Haileyburia Tea Estates Limited v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934 OP.No. 9593 of 2003 (P) ----------------------- ## PETITIONER : - ------------------ M/S.HAILEYBURIA TEA ESTATES LIMITED 24/432, MARAR ROAD, WILLINGDON ISLAND, COCHIN – 682 003, REPRESENTED BY ITS MANAGING DIRECTOR, SHRI.ASHOK DUGAR BY ADVS.SRI.JOSEPH KODIANTHARA SRI.JOYWIN MATHEW RESPONDENTS : --------------------- 1. THE CUSTODIAN & CONSERVATOR OF VESTED FORESTS, OLAVKODE CIRCLE, OLAVAKODE, PALAKKAD 2. THE CHIEF CONSERVATOR OF FORESTS, TRIVANDRUM 3. THE DIVISIONAL FOREST OFFICER, KOTTAYAM 4. THE FOREST RANGE OFFICER, AYYAPPAN KOVIL FOREST RANGE, KANCHIAR, IDUKKI DISTRICT 5. THE FOREST RANGE OFFICER, ERUMELI FOREST RANGE ERUMELI 6. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOREST DEPARTMENT SECRETRIAT, TRIVANDRUM BY SPECIAL GOVT. PLEADER (FOREST) SRI.JAMES KURIAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV O.P.NO.9593 OF 2003 ## APPENDIX ## PETITIONER'S EXHIBITS : - EXT.P1 : COPY OF O.A.NO.157/78 DATED 2-9-78 FILED BY THE PETITIONER BEFORE THE FOREST TRIBUNAL, PALAKKAD - EXT.P2 : COPY OF COUNTER DATED 7-3-1980 FILED BY THE 2ND RESPONDENT IN THE ABOVE OA.NO.157/78 - EXT.P3 : COPY OF ORDER DATED 25-4-1981 OF THE FOREST TRIBUNAL, PALAKKAD IN O.A.NO.157/78 - EXT.P4 : COPY OF THE JUDGMENT DATED 4-3-1987 OF THE KERALA HIGH COURT IN MFA NO.353/1981 - EXT.P4(a) : COPY OF NOTIFICATION DATED 23-11-2002 PUBLISHED IN THE KERALA GAZATTE 47 NO.47 DATED 3-12-2002 - EXT.P5 : COPY OF NOTIFICATION DATED 3-3-1980 ISSUED BY THE 1ST RESPONDENT. EXT.P6 : COPY OF UNDATED NOTIFICATION ISSUED BY THE 1ST RESPONDENT. ## RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A TO JUDGE AV ## **K.VINOD CHANDRAN, J. ------------------------------------------O.P.NO.9593 OF 2003 -------------------------------------------Dated this the 6[th] day of July, 2012** ## **JUDGMENT** Petitioner is a Public Limited Company engaged inter alia in tea plantation in its two estates by name the Haileyburia and Semni Valley in Idukki District. On the Kerala Private Forest (Vesting & Assignment) Act, 1971 coming into force the respondents 3 to 5 demarcated certain areas in the petitioner's two estates as having vested in the Government answering the description of private forest as per the enactment. When the demarcation was done, the petitioner approached the Forest Tribunal, Palakkad, with O.A.No.157/78. The Forest Tribunal by Ext.P3 order allowed the application of the petitioner holding that 432.19 acres planted with eucalyptus is exempted from vesting and that the balance 64 acres representing grass land is liable to vest in the Government. The State accepted the verdict of the Tribunal but the petitioner filed an appeal before this Court regarding the 64 acres of grass land which was **2** ## **O.P.NO.9593 OF 2003** deemed to have vested in the Government. In appeal this Court though did not agree that there was forest growth in the said 64 acres, however, recorded the undertaking of the petitioner that same being found to be grass land interspersed within the estate of the petitioner; the same would be preserved as such. The petitioner was permitted to retain the same. 2. The petitioner having thus succeeded before this Court was holding the property and enjoying the same while a demarcation was attempted in its estate with respect to 54 hectors coming within 10 bits. On enquiry the petitioner was informed that the said land is covered by Exts.P5 & P6 notifications issued on 03.03.1980 and nil respectively. This gave rise to the above writ petition; in which, at the time of admission an interim order was passed by the learned Single Judge directing status quo but, however letting the respondents carry on any activity to measure, survey and demarcate the land subject to further orders in the original **O.P.NO.9593 OF 2003** **3** petition. 3. The learned Senior Counsel appearing for the petitioner would contend that the notification was issued without demarcation of the properties and would infact lead to a situation of the petitioner being disabled from filing any appeal to the Forest Tribunal as provided under the Vesting Act since the period of limitation prescribed under the Act is 60 days from the date of notification and no power is conferred on the tribunal to condone the delay in filing such an application. The notification issued without any demarcation it is submitted, is hence, not in accordance with the Act and also prejudices the petitioner. The petitioner would contend that the notification as such has been issued before demarcation while the learned Government Pleader would assert contra. 4. There cannot be any dispute that the issuance of notification under the Act should follow the demarcation of boundaries as has been held in **1991 (2) KLT 49, Ranga** **4** ## **O.P.NO.9593 OF 2003** **Sesha Hills (P) Ltd. v. State of Kerala.** The primary issue to be examined in this case would be as to whether Exts.P5 & P6 notifications were issued after demarcation or whether the demarcation was attempted after the issuance of notification. It is admitted that the demarcation attempted by the State had been continued after the issuance of the interim order by virtue of the freedom granted to the respondents to carry on such process without affecting the possession of the properties. The State has filed a counter affidavit in which though it is asserted that the demarcation was attempted before notification, no date is disclosed. In fact in paragraph 9 of the counter affidavit it is stated : “It is true that there were variations in this survey numbers and extent of OA schedule property with reference to the survey numbers and extent of the notified Vested forests. The variations were noticed only later on. Accordingly a thorough re-survey of the notified vested forest area was carried out by the Forest Mini Survey, Thiruvananthapuram. From the survey **O.P.NO.9593 OF 2003** **5** records it was revealed that the forest department has to take possession of 26.2876 Ha of land in 6 no. of bits from the company as Vested forests, being the land found in excess to the claimed extents in the respective survey numbers. The survey further revealed that there were 4 numbers of bits of Vested forests land situated within Haileyburiya estate, which were not claimed by the company in the OA and MFA. As per the survey records, the total extent of the 4 bits of Vested forests comes to 27.8837 ha. The boundaries of the 4 bits were found demarcated in the field by erected survey stones. In the result action was taken to protect the said 54.1713 Ha of land in the 10 bits as vested forests and the same is being protected by the forest department as Vested forests. The boundaries of the said 10 bits of land have been demarcated by the survey team in the field and permanent Cairns have been erected along the boundaries so as to ensure proper protection.” ## It is also been stated in paragraph 6 “the 6 bits have been demarcated by the survey team in the field and erection of permanent Cairns along the boundaries started during March 2003” ## 5. The above admissions made by the State in the **6** ## **O.P.NO.9593 OF 2003** counter affidavit would clearly show that the notification issued in the year 1980 was long prior to the demarcation. If at all any demarcation has been conducted in the property prior to the notification, the records of the same is not available with the Government as is evident from the counter affidavit. Demarcation obviously has been attempted only in the year 2003 and continued even after the interim order of this Court. In such circumstances, following the above cited judgment of this Court the notifications Exts.P5 & P6 to the extent it relates to the petitioner's property is liable to be set aside. However, reserving the right of the Government to proceed with the demarcation, as also a notification if so found permissible and in accordance with the Vesting Act. The writ petition is allowed with no costs. ## **K.VINOD CHANDRAN, JUDGE** **7** ## **O.P.NO.9593 OF 2003** AV