The Malabar Agricultural Company Limited v. District Collector, Idukki and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 4TH DAY OF FEBRUARY 2013/15TH MAGHA 1934 WA.No. 153 of 2013 IN WP(C).36413/2004 -----------------------------------------AGAINST THE JUDGMENT IN WP(C).36413/2004 DATED 31-10-2012 ........................ APPELLANT/PETITIONER: --------------------------- THE MALABAR AGRICULTURAL COMPANY LIMITED K.CHAPPATH, IDUKKI DISTRICT REPRESENTED BY ITS MANAGING DIRECTOR SRI.GEORGE THOMAS. BY ADV. SRI.RAJU K.MATHEWS ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. DISTRICT COLLECTOR, IDUKKI, PAINAVU P.O., PIN 685 603. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOREST & WILD LIFE DEPARTMENT, TRIVANDRUM, PIN 695 001. R1 & R2 BY SPL. GOVERNMENT PLEADER, JAMES KURIAN. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Manjula Chellur, C.J. & K. Vinod Chandran, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 153 OF 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of February, 2013 ## **JUDGMENT** ## **Manjula Chellur, C.J.** Heard Sri.Raju K.Mathews, learned counsel appearing for the appellant-Company and learned Special Government Pleader Sri.James Kurian appearing for the respondents. 2. It is not in dispute that the appellant Company is engaged in plantation activities and owned certain properties measuring about more than 150 Acres in Ayyappan Coil Village bearing Survey Nos.339/1 and 39/2. According to the appellant Company, taxes are regularly paid and there exists varieties of trees in the above said plantation, mainly Anjili and Jackwood trees which are used as shade trees way back in 1985. According to the appellant, the act of 1[st] respondent; seizing the timber valued about `96,000/- under the Kerala Grants and Leases(Modification of Rights) Act, 1980; (for short 'the Act') is without any power especially against the intention expressed in Clause 5 of the sale deed at the relevant point of WA No. 153 of 2013 -:2:- time under which the property was conveyed to the appellant Company. Against the said Ext.P2 proceedings, appeal was filed; which came to be disposed of and again with the interference of this Court, it was remanded back, as no opportunity was afforded to the appellant Company to show cause regarding Ext.P2. The 2[nd] respondent was directed to pass fresh orders and Exts.P6 and P9 are the orders passed by the respondent authorities negativing the contention raised by the appellant Company. 3. Aggrieved by the same, W.P.(C) No.36413 of 2004 came to be filed and the same was dismissed placing reliance on Section 4 of the Act. Aggrieved by the same the present appeal is directed wherein the appellant places reliance on the decision of a Division Bench in **State of Kerala v. Kannan Devan Hills Produce Co. Ltd.** [1998 (1) KLT 28]. As against this learned counsel for the respondent State contends that Preamble of the Act and Section 4 of the Act clearly indicate whatever be the rights acquired by parties by virtue of the lease or assignment, all that would come to an end by virtue of the present Act and as a matter of fact, the present Act was enacted only to see that no loss is caused to the Government on account of the erstwhile WA No. 153 of 2013 -:3:- State of Travancore and Cochin making certain concessions under the grant or lease document as the case may be. 4. We have gone through the documents relied upon by the appellant. Ext.P13 is the title deed under which the Company got interest or rights over the property in question. Contents of this document nowhere indicates that it was an absolute sale conveying the right, interest and title in the property to the assignee without any conditions. On the other hand it says, it was a land granted and the assignee is referred to as the 'grantee' throughout the document. Ext.P14, no doubt, is a sale deed but it was executed by grantee or assignee in favour of third parties subsequent to the grant under Ext.P13. Clause 5 is the subject matter of the present litigation which reads as under: “The grantee can appropriate to his own use within the limits of the grant, all timber, except the following, and such as may hereafter be reserved, namely, Teak, Cola Teak/Black wood, Ebony, Karoonthaly, Sandalwood. Should he carry any timber without the limits of the grant, it will be subject to payment Kooteckanom or Customs Duty, or both, as the case may be, in the same way as timber ordinarily felled. In the case of the excepted timber, the grantee is required to pay seigniorage according to the under mentioned scale: Teak, Rupees ten per WA No. 153 of 2013 ## -:4:- candy: Ebony, Rupees five per candy: Cole teak, Rupees Four per candy: Black wood,Rupees ten per candy:Karoonthaly, Rupees eight per candy: Sandalwood Rupees Twenty five per candy. The grantee is bound to deliver to the Sircar, all Ivory cardamoms and other Royalties produced in the land, and all captured elephants and he will be paid the regulated price for the articles of produce, and the regulated reward for the elephants.” 5. The argument of learned counsel for the appellant is two fold. One is placing reliance on Clause 5 and another the judgment in the case of Kannan Devan Hills(supra). Before we proceed to analyse the intention of Ext.P13 and the law laid down by the Division Bench in Kannan Devan Hills(supra), it would be just and proper to refer to the Preamble of the Act and also Section 4 which read as under: “ **Preamble** .- WHEREAS the former States of Travancore and Cochin had made grants and granted leased of lands to certain persons on normal assessment or rent: AND WHEREAS under such grants and leases the grantees and lessees had been given right to appropriate trees standing on the lands granted or leased with obligation to pay nominal valued or without any obligation for payment are any value; AND WHEREAS the assessments and rents charged on the grantees and lessees are nominal: AND WHEREAS such grants and leases, if allowed to operate without modifications, will result in heavy loss to the WA No. 153 of 2013 -:5:- Government an huge un-earned profits to the grantees and lessees: AND WHEREAS the effect of such grants and leases is that the ownership and control of large extents and many valuable trees belonging to the Government are vested in a few person without any liability to pay reasonable assessment or rent or value of trees: AND WHEREAS for the purpose of securing the principles laid down in clauses(b) and (c) of article 39 of the Constitution of India, it is necessary in the public interest that such undue profits to a few persons are utilised for the common benefit of the general public: XX XX XX XX XX **Section 4** .- Grantees and lessees to pay current seigniorage rates.- (1) Notwithdstanding anything contained in any law for the time being in force, or in any grant, lease deed, contract or agreement, or in any judgment, decree or order of any court, with effect on and from the commencement of this Act, ever grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the time being for the timber cut and removed from any land held by him under the grant or lease. (2) If any dispute arises as to the seigniorage rates for the time being in force, such dispute shall be decided by the Collector.” 6. Apart from Section itself where non-obstante clause is there, it is very clear what happens to the rights of grantees or lessees. Preamble of the Act clearly indicates the intention of the Legislature why such an enactment was brought in. The main WA No. 153 of 2013 -:6:- intention was to see that the Government would not lose its revenue by virtue of certain declarations made by the former State of Travancore and Cochin. 7. On taking note of certain conditions envisaged in the lease deed or the assignment document, when such grants and assignments without any impediment were being allowed to operate, heavy loss to the Government was occurring whereas profits were earned by the grantee or lessee as the case may be. The intention of the Legislature is very clear in the Preamble and made more so in the Section itself by introducing non-obstante clause in the Section. Therefore one has to understand Clause 5 of the document with reference to the above said enactment as whatever rights acquired by the assignee or lessee under the document are subject to enactment which has come into force under Act 16 of 1950. 8. With this, when we look at the present situation, in the judgment of the division Bench we notice that Clause 5 in that case is similar to Clause 5 in the present case as well. However, it was never brought to the notice of the Division Bench the existence of the Kerala Grants and Leases(Modification of WA No. 153 of 2013 -:7:- Rights) Act, 1980. In that view of the matter, the Division Bench, having not noticed this enactment, was justified in opining that the lessee or grantee had an absolute right on the trees if they are cut and used for the benefit of the lessee or assignee or grantee. But for the present enactment, there is no impediment or bar for us also to agree with the said opinion of the Division Bench. Therefore, we are of the opinion, in the light of the present enactment which does not confer such unbridled right to the grantee or assignee, we are afraid, the said decision cannot be followed though it is a decision of the co-ordinate Bench. In that view of the matter, we are of the opinion, none of the arguments raised by the appellant would assist him either on facts or on law. Accordingly, the appeal deserves to be dismissed and stands dismissed. **Manjula Chellur, Chief Justice.** **K. Vinod Chandran, Judge.** ttb/04/02 WA No. 153 of 2013 -:8:-