IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 FAO.No. 149 of 2009() --------------------- AGAINST THE ORDER IN IA. 1126 /2009 IN OS.141/2009 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANTS/DEFENDANTS ----------------------------------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. PRINCIPAL SECRETARY TO GOVERNMENT, FOREST AND WILDLIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. CONSERVATOR OF FORESTS, CENTRAL CIRCLE, VANAPRIYA FOREST COMPLEX, PARAVATTANI, THRISSUR. BY ADDL. A.G. SRI. RENJITH THAMPAN RESPONDENT(S): PLAINTIFF: ---------------------------------------- M/S.HARRISONS MALAYALAM LTD., BRISTOW ROAD, WILLINGTON ISLAND, COCHIN-682 003, REP. BY ITS MANAGER-LEGAL, M.V.H.MENON. ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 149 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of July, 2009. JUDGMENT Bhavadasan, J, Aggrieved by the order dated 24.3.2009 in I.A. 1126 of 2009 in O.S. 141 of 2009, petitioner before the court below has come up in appeal. The parties and facts are hereinafter referred to as they were available before the court below. 2. The defendants in O.S. 141 of 2009 have instituted an interlocutory application for appointment of a receiver. According to them, the plaintiff Company has violated the terms of the lease and by order dated 7.2.2009 issued by the State the lease arrangement stands terminated. Therefore the plaintiff Company has no rights over the property. If the Company is allowed to hold on to the property, that will cause considerable prejudice to the State and the plaintiff Company may commit waste in the property. According to the State, the Company has committed gross violation of the terms of the lease and they cannot remain in possession. The definite allegation is that contrary to the terms of FAO.149/2009. 2 the lease, the Company has subleased the properties to various persons, from whom they have collected money. The lease, according to the State, is only for the purpose of cultivation of rubber and the respondent has contravened the terms of the lease. Pointing out that the State is well equipped to maintain the estate, they prayed that a receiver be appointed. 3. The petition was resisted by the plaintiff Company. They pointed out that the allegations are without any basis and they have not violated the terms of the lease. They have cultivated the crops in terms of the lease and the allegations to the contrary are without any basis. The reasons given for termination of the lease is without basis. They pointed out that till the lease is validly terminated, they are entitled to remain in possession of the property and collect profits from there. Company has pointed out that the entire improvements in the property have been made by them and the State cannot simply say that the lease is terminated and that the land will have to be surrendered. At any rate, there are no grounds made out to appoint a receiver. The company keeps accounts of the income and expenditure incurred by it FAO.149/2009. 3 in maintaining the estate and there is no reason as to why a receiver should be appointed. 4. It is seen that there is considerable justification in the stand taken by the plaintiff Company. Even assuming that there is a violation of the terms of the lease and that the State is entitled to resume the land, there is no reason as to why the Company should be dispossessed now. Whether there is violation of the terms of the lease and whether the Company is liable to surrender the property to the State are matters yet to be determined. According to the Company, the entire area is planted with rubber and there is no violation of the terms of the lease. They have also pointed out that the lease is of a permanent nature. It may be true that the terms of the lease prohibit the Company from cultivating any crop other than rubber. It may also be true that the Company has made other cultivations like tapioca, pineapple etc. The lower court has noticed that the Company has remitted fine for the same. There is no dispute regarding the fact that it is the Company which has raised crops in the property and the State had not incurred any expense in that regard. In fact, the court below has considered the FAO.149/2009. 4 matter elaborately while dealing with the application for interim injunction filed by the Company. It is also seen that there is another suit as O.S.45 of 2009 with regard to the same matter. It is noticed by the lower court that in the said suit security has been furnished to the tune of Rs.96.84 Lakhs. 5. Thus the fact remains that the Company is in possession of the land and there is nothing to show that any waste or wanton acts are being committed by the plaintiff company so as to reduce the value of the land. It could not also be said that there is a scramble for possession. Whether the State is entitled to resume the land is a matter yet to be determined. Several buildings have been built by the Company and considerable improvements have been made by them. The Company has also pointed out that periodical maintenance work will have to be carried out in the estate and re-plantation may also be necessary. If a receiver is appointed, it will only be detrimental to the estate and that serves no purpose. 6. The Company has pointed out that it is willing to submit accounts to the court showing the income and expenditure incurred by FAO.149/2009. 5 them for maintaining the estate. It was also pointed out that it may be very harsh and may cause practical difficulties if the Company is directed to take permission of the court to do routine matters in the estate. Such a direction would cause considerable difficulties in maintaining the estate. 7. It has to be said that there is considerable force in the submission made by the plaintiff Company. Appointment of receiver is not a matter of course. It has been construed as a very harsh remedy in the sense it involves dispossession of a person, who may be in legal possession. Merely because the State Government has issued termination notice, that does not mean that automatically the possession of the Company becomes illegal. Whether termination is proper and whether reasons for termination are legal are matters yet to be determined. Prima facie, there is nothing to show that the Company has violated the terms of the lease or committed any act of waste. State has also no case that the estate is not being properly maintained. May be that the Company derives considerable income from the estate. But to say that their possession is illegal is too premature. It will be FAO.149/2009. 6 sufficient if the Company is called upon to submit periodical accounts for scrutiny by the court below. In the result, this appeal is disposed of directing the plaintiff Company in the suit to submit monthly accounts regarding the income and the expenditure incurred by the Company in maintaining the estate and the court below shall verify the same. P.R. Raman, Judge P. Bhavadasan, Judge sb.