Disposed

Swaminadhan v. Forest Range Officer

Kerala HC8 Jun 2020WP(C)/22453/2017

Case brief

AI extract

What is this about?

This single-judge writ petition dealt with the petitioner's claim for restoration of land and permission to cut trees in a notified forest area. The court directed authorities to consider the restoration application but dismissed the plea for tree cutting pending that decision.

What did the court decide?

Direction to respondents to consider the application for restoration within four months; prayer for tree cutting permission dismissed pending restoration outcome.

Swaminadhan Vs Forest Range Officer — 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 V.G.ARUN

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MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942

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WP(C).No.22453 OF 2017(F)

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PETITIONER/S:

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SWAMINADHAN, AGED 62 YEARS S/O VELAYUDHAN,CHATHANKODU HOUSE, CHITHALI P.O.,ALATHUR TALUK, PALAKKAD DIST.

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BY ADV. SRI.P.BABU KUMAR

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RESPONDENT/S:

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1 FOREST RANGE OFFICER ALATHUR FOREST RANGE OFFICE, ANAKKAPPARA,ANCHUMOORTHIMANGALAM P.O., PALAKKAD-678602.

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2 DIVISIONAL FOREST OFFICER DIVISIONAL FOREST OFFICE, AYINAMPADAM, NENMARA P.O., PALAKKAD-678508.

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3 CHIEF FOREST CONSERVATOR EASTERN CIRCLE, OLAVAKKODU P.O., PALAKKAD 678002.

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R1 BY SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.22453 OF 2017(F) ..2..

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JUDGMENT Dated this the 8th day of June 2020

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The petitioner had purchased 6 acres and 93 cents of land from one Kasu, who had been in possession and enjoyment of the property and had been cultivating the property. The purchase was effected on 26.08.1981 under Ext,P1 document. In the meanwhile, the Forest Department had issued notification under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (herein after referred to as 'the Act' for short), with respect to the property in question. Kasu had challenged the notification before the Forest Tribunal by filing O.A.No.278 of 1976 and the original application was allowed in his favour as per Ext.P3 order. The State challenged the order before this Court in M.F.A.No.336 of 1979. The appeal was dismissed as per Ext.P3(a) judgment dated 28.09.1984. In the meanwhile, the petitioner had obtained possession certificate and had

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effected mutation in his name. Thereafter, the petitioner made an application before the Forest Department for restoration of the property. The application was processed and recommended for favourabe consideration, since the legal heirs of Kasu had not raised any claim with respect to the property.

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The Forest Department had also issued a notification under Section 5(1) of the Kerala Preservation of Trees Act, 1986 (the 'Trees Act' for short) prohibiting cutting of any tree from the property, except trees which constitute danger to life or property; or trees, which are dead, diseased or windfallen. Thereupon, the petitioner made a request before the authorities, seeking permission to cut and remove the rubber trees in the property. The request having been rejected, the writ petition is filed seeking a direction to the 1^st respondent to issue permit for cutting and removing the trees.

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The specific case of the petitioner is that, having purchased the property under Ext.P1 and having perfected his title by acquiring possession certificate, remitting tax and by effecting mutation, the 1^st respondent is bound to restore the property to the petitioner, in pursuance of Exts.P3 and P3(a). It is also contended that, the property being a rubber plantation, the prohibition under Section 5(1) of the Trees Act will not hamper the petitioner's right to cut the trees.

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The learned Special Government Pleader submits that Ext.P1 is only a lease agreement and the petitioner's claim of having perfected his title is doubtful. It is submitted that going by Section 8A(4) of the Act, the property has to be restored to the person in possession immediately before the appointed day. The person in possession, being Kasu, the restoration should be in favour of Kasu and since Kasu is no more, in favour of his legal heirs. It is submitted that at best the petitioner could make

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an application for restoration along with documents evidencing surrender of the rights of the legal heirs of Kasu in the petitioner's favour. It is pointed out that the petitioner ought to have atleast impleaded the legal heirs of Kasu as parties to this writ petition.

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The learned counsel for the petitioner relies on a Full Bench decision of this court in K.S.Parameswara Sastrigal v. State of Kerala and Others [M.F.A.No.359 of 2000] to contend that even a subsequent purchaser can make an application for restoration, since he steps into the shoes of the owner, as defined under Section 2(c) of the Act. The learned counsel also draws attention to Ext.P17 to point out that in similar situation, when the legal heirs of the person who had obtained favourable orders from the Forest Tribunal did not stake claim for restoration, the application for restoration made by the subsequent purchaser was processed by the Forest Department and paper notification issued, calling for objections, if any,

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against such restoration. It is submitted that in the case of the petitioner also, the same procedure could be adopted

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by the Department and the property restored to him. Attention is also drawn to Ext.P13; an inter-departmental communication recommending consideration of petitioner's request.

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Having heard the submissions, I am of the considered opinion that the prayer for permission to cut and remove rubber trees from the property cannot be allowed, until orders are passed on the application for restoration submitted by the petitioner. The claim of the petitioner, of having perfected his title, as well as his entitlement for restoration, is left open to be considered by the authorities. Of course, while effecting such consideration, the authorities shall look into the recommendation in Ext.P13 as also the procedure evidenced by Ext.P17 notification.

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In the result, the writ petition is disposed of, directing

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the competent among the respondents to consider the application for restoration submitted by the petitioner and to pass orders in accordance with law, within an outer limit of four months from the date of receipt of a copy of this judgment. It is made clear that this Court has not rendered any decision on the merits of the petitioner's claim, either for the purpose of restoration or with respect to his entitlement to cut and remove trees from the property, dehors the notification under Section 5(1) of the Trees Act.

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SB/08/06/2020

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Sd/V.G.ARUN JUDGE

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE PHOTOCOPY OF THE REGISTERED LEASE DEED DATED 26.8.1981.
EXHIBIT P2	TRUE PHOTOCOPY OF THE PURCHASE CERTIFICATE ISSUED BY THE LAND TRIBUNAL DATED 15.10.1997.
EXHIBIT P2(A)	TRUE PHOTOCOPY OF THE PURCHASE CERTIFICATE ISSUED BY THE LAND TRIBUNAL DATED 26.7.1985.
EXHIBIT P3	TRUE PHOTOCOPY OF THE ORDER DATED 12.4.1979 OF FOREST TRIBUNAL, PALAKKAD.
EXHIBIT P3(A)	TRUE PHOTOCOPY OF THE JUDGMENT DATED 28.9.1984 IN MFA NO 336/79 OF THIS HON'BLE COURT.
EXHIBIT P4	TRUE PHOTOCOPY OF THE TAX PAID RECEIPT DATED 7.7.2016.
EXHIBIT P5	TRUE PHOTOCOPY OF THE TAX PAID RECEIPT IN THE YEAR 2014.
EXHIBIT P6	TRUE PHOTOCOPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KUZHALMANNAM DTD.28.11.2013.
EXHIBIT P7	TRUE PHOTOCOPY OF THE THANDAPER REGISTER OF THE PROPERTY KEPT IN THE VILLAGE OFFICE, KUZHALMANNAM WHICH PETITIONER OBTAINED UNDER THE R.I.ACT DATED 18.8.2014.
EXHIBIT P8	TRUE PHOTOCOPY OF THE NOTICE SENT BY THE 1ST RESPONDENT
EXHIBIT P9	TRUE PHOTOCOPY OF THE ORDER DATED 12.11.2014.
EXHIBIT P10	TRUE PHOTOCOPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 18.7.2016.