pleader that the land in question which are held by the petitioners are not land which are covered by the definition of the Rules, the relief sought for by the petitioner cannot be granted. It is only in respect of land which have been transferred from the Forest Department to Revenue Department and recommended to the Government of India for concurrence under Section 2 of the Forest

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WP(C).No.19416 OF 2020(S)

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(Conservation) Act, 1980 that the rules can be applied. Further, the Rules would have no application in a case where the lands in question have been found to be vested forests or ecologically fragile lands in terms of either the 1971 Act or the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 Act. It is only in respect of the specified lands as pointed out and which are covered by the definition of 'land' in terms of the Rules that any application for assignment is entertainable in terms of the Rules. In the above view of the matter, I am of the opinion that the reliefs sought for in this writ petition cannot be granted. The writ petition fails and is accordingly dismissed.”

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It is also admitted that the said judgment of the learned Single Judge

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was upheld by a Division Bench of this Court in Ext.P17 judgment dated 18.3.2019 in W.A.No.694/2019. Anyhow, when this writ petition came up for hearing, learned Special Government Pleader for Forest, submitted that in W.P.(C) No.23378/2018 filed by the 1^st petitioner association, it was held by this Court that a writ petition by an association in respect of individual claim of its members is not maintainable under law, which was taken in appeal by the 1^st petitioner association, in which the judgment of the learned Single Judge was upheld. Therefore, it is contended by the learned Special Government Pleader that it was suppressing the material fact, this writ petition is filed by the 1^st petitioner association and therefore, he seeks dismissal of the writ petition for suppression of material facts.

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WP(C).No.19416 OF 2020(S)

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We have heard counsel for petitioner Sri.P.Babu Kumar, learned Special Government Pleader for Forest Sri.Sandesh Raja and perused the pleadings and materials on record.

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After assimilating the fact situations, we are of the view that the issue raised by the learned Special Government Pleader with respect to the maintainability of the writ petition has to be considered first. In that regard, the findings rendered by the learned Single Judge in W.P.(C) No.23378/2018 at paragraph 7 is relevant to the context, which read thus:

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“7. I have considered the contentions advanced. No collective right of the members of the association is agitated before this Court. The right sought for is possessory right of the persons who are eligible for assignment of land. The question of eligibility for assignment of land is a matter which has to be considered taking note of the possession of the petitioners and in respect of the specific area which they occupy. This is an individual right which can be considered only on factual examination of individual cases. The right urged by the petitioner being an individual right, I am of the opinion that the writ petition filed by the association for enforcement of such rights is not maintainable. The members of the petitioner association, persons who are in possession of forest land from 01.01.1977, cannot be said to be so impoverished or unable to approach this Court for redressal of their grievances. In the above view of the matter, the contention that it would be onerous to require the members to approach this Court is also not a contention which can be taken note of by this Court. The question of

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WP(C).No.19416 OF 2020(S)

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possession, the duration of the same and the area where the occupation is claimed is to be verified on a case to case basis and the association cannot be held to be a proper representative of the petitioners whose rights may be diverse.

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In the above view of the matter, I am of the opinion that the writ petition as filed by the association is not maintainable and cannot be entertained by this Court. The writ petition fails and the same is accordingly dismissed. It is made clear that this Court has expressed no opinion on the rights of the individual members of the association.”

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The Division Bench of this Court, while considering the correctness of

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the said judgment in W.A.No.1046/2019, has categorically found that the individual occupiers are not left remediless to raise their claim or highlight their grievances and therefore, it was also found that the judgment of the learned Single Judge does not suffer from any error liable to be interfered in the writ appeal. It is an admitted fact that neither the judgment of the learned Single Judge nor the Division Bench is mentioned in the instant writ petition. According to us, since the issues raised in the present writ petition are also in respect of the assignment in accordance with Rules, 1993 by the individuals, definitely the judgment rendered by this Court in W.P.(C) No.23378/2018 should have been brought to the notice of this Court by the 1^st petitioner association.

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On going through the materials contained in the judgment, we are of the considered opinion that the question raised by the petitioners in this writ

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WP(C).No.19416 OF 2020(S)

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petition is substantially similar in nature regarding vesting of land on the basis of the joint verification conducted. On an analysis of the fact situation and the materials contained in the pleadings, documents produced and the judgments of the learned Single Judge and the Division Bench brought to our notice by the learned Special Government Pleader, as referred to above, the facts suppressed would have weighed with the consideration of the present writ petition on its merit.

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Even though it is submitted by learned counsel for petitioners, who was appearing in W.P.(C) No.23378/2018 also, that the subject matter raised in the said writ petition was entirely different, and the present writ petition deals with the policy decision taken by the State Government on the basis of certain submissions made in the State Legislative Assembly and the dismissal of the earlier writ petition filed by the association was not a subject matter intrinsically involved for consideration in the present writ petition, we are not inclined to accept the same.

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We do not think that the said submission made has any force at all, since the learned Single Judge in the earlier round of litigation has found that the association has no manner of right to raise the individual claims. Moreover, we also find that there is no public interest involved other than the interest of the individual property owners, who are arrayed as petitioners along with the association. Therefore, we are of the considered opinion that, the non-disclosure

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WP(C).No.19416 OF 2020(S)

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of judgment in W.P.(C) No.23378/2018 and W.A.No.1046/2019 by the 1^st petitioner association is a material suppression of facts from the purview of this Court in the present writ petition obliviously with the intention of securing orders/judgment.

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In that view of the matter, we do not think that this is a matter to be considered on its merit. Apart from the same, Ext.P16 judgment, the relevant portion of which is quoted above, would make it clear that the issues now raised by the petitioners were the contentious issues raised in the said writ petition. However, the same were declined and it was affirmed in Ext.P17 writ appeal specified above. We also find that the declarative relief sought for by the petitioners in respect of Exts.P16 and P17 judgments cannot be sustained either legally or factually. The judgments pertaining to Exts.P16 and P17 have become final and conclusive and no such declaration as is sought for by the petitioners can be granted by this Court in the present writ petition. We also find that the grounds raised are frivolous. The relief sought for also cannot be sustained under law, and therefore, taking into account all the above material aspects, the writ petition has to be dismissed imposing appropriate costs. At that juncture, the learned Special Government Pleader has brought to our attention the judgment of the Apex Court in Dnyandeo Sabaji Naik and Another v.Pradnya Prakash Khadekar and Others [(2017)5 SCC 496] and submitted that the writ petition should be dismissed with exemplary cost. In Dnyandeo

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WP(C).No.19416 OF 2020(S)

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(supra), the cost imposed was Rs.5,00,000/-. We have no doubt that there is material suppression of facts and the writ petition has to be dismissed with cost, however taking into account the present adverse economic and other situations prevailing in the community due to pandemic COVID-19, a cost of RS.10,000/would suffice the situation.

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Accordingly, the writ petition is dismissed with a cost of Rs.10,000/(Rupees Ten thousand only), which is directed to be paid within a month from today to the Forest Department, failing which, the Forest Department will be at liberty to invoke the provisions of the Kerala Revenue Recovery Act and recover the said amount with cost and interest, and in accordance with law.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

smv

JUDGE

WP(C).No.19416 OF 2020(S)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE PHOTOCOPY OF THE REGISTRATION CERTIFICATE OF THE ASSOCIATION.
EXHIBIT P2	TRUE PHOTOCOPY OF THE GO(MS)NO.655/89/RD DATED 31/08/1989.
EXHIBIT P3	TRUE PHOTOCOPY OF THE GO(MS)NO.172/92/RD DATED 03/03/1992.
EXHIBIT P4	TRUE PHOTOCOPY OF THE GO(MS)NO.278/92/RD DATED 22/05/1992.
EXHIBIT P5	TRUE PHOTOCOPY OF THE GO(MS)NO.510/99/RD DATED 14/12/1999.
EXHIBIT P6	TRUE PHOTOCOPY OF THE GOVERNMENT (RT) ORDER NO.2448/2010/REVENUE DATED 22/05/2010 ISSUED BY LAND REVENUE COMMISSIONER AND ITS ENGLISH TRANSLATION.
EXHIBIT P7	TRUE PHOTOCOPY OF THE ORDER DATED 05/11/2012 ISSUED BY CHIEF FOREST CONSERVATOR AND ITS ENGLISH TRANSLATION.
EXHIBIT P8	TRUE PHOTOCOPY OF THE JUDGMENT DATED 03/01/2013 IN WPC NO.326/2013 OF THE HONOURABLE HIGH COURT.
EXHIBIT P9	TRUE PHOTOCOPY OF THE ORDER DATED 16/06/2014 PASSED BY THE PRINCIPAL SECRETARY TO GOVERNMENT.
EXHIBIT P10	TRUE COPY OF THE PROCEEDINGS OF DISTRICT COLLECTOR, PALAKKAD DATED 04/07/2014 AND ITS ENGLISH TRANSLATION.
EXHIBIT P11	TRUE PHOTOCOPY OF THE JOINT VERIFICATION REPORT DATED 30/07/2005 AND ITS ENGLISH TRANSLATION.
EXHIBIT P12	TRUE COPY OF THE TEMPORARY POSSESSION CERTIFICATE NO.882/19 DATED 25/11/2019.
EXHIBIT P13	TRUE PHOTOCOPY OF THE REPLY ISSUED BY 2ND RESPONDENT DATED 20/01/2018 AND ITS ENGLISH TRANSLATION.

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WP(C).No.19416 OF 2020(S)

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EXHIBIT	P14 TRUE PHOTOCOPY OF THE MEMORANDUM DATED 03/04/2019 FILED BEFORE 2ND AND 3RD RESPONDENTS AND ITS ENGLISH TRANSLATION.
EXHIBIT	P15 TRUE PHOTOCOPY OF THE REPLY DATED 10/07/2019 AND ITS ENGLISH TRANSLATION.
EXHIBIT	P16 TRUE COPY OF THE JUDGMENT IN WPC NO.4501/2018 DATED 08/11/2018 OF THE HONOURABLE HIGH COURT.
EXHIBIT	P17 TRUE PHOTOCOPY OF THE JUDGMENT IN WA NO.694/19 DATED 18/03/2019 OF THE HONOURABLE HIGH COURT.
EXHIBIT	P18 TRUE COPY OF THE REPLY OBTAINED UNDER THE RI ACT AND ITS ENGLISH TRANSLATION.
EXHIBIT	P19 TRUE PHOTOCOPY OF THE MINUTES OF THE PROCEEDINGS DATED 16/08/2017.
EXHIBIT	P20 TRUE PHOTOCOPY OF THE NOTICE DATED 30/07/2019 TO THE 2ND AND 3RD RESPONDENTS.

Kerala Karshaka Samrakshana Association, v. State of Kerala

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What is this about?

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Kerala Karshaka Samrakshana Association, v. State of Kerala

Case brief

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