SUKHIYA MUHAMMADIYA TRUST Vs. DISTRICT FOREST OFFICER

JUDGEMENT

(1.) This writ petition is filed seeking the following prayers :-

(2.) It is submitted by the learned counsel for the petitioner that the petitioner is the owner in possession of

(3.) 36 acres of land in survey No.163/11-2 Pt of Thiruvampady village in Kozhikode District. It is also submitted that the petitioner obtained the property by way of Ext.P1 gift deed dated 9.5.2017. It is stated that the property was originally assigned to one Smt.Radhamani Madhavan Nair by the Land Tribunal, Mukkam as per O.A.No.467/1970. It is stated that Ext.P2 purchase certificate dated 3.7.1972 was issued to the said Radhamani Madhavan Nair. It is stated that the property changed to many hands and Sri.Noorudheen purchased the property from several persons and the property was gifted to the petitioner's trust. It is stated that there is a residential building in the property. Ext.P3 being the building permit and Ext.P4 is the basic tax receipt. Ext.P5 possession certificate issued by the Village Officer, Thiruvampady is also produced. Ext.P6 purporting to be the plan of the property is also produced by the petitioner. Ext.P7 plan issued by the Divisional Forest Officer is also produced and it is contended that the property comprised in survey Nos.163/9, 163/10 and 163/11 of Thiruvampady village are private properties including the property of the petitioner. It is contended that officers of the Forest Department have started measurement and survey of the properties including the property of the petitioner and are proposing to take over the property belonging to the petitioner. It is stated that respondents 1 and 2 and officers under them have trespassed into the petitioner's property and affixed a notice stating that the Forest Department has taken possession of the residential house on behalf of the State. Ext.P8 notice dated 30.4.2018 which is said to have been affixed by the second respondent in the residential house within the property of the petitioner is produced and challenged in this writ petition. It is submitted that the petitioners have proper title over the property and as such, taking over the property by the respondents is completely untenable. 3. A statement has been filed by the first respondent stating that the petitioner's claim ownership of 3.36 acres land in survey No.163/11-2 in Thiruvampady village on the basis of Exts.P1 and P2. It is stated that Ext.P2 shows that the property covered by the same is in survey No.162 of the Kodenchery village and has not connected with the property in question. It is submitted that the entire land in survey No.163/11-2 is private forest which is vested in the Government as on 10.5.1971 as per provisions under section 3(1) of the Kerala Forest (Vesting and Assignment) Act, 1971. It is stated that the above lands were demarcated with survey stones during 1974-77. The above vested land was notified as vested forest in the year 1980 as per Ext.R1(C) notification dated 25.7.1980. Ext.R1(d) demarcation sketch is also produced along with the statement. It is stated that the petitioner had encroached into the above forest land and constructed a resort building in the above vested forest. It is stated that the total extent of private lands in survey No.163/11 is only 0.85 hectors and this private land has been demarcated in the field survey as survey no.163/11-1. It is stated that a detailed survey of the vested forest boundaries in survey No.163/11-2 and adjoining areas was carried out and it was found that about 10.00 acres of vested forest was under encroachment. Ext.R1(e) report of Divisional Surveyor is produced in support of the said contention. It is submitted that the Forest Range Officer, Thamarassery had registered an offence as O.R.No.11/2018 on 24.4.2018 for the above encroachment and clearing of vested forest. It is submitted that, though one Ali Akbar had approached the first respondent on 23.4.2018 and had promised to submit the documents in connection with the property in question, no such documents have been produced. It is stated that Ext.R1(g) proceedings had been issued by the first respondent on 28.4.2018 taking note of all the documents submitted, on a finding that the documents are not connected with the vested forest in survey No.163/11-2, the first respondent had directed taking possession of the building and the encroached forest land with immediate effect. It is submitted that Ext.P2 purchase certificate is in respect of properties comprised in survey No.162 of the Kodenchery village and Ext.P1 would show that the property which has been conveyed by the same is unsurveyed property. It is stated that Ext.P3 building permit issued to one Noorudeen in respect of unsurveyed property in Thiruvampady village and Ext.P4 tax receipt and Ext.P5 possession certificate would also show that the property mentioned therein is an unsurveyed land. It is submitted that the entire property in survey No.163/11-2 of Thiruvampady village is notified forest land and the petitioner has no claim or ownership over the said properties.