M/S.ELSTONE TEA ESTATES LIMITED v. STATE OF KERALA AND OTHERS

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945 WP(C) NO. 2250 OF 2023`** ## **`PETITIONER:`** ``` M/S.ELSTONE TEA ESTATES LIMITED REPRESENTED BY ITS DIRECTOR, K.M.MOIDEENKUNHI, KALPETTA P.O., WAYANAD., PIN – 673 121. BY ADVS. ADARSH KUMAR K.M.ANEESH SHASHANK DEVAN ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, FOREST AND WILDLIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.`** - **`2 CHIEF CONSERVATOR OF FORESTS, NORTHERN REGION, ARAKKINAR P.O., MATHOTTAM, KOZHIKODE, PIN – 673 028.`** - **`3 DIVISIONAL FOREST OFFICER SOUTH WAYANAD DIVISION, PINANGODE ROAD, KALPETTA P.O., WAYANAD., PIN – 673 121.`** - **`4 FOREST CONSERVATOR EASTERN CIRCLE, OLAVAKKODE, PALAKKAD, PIN – 678 002.`** - **`5 FOREST RANGE OFFICER MEPPADY, MEPPADY P.O., VYTHIRI TALUK, WAYANAD DISTRICT, PIN – 673 577. SRI.T.P.SAJAN, SPL.GP`** - **`THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** W.P.(C).No.2250 of 2023 2 ## BECHU KURIAN THOMAS, J ......…............................................. ## W.P.(C).No.2250 of 2023 …................................................ Dated this the 6[th] day of December, 2023 ## JUDGMENT Petitioner is a company engaged in the business of plantations. Petitioner’s predecessor-in-title was a company by name Chembra Peak Estate Ltd., which owned 2.100 hectares in Survey No.658/6, 12.5 Hectares in Survey No.659/6 and 3.5250 Hectares in Survey No.659/5 of Vythiri Taluk, Kalpetta Village, Wayanad District. The aforesaid three properties vested with the Government as on 10.05.1971 by virtue of the Kerala Private Forest (Vesting & Assignment) Act, 1971 [for short, ‘the Act’]. The three properties were identified and demarcated at the time of taking over possession from the petitioners’ predecessor as plot Nos. B, E, and F, respectively. 2. A reference to the history of the case is relevant to appreciate the contentions advanced. Seeking exclusion of the properties so vested 3 ## W.P.(C).No.2250 of 2023 under the Act, O.A.No.217/1977 was filed by the prior owner. Initially, the said application was dismissed. However, on appeal in M.F.A.138/1980, the case was remanded, and thereafter, it was renumbered as O.A.No.44/1990 before the Forest Tribunal, Palakkad. In the meantime, petitioner impleaded as an additional applicant before the Tribunal as it had purchased the property and continued the proceedings. 3. While so, O.A.No.44/1990 of the Forest Tribunal, Palakkad, was allowed in part. While the Tribunal held that plot No. B, having an extent of 2.10 Hectares in Survey No.658/6 was not liable for vesting, the claim for exemption of the remaining two properties was rejected. On an appeal filed by the petitioner before this Court as M.F.A.No.428/1991, a Division Bench of this Court found, by judgment dated 07.06.2002, that even the remaining two plots, demarcated as plots E and F, could not have vested with the Government since those plots were also liable to be exempted from vesting under the Act. Though the State preferred a Special Leave Petition before the Supreme Court, it was dismissed on 08.01.2004, 4 ## W.P.(C).No.2250 of 2023 and hence, the order of this Court in M.F.A.No.428/1991 became final. All three plots allegedly vested with the Government, were, therefore, liable to be restored back to the petitioner. 4. Since the respondents delayed restoring possession of the properties, petitioner approached this Court in W.P.(C) No.2667/2018, and, by judgment dated 12.04.2018, a learned single Judge of this Court directed the respondents to restore possession of the properties in question to the petitioner within six months. Subsequently, petitioner was compelled to file W.P.(C) No.20572/2022 when the respondent, despite the earlier direction, failed to restore possession of the properties to the petitioner. During the hearing, apparently, the learned Government Pleader referred to a letter issued by the Divisional Forest Officer, South Wayanad Forest Division, directing the petitioner to appear before the Range Forest Officer with the relevant documents to complete the process of restoration. Despite the objection of the petitioner against the manner in which orders of this Court are being dealt with by the Forest Officials, this Court on the basis of the said ## W.P.(C).No.2250 of 2023 5 letter directed the respondents herein by an order dated 21.10.2022 to act in terms of the assurance given by restoring the property. 5. Thereafter, the Divisional Forest Officer, under the guise of restoring possession of the properties, handed over Ext.P12 certificate dated 04.01.2023 certifying that the properties have been restored. The said certificate, however contained certain recitals which have prejudiced the petitioner. The relevant recitals in Ext.P12 are as follows: “.......... Government have also informed that any diversion of such forest land for non-forestry purpose requires prior permission of the Central Government irrespective of the ownership of the land in question and in future such land will be managed under the provisions of the working plan/working schemes approved by Government of India. As per the government Order referred to above and as per proceeding order No.B6-866/86 dt.09.07.2019 of the Custodian of Vested Forests & Chief Conservator of forests, Eastern Circle, Palakkad, the possession of an extent of 12.5 Ha of land in Rsy.No.396 (old Sy.No.659/pt) and an extent of 3.5250 Ha of land in Rs.No.397 (Old Sy No.659/Pt) of Kalpetta Village of Vythiri Taluk involved in MFA No.428/91 of Hon’ble High Court and as per the survey sketch approved by the Assistant Director of Survey, Forest Mini Survey, Kozhikode has been restored to Sri.K.M.Moideen Kunji, Director, Elstone Tea Estates Ltd., Kalpetta on this day.” 6 W.P.(C).No.2250 of 2023 6. Curiously, only two properties were mentioned in Ext.P12 as having been restored. Apart from Ext.P12 certificate, the forest authorities obtained Ext.P13 receipt from the petitioner, incorporating three conditions. In this writ petition, Petitioner challenges the conditions incorporated in Ext.P13 and the observations in Ext.P12 certificate extracted above, apart from the failure to restore Plot No. B. 7. In the statement filed by the 3[rd] respondent, it is mentioned that the Department had restored Plot No. E and F to the applicant on 04-01-2023, while plot B cannot be restored to the petitioner alone as the applicant before the Forest Tribunal was Chembra Peak Estate Ltd. It is further stated that Plot B, E & F were exempted from vesting as they were plots found inside or surrounded by the applicant's tea estate and as being ancillary for cultivation of plantation crops as defined section 2(44) A of the KLR Act 1963 and Section 2(f) (1) (i) B of the Act of 1971. Respondents further stated that as the restored extent is part of a plantation of the W.P.(C).No.2250 of 2023 7 Elston Tea estate, and as it comes under the definition of section 81(e), 2(44)a of KLR Act and under section 2(f)(I)(i)B of the Act of 1971, the extent of land could be used only for a purpose ancillary to the cultivation of plantation crops. Any other activity other than those ancillary to the cultivation is prohibited so as to protect the plantation from changing the nature of the area. It was stated that to keep it as a plantation and not to convert the character and nature of the plantation, certain conditions were imposed while handing over the area as per Exhibit P.12 and Exhibit P.13 and this is imposed as per section 2(44) of KLR Act and under section 2(f)(1)(i)B of the Act of 1971. If any activities other than plantation activities are done in the restored area, it would definitely change the character/nature of the plantation, which could be termed as conversion, and that will be against the provisions of section 81(e), 2(44)(a) of KLR Act and under section 2(f)(1)(i)B of Act of 1971. According to the respondents, the conditions imposed would not create any impediment for the use of the land for ancillary purposes of plantation. It was further stated W.P.(C).No.2250 of 2023 8 that the petitioner is challenging the above conditions only because it intends to convert the land exempted under Sect.18(e) of the KLR Act for other purposes which cannot be allowed in the interest of environmental conservation and development. 8. I have heard Sri. Adarsh Kumar, the learned counsel for the petitioner and Sri.T.P.Sajan, the learned Special Government Pleader. 9. The question for determination is whether respondents can, while returning possession of the property to the owner, impose conditions regarding the manner in which a property is to be utilized. - 10.The whole scheme of the Act, is that all private forests in the State of Kerala became vested with the Government as on 10.05.1971. However, if a property is not a private forest on the date of commencement of the said Act, the property will not vest with the Government. Therefore the crucial date for reckoning vesting of the property with the Government is 10.05.1971. - 11.It is evident from the orders of the Forest Tribunal in 9 ## W.P.(C).No.2250 of 2023 O.A.No.44/90 as well as the judgment of this Court in MFA No.428/1991, that petitioner’s property was not a private forest within the purview of the Act as on 10.05.1971. Obviously, the property could not have vested with the Government as declared by the Judgment of this Court and the order of the Tribunal. If the property could not have vested with the Government there cannot be any power to impose any condition when the property is restored back to the owner. Restoration of property in the instant case is akin to restitution of the property as on 10.05.1971. There is no power vested with the Government, under any law for the time being in force to impose any condition restraining the nature of enjoyment of the property by the petitioner, by any administrative order. 12.Though the learned Government Pleader vehemently contended that the property could not be used for any purpose other than that for which the exemption was obtained by the petitioner, I am of the view that those are all matters that are alien to the issue in consideration. As long as the property is not a private forest W.P.(C).No.2250 of 2023 10 coming within the purview of the Act or is exempted from being treated as a private forest under the Act, petitioner is presumed to have always retained ownership of the property. Any restriction against the owner's interest created by a stranger to the property is void ab initio. 13.Even otherwise, the contention based on the Kerala Land Reforms Act, 1961 has no merit in view of the decision of a Full Bench of this Court in Mathew K. Jacob and Another v. District Environmental Impact Assessment Authority 2018 (5) KHC 487 wherein it was held that there is no restriction in using a property exempted under the KLR Act for purposes other than those for which exemption was granted. Though the legal consequences contemplated for such use can ensue, it cannot confer a right upon the respondents to impose conditions regarding the nature of the use to which the property is to be put to. Therefore, the restrictive covenant or conditions imposed in Ext.P12 and Ext.P13 regarding the manner in which the property is to be used is illegal and without any authority of law. ## W.P.(C).No.2250 of 2023 11 - 14.Petitioner has a further grievance that, despite the direction in Ext.P3, respondents have not restored plot No. B, having an extent of 2.10 hectares in Survey No.658/6 which was originally allowed to be restored to petitioner's predecessor. - 15.The contention of the respondent is that the property has to be restored back to the owner, from whom the property became vested with the Government, and therefore, it has to be returned only to Chembra Peak Estate Ltd., and not the petitioner is fallacious and without any merit. Petitioner is admittedly the assignee from the prior owner, even with respect to Plot No. B; Therefore, the petitioner has stepped into the shoes of the prior owner. Restoration must be to the person who is the owner of the property as on the date on which the property is restored. - 16.Apart from the above, such a contention was not raised in W.P. (C)2667/2018, wherein this Court had directed the restoration of possession of the property to the petitioner. - 17.In view of the above, the conditions imposed in Ext.P12 and Ext.P13 to the extent it stipulates the manner in which the W.P.(C).No.2250 of 2023 12 petitioner must utilize the properties restored back to it are quashed. Further, Respondents 2, 3, 4, and 5 are directed to restore possession of 2.10 hectares of property situated in Survey No.658/6 of Vythiri village, Kalpetta [Plot No. B in O.A.44/1990 of Forest Tribunal, Palakkad] to the petitioner, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. 18. Though this case merits the imposition of costs on the respondents, considering the circumstances, this Court forces itself to avoid such an imposition. The writ petition is allowed as above. sd/BECHU KURIAN THOMAS JUDGE AMV/07/12/2023 W.P.(C).No.2250 of 2023 13 ## **`APPENDIX OF WP(C) 2250/2023`** ## **`PETITIONER EXHIBITS`** |**`EXHIBIT P1`**|**`A TRUE COPY OF THE JUDGMENT DATED 07-`**| |---|---| ||**`06-2002 IN ITA NO.428/1991 PASSED BY A`**| ||**`DIVISION BENCH OF THIS HON'BLE COURT.`**| |**`EXHIBIT P2`**|**`A TRUE COPY OF THE ORDER DATED 08-`**| ||**`01-2004 PASSED BY THE HON'BLE SUPREME`**| ||**`COURT OF INDIA IN SPECIAL LEAVE TO APPEAL`**| ||**`(CIVIL) (CC. 11216/2003)`**| |**`EXHIBIT P2(A)`**|**`A TRUE COPY OF THE ORDER DATED 20.01.2007`**| ||**`BY THE DIVISIONAL FOREST OFFICER`**| |**`EXHIBIT P3`**|**`A TRUE COPY OF THE JUDGMENT DATED 12-`**| ||**`04-2018 IN WP(C) NO. 2667/2018 PASSED BY`**| ||**`THIS HON'BLE COURT`**| |**`EXHIBIT5`**|**`A TRUE COPY OF THE LETTER DATED 15.06.2019`**| ||**`FROM THE DEPUTY SECRETARY FOR THE`**| ||**`PRINCIPAL SECRETARY TO GOVERNMENT, FOREST`**| ||**`AND`**<br>**`WILDLIFE(E)`**<br>**`DEPARTMENT,`**| ||**`THIRUVANANTHAPURAM TO THE THE PRINCIPAL`**| ||**`CHIEF CONSERVATOR OF FORESTS (FL&R),`**| ||**`THIRUVANANTHAPURAM.`**| |**`EXHIBIT P4`**|**`A TRUE COPY OF THE JUDGMENT DATED 25-`**| ||**`09-2020 IN CON.CASE(C) NO. 94/2019 IN`**| ||**`WP(C) NO. 2667/2018 PASSED BY THIS HON'BLE`**| ||**`COURT.`**| |**`EXHIBIT P5`**|**`A TRUE COPY OF THE AFFIDAVIT AND PETITION`**| ||**`FILED BY THE PETITIONER HEREIN IN CON.CASE`**| ||**`NO. 94/2019`**| |**`EXHIBIT P6`**|**`A TRUE COPY OF THE COMMUNICATION DATED 18-`**| ||**`01-2021 ISSUED BY THE PETITIONER TO THE`**| ||**`PRINCIPAL SECRETARY, FOREST AND WILDLIFE`**| ||**`DEPARTMENT, THIRUVANANTHAPURAM.`**| |**`EXHIBIT P7`**|**`A TRUE COPY OF THE COMMUNICATION DATED 13-`**| ||**`08-2021 TO THE 3RD RESPONDENT ISSUED BY`**| ||**`THE PETITIONER`**| |**`EXHIBIT P8`**|**`A TRUE COPY OF THE SAID COMMUNICATION`**| ||**`DATED 29-12-2021 ISSUED BY THE 5TH`**| ||**`RESPONDENT TO THE PETITIONER`**| |**`EXHIBIT P9`**|**`A TRUE COPY OF THE RELEVANT PORTION OF THE`**| ||**`MAHAZAR`**| |**`EXHIBIT P10`**|**`A TRUE COPY OF COMMUNICATION FROM`**| ||**`PETITIONER TO THE RESPONDENT NO.3 DATED`**| ||**`04-04-2022`**| 14 W.P.(C).No.2250 of 2023 ``` EXHIBIT P11A TRUE COPY OF THE ORDER DATED 21- 10-2022 IN WPC NO.20572/2022. EXHIBIT P12A TRUE COPY OF THE CERTIFICATE DATED 04- 01-2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT P13A TRUE COPY OF THE RECEIPT OF POSSESSION ISSUED TO THE PETITIONER BY THE FOREST AUTHORITIES EXHIBIT P14A TRUE COPY OF THE COMMUNICATION DATED 07- 01-2023 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT ``` TRUE COPY