IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 WP(C).No. 20755 of 2010(T) -------------------------------------- PETITIONER: ------------------- KARAPARA ESTATE `A', PADAGIRI, NELLIAMPATHY HILLS, PALAKKAD DISTRICT, REPRESENTED BY ITS SUPERINTENDENT MR.BABY PETER. BY SRI.JOSEPH KODIANTHARA, SENIOR ADVOCATE, ADVS. SRI.V.ABRAHAM MARKOS, SRI.MATHEWS K.UTHUPPACHAN, SRI.BINU MATHEW, SRI.TERRY V.JAMES, SRI.B.J.JOHN PRAKASH, SRI.TOM THOMAS (KAKKUZHIYIL). RESPONDENTS: ------------------------ 1. DIVISIONAL FOREST OFFICER, NENMARA, PALAKKAD DISTRICT,678 508. 2. THE FOREST RANGE OFFICER, NELLIAMPATHY, NENMARA, PALAKKAD DISTRICT,678 508. 3. THE STATE OF KERALA, REPRESENTED BY COMMISSIONER AND SECRETARY, FOREST AND WILDLIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 4. STATE OF KERALA, REPRESENTED BY DIRECTOR OF TOURISM, TOURISM DEPARTMENT, THIRUVANANTHAPURAM-695 001. R1 TO R4 BY ADDITIONAL ADVOCATE GENERAL SRI. RENJITH THAMPAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.20755/2010-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE DOCUMENT NO.44/1054 DTD. 11/09/1878 EXECUTED BY THE DIWAN OF COCHIN TO TWO BRITISH CITIZENS MR. ROBERT PEIREE AND MR. DONALD STEWARD GULKISON. EXT.P.2: COPY OF THE COFFEE REGISTRATION DTD. 01/02/1999 ISSUED BY THE TAHSILDAR, CHITTOOR. EXT.P.3: COPY OF THE CARDAMOM REGISTRATION DTD. 05/02/1999 ISSUED BY THE TAHSILDAR, CHITTOOR. EXT.P.4: COPY OF THE LETTER DTD. 19/02/2007 ISSUED BY THE DEPUTY DIRECTOR (EXTENSION) TO THE PETITIONER. EXT.P.5: COPY OF THE REPRESENTATION DTD. 23/12/2004 OF THE PETITIONER TO THE R.1. EXT.P.6: COPY OF THE ORDER DTD. 01/02/2005 OF THIS HONOURABLE COURT IN I.A. NO. 647/2005 IN O.P. NO. 4876/1992. EXT.P.7: COPY OF THE ORDER DTD 25/02/2005 OF THE R.1. EXT.P.8: COPY OF THE JUDGMENT DTD. 12/11/1991 OF THE THIS HON'BLE COURT IN O.P. NO. 6566/1988. EXT.P.9: COPY OF THE RECOMMENDATIONS OF THE CENTRAL EMPOWERED COMMITTEE CONSTITUTED UNDER W.P.(C).NO.202/1995. EXT.P.10: COPY OF THE STATEMENT DTD. 03/03/2009 FILED BY THE R.1. IN W.P.(C). NO.5721/2009. EXT.P.11: COPY OF THE LETTER DTD. 21/11/2008 OF THE R.1. TO THE CONSERVATOR OF FOREST. EXT.P.11.A: COPY OF THE LETTER DTD. 30/12/2008 ISSUED BY THE R.1. TO THE DIRECTOR OF TOURISM. EXT.P.11.B: COPY OF THE LETTER DTD. 07/07/2009 ISSUED BY THE DIRECTOR OF TOURISM TO THE R.1. EXT.P.12: COPY OF THE JUDGMENT DTD. 04/03/2009 OF THIS HON'BLE COURT IN W.P. (C).NO.5721/2009. EXT.P.13: COPY OF THE JUDGMENT DTD. 02/04/2009 OF THIS HON'BLE COURT IN W.P. (C).NO.5721/2009. EXT.P.14: COPY OF THE STATEMENT DTD. 16/11/2009 FILED BY THE R.1. IN W.P.(C). NO.31159/2009. EXT.P.15: COPY OF THE REPLY DTD. 03/12/2009 FILED BY THE PETITIONER IN W.P.(C). NO.31159/2009. W.P.(C). NO.20755/2010-T: EXT.P.16: COPY OF THE APPLICATION DTD. 19/05/2010 SUBMITTED BY THE PETITIONER BEFORE THE R.1. EXT.P.17: COPY OF THE LETTER DTD. 31/05/2010 FROM THE R.1. EXT.P.18. SERIES: COPIES OF PLANTATION TAX RECEIPTS DTD. 16/04/2008 FOR THE FINANCIAL YEAR 2007-2008 AND DTD. NIL. FOR THE FINANCIAL YEARS 2008-2009 & 2009-2010. EXT.P.19: COPY OF THE ADVISORY REPORT DTD. 27/08/2010 OF THE LIAISON OFFICER, COFFEE BOARD, PALAKKAD TO THE CHIEF MANAGER OF THE PETITIONER. EXT.P.20: COPY OF THE JUDGEMENT DTD. 17/03/1994 OF THE HIGH COURT OF KERALA, ERNAKULAM IN O.P. NO. 2819/1994. EXT.P.21: COPY OF THE LETTER DTD. 21/02/1992 OF THE COMMISSIONER & SECRETARY TO GOVT., FOREST & WILD LIFE DEPARTMENT TO THE CHIEF CONSERVATOR OF FORESTS, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE RESERVE FOREST NOTIFICATION. EXT.R1.B: COPY OF THE ORDER DT. 06/06/1996. EXT.R1.C: COPY OF THE ORDER DT. 25/05/2006. EXT.R1.D: COPY OF THE REPORT DT. 03/08/2009. EXT.R1.E: COPY OF THE GOVERNMENT LETTER. EXT.R1.F: COPY OF THE LETTER DT. 14/05/2010 WITH LEGAL OPINION. EXT.R1.G: COPY OF THE LETTER NO. B2-5218/92 DT. 31/03/2010. EXT.R1.H: PHOTOGRAPHS DEPICTING THE DENSITY, ABUNDANCE AND PREDOMINANCE OF NATURAL VEGETATION OF THE LAND AND THE PRESENCE OF ENDANGERED WILD ANIMALS. EXT.R1.I: COPY OF THE ORDER DTD. 07/2004 PASSED BY CENTRAL EMPOWERED COMMITTEE. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J. ``````````````````````````````````````````````````````` W.P.(C) No. 20755 of 2010 T ``````````````````````````````````````````````````````` Dated this the 24th day of November, 2010 J U D G M E N T Petitioner is a coffee estate in Nelliampathy Hills of Palakkad district. According to the petitioner, they made an application to the first respondent on 19-05-2010 for permitting them to do shade regulation in their estate. That application was rejected by Ext.P17 order dated 31-05-2010 for the reason that action has already been taken by the first respondent to resume the land of the petitioner on the allegation of violation of lease conditions. It is challenging Ext.P17 order, this writ petition is filed. Petitioner contend that they have not violated any of the lease conditions and, therefore, Ext.P17 order is illegal and is liable to be quashed. 2. A counter affidavit has been filed by the respondents. In the counter affidavit, various instances of lease violation have been pointed out. It is also contended that a part of the area held by the petitioner is declared to be W.P.(C) No.20755/10 : 2 : ecologically fragile land which is yet to be demarcated. 3. While the aforesaid contentions are denied by the petitioner, during the course of the arguments, the learned Additional Advocate General mainly relied on Ext.P9, recommendation made by the Central Empowered Committee to the Apex Court. It is pointed out that in Ext.P9 report, it has been held that although land held on perpetual lease, is alienable, any such alienation after 25-10-2010 when the Forest Conservation Act, 1980 was brought into force, is valid only if the alienation is with the approval under the Act. It is pointed out that on that basis, the Committee has held that any alienation after 25-10-2010 is invalid. It is contended that going by the facts pleaded in the writ petition itself, the alienation in favour of the petitioner is during the period 1994- 1996 and that the petitioner has no case that such an alienation was with the approval under the Forest Conservation Act. Learned Additional Advocate General contended that, for the aforesaid reason itself, the petitioner has no valid title and therefore, the Government have taken W.P.(C) No.20755/10 : 3 : steps for resumption of the land. It is pointed out that for such violation of the lease conditions, the permission sought for by the petitioner has been rejected by Ext.P17 order. 4. I have considered the submissions made. 5. Ext.P9 is a recommendation made by the Central Empowered Committee. Those recommendations are pending consideration of the Apex Court. Even in the absence of such a recommendation, if there is violation of the lease conditions, or violation of the provisions of the Forest Conservation Act, none can deny the competence of the State Government to take proceedings against the petitioner. Therefore, that right of the respondents has to be recognised and I do so. 6. Be that as it may, fact remains that as at present, the petitioner is in possession of land and that the land is a fully developed coffee estates. It is also a recognised fact that in coffee estates there has to be shade regulation for the healthy growth of the coffee plants. Further, nobody has a case that shade regulation is a non forest activity. Therefore, W.P.(C) No.20755/10 : 4 : irrespective of the right of the respondents, the petitioner should be entitled to do shade regulation for the purpose of maintaining their coffee estate. In that view of the matter, I am inclined to think that eventhough it is open to the respondents to proceed with the proposal mentioned in Ext.P17, the permission has to be granted to the petitioner for shade regulation, as sought for by the petitioner. 7. Therefore, I dispose of the writ petition directing that orders will be passed by the first respondent permitting the petitioner to proceed with shade regulation in their coffee estate. It is clarified that the said order will be without prejudice to the right of the respondents to proceed against the petitioner for any violation of the Forest Conservation Act, 1980 or any of the lease conditions. Orders as above shall be passed at any rate, within three weeks from the date of production of a copy of this judgment. (ANTONY DOMINIC, JUDGE) aks