IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 W.P.(C).No.3799 of 2010 (Y) ----------------------------------------------- PETITIONERS:- ------------------------ 1. M/S.KANAN DEVAN HILLS PLANTATIONS CO.PVT. LTD., KHDP HOUSE, MUNNAR-685 612, REPRESENTED BY ITS DEPUTY MANAGER (ADMINISTRATION & LEGAL) MR.C.SREEKUMAR. 2. M/S.TATA TEA LIMITED, SPECIAL PROJECTS OFFICE, GENERAL HOSPITAL COMPLEX, MUNNAR - 685 612, REPRESENTED BY ITS SENIOR MANAGER - IR (LEGAL AND ADMINISTRATION) MR.PRATAP RAMDAS. BY ADV. SRI.JOSEPH KODIANTHARA, SENIOR ADVOCATE SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH RESPONDENTS:- --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, IDUKKI. 3. THE SUB COLLECTOR, DEVICOLAM. W.P.(C).NO.3799 OF 2010-Y - 2 - 4. THE TAHSILDAR, DEVICOLAM. 5. K.GEORGE DANIEL, EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, IDUKKI, KATTAPPANA. 6. THE DIVISIONAL FOREST OFFICER, MUNNAR. * ADDITIONAL RESPONDENTS 7 AND 8 IMPLEADED: ADDL.R7. PICHAYYA RAWETHER, AGED 85 YEARS, S/O.NAHOORPICHA, RESIDING AT 2560, LECHMI ESTATE, WEST DIVISION, MUNNAR, IDUKKI DISTRICT. ADDL.R8. THANKAVEL, S/O.PICHAYYA, AGED 52 YEARS, LECHMI ESTATE, MIDDLE DIVISION, MUNNAR, IDUKKI DISTRICT. *(ADDITIONAL RESPONDENTS 7 AND 8 ARE IMPLEADED AS PER ORDER ON I.A.NO.4586 OF 2010 DATED 26.3.20100 R1 TO R4 & R6 BY ADVOCATE GENERAL SRI.C.P.SUDHAKARA PRASAD, I/B. SENIOR GOVERNMENT PLEADER SRI.M.P.SREEKRISHNAN. R7 & R8 BY ADV.SRI.JOICE GEORGE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2010, ALONG WITH W.P.(C).NOS. 3778 OF 2010-V & 3779 OF 2010-V, THE COURT ON 20/08/2010 DELIVERED THE FOLLOWING:- W.P.(C).NO.3799 OF 2010-Y APPENDIX ---------------- PETITIONERS' EXHIBITS:- ----------------------------------------- EXT.P1 - TRUE COPY OF DEED DATED 11.7.1877 EXECUTED BY POONJAR CHIEF. EXT.P2 - TRUE COPY OF DEED DATED 26.7.1879 EXECUTED BY JOHN DANIEL MUNRO AND POONJAR CHIEF. EXT.P3 - TRUE COPY OF DEED OF RATIFICATION DATED 28.11.1879 EXECUTED BY THE THEN GOVERNMENT OF TRAVANCORE. EXT.P3(a) - TRUE COPY OF AGREEMENT DATED 27.3.1928 ENTERED BY KANAN DEVAN HILLS PRODUCE COMPANY WITH THE GOVT. OF TRAVANCORE. EXT.P4 - TRUE COPY OF ORDER DATED 29.3.1974 OF THE LAND BOARD. EXT.P4(a) - TRUE COPY OF THE ORDER DATED 29.3.1974 OF THE LAND BOARD. EXT.P4(b) - TRUE COPIES OF NOTIFICATIONS DATED 25.1.1977 AND 16.5.1977 UNDER SECTION 6(2) AND 6(3) OF KDH ACT. EXT.P4(c) - TRUE COPY OF PROCEEDINGS DATED OF THE DISTRICT COLLECTOR DATED 13.10.1977 AND 12.6.1978 OF THE TAHSILDAR, DEVICOLAM. EXT.P5 - TRUE COPY OF NOTICE NO.C10-4852/10 DATED 28.1.2010. EXT.P6 - TRUE COPY OF GOVERNMENT CIRCULAR NO.59289/K1/2004/RD DATED 22.12.2004. EXT.P7 - TRUE COPY OF PETITIONER'S REPLY DATED 3.2.2010 TO THE 2ND RESPONDENT. EXT.P8 - TRUE COPY OF NEWS ITEM IN HINDU DATED 31.1.2010. EXT.P9 - TRUE COPY OF NEWS ITEM IN MALAYALA MANORAMA DATED 31.1.2010. EXT.P10 - TRUE COPY OF NEWS ITEM IN MALAYALA MANORAMA DATED 3.2.2010. EXT.P11 - TRUE COPY OF NOTICE DATED 27.1.2010 OF THE 2ND PETITIONER TO THE 2ND RESPONDENT. W.P.(C).NO.3799 OF 2010-Y - 2 - EXT.P12 - TRUE COPY OF JUDGMENT DATED 12.7.2007 OF THE KERALA HIGH COURT IN W.P.(C).NO.19689/2007. EXT.P13 - TRUE COPY OF INTERIM ORDER DATED 4.11.2008 OF THE KERALA HIGH COURT IN W.P.(C).NO.32375/2008. EXT.P14 - TRUE COPY OF AFFIDAVIT DATED 24.3.2010 OF MR.MOHAN ALEMBATH, RETIRED WILDLIFE WARDEN. EXT.P15 - TRUE COPY OF TERMS OF REFERENCE OF PANEL DATED 7.3.2010 WHICH APPOINTED BY THE 1ST PETITIONER. EXT.P16 - TRUE COPY OF REPORT DATED 24.3.2010 OF THE EXPERT PANEL COMPRISING OF THREE RETIRED CHIEF ENGINEERS OF IRRIGATION DEPARTMENT. EXT.P17 - TRUE COPY OF MEMO DATED 9.2.2010 ALONG WITH THE DOCUMENTS FILED BY THE PETITIONERS IN W.P.(C) NO.3799/2010. EXTG.P18 - TRUE COPY OF LETTER NO.SAS/PM/01/GNL/09-10/329 DATED 27.1.2010 OF THE PROJECT MANAGER, KERALA STATE ELECTRICITY BOARD. RESPONDENT'S EXHIBITS:- -------------------------------------------- EXT.R2(a) - TRUE COPY OF THE ORDER DATED 30.1.2010. EX.R2(b) - TRUE COPY OF THE ORDER DATED 5.2.2010. EXT.R2(c) - TRUE COPY OF THE NOTICE DATED 6.2.2010. EXT.R2(d) - TRUE COPY OF THE G.O.(Rt.) NO.179/2010/WRD DATED 8.2.2010. EXT.R2(e) - TRUE COPY OF THE G.O. (MS) NO.46/10/REV. DATED 4.2.2010. J.CHELAMESWAR, C.J. & P.N. RAVINDRAN, J. -------------------------------------------------------------------------------------- W.P.(C).Nos.3799 of 2010-Y, 3779 of 2010-V & 3778 of 2010-V -------------------------------------------------------------------------------------- Dated, this the 20th day of August, 2010 JUDGMENT J.Chelameswar,C.J. All these three cases are referred to a Division Bench by a learned Single Judge of this Court by order dated 7.02.2010. W.P.(C).Nos.3799 of 2010 & 3779 of 2010 2. These two writ petitions raise common questions of law and their factual background is similar. The petitioners are the same in both writ petitions. The first petitioner is a Private Limited Company, engaged in the activity of growing and manufacture of tea at its estates situated in Munnar, Idukki District. It is averred specifically in the writ petition that 70% of the share capital of the 1st petitioner Company is held by the employees and workers of the 2nd petitioner Company. The 2nd petitioner is a Public Limited Company. 3. Lands, which form part of various estates in the Kannan Devan Hills Village, originally belonged to the Poonjar Chief, a local chieftain in the erstwhile Travancore State. It is averred in the writ petitions that the said Chief was the “absolute proprietor” of the said WPs(C).3799, 3779 & 3778 of 2010 - 2 - land, the legal implications of the description need not be examined, as, in our opinion, the same is irrelevant for the purpose of adjudicating the dispute in these two writ petitions. By deed dated July 18, 1877, he conveyed a huge tract of land in favour of one John Daniel Munro (a copy of the said deed is filed as Exhibit P1 in WP[C].No.3799 of 2010). The said conveyance was subject to the various conditions specified in the “deed of Concession”. The consideration for the said conveyance was an immediate payment of cash of Rs.5,000/- and perpetual annual payment of Rs.3,000/-. The further details of the said document would be examined, if necessary, at the appropriate place in the judgment. 4. The conveyance made by the Poonjar Chief mentioned above came to be ratified by a Deed of Ratification dated 28th November, 1878 (Exhibit P3), by the Government of Travancore, an independent State, subject to suzerainty of the British crown. 5. The lands covered by the above mentioned two documents eventually came to be held by the Kanan Devan Hill Produce Company and others, from whom the petitioners herein acquired the properties. The exact details as to how the property came to be acquired by the present petitioners may not be necessary as it is not disputed by the respondents that the petitioners herein are successors in interest of the WPs(C).3799, 3779 & 3778 of 2010 - 3 - rights created over some portion of the property covered by Exhibits P1 and P3. 6. In the year 1971, the legislature of Kerala passed an enactment called “the Kannan Devan Hills (Resumption of Lands) Act, 1971 (Act 5 of 1971). By declaration made under Section 3 of the said Act, the possession of all lands situate in the Kannan Devan Hills Village in the Devicolam Taluk of Kottayam District stood transferred to and vested in the Government of Kerala free from all encumbrances. It is further declared that the right, title and interest of the “lessees” and all other persons including the rights of mortgagees and holders of encumbrances, etc. in respect of such lands, stood extinguished. Section 3(1) reads as follows:- “Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the possession of all lands situate in the Kannan Devan Hills village in the Devicolam taluk of the Kottayam district shall stand transferred to and vest in the Government free from all encumbrances and the right, title and interest of the lessees and all other persons including rights of mortgagees and holders of encumbrances, in respect of such lands, shall stand extinguished”. WPs(C).3799, 3779 & 3778 of 2010 - 4 - The expression “lessee” is defined in Section 2(e) of the said Act as follows:- “ “lessee” means a person in possession of any land situate in the Kannan Devan Hills village in the Devicolam taluk of the Kottayam district, who has derived the right to such possession by means of a document executed by late Mr.John Daniel Munroe of London and Peermade or any other person claiming through him or any person claiming under or through any of the successors-in-interest of the said Mr.John Daniel Munroe”. It can be seen from the definition of the expression “lessee” that it has a specific legal connotation in the said Act, i.e. any person who is in possession of any land in the Kanan Devan Hills village who derived such possession by means of a document executed by late John Daniel Munro or any person claiming through or under him. It may be recollected that the above mentioned Munro is the original grantee under Exhibits P1 and P3. 7. However, Section 3 sub-section 2) makes a declaration that the declaration contained in sub-section (1) does not apply to the various categories of properties specified in the said sub-section. Sub-section (2) reads as follows:- WPs(C).3799, 3779 & 3778 of 2010 - 5 - “Nothing contained in sub-section (1) shall apply in respect of - (a) plantations, other than plantations belonging to trespassers; (b) buildings, other than buildings belonging to trespassers, and lands appurtenant to, and necessary for the convenient enjoyment or use of, such buildings; (c) play-grounds and burial and burning grounds; and (d) lands in the possession of the Central Government or any State Government or the Kerala State Electricity Board”. It is relevant, in the context of the present controversy, to notice that the declaration contained in sub-section (1) of Section 3 does not apply to “plantations”. The expression “plantation” itself is defined under Section 2 (f) as follows:- “ “plantation” means any land used by a person principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon (hereinafter referred to as “plantation crops”)”. 8. Section 4 of the said Act provides that any person in possession of a plantation may make an application to the “Land WPs(C).3799, 3779 & 3778 of 2010 - 6 - Board” (which expression is defined under Section 2(d)* of the Act) for the restoration of possession of such land which vested in the Government by virtue of the declaration contained in Section 3 sub-section (1) which, in the opinion of the applicant, is necessary for the various purposes specified in sub-clauses (a), (b) and (c) of sub-section (1) of Section 4. Sub-section (1) of Section 4 reads as follows:- “(1) Where the person in possession of a plantation considers that any land, the possession of which has vested in the Government under sub-section (1) of Section 3, - (a) is necessary for any purpose ancillary to the cultivation of plantation crops in such plantation or for the preparation of the same for the market; or (b) being agricultural land interspersed within the boundaries of the area cultivated with plantation crops, is necessary for the protection and efficient management of such cultivation; or ------------------------------------------------------------------------------------------------ *2(d) “Land Board”, means the Land Board constituted under Section 100 of the Kerala Land Reforms Act, 1963 (1 of 1964). WPs(C).3799, 3779 & 3778 of 2010 - 7 - (c) is necessary for the preservation of an existing plantation, he may, within sixty days from the date of publication of this Act in the Gazette, apply to the Land Board for the restoration of possession of such land”. Sub-section (3) of Section 4 empowers the Land Board to determine the extent of land necessary having regard to the purposes specified in the application. Upon such determination, the Land Board is required to cause the demarcation of the land which is required to be restored to the possession of the applicant. Under sub-section (5) of Section 4, it is declared that the lands so restored as described above shall be possessed by the person to whom it is restored on the same terms and conditions subject to which such lands were held by the applicant immediately before the “appointed day”*. Sub-sections (3), (4) and (5) of Section 4 read as follows:- “(3) On receipt of an application under sub-section (1), the Land Board shall, after giving the applicant an opportunity of being heard and after such inquiry as it deems necessary, by order ------------------------------------------------------------------------------------ *Sec.2(a) “appointed day” means the 21st day of January 1971. WPs(C).3799, 3779 & 3778 of 2010 - 8 - determine the extent of land necessary for the purpose or purposes specified in the application, and such order shall be final. (4) As soon as may be after determining the extent of land necessary for the purpose or purposes specified in the application under sub-section (1), the Land Board shall cause such land to be demarcated and put the applicant in possession of such land. (5) Any person put in possession of any land under sub-section (4) shall be entitled to possess that land on the same terms and subject to the same conditions on or subject to which he was holding such land immediately before the appointed day”. 9. It is the admitted case of the petitioners that some part of the land held today by the petitioner Companies is land falling within the description of the expression “plantation” as defined under the said Act and, therefore, never vested in the Government and some of the of the property held today by the petitioner Companies is land restored to the petitioners under Section 4 of the said Act. The exact details of the above mentioned two categories of the land may not be necessary for the purpose of these writ petitions. The respondents also do not join issue on the question of the petitioners' entitlement to hold land under the above mentioned two categories. WPs(C).3799, 3779 & 3778 of 2010 - 9 - 10. The dispute in these two cases is very narrow. The petitioners constructed two “Check Dams” across two water courses admittedly passing through the lands in possession of the petitioner Companies. While in the case of W.P.(C).No.3799 of 2010 the petitioners claim such a construction was made in the year 1945 in a water source known as “Anaikulam”, whereas in W.P.(C).No.3779 of 2010 the Check Dam described in the writ petition is in the OC Division of the Chittavurrai Estate which, according to the petitioner, is in existence for the last 70 years. The Collector, Idukki District issued two separate show cause notices, which are the impugned orders in the two writ petitions. In so far as W.P.(C).No.3799 of 2010 is concerned, the impugned order is Ext.P5. In so far as W.P.(C) No.3779 of 2010 is concerned also, the impugned order is marked as Exhibit P5 therein. The impugned orders are dated 28.1.2010 and 29.1.2010 respectively. The relevant portions of the two impugned orders read as follows respectively: W.P.(C).No.3799 of 2010 “It has come to notice of undersigned that company has constructed huge check without any permission or authorization. You have also altered the physical boundary of natural lake. WPs(C).3799, 3779 & 3778 of 2010 - 10 - By doing so you have also obstructed the natural flaw to stream which joins Kallar river. It is pertinent to note that Government is executing sengulam augmentation scheme (50 MW) by diverting Kallar river near Kallar. Your unauthorized action has reduced the water availability and they compromises with project and energy security of state. As per the report received from Irrigation Department dated 28.01.10, dam is dangerous to life and property (report attached). Also as per concession agreement Sec.3 The ponds, rivers and water-courses if there be any on there lands shall continue to exist as hereto for. Further Sect.5 of agreement says for violation of agreement condition, if you fail to comply with the terms of this agreement by refusing to pay the sum of Rs.8,000/- annually as agreed upon, or by violating any other conditions specified herein, you shall without claiming the value of improvements effected on these lands, or the return of the rupees received by us, surrender the lands to us. You are hereby directed to show cause why the action should not be taken against you for violation of Government Circular No.59289/K1/04/RD dated 22.12.2004. WPs(C).3799, 3779 & 3778 of 2010 - 11 - Your reply should reach to undersign in 7 days from receipt of this letter failing to do so action will be taken on its merits, assuming that you do not have anything to say in the matter”. W.P.(C).No.3779 of 2010 “It has come to my notice that old channel (height around 10 feet) has been demolished and new check dam with height (around 30 feet) has been constructed by company, without any permission or authorization. You are hereby directed to show cause why action should not be taken for doing so against violating circular No.59289/K1/04/RD dated 22.12.2004. You have also obstructed the water channel which pours into Kundala reservoir. You are directed to show cause in 7 days why the action should not be taken to demolish the same”. Both the impugned orders referred to an earlier Circular of the Government of Kerala dated 22.12.2004 (which is filed as Exhibit P6 in both the writ petitions) and claim that the disputed constructions are in violation of the said Circular, the relevant portion of which reads as follows:- WPs(C).3799, 3779 & 3778 of 2010 - 12 - “The following guidelines are issued to ensure safety and accountability of existing check dams and construction of new check dams. 1. All the private land owners who have constructed check dams in their lands should furnish information to the District Administration. 2. A technical team should inspect these check dams to know whether they conform to the engineering/architectural norms. 3. All the check dams which do not conform to the standard norms should either be strengthened or demolished. 4. In future check dams shall be constructed only with the permission of Irrigation department as per approved plan and estimate. The department shall set standards for construction. There should be an upper limit for maximum height, especially in the high ranges. 5. The Irrigation department officer should inspect the check dam and certify the strength in every three years before monsoon. 6. The land owner will be responsible for annual maintenance and up keep. 7. A spill way and a silt clearance crevice shall be provided to each check dams. During the rainy season the silt clearance crevice and spill way shall be kept opened. 8. In the case of Government check dams, the Grama Panchayat will be responsible for its operation and maintenance. 9. The beneficiary committee may be entrusted for the upkeep of the check dam. The above guidelines is to be observed scrupulously”. WPs(C).3799, 3779 & 3778 of 2010 - 13 - 11. Subsequent to the filing of these writ petitions, another notice [Exhibit R2(c)] came to be issued to the petitioners dated 6.2.2010, the substance of which is that the disputed constructions are in violation of Section 5 of the Kerala Irrigation and Water Conservancy Act 2003 also and, therefore, called upon the petitioners to make their submissions. The relevant portion of the said letter reads as follows:- “It has come to my notice that your action referred in the notices cited above are in violation of Sec.5 of the Kerala Irrigation and Water Conservancy Act 2003 also. Hence you may make your submission in this regard at the time of hearing on 08.02.2010 at 12.30 Noon”. 12. It is in the background of the above mentioned facts, these two writ petitions came to be filed seeking that Exhibit P5 notice impugned in each of these writ petitions be quashed and further to prohibit the respondents from demolishing the bund/Check Dams mentioned in the notices impugned in these writ petitions. 13. On behalf of the 2nd respondent, a counter affidavit is filed by the Deputy Collector, who claims to have been duly authorized for the said purpose. Later, the 2nd respondent - Collector - himself filed an affidavit dated 3.4.2010 denying some of the personal allegations made against him. WPs(C).3799, 3779 & 3778 of 2010 - 14 - 14. When these writ petitions were filed, each of the impugned notices was challenged on the ground of lack of authority of law on the part of the 2nd respondent. The writ petitioners do not dispute the fact that even under the original grant (Exhibit P1) as confirmed by Exhibit P3, the roads, rivers and water courses existing on the lands covered by the grant are required to continue as before. Further, no exclusive right of water except to the extent it is necessary for the use of plantation was conveyed by the grant. The writ petitioners also assert that the disputed constructions (Check Dams) are made only for the convenient use of the water from the water courses for the purposes of plantation and for the purposes ancillary thereto (for providing water to the plantation-labour, etc.) with a limited impounding capacity, which does not in any way interfere with the environment or the flow of the water course. Therefore, within the permissible limits of the rights granted to them under the original grant covered by Exhibits P1 and P3 and also the subsequent agreement known as “ Kanan Devan Hills Produce Company, Ltd., Water Rights” made in the year 1928 between the Government of Travancore and the grantee Company. 15. The petitioners also assert that the Circular relied upon initially in the impugned Exhibit P5 notice would not in any way affect the WPs(C).3799, 3779 & 3778 of 2010 - 15 - rights of the petitioners as the disputed constructions came into existence long before the issuance of the said circular, apart from the fact that the circular has no authority of law. Further, the petitioners submit that the reliance belatedly placed upon Section 5 of the Kerala Irrigation and Water Conservation Act, 2003 is wholly misconceived for the reason that the said Act is only prospective in operation and Section 5 of the said Act, which was relied upon by the respondents as conferring the necessary authority of law to demolish the constructions in dispute, only prohibits the constructions of the description mentioned in the said Section obviously with effect from the date of coming into force of the said Act and in view of the fact that the disputed constructions are anterior to the coming into force of the said Act, the power under Section 5 could not be invoked/relied upon for justifying the impugned action of the respondents. 16. On the other hand, the respondents dispute the fact that the constructions were anterior to the 2003 Act. The 2nd respondent also disputed the various allegations made by the writ petitioners against him. 17. It is also brought to our notice by the learned Advocate General appearing for the respondents that the impugned action in these writ petitions is a sequel to certain directions issued by a Division Bench WPs(C).3799, 3779 & 3778 of 2010 - 16 - of this Court in W.P.(C).Nos.34095 of 2009 and 1801 of 2010 dated 21st January, 2010 and, therefore, there is no justification for the petitioners to make any allegations personally against the 2nd respondent. 18. Another development which is required to be taken note of is that during the pendency of the present litigation, another enactment, known as “The Munnar Special Tribunal Act, 2010” (Act 13 of 2010), of the State of Kerala came to be enacted, which is deemed to have come into force on the 14th day of June, 2010 in view of the declaration contained in sub-section (2) of Section 1 of the said Act. Section 1 reads as follows:- “1. Short title and commencement.- (1) This Act may be called the Munnar Special Tribunal Act, 2010. (2) It shall be deemed to have come into force on the 14th day of June, 2010”. Section 3 of the said Act contemplates the constitution