M/S. TRANS ASIAN SHIPPING SERVICES (P) LTD. v. STATE OF KERALA and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY ,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940** ## **WP(C).No. 28920 of 2017** ## **PETITIONERS:** - **1 M/S.TRANS ASIAN SHIPPING SERVICES (P) LTD. HAVING ITS REGISTERED OFFICE AT "TRANS ASIA CORPORATE PARK",XIV/396-C,SEAPORT AIRPORT ROAD, CHITTETHUKARA, KAKKANAD, 682037,REPRESENTED BY ITS DIRECTOR AND AUTHORISED SIGNATORY,MARYLIN JOHNSON.** - **2 JOHNSON MATHEW K. S/O.LATE MATHEW JOHN, AGED 61 YEARS, KONDINJOOR HOUSE, PADAMUGAL, KAKKANAD P.O.,COCHIN-682030.** - **3 MARYLIN JOHNSON W/O.JOHNSON MATHEW K., AGED 59 YEARS, KODINJOOR HOUSE, PADAMUGAL, KAKKANAD P.O.,COCHIN-682030.** ## **BY ADVS.** **SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOREST DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE CONSERVATOR OF FOREST AND CUSTODIAN OF VESTED FOREST OLAVAKKOD CIRCLE, PALAKKAD DISTRICT-691046.** - **3 THE DIVISIONAL FOREST OFFICER SOUTH WAYANAD DIVISION, KALPETTA, WAYANAD DISTRICT-673546.** - **4 THE DISTRICT COLLECTOR COLLECTORATE, WAYANAD-673546.** 2 W.P.(C).No.28920/17 **BY ADVS. SRI.SANDESH RAJA.K., SPL. G.P. (FOREST) SRI.SANDESH RAJA.K. SPL. G.P. FOREST** **OTHER PRESENT: SPL.GP SANDESH RAJA.K** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.02.2019, THE COURT ON 21.02.2019 DELIVERED THE FOLLOWING:** W.P.(C).No.28920/17 3 ## **JUDGMENT** ## 1.Petitioners have approached this Court with the following ## prayers:- ”i)issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents to refrain from including the property in the possession of the petitioners covered by Jenmom assignment deeds bearing Nos.3661/98 to 3675/98 as a private forest under the Kerala Private Forest (Vesting and Assignment) Act, 1971. ii)Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents or its servants or agents from interfering with the peaceful possession and enjoyment of the petitioners property by the petitioners and also restrain from committing waste therein. iii)declare that in so far as the holding of the petitioners covered by Jenmom assignment deeds bearing Nos.3661/98 to 3675/98 are cultivated by cardamom and coffee, the same is liable to be excluded from the definition of private forest as defined in Section 2F of the Kerala Private Forest (Vesting and Assignment) Act, 1971 and any action contrary to the same is opposed to law. iii(a)To call for the records leading to Exhibit P12 and to quash the same by issuing a writ of certiorari.” 2.Heard learned counsel for the petitioners and the learned Special Government Pleader for Forests. W.P.(C).No.28920/17 4 3.The petitioners claim to be joint owners of 165.5 acres of land in RS.No.261 (old Sy.No.1226) in Block No.32 of Vellarimala Village, Vythiri Taluk, Wayanad District. It is stated that the property is cultivated with coffee and cardamom and is covered by due registration. When portions of the property of the petitioners were sought to be notified as vested forest and ecologically fragile lands, the notifications were challenged before this Court. O.P.Nos. 12378 of 2001 and 17868 of 2002 were disposed of directing a consideration of the petitioners' claims. Later, by Exhibit P10 judgment, the case of the petitioners in respect of portion of the property notified as ecologically fragile land was directed to be considered and the issue is pending before the Forest Tribunal. In W.P.(C).No.21468 of 2006, the 1[st] respondent filed Exhibit P9 counter affidavit admitting that the residual property in possession of the petitioners is cultivated with coffee and cardamom. In the meanwhile, Exhibit P11 notification was issued notifying the residual property of the petitioners as a vested forest, which is under challenge in this writ petition. W.P.(C).No.28920/17 5 4.Learned counsel for the petitioners contends that the notification is hopelessly belated and it is issued only as an afterthought to defeat the rights of the petitioners. The Government itself had a specific case all along that the petitioners' properties covered by the present notification were coffee and cardamom plantations and, as such, the entire exercise is completely vitiated and Exhibit P11 is liable to be set aside. - 5.A counter affidavit has been filed by the 2[nd] respondent. It is stated that by notification dated 8.8.2017, 24.180 hectars of land in Survey No.261 of Block No.32 of Vellarimala village of Meppady range had been notified as vested forest. It is stated that the said notification, Exhibit R2(a), was not under challenge. The writ petition was, thereafter, amended raising a challenge against Exhibit R2(a) notification which was produced as Exhibit P11 as well. - 6.After amendment, an additional counter affidavit was filed stating that the notification had been duly published and that W.P.(C).No.28920/17 6 the land continued to be a private forest within the meaning of the Kerala Private Forest (Vesting and Assignment) Act, 1971. Relying on a decision of a Larger Bench of this Court in **State of Kerala v. Moosa Haji** [1984 KLT 494], it is contended that the delay in issuing notification can have no effect on the nature of the land. It is stated that the said position was affirmed by the Apex court in **Bhavani Tea and Produce Co.Ltd. v. State of Kerala and others** [(1991)2 SCC 463] and in **State of Kerala v. Pullangode Rubber and Produce Co.Ltd.** [(1999) 6 SCC 99]. It is contended that in case the petitioners have any case that the property in question was coffee or cardamon plantations as on the relevant date that is in 1971, it is for the petitioners to approach the Forest Tribunal in terms of Section 8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 and raise the said contention. The question whether the property was eligible to exemption from vesting in terms of Section 3, is liable to be considered by the Tribunal constituted under the said Act. It is contended that this Court has, in identical situations, in writ petitions challenging notification issued in W.P.(C).No.28920/17 7 2017, considered identical pleadings raised and had held that the issue is liable to be considered by the Forest Tribunal constituted under the Kerala Private Forest (Vesting and Assignment) Act. The writ petitions were rejected reserving liberty to the petitioner to approach the Tribunal. It was held that the possession of the petitioners would not be disturbed till the Tribunal decides the matter. It is stated that in several other writ petitions also the issuance of the notification has been considered and this Court has directed the question whether the property was liable to exemption from vesting to be considered by the Forest Tribunal in accordance with law. 7. Having considered the contentions advanced on either side, I am of the opinion that the alternate remedy, which is provided under the provisions of the Kerala Private Forest (Vesting and Assignment) Act, 1971, is an efficacious remedy, which should be resorted to by the petitioners, since the question whether the property was plantation as on the relevant date is a pure question of fact, which can best be decided by the Tribunal, which is equipped with all the powers of a civil court. This W.P.(C).No.28920/17 8 Court in exercise of the writ jurisdiction under Article 226 of the Constitution of India would not be justified in undertaking a fact finding exercise when there is a proper adjudicatory forum provided by the Statute. 8.In the above view of the matter, I am of the opinion that the petitioner has to approach the Forest Tribunal with an appropriate challenge as against Exhibit P11 notification. The writ petition is, therefore, disposed of directing that in case the petitioners approach the Forest Tribunal within a period of two months from the date of receipt of a copy of this judgment with an appropriate application, the Forest Tribunal shall consider the question and decide as to the legality of Exhibit P11 in accordance with law. The interim order of dispossession of the petitioners from the property in their possession, as on today, shall continue till a decision is appropriately taken by the Forest Tribunal, as directed above. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.28920/17 9 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SKETCH ISSUED FR131/85/VYTOM THE VILLAGE OFFICE, VELLARIMALA.** **EXHIBIT P2** **TRUE COPY OF THE ABSTRACT OF THE REGISTER SHOWING THE DETAILS OF COFFEE AND CARDOMOM REGISTRATION ISSUED FROM VYTHIRI TALUK (CRC NO.1131/85/VYT).** **EXHIBIT P2(A)** - **TRUE COPY OF THE ABSTRACT OF THE REGISTER SHOWING THE DETAILS OF COFFEE AND CARDOMOM REGISTRATION ISSUED FROM VYTHIRI TALUK (CRC NO.1135/85/VYT).** - **EXHIBIT P2(B)** - **TRUE COPY OF THE ABSTRACT OF THE REGISTER SHOWING THE DETAILS OF COFFEE AND CARDOMOM REGISTRATION131/85/VYT ISSUED FROM VYTHIRI TALUK (CRC NO.1134/85/VYT).** - **EXHIBIT P2(C) TRUE COPY OF THE ABSTRACT OF THE REGISTER SHOWING THE DETAILS OF COFFEE AND CARDOMOM REGISTRATION ISSUED FROM VYTHIRI TALUK (CRC NO.1133/85/VYT).** - **EXHIBIT P2(D) TRUE COPY OF THE ABSTRACT OF THE REGISTER SHOWING THE DETAILS OF COFFEE AND CARDOMOM REGISTRATION ISSUED FROM VYTHIRI TALUK (CRC NO.1132/85/VYT).** - **EXHIBIT P2(E) TRUE COPY OF THE ABSTRACT OF THE REGISTER SHOWING THE DETAILS OF COFFEE AND CARDOMOM REGISTRATION ISSUED FROM VYTHIRI TALUK (CRC NO.13/91).** - **EXHIBIT P2(F)** **TRUE COPY OF THE ABSTRACT OF THE REGISTER SHOWING THE DETAILS OF COFFEE AND CARDOMOM REGISTRATION ISSUED FROM VYTHIRI TALUK (CRC NO.14/91).** W.P.(C).No.28920/17 10 **EXHIBIT P2(G)** - **TRUE COPY OF THE ABSTRACT OF THE REGISTER SHOWING THE DETAILS OF COFFEE AND CARDOMOM REGISTRATION ISSUED FROM VYTHIRI TALUK (CRC NO.15/91).** - **EXHIBIT P2(H) TRUE COPY OF THE ABSTRACT OF THE REGISTER SHOWING THE DETAILS OF COFFEE AND CARDOMOM REGISTRATION ISSUED FROM VYTHIRI TALUK (CRC NO.16/91).** - **EXHIBIT P2(I) TRUE COPY OF THE ABSTRACT OF THE REGISTER SHOWING THE DETAILS OF COFFEE AND CARDOMOM REGISTRATION ISSUED FROM VYTHIRI TALUK (CRC NO.17/91).** - **EXHIBIT P3** - **TRUE COPY OF THE LAND TAX RECEIPTS DATED 13.11.2014 EVIDENCING PAYMENT OF LAND TAX BY THE PETITIONERS (3 NOS.)** - **EXHIBIT P4 TRUE COPY OF THE PLANTATION TAX RECEIPT DATED 13.11.2014.** - **EXHIBIT P5 TRUE COPY OF THE AGRICULTURAL INCOME TAX RETURN FOR THE YEAR 2015-2016.** - **EXHIBIT P6 TRUE COPY OF THE LICENSE NO.231/2014-15 ISSUED BY THE MEPPADI GRAMA PANCHAYAT.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 23.06.2003 IN O.P.NO.17868/2002 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P8 TRUE COPY OF THE INTERIM ORDER DATED 16.08.2006 IN W.P.(C) NO.21468/2006 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P9 TRUE COPY OF THE COUNTER AFFIDAVIT IN W.P.(C) NO.21468/2006 FILED BY THE 1ST RESPONDENT THEREIN (WITHOUT EXHIBITS).** - **EXHIBIT P10 TRUE COPY OF THE COMMON JUDGMENT DATED 05.03.2012 IN O.P.NO.19366/2002 AND W.P.(C) NO.21468/2006 PASSED BY THIS HON'BLE COURT.** W.P.(C).No.28920/17 11 ## **EXHIBIT P11** **TRUE COPY OF THE NEWS ITEM REPORTED IN MALAYALA MANORAMA DAILY DATED 16.08.2017.** |**EXHIBIT P12**|**TRUE COPY OF THE NOTIFICATION NO/B6-**<br>**7570/2002 DATED 8.8.2017 OF THE**<br>**CUSTODIAN OF VESTED FOREST, EASTERN**<br>**CIRCLE, PALAKKAD.**| |---|---| |**EXHIBIT P13**|**TRUE COPY OF THE NOTIFICATION DATED**<br>**4.5.2001.**| |**EXHIBIT P14**|**TRUE COPY OF THE NOTIFICATION DATED**<br>**19.9.2006.**| ## RESPONDENTS EXHIBITS |**EXHIBIT R2(A)**|**TRUE COPY OF THE RELEVANT EXTRACT OF**<br>**THE GAZETTE NOTIFICATION DATED**<br>**26.9.2017**| |---|---| |**EXHIBIT R2(B)**|**TRUE COPY OF THE TABLE SHOWING THE**<br>**DETAILS OF ASSIGNMENT DEEDS.**| |**EXHIBIT R2(C)**|**TRUE COPY OF THE RESURVEY SKETCH**<br>**PREPARED BY THE SURVEY DEPARTMENT AND**<br>**IMPLEMENTED BY THE REVENUE DEPARTMENT.**| |**EXHIBIT R2(D)**|**TRUE COPY OF THE NOTIFICATION NO.B6-**<br>**7570/02 DATED 8.8.2017 OF THE**<br>**CONSERVATOR OF FORESTS AND THE**<br>**CUSTODIAN OF VESTED FORESTS OLAVAKKODE**<br>**CIRCLE.**| True copy PS to Judge