IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 9239 of 2008(Y)
1. VISWAMBHARAN,S/O.SANKUNNY,AGED,
... Petitioner
2. RAGHAVAN,S/O.SANKUNNY,POOPARAMBIL HOUSE,
Vs
1. STATE OF KERALA REP.BY ITS SECRETARY,
... Respondent
2. THE DIVISIONAL FOREST OFFICER,THRISSUR,
3. THE RANGE OFFICER (FOREST)
4. DEPUTY RANGE OFFICER (FOREST) PANGODE,
5. TAHASILDAR,TALAPPALLY TALUK,
For Petitioner :SRI.S.SREEKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :01/04/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 9239 OF 2008 Y
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Dated this the 1st day of April, 2008
J U D G M E N T
The prayers sought for in this writ petition are to quash Ext.P12 and
to direct the 5th respondent to take a decision on Ext.P5 and similar
representation made by the petitioners.
2. The facts of the case are that the petitioners submit that, in
addition to the lands owned by them, the 1st petitioner is in possession of
70 cents of land and by the 2nd petitioner possesses 1 acre of land. They
would state that these properties are in their possession for the last more
than 40 years and being occupants prior to 1.1.77, they are entitled to the
benefit of the Kerala Land Assignment (Regularization of Occupations of
Forest Lands prior to 1.1.1977) Special Rules, 1993(hereinafter referred to
as “Special Rules”). It is stated that as required in Rule 6 of the Special
Rules, list of assignable lands was prepared in which includes the lands in
their possession as well.
3. In view of their claim based on the Special Rules, they had
applied for assignment of the lands mentioned above and in response
thereto, they were issued Ext.P6 notice of enquiry. Meanwhile, they were
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all attempted to be evicted and thereupon, they filed WP(C) No.8738/04
before this Court, which was disposed of by Ext.P7 judgment, directing
disposal of their applications for assignment, keeping in abeyance, steps
for their eviction from the lands in their possession. According to them,
despite filing Exts.P9 and P10 representations, a final decision was not
taken in the matter and finally WP(C) No.35886/2007 was filed by them, in
which Ext.P11 judgment was rendered. In pursuance to Ext.P11, they
were issued notice and finally the 2nd respondent issued Ext.P15, rejecting
their applications for assignment on the ground that they are encroachers
in the forest land and that too after 1.1.1977. It is in this background this
writ petition is filed.
4. A statement has been filed by the 2nd respondent. According
to him, the land in Survey 985 of Nedumpura Village, a portion of which is
in the possession of the petitioners, is forest land. He would state that
only in the periphery of the land, is there certain coconut and rubber trees,
which are below 10 years of age, against the claim of more than 40 years
made in the writ petition. According to the 2nd respondent, the land was
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not in their occupation prior to 1.1.1977, but is a recent encroachment,
and hence petitioners are not entitled to the benefit of the Special Rules.
It is stated that P4 list is a fabricated one and that there is no such list
available in the Forest Division. Further, details of the cases registered
against the petitioners for violation of Forest Act have been given in the
statement. It concludes by stating that petitioners are encroachers and
that instructions have been issued to evict them.
5. As can be seen from the pleadings, the whole case set up in
the writ petition is on the basis that the petitioners are entitled to the
benefit of the Special Rules. This claim is on the basis that the petitioners
are in occupation of the forest land prior to 1.1.1977. They are seeking to
prove this contention, entirely relying on Ext.P4, joint verification list,
allegedly prepared in terms of Rule 6 of the Special Rules.
6. However having considered the rival contentions, I find it
difficult o accept the case of the petitioners, in view of the disputed factual
questions raised in this case. There is nothing to show that Ext.P4 is an
authenticated copy of the joint verification list prepared as required in Rule
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6 of the Special Rules. Apart from Ext.P4, the genuineness of which is in
dispute, there is nothing to prove that the occupation of the petitioners
dates back prior to 1.1.77 to be eligible for the benefit of the Rules.
7. In these circumstances, this court will not be justified in
accepting the case set up by the petitioners, which involve disputed factual
questions. These issues have to be pleaded and established by adducing
evidence and this is possible only in a Civil Suit.
Therefore, without prejudice to the contentions raised, this writ
petition is dismissed.
ANTONY DOMINIC,JUDGE.
Rp