IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 OP.No. 35736 of 2002(D) ----------------------- PETITIONER: ---------- NEW WORLD IVESTMENTS (P) LTD., MALABAR DAIRY FARMS (P) LTD. & NELLIAMPATHY, PALAKKAD REPRESENTED BY ITS DIRECTOR S.SUNILKUMAR. BY ADV. SRI.M.P.ASHOK KUMAR SRI.SAJAN SREERAJ RESPONDENTS: ------------ 1. STATE OF KERALA REPRSENTED BY SECRETARY FOREST AND WILD LIFE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM 2. THE CHIEF CONSERVATOR OF FORESTS (P) THIRVANANTHAPURAM. 3. THE CONSERVATOR OF FORESTS OLAVAKODE CIRCLE, OLAVAKODE, PALAKKAD. 4. THE DIVISIONAL FOREST OFFICER, NENMARA DIVISION, NENMARA PALAKKAD. 5. THE FOREST RANGE OFFICER, NELLIAMPATHY RANGE, NENMARA, PALAKKAD. BY GOVERNMENT PLEADER SRI.P.M.POULOSE. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NOS.60436/2002, 323/2003, 6752/2003 & 8453 OF 2003 & IA.3923/07 ....... CLOSED. 11/08/2010. SD/- A.K. BASHEER, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PHOTOCOPY OF SALE DEED 924/94 OF SRO NENMARA. EXT.P2: PHOTOCOPY OF SALE DEED NO.925/94 OF SRO NENMARA. EXT.P3: DO. OF SALE DEED NO.926/94 OF DO. DO. EXT.P4: PHOTOCOPY FO OWNERSHIP CETIFICATE IN RESPECT OF THE BUNGALOW VI 387 ISSUED BY THE SECRETARY, NELLIAMPATHY GRAMA PANCHAYAT. EXT.P5: PHOTOCOPY OF NOTICE DT. 21/11/96. EXT.P6: PHOTOCOPY OF JUDGMENT IN OP.15913/2001 DT. 25/5/2001. EXT.P7: PHOTOCOPY OF NOTICE N2561/68 DT. 16/6/2001. EXT.P7(A): LEGIBLE EXTRACT OF NOTICE N2 561/68 DT. 16/6/2001. EXT.P8: COPY OF REPLY DT. 26/6/2001 SUBMITTED BY PETR. EXT.P9: PHOTOCOPY OF REPORT GIVEN BY SURVEY OFFICIALS. (AS PER REPLY AFFIDAVIT DT. 10/1/2003). EXT.P10: PHOTOCOPY OF LETTER DT. 23/1/2003 (AS PER ia.16823/2006) EXT.P10: PHOTOCOPY OF TELEPHONE BILL SHOWING REMITTANCE OF THE CALL CHARGES (AS PER IA. 3643/2007). EXT.P11:PHOTOCOPY OF RECEIPT DT. 17/2/2007 ISSUED BY K.S.E.B.NELLIYAMPATHY. EXT.P12: PHOTOCOPY OF CHELAN RECEIPT ISSUED BY SUB TREASURY, KOLLENGODE. EXT.P13: PHOTOCOPY OF OWNERSHIP CERTIFICATE DT. 5.3.2007ISSUED BY NELLIYAMPATHY GRAMA PANCHAYAT. EXT.P13: PHOTOCOPY OF LETTER ISSUED BY FOREST RANGE OFFICER DT.19/12/2002 (AS PER CMP.6752/2003). EXT.P14: PHOTOCOPY OF MEMORANDUM OF APPEAL DT. 10/3/2007 FILED BY PETR. EXT.P15: PHOTOCOPY OF EXTRACT OF MINUTES IN THE MEETING HELD ON 28/3/2007. EXT.P16: PHOTOCOPY OF ORDER DT. 1/3/2007. EXT.P17: PHOTOCOPY OF LETTER DT. 15/7/2009 & FORM ii NOTICE. RESPONDENTS' EXHIBITS: ANNEXURE R3(A): TRUE COPY OF PERIPHERY SKETCH SIGNED BY ASST.DIRECTOR. EXT.R3(A): PHOTOCOPY OF PERIPHERY SKETCH SIGNED BY ASST. DIRECTOR OF SURVEY. EXT.R4(A): TRUE COPY OF LETTER DT. 27/11/2002. EXT.R3(A): TRUE COPY OF LETTER NOTIFICATION NO.C421437/2000 DT. 26/8/2000 OF THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, KERALA & CUSTODIAN. EXT.R3(B): TRUE COPY OF ACKNOWLEDGEMENT CARD DT. 15/7/2009. A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 35736 of 2002-D - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2010 Judgment Petitioner, a private limited Company, is stated to be in possession of 486.63 acres of forest land in Nelliyampathy on leasehold right. According to the petitioner, the said land had been originally leased out to M/s.Lilly Group Estates, Mira Floren Estates and others during 1932-1947 on the strength of five Lease Deeds. Petitioner came into possession of the above land from M/s. Rajagiri Rubber and Produce Company Ltd., by virtue of registered sale deeds of the year 1994, true copies of which are available on record as Exts.P1, P2 and P3. 2. The leasehold property was planted with coffee, cardamom etc. eversince the grant of the original lease. There is a bungalow and two workers' quarters in the above plantation which have been assigned numbers by the Nelliyampathy Grama Panchayat as could be seen from Ext.P4 ownership certificate issued by the Panchayat in the name of the Managing Director of petitioner-Company. 3. The specific case of the petitioner is that the above land has not been surveyed so far either by the Revenue Officials or by the Survey or Forest Authorities. Though several requests were made by the petitioner in this regard, no action was taken for conduct of the survey. 4. But it is revealed from the records that when survey OP.35736/2002. : 2 : operation was started, petitioner-Company had approached this Court and filed O.P.No.15913/2001 praying for a direction to the Forest authorities to undertake survey and demarcation of the land (486.63 acres) only with notice to it and also to carry out the said operation with the help of an authenticated sketch prepared by competent Surveyors. 5. The Original Petition was disposed of with a direction to the forest officials that notice of the intended survey should be given to the petitioner and that a competent person be entrusted with the work. A copy of the above judgment dated May 25, 2001 is on record as Ext.P6. Thereafter Petitioner was served with Ext.P7 notice requesting for necessary assistance in the matter. 6. The present Original Petition was instituted by the petitioner in November 2002 with the following prayers. “(i) to issue writ of mandamus or other appropriate order directing the respondents 2 to 5 or other concerned officers to conduct a survey under the Kerala Survey and Boundaries Act in the Forest Land to identify the Boundary of 486.63 acres of plantation in Nelliyampathy Forest, Nenmara Division as described in Exts.P1 to P3 documents. OP.35736/2002. : 3 : (ii) to issue a writ of prohibition or any other writ or order restraining the respondents 2 to 5 from attaching any portion of 486.63 acres of the plantation including the Bungalow No.N.P. VI 387 and two workmen quarters attached to it situated in the Nelliampathy Grama Panchayat owned by the petitioner company. (iii) to issue a writ of mandamus or any other writ, order or direction directing the respondents 2 to 5 to supply copies of preliminary report in respect of 486.63 acres comprised in the Estate if any to the petitioner forthwith. (iv) to issue a writ of mandamus or any other writ, order or direction directing the forest authorities or their subordinates not to unnecessarily harass the petitioner before the final determination of the exact boundaries of the 486.63 acres comprised in the Estate” 7. It may at once be noticed that the respondents have tacitly OP.35736/2002. : 4 : admitted the ownership/leasehold right of the petitioner over the land in question having an extent of 486.63 acres, in unequivocal terms. But the contentions of the respondents, as revealed from the statement dated November 29, 2002, counter affidavit dated March 3, 2003, additional affidavit dated December 2, 2003, counter affidavit dated May 23, 2008 and lastly additional counter affidavit dated October 24, 2009 appear to be as follows: (a) The petitioner is in possession of excess area over and above the 486.63 acres covered under the lease deeds. (b) There is no necessity to conduct a further survey because survey has already been conducted and boundaries demarcated ; and (c) An extent of 40 hectares (98.85 acres) out of 486.63 acres is “having all characteristics of ecologically fragile land coming under the purview of the notification No.C4-214371/2000 dated 26/8/20000 published in gazette No.37 dated 19/9/2000” and therefore the said extent of land has by operation of law vested in the Government. The said land which has already vested in the Government is yet to be surveyed and demarcated. 8. It is contended by Sri.Ashok Kumar, learned counsel for the petitioner that the respondents have been constantly, if not perennially, harassing the petitioner for the last more than 15 years alleging that petitioner has committed trespass into the forest land vested in the Government. It is also pointed out by the learned counsel OP.35736/2002. : 5 : that several criminal cases have been registered by the Forest Department against the officials of the Company alleging trespass. Those cases are still pending. 9. The case of the petitioner appears to be that the consistent requests made by the petitioner to conduct a survey to fix the boundary of 486.63 acres have fallen on deaf ears for no apparent reason. At one stage respondents contended that the petitioner had trespassed into an extent of 146.42 acres over and above the 486.63 acres. It is on record that 38 acres out of this 146.42 acres have been resumed by the Department way back in 1976 itself. As regards the balance 108 acres it is submitted by the petitioner that the matter went up to the Supreme Court and ultimately it was found that the petitioner had no right over the said extent of land. 10. But it is the admitted position that the respondents have not till date bothered to measure out or demarcate the above 146.42 acres. It may also be pertinent to note that the Manager's bungalow and workers' quarters are allegedly situated within the encroached area. But since the so called encroached area has not so far been identified or demarcated, the moment any of the officials or workers enter the bungalow or Quarters, the Department would pounce upon them and register criminal cases. 11. When a specific query was put to the learned Special Govt. Pleader Sri.Paulose as to why no steps had been taken to OP.35736/2002. : 6 : demarcate the 146.42 acres so far, there is no answer. Sri. Paulose as well as the Divisional Forest Officer who is present in court with the relevant file as directed, did not seem to have any clue as to why the said extent of land has not been measured and demarcated so far. 12. A perusal of the counter affidavits and statements referred to above, will show that no proper survey has been conducted so far with notice to the petitioner, even though this Court had issued a specific direction in this regard in O.P.No.15913/2001. In fact the petitioner has been offering all assistance and help to conduct the survey. The petitioner-Company had also undertaken that the entire expenses for the survey would be met by it. This Court in the Original Petition referred to above, had specifically directed the respondents to carry out the process of survey after putting the petitioner on notice. Has the Department issued any notice to the petitioner so far? There is no definite answer. Does the Department have a case that the petitioner has not extended assistance and help for the process of survey? Yet again there is no answer. 13. There is yet another aspect of the matter. When the respondents took up a contention before this Court that the Manager's bungalow is situated within the extent of 38 acres already “resumed” by the Department, a query was put by the Court to the petitioner as to whether it was prepared to give up its claim over the bungalow if it falls within that area. In response to the above, the Director Board of OP.35736/2002. : 7 : the Company has passed a resolution undertaking that the Company will give up its claim over the bungalow and the workers quarters if on measurement it is found that these structures are situated within the encroached area that has been reportedly resumed. But according to the learned counsel, the respondents have not taken any positive steps to put an end to this “uncertainty”. 14. Sri.Paulose, learned special Governments Pleader submits that the Department has already conducted a survey. According to him, the survey was completed way back in 2001-2002 itself. The contention of the learned Special Govt. Pleader appears to be that even before this Court had passed Ext.P6 judgment the survey had commenced and it was completed shortly thereafter. 15. Interestingly, in Ext.P9 communication dated January 23, 2003 sent by the Conservator of Forests and Custodian of Vested Forests it is seen stated that the survey work had been completed and the mini survey team had already planted the survey stone. In his communication the officer has further stated thus: “While constructing the Jundas we assure you that no leased land will be taken back. The department is committed to demarcate the 486.63 acres of land leased to the Miraflores Syndicate” (emphasis supplied) The officer therefore requested the petitioner to co-operate with the OP.35736/2002. : 8 : Department in completing this task by extending necessary assistance to physically locate the boundary between the area under the custody of the Department and area under lease. 16. But a perusal of the various counter affidavits and statements referred to above do not indicate as to whether the survey work had been completed at any point of time. There is no categoric assertion by the respondents as to when it had been completed. Of course the respondents have belatedly pressed into service a “Periphery sketch” which is stated to have been prepared by Asst. Director of Surveys. According to the Divisional Forest Officer who is present in Court, the Asst. Director had located the trespassed areas in the “Periphery sketch” and the survey plan. But it is candidly admitted by the learned Special Govt. Pleader that neither the “Periphery sketch” nor the survey plan indicating the encroached area had ever been served on the petitioner. 17. As has been noticed already, the consistent case of the petitioner is that a comprehensive survey as directed by this Court in Ext.P6 judgment, had never been carried out though such a request was being made persistently from time to time. Petitioner had not staked any claim over an area in excess of 486.63 acres. 18. Learned counsel for the petitioner further submits that if the Department has a case that 40 hectares out of 486.63 acres would in fact fall within the “Ecologically Fragile Land“ notification, the OP.35736/2002. : 9 : process of demarcation of that area must be carried out by the Department. Nothing has been done so far. He also points out that the petitioner has already instituted WP.No.12001/2008 challenging the Notification. 19. Anyhow, the fact remains that the respondents have not even demarcated the 146.42 acres of land, which according to them, is the trespassed area. But it is admitted by the officer that the said land is now in the possession of the Department without demarcation or proper measurement. Be that as it may, in my view, equity and fairness demand that respondents take immediate steps to measure out and demarcate the extent of 146.42 acres, allegedly trespassed by the petitioner. This can be achieved if the respondents fix the boundary of the leasehold land measuring 486.63 acres after conducting a survey, so that further confusion and uncertainty can be avoided. The respondents have more or less conceded in the counter affidavits and statements filed by them that the property of the petitioner measuring 486.63 acres is yet to be surveyed and demarcated. In any view of the matter I have no hesitation to hold that the attitude of the Department throughout has been totally irresponsible bordering on sheer authoritarianism. 20. Therefore the respondents are directed to conduct a comprehensive survey with the assistance of the Survey Department, if necessary, and demarcate and measure out 486.63 acres comprised OP.35736/2002. : 10 : in Exts.P1 to P3 lease deeds and fix the boundary of the said property. The above process shall be completed after putting the petitioner on notice, as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. 21. The submission made by learned counsel for the petitioner that all necessary assistance and help will be extended to the respondents is recorded. The expenditure for survey shall be met by the petitioner. 22. The respondents shall pay a sum of Rs.25,000/- as cost to the petitioner within one month from today. Original Petition is disposed of in the above terms. A.K. Basheer Judge. an.