IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 WP(C).No. 3912 of 2010(O) -------------------------------------- AGAINST THE ORDER IN IA 5 /2009 IN OA.3/2008 of I ADDL. DISTRICT COURT, KOLLAM. .................... PETITIONER(S): ------------------------- 1. JAISE JACOB, S/O. V.CHACKO, VADAKKEL MAZHUVANCHERRY HOUSE, THAMARACHAL, KIZHAKKAMBALAM P.O., ERNAKULAM DISTRICT. 2. GEORGE JACOB, -DO- -DO- 3. ELSY CHACKO, W/O. V.CHACKO, -DO- -DO- 4. PREETHA THULASEEDHARAN PILLAI, W/O. THULASEEDHARAN PILLAI, REMYA NIVAS, KANNIMMEL THERIYIL PATTAZHI VILLAGE, PADMANABHAPURAM,KOLLAM,REP.BY P/A HOLDER ANTONY M.P., MANIYACHERRY HOUSE, KOOVAPADY, PERUMBAVOOR, ERNAKULAM. BY MR.N.NANDAKUMARA MENON, SENIOR ADVOCATE BY ADV.MR.P.M.BENZIR RESPONDENT(S): -------------------------- 1. THE FOREST (ECOLOGICALLY FRAGILE LANDS), TRIBUNAL, (1ST ADDITIONAL DISTRICT COURT), KOLLAM. 2. THE CUSTODIAN OF VESTED FOREST (EFL), FOREST HEAD QUARTERS, VANALEKSHMI, VAZHUTHACADU, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FORESTS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 BY SPL.GOVERNMENT PLEADER MR.P.M.POULOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON 07/04/2010 DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- WP(C) No.3912 of 2010-O ------------------------------------- Dated 7th April 2010 Judgment The petitioners claim to be owners of a tea estate, having an extent of 108.90 acres, comprised in Survey No.924/1 of Kulathuppuzha village in Pathanapuram taluk in Kollam district. The said tea estate was part and parcel of another tea estate, by name Rockwood Estate, having a total extent of 486.29 Acres and is planted with tea and oil palm. 2. The petitioners submit, the tea estate originally belonged to a private tea company, called Murphy Estate and it was sold to one Mr.A.W.Leslee in the year 1946 under registered sale deed No.4429 of 1946. Even at that time, the property covered by the aforesaid document was a tea estate. Subsequently, Mr.A.W.Leslee executed a deed in favour of his wife and children as per registered document No.2992/1954 of SRO, WPC 3912/10 2 Pathanapuram. Later, the said tea estate was assigned to M/s.Cross Field Types and others under registered sale deed Nos.646, 647 and 648/1989 of Theni SRO in the year 1989. The persons, who had 1/10th share in the estate covered by the aforesaid documents sold the property to the 4th petitioner under various sale deeds. Petitioners 1 to 3 obtained title and possession over 108.90 acres of tea and oil palm estate under various sale deeds of the year 2005. Ever-since the assignments in their favour, the petitioners were in absolute possession and enjoyment of the estate and have been paying the land tax and also the plantation tax for the property covered by the registered sale deeds. 3. The petitioners would claim that the land was planted with tea and oil palm and the yield from the property is being taken by them. A copy of the receipt issued by the Village Officer for payment of plantation tax is produced as Ext.P1. WPC 3912/10 3 4. To the surprise of the petitioners, they received a letter dated 19.06.2006 from the DFO, Thiruvananthapuram, informing them that the tea and oil palm estate belonging to them, having an extent of 44.0702 hectares has vested with the Government under the provisions of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as “the Act”) as per a notification dated 4.1.2006. The petitioners would say that they had no information about such a notification said to have been issued by the Government and that they were unaware of the proceedings in respect of the property belonging to them. Since they could not do anything in the matter, they moved the Custodian of Vested Forests for review of the notification and to de-notify the properties which belonged to them. 5. The petitioners submit that the entire extent of 108.90 acres of land belonging to petitioners 1 to 3 and comprised in Survey No.924/1 is planted with tea and oil WPC 3912/10 4 palm. It is pointed out that the Taluk Land Board had occasion to consider the nature of the property in suo motu proceedings initiated as SM2/82 dated 5.5.82 and after holding a detailed enquiry, the Board came to the conclusion that the property is a tea plantation and is exempted from the ceiling provisions of the Kerala Land Reforms Act. 6. The petitioners also pointed out that the predecessors-in-interest of petitioners 1 to 3 had earlier filed OA No.161 of 1980 under S.8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971, seeking a declaration that the property in question, is outside the purview of Act 26 of 1971 and that it is not vested with the Government. That OA was allowed by order dated 15.02.1992, a copy of which is produced as Ext.P5. Ext.P5 categorically holds that the property covered by the OA is a tea and oil palm estate, that it falls under the exempted category and that it does not vest with the Government. The State took up the matter in appeal before this Court WPC 3912/10 5 and since there was considerable delay in filing the appeal, a delay condonation petition was also filed along with the appeal. This Court refused to entertain the delay condonation petition and dismissed it. Consequently, the appeal was also dismissed. The State, though approached the apex court, that did not yield any result. This Court is given to understand that the petitioners attempted a review before the second respondent, which was rejected. The petitioners, left with no other remedy, approached the first respondent Tribunal constituted under S.10 of the Act, by filing OA No.3 of 2008, seeking various reliefs. In the OA, the petitioners filed an IA praying for permission to enter the disputed property, to take the yield from there and to do necessary maintenance work in the estate. The copy of the said IA is produced as Ext.P9. The petitioners were constrained to file the said application, since the forest officials prevented them from entering WPC 3912/10 6 the estate. The application was resisted by respondents 2 and 3 by filing Ext.P10 objection. It is averred in the petition that the Tribunal closed the IA filed by the petitioners giving them liberty to file a fresh application for the very same reliefs. They did so and copy of the application so filed, is produced as Ext.P11. The Tribunal rejected the said application by Ext.P12 order dated 18.12.2009. The said order is assailed in this Writ Petition. 7. The learned counsel for the petitioners pointed out that the act of the State in notifying the tea plantation held by the petitioners as ecologically fragile lands, is unjustified. On earlier occasions, the Taluk Land Board as well as the Forest Tribunal under the Kerala Private Forests (Vesting and Assignment) Act, 1971, had held that the property involved was a plantation and it was exempted from the ceiling area. According to the learned counsel, there is nothing to show that the character WPC 3912/10 7 or nature of the land has been changed since then and therefore, it will be deemed that it continues to be a plantation. If such be the case, then the State could not have invoked S.3 of the Act. Whatever that be, the petitioners were constrained to move an IA before the Tribunal. They have preferred an application since the maintenance and plucking activities in the estate had to be done. The learned counsel also pointed out that if ultimately it is found that the property does not vest with the State, the losers will be the petitioners and no harm will be caused to the respondents by allowing the petitioners to carry out the agricultural operations in the property. 8. The learned Government Pleader appearing for the respondents very vehemently opposed the Petition. It is pointed out by him that once a notification issued under S.3(1) of the Act, the vesting is automatic and thereafter, the petitioners can have no manner of right over the property. They may approach the Tribunal and get an order in their favour. In such a case, the property will be WPC 3912/10 8 returned to them. As per the notification issued, 44.0702 hectares of land comprised in Survey Nos.9241/1, 924/2, 924/5-4 and 924/5 stood vested with the Government as contemplated under S.3 of the Act. It is claimed that the vesting takes effect with effect from 02.06.2000 and any assignment thereafter, is not binding on the State. According to the learned Government Pleader, the petitioners have no manner of right over the suit property and it is a portion of reserve forests. Pointing out that the petitioners are not entitled to any reliefs, he prayed for dismissal of this Petition. 9. Before going into the rival contentions, the relevant provisions of the Act may be looked at. The two relevant provisions as far as this case is concerned, are Sections 3 and 4, which read as follows : “S3. Ecologically fragile lands to vest in Government: (1) notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any court or tribunal or in any custom, contract or other documents, with effect from the date of commencement of this Act, the ownership and possession of all ecologically WPC 3912/10 9 fragile lands held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date. (2) The lands vested in the Government under sub- section (1) shall be notified in the Gazette and the owner shall be informed in writing by the custodian and the notification shall be placed before the Advisory Committee constituted under S.15 for perusal. S.4. Power to declare ecologically fragile land - (1) The Government shall have power to declare by notification in the Gazette any land to be ecologically fragile and on the recommendation of the Advisory Committee appointed for the purpose under Section 15 of this Act. (2) No declaration under sub-section (1) shall be made without giving the owner a notice of thirty days for being heard. (3) No person shall change the legal or physical status or ownership of the land proposed to be declared as an ecologically fragile land after the notice issued under sub- section (2). (4) With effect from the date of declaration of any land as ecologically fragile land under sub-section (1), the ownership and possession of the land or any other form or right over it, shall subject to the provisions of this Act, stand transferred to and vested in the Government, free from all encumbrance and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date.” WPC 3912/10 10 10. There is considerable difference between the two provisions. As per S.3(1), the Government are empowered to notify any land which is ecologically fragile land which is held by a person shall stand transferred and vested with the State. The sub-section also provides that once the notification is issued, the owner shall be informed about the vesting. S.4 on the other hand, contemplates issuance of a notice to the owner and he is entitled to be heard. However, once it is informed to the owner, thereafter, he shall not change the character or nature of the property, nor shall he transfer the same. However, a reading of the provision shows that when a notification is issued under S.4, the State is bound to pay compensation to the owner. It will not be out of place here, to refer to the definition of 'ecologically fragile lands and forest' under the Act. “(b) ecologically fragile lands means - (i) any forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest or a vested WPC 3912/10 11 forest or any other forest land owned by the Government and pre-dominantly supporting natural vegetation ; and (ii) any land declared to be an ecologically fragile land by the Government by notification in the Gazette under Section 4. © Forest means any land principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognised and declared as reserved forest, protected forest or otherwise, but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of residential buildings and surroundings essential for the convenient use of such buildings.” 11. Going through the definition of ecologically fragile lands, it must relate to a forest or any portion thereof or encircled by a reserved forest or a vested forest or any other forest. Going by the definition of forest, it can be seen that the properties covered with cultivation of crops of long duration such as tea, coffee, rubber, pepper etc. are exempted from the definition of forest. Therefore, if as a WPC 3912/10 12 matter of fact, the property which was held by the petitioners is covered with tea and oil palm plantation, then it falls outside the scope of definition of Forest under the Act. One cannot omit to note that the Taluk Land Board had exempted the area, it being a plantation. So also, the Forest Tribunal in an application filed by the predecessor- in-interest of the petitioners has found that the property is a tea plantation and it does not vest in the Government. Therefore, there is prima facie evidence to show that the property was a tea plantation. Once it is shown that it is a tea plantation, unless shown otherwise, it continues to be treated as a tea plantation. True, subsequent changes can occur. 12. The contention of the learned Government Pleader for the respondent State is that once the notification is made under S.3(1), the only right available to the petitioners is to move the Tribunal as per S.10 of the Act. It was submitted that it is not for this Court to sit in appeal over the notification and to examine whether the WPC 3912/10 13 notification is proper or not. It was also contended that this Court need not determine the nature of the land in respect of which the notification has been issued. In other words, the contention appears to be that this Court has no jurisdiction or right to deal with any matters arising under the Act. 13. One can only say that it is too tall a claim made by the State. When it is seen that injustice is done, the Court will certainly interfere. In the case on hand, the available materials clearly show that the property was being consistently cultivated with tea and oil palm . At any rate, two Authorities have found it to be so. Unless it is shown that the nature of the property has changed, there was no justification for issuing such a notification. The claim of the respondent State cannot be easily accepted. Whatever that be, the petitioners submitted that their only prayer is that they may be permitted to carry out the agricultural operations so as to maintain the estate. Their apprehension is that if ultimately it is found that the area is WPC 3912/10 14 not liable to be vested in the State, they will be the losers. It is pointed out that the State has nothing to lose and only the petitioners will be the ultimate sufferers. 14. There seems to be considerable force in the above apprehension voiced by the petitioners. Even assuming the property is vested with the State, it is certain that they will not be much concerned about the maintenance of the estate. If ultimately it is found that the property is a tea estate and is not liable to be vested with the State, the same will have to be returned to the petitioners. In such circumstances, the petitioners feel that they need to take steps to maintain the estate, which is only justifiable. They have undertaken that they will conduct such agricultural activities as are essential for the maintenance of the estate and they will do any operations in the area under the supervision of the DFO or such other Officers deputed by him only. When this suggestion was made by the petitioners, the learned Government Pleader pointed out that under the guise of doing agricultural WPC 3912/10 15 operations, the petitioners will cut and remove the available trees standing in the property and therefore, their request should not be allowed. 15. One fails to understand the contention of the State. The petitioners have undertaken that they will do only the agricultural operations for the purpose of maintaining the estate and they will not cut and remove any trees standing in the property. They also expressed their willingness to do all the operations in the presence of the DFO or any person deputed by him. Under such circumstances, the apprehension expressed by the learned Government Pleader is baseless. 16. In the result, this Writ Petition is allowed. The impugned order is set aside. The petitioners shall be allowed to carry out the maintenance and agricultural operations in the area involved in this proceedings purely for the purpose of maintaining the tea and oil palm estate and they shall not cut and remove any trees from the property. They shall do the required operations only in the WPC 3912/10 16 presence of the DFO or any other Officer authorised by him. If the petitioners violate any of the conditions of this Judgment, the DFO will certainly be entitled to prevent them from further entering the tea plantation. P.BHAVADASAN, JUDGE sta WPC 3912/10 17