The Nellimpathy Tea & Produce Co. Ltd v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`TUESDAY, THE 13[TH] DAY OF JUNE 2023 / 23RD JYAISHTA, 1945`** ## **`WP(C) NO. 28360 OF 2011`** ## **`PETITIONER:`** ``` THE NELLIMPATHY TEA & PRODUCE CO.LTD REGISTERED OFFICE, P.B.NO.4260, PANAMPILLY NAGAR P.O., COCHIN-682 036, REPRESENTED BY ITS ASSISTANT VICE PRESIDENT (HR & ADMN), MR.GILBER D'SOUZA. ``` ``` BY ADVS. SRI.JOSEPH KODIANTHARA (SR.) SRI.V.ABRAHAM MARKOS SRI.BINU MATHEW SRI.B.J.JOHN PRAKASH SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.TOM THOMAS KAKKUZHIYIL ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA, REP.BY PRINCIPAL CHIEF CONSERVATOR OF FOREST, FOREST DEPARTMENT,THIRUVANANTHAPURAM-695 014` - `2 THE CHIEF CONSERVATOR OF FORESTS (CUSTODIAN-BIO-DIVERSITY ECOLOGICALLY FRAGILE, LANDS), FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 014.` - `3 DIVISIONAL FOREST OFFICER NENMARA, PALAKKAD DISTRICT 678 508.` - `4 THE FOREST RANGE OFFICER NELLIAMPATHY RANGE,NENMARA, PALAKKAD DISTRICT 678 508.` ``` BY ADVS. ``` ``` SRI T P SAJAN, SPL GOVERNMENT PLEADER (FOREST) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**W.P(C).28360/2011**_ 2 ## J U D G M E N T Dated this the 13[th] day of June, 2023 Petitioner is a company incorporated under the Companies Act, 1956 and was holding a property, commonly known as Manalaroo Estate having an extent of 2553 Acres equivalent to 1033 hectares of land including those held under perpetual lease from the erstwhile State of Cochin and leased out for 99 years by the Government of Kerala. By virtue of Exhibits P1(a), P1(b) and P1(c) registered documents, conveyed and leased. The aforementioned land, according to the averments in paragraph 2, was being used for plantation of tea, coffee, cardamom as per the documents Exhibits P2(a) and P2(b), reflecting the work from 1962 onwards and had been paying plantation tax as per Exhibits P3, P4 and P5. Proceeding under Section 85(A) of Kerala Land Reforms Act was initiated for surrendering the land, evident from Exhibit P6. Objections, vide Exhibit P7 were filed showing that the land was under plantation. Thereafter proceedings were not finalized under the provisions of Kerala Land Reforms Act, 1963. 2. United Planters Association of Southern India vide communication dated 10.2.1998, informed that the cardamon area in _**W.P(C).28360/2011**_ 3 the estate showed heavy infestation of fly attack, root grub and Rhizom weevil and even the use of heavy amount of pesticides could not eradicate the same and suggested to leave the land fallow for about a year or two. 3. On 10.3.2000, Government of Kerala came out with Ordinance, No.8 of 2000, namely Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Ordinance, 2000 wherein, by virtue of Section 2(c), Forest was defined and two types of vesting of land was envisaged under Sections 3 and 4 of the said Act. Section 3 provides the vesting of the land on the date of commencement of the Ordinance without any compensation, whereas under Section 4 a different procedure was prescribed. 4. Vide Exhibit P9(a) dated 19.9.2000, a notification substituting the ordinance was promulgated and property at serial No.49 to 53, which is in dispute in the present writ petition, vested in the ownership of Government. 5. Jurisdiction of this Court, vide Writ Petition (Civil) No.19546/2003, was invoked for issuance of a writ in the nature of mandamus directing respondents to receive the tax, as owing to the promulgation of notification, Taxation Officers stopped accepting tax. During the pendency of the writ, an I.A. No.5946 of 2003 was _**W.P(C).28360/2011**_ 4 preferred owing to interference by the officers of Forest Department. This Court vide interim order dated 23.6.2003, Exhibit P12, permitted the petitioners to continue to do whatever it was doing hither before. 6. Section 19(3)(b) of the Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Act clarified on promulgation of the notification _suo motu_ or on application made by the owner or any person having the right of possession or enjoyment of such land and if necessary, such notification shall be revised and issued in accordance with the provisions of the Act. 7. Petitioner, invoking the provisions of Section 19(3)(b) of the Act filed an application (Exhibit P13) on 1.8.2006, before the custodian, for excluding the land comprised in Manalaroo Estate from the scope and ambit of ecologically fragile lands. Since that application was not decided, petitioner invoked jurisdiction of this Court vide W.P(C). No.18455 of 2008 seeking mandamus for adjudication of petition under Section 19 (3)(b) and also payment of rent. This Court vide judgment dated 19.6.2008 (Exhibit P14), disposed of the writ petition by directing the respondents to decide the request of the petitioner submitted under Section 19(3)(b), in accordance with law. 8. For the purpose of taking a call on the petition filed under _**W.P(C).28360/2011**_ 5 Section 19(3)(b), the custodian sought a report on all the estate included in the notification. Since the Committee was not established in accordance with the provisions of the Act, a committee consisting of five persons as per Rule 18 of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Rules 2007 was established, and obtained Exhibit P17 report on the inspection conducted on 27.12.2008. On receipt of the report (Exhibit P17), custodian gave an opportunity of hearing to the petitioner, wherein the petitioner submitted various documents like Annual yield statement, accounts statement, annual report pertaining to the years 1990-91 to 1997-98 with sketch of the area, photographs etc. After examining the evidence supplied by the petitioner and various departments, the questions posed before the custodian was, - (i) whether the land in question was an ecologically fragile land as per Section 3 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act; and - (ii) as on 2.6.2000, whether the land was under cultivation of any crop exempted as per Ecologically Fragile Lands Act. 9. The custodian submitted report on 5.12.2009 and found that there was no predominant cultivation of crops which are exempted _**W.P(C).28360/2011**_ 6 under the Act or building or permanent improvements in the land which qualify it to be excluded from the purview of the Act and then decided that the ecologically fragile land vested under Section 3(1) has to be maintained as such and no revision of the notification was called for, but found that five bits of unsurveyed lands having an extent of 182 hectares in Manalaroo Victoria Division, 4 hectares in Manalaroo Karadi Division, 10 hectares in Lilly Division, 12 hectares in Manalaroo Pothupuzha Division and 20 hectares in Manalaroo Koonampalam Division, as ecologically fragile land and ordered that the land be surveyed and demarcated. 10. It is in that background, notification (Exhibit P32) in 2011 was promulgated as a corrigendum. In the meantime, in 2010, petitioner submitted an application, O.A.10/2010 by invoking jurisdiction of the Tribunal under Section 10 of Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Act 2003. Notice was issued to the respondents and the Tribunal, in view of the notification Ext.P32 as well as other facts, appointed an Advocate Commissioner. Vide order dated 30.9.2011 (Exhibit P31), it was noticed that both sides were not in a position to identify and show the Commissioner the correct boundary and other particulars for identification of the property, evident from the interim report filed by the Commissioner, _**W.P(C).28360/2011**_ 7 and thus directed that a reasonable time be given to the Commissioner, in the peculiar circumstances and also in the light of the time limit set by the High court, to inspect the property and file the report. It was also observed that the prayer for directing the Commissioner to inspect the property and file a report on the basis of boundary description reported by Ecologically Fragile Land Committee, as prayed for, in the interlocutory application, cannot be allowed but left to the Commissioner to take into consideration the aspects mentioned in the report. Since that order was not passed, the request of the petitioner for filing a fresh report on the basis of the boundary description reported by Ecologically Fragile Committee, was rejected. Petitioner, invoked the jurisdiction of this Court vide present writ petition (Civil) No.28360 of 2011 on 24.10.2011, just few days after the order of Tribunal and sought interference by way of following prayer: “i) call for the records relating to Exhibits P9(a) & P32 notifications and quash the same by issue of a writ of certiorari or such other appropriate writ, direction or order; ii) call for the records relating to Exhibits P30 & P31 Orders and quash the same by issue of a writ of certiorari or such other appropriate writ, direction or order, _**W.P(C).28360/2011**_ 8 iii) call for the records relating to Exhibits P15 and P17 reports and P20 order of the 2[nd] respondent and quash the same by issue of a writ of certiorari or such other appropriate writ, direction or order iv) declare that no land comprised in the Petitioner's Manalaroo Estate, Alathur Taluk, Nelliampathy Village, Padagiri P.O., Palakkad is ecologically fragile under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003.” 11. Mr. Joseph Kodiyanthra, learned senior counsel appearing on behalf of the petitioner submitted that the period of five years has been prescribed for filing objection under Section 10(c) of 2003 Act, whereas the corrigendum notification Exhibit P32 (impugned) has been issued only in July, 2007, published in August, 2011. Proceedings before the Tribunal, thus virtually were rendered infructuous, in view of the notification. 11. The previous notification did not have the correct boundaries and new boundarieis have been described in the corrigendum. Though area of the land is same, the Custodian did not grant any reasonable opportunity to explain regarding the nature of land as it it was ordered to be kept fallow as per the letter of United Planters Association of Southern India in 1998 and in 2000, the notification came into being. Therefore, obviously, the land was not _**W.P(C).28360/2011**_ 9 effectively used for plantation owing to the fact that the cardamom plants were infested by white flies. 12. Initiation of the proceedings under the Kerala Land Reforms Act and dropping of the same after receipt of the objection is the testimony that Government was held bound to preserve the land of the private owners. Nothing prevented the Government to notify the land under plantation under Section (4), which would have fetched such compensation and could not have to be termed as violative of Article 300A of the Constitution of India. 13. Even after receipt of the report from the properly constituted committee, Advocate Commissioner could not identify the land. Thus, there is still ambiguity in identification of the land and in the absence of the same, Government cannot be permitted to treat the land to have been vested, without following the exact procedure as prescribed under Section 6, dealing with demarcation of the land, either to be acquired under Section 3 or 4 of the Act, thus urged this Court for allowing the writ petition by quashing the notification, Exhibit P32. 14. On the other hand, Mr. T.P. Sajan, learned Special Government Pleader (Forest) raised objection on the maintainability of the writ petition at the best, and contended that Exhibit P32 is not _**W.P(C).28360/2011**_ 10 a fresh notification. It is a corrigendum. The nomenclature given to this is ‘erratum’. ‘Erratum’, as per Websters’ dictionary is corrigendum. Petitioner is at liberty to seek amendment of the petition pending before the Tribunal, under Section 10 of the 2003 Act. It is a ploy to protract vesting of the land by indulging into Forum shopping, as the order of the Tribunal dated 7.9.2011 (Exhibit P13) rejected the request of the petitioner for appointing an independent survey over and above the survey conducted by the properly constituted committee. 15. Vires of the Act has already been upheld by the Division Bench of this Court in **Planters Forum, A Private Trust Calicut and Another v. State of Keralal and Another [2014 KHC 803]** , though it has been subjected to challenge and pending adjudication in Supreme Court of India. Even in document of conveyance, nomenclature of the land has been used as ‘Forest’. Onus heavily relied upon the petitioner to establish that the nature of land at the time of promulgation of ordinance was not ‘forest’ but ‘under plantation’. The letter Ext.P8 of 1998 only pertains to cardamom plants. There is no evidence showing the proof of coffee, tea and rubber plants and urged this court for dismissal of the writ petition. 16. I have heard learned counsel for the parties and appraised _**W.P(C).28360/2011**_ 11 the paper book. 17. Ordinance No.8 of 2000, which came into being on 10.3.2000 (Ext.P9), was substituted by a notification on 2.6.2000 called Act 21/2005, known as Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act 2003. It would be worthwhile to extract the definition of ‘Ecologically Fragile Land’ and ‘Forest Land’ defined under Section 2(b) and (c) of the Act and the same reads as under: “(b) "ecologically fragile lands" means: - (i) any forestland or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest or a vested forest or any other forestland owned by the Government and predominantly supporting natural vegetation; and (ii) any land declared to be an ecologically fragile land by the Government by notification in the Gazette under section 4. (c) "forest" means any land principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognized and declared as reserved forest, protected forest or otherwise, but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other site of residential buildings and surroundings essential for the convenient use of such buildings.” _**W.P(C).28360/2011**_ 12 18. On perusal of the aforementioned provisions, it is evident that ecologically fragile land would be any forestland or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest or a vested forest or any other land declared to be an ecologically fragile land by the Government by notification in the Gazette under section 4. 19. Whereas, Forest being a land principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognized and declared as reserved forest, protected forest or otherwise, but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other site of residential buildings and surroundings essential for the convenient use of such buildings. 20. As petitioner has raised all these pleas in a petition filed under Section 10 of the Act and pending adjudication, before the Tribunal, I would be refraining myself to delve into the merits of the arguments submitted by respective sides as it may have impact in the pending petition or may prejudice the rights of the parties. Thus, keeping the arguments noted above open and leaving the parties to raise any other arguments and place documents in support _**W.P(C).28360/2011**_ 13 thereof, I dispose of the writ petition by issuing directions to the Tribunal in the pending petition to decide the same in accordance with law, after affording an opportunity of hearing, within a period of six months. Parties are at liberty to place on record additional material or seek amendment, if they choose to do so, which shall be permitted and examined on the basis of affidavits filed by respective parties. Sd/AMIT RAWAL, JUDGE sou. _**W.P(C).28360/2011**_ 14 ## **APPENDIX OF WP(C) 28360/2011** ## PETITIONER EXHIBITS - EXHIBIT P1(a) TRUE COPY OF DOCUMENT NO.710/1118 DATED 27.6.1943 EXHIBIT P1(b) TRUE COPY OF DOCUMENT NO.745/1123 DATED 4.7.1947 EXHIBIT P1(c) TRUE COPY OF DOCUMENT NO.435/1961 DATED 2.5.1961 EXHIBIT P2(a) TRUE COPY OF COFFEE REGISTRATION DATED 22.12.1962 - EXHIBIT P2(b) TRUE COPY OF CARDAMON REGISTRATION DATED 16.12.1982 - EXHIBIT P3 TRUE COPY OF PLANTATION TAX NOTICE DATED 30.3.1983 OF ASSESSMENT AND DEMAND FOR THE ASSESSMENT YEAR 1982-83 ONWARDS - EXHIBIT P4 TRUE COPY OF LETTER DATED 18.1.2000 ISSUED BY THE TAHSILDAR, CHITTOOR - EXHIBIT P5 TRUE COPY OF ORDER DATED 22.9.2008 ISSUED BY THE TAHSILDAR, CHITTOOR DEMANDING PLANTATION TAX FOR TE YEAR 2008-09 - EXHIBIT P6 TRUE COPY OF THE DRAFT STATEMENT DATED 10.3.2000 UNDER SECTION 85(A) OF THE LAND REFORMS ACT - EXHIBIT P7 TRUE COPY OF PETITIONER’S REPLY DATED 12.6.2000 TO EXHIBIT P6 DRAFT STATEMENT - EXHIBIT P8 TRUE COPY OF RELEVANT PAGES OF “AGRICULTURAL INSECTS PESTS OF THE TROPICS AND THEIR CONTROL” - EXHIBIT P8(a) TRUE COPY OF LETTER DATED 10.02.1998 ISSUED BY THE Director, UNITED PLANTER’S ASSOCIATION OF SOUTHERN INDIA (UPASI) EXHIBIT P9 TRUE COPY OF KERALA FOREST (VESTING & MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) ORDINANCE NO.8/2000 _**W.P(C).28360/2011**_ 15 - EXHIBIT P9(a) TRUE COPY OF NOTIFICATION NO.C4-21437/2000 DATED 26.08.2000 IN THE KEKRALA GAZETTE Vo.XLV - EXHIBIT P10 TRUE COPY OF ORDER DATED 7.6.2001 OF THE HON’BLE HIGH COURT OF KERALA IN O.P No.17034/2001 - EXHIBIT P11 TRUE COPY OF LETTER DATED 12.07.2001 ISSUED BY THE SECRETARY TO GOVERNMENT TO THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, THIRUVANANTHAPURAM - EXHIBIT P12 TRUE COPY OF ORDER DATED 23.06.2003 OF THE HON’BLE HIGH COURT OF KERALA IN WP(C).19546/2003 - EXHIBIT P13 TRUE COPY OF APPLICATION DATED 1.8.2006 FILED BY THE APPLICANT BEFORE THE 2[ND] RESPONDENT. - EXHIBIT P14 TRUE COPY OF JUDGMENT DATED 19.6.2008 PASSED BY THE HON’BLE HIGH COURT OF KERALA IN WP(C).18455/2008 - EXHIBIT P15 TRUE COPY OF REPORT OF THE INSPECTION CONDUCTED BY THE ECOLOGICALLY FRAGILE LALD COMMITTEE ON 7.2.2007 - EXHIBIT P16 TRUE COPY OF DETAILED SUBMISSION DATED 30.12.2008 FILED BY THE APPLICANT BEFORE THE ECOLOGICALLY FRAGILE LAND COMMITTEE. - EXHIBIT P17 TRUE COPY OF REPORT OF THE INSPECTION HELD ON 27.12.2008 FILED BY THE COMMITTEE CONSTITUTED U/S.18 OF THE KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) RULES,2007 - EXHIBIT P18 TRUE COPY OF WRITTEN SUBMISSION DATED 17.09.2009 WITHOUT EXHIBITS FILED BY THE PETITIONER BEFORE THE 2[ND] RESPONDENT - EXHIBIT P19 TRUE COPY OF LETTER DATED 2.5.2009 SENT BY THE DIVISIONAL FOREST OFFICER,NEMMARA TO THE SUB REGISTRAR, KOLLANKODE, ALATHUR, WADAKKANCHERRY, NEMMARA, KUZHALMANNAM AND KODDUVAYOOR AND TO THE TAHSILDAR, CHITTOOR AND ALATHUR TALUKS. - EXHIBIT P20 TRUE COPY OF ORDER NO.EFL 5-413/2006 DATED 5.12.2009 OF THE 2[ND] RESPONDENT _**W.P(C).28360/2011**_ 16 - EXHIBIT P21 TRUE COPY OF APPEAL NO.10/2020 DATED 23.2.2010 FILEDL BY THE PETITIONER BEFORE THE TRIBUNAL CONSTITUTED UNDER SECTION 10 OF KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) ACT, 2003 - EXHIBIT P22 TRUE COPY OF TRUE COPY OF APPLICATION NO.73/2010 DATED 18.6.2010 FILED BY THE PETITIONER - EXHIBIT P23 TRUE COPY OF ORDER DATED 2.9.2010 OF THE TRIBUNAL IN I.A.73/2010 - EXHIBIT P24 TRUE COPY OF INTERIM REPORT DATED 24.12.2010 FILED BY THE ADVOCATE COMMISSIONER - EXHIBIT P25 TRUE COPY OF INTERIM APPLICATION NO.8/2011 DATED 22.1.2011 FILED BY THE 3RD RESPONDENT - EXHIBIT P26 TRUE COPY OF COUNTER AFFIDAVIT DATED 26.2.2011 DATED 26.2.2011 FILED BY THE PETITIONER TO EXHIBIT P25 APPLICATION - EXHIBIT P27 TRUE COPY OF INTERIM APPLICATION NO.24/2011 DATED 26.2.2011 FILED BY THE PETITIONER HEREIN - EXHIBIT P28 TRUE COPY OF COUNTER AFFIDAVIT DATED NIL FILED BY THE 3RD RESPONDENT TO EXHIBIT P27 APPLICATION. - EXHIBIT P29 TRUE COPY OF JUDGMENT DATED 7.6.2011 IN WP(C)15274/2011 - EXHIBIT P30 TRUE COPY OF ORDER DATED 7.9.2011 OF THE TRIBUNAL IN I.A. NO.24 OF 2011 IN O.A. NO.10/2010 - EXHIBIT P31 TRUE COPY OF ORDER DATED 30.9.2011 OF THE TRIBUNAL IN I.A N.8/2011 IN O.A. NO.10/2010 - EXHIBIT P32 TRUE COPY OF ERRATUM NOTIFICATION DATED 25.7.2011 PUBLISHED IN THE KERALA GAZETTE DATED 16.6.2011. RESPONDENT’S EXHIBITS EXHIBIT-R3(a): TRUE COPY OF COCHIN GOVERNMENT GAZETTE NOTIFICATION DT.8.5.1909. _**W.P(C).28360/2011**_ 17 EXHIBIT-R3[b]: TRUE COPY OF NOTIFICATION DATED 11.02.1933 - EXHIBIT-R3[c] TRUE COPIES OF LEASE DEEDS. SERIES: EXHIBIT-R3[d]: TRUE COPY OF THE ORDERS OF THE DISTRICT, COLLECTOR, PALAKKAD - EXHIBIT-R3[e]: TRUE COPY OF DETAILS OF OFFENCES BOOKED AGAINST THE PETITIONER COMPANY. - EXHIBIT-R3[f]: TRUE COPY OF FORM I SUBMITTED BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE ALATHUR IN OR 2/11. - EXHIBIT-R3[g]: TRUE COPY OF FORM A1 SUBMITTED BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE ALATHUR IN OR 2/11. - EXHIBIT-R3[h]: TRUE COPY OF THE ERRATUM NOTIFICATION PUBLISHED IN KERALA GAZETTE DATED 16.08,2011. EXHIBIT-R3[i]: TRUE COPY OF THE JUDGMENT DATED 11.10.2006 IN C.O.C.1559 OF 2005(S) IN 0.P.NO.20048/2001