M/S JOONKTOLLE TEA AND INDUSTRIES LTD. v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 28TH DAY OF FEBRUARY 2020 / 9TH PHALGUNA, 1941** # **WP(C).No.6032 OF 2016(D)** ## **PETITIONER:** **M/S. JOONKTOLLE TEA AND INDUSTRIES LTD. AGED 57 YEARS PLANTATIONS DIVISION - KERALA, CHEMONI & PUDUKADESTATES, PALAPPILLY P.O., THRISSUR - 680 304,REPRESENTED BY ITS AUTHORISED SIGNATORYK.M.VINEETHA KUMAR.** **BY ADVS. SRI.P.BENNY THOMAS SRI.D.PREM KAMATH** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,FOREST & WILD LIFE DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM695 001.** - **2 THE CONSERVATOR OF FORESTS FOREST CONSERVATOR'S OFFICE,VANAPRIYA FOREST COMPLEX,PARAVATTANI, THRISSUR - 680005.** - **3 THE DIVISIONAL FOREST OFFICER CHALAKKUDY THRISSUR - 680 307.** - **4 HIGHRANGE PLANTATION WORKERS UNION SOUGHT TO BE IMPLEADED** - **R1-3 BY GOVERNMENT PLEADER R4 BY ADV. MINI.V.A.** ## **OTHER PRESENT:** ## **SANDESH RAJA- SPL.G.P,FOREST** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1001-2020, THE COURT ON 28-02-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.6032/16 2 ## **JUDGMENT** ## **Dated this the 28[th] day of February 2020** 1. The substantial prayers in the writ petition are as follows “i)Issue a writ 0f certiorari, or any other appropriate order or direction, quashing Exhibit-P5 proceedings of the 2[nd] respondent. - (ii) Issue a writ of mandamus, or any other appropriate order or direction, directing the 2[nd] respondent to change the name of the Lessee in the records of the Forest Department as M/s Joonktollee Tea and Industries Ltd in the place of M/s CochinMalabar Estates and Industries Ltd and also to accept lease rent and other dues from the petitioner.“ - 2.Heard the learned Senior Counsel for the petitioner and the learned Special Government Pleader appearing for the respondents. 3. The contention of the petitioner is that M/s.Cochin Malabar Estates Industries Ltd. had been granted a perpetual lease of Chemoni & Pudukad Estates in Thrissur District in Kerala having a total extent of 2670.50 Acres (1080.74 Hectares) by the erstwhile Cochin Government. M/s Cochin-Malabar Estates and Industries Ltd had been remitting the lease rent and other statutory dues to the Government without any fail. It is W.P.(C).No.6032/16 3 submitted that none of the Lease Deeds obtained by the predecessors of M/s Cochin Malabar Estates and Industries Ltd, contained any prohibition in the Lessee assigning its right under the Lease Deed. In fact, the expression ‘Lessee’ in the Lease Deeds takes in its successors and assigns. 4. It is further submitted that M/s Cochin-Malabar Estates and Industries Ltd is a subsidiary Company of M/s Joonktoollee Tea and Industries Ltd. While so, under a Scheme of Arrangement, approved by the Hon‘ble High Court of Calcutta, as per order dated 03.12.2012, in C.P.No.131/2012, the Cochin Plantation Division of M/s Cochin-Malabar Estates and Industries Ltd consisting of Chemoni and Pudukad Estates merged with M/s Joonktoollee Tea and Industries Ltd. w.e.f. 01.04.2011. 5. It is submitted that in view of Exhibit-Pl scheme of arrangement, the petitioner herein has become the Lessee of the said land under the Government without any further act or deed. As per the terms of the Lease Deed, the Lessee is bound to remit lease rent and other dues to the Government. However, the Government is declining to accept the lease rent W.P.(C).No.6032/16 4 from the petitioner stating that as per the records maintained by the Forest Department, the name of the Lessee in respect of the property is M/s Cochin-Malabar Estates and Industries Ltd. In view of Exhibit-Pl Scheme of Arrangement, the respondents are bound to make consequential changes in its records so as to enable the petitioner to remit lease rent and other dues. The request of the petitioner to change the name of the Lessee in the records of the Forest Department as Joonktoollee Tea and Industries Ltd. instead of Cochin-Malabar Estates and Industries Ltd. was declined by the 3[rd] respondent as per Exhibit-P5 order stating that the alleged transfer of the land is in violation of the provision contained in Section 2 of the Forest Conservation Act. Exhibit-P5 order is challenged in this writ petition.” 6. The learned counsel for the petitioner places reliance on decisions of this Court in Addl.Tahasildar, Kottayam and another v. M/s.Zuri Hotels and Resorts (P) Ltd. [W.A.No.1622 of 2019] and of the Apex Court in Hindustan Lever and another v. State of Maharashtra and another [(2004) 9 SCC 438] to contend that an amalgamation of companies as approved by a W.P.(C).No.6032/16 5 competent company Court is binding on the parties as also so on the Government. 7. A detailed counter affidavit has been placed on record by the 1[st] respondent. It is contended therein that the property in question is reserved forest notified by the Cochin Raja by Ext.R1(a) notification on 24.10.1085 M.E. and that no document has been produced by the petitioners to substantiate their claim over the property. An extent of 2670.61 acres of land had been leased by the Raja to M/s.Cochin Malabar Estate Industries Ltd. for cultivation of rubber by levying a lease rent of Rs.2 or Rs.3 per acre. It is further stated that the amalgamation of the companies by the order of the Calcutta High Court is without the knowledge or the junction of State of Kerala and is therefore not binding on the State. It is stated that no change of name can be affected in view of the specific provisions contained in Forest (Conservation) Act,1980 and that the transfer, if any, would be squarely hit by the provision of Section 2 of the said Act. It is stated that Section 2 of the Government Grants Act, 1895 specifies that the Transfer Of Property Act, 1882 will not W.P.(C).No.6032/16 6 apply to Government grants. It is submitted that before entering into the exercise of amalgamation, the petitioner company ought to have obtained prior permission under the Forest (Conservation) Act from the Central Government and it ought to have approached the State Government for appropriate prior permission, which has not been done in the instant case. It is, therefore, contended that the amalgamation, which is effective for all purposes contemplated under the Companies Act, will have absolutely no effect in view of the specific provisions of the Forest (Conservation) Act and the Kerala Forest Act, 1961 and that the prayers sought for in this writ petition, therefore, cannot be allowed. 8. The learned Special Government Pleader places reliance on the decisions of this Court in Sunil Kumar v. Divisional Forest Conservation Officer [2000 (2) KLT SN 7] and State of Kerala and others v. New World Investment (P) Ltd. and others [2015 KHC 7103] in support of the contention that any transfer of any nature of what was reserved forest land without the prior approval of the Central Government in that behalf would be W.P.(C).No.6032/16 7 void and ineffective. 9. Having considered the contentions advanced, I find that the land in question was reserved forest at the time when the grant was made in favour of the erstwhile company by the Maharaja of Cochin. Section 2 of the Forest (Conservation) Act, 1980 reads as follows:- ”2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose.—Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing,— (i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved; (ii) that any forest land or any portion thereof may be used for any non-forest purpose; [(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government; (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation. [Explanation.—For the purposes of this section ‘‘non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for W.P.(C).No.6032/16 8 (a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants; ## (b) any purpose other than reafforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.” 10.Further Section 22 of the Kerala Forest Act, 1961 reads as follows:- ## **“22. No right acquired over Reserved Forests except as herein provided:-** No right of any description shall be acquired in or over a Reserved Forest except under a grant or contract in writing made by or on behalf of the Government or by or on behalf of some person in whom such right or the power to create such right was vested when the notification under Section 19 was published or succession from such person: Provided that no patta shall, without the previous sanction of the Government be granted for any land included within a Reserved Forest and every patta granted without such sanction shall be null and void.” ## 11.Though the learned counsel for the petitioner contends that there is no transfer of interest in the property and that all that W.P.(C).No.6032/16 9 has happened is an amalgamation of the companies, a plain reading of the order of the Calcutta High Court would make it clear that there has been a takeover of the company by the present petitioner with all its assets and liabilities. Such an exercise can only be a transfer of the rights and assets as vested in the transferee company. If that be so, the contention raised by the learned Special Government Pleader that such an exercise is not possible in view of the provisions of Section 2 of the Forest (Conservation) Act and Section 22 of the Kerala Forest Act appears to be well founded. In Sunil Kumar v. Divisional Forest Officer [2000(2) KLT SN 7] this Court held that lease of a portion of reserve forest would be impermissible without the prior permission of the Central Government under the Forest (Conservation) Act, 1980. A Division Bench of this Court in State of Kerala and others v. New World Investment (P) Ltd. and others [2015 KHC 7103], considering a case of reserve forest land leased out by the erstwhile Cochin Government held that any further transferby way of sale or lease or otherwise by the original lessee would be impermissible in view of the clear provisions of the statutes. Though the learned Senior Counsel attempts to 10 W.P.(C).No.6032/16 show a distinction between sale in the said case and an amalgamation in the case on hand, since Section 22 specifically prohibits the 'acquisition of rights of any nature” without a grant or contract om writing by the Government, I am of the opinion that the mode of acquisition of the rights would be irrelevant. The prayers sought for in the writ petition, therefore, cannot be granted. In the result, the writ petition fails and the same is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj ## **APPENDIX OF WP(C) 6032/2016** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** - **EXT.P-1: TRUE COPY OF THE ORDER DATED 3.12.2012, IN C.P NO.131/2012 ON THE FILE OF THE COURT OF THE HIGH COURT OF CALCUTTA** - **EXHIBIT P2 EXT.P-2: TRUE COPY OF THE LETTER DATED 23.2.2013, ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT** - **EXHIBIT P3 EXT.P-3: TRUE COPY OF THE COMMUNICATION DATED 11.3.2013, ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER** - **EXHIBIT P4 EXT.P-4: TRUE COPY OF THE REPRESENTATION DATED 26.12.2014, SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT** - **EXHIBIT P5 EXT.P-5: TRUE COPY OF THE PROCEEDINGS NO.G3-3749/11 DATED 6.11.2015 OF THE 2ND RESPONDENT ALONGWITH FORWARDING LETTER DATED 21.11.2015.** **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 1ST AUGUST 2019 SUBMITTED BY THIS PETITIONER BEFORE THE 1ST RESPONDENT.** - **' -** - **RESPONDENT S EXHIBITS:** - **EXHIBIT R1(a)** **TRUE COPY OF THE NOTIFICATION PUBLISHED IN PAGE 84 TO 90 IN COCHIN GOVERNMENT GAZETTE DATED 12.08.1983.** **True copy** **PS to Judge**