IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 34707 of 2009(G) ----------------------------------------- PETITIONER(S): -------------------------- M/S.HARRISONS MALAYALAM LTD., BRITOW ROAD, WILLINGDON ISLAND, COCHIN 682 003, REPRESENTED BY ITS MANAGER LEGAL MR.M.V.H. MENON BY ADVS. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.P.GOPINATH MENON, SRI.V.J.ANAND. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFIARS, SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 4. INSPECTOR GENERAL OF POLICE, SOUTHERN RANGE, NANDAVANAM,THIRUVANANTHAPURAM. 5. INSPECTOR GENERAL OF POLICE THRISSUR RANGE, THRISSUR. Kss ..2/- ...2.... WPC.NO.34707/2009 G 6. INSPECTOR GENERAL OF POLICE, KANNUR RANGE, KANNUR. 7. SUPERINTENDENT OF POLICE,KOLLAM. 8. SUPERINTENDENT OF POLICE, PATHANAMTHITTA. 9. SUPERINTENDENT OF POLICE, IDUKKI. 10. SUPERINTENDENT OF POLICE,KOTTAYAM 11. SUPERINTENDENT OF POLICE, THRISSUR. 12. SUPERINTENDENT OF POLICE, WYANAD. 13. SADHU JANA VIMOCHANA SAMYUMKTHA VEDI, REPRESENTED BY ITS PRESIDENT,LAHAI GOPALAN, PATHANAMTHITTA. 14. WAYANAD BHOO SAMRAKSHANA SAMITHI REPRESENTED BY ITS SECRETARY MR.G.SANJEEVAN,PULARI NIVAS, THRIKKAIPETTA P.O.VYTHIRI TALUK,WAYANAD DISTRICT. 15. BHOOSAMARA SAMITHI, REPRESENTED BY ITS CONVENER SRI K.V.PURUSHOTHAMAN, KUNNATHUPARAMBAN HOUSE, ATTAPPILLY, NANDIKULAM POST,THRISSUR DISTRICT. 16. COMMUNIST PARTY OF INDIA (MARXIST LENINIST) REPRESENTED BY ITS STATE SECRETARY MR. P.J.JAMES, PUTHENVEETTIL HOUSE (PRESENTLY AT EDAYALAM), ETTUMANNOOR POST, KOTTAYAM DISTRICT. *ADDL.R17 & R18 IMPLEADED: R17. KERALA STATE KARSHAKA THOZHILALI UNION, ACHOOR, POZHTHANA (PO), VYTHIRI TALUK, WAYANAD DISTRICT, REPRESENTED BY ITS SECRETARY MR. MANI. Kss ..3/- ...3.... WPC.NO.34707/2009 G R18. KERALA KARSHAKA SANGHAM ACHOOR, POZHTHANA (PO), VYTHIRI TALUK, WYANAD DISTRICT, REPRESENTED BY ITS SECRETARY MR. DASAN. (*ADDL.R17 & R18 ARE IMPLEADED AS PER ORDER DTD. 18/05/2010 IN I.A.NO.492/2010) R1 TO R12 BY ADVOCATE GENERAL SRI.C.P.SUDHAKARA PRASAD BY GOVERNMENT PLEADER SRI. GANESH R13 BY ADVS.SRI.A.X.VARGHESE, SRI.A.V.JOJO. R14 BY ADVS.SRI.P.K.JOSE, SMT.TESSY JOSE. R15 & R16 BY ADVS.SRI.THOMAS ANTONY, SRI.TITUS MANI, SRI.SABI JOSEPH. R17 & R18 BY ADVS.SRI.P.V.SURENDRANATH, SRI.B.S.SYAMANTHAK. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2010 ALONG WITH WPC NO. 4545 OF 2010 AND CONNECTED CASES, THE COURT ON 18/05/2010 DELIVERED THE FOLLOWING: Kss WPC.NO.34707/2009 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT DTD. 24/07/07 IN WPC.NO.24210 OF 2007. P2: COPY OF THE INTERIM ORDER PASSED BY THIS COURT IN I.A.12947/2007 IN WPC.NO.24210 OF 2007 DATED 7/12/2007. P3: COPY OF THE INTERIM ORDER PASSED BY THIS COURT IN I.A.3335/2008 IN WPC.NO.24210 OF 2007 DTD. 27/03/2007. P4: COPY OF THE CONTEMPT PETITION CCC NO.1869 OF 2008 (WITHOUT ANNEXURES) DTD. 19/12/08. P5: COPY OF THE AFFIDAVIT FIELD BY THE 1ST RESPONDENT IN CCC 1869/08 DTD. 3/11/2009. P6: COPY OF THE REPORT OF THE “THE HINDU” NEWS PAPER DTD. 06/10/2009. P7: COPY OF THE REPORT IN THE “THE HINDU” NEWS PAPER DTD. 14/10/2009. P8: COPY OF THE REPORT IN THE “THE HINDU” NEWS PAPER DTD. 15/10/2009. P9: COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT DTD. 15/10/2009. P10: COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT DTD. 28/11/2009. P11: COPY OF THE LETTER DTD. 28/12/2009 ISSUED BY THE PETITIONER. P12: COPY OF THE LETTER DTD. 04/01/2010 ISSUED BY THE PETITIONER. P13: COPY OF THE NEWS REPORT DTD. 8/02/2010 PUBLISHED BY 'ASIANET NEWS' AT ITS WEBSITE. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. -------------------------------------------------- W.P(C).NOS. 34707/09G, 4545/10P, 4624/10C, 4642/10E & 4646/10E --------------------------------------------------- Dated this the 18th May, 2010 JUDGMENT K.M. Joseph, J. These batch of Writ Petitions raise common questions and hence they are disposed of by this common Judgment. All the petitioners seek a writ of mandamus, order or direction in the nature thereof, directing the official respondents to provide police protection to them to ward off encroachments on their properties. W.P.(C).No.4545 of 2010 2. The petitioner is an elected Member of the Kerala Legislative Assembly from Kalpetta. Briefly put, the case of the petitioner is as follows: Petitioner is a planter. The present Wayanad District and other parts formerly constituting the erstwhile Malabar area were under the administration and management of the Madras Government. During 1940, the Madras Government formulated WPC.34707/09 & CNN. CASES 2 a scheme, called more food campaign to encourage the people to cultivate more lands. The grandfather of the petitioner, a cultivator was approached by the concerned Officials offering to give the property in the possession of the petitioner herein for improving and converting the same into an agricultural land. These lands were handed over in the year 1940 and were improved and converted into an excellent garden land consisting of various fruit bearing trees. During 1958, there was an assessment and levy of additional land revenue under the Madras Land Revenue (Surcharge) Act, 1954. Ext.P3 is the copy of the Registration Certificate in favour of the petitioner's grandfather. There is a partition by the grandfather and the property was allotted to the share of his father, Shri M. P. Veerendrakumar who is a former Minister. Petitioner's father also paid tax under the Kerala Plantation Additional Tax Act, 1950. There is reference to a Partition Deed No. 1639 of 1972 by which there was a partition among the members of the branch of the petitioner's father (Ext.P5). From the date of the Partition WPC.34707/09 & CNN. CASES 3 Deed, the property is in the possession of the petitioner. Petitioner has improved the property further, paid taxes and other dues to the Government. It is stated that in regard to the present property, petitioner has requested for assignment which is not granted. There is also reference to the petitioner being in possession of land of about 48.18 Acres with lands lying adjacent to the present property. It is alleged that the petitioner moved a Review Petition before the Minister for Revenue which is pending consideration, and the matter has not attained finality. Petitioner filed OS.No.142 of 2007 for declaration of title and injunction. Ext.P6 is the interim order passed. Still further, there is reference to the relationship between the petitioner and his father and a section of the leadership of the LDF becoming strained due to political developments. It is alleged that a demand emanated from the local activists of the CPI (M) that the land in possession of the petitioner and his father should be dispossessed and distributed among the adivasis. It is stated that the petitioner and his father had to leave the LDF along with his WPC.34707/09 & CNN. CASES 4 entire party, Janata Dal (S). His detractors incited the adivasis to move this Court by filing Writ Petition No.3195 of 2007 seeking re-possession of the land in the possession of the petitioner. That Writ Petition was dismissed. Against that, Writ Appeal No.348 of 2008 was filed. Without affording an opportunity of hearing to the petitioner, it was disposed of directing the official respondents to take effective steps to re-possess the land if the petitioner is in illegal possession. Petitioner filed a Review Petition. It was alleged further that the Local Secretary of the CPI (M) and the M.L.A. representing Sulthan Bathery Constituency, suddenly, started a movement clamouring that the land which is the subject matter of a civil suit and the Review Petition before this Court be handed over to adivasis for erection of huts and a march was held to seize the land by force. There are allegations against the District Collector in regard to the installation of a Board showing that the property is Government property for assigning to adivasis in terms of the Judgment of this Court in Writ Appeal No.348 of 2008. WPC.34707/09 & CNN. CASES 5 3. A Counter Affidavit is filed by the second respondent, inter alia, stating as follows: The subject property having 14.44 Acres is a Government land. After the formation of the Government of Kerala, the property stood vested with the Government of Kerala. Petitioner filed Ext.R2(a) application for assignment of the said land. There is reference to the Rules and Ext.R2(b) Report of the District Collector to the effect that the petitioner is in possession of 62.23 Acres of land, even according to Ext.R2(a) application. By Ext.R2(c), the Government rejected the claim of the petitioner for assignment of the subject property after giving an opportunity of being heard to the petitioner. There is no documentary evidence whatsoever, except Puncha Chit Receipt and the coffee plantation certificate to show that their family was in possession of the property as lessee. Leasehold right, in other words, appears to be denied. It is stated that the document will only show that the petitioner or for that matter, his predecessors in interest were in possession of the properties WPC.34707/09 & CNN. CASES 6 without any objection from the Government. It is stated that after having suffered Ext.R2(c) order, the petitioner cannot turn round and say that he has prescribed title or that he is entitled to fixity of tenure in a civil suit. He is estopped. Government has every authority to re-possess the land under the provisions of the Land Conservancy Act, subject to the Suit. It is stated that there is no meaning in the petitioner's contention regarding his alleged apprehension that Government may re-possess the land without adhering to the provisions of law. There is reference to the order passed by this Court in Writ Appeal No.348 of 2008. It is contended that the Division Bench permitted the Government to re-possess the land, subject to the Land Conservancy Act and after observing the principle of natural justice, to distribute the land to the eligible adivasis. Thereafter, it is, inter alia, stated that the Government did file Counter Affidavit in the Suit in 2007 itself, denying the allegations. The allegations about strained relationship of the petitioner with LDF etc. are disputed. It is stated further that it is true that the landless adivasis in WPC.34707/09 & CNN. CASES 7 Waynad made an attempt to enter into the property on 6.2.2010. However, their attempt was foiled by the Police force effectively and, therefore, the adivasis could not remain there. An attempt is made to justify the action of the Collector. It is further stated that the Government will re-possess the land in question from the petitioner only subject to the decision in the Suit and by resorting to the Act and the Rules and after observing principles of natural justice and they will make every possible steps to maintain law and order. Petitioner has filed a Reply Affidavit to the same. 4. There is a Counter Affidavit filed by respondents 7 and 8 in the matter. The 7th respondent is the President of the Adivasi Kshema Samithi, Wayanad and the 8th respondent is the District Secretary of the Adivasi Kshema Samithi, Wayanad. Therein, the parties have made an attempt to trace the history of the adivasis. In long and short, it is their case that the adivasis of Wayanad have been reduced to begar. It is further stated that there are about three lacks tribals in Wayanad District and about WPC.34707/09 & CNN. CASES 8 twenty thousand tribal families are without any land or livelihood. Reference is made to the decision in Varkey Abraham v. Secretary to Government (2007 (3) KLT 702), wherein it is declared that the Kerala Land Assignment Act and the Rules are not intended for enriching persons who hold extensive lands. It is their case that the petitioner is attempting to politicise the issue. It is their case that the writ Court may not declare the title of the petitioner. There are factual issues which are highly disputed and contumacious. Petitioner has filed a Reply Affidavit to the same. W.P.(C).No.4642 of 2010 5. Briefly put, the case of the petitioner is as follows: They are co-owners in possession of coco plantation having an extent of 26.305 hectares equivalent to 65 acres in Wayanad District. They had acquired the jenm right over a property having an extent of 47.5610 hectares under Ext.P1 Assignment Deed No.3357 of 1999. Thereafter, the leasehold rights of the lessee, namely M/s. Cadbury India Limited was WPC.34707/09 & CNN. CASES 9 surrendered orally in favour of the petitioners and followed by Ext.P2 document. In Writ Petition No.4642 of 2010, the Land Board Order is produced to show that the aforesaid property of coco plantation is exempted by the Taluk Land Board. 20.2500 hectares came to be acquired by the Government for KINFRA in the year 2000. Ext.P4 is the Award. There was a reference to the Sub Court in the matter of compensation. Ext.P5 is the Award. Petitioner in W.P.(C).No.4642 of 2010 was elected to the Wayanad District Panchayat on the party ticket of Janata Dal. Janata Dal was associated with CPI(M). Petitioner was elected as the Chairman of a Standing Committee. In 2009, following a political re-alignment, Janata Dal supported the United Democratic Front, which is in opposition to the LDF. With the support of the petitioner in W.P.(C).No.4642 of 2010 whose stand was of critical importance, the UDF has gained control of the Panchayat, dislodging the Sitting President and Vice President of the Panchayat and the petitioner was elected as the New Vice President. Consequently, the ruling CPI(M) is WPC.34707/09 & CNN. CASES 10 antagonist to the petitioner. Government has charged a false case of under-valuation which is pending consideration in a Writ Petition. Thereafter, allegations are raised against respondents 6 and 7 that they have manipulated the fifth respondent and managed a forcible entry by members of the fifth respondent in the property of the Sitting M.L.A. Shri M. V. Sreyams Kumar (petitioner in W.P.(C).No.4545 of 2010). Thereupon, the petitioner filed Ext.P6 complaint. It is alleged that some members of the adivasis were egged on and headed by respondents 5 to 7 and on 8.2.2010, they forcibly entered into a portion of the property and destroyed a few coco plants and attempted construction of katcha huts. Petitioner has approached the respondents. Counter Affidavits have been filed by respondents 2 to 4. They are the Superintendent of Police, Wayanad; the Circle Inspector of Police, Kalpetta and Sub Inspector of Police, Kalpetta. It is, inter alia, stated as follows: Petitioner is in possession along with his other co-owners 65 acres of land in Survey No.2661 of Kalpetta Village and that WPC.34707/09 & CNN. CASES 11 a part of the land has been acquired for KINFRA. There is also reference to the allegation of under-valuation and a dispute between the petitioner and the Government in regard to the land. There is reference to a vigilance case under the Prevention of Corruption Act, 1988. It is also stated that the proprietory rights of the petitioner and other co-owners are also in dispute, since according to the Government, the alleged title is bad, as it is hit by the provisions of the Kerala Land Reforms Act. There is reference to the fourth respondent receiving the petition from the petitioner and other co-owners. It is stated that the fourth respondent along with eleven police men then readily available, rushed to the spot and found some AKS workers numbering about 150 including women and children gathered here and there as groups along with road side adjacent to the boundary of the petitioner's property and shouting slogans. On seeing the police party, the assembled groups further spread and entered into the land of the petitioner and other co-owners who were not having any fencing before the police could do anything. The WPC.34707/09 & CNN. CASES 12 police party are stated to be out-numbered. The persons shouted slogans and erected blocks. The available police force were not enough to remove the mob numbering about 150. Fourth respondent informed the higher Officer. Third respondent reached the spot with re-inforcement. With that re-inforcement, the force was insufficient to remove the agitators. But, it is stated that later, eighteen persons were removed. They got a Report from the Special Branch of the local area that the adivasis are preparing for resistance with the police and further removal at that dusk time may lead to serious law and order problem as the agitating adivasis including women and children may sustain causalities. On the next day (9.2.2010), the entire police force was on duty in connection with the eviction from the subject matter in W.P.(C).No.4545 of 2010. Some more adivasis also forcibly entered into the estate land through the interior pathways and thus, the number increased about 350, in regard to the petitioner in W.P.(C). No.4642 of 2010. The adivasis forcibly entered were remaining there and living WPC.34707/09 & CNN. CASES 13 according to their life style, using the waste wood as firewood for cooking food. Petitioner has represented this matter as destruction of property. It is stated that the persons cleaned some bush growths and some small waste of the trees which were cut. 6. In the Counter Affidavit filed by the first respondent, it is, inter alia, stated as follows: The land measuring 180.70 acres came into the possession of M/s. Panora Tea & Produce Company Limited as per the Lease Deed No.8 of 1965 and Lease Deed No.15 of 1868 from two tharwads. The jenm rights came to be vested however with one of the tharwads under a Document of the year 1884. The leasehold right possessed by M/s. Panora Tea & Produce Company Limited was seen vested with M/s. Chambra Peack Estate, the successor of the said Panora Tea & Produce Company Limited. The Chambra Peak Estate transferred the above extent of 180.10 acres on sub-lease for a period of twentyfive years (Marupattom) in favour of M/s. Cadburys India WPC.34707/09 & CNN. CASES 14 Private Limited in the year 1966. There was a Suit filed by the jenm owner before the Munsiff Court which was finally settled between the parties and there was a renewal in favour of Champra Peak Estate for 99 years. As per Document No.2548 of 1991 Champra Peak Estate sold 119.21 acres to M/s. Cadburys India Private Limited. An extent of 60.29 acres which was given on sub-lease was surrendered and the lessee regained possession of the same. That was sold and later on, transferred to various parties. The legal heirs of the jenm holder transferred their right over an extent of 117.48 acres which was in the actual possession of M/s. Cadburys India Pvt. Ltd. To Shri Imbichi and M. Sasidharan in the year 1998. Thereafter, the said Imbichi and Sasidharan assigned the jenm right to Shri George Pothen, Shri P.C. Mathew and Shri George John. M/s. Cadburys India Pvt. Ltd. Surrendered their leasehold right and handed over possession of the said property to Shri George John and other co-owners as per Document in 2002. There is reference to the Award passed by the Acquisition Officer. Two lacunae are WPC.34707/09 & CNN. CASES 15 pointed out in regard to the title. It is stated that under Section 72 of the Land Reforms Act, there is a vesting of the rights of the jenmi automatically with the Government and the lessee has to apply and obtain purchase certificate from the Land Tribunal. Petitioner or his predecessor had not obtained purchase certificate. Secondly, it is contended that under Section 51 of the Kerala Land Reforms Act, the lessee cannot terminate the tenancy by surrendering the leasehold right and even if he should surrender, it could be only in favour of the Government. There is reference to also a case booked by the Vigilance & Anti-Corruption Bureau in regard to the deficiency in stamp duty paid in the Document at the time of registration. It is further stated that it is understood that landless adivasis in the Wayanad District who got information regarding the defective title of the petitioner, have forcibly entered into the property with their family members including women and children and have erected huts therein. At the time of forcible entry, the organized mob were so agitated and determined and hence any WPC.34707/09 & CNN. CASES 16 strict measures could have resulted in blood shed. It is also stated that on 8.2.2010, special branch information from the local area indicated that the adivasis are preparing for resistance with police and further removal at that dusk time may lead to serious law and order problems, as the agitating adivasis including women and children may sustain causalities. There is also statement that even though the police attempted to remove the organised mob from the site, it was not effective because any strict measures at that time would have been led to bloodshed. It is also stated that after the learned Advocate General submitted that law and order would be maintained, no further forcible entry occurred. Apart from the Counter Affidavit filed by respondents 2 to 4, there are Counter Affidavits filed by respondents 5 to 7, inter alia, raising contentions based on Sections 51 and 72 of the Act, and the booking of the case for under-valuation of the property. A Reply Affidavit is filed. Therein, it is, inter alia, stated as follows: The arguments based on Sections 51 and 72 of the Kerala WPC.34707/09 & CNN. CASES 17 Land Reforms Act are sought to be met by contending that they fall in Chapter II and as per Section 3 of the Act, nothing contained in Chapter II will apply to leases of private forests and tenancies in respect of plantations exceeding thirty acres in extent. It is stated that property was leased by Chembra to Cadbury in 1965 as a private forest for the purpose of planting coco and Cadbury had converted the area of 117.8 acres into coco plantation before 1.1.1970. Ext.P9 is stated to be the Registered Lease Deed dated 30.10.1965 between Chembra Peak Estates Ltd. and M/s.Cadbury Fry India Pvt. Ltd. and it is stated that Ext.P10 is a copy of the Registered Lease Deed between the same parties. It is contended that the area is plantation and it did not vest in the Government and the jenmi retained the right which was validly assigned to Imbichi and Sasidharan who in turn sold it to them. It is stated that Section 51 has no application to surrenders after 1970. W.P.(C). No.4646/2010 is filed by the other co-owner and we need not refer to the facts separately. WPC.34707/09 & CNN. CASES 18 W.P.(C).NOS.4624 OF 2010 & 34707 OF 2009 7. These Writ Petitions are filed by the same Company, namely M/s. Harrisons Malayalam Ltd. Briefly put, the case of the petitioner is as follows: Petitioner is a Company owning an estate both rubber and tea. It is in possession of 6916 acres of land in Wayanad District. It has been in the possession of the Company for the last more than hundred years. 5612 acres is planted with tea and the balance is interspersed and ancillary area required for the said plantations. There is reference to the petitioner Company being a victim to the Chengara land agitation. It is stated that though this Court had granted protection, trespassers have made permanent constructions and have prevented the petitioner from cultivating 350 acres in the rubber plantation. It is stated that the petitioner had to file W.P.(C).No.34707/09 in which Ext.P1 interim order came to be passed. The threat of trespass into the petitioner's lands in Wayanad being writ large, the petitioner has been contacting respondents 1 to 11 for adequate protection. It WPC.34707/09 & CNN. CASES 19 is stated that on 8.2.2010, respondents 12 and 13 had trespassed into the petitioner's Chundale Estate lands. Petitioner filed Ext.P3 complaint, followed by Ext.P4 letter. It is also stated that supporters of respondents 12 and 13 had trespassed into fresh areas of Achoor and Arapetta Estates also of the petitioner. Petitioner filed Ext.P5 complaint. It is the case of the petitioner that the total holdings of the petitioner Company was determined by the Officials after detailed enquiry and verification as 59623.50 Acres. The Taluk Land Board by its order dated 2.7.1982 arrived at 1845 acres as the petitioner's excess lands in all its Estates in Kerala. Petitioner filed C.R.P.No.3661 of 1982. By Ext.P6 order dated 25.11.1993, this Court directed the Taluk Land Board to consider afresh