IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 OP.No. 38847 of 2002(Y) ---------------------------------- PETITIONER: ------------------- NEW WORLD INVESTMENTS (P) LTD & MALABAR DAIRY FARMS (P) LTD, NELLIAMPATHY, PALAKKAD, REPRESENTED BY ITS DIRECTOR S. SUNIL KUMAR. BY ADVS. MR.M.P.ASHOK KUMAR, SMT.K.P.SREELAJA. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY FOREST AND WILD LIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, TOURISM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHIEF CONSERVATOR OF FORESTS (P), THIRUVANANTHAPURAM. 4. THE CONSERVATOR OF FORESTS, OLAVAKODE CIRCLE, OLAVAKODE, PALAKKAD. R1 TO R4 BY SPL.GOVT. PLEADER (FOREST) MR. P.M. POULOSE. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 38847/2002-Y: ORDER ON C.M.P. NO. 65447/2002 IN O.P. NO. 38847/2002-Y CLOSED 08/12/2009. SD/- S.SIRI JAGAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RELEVANT PAGES OF THE BOOK PUBLISHED BY THE STATE GOVT. EXT.P.2: COPY OF THE LETTER DTD. 24/10/2001. EXT.P.3: COPY OF THE GOVT. LETTER DTD. 30/01/2002. EXT.P.4: COPY OF THE LICENSE DTD. 01/04/2002. EXT.P.5: COPY OF THE LETTER DTD 30/04/2002. EXT.P.6: COPY OF THE CERTIFICATE DTD. 16/01/2002. EXT.P.7: COPY OF THE APPLICATION DTD. 25/07/2002. EXT.P.8: COPY OF THE LETTER DTD. 25/11/2002. EXT.P.9: COPY OF THE PAMPHLETS PUBLISHED BY D.T.P.C. EXT.P.10: COPY OF THE RELEVANT PAGES OF THE BOOK PUBLISHED BY THE D.T.P.C. EXT.P.11: COPY OF THE NEWS ITEM PUBLISHED IN THE HINDU DAILY DTD. 17/08/2002. EXT.P.12: PHOTO PUBLISHED IN MALAYALA MANORAMA DAILY DTD. 20/09/2002. EXT.P.13: COPY OF THE LETTER DTD. 18/07/2000, MINISTRY OF ENVIRONMENT AND FORESTS, NEW DELHI. EXT.P.14: COPY OF THE FORM A APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE D.F.O, NENMARA. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE LEASE DEED OF MIRA FLORES ESTATE (LILLY GROUP ESTATES) 82.45 ACRES. O.P. NO. 38847/2002-Y: EXT.R1.B: COPY OF THE LEASE DEED OF MIRA FLORES ESTATES – 93 ACRES. EXT.R1.C: COPY OF THE LEASE DEED OF MIRA FLORES ESTATES – 126.50 ACRES. EXT.R1.D: COPY OF THE LEASE DEED OF MIRA FLORES ESTATES – 27 ACRES. EXT.R1.E: COPY OF THE LEASE DEED OF VALUVACHAN ESTATES – 157.68 ACRES. EXT.R1.F: COPY OF THE GAZETTE NOTIFICATION NO.XLIII DATED 08TH MAY 1909. EXT.R1.G: COPY OF THE GAZETTE NOTIFICATION NO:XVII DATED 11TH FEBRUARY, 1933. EXT.R4.A: COPY OF THE LEASE DEED EXECUTED BETWEEN GOVERNMENT OF COCHIN AND LILLY GROUP OF ESTATES. EXT.R4.B: COPY OF THE LEASE DEED EXECUTED BETWEEN GOVERNMENT OF COCHIN AND MIRA FLORES ESTATE. EXT.R4.C: COPY OF THE LEASE DEED EXECUTED BETWEEN GOVERNMENT OF COCHIN AND MIRA FLORES ESTATE. EXT.R4.D: COPY OF THE LEASE DEED EXECUTED BETWEEN GOVERNMENT OF COCHIN AND MIRA FLORES ESTATE. EXT.R4.E: COPY OF THE LEASE DEED EXECUTED BETWEEN GOVERNMENT OF COCHIN AND OLD VALVACHI ESTATE. EXT.R4.F: COPY OF THE COCHIN GOVERNMENT GAZETTE NOTIFICATION VOL.XLIII PART I. EXT.R4.G: COPY OF THE COCHIN GOVERNMENT GAZETTE NOTIFICATION VOL.LXVII DATED 11/02/1933. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 38847 of 2002 ================== Dated this the 8th day of December, 2009 J U D G M E N T Two companies who are lessees of Government land in Nelliampathy, have approached this Court with a grievance that their request for starting an eco-tourism project in the leased land has been rejected by the Government unjustly. The petitioners are in possession of a large extent of land in Nelliampathy area in Palakkad District on perpetual lease from 1933 onwards. Of late, the Government has taken a policy decision to encourage eco-tourism, plantation tourism and pilgrimage tourism in Kerala. To show that the Government is keen to promote such types of tourism, the petitioners rely on Ext.P1 pamphlet issued by the Department of Public Relations of the Government of Kerala. They point out that even in Nelliampathy area itself, as is evidenced by Ext.P9 pamphlet, the District Tourism Promotion Council under the Government of Kerala themselves have started eco-tourism projects in Nelliampathy area. Although, the petitioners have taken on lease the land in Nelliampathy for the purpose of raising plantations, according to the petitioners, of late, plantation business is not profitable and, therefore, they wanted to start eco-tourism projects also without changing the environment in the estate itself, modifying the existing buildings thereon to convert the same as a resort so as to attract tourists. Originally, by Ext.P2 letter, they approached the Tourism Department of the Government of Kerala for permission. By Ext.P3 letter, the Secretary to Tourism o.p.38847/02 2 Department of the Government of Kerala, informed the petitioners that for the proposed projects permission from the Tourism Department is not needed and they may approach the concerned Panchayat authorities for permission. The Government also promised all assistance for setting up the said project. Pursuant thereto, the petitioners obtained appropriate permission from the local authority. Thereafter, they filed Ext.P7 request before the Conservator of Forests for permission to start the eco-tourism project. That was rejected by Ext.P8 letter on the ground that the Government has not taken any policy decision for promoting tourism activities within leased out forest estates and hence the Department cannot permit the petitioners to conduct tourism within the leased out area given for the purpose of cultivation of coffee, cardamom etc. The petitioners are challenging Ext.P8 in this original petition. 2. According to the petitioners, when the Government themselves have decided to promote eco-tourism in Kerala especially in Nelliampathy area, the decision of the Government to reject the proposal of the petitioners for starting eco-tourism project in the leased estate is clearly arbitrary and unreasonable. They would also raise a case of discrimination alleging that other estates in the Nelliampathy area like Greenland Farmhouse, Cliff View Estate, I.T.L. Holidays Resorts etc. have been given permission for conducting tourism projects in similar estates. o.p.38847/02 3 3. Counter affidavits have been filed by 1st and 4th respondents, wherein they would contend that the area leased out to the petitioners is forest land, which was leased prior to coming into force of the Forest Conservation Act, 1980. Since it is forest land, though leased for raising cash crops, non-forest activities cannot be undertaken in that area, except with sanction from the Government of India as provided under the Forest Conservation Act. According to them, this particular land was leased out to the petitioners as per an agreement for lease, which stipulated that the petitioners shall use the land only for the purpose of raising cash crops and for no other purposes. The petitioners are bound by the conditions of lease and, therefore, they cannot now raise a contention that they should be allowed to conduct eco-tourism project in the leased land. In their counter affidavit, the 1st respondent has stated that they have not given any permission for starting eco-tourism projects to Greenland Farmhouse, Cliff View Estate, I.T.L. Holidays Resorts etc. as contended by the petitioners. 4. I have considered the rival contentions in detail. 5. Ext.P8 reads thus, which is self explanatory: “The Government has leased out the land for the limited purpose of raising cash crops under tree cover. The tourism activity now proposed by the Estate Management amounts to non-forestry activity and hence clearance of Government of India is also required under the provisions of Forest Conservation Act, 1980. Further, Government of Kerala have not taken any policy decision in promoting tourism activities within the leased out forest areas and hence the Department cannot permit you to conduct tourism within the forest area leased for the purpose of cultivation of o.p.38847/02 4 coffee, cardamom etc. Further you are not allowed to take up any other activity in the leased area other than those permitted in the lease deed. Under these circumstances the application for permission submitted by the estate authorities as per letters cited is rejected. It has come to the notice of the department that the Estate authorities have already started entertaining tourists in the area. You may also take note that the violation of lease conditions and conduct of non-forestry activity within the leased area without clearance of Government of India under the Forest Conservation Act, 1980, may force the department to initiate action for premature termination of the lease. Hence you are advised not to resort to any activity not permitted under the agreement. If a policy decision is taken by the Government for allowing limited eco-tourism activities with the approval of Government of India after working out the modalities, terms and conditions to be incorporated in the lease deed, etc. you may apply for the same at that point of time.” It is stated therein that the land comprises of forest land which was leased out to the petitioners for raising cash crops. Therefore, it goes without saying that the petitioners cannot start any other activities in the land other than raising of cash crops without permission of the Government. As far as it is Government land leased out to the petitioners, it is in the discretion of the Government to grant permission or not to the petitioners to start eco-tourism project. If they have not taken a policy decision for allowing limited eco-tourism activities in the area, this Court cannot compel the Government to give such permission to the petitioners. Further, when it is asserted that the area in question is forest land, naturally no non-forest activities can be carried out in the area without permission from the Government of India as mandated in the Forest Conservation Act, 1980 starting a resort is certainly a non-forest activity. Since the Government has categorically asserted that they have not given any o.p.38847/02 5 permission to other similar lessees for starting eco-tourism projects in similar leased out areas, I cannot accept the case of the petitioners, of discrimination. But the counsel for the petitioners asserts that the above said estates are in fact conducting tourism projects in the land leased out to them and that the petitioners are prepared to take out a commission to prove that. I am of opinion that it is the bounden duty of the Government to inspect the said estates and to take appropriate action if the said estate owners are in fact conducting tourism projects in the area leased out to them, in violation of the lease agreement without permission from the Government as asserted by the petitioners, especially when the Government takes the stand that conducting a resort being a non-forest activity, cannot be undertaken without permission from Government of India. Such action, after complying with the procedural formalities, shall be initiated and completed within a period of four months from today. If the respondents do not take such action as directed, it would be open to the petitioners to approach this Court with an appropriate writ petition or a contempt of court case for violation of the directions in this judgment. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.38847/02 6 S.SIRI JAGAN, J. ================== O.P.No. 38847 of 2002-Y ================== J U D G M E N T 8th December, 2009