Pambra Coffee Plantations v State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE ACTING CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939** **WA.No. 277 of 2018 IN WPC. 22787/2017** **AGAINST THE JUDGMENT IN WP(C) 22787/2017 of HIGH COURT OF KERALA DATED 11-12-2017** ## **APPELLANT(S)/PETITIONER** **M/S. PAMBRA COFFEE PLANTATIONS, PAMBRA ESTATE, PAMBRA PO, WAYANAD-673592. A PARTNERSHIP FIRM : REPRESENTED BY ITS MANAGING PARTNER.** **BY ADVS.SRI.BECHU KURIAN THOMAS (SR.) SRI.PAUL JACOB (P)** ## **RESPONDENT(S)/RESPONDENTS:** **1. STATE OF KERALA, REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY, DEPARTMENT OF FOREST AND WILDLIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. CHIEF FOREST CONSERVATOR & CUSTODIAN OF VESTED FORESTS, EASTERN CIRCLE, 1ST FLOOR, ARANYA BHAVAN COMPLEX, OLAVKKODE, PALAKKAD-678002.** **3. DIVISIONAL FOREST OFFICER, SOUTH WAYANAD DIVISION, KALPETTA-673121.** **4. DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, NH212, CIVIL STATION, KAIRALI NAGAR, KALPETTA-673122.** ## **BY SPL. GOVERNMENT PLEADER SRI.SANDESH RAJA** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WA.No. 277 of 2018 IN WPC. 22787/2017** ## **APPENDIX** ## **PETITIONER'S ANNEXURES** - **A1: TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT DATED 01.12.2017 AND ENGLISH TRANSLATION.** - **A2: TRUE COPY OF THE REPLY UNDER RIGHT TO INFORMATION ACT DATED 20.12.2017 AND ENGLISH TRANSLATION.** **//TRUE COPY//** **P A TO JUDGE** **JJJ** ## **ANTONY DOMINIC, Ag. C.J. & DAMA SESHADRI NAIDU, J.** -----------------------------------------Writ Appeal No. 277 of 2018 -----------------------------------------Dated: 06[th] February, 2018 ## **J U D G M E N T** ## Antony Dominic, Ag.C.J. This appeal arises from the judgment of the learned Single Judge dismissing W.P.(C) No.22787/2017 filed by the appellant. The said writ petition was filed challenging Exts.P13 and P14, which are notifications issued by the respondents, in exercise of their powers under Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974 (hereinafter referred to as 'Rules' for short) framed under the provisions of Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as 'Act' for short). By the judgment under appeal, the learned Single Judge dismissed the writ petition without prejudice to right of the appellant to move the Tribunal constituted under ## **W.A. No. 277/2018** **-2-** Section 8 of the Act. It is this judgment which is challenged before us. 2. We heard the Senior Counsel for the appellant and the learned Special Government Pleader appearing for the respondents. 3. According to the appellant, they were originally in possession of 3244.29 acres of land, out of which 2218.76 acres were treated as private forest vested in the State under Section 3(1) of the Act, as on 10.05.1971, the appointed date. It is stated that, in pursuance to such vesting, the vested land was surveyed and demarcated and was notified under Rule 2A of the Rules, as per Ext.P8 issued on 08.07.1977. It is stated that thereafter, Exts.P13 and P14 notifications are issued under Rule 2A on 08.06.2017 demarcating another 216.02 acres also as vested private forest. It is submitted that the State; having already excluded **W.A. No. 277/2018** **-3-** 216.02 acres from vesting, when Ext.P8 notification was issued and permitted agricultural activities in the land, cannot now contend that the land is a vested private forest and demarcate the same. Counsel contends that the land is a fully developed plantation and was not a private forest even as on 10.05.1971, to be treated as vested private forest. In support of his plea, Counsel also placed reliance on the judgment of Apex Court in **Godrej and Boyce Manufacturing Company Limited v. State of Maharashtra - (2014) 3 SCC 430** . 4. We have considered the submissions made. Section 3(1) of the Act states that notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, the ownership and possession of all private forests in the State shall, by virtue of the Act, stand transferred to ## **W.A. No. 277/2018** **-4-** and vested in the Government, free from all encumbrances and the right, title and interest of the owner or any other person in any private forest shall stand extinguished. 5. The Act has come into force on 10.05.1971 and vesting, Section 3 of the Act, has taken place as on that date. Section 6 of the Act provides for demarcation of boundaries of vested private forests and such demarcation and the procedure thereof are prescribed in Rule 2A of the Rules. The question whether belated issuance of notification under Rule 24 would defeat the vesting that took place on the appointed date has already been considered by this Court in the judgment in **Jojy Jacob v. State of Kerala - 2011 (1) KLT 79** , where in paragraph 11 it was held thus: “11. Therefore, once a private forest is vested under Section 3 of the Act, the Custodian is to demarcate the boundaries as soon as may be after the appointed date. Once the demarcation **-5-** ## **W.A. No. 277/2018** is done, the Custodian shall immediately publish the details by a notification in the manner as specified in R.2A of the Rules. It has been held by this Court as also the Apex Court in both the aforesaid judgments that issuance of notification is something which must follow demarcation of the boundaries which is the duty of the Custodian to perform as soon as may be after the appointed date when the land is vested. Thus the vesting of private forests and the demarcation of its boundaries or its notification are two different aspects, and the vesting is not dependent upon the demarcation of boundaries or issuance of the notification. It is true, as contended on behalf of the petitioners, when the statute has used the expression “as soon as may be”, it implies that there has to be promptitude in action. However, the fact that due to official inadvertence or negligence or mistake, demarcation of boundaries or publication of the notification has been delayed or that the demarcation has not been done as soon as may be after the appointed date, that will not in any manner invalidate the automatic vesting under Section 3 of the Act that has taken place as on 10.05.1971. Therefore, the delay in demarcation or publication of notification, by itself cannot come to the rescue of the petitioners to contend that the steps taken by the Government in pursuance to the vesting of **W.A. No. 277/2018** **-6-** the property in question are invalid for that reason.” Therefore, the fact that a notification under Rule 2A has been belatedly issued, would not defeat the statutory vesting that has taken place as early as on 10.05.1971. 6. The question whether the land was a private forest or not as defined in the Act or whether the land was excluded from vesting as per Ext.P8, are matters which involve factual disputes, the adjudication of which is possible only by the Tribunal constituted under Section 8 of the Act. It was, therefore, that the learned Single Judge has relegated the appellant to pursue the appellant's remedy before the Tribunal. Such a view taken by the learned Single Judge cannot be said to be illegal for any reason. 7. At this stage, Senior Counsel for the appellant sought for a reasonable time to move the Tribunal, as the time granted by the learned Single Judge is about to **W.A. No. 277/2018** **-7-** expire. On this request we heard the learned Special Government Pleader also. Taking note of the submissions made by both sides, we direct that if the appellant moves the jurisdictional Tribunal constituted under Section 8 of the Act within eight weeks from the date of receipt of the copy of this judgment, such Tribunal shall entertain the application of the appellant, ignoring the delay and adjudicate the case on merits. We also clarify that the appellant would be entitled to the protections that are granted by the learned Single Judge, vide paragraph 26 of the judgment under appeal. Sd/- ANTONY DOMINIC, ACTING CHIEF JUSTICE. Sd/DAMA SESHADRI NAIDU, JUDGE. jjj 06 /02/2018