THANKAM Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are in possession of properties situated in Re-Survey Nos.15, 12 in Block No.5 of Vallikunnu Village. Some of the petitioners are residing in the property. Ext.P1 is the ration card issued to the 10th petitioner. Ext.P2 is the residential certificate issued to the 1st petitioner by the 6th respondent Panchayat. It is stated that similar certificates have been issued in favour of the other petitioners as well. Electricity connections have been granted to the residential houses. The petitioners are 14 in number and they state that more than 100 persons are in possession of different extents of property taken on lease from the 6th respondent Panchayat. These properties were originally puzha puramboke vested in the Panchayat and it is stated that the lease was granted for cultivation and growing coconut. The petitioners submit that the lease was renewed from time to time till the year 2000-2001 and thereafter due to the intervention of Forest Department, lease is not being renewed. The petitioners have also produced the decision taken by the 6th respondent Panchayat as early as on 17/3/2001 recommending to the Government to issue pattas to 24 families who are residing in the properties. Exts.P4, P5 and P9 are all decisions taken by the Panchayat with respect to grant of pattas to persons in possession. The petitioners have stated that they came to understand that the aforesaid area has been included as a community reserve under Sec. 36C of the Wildlife Protection Act, 1972. Ext.P8 is the Gazette notification dtd. 17/10/2007 notifying Kadalundi Vallikkunnu Community Resort. The notification was issued much after the lease in favour of the petitioners. The petitioners have raised a contention that Ext.P8 declaration is without authority, since it has been issued without any community or individual volunteering to protect any Wildlife or habitat as is required under the Statute. It is contended that even if Ext.P8 is valid, there is no legal bar for the Government to assign the land included in the community reserve, since the declaration as a community reserve does not vest title of the property in the Government. Such a contention is taken since the property was vested in the Panchayat and the Panchayat had also made a request for issuance of patta. The petitioners have produced Ext.P10 series which are copies of possession certificates issued to some persons similarly situated to the petitioners. It is further stated that the 5th respondent Tahsildar had initiated proceedings under the Kerala Land Conservancy Act against one Athrapulickal Purushothaman who was in possession of 4 Cents of property near the petitioners' property. The said Purushothaman had challenged the proceedings before the 4th respondent Revenue Divisional Officer by way of an appeal and by order dtd. 15/5/2009, the appeal was allowed and the proceedings were set aside. It is specifically found that the Land Conservancy Act will not apply, since the property belongs to the Panchayat. The petitioners have submitted Ext.P15 representation before the 5th respondent Tahsildar for issuance of possession certificates to the petitioners similar to Exts.P10 series certificates issued to others who are similarly situated and this writ petition is filed seeking direction for consideration of Ext.P15 representation and to passing orders thereon. The 7th respondent, Divisional Forest Officer, Kozhikode has filed a counter affidavit wherein it is stated that an extent of 150 Hectares of land has been notified as Kadalundi-Vallikunnu Community Reserve under Sec. 36C of the Wildlife Protection Act, 1972 and that out of the said 150 Hectares, 120 Hectares of land comes under private holdings and 30 Hectares of land comes under Puzha puramboke, having mangrove forest. It is stated that the areas is internationally well-known migratory bird centre and has ecological importance. It is stated that some of these barren lands which were puzha puramboke had been given as lease by the Panchayat for limited periods for the purpose of agriculture and that after the lease period expired, the right of the lease holders over the land has also extinguished. Ext.R7(a) dtd. 24/12/2003 is a Gazette notification issued under Sec. 4 of the Kerala Forest Act whereby some areas in Vallikunnu Village were proposed as reserved forests. It is stated that 21.22 Hectares were thus notified. It is further stated that the procedures contemplated in Ss. 5 to 18 of the Kerala Forest Act have to be complied with before issuance of final notification and the lands claimed by the petitioners 1, 2, 3 and 5 come within Ext.R7(a) notification and areas claimed by petitioners 4 and 6 to 14 come within area notified as community reserve. It is stated that only after completing the procedure for final notification as reserved forest under Sec. 19 of the Kerala Forest Act, it can be known whether the lands claimed by petitioners 4 and 6 to 14 would come within the reserve forest area. It is stated that the Revenue Divisional Officer, Kozhikode and Tirurangadi have been appointed as Forest Settlement Officers and the procedure contemplated under Ss. 5 to 17 of the Kerala Forest Act has to be completed before final notification and till that time, most of the restrictions applicable to reserve forests are applicable to the lands notified. It is submitted that before declaring the lands as reserve forests, the Forest Settlement Officer has to conduct due enquiry and settle the claims raised by any person having a right over the land and the petitioners 1, 2, 3 and 5 will also be entitled to submit their claims before the Forest Settlement Officer, Tirurangadi. Ext.R7(b) is the report sent by the Tahsildar, Tirurangadi to the District Collector, Malappuram stating that patta cannot be given to these areas as they constitute revenue lands which are river puramboke. It is contended that the petitioners are not entitled to seek ownership or possessory rights over the lands. Ext.R7(c) produced along with the counter affidavit is a decision dtd. 14/5/2007 of the 6th respondent Panchayat volunteering to conserve wildlife in public lands and the Panchayat for constituting community reserve. Ext.P8 notification was issued consequently.

(2.) The petitioners have filed a reply to the counter affidavit stating that they are in possession for more than 35 to 60 years. Residential certificates and photographs showing their possession and their residential houses have been produced. Contentions based on the provisions of the Wildlife Protection Act have also been taken in the reply affidavit. It can be seen from the photographs that the residential houses are pakka buildings. The petitioners have thereafter filed I.A.No.2/2022 seeking to produce additional documents. Ext.P27 is the reply to certain unstarred questions, which were raised in the Kerala Assembly, wherein it has been stated by the concerned Minister that properties in Vallikunnu Village in Block No.5 in Re-Survey No.15/1, 2, 3 and 4 of an extent of 150 Hectares have been declared as Kadalundi Community Reserve and that there are no legal impediments for issuance of patta regarding properties included in the reserve. It is also stated that on receipt of applications for assignment, the same will be dealt with in accordance with law. It is also stated that 29.28 Hectares have been notified as reserve forest and patta cannot be issued in such reserve forest areas. Thereafter, the petitioner has produced additional documents along with I.A.No.1/2022. Ext.P24 is the letter from the Divisional Forest Officer, Kozhikode which is dtd. 22/11/2021 addressed to the 1st petitioner. It is stated that out of 150 Hectares which have been declared as community reserve, 120 Hectares are in private ownership. It is stated that there are no agricultural lands or coconut gardens in the said lands. It is further stated that even though there are several houses in the lease expired areas, they are not included within the reserve and with respect to such lands, the occupants can always approach the Revenue-Panchayat authorities for any certificates.

(3.) Heard Senior Advocate Sri.Ranjith Thampan as instructed by Adv.Sri.V.M.Krishanakumar on behalf of the petitioners, Sri.Nagaraj Narayanan, Special Government Pleader (Forests) and the Standing Counsel for the Panchayat.