State of Kerala & Others v M/S Harrisons Malayalam Ltd & M.L. Vincent (W.A. No. 434 of 2013) against the judgment dated 13-12-2012 in W.P.(C).No.6411/2007

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **THURSDAY, THE 23RD DAY OF MAY 2013/2ND JYAISHTA 1935** **WA.No. 434 of 2013** **--------------------------[AGAINST THE JUDGMENT DATED 13-12-2012 IN W.P.(C).NO.6411/2007 OF THIS HON'BLE COURT]** ## **................ APPELLANTS/RESPONDENTS NOS.1 TO 7:** **--------------------------------------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. SECRETARY TO GOVERNMENT, FOREST & WILD LIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **3. DISTRICT COLLECTOR, COLLECTORATE, THRISSUR.** ## **4. TAHSILDAR,** ## **MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** ## **5. CONSERVATOR OF FORESTS,** - **OFFICE OF THE CONSERVATOR OF FORESTS, CENTRAL CIRCLE, VANAPRIYA FOREST COMPLEX, PARAVATTANI, THRISSUR-680 005.** **6. DIVISIONAL FOREST OFFICER, CHALAKKUDY, THRISSUR DISTRICT.** ## **7. FOREST RANGE OFFICER,** - **VELLIKKULANGARA RANGE, KODALI, PADY.P.O., THRISSUR DISTRICT.** ## **BY SPL. GOVERNMENT PLEADER SMT. GIRIJA GOPAL.** ## **RESPONDENTS/PETITIONER AND RESPONDENT NO.8:** **-------------------------------------------------------------------------------** ## **1. M/S. HARRISONS MALAYALAM LTD.,** - **BRISTOW ROAD, WILLINGDON ISLAND, COCHIN-682 003, REPRESENTED BY ITS CHIEF MANAGER-LEGAL MR.V.VENUGOPAL.** ## **2. M.L.VINCENT,** **S/O.LUKOSE, MULLAKKUNNEL HOUSE, INCHAKUNDU.P.O., THRISSUR DISTRICT-680 312.** **R1 BY SENIOR ADVOCATE SRI. E.K.NANDAKUMAR, ADV. SRI.M.GOPIKRISHNAN NAMBIAR, R2 BY ADV. SRI.JOHNSON MANAYANI.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **MANJULA CHELLUR,C.J. &** ## **K.VINOD CHANDRAN, J.** **= = = = = = = = = = = = = = = = W.A.No.434 of 2013 = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of May, 2013** ## **JUDGMENT** ## **Manjula Chellur,CJ** This writ appeal is directed against the judgment of the learned Single Judge dated 13.12.2012 wherein the learned Judge had directed resumption of 22.45 hectars of land from the respondents/writ petitioners which was taken over on the basis of the violation of terms and conditions of lease. The case of the writ petitioners in brief before the learned Single Judge was that an extent of 6063 acres of forest land was taken on lease in perpetuity by the predecessor of petitioner from the Diwan of Cochin representing the Government of Cochin for cultivation of rubber, tea, and cardamom at Mooply, Palappilly and Kundai estates. 2. According to the writ petitioner, for more than 100 years they had established these plantations, nurtured and raised it and looked after them. The lease deed provides only for **W.A.No.434 of 2013** **2** cultivation of catch-crops and so far as sub lease is considered, there was no restriction whatsoever. 3. It is not in dispute that Ext.P2 order came to be passed when parallel proceedings were initiated by the Conservator of Forests on the ground that the terms and conditions of lease was violated and so called violation was in respect of several aspects. Simultaneously, the Additional Secretary initiated proceedings and passed an order on Ext.P2. Therefore, they approached the learned Single Judge contending that the Additional Secretary to Government, Revenue Department is not competent to initiate any proceedings and take action against the writ petitioners, that too when parallel proceedings initiated by Conservator of Forests on similar issue of violation of terms and conditions were pending. Incidentally, they also contended that when larger issues were the subject matter of other proceedings; on the representation of 8[th] respondent, a sub lessee under the writ petitioners, Additional Secretary ought not to have proceeded with the matter without even affording an opportunity of being heard to the petitioners and therefore they sought the following reliefs.:- **W.A.No.434 of 2013** **3** “i) Issue a writ of certiorari or other appropriate writ, order or direction, calling for the records and quashing Ext.P2 order and all further proceedings pursuant to Exhibit.P2. ii)stay all further proceedings pursuant to Ext.P2 pending disposal of the writ petition; iii) to issue any writ, order or direction in the nature of prohibition restraining respondents 3 to 7 in interfering with the petitioner's right, possession and enjoyment of the property covered by Exhibit.P2 order till the disposal of the above writ petition. iii(a) issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P12 and; iv) allow this writ petition with costs to the petitioner.” 4. Ext.P2 which is the subject matter of challenge in the writ petition which is dated 08.02.2007 and it so happened, the final order of the Conservator so far as the proceedings initiated by him came to be passed on 07.02.2009, subsequent to the order of Additional Secretary. The order dated 07.02.2009 is the subject matter of Original Suit in O.S.No.141/2009 and the said case is pending. It is pertinent to mention that in the Original Suit the plaintiffs who happened to be the writ petitioners before this Court sought for an order of temporary injunction restraining the respondent- authorities from interfering with the **W.A.No.434 of 2013** **4** peaceful possession and enjoyment of the property and the same came to be granted. So far as the main reliefs in the suit, apart from seeking the permanent injunction; declaration of the action of the Government as illegal and void was also sought. It is relevant to mention that this 22.45 hectors of land is part and parcel of the land which is the subject matter of the Original Suit stated above. The order of temporary injunction granted by the Civil Court came to be challenged up to the Apex Court and the order of grant of injunction by the Civil Court came to be upheld. This is so far the Original Suit is concerned. 5. When coming to Ext.P2 order this also revolves round Ext.P3-license. It is not in dispute that the respondents/writ petitioners are in possession of huge extent of land stated above wherein rubber estates are maintained at three places; Mooply, Palappilly and Kundai in the district of Thrissur. According to the writ petitioner, they are all perpetual leases and therefore there was no justification for order under **W.A.No.434 of 2013** **5** Ext.P2. According to the appellant -State the area was given on sublease contrary to the terms of lease (Ext.P3), therefore, there is justification on the part of the respondent-authority to initiate proceedings on the representation of respondent No.8. It is also not in dispute that a copy of the order dated 08.02.2007 came to be served on the Manager followed by resumption of the land by the officials of the Revenue Department and the Forest Department came to the estate asking the Manager to vacate Bungalow. However, the fact remains the Bungalow is still in possession and enjoyment of the respondent-writ petitioner by virtue of an order of stay but however the surrounding area measuring about 22.45 hectors of land was resumed by the Government in pursuance of Ext.P2 order. 6. The learned Single Judge, after taking note of entire material on record, opined that when the parallel proceedings were pending before Secretary to Government, Forest and Wild Life Department there was no justification for the instant **6** ## **W.A.No.434 of 2013** proceedings which culminated into Ext.P2. With regard to the locus standi of the official who passed orders under Ext.P2, that too, was the subject matter before the learned Single Judge. 7. From the material on record and also from the submissions of the learned Senior Counsel appearing for respondent/ writ petitioner; in earlier writ petition (W.P.(C) No.1568/2005), Ext.P5 order came to be challenged. After hearing both the parties, this Court directed to treat Ext.P5 as the show cause notice and then proceed with the matter, after hearing the parties. Subsequent to that the Secretary to Government Forest and Wild Life department proceeded to pass orders on 07.02.2009 which is the subject matter of civil suit in which the petitioner has obtained an order of injunction. 8. The learned Single Judge, after referring to all the facts and circumstances, having regard to Clause No.1 of the lease deed, opined that it was the Conservator of Forest who **W.A.No.434 of 2013** **7** has to determine the lease and order that the lessee shall forthwith vacate the land after giving opportunity of hearing to the lessee. He further opined that in the absence of proceedings in the manner indicated in the lease deed, the entire proceedings become nullity. It is pertinent to mention that the arguments of the appellant that even subletting the land becomes violation of the terms of lease also came to be considered as similar objection was raised by the appellantState before the learned Single Judge. On going through the entire terms of lease deed at Ext.P3 we find no clause in the lease deed indicating such prohibition of subleasing the property by the lessee. In that view of the matter, the representation of the 8[th] respondent on the ground that he was the sub-lessee under the writ petitioner and the catch crops grown by the sub-lessee were contrary to the terms of lease has to be determined. The question is when such determination was the subject matter of the proceedings pending before the Conservator, as indicated in the lease **8** ## **W.A.No.434 of 2013** deed; was the Additional Secretary justified in initiating simultaneous proceedings on the representation of the so called sub-lessee who surprisingly remains absent through out the proceedings? On going through the contents of Ext.P3, we note that none of the terms of lease prohibit the so-called sublease. Therefore, there was no violation of terms, in so far as subleasing the property if at all in favour of 8[th] respondent by the writ petitioner. 9. Then coming to the simultaneous proceedings, if at all, there is complaint of violation of terms of lease deed, it has to be determined in accordance with the procedure contemplated for the purpose or in accordance with the terms of lease which governs the conduct of the parties to the lease deed. Lease deed was executed by Diwan of Cochin representing the Government of Cochin in favour of predecessor in title of the present writ petitioner. According to the learned Government Pleader there is prohibition of lease either limited or perpetual as per Section 2 of Forest **W.A.No.434 of 2013** **9** Conservation Act of 1980. This is categorically denied by the writ petitioners and issue regarding the controversy is the issue before the Civil Court. 10. The main ground upon which the writ petition came to be disposed of as stated above is with regard to the maintainability of the order (Ext.P2) passed by an officer without locus standi or jurisdiction. Additional Secretary of Revenue is not at all a person referred to in the terms of lease agreement. Even to initiate any proceedings under Forest Conservation Act it has to be an officer indicated in the Act who has to initiate proceedings. Additional Secretary, Revenue Department based on the representation of 8[th] respondent a sub-lessee under the writ petitioner proceeded to pass Ext.P2. It is also pertinent to mention that on the representation of 8[th] respondent, Additional Secretary to Government, Revenue Department did not issue any show cause notice to the writ petitioner and he proceeded with passing an order as per Ext.P2. Apart from not being an **W.A.No.434 of 2013** **10** authority authorised either by terms of lease or by any statute he did not even follow the principles of natural justice by giving opportunity to the writ petitioner before proceeding with the passing of order of resumption. Therefore, the learned Single Judge was justified in saying that the Additional Secretary did not have jurisdiction to consider the question of violation of terms of lease and there is violation of principles of natural justice. 11. It is well settled that if a procedure is contemplated; in doing a particular thing or act in a particular manner, it has to be done in that manner or not at all. This is well settled in **Babu Varghese vs. Bar Council of Kerala** [(1999)3 SCC 422] wherein their Lordships of the Apex Court in paragraph 30 after referring to the decision in **Taylor vs. Taylor** [(1875) 1 Ch D 426: 45 LJCh 373] which came to be followed by **Lord Roche** in **Nazir Ahmad v.King Emperor** [(1936) 63 IA 372 : AIR 1936 PC 253] held that if a procedure is contemplated; that a particular act has to be **11** ## **W.A.No.434 of 2013** done in a specific manner prescribed by any statute, the act must be done in that manner or not at all. In the absence of the appellant-State pointing out under what procedure or statute or under what authority Additional Secretary could have passed an order, in the nature of Ext.P2, we fail to understand how such an order is sustainable. 12. The learned Single Judge did rightly consider Ext.P2 as an order by an authority who was not authorised to pass such an order. Even otherwise as already stated above, the terms of lease clearly indicates, if at all there has to be determination of lease, on the ground of violation of terms of lease, it has to be the Conservator of Forest who has to initiate action and a procedure is contemplated under the terms of lease itself. If procedure is contemplated, in the absence of any other statute governing the issue in question, we fail to understand how the arguments of the learned Government Pleader that Additional Secretary being the representative of the Government was competent to pass the **12** ## **W.A.No.434 of 2013** order impugned before the learned Single Judge, can be sustained. 13. Then coming to the other issue; proceedings before the Principal Secretary Forest and Wild Life Department as on the date of Ext.P2 was pending. For that matter on the date of representation by 8[th] respondent the proceedings initiated by the Conservator is pending. Nothing prevented the Additional Secretary for transmitting the files to the Forest Department, for initiating action, if he felt there was any violation of terms and conditions of lease. When similar issues were pending consideration before the Forest and Wild Life Department, the competent authority under the lease deed pertaining to larger extent of land; considering representation of 8[th] respondent a sub-lessee to an extent of 22.45 hectors out of 6000 and odd acres of land seems to be an arbitrary exercise of power by the Additional Secretary; that too without a notice giving opportunity of being heard to the writ petitioner and also without jurisdiction. **13** ## **W.A.No.434 of 2013** 14. Apparently, we do not find any proceedings before a court of law initiated by sub-lessee so far as the dispute between lessee and the sub-lessee. Except the representation by sub-lessee, no other proceedings are initiated. The Mahazar conducted for resumption of land speaks as to from whom the land was resumed. This is also the subject matter of civil suit. 15. It was also made clear before us that the Government has filed a writ petition under Article 227 and 228 of the Constitution of India in O.P.No.3508/2011 seeking resumption of entire land in possession of the writ petitioner on the ground of fraud played on the State by predecessor in title and the writ petitioner, in forging the documents of title in his favour. We also learnt that in the said O.P., arguments are concluded and the judgment is reserved. Before the Single Judge and also before this Court, the State has urged fraud being played by the respondent/ writ petitioner. We refrain to opine anything on the said allegation as it is the **14** ## **W.A.No.434 of 2013** subject matter of OP as stated above wherein judgment is reserved. So far as terms and conditions of lease deed and violation of terms and conditions of lease, it is the subject matter of Original Suit pending before Civil Court in 'Thrissur. As the resumption of land came to be made under Ext.P2 by an authority which lacks jurisdiction to act, the learned Single Judge was justified in quashing Ext.P2 and ordering resumption of the land. 16. We make it clear that none of the observations here or the opinion expressed by us would come in the way of judgment reserved in O.P or the judgment that has to be made by the Civil Court. 17. We have also taken into consideration the arguments of the learned Government Pleader that in another writ petition (W.P.(C) No.14251 /2011) observation is made by the Division Bench that the State is at liberty to take action if any violation or fraud is played in accordance with the procedure. So far as the controversy raised before us, either **W.A.No.434 of 2013** **15** with regard to the forgery or fraud or violation of terms of lease, the judgment in W.P.(C) NO.14251/2012 does not give any final decision except saying the State is at liberty to proceed in accordance with law if there is fraud or forgery played by the writ petitioner. 18. In the light of above observations, we are of the opinion the arguments urged before us to set aside the judgment of the learned single Judge cannot be entertained and the appeal deserves to be dismissed. Accordingly, the writ appeal is dismissed, except with regard to imposition of costs of `10,000/-, which we vacate. 19. During the course of arguments, learned Senior Counsel as a matter of fact, pointed out that if the appeal could not be disposed of, at least an interim order to maintain the surrounding land of the bungalow measuring 22.4 acres was insisted upon. This insistence was on the ground that in the entire estate of more than 6000 acres the bungalow and the surrounding land measuring 22.45 acres is situated and except the bungalow the surrounding area is not in possession of the **16** ## **W.A.No.434 of 2013** writ petitioners since the date of resumption in 2007. On account of the same wild growth has surrounded the bungalow area and through this wild growth the other areas of the plantation has access as beyond this 22.45 acres on three sides other plantation of the writ petitioner is situated. They also brought to our notice, there are wandering leopards in and around 22.45 acres causing threat to the employees, so there has to be some time bound direction for restoration of land as directed by the learned Single Judge. The appellant-State is directed to restore the land to the respondent writ petitioner within four weeks from today. ## **MANJULA CHELLUR, CHIEF JUSTICE** **K.VINOD CHANDRAN, JUDGE** sj25/5