Kerala High Court
The Travancore Rubber & Tea Co Ltd vs The Divisional Forest Officer on 23 May, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 23RD DAY OF MAY 2019 / 2ND JYAISHTA, 1941
WP(C).No. 9973 of 2013
PETITIONER/S:
THE TRAVANCORE RUBBER & TEA CO LTD.,
"PLANTATION HOUSE", PATTOM PALACE P.O.,
THIRUVANANTHAPURAM -695 004,
REPRESENTED BY ITS CHIEF EXECUTIVE
MR.R. SIVARAMAKRISHNA SARMA.
BY ADVS.
SRI.JOSEPH KODIANTHARA (SR.)
SRI.ABRAHAM JOSEPH MARKOS
SRI.BINU MATHEW
SRI.MATHEWS K.UTHUPPACHAN
SRI.TERRY V.JAMES
SRI.TOM THOMAS (KAKKUZHIYIL)
SRI.V.ABRAHAM MARKOS
RESPONDENT/S:
1 THE DIVISIONAL FOREST OFFICER,
DIVISIONAL FOREST OFFICE, CIVIL STATION,
KOTTAYAM-686 002.
2 THE CUSTODIAN OF VESTED FOREST,
OLAVAKODU P.O.,
PALAKKAD DISTRICT-678 001.
3 THE FOREST RANGE OFFICER,
ERUMELI RANGE OFFICE, ERUMELI,
KOTTAYAM-686 509.
4 THE SUB INSPECTOR OF POLICE,
PERUVANTHANAM POLICE STATION,
PERUVANTHANAM -685 532.
5 THECIRCLE INSPECTOR OF POLICE,
PEERMADE- 685 531.
W.P.(C) No.9973 of 2013 2
6 THE CHIEF CONSERVATOR OF FORESTS,
HIGH RANGE CIRCLE, ARANYA BHAVAN COMPLEX,
SH MOUNT P.O., KOTTAYAM-686 006.
7 STATE OF KERALA,
REPRESENTED BY THE COMMISSIONER AND SECRETARY,
FOREST AND WILDLIFE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
8 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY
TO GOVERNMENT OF KERALA,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
BY SRI. K. SANDESH RAJA, SPECIAL GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.9973 of 2013 3
JUDGMENT
This writ petition is filed by the petitioner, a company incorporated under the Companies Act, 1956, seeking the following reliefs:
"(i) Issue a writ of mandamus or such other appropriate writ, direction or order directing the 1st to 3rd Respondents to restore possession after freeing of encroachments in 27.36 hectares of land (67.57 acres) in Survey No.808/1, 808/2, 809, 1037/1 and 1032 of Peruvanthanam Village the whole extent of property in [Plot A]; and
(ii) Issue a writ of mandamus or such other appropriate writ, direction or order directing the 1st to 3rd Respondents to immediately restore possession of land free from encroachments in 27.36 hectares of land (67.57 acres) in Survey No.808/1, 808/2, 809, 1037/1 and 1032 of Peruvanthanam Village the whole extent of property in [Plot A]; and
(iii)Grant such other reliefs as are deemed just and necessary in the facts and circumstances of the case."
2. Material facts for the disposal of the writ petition are as follows:
3. In the year 1975, a part of the land belonging to the company was notified as private forest under the Kerala Private Forests (Vesting and Assignment) Act, 1971 [hereinafter referred to as 'the Act, 1971'], and petitioner objected to the same by letter dated 10.12.1975 to the Custodian of Vested Forests. In the absence of any reply, an application viz., O.A.No.322 of 1976 was filed before the Forest Tribunal, Palakkad W.P.(C) No.9973 of 2013 4 in respect of two plots of land. The first plot consisted of 27.36 hectares of land situated in Survey Nos.808/1, 808/2, 809, 1037/1 and 1032 of Peruvanthanam Village, viz., Plot-A. The second plot, i.e., Plot-B consisted of 60.36 hectares of land situated in Survey Nos.1037/1 and 1036/2 of the same Village.
4. The Forest Tribunal by order dated 23.06.1980 allowed the Application, holding that the plots in question were not private forest liable for vesting. The Government challenged the said order by filing M.F.A No.9/1981 before this Court and this Court by judgment dated 03.07.1986, remanded the matter to the Forest Tribunal for de novo consideration after providing sufficient opportunity to adduce fresh evidence. Aggrieved by the said judgment, petitioner preferred S.L.P No.11727 of 1986 before the apex court, which was dismissed as per the order dated 08.12.1986, observing that the Forest Tribunal, Palakkad will re- consider the matter uninfluenced by any observation that may have been made by the High Court.
5. After the remand, the Forest Tribunal as per order dated 28.10.1988 dismissed O.A.No.322/1976, evident from Ext.P1. Petitioner challenged Ext.P1 before this Court in M.F.A No.176/1989 and this Court W.P.(C) No.9973 of 2013 5 as per Ext.P2 judgment dated 03.09.2002 partly allowed the appeal with respect to Plot-A specified above and dismissed the case with respect to Plot-B. Aggrieved by Ext.P2 judgment, petitioner and the State preferred S.L.P (Civil) Nos.6632/2003 and 6633/2003 respectively. However, the apex court dismissed both the SLPs as per Ext.P3 order dated 10.08.2010. Therefore, it has concluded that Plot-A consisting of 27.36 hectares is not liable to be vested.
6. The case projected by the petitioner in this writ petition is that, during the intervening period, several encroachments took place while Plot-A was in the possession of the State and even though the encroachments were brought to the notice of the Police/Forest authorities as per Ext.P4 letter dated 31.08.1997, no action was initiated. It is also pointed out that, though several other representations were made to the respondents, no action was initiated.
7. While so, petitioner submitted Ext.P5 letter dated 13.01.2011, requesting the 1st respondent, i.e., the Divisional Forest Officer, Kottayam to restore vacant possession of 27.36 hectares of land pursuant to Ext.P2 judgment. Thereafter, on 23.03.2011 another reminder was issued to restore the land to the W.P.(C) No.9973 of 2013 6 petitioner. That apart, it is stated that, petitioner has submitted Ext.P7 before the 2nd respondent, i.e., the Custodian of Vested Forest, Palakkad to restore vacant possession of land, however, no action was initiated in spite of continuation of persistent efforts made by the petitioner, and thus petitioner was constrained to approach this Court by filing this writ petition.
8. A detailed statement is filed for and on behalf of the 1st respondent, wherein, with respect to the orders passed by the Forest Tribunal, this Court as well as the Supreme Court specified above are all admitted. However, it is stated that, the Plot-A in question is surrounded by the property owned by the petitioner company and the said plot was never taken possession by the Forest Department, and it was always with the petitioner company, and therefore, there is no question of restoring the land to the petitioner by respondents 1, 2 and 3, after vacating the encroachments made by some people.
9. That apart, it is pointed out that, the encroachments happened when the property is in physical possession of the petitioner company, and on enquiry, it is understood that the employees of the W.P.(C) No.9973 of 2013 7 company itself have made encroachments in the land. The staff of Murinjapuzha Forest Station recorded statements of two of the settlers viz., one Moideen Kutty and one Sarojini, and they have stated that they were employees of the company and are now living in the company's land. It is also submitted that, the encroachments were made by the employees of the company itself, and therefore, the respondents have no bounden duty to vacate the encroachers from the private land belonging to the petitioner.
10. I have heard Sri. Joseph Kodianthara, learned Senior Counsel for the petitioner, assisted by Advocate Abraham Markos and the learned Special Government Pleader Sri. Sandesh Raja K. appearing for the respondents. Perused the pleadings and the documents on record.
11. The basic contention advanced by learned Senior Counsel for the petitioner is relying upon Sec.3 of Act, 1971, dealing with vesting of private forests in Government, which read thus:
"3. Private forests to vest in Government.--
(1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this W.P.(C) No.9973 of 2013 8 Act, 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 in any private forest shall stand extinguished.
(2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto."
The Explanation thereto stipulates that the "cultivation" includes cultivation of trees or plants of any species.
12. Therefore, the sum and substance of the contention advanced by learned Senior Counsel is that, by virtue of Sec.3, the ownership and possession of the property was vested in the State of Kerala pursuant to the notification issued by the State dated 10.12.1975, and therefore, on order of the restoration of Plot-A, the State Government has the duty to restore the land free of encroachers. So also, my attention is invited to Sec.6(1) of Act, 1971, dealing with demarcation of boundaries, which stipulates that, as soon as may be after the appointed day, the custodian shall cause the boundaries of the private forests vested in the Government under sub-section (1) of Sec.3 to be demarcated.
W.P.(C) No.9973 of 2013 9
13. That apart, learned counsel has invited my attention to Sec.8(2)(b) of Act, 1971, dealing with settlement of disputes, which read thus:
"8. Settlement of disputes.--(1) Where any dispute arises as to whether-
x x x x x x x x x
x x x x x x x x x
(b) such appeal having been preferred has been dismissed by the High Court, the custodian shall, as soon as may be after the expiry of the period referred to in clause (a) or, as the case may be, after the date of the order of the High Court dismissing the appeal, restore possession of such land or private forest or portion, as the case may be, to the person in possession thereof immediately before the appointed day".
As I have pointed out earlier, the predominant contention advanced by learned Senior Counsel is that, on a closer analysis of these provisions, it is clear that a duty is cast upon the authorities under the Act, 1971 to restore physical possession of the property in question to the petitioner, after evicting the encroachers.
14. On the other hand, learned Special Government Pleader submitted that the physical possession of the property was never taken, and the provisions of Act, 1971 consequent to issuance of notification encompasses that on the issuance of notification, the de jure possession of the property in question alone will become vested with the State Government, and this is W.P.(C) No.9973 of 2013 10 more so in this case, due to the fact that the property in question is surrounded by the plantation of the petitioner company. It is also submitted that, the persons who have encroached into the property are the employees of the petitioner company itself and without the knowledge of the petitioner company, nobody can encroach into the property due to the peculiar nature and lie of the property in question, surrounded by the plantations held by the petitioner.
15. I have considered the rival submissions made across the Bar. In my view, it is an admitted fact that several persons have encroached into the property at some point of time. The question is whether the State Government has any primary duty to vacate them from the premises in question. When the possession of property by third persons are admitted by the petitioner itself, the Forest Department or the State Government cannot adjudicate any civil rights of such persons. This court is also not able to consider the said issue, since they are not even made parties in this writ petition. When the possession of third persons are admitted, they are affected persons entitled to be heard before passing any orders in the writ petition filed by the petitioner, and I am unable W.P.(C) No.9973 of 2013 11 also to identify as to whether any civil rights are accrued in their favour due to their continuous possession. Moreover, on a reading of the provisions of Act, 1971 quoted and discussed above, it is clear that, consequent to the notification, dejure possession is with the State Government and the petitioner has no case that the State Government or the Forest Department has taken physical possession of the property from the petitioner at any point of time, and therefore, I find force in the contention advanced by the learned Special Government Pleader that there is no bounden duty on the part of the Forest Department to evict the encroachers.
16. In that view of the matter, petitioner is not entitled to get the reliefs as such sought for in the writ petition to evict the encroachers from the premises in question and hand over possession of the property, and the reliefs are accordingly declined. However, I make it clear, if any formal orders are to be passed by the respondents, restoring the property to the petitioner, it shall be done at the earliest, and at any rate, within two months from the date of receipt of a copy of this judgment.
W.P.(C) No.9973 of 2013 12
The writ petition is disposed of accordingly, making it clear that the issues with respect to possession held by third persons are left open to be adjudicated before a civil court, in accordance with law.
Sd/-
SHAJI P.CHALY JUDGE St/-
24.05.2019 W.P.(C) No.9973 of 2013 13 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REVISED ORDER DATED 28/10/1988 OF THE FOREST TRIBUNAL, PALGHAT IN O.A 322/1976.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN M.F.A 176/1989 DATED 03/09/2002.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 10/08/2010 PASSED BY THE HONOURABLE SUPREME COURT IN CIVIL APPEAL NOS. 6632 AND 6633/2003.
EXHIBIT P4 TRUE COPY OF THE LETTER DATED 31/8/1997 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P4(A) TRUE COPY OF THE LETTER DATED 31/08/1997 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 13/01/2011 ISSUED BY THE PETITIONER TO THE IST RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 23/03/2011 ISSUED BY THE PETITIONER TO THE IST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE LETTER DATED 25/03/2011 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED 30/12/2011 ISSUED BY THE PETITIONER TO THE IST RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE LETTER DATED 30/12/2011 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P.S. TO JUDGE