Kerala High Court
State Of Kerala vs M/S. Nelliyampathy Plantations Ltd
Author: Manjula Chellur
Bench: Manjula Chellur, V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
THURSDAY, THE 15TH DAY OF MARCH 2012/25TH PHALGUNA 1933
WA.No. 378 of 2011 ( )
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AGAINST THE JUDGMENT DATED 16/12/2009 IN O.P. NO. 31671/2001 AND
ORDER DATED 19/07/2010 IN RP.633/2010.
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APPELLANTS/RESPONDENTS IN WPC/REVIEW PETITIONER IN RP:
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1. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY
TO GOVERNMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.
2. THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS,
OFFICE OF THE CHIEF CONSERVATOR OF FORESTS,
THIRUVANANTHAPURAM.
3. CONSERVATOR OF FORESTS &
CUSTODIAN OF VESTED FORESTS,
OLAVAKKODE CIRCLE, PALAKKAD-2.
4. THE DIVISIONAL FOREST OFFICER,
NENMARA, PALAKKAD.
BY SPL. GOVT. PLEADER SMT.GIRIJA GOPAL.
RESPONDENT/PETITIONER IN THE WPC/RESPONDENT IN RP:
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M/S. NELLIYAMPATHY PLANTATIONS LTD.,
REPRESENTED BY MANAGING DIRECTOR,
K.V. PADMANABHAN, MEENAMPARA ESTATE,
P.O. NELLIYAMPATHY, PALAKKAD DISTRICT-678 511.
BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE.
ADV. SRI.S.SUJIN.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION
ON 15-03-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WA.No. 378 of 2011
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE A COPY OF THE ORDER DATED 05/09/1989 IN SLP.
RESPONDENT'S ANNEXURES:-
ANNEXURE R1A COPY OF THE JUDGMENT DATED 19/07/2010 IN
RP. NO.633/2010 IN OP(C)NO.31671/2001 OF THIS
HON'BLE COURT.
//TRUE COPY//
P.A. TO JUDGE
rs.
Manjula Chellur, Ag. C.J. & V. Chitambaresh, J.
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W.A. No. 378 OF 2011
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Dated this the 15th day of March, 2012
JUDGMENT
Manjula Chellur, Ag. C.J.
State of Kerala and others are appellants in the present case. The appeal is filed aggrieved by orders of the learned Single Judge in O.P. No. 31671 of 2001 dated 16.12.2009 and also order dated 19.07.2010 in R.P. No.633 of 2011. The brief facts that led to the filing of the present appeal are as under.
2. Initially O.A. No.42 of 1977 came to be filed by one K.T.Joseph as Managing Director of Nellithanam Rubber Produce Company Limited, Nelliyampathi Building, Arakkalam Post, Calicut. The said application was under Section 8 of Act 26 of 1971 which is known as the Kerala Private Forest Vesting and Assignment Act of 1971 (for short 'Vesting Act'). The claim of the applicant in the said application before the Tribunal was, the disputed land originally belonged to several persons from whom he got conveyance of right, title and interest in the property under different documents with a total measurement of about 818 acres W.A. No. 378 of 2011 -:2:- in Muthalamada Village of Chittoor Taluk. He claimed the entire land being used for growing lime and cardamom and sought restoration of the entire land. Ultimately by a detailed order the Tribunal found the land treated as cultivated area is more or less 200 acres as indicated in Plan B2 produced by the appellant authorities and the same is outside the area treated as vested forest. In other words, no portion of the vested area was found to be cultivated area and on the other hand more or less 200 acres was treated as cultivated but outside the vested forest. As there was no question of restoration of any vested forest area either as a cultivated area or a private forest, the Original Application came to be dismissed on 22.06.1981.
3. Aggrieved by the same two M.F.As came to be filed One by Mr.K.T.Joseph (M.F.A No.357/1981) and another by the State (M.F.A No.223/1981) before this Court. The Division Bench of this Court in detail referred to the material placed on record with reference to the documents produced before the Tribunal and ultimately at paragraph 18 opined that the judgment does not alter the position in relation to the cultivation of land in possession of the appellant as specified in Ext.B2 plan. They W.A. No. 378 of 2011 -:3:- further state it is for the applicant Mr.K.T.Joseph, if he is advised so, to seek demarcation and survey of such extent of vested forest in the light of Section 6 of Act 26 of 1971. At paragraph 19, they further made it clear that the effect of the order of the Tribunal was apparently to grant exclusion or exemption in respect of 200 acres in excess of the cultivated area which was already excluded from vesting. It was also observed that the order of the Tribunal in so far as it excludes 200 acres in excess of the cultivated area which was already excluded, seems to be unsustainable and the order of the Tribunal that 200 acres of land is not a private forest was set aside and MFA No.357/81 was dismissed. Subsequently, O.A. No.42/77 was also held as dismissed and MFA No.223/1982 filed by the Government was allowed.
4. Again R.P. No.288/2000 came to be filed on the ground that there was error apparent on the face of the record and the matter came up for consideration in R.P. Nos.282 of 2000 and 288 of 2000 in CMP No.3457 of 2000 and CMP No.3536 of 2000 respectively by order dated 01.07.2003. Their Lordships after referring to the factual situation and the error ultimately W.A. No. 378 of 2011 -:4:- held that there was no need to ponder over the delay applications and review petitions in the facts and circumstances of the case and opined that the applicant was entitled to more or less 200 acres as referred to in paragraph 10 of the order of the Forest Tribunal which reads as under :
"3. We are of the view that the delay petitions and the review petition are unnecessary in the fact and circumstances of this case. We find from the judgment as well as the order of the Forest Tribunal that the applicant-respondent herein is entitled only to more or less 200 acres. In paragraph 10 of the order of the Forest Tribunal it is states as follows:
"Ext.B2 is a plan produced on the respondents side showing the vested areas and the non-vested area. Therein also the extent of the area is not shown bu it is seen from the plan that more or less 200 acres has been treated as cultivated area and no portion of the cultivated area is treated as vested forest."
The above finding has been confirmed by this court and the respondent is entitled to more or less 200 acres, which is evidently not 295 acres. We are of the view, judgment of this Court as well as the order of the Tribunal were rendered in the light of Ext.B2 plan. We make it clear that the respondent was entitled to more or less 200 aces only. In the above mentioned reasoning, we find no reason to entertain the delay petitions as well as the review petitions. They are accordingly disposed of."
5. Having regard to the confirmation of the said finding of the Tribunal by this Court in the appeals that the W.A. No. 378 of 2011 -:5:- applicant was entitled for more or less 200 acres which was evidently not 295 acres and proceeded to hold that the respondent applicant was entitled to more or less 200 acres only, in the light of order of the Tribunal and the judgment of the High Court in MFAs in the light of Ext.B2 plan. Subsequent to disposal of Review Petitions on 01.07.2003, according to the petitioner there was no further action on the part of the respondent authorities, therefore he approached the learned Single Judge in O.P. No.31671 of 2001 seeking the following prayers:
"i. to issue a writ of mandamus or other appropriate writ, order or direction directing respondents to demarcate 295.85 acres of cultivated and ancillary area in accordance with Ext.B2 plan as directed by this Honourable Court in judgment in MFA Nos.357 of 1981 and 223 of 1982 dated 25th June, 1997 and restore possession of the land to the petitioner forthwith.
ii. to issue such other writ, order or direction as this honourable court may deem just and proper in the circumstances of the case for redressal of the petitioner's grievance and to award to the petitioner the cost of this original petition."
6. The learned Single Judge, after referring to the orders of the Tribunal in O.A. No.42/77 and judgment of this Court in MFA No.357 of 1981 and 223 of 1982 and so also the review petitions pertaining to the two MFAs proceeded to hold that the writ petitioner cannot take a stand that he is still entitled W.A. No. 378 of 2011 -:6:- for 295 acres in so far as it has been specifically held in Ext.P2 (Ext.B2 before the Tribunal) that the petitioner was entitled only more or less 200 acres. At paragraph 5, the learned Single Judge opined as under:
"5. In view of the order of the Division Bench in Ext.P2, the petitioner cannot now take a stand that he is entitled to 295 acres insofar as it has been specifically held in Ext.P2 that the petitioner is entitled to only more or less 200 acres. naturally, if any part of that land has been notified under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act, such exclusion has to be agitated by the petitioner under the Act. I am not expressing any opinion on the same.
However, the area to which the petitioner is entitled to be in possession of, according to the respondents as per law, has t be demarcated and shown to the petitioner within definite time. The respondents shall do the same within a period of two months from today."
7. Aggrieved by the same, the appeal is filed by the State contending that the judgment of the learned Single Judge in O.P. No.31671 of 2001 is in correct and the entire land comprised within the boundaries to come more than 3000 acres and hence disputed property could not be identified. According to them, the land in Ext.B2 plan in Survey No.494 is in the erstwhile Parassala Village whereas the property described in the O.A. W.A. No. 378 of 2011 -:7:- Schedule and list schedule was unsurveyed land in Muthalamada Village. According to them, the admission made by them earlier before the Tribunal was a mistake, i.e., Ext.B2 plan, therefore the judgment rendered on the basis of the admission is vitiated by mistake of facts, hence they sought for in the interest of pubic the review of the judgment in O.P. No.31671 of 2001. But, however, the same came to be dismissed on 01.07.2003 hence the present appeal is filed.
8. According to them, even the 200 acres referred to in the order of the Tribunal later on in the judgment of MFAs by this Court was entirely on a wrong submission or admission made on the part of the State and therefore this Court has to once again look into the entire matter and it cannot refer to earlier decisions and opine that respondent/writ petitioner was entitled for more or less 200 acres outside the vested forest area.
9. As against this, the learned counsel for the respondent/writ petitioner contends that having kept quite subsequent to the disposal of MFAs and RPs arising out MFAs, now in the appeal, after suffering a judgment the appellant State, they are not entitled to turn back and say even W.A. No. 378 of 2011 -:8:- vesting notification which came into existence in 1977 was wrong. According to the learned Senior counsel Mr.Sugunapalan, based on the plan and submissions made by the State, the Tribunal concluded after referring to the entire material produced before the Tribunal including Ext.B2 plan which indicates, both vested area and non-vested area about 200 acres claimed as notified area by the writ petitioner party falls outside the vested area, therefore, question of restoration of land under Section 8 of the Vesting Act did not arise hence O.A. came to be dismissed. But, according to the learned Senior Counsel, the opinion of the Tribunal that writ petitioner was in possession of more or less 200 acres of land outside the vested area cannot be taken as mere passing remiss as in MFAs and later RPs the same came to be conferred by this Court which was not challenged by the State, therefore, it is not open to them to contest and challenge that finding of the Tribunal that more or less 200 acres of the writ petitioner is cultivable land outside the vested area.
10. According to the learned Senior Counsel, they are not asking anything more than 200 acres which was referred to in the judgment of Tribunal confirmed by the High Court in MFAs W.A. No. 378 of 2011 -:9:- and they are asking only demarcation of 200 acres by fixing the boundaries as contemplated under Section 6 of the Vesting Act. According to the learned Government Pleader majority portion of this so called 200 acres is declared as ecologically fragile land as per the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003.
11. As a matter of fact, the learned Single Judge in the Original Petition did refer to this enactment at Paragraph 5 and even proceeds to say that if any part of that 200 acres of land has been notified under the Ecologically Fragile Lands Act such exclusion has to be agitated by the respondent/writ petitioner under the Act. Without expressing any opinion on the same he directed the respondent appellate authorities to demarcate and show to the petitioner within a definite time where exactly this more or less 200 acres comes. Therefore, the argument of the learned Government Pleader for the State is that once again the entire exercise has to be done to identify the exact measurement of the land which could be called as cultivable land held by the respondent/writ petitioner cannot be accepted as that question was already decided based on the W.A. No. 378 of 2011 -:10:- admission of the authorities concerned which includes a plan referred to as Exhibit.B2 plan before the Tribunal. Over and above this during the hearing of the Original Petition in question, as referred to at paragraph 3 the submission before the learned Single Judge was as under:
"3. Today, the learned Government Pleader submits that survey has been completed and a survey sketch has been prepared demarcating the property to be handed over to the petitioner. The learned Government Pleader submits that the survey itself has been after notice to the petitioner and a survey sketch has been furnished to the petitioner. It is submitted that the area so demarcated can be pointed out to the petitioner so that he can retain the same."
12. A reading of this paragraph 3 indicates that the appellant authorities already prepared a survey sketch and have demarcated the property to be handed over to the writ petitioner and the submission was that a notice was also issued to the writ petitioner before the preparation of the survey sketch. When this was the submission before the learned Single Judge it is not open to the appellant authorities now to turn around and deny everything they admitted right from 1977 till 16th December, 2009, the date on which the judgment of the learned Single W.A. No. 378 of 2011 -:11:- Judge was pronounced.
In view of the above observations and reasoning, we dispose of the Writ Appeal directing the appellant authorities to consider the application filed by the writ petitioner/respondent herein under Section 6 of the Act if any, if it is not available in the office, the respondent/writ petitioner is directed to file fresh application under Section 6 of the Vesting Act and the same shall be considered and disposed of within two months from the date of receipt of a copy of this judgment. We make it clear that none of the observations made in this judgment would come in the way of issuance of any proceedings or notification by the State under the Ecologically Fragile Land Act.
Manjula Chellur, Ag. Chief Justice.
V. Chitambaresh, Judge.
ttb/17/03