Forest land is included in the definition of 'property of Government' under the Kerala Land Conservancy Act, allowing for prosecution for encroachment.

ORDER :

(G. GIRISH, J.)

Can there be a prosecution for the commission of offence under Section 7(d) of the Kerala Land Conservancy Act , 1957 for the encroachment committed upon any forest land including reserve forest? This is the only issue to be resolved in this petition filed under section 482 Cr.P.C by accused Nos.2 and 3 in C.C.No.64/2017 on the files of the Chief Judicial Magistrate’s Court, Thodupuzha, to quash the proceedings in the said case relating to encroachment into Eucalyptus plantation leased out to Hindustan Newsprint Limited by the Forest Department.

2. Heard the learned counsel for the petitioner and the learned Special Public Prosecutor for the Forest Department.

3. The learned counsel for the petitioner would contend that the term ‘property of Government’ defined under Section 3 of the Land Conservancy Act, 1957 does not take in forest land or reserve forest, and hence Section 7 of the said Act relating to unauthorised occupation of property of Government is not applicable in the case on hand wherein the allegation is that accused Nos.2 and 3 who are having registered land in Anaviratty Village of Devikulam Taluk committed encroachment into the adjacent Eucalyptus plantation leased out to the Hindustan Newsprint Limited by the Forest Department, through his worker, who is the first accused. It is further pointed out that Section 66 of the Kerala Forest Act , 1961 contains specific provision for preventing encroachments in forest land, and hence there is no applicability to Section 7(d) of the Kerala Land Conservancy Act when the allegation is that the encroachment is upon the forest land.

4. Per contra, it is argued by the learned Special Public Prosecutor that a plain reading of Section 3 of the Kerala Land Conservancy Act , 1957 itself would reveal that all lands except those which are excluded in clauses (a) to (e) thereunder comes under the definition of ‘property of Government’, and hence there is absolutely no legal embargo in the institution of this prosecution against the petitioners.

5. Section 3 of the Kerala Land Conservancy Act , 1957 is extracted hereunder for the sake of convenience and easy reference.

“3. Property of Government defined. (1) All public roads, streets, lanes and paths, the bridges, ditches, dykes and fences on or beside the same the bed of the sea and of harbours and creeks below high water mark, the beds and banks of rivers, streams, irrigation and drainage channels, canals, tanks, lakes, backwaters and water courses, and all standing and flowing water, and all lands wheresoever situated, save in so far as the same are the property of-

(a) [Jenmies, Wargdars] or holders of Inams; or

(b) [persons registered in the revenue records as] holders of lands in any way subject to the payment of land revenue to the Government; or

(c) any other registered holder of land in proprietary right; or

(d) any person holding land under grant from the Government otherwise than by way of a [lease or licence] or

(e) any person claiming through or holding under any of the persons referred to in clauses (a), (b), (c) or (d), are, and are hereby declared to be, the property of Government, except as may be otherwise provided by any law for the time being in force, subject to all rights of way and other public rights and to the natural and easement rights of other land owners and to all customary rights legally subsisting.

Explanation I. - xxxx

Explanation IA. - xxxx

Explanation II. - xxxx

Explanation III. - xxxx

Explanation IV. - xxxx

(2) xxx ”

6. As rightly pointed out by the learned Special Public Prosecutor, a cursory reading of the above Section would make it clear that all lands wheresoever situated except those held by the persons referred under Clauses (a) to (d) and the persons claiming through them as referred under Clause (e) would come under the definition of ‘property of Government’ unless there is any other law for the time being in force which provides otherwise. As far as the present case is concerned, t