IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 OP.No. 12034 of 2002(G) ---------------------------------- PETITIONER: ------------------- RAM BAHADUR THAKUR LTD.,THENGAKAL ESTATE P.B.NO.16,VANDIPERIYAR,REPRESENTED BY ITS MANAGER SRI.T.CHANDRAMOHANAN. BY ADV. SRI.JOSEPH MARKOSE. RESPONDENTS: ------------------------ 1. STATE OF KERALA,REPRESENTED BY THE CHIEF SECRETARY,GOVERNMENT OF KERALA,TRIVANDRUM. 2. THE TAHSILDAR,TALUK OFFICE,PEERMADE. 3. THE DISTRICT COLLECTOR, IDUKKI. BY GOVERNMENT PLEADER SRI. K. SANDESH RAJA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 20704/2002 IN O.P. NO. 12034/2002-G DISMISSED 29/02/2008. SD/- P.N.RAVINDRAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE FORM NO. 11 ALONGWITH PLAN ISSUED BY THE PETITIONER TO THE RESPONDENTS. EXT.P.2: COPY OF THE NOTICE DTD. 09/01/2002 FROM THE R2. TO THE PETITIONER. EXT.P.3: COPY OF THE JUDGEMENT DTD. 16/11/2001 OF THE HONOURABLE HIGH COUT OF KERALA IN O.P. NO. 34750/2001. EXT.P.4: COPY OF THE LETTER DTD. 23/03/2002 FROM THE PETITIONER TO THE R.2. EXT.P.5: COPY OF THE LETTER DTD. 28/03/2002 FROM THE PETITIONER TO THE R.3. EXT.P.6: COPY OF THE LETTER DTD. 10/04/2002 FROM THE R.2. TO THE PETITIONER. EXT.P.7: COPY OF THE LETTER DTD. 15/04/2002 FROM THE PETITIONER TO THE R.2. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. P.N.Ravindran, J. ================ O.P.No.12034 of 2002 ================ Dated this the 29th day of February, 2008. JUDGMENT The petitioner is a Company incorporated under the Companies Act. In proceedings initiated against the petitioner Company under the provisions of the Kerala Land Reforms Act,1963, hereinafter referred to as the "Act" for short, the Taluk Land Board, Peerumedu by order passed on 13.11.1976 directed the petitioner Company to surrender an extent of 360.46 acres of land as the land held by it in excess of the ceiling area. According to the petitioner Company, it had surrendered the entire extent of 360.46 acres of land out of which an extent of 82.24 acres of land was surrendered from its Thengakal Estate. 2. By Ext.P2 notice dated 9.1.2002 the second respondent informed the Manager of the petitioner Company that the survey and demarcation work of the surplus land taken from it will commence from 15.1.2002. The petitioner Company thereupon OP 12034/02 -: 2 :- sent Ext.P4 letter dated 23.3.2002 pointing out that the survey was being carried out in the planted areas and not in the land already surrendered. By Ext.P4, the Manager of the petitioner Company called upon the second respondent to carry out the survey in the lands surrendered by the petitioner. The petitioner thereafter addressed Ext.P5 letter dated 28.3.2002 to the District Collector, Idukki requesting him to direct the survey authorities not to survey the planted areas but to take surplus land from the non planted areas. In Ext.P5, the petitioner took up the contention that the planted areas are outside the purview of the Act. The second respondent Tahsildar thereafter sent Ext.P6 letter dated 10.4.2002 to the Manager of the petitioner Company informing him that the survey in respect of the surplus land taken from the petitioner will be held on 18.4.2002 and 19.4.2002 for taking the balance 25 acres. The petitioner thereafter sent Ext.P7 letter dated 15.4.2002 reiterating the stand in Ext.P5 and requested the second respondent to carry out the survey work only in the surplus land (non planted areas). Thereafter, this original petition was filed seeking the following reliefs: "i) issue a writ of mandamus directing the OP 12034/02 -: 3 :- respondents to demarcate and take over only the uncultivated land of the petitioner as excess land. ii) declare that the respondents have no right or authority to demarcate and take over the cardamom and coffee plantations of the petitioner as excess land when there is enough uncultivated land belonging to the petitioner. iii) stay allotment of any land belonging to the petitioner to any third persons pending disposal of the above Original Petition." 3. A counter affidavit has been filed on behalf of the first respondent pointing out that though the the petitioner Company was directed to surrender an extent of 1444.36 acres of land pursuant to the orders dated 13.11.1976 and 15.12.1976 issued by the Taluk Land Board, Peerumede, the petitioner had surrendered an extent of 82.24 acres of land in Thengakal estate on 30.10.1984, that the petitioner had thereafter clandestinely encroached upon a portion of the said surrendered land and started cultivation, that some portions of the surrendered area were allotted to the landless persons, who had filed O.P.No.34750 of 2001 in this Court, that this Court had by Ext.P3 judgment delivered on 16.11.2001 directed the District Collector OP 12034/02 -: 4 :- to take steps in the matter, that the Taluk Surveyor could identify only 57.24 acres of lands and that for identifying the remaining 25 acres, notice was issued to the petitioner Company. It is further stated in the counter affidavit that as a result of the survey, an extent of 14.50 acres of land was taken possession of by the State Government after evicting the encroachers and that the balance extent of 10.50 acres is still in the possession of the petitioner Company, which had encroached upon the lands after it was surrendered to the State Government. It is evident from a reading of the counter affidavit filed on behalf of the first respondent that out of 82.24 acres of lands surrendered by the petitioner, the State could take possession of only an extent of 71.74 acres and that the petitioner had encroached upon 10.50 acres after it was surrendered to the State Government. The petitioner has not chosen to file a reply affidavit controverting the averments in the counter affidavit filed on behalf of the first respondent. 4. I heard Sri.Joseph Kodianthara, the learned counsel appearing for the petitioner and Sri.K.Sandesh Raja, the learned Government Pleader appearing for the respondents. The learned OP 12034/02 -: 5 :- counsel for the petitioner submitted that as plantations are outside the purview of the Act, the respondents are not justified in taking possession of the planted areas. The learned counsel for the petitioner submitted that the respondents are entitled to take possession of only the uncultivated areas and that if possession of the planted areas is taken, the petitioner will suffer irreparable injury and loss. 5. Per contra, Sri.K.Sandesh Raja, the learned counsel appearing for the respondents contended relying on Section 86 of the Act that the ownership or possession of the surrendered lands vest in the Government from free all encumbrances. The learned Government Pleader further submitted that the petitioner had opted to surrender excess land in terms of Section 85(6) of the Act. The learned Government Pleader contended that the petitioner which had encroached upon the land already surrendered by it cannot resist the attempt made by the State Government to survey and demarcate the land thus encroached upon and to resume possession of the same. 6. I have considered the rival contentions. It is evident from the scheme of the Act, especially Section 85(6) thereof and OP 12034/02 -: 6 :- the provisions of Section 86 of the Act that the petitioner cannot claim any right, title or interest in any portion of the lands surrendered by it from Thengakal estate. It is evident from the letters sent by the petitioner to the respondents and also the fact that the petitioner has not chosen to file a reply affidavit controverting the allegations made in the counter affidavit that it has encroached upon a portion of the land already surrendered by it. The petitioner had opted to surrender 82.24 acres from Thengakal Estate and the said option was accepted by the State Government. On such surrender, the land stood vested in the State in terms of Section 86 of the Act. A reading of the letters marked as Exts.P4, P5 and P7 and the averments in the original petition indicate that the petitioner has in fact encroached upon the lands already surrendered by it pursuant to the order passed by the Taluk Land Board. The petitioner cannot, after having encroached upon the land surrendered by it, prevent the State Government from resuming possession of the land encroached upon by it contending that it has made improvements on the land thus encroached upon by it and the State Government should be satisfied by taking possession of the uncultivated lands. If the OP 12034/02 -: 7 :- petitioner's contention is accepted, it would militate against the scheme of the Act and would confer unmerited advantage on the petitioner. It would also not be in public interest to permit such conduct. 7. In my opinion, the petitioner cannot claim any right over the land thus surrendered by it. The petitioner also cannot challenge the action taken by the respondents to identify and demarcate the lands encroached upon by it after the lands were surrendered to the State Government and seek a declaration that the State should take possession of only uncultivated lands. In my opinion, the claim of the petitioner is plainly untenable. In the result, the original petition fails and it is dismissed. No costs. P.N.Ravindran, Judge. ess 1/3