AHAMMED AND OTHER Vs. STATE OF KERALA

JUDGEMENT

(1.) According to the case projected by the petitioners in this Writ Petition (Civil), they are in possession of lands covered by Exts.P-2 to P-6 documents and as shown in Ext.P-7 sketch. The petitioners would contend that Exts.P-8 to P-11 would show that basic tax has been paid by them and there is no dues of such tax in respect of that property and they assert they have been in possession of the said property from 1980-1981 onwards. That by Ext.P-5 proceedings dated 27.5.1983, the Rubber Board had granted permission for planting rubbers in the said property and that they are continuing with the plantation activity of rubber trees in that property. That initially rubber was planted and subsequently, after its felling, it was replanted and that the property is having 2000 rubber trees of ages five to six years at the time of filing of the Writ Petition on 2.9.2013. They would further allege that when their only way to their property, which is through the Forest truck road, was prevented by the respondent Forest authorities, they had filed a Writ Petition (Civil) as W.P.(C).No.20563/2012, which was disposed of by this Court as per Ext.P-13 judgment dated 12.11.2011 allowing their plea to withdraw the Writ Petition to enable them to approach the competent civil court and to seek appropriate reliefs including interim orders therefrom. Thereafter, the petitioners had filed Ext.P-14 O.S.No. 2119/2012 before the II Addl. Sub Court, Thrissur, seeking the reliefs of permanent prohibitory injunction to restrain the 2nd defendant therein (Forester, Kayambugam Range, Thiruvillwamala area, Thrissur) from causing obstruction for the removal of the trees from the property therein and also for a mandatory injunction so as to remove the iron chain kept there blocking B schedule way so that the plaintiffs could take their vehicles through that way, etc. Ext.P-15 commission report dated 14.1.2013 was issued in the said O.S. Though the petitioners had sought the interlocutory relief of temporary injunction, the trial court had not granted the said interim relief and had confined the interlocutory order only for a direction to both sides to maintain status quo with respect to the property in question. Aggrieved by the non-grant of the temporary injunction in the interlocutory order by the trial court, the petitioners had filed C.M.A. No.926/2013 before the District Court, Thrissur, in which the said lower appellate court as per judgment dated 12.4.2013 had allowed the said C.M.A. and had granted temporary injunction in favour of the petitioners herein (plaintiffs therein), till the disposal of the suit. The respondents being aggrieved by the said order of temporary injunction granted by the lower appellate court had challenged the same by filing O.P(C).No.2039/2013 before this Court and the same was disposed of by Ext.P-16 judgment dated 16.8.2013, recording the written submissions made by the respondent Forest officers therein in their counter affidavit regarding a modality for permission to use the road, till the pendency of the suit.

(2.) It appears that later, the trial court concerned (II Addl. Sub Court, Thrissur), as per Ext.P-22 judgment dated 21.11.2015, had dismissed O.S.No. 2119/2012. One of the findings made by the trial court in Ext.P-22 judgment as can be seen from para 13 thereof is that Ext.B-1 is the notification dated 4.3.1980 issued by the Government under Rule 2A(2) of the Kerala Private Forests (Vesting and Assignment) Rules, 1974 and as per the mandate of Section 3 of the Kerala Private Forest (Vesting and Assignment) Act, 1971, on and with effect from appointed day (10.5.1971), the ownership and possession of the all private forests in the State of Kerala, shall by virtue of the said Act stand transferred to and vested in the Government free from all encumbrances and the right, title and interest of owner of any other persons in any private forest shall stand extinguished. Further Section 4 of the said Act mandates that all private forests vested in the Government shall be deemed to be reserved forests constituted under the Kerala Forest Act, 1961 and the provision of that Act shall apply as far as may be applied to such private forests and that the Kerala Private Forest Act will also be apply relating to the claim in the abovesaid suit, in view of the abovesaid notification dated 4.3.1980 issued in respect of a portion of the said land claimed by the petitioners. That as per the scheme of Kerala Forest Act, there has to be a settlement officer, who has to conduct inquiry regarding claim of right of way or any other rights and that the said Act itself provides statutory appeal to the District Court from the order of the settlement officer and the second appeal to the High Court. That there is provision for commutation of certain rights including right of way and that any trespass into reserve forest will attract penal consequence under Section 27 of the said Act and that so there cannot be any right of way through the forest path unless there is due permission from the Government or the Department or by an order of the settlement officer, etc. In the light of said finding made by the trial court in para 13 of the judgment as well as other findings, the trial court had dismissed the said suit as per Ext.P-22 judgment dated 21.11.2015. Aggrieved thereby, the petitioners had filed Appeal Suit A.S.No.93/2016 before the District Court, Thrissur, which is stated to be pending. It is now submitted by sides that no interlocutory orders have been issued by the first appellate court in the said appeal suit. The grievance of the petitioners is that later, at being annoyed of the abovesaid litigative proceedings of the petitioners, the 2nd respondent had issued the impugned Ext.P-17 notice dated 1.2.2013 proposing therein to take steps for issuance of notification under Section 4 of the Kerala Forests (Vesting and Management) of Ecologically Fragile Land) Act, 2003. Apart from that, the petitioners would contend that they are also aggrieved by Ext.P-18 notice dated 29.6.2013 and Ext.P-19 notice dated 27.8.2013, whereby it has been ordered that as, some of the properties of the petitioners are lands which the petitioners have encroached into the forest land, action will be taken to identify, measure and demarcate such encroached land and for consequential action. In Ext.P-19 dated 27.8.2013 it is specifically intimated that, as per the measurements and identification done by the competent officials of the Forest Department, it has identified 51 cents of forest land, that has been so encroached into the by the petitioners and that action is also proposed to be taken for identifying the balance of the forest lands encroached by the petitioners. It is aggrieved by Exts.P- 17 to P-19 the petitioners have preferred the instant Writ Petition (Civil) on 2.9.2013, with the following prayers:

(3.) Heard Sri. K. Mohanakannan, learned counsel appearing for the writ petitioners and Sri. K. Sandesh Raja, learned Special Govt. Pleader (Forest) appearing for the official respondents.