IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 OP.No. 22105 of 1999(F) ----------------------- PETITIONER: ------------ M/S. RAM BAHADUR THAKUR LTD., KOLIEKANAM STATE, ELAPPARA, REP. BY ITS GROUP MANAGER, D. DOGRA BY ADV. SRI.JOSEPH KODIANTHARA SRI.THOMAS VELLAPPALLY RESPONDENTS: ------------- 1. THE DIVISIONAL FOREST OFFICER, KOTTAYAM. 2. THE CUSTODIAN OF VESTED FOREST, OFFICE OF THE CONSERVATOR OF FOREST & CUSTODIAN OF VESTED FOREST, OLAVAKOD CIRCLE, KOZHIKODE -28. 3. DISTRICT COLLECTOR, IDUKKI. 4. STATE OF KERALA REP. BY THE EX-OFFICIO SPECIAL SECRETARY TO GOVERNMENT, (FOREST SPECIAL), AGRICULTURAL DEPARTMENT, SECRETARIAT, TRIVANDRUM. BY SPL. GOVERNMENT PLEADER SRI. RENJITH THAMPAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.36405 OF 1999 IN OP.NO.22105 OF 1999-F DISMISSED 20.2.2008. SD/= P.N. RAVINDRAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF JUDGMENT DTD 17.1.80 IN MFA NO.424/79 OF THE HIGH COURT OF KERALA. EXT.P2 COPY OF LETTER DTD 15.3.93 BY THE PETITIONER TO R2. EXT.P3 COPY OF LEGAL NOTICE DTD 10.12.93 FROM THE PETITIONER'S ADVOCATE TO THE R2. EXT.P4 COPY OF LETTER DTD 26.11.97 BY THE PETITIONER'S ADVOCATE TO R2. EXT.P5 COPY OF LETTER DTD 6.10.98 FROM R1 TO THE PETITIONER. EXT.P6 COPY OF LETTER DTD 30.10.98 BY THE PETITIONER TO R1. /TRUE COPY/ cl P.N. RAVINDRAN, J. --------------------------------------------------------------- O.P.NO.22105 OF 1999-F -------------------------------------------------------------- Dated this the 20th day of February, 2008. JUDGMENT The petitioner, a company incorporated under the Companies Act, 1956 is the owner of a tea estate known as the “Koliekanam Estate” in Elappara village. 2. After the Kerala Private Forests (Vesting and Assignment) Act 1971, (herein after referred to as the “Act” for short) came into force, the custodian of vested forests notified 9.70 hectors of land situated in Survey No.106 of Elappara village forming part of the “Koliekanam Estate” as a private forest vested in the State Government under Section 3 of the Act. The petitioner thereupon filed O.A.No.276/75 in the Forest Tribunal, Palakkad. The State contested the said application. By order passed on 31.5.1978 the Forest Tribunal, Palakkad allowed O.A.No.276/75 and declared that the disputed land is not a private forest vested in the State Government. The Tribunal also directed the State and its officials to restore possession of the land to the petitioner. The State and its officials challenged the order passed by the Forest Tribunal in O.P.NO.22105/1999 . 2 MFA.No.424/79 on the file of this Court. By Ext.P1 judgment delivered on 17.1.1980 a Division Bench of this Court dismissed the said appeal affirming the decision of the Forest Tribunal that the lands described in O.A.No.276/75 have not vested in the State Government. The principal question that arose for adjudication in MFA.No.424/79 was whether the lands in dispute are lands ancillary for the cultivation of tea in the petitioner's estate. The State had no case before this Court or before the Forest Tribunal that the petitioner was not in possession of the disputed land or that the disputed land was in the possession of strangers. 2. The petitioner had in Ext.P2 letter dated 15.3.1993 addressed to the Custodian of Vested Forests pointed out that after the land was notified as a vested forest, certain persons have trespassed upon the land. In that letter, the petitioner called upon the Custodian of Vested Forests to restore possession of the land to the petitioner by evicting the encroachers. The petitioner had in Ext.P2 given the list of persons, who are in illegal occupation of the land. The Custodian of Vested Forests did not respond to the request in Ext.P2. The petitioner thereupon caused Exts.P3 and P4 notices to be issued calling upon the Custodian of Vested Forests to O.P.NO.22105/1999 . 3 restore possession of the land involved in OA.No.276/75 on the file of the Forest Tribunal, Palakkad to the petitioner. The State had in the meanwhile filed R.P.No.134/84 seeking a review of Ext.P1 judgment under Section 8B of the Act. The said review petition was dismissed by this Court by judgment delivered on 23.7. 1998. After the said review petition was dismissed, the Divisional Forest Officer, Kottayam sent Ext.P5 letter dated 6.10.98 to the petitioner pointing out that though as per the order passed in the review petition the land in Survey No.106 of Elappara village has to be restored to the possession of the petitioner, there are a few encroachments in the said land. The petitioner was also invited to attend a discussion on the question whether the company is willing to accept the balance area on its present status. A discussion was held on 27.10.1998 and thereafter, the petitioner sent Ext.P6 letter dated 30.10.98 to the Divisional Forest Officer, Kottayam requesting him to take immediate action to restore possession of the land . This original petition was thereafter filed on 30.8.1999 seeking the following reliefs: i. direct the respondents by issue of a writ of mandamus or such other appropriate writ, direction or order to restore the 9.70 hectares of land comprised in the petitioner's Koliekanam Estate at Elappara covered by OA.No.276/75 and MFA.No.424 of 1979 to the petitioner forthwith O.P.NO.22105/1999 . 4 free of any encumbrance and after evicting all the encroachers; ii. pending final disposal of the original petition to issue a time bound direction to the respondents to take steps for restoration of the 9.70 hectares of land comprised in the petitioner's Koliekanam Estate at Elappara covered by OANo.276/75 and MFA.No.424/79 to the petitioner free of any encumbrance and for evicting all the encroachers.” 3. The Divisional Forest Officer, Kottayam has filed a statement dated 24.8.2005 stating that the issue was taken up with the District Collector, Idukki and the Superintendent of Police with a view to enable the Forest Officials to restore possession of the land to the petitioner. It is also sated in the said statement that the Chief Conservator of Forests had also sent a proposal to the District Collector, Idukki, to acquire the lands involved in OA.No.276/75 and as also in the other applications which were disposed of by Ext.P1 judgment by paying the land value as compensation to the land owners. It is also stated that the land in question is an ecologically fragile land under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. However, during the course of the hearing, Sri. Renjith Thampan, the leaned Special Government Pleader appearing for the respondents submitted, with reference to O.P.NO.22105/1999 . 5 the instructions contained in letter No. A2-4378/75 dated 14.2.2008 sent by the Divisional Forest Officer, Kottaym to the learned Advocate General that though there was a proposal to notify the lands claimed by the petitioner and others under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, on verification, it was found that the land does not qualify for vesting under the said Act. 4. I heard Sri.Joseph Kodianthara, the learned counsel appearing for the petitioner and Sri. Renjith Thampan, the learned Special Government Pleader appearing for the respondents. The learned counsel appearing for the petitioner contended relying on subsection (3) of Section 8 of the Act that it was the duty of the Custodian of Vested Forests after the date of Ext.P1 order, to restore possession of the land involved in OA.No.276/75 to the petitioner, the person in possession of the land immediately before 10.5.1971. The learned counsel for the petitioner submitted that immediately before the appointed day, namely 10.5.1971, the petitioner was in possession of the lands involved in OA.No.276/75. The learned counsel submitted that by virtue of Section 3 of the Act, possession and ownership of lands involved in OA.No.276/75 stood O.P.NO.22105/1999 . 6 transferred to and vested in the State Government free from all encumbrances and it was only after the Forest Tribunal and thereafter this Court disposed of OA.No.276/75 and MFA.No.424/79 respectively that the petitioner became entitled to restoration of possession. The learned counsel further contended that State had not disputed the positive averment made by the petitioner in the original petition and also in Ext.P2 letter that strangers had encroached upon the lands involved in OA.No.276/75, after it was notified as a vested forest and that there was no encroachment prior to 10.5.1971. Per contra, the leaned Special Government Pleader appearing for the respondents contended that in view of the encroachments, it is not now possible to restore possession of the lands to the petitioner and that notwithstanding earnest efforts in that regard, the respondents have not been able to survey or demarcate the lands or to restore possession of the lands to the petitioner. 5. I have considered the rival contentions. In my opinion, in the absence of a plea on the part of the State Government either in OA No.276/1975 or in MFA.No.424/1975 or in this original petition to the effect that the encroachments had been made before 10.5.1971, O.P.NO.22105/1999 . 7 the petitioner is entitled to get back possession of the lands involved in OA.No.276/75. Subsection (3) of Section 8 of the Act states that the Custodian shall after the date of the order of the High Court dismissing the appeal, restore possession of the lands to the person in possession immediately before the appointed day. The appointed day as per the Act is 10.5.1971. As noticed above, the State does not have a case that the petitioner was not in possession of the land involved in O.A.No.276/75 immediately before the appointed day. The State has a duty under the Act to restore possession of the land to the person in possession immediately prior to the appointed day. In my view, immediately after the dismissal of RP.No.134/84 the State was bound to restore possession of the land involved in OA.No.276/75 to the petitioner. It was for the respondents to take such steps as were necessary to evict the encroachers. The respondents cannot be heard to say that in view of the encroachments made by strangers, while the dispute was pending adjudication, they are not in a position to restore possession of the lands to the petitioner. The encroachers, who had taken advantage of the dispute between the petitioner and the respondents consequent on the enactment of the Kerala Private O.P.NO.22105/1999 . 8 Forests (Vesting and Assignment) Act 1971 have no right to remain in possession and are liable to be evicted. In that view of the matter I hold that the State and its officials had a statutory duty to restore possession of the land involved in OA.No.276/75 to the petitioner. Steps in that regard shall be taken forthwith and completed within a period of four months from today. If encroachers have to be evicted, the State shall take necessary steps in that regard. However, if the State chooses to acquire the lands by paying land value to the petitioner in lieu of restoration of possession of the lands, a decision in that regard shall also be taken within the aforesaid period of four months. If the State decides to acquire the lands, the land acquisition proceedings shall be completed within one year from today. If the State decides that it is not feasible to acquire the lands in question, steps shall be taken to restore possession of the land within the time limit specified above. It will be open to the Custodian of Vested Forests to seek the assistance of the police and the revenue officials to survey and demarcate the lands involved in OA.No.276/75 and to restore actual physical possession of the land to the petitioner. The original petition is disposed of as above. No costs. P.N. RAVINDRAN, JUDGE. O.P.NO.22105/1999 . 9 P.N. RAVINDRAN, J. O.P.NO.22105 OF 1999-F JUDGMENT 20th February, 2008. O.P.NO.22105/1999 . 10