Ramakrishnan and Remani vs State of Kerala

Justice N.K. Balakrishnan

Petitioners are the accused in O.R. No. 8/2012 of Mullaringad Range of Kothamangalam Forest Division. The offence alleged against them is u/s 27(1)(e)(i) & (iv) of Kerala Forest Act. Apprehending arrest, this petition is filed for anticipatory bail. The allegation is that the petitioners trespassed into the Reserve Forest area by name "the 1980 Vellakkayam Cashew Estate". After cutting and removing shrubs, they planted 70 coconut saplings, 7 arecanut saplings and 5 plantains. It was stated that such plants, aged about 3 years, were brought from some other place and planted in the forest area to make it appear that those plants were aged about 3 years.

The learned counsel for the petitioners submits that the first petitioner is in possession of about 3 acres of land obtained as per Tribal Settlement or otherwise and he is residing in the said property. But the respondent contends that the area allotted to the first petitioner, which is in his possession, is situated far away from the area now trespassed upon and made mention of in the observation mahazar prepared by the forest officials. To enlighten the court as to the area encroached upon and the area held by the first petitioner, a sketch showing different plots in different colours has been produced before me.

The forest area, described as "1976 Teak Plantation" is situated at the western side. Just lying to the east of that plantation, there is an area occupied by certain persons. It was separately demarcated. Still to the east of that land which was separately demarcated by the boundary "the 1980 Cashew Plantation" is situated. It is within "the 1980 Cashew Plantation", the petitioners now claim right. But it is pointed out by the respondent that the area which was allotted or held by the first petitioner is situated far to the north east of the disputed land. That portion has been separately demarcated and shown in the sketch produced before me.

The learned Public Prosecutor submits that the petitioners are trying to encroach upon the Reserve Forest Area. It is further contended that it is not the petitioners alone who are behind the encroachment and that these petitioners were only kept in the front so as to facilitate encroachment into the entire forest area by persons who are actually behind these petitioners.

It is contended by the respondent that in earlier 1980''s, the Government had taken a policy decision to regularize all encroachment into the forest land made before 01/01/1977. Based on that, detailed verification was done and accordingly list was prepared and published in 1985. As per that list, the first petitioner is serially numbered 491. As per the said settlement or verification, the first petitioner is in possession of 3 acres of land.

The learned counsel for the petitioners relies upon Annexure A1 judgement in W.P(C) No. 34359/2011 passed by this Court on 21.12.2011. It was stated that the petitioners had made application to the Forest Rights Committee and that application has forwarded to the District Collector, Chairman of the District Level Committee. That writ petition was disposed of by this Court directing the District Collector to take appropriate action in the matter in terms of Rule 8 of the Rules framed under the Act (Central Act 2/2007). Section 3(1)(a) of that act reads:

For the purpose of this Act, the following rights, which secure individual or community tenure or both, shall be the forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers on all forest lands, namely:-

(a) right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers;

Section 4(6) of that act says:

(6) Where the forest rights recognised and vested by sub-section (1) are in respect of land mentioned in clause (a) or sub-section (1) of section 3 such land shall be under the occupation of an individual or family or community on the date of commencement of this Act and shall be restricted to the area under actual occupation and shall in no case exceed an area of four hectares.

Petitioners are of the view that they can have an area up to 4 hectares, and so excluding 3 acres of land in the possession of the petitioners, they can claim some more land in the forest area. That contention is stoutly resisted by the learned special Government Pleader for forest stating that the object of enactment is only to recognise and vest forest rights and occupation in forest land in forest dwelling. So far as the petitioners are concerned, they were in possession of only the area measuring about 3 acres separately demarcated in the rough plan produced by the respondent. Whereas, the land now attempted to be trespassed upon is far away from the aforesaid plot. The petitioners are residing in the 3 acres of property mentioned earlier and that property alone was under cultivation. It is also submitted that Act 2 of 2007 does not say that such forest rights will take in any claim in respect of any forest land situated beyond the actual land occupied by such persons or community of persons.

The learned special Government Pleader would submit in the light of the direction issued in Annexure A1 judgment, the District Collector passed an order negativing the claim made by the petitioners. As against the same petitioner has filed writ petition as W.P(C) No. 13884/2012. Though, this Court originally passed an order for stay, subsequently that order was modified as follows:

In that view of the matter, the status quo as on the date of admission of the writ petition will continue. The petitioner will confine his agricultural occupations strictly within the residential property the petitioner is having.

(underlined for laying emphasize)

Since the residential property of the petitioners, the plot marked in the plan is situated far away from the land attempted to be trespassed upon by the petitioners and made mention of in the observation mahazar, the petitioners cannot contend that they are entitled to be in possession of disputed plot marked in the plan and to have their agricultural operations in that area. Therefore, unless the disputed area also is settled or assigned in favour of the petitioner, they cannot trespass into that area. Therefore, the contention that no offence would lie against the petitioners and so they are not liable to be arrested cannot be sustained. The learned Government Pleader would submit that if anticipatory bail is granted to the petitioners, it would be taken as a licence by such persons who are eagerly waiting to trespass upon the forest land putting forth such claims.

Considering all the aspects, I am not inclined to grant anticipatory bail to the petitioners. Hence it is dismissed.

If the petitioners surrender before the Forest Range Officer or if they are arrested and produced and if petitioners file an affidavit before the learned Magistrate that they will not trespass into the disputed area and will abide by the decision that may be finally rendered in the matter, the learned Magistrate will consider that aspect and will dispose of the bail application that may be filed by the accused.