IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 WP(C).No. 19014 of 2011(B) ----------------------------------------- PETITIONER(S): ------------------------ KARAPARA ESTATE 'A', PADAGIRI, NELLIAMPATHY HILLS, PALAKKAD DISTRICT, REPRESENTED BY ITS SUPERINTENDENT, MR.BABY PETER. BY SRI.JOSEPH KODIANTHARA, SENIOR ADVOCATE BY ADV. SRI.V.ABRAHAM MARKOS SRI.MATHEWS K.UTHUPPACHAN SRI.BINU MATHEW SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH SRI.TOM THOMAS (KAKKUZHIYIL) RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE COMMISSIONER AND SECRETARY, FOREST AND WILDLIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001. 3. THE CHIEF CONSERVATOR OF FOREST (PROTECTION), FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014. 4. THE CONSERVATOR OF FOREST, OLAVACODE, PALAKKAD DISTRICT-678 002. 5. THE DISTRICT COLLECTOR, PALAKKAD COLLECTORATE, PALAKKAD DISTRICT-678 001. 6. THE DIVISIONAL FOREST OFFICER, NENMARA, PALAKKAD DISTRICT-678 508. 2/- -2- WP(C)NO.19014/2011 7. THE DIVISIONAL FOREST OFFICER, WORKING PLAN, OLAVAKKOD, PALAKKAD DISTRICT-678 002. 8. THE FOREST RANGE OFFICER, NELLIAMPATHY, NENMARA, PALAKKAD DISTRICT-678 508. 9. THE TAHSILDAR, CHITTOOR TALUK, CHITTOOR, PALAKKAD DISTRICT-678 101. 10. THE VILLAGE OFFICER, NELLIYAMPATHY, PALAKKAD DISTRICT-678 508. BY GOVERNMENT PLEADER SRI.P.M.POULOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/09/2011,ALONG WITH WPC NO. 19954 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.19014/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE DOCUMENT NO.44/1054 DATED 11/9/1878 EXECUTED BY THE DIWAN OF COCHIN TO TWO BRITISH CITIZENS MR.ROBERT PEIREE AND MR.DONALD STEWARD GULKISON. P2 COPY OF THE COFFEE REGISTRATION DATED 01/2/1999 ISSUED BY THE TAHSILDAR, CHITTOOR. P3 COPY OF THE CARDAMOM REGISTRATION DATED 5/2/1999 ISSUED BY THE TAHSILDAR, CHITTOOR. P4 COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 17/3/1994 REPORTED IN 1996 (10 KLT 198 P5 COPY OF THE JUDGMENT DATED 24/11/2010 OF THIS HON'BLE COURT IN WRIT PETITION NO.20755/2010 P5(A) COPY OF THE JUDGMENT DATED 08/03/2011 IN WRIT APPEAL NO.292 OF 2011. P6 COPY OF THE PROCEEDINGS DATED 3/11/2010 OF THE DISTRICT COLLECTOR, PALAKKAD. P7 COPY OF THE LETTER DATED 17/6/2010 OF THE 6TH RESPONDENT WITH THE ANNEXURE THERE TO BEING THE COVERING LETTER AND LEGAL OPINION DATED 27/5/2010. P8 COPY OF THE 7 CHALLANS ISSUED IN FAVOUR OF THE RESPECTVE PARTIES BEING THE OWNERS OF THE KARAPARA ESTATE FOR THE LAST PAYMENT OF QUIT RENT FOR THE ENTIRE EXTENT ALL DATED 17/1/2011. P9 COPY OF THE GO (MS) NO.109/92/RD DATED 10/2/1992 ALONG WITH THE POSSESSION CERTIFICATES EARLIER ISSUED BY THE 10TH RESPONDENT TO THE PETITIONER FOR VARIOUS PURPOSE. P10 COPY OF THE JUDGMENT DATED 19/06/2008 IN WP(C)NO.18455/2008 RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts ANTONY DOMINIC, J .......................................... W.P.(C)s.19014 & 19954/ 2011 .......................................... Dated this the 1st day of September, 2011 JUDGMENT The issues raised in these writ petitions are connected and therefore, they were heard together and are disposed of by this common judgment. 2. W.P.(C).19014/2011 is filed in relation to Karapara Estate 'A' at Padagiri, Nelliyampathy Hills and the petitioner claims to be its assignee. In this writ petition the prayer sought by the petitioner is a direction to the tenth respondent herein to issue a possession certificate. 3. In paragraph 6 of the writ petition, it has been specifically averred by the petitioner thus:- “There is also no dispute as evident from Ext.P5 & P5(a) judgments that the estate is in the possession of the petitioner, yet the 10th respondent has been adamant in his stand and has refused to issue Possession Certificate to the petitioner In spite of the mandate under clause 7(14) of the Kerala Village Manual.” W.P.(C)s.19014 & 19954/11 2 4. Although a statement has been filed by the respondents stating that assignment in favour of the petitioner is in violation of the lease conditions and that steps are taken to cancel the lease and resume possession, the fact that the petitioner is in possession of the Estate in question is not a matter of dispute. In such a situation, there is absolutely no reason for denying the possession certificate as sought for by the petitioner which only certifies physical possession of the petitioner over the land in question, which is an undisputed fact. Therefore, there will be a direction to the tenth respondent to issue possession certificate of the land which is in the possession of the petitioner, on the production of a copy of this judgment. 5. In so far as W.P.(C).19954/2011 is concerned, the issue in this writ petition is in relation to the request of the petitioner that they shall not be prevented from effecting shade Regulation in the Karappara 'B' Estate. There is a further prayer requiring the respondents to issue challan and to receive quit rent for the entire extent comprised in Karapara Estate 'B' of the petitioner. Here also admittedly the Estate is a Coffee and cardamom plantation and the shade Regulation is an accepted agricultural practice for the healthy growth of the plantations. However, W.P.(C)s.19014 & 19954/11 3 permission for the said agricultural practice is sought to be declined, again on the reason that assignment in favour of the petitioner is in violation of the lease conditions and that steps are proposed to be taken for cancelling the lease and resuming possession. 6. In my view, irrespective of the Government's right to take action in the event of the violation of the lease conditions so long as the Estate continues to be in their possession, petitioner is entitled to be permitted to continue accepted agricultural practices which include shade regulation in the Estate. On a previous occasion, when a similarly situated Estate was faced with similar problem they had approached this Court by filing W.P.(C).20755/2010 and shade regulation was ordered to be permitted by Ext.P13 judgment and that judgment was confirmed by the Division Bench of this Court in W.A.292/2011. In the above view of the matter, I direct that the petitioner shall not be prevented from carrying out shade regulation in their Estate. Needless to say, as and when shade Regulation is proposed to be carried out, notice thereof will be given to the sixth respondent and it will be open to the sixth respondent to oversee the activities. W.P.(C)s.19014 & 19954/11 4 7. The other prayer in this writ petition is to direct respondents to issue challan and to receive quit rent. Learned Government Pleader submits that the refusal to issue challan and accept quit rent is on account of the pendency of the proposal for the resumption of the Estate and that the Government have decided not to issue challan and accept quit rent. 8. In the light of the above stand taken by the Government, it is clarified that if the Government is so willing, it will be open to the respondents to issue challan and receive quit rent from the petitioner without prejudice to any action that they are entitled to take. However, if challan is not issued and the petitioner is prevented from paying quit rent, non payment of quit rent shall not be a ground to call upon the petitioner to vacate the Estate or to cancel the assignment or lease for that reason. With the aforesaid directions, writ petitions are disposed of. ANTONY DOMINIC, Judge mrcs