V.K. Sreenivasan and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **THURSDAY, THE 5TH DAY OF JANUARY 2012/15TH POUSHA 1933** ## **WPC.No. 17738 of 2011 (N)** ## **-------------------------** ## **PETITIONER(S) :** **-------------------------** **1. V.K.SREENIVASAN, S/O.LATE KUNJUVELAPPAN, RESIDING AT KALLIARA BUNGALOW KALLIARA ESTATE PVT.LTD. AKAMALAVARAM AND CHEMPAKAKUNDU INDUSTRIAL BELT KADUKKAMKURUM AMSOM DESOM MALAMPUZHA P.O., PALAKKAD DISTRICT.** **2. M/S.VASCO RUBBER & TYRE CO.PVT.LTD., REGISTERED OFFICE AT KALLIARA BUNGALOW AKAMALAVARAM AND CHEMPAKAKUNDU INDUSTRIAL BELT KADUKKAMKURUM AMSOM DESOM MALAMPUZHA P.O., PALAKKAD DISTRICT REP. BY ITS MANAGING DIRECTOR V.K.SREENIVASAN** **3. M/S. KALLIARA ESTATE PVT.LTD., KALLIARA BUNGALOW AKAMALAVARAM AND CHEMPAKAKUNDU INDUSTRIAL BELT KADUKKAMKURUM AMSOM DESOM MALAMPUZHA P.O., PALAKKAD DISTRICT REP. BY ITS MANAGING DIRECTOR V.K.SREENIVASAN.** **4. M/S. KALLIARA GROUP OF PLANTATION AND INDUSTRIAL ESTATE, KALLIARA BUNGALOW AKAMALAVARAM AND CHEMPAKAKUNDU INDUSTRIAL BELT KADUKKAMKURUM AMSOM DESOM MALAMPUZHA P.O., PALAKKAD DISTRICT REP. BY ITS MANAGING PARTNER V.K.SREENIVAS** **5. VASCO CANTAINER BELT & ALLIED RUBBER PRODUCTS (INDIA), KALLIARA BUNGALOW AKAMALAVARAM AND CHEMPAKAKUNDU INDUSTRIAL BELT KADUKKAMKURUM AMSOM DESOM MALAMPUZHA P.O., PALAKKAD DISTRICT REP. BY ITS MANAGING PARTNER V.K.SREENIVASA** **BY ADVS.SRI.MATHAI M PAIKADAY(SR.) SRI.JOSE THOMAS (PALA)** **...2/-** **WPC.No. 17738 of 2011 (N) -2-** **RESPONDENT(S) :** ## **--------------------------** ## **1. STATE OF KERALA** **REP. BY THE CHIEF SECRETARY GOVERNMENT OF KERALA GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM- 695 001.** **2. THE SECRETARY, DEPARTMENT OF FOREST, GOVERNMENT OF KERALA GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001.** **3. THE KERALA STATE FOREST DEVELOPMENT CORPORATION, KOTTAYAM REP. BY ITS MANAGING DIRECTOR-686 001.** **4. THE PRINCIPAL CONSERVATOR OF VESTED FORESTS THIRUVANANTHAPURAM-695 001.** **5. THE DISTRICT COLLECTOR, PALAKKAD-678 001.** **6. THE TAHSILDAR, PALAKKAD-678 001.** **7. THE VILLAGE OFFICER, MALAMPUZHA-I VILLAGE PALAKKAD-678 651.** **8. THE S.I. OF POLICE, MALAMPUZHA-678 002.** **9. THE CIRCLE INSPECTOR OF POLICE, HEMAMBIKA NAGAR P.O. OLAVAKKOD-678 002.** **10. THE SUPERINTENDENT OF POLICE, PALAKKAD-678 001.** ***ADDL. R11 IMPLEADED** ***11. K.G. KURUVILA, POWER OF ATTORNEY HOLDER OF G.P. NAIR FAMILY TRUST, KAYYALACKAKAM, KURAVANKONAM JUNCTION, THIRUVANANTHAPURAM - 695 003.** ***ADDL. R11 IS IMPLEADED AS PER ORDER DATED 05/01/2012 IN I.A.NO. 10771/2011.** **R1, R2 & R4 TO R10 BY ADV. GENERAL SRI. K.P. DANDAPANI R3 BY ADVS. SRI. V.G. ARUN SRI. T.R. HARIKUMAR R11 BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.ANTONY C. ETTUKETTIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2011 , THE COURT ON 05-01-2012 DELIVERED THE FOLLOWING:** **Mn** **...3/-** **WPC.No. 17738 of 2011 (N)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 : COPY OF THE AGREEMENT DATED 30-1-1950. EXT.P2 : COPY OF THE AGREEMENT DATED 30-12-1955. EXT.P3 : COPY OF THE AGREEMENT DATED 10-10-1960. EXT.P4 : COPY OF THE RECEIPT DATED 13-3-1969 ISSUED BY THE VILLAGE OFFICER. EXT.P5 : COPY OF THE RECEIPT DATED 13-3-1987 FOR PAYMENT ARREARS OF BASIC TAX. EXT.P6 : COPY OF THE RECEIPT DATED 28-6-1990 FOR PAYMENT OF BUILDING AND PROFESSIONAL TAX. EXT.P7 : COPY OF THE COMMISSION REPORT DATED 3-1-1966. EXT.P8 : COPY OF THE JUDGMENT DATED 19-12-1968 IN O.S.209/1965. EXT.P9 : COPY OF THE COMMUNICATION ISSUED BY SUB COURT TO THE C.I. OF POLICE. EXT.P10 COPY OF THE RECEIPT DATED 23-9-1990. EXT.P11 COPY OF THE REPORT DATED 24-9-1990 SUBMITTED BY THE CIRCLE INSPECTOR OF POLICE. EXT.P12 COPY OF THE JUDGMENT DATED 23-10-1987 IN O.P. NO. 7175/87. EXT.P13 COPY OF THE ORDER DATED 13-4-1988 OF THE DISTRICT COLLECTOR, PALAKKAD. EXT.P14 COPY OF THE NOTICE DATED 4-10-1996 OF THE TAX RECOVERY OFFICER, ERNAKULAM. EXT.P15 COPY OF THE NOTICE DATED 18-2-1992. EXT.P16 COPY OF THE ORDER DATED 24-4-1998 IN CMP NO. 13042/98 IN O.P. NO. 7437/98. EXT.P17 COPY OF THE ORDER DATED 8-4-1996 OF THE DISTRICT COURT, PALAKKAD. EXT.P18 COPY OF THE JUDGMENT DATED 5-10-2006 IN M.F.A. NO. 75 OF 204.** **(Contd...)** ## **WPC.No. 17738 of 2011 (N)** **EXT.P19 COPY OF THE ORDER DATED 8-5-86 OF THE HON'BLE SUPREME COURT OF INDIA IN WRIT PETITION NO. 715/1986.** **EXT.P20 TO P29 NIL** **EXT.P30 COPY OF THE JUDGMENT DATED 30-9-1985 IN O.S. 312/1983 OF THE SUB COURT, PALAKKAD.** **EXT.P31 COPY OF THE COMMUNICATION DATED 22-3-1990 IN E.A. NO. 785/1989 OF THE SUB COURT, PALAKKAD.** **EXT.P32 COPY OF THE RECEIPT DATED 28-6-1990 FOR PAYMENT OF BUILDING TAX AND PROFESSIONAL TAX FOR THE YEAR 1988-1990.** **EXT.P33 COPY OF THE INSPECTION ORDER DATED 7-1-1988.** **EXT.P34 COPY OF THE SUMMONS DATED 26-5-2007 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE.** **EXT.P35 COPY OF THE NEWS ITEM APPEARED IN MALAYALAMANORAMA DAILY DATED 24-1-1997.** ## **RESPONDENT'S EXHIBITS :** **EXT.R1(a) : COPY OF THE ORDER DATED 20-11-1998 IN I.A. NO. 1061/1995 IN O.S. NO. 513/93.** **EXT.R1(b) : COPY OF THE SAID JUDGMENT DATED 22-3-2001 IN O.P. NO. 3907/2001. EXT.R1(c) : COPY OF THE TRUST DEED DATED 30-3-1960.** **EXT.R1(d) COPY OF THE WRITTEN STATEMENT DATED 27-1-1966 IN O.S 209/05.** **EXT.R1(e) COPY OF THE STATEMENT DATED 30-6-76 BEFORE THE INCOME TAX ASST. COMMISSIONER, ERNAKULAM.** **EXT.R1(f) COPY OF THE AGREEMENT DATED 30-1-1950.** **EXT.R1(g) COPY OF THE AGREEMENT DATED 31-12-1955.** **EXT.R1(h) COPY OF THE AGREEMENT DATED 10-10-1960.** **EXT.R1(i) COPY OF THE RECEIPT DATED 10-10-1960 ISSUED BY THE TRUSTEE PANKU ACHAN.** **(Contd...)** ## **WPC.No. 17738 of 2011 (N)** **EXT.R1(j) COPY OF THE CLARIFICATION LETTER DATED 15-10-1961. EXT.R1(k) COPY OF THE JUDGMENT DATED 19-12-1968 IN O.S. 209/1965. EXT.R1(l) COPY OF THE COMMUNICATION ISSUED BY SUB COURT TO THE C.I. OF POLICE, PALAKKAD, RURAL (KASBA) DATED 22-9-1990 IN E.A. NO.785/90. EXT.R1(m) COPY OF THE RECEIPT DATED 23-9-1990 ISSUED BY THE PETITIONER. EXT.R1(n) COPY OF THE REPORT DATED 24-9-1990 SUBMITTED BY THE CIRCLE INSPECTOR OF POLICE. EXT.R1(o) COPY OF THE CMP NO. 3799/1990 DATED 26-11-1990. EXT.R1(p) COPY OF THE JUDGMENT DATED 23-10-1987 IN O.P. NO. 7175/87 BEFORE THE HON'BLE HIGH COURT OF KERALA. EXT.R1(q) COPY OF THE ORDER DATED 13-4-1988 OF THE DISTRICT COLLECTOR, PALAKKAD. EXT.R1(r) COPY OF THE PROCEEDINGS DATED 29-4-1988 OF THE TAHASILDAR (RR), PALAKKAD. EXT.R1(s) COPY OF THE NOTICE DATED 4-10-1996 DEMANDING A SUM OF RS. 25,30,921/- OF THE TAX RECOVERY OFFICER, ERNAKULAM. EXT.R1(t) COPY OF THE NOTICE DATED 18-2-1992 OF THE ASST. COMMISSIONER OF INCOME TAX, INVESTIGATION CIRCLE-II, ERNAKULAM. EXT.R1(u) COPY OF THE DATED 30-10-1996 IN I.T. APPEAL NO. 19, 20, 21 & 22 OF THE COMMISSIONER OF INCOME TAX (APPEAL0. EXT.R1(v) COPY OF THE SUMMONS DATED 26-5-2007. EXT.R1(w) COPY OF THE ORDER DATED 24-4-1998 IN CMP NO. 13042/98 IN O.P. NO. 7437/98. EXT.R1(x) COPY OF THE ORDER DATED 8-4-1996 OF THE DISTRICT COURT, PALAKKAD. EXT.R1(y) COPY OF THE ORDER DATED 27-4-1996 OF THE FOREST TRIBUNAL IN O.A. 41/91 AND CONNECTED O.As. EXT.R1(z) COPY OF THE JUDGMENT DATED 6-4-2000 IN MFA NO. 541/1997. EXT.R1(aa) COPY OF THE ORDER DATED 8.5.86 IN WRIT PETITION NO. 715/1986 OF THE HON'BLE SUPREME COURT OF INDIA.** **(Contd...)** ## **WPC.No. 17738 of 2011 (N)** **EXT.R2(a) COPY OF LETTER NO. CCC/PG/MISC. DATED 24.10.2007. EXT.R2(b) COPY OF COUNTER AFFIDAVIT FILED IN WP(C) NO. 33149/2007. EXT.R2(c) COPY OF THE JUDGMENT DATED 09.01.2007 IN WP(C) NO. 525/2006. EXT.R2(d) COPY OF THE GO(MS) 689/66/RD DATED 19.12.66. EXT.R2(e) COPY OF THE NOTIFICATION DATED 12.8.1987. EXT.R2(f) COPIES OF THE NOTIFICATION NO. B4-766/87 DATED 30.11.92 AND NOTIFICATIONS NO. B4-3573/01 DATED 08-05-01. EXT.R2(g) COPY OF G.O.(MS) 48/93/FORESTS DATED 18.06.93. EXT.R2(h) COPY OF THE LETTER DATED 11.10.2006 OF THE KFDC. EXT.R2(i) COPY OF COMMON JUDGMENT DATED 6.4.2000 IN MFA 836/99, 1090/96 & 541/97 OF THE HIGH COURT OF KERALA. EXT.R2(j) COPY OF THE COMMON ORDER DATED 19.4.2003 OF THE FOREST TRIBUNAL. EXT.R2(k) COPY OF THE REPORT OF THE ASST. INCOME TAX COMMISSIONER. EXT.R2(l) COPY OF THE NOTIFICATION NO. C4-21437/00 DATED 26.8.2000 OF PRINCIPAL CHIEF CONSERVATOR OF FORESTS (GAZETTE NO. 37 DATED 19.9.00, ITEM NO. 18) EXT.R2(m) COPY OF THE JUDGMENT IN WP(C) NO. 6905/2007. EXT.R2(n) COPY OF THE PROCEEDINGS ORDER DATED 9.4.2007 IN CON. CASE NO. 536/2007. EXT.R2(o) COPY OF THE ORDER DATED 29.5.2007 IN CON . APPEAL NO. 6/2007 BY DIVISION BENCH OF THIS HON'BLE COURT. EXT.R2(p) COPY OF THE JUDGMENT IN OP NO. 7437/1998. EXT.R2(q) COPY OF THE JUDGMENT IN CRP NO. 343/2005. EXT.R11(a) COPY OF THE ORDER OF INJUNCTION PASSED BY THE MUNSIFF COURT, PALAKKAD IN O.S. NO. 405 OF 2000. EXT.R11(b) COPY OF THE JUDGMENT DATED 10.1.02 IN C.R.P. NO. 2371 OF 2001 OF THIS HON'BLE COURT.** **(Contd...)** **WPC.No. 17738 of 2011 (N)** **EXT.R11(c) COPY OF THE ORDER DATED 21.06.06 IN CRL.M.C. NO. 933 OF 2004 OF THIS HON'BLE COURT.** **EXT.R11(d) COPY OF THE JUDGMENT DATED 10.07.09 IN CRL.REV.NO. 1794 OF 2009 OF THIS HON'BLE COURT. EXT.R11(e) COPY OF THE ORDER OF INJUNCTION PASSED BY THIS HON'BLE COURT IN C.R.P. NO. 1931 OF 1997 IN CMA NO. 26 OF 1997 IN O.S. NO. 292 OF 1996 DATED 27.10.1997. EXT.R11(f) COPY OF THE AFFIDAVIT FILED BY THE DFO, PALAKKAD IN C.M.A. NO. 26 OF 1997. EXT.R11(g) COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN C.R.P. NO. 1293 OF 2000 H DATED 12TH SEPTEMBER, 2000 OF THIS HON'BLE COURT. EXT.R11(h) COPY OF THE ORDER IN I.A. NO. 2971 OF 1988 IN O.S. NO. 312 OF 83 OF SUB COURT, PALAKKAD DATED 19TH NOVEMBER, 1990. EXT.R11(i) COPY OF THE ORDER DATED 12TH APRIL, 1991 IN I.A. NO. 3453 OF 1990 IN O.S 459 OF 1990 BEFORE SUB COURT, PALAKKAD.** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ.** ----------------------------------------------WP(C). No. 17738 of 2011 ----------------------------------------------Dated this the 5th day of January, 2012 ## **J U D G M E N T** ## **Pius C.Kuriakose, J.** The petitioners who claim to be owners in possession of an extent of 3300 acres of land in which they claim 24 industries employing about 500 workers have filed this writ petition seeking directions to respondents 8, 9 and 10, the Sub Inspector of Police, Malampuzha, Circle Inspector of Police and the Superintendent of Police, Palakkad to afford effective police protection to the life and property of the petitioners and their workers from possible trespass and attack from the agents/subordinates of respondents 1 to 4. The other reliefs sought for in the writ petition are directions prohibiting respondents 1 to 4 and their men and subordinates from interfering with the agricultural operations in 3300 acres belonging to the petitioners. Ancillary reliefs including a direction to respondents 5 and 6 WP(C). 17738 of 2011 -2- (District Collector, Palakkad and Tahsildar, Palakkad) to enquire into the complaint of the petitioners of theft by respondents 1 to 4 and their agents are also sought for. The first respondent is the State, second respondent is the Secretary to the Government in the Forest Department, the third respondent is the Kerala State Forest Development Corporation and the fourth respondent is the Principal Conservator of Vested Forests. The seventh respondent is the Village Officer, Malampuzha. The petitioners submit that in respect of the total extent of 3300 acres of land claimed by them, there were litigations involving themselves and respondent Nos. 1 to 4. According to them, these disputes and litigations related to 1300 acres of land out of the total extent of 3300 acres. In respect of 2000 acres there were no disputes or litigations. The petitioners allege that as a measure of vindictiveness, the forest authorities are harassing them in several ways including trespass, WP(C). 17738 of 2011 -3- misappropriation of rubber from the plantation intimidating the workers and even physical assaults. Agricultural operations and 3rd re-plantation of rubber is going on in the properties apart from the working of several industries. All these activities are allegedly being curtailed by the forest officials without authority of law. In support of their claims the petitioners are relying on various documents. Ext.P1 agreement between the first petitioner Sri. V.K.Sreenivasan and one Thachunni Nair dated 30-1-1950 is relied upon to show that with effect from 30-1-1950 the petitioner came into possession of the property and the first petitioner was managing the affairs of the estate through K.K.Karuppan and Govindan Parameswaran Nair alias G.P. Nair, Krishnankutty Nair, Kadakkayam Govinda Pillai and M.P.Chandrasekhara Pillai as his managers. It is submitted that on 31-12-1955 a partnership agreement was executed between the petitioners and others for the management of WP(C). 17738 of 2011 -4- the estate and Ext.P2 is copy of the above partnership agreement. It is pointed out that under Ext.P2 Sri. G.P. Nair was the working partner. The petitioners submit that as the Jenmom rights over the property was with Kallekulangara Sree Emoor Bhagavathy Temple on Kanam - Kuzhikkanam basis, a conference was convened by the Managing Trustee of the temple on 10-10-1960 in which Ext.P3 agreement was executed under which the Kanam - Kuzhikanam right over the entire property including the temples were given to the first petitioner for valuable consideration. It is submitted that pursuant to that, amounts were paid and registered lease deeds were executed. Since then it is the first petitioner who has been in possession as managing partner. Documents Ext. P4, P5 and P6, mostly tax receipts, are relied on in his connection. It is submitted that later the entire extent of 3300 acres was divided into various blocks of different extents. One block WP(C). 17738 of 2011 -5- extending to 1300 acres is generally called as G.P.Nair Plantations. Produced as Ext.P7 is the commissioner's report submitted in OS. No. 209 of 1965 before the Palakkad Sub Court. Ext.P8 is the copy of the judgment in that suit. It is submitted that in 1983, a few people falsely claiming under G.P.Nair Family Trust attempted to trespass into 300 acres of property and this led to the petitioner filing O.S. No. 312 of 1983 before the Palakkad Sub Court against G.P. Nair Family Trust and one Balakrishnan Nair. It is pointed out that the above suit was decreed for permanent prohibitory injunction against G.P. Nair Family Trust and Balakrishnan Nair and the decree is currently in force. When that decree was violated, execution proceedings were initiated and Ext.P9 order was passed by the execution court directing the C.I. of Police, Palakkad Rural to render police protection to the first petitioner. Pursuant to P9, trespassers were evicted and possession was re-taken by WP(C). 17738 of 2011 -6- the first petitioner. In this regard Ext.P10 receipt dated 239-1990 is relied on. Ext.P11 is the report submitted by the Circle Inspector of Police in this context. It is pointed out that this court by order in CMP. 3799 of 1990 in CRP. No. 1920 of 1990 dismissed the application filed by G.P. Nair Family Trust for restoration of possession. It is then submitted that after 1988 several suits have been filed before the Munsiff Court as well as Sub Court Palakkad claiming right over 1300 acres of property raising false contentions on the basis of bogus documents. It is alleged that those suits were filed in collusion with forest officials of Palakkad. Most of the suits were dismissed and some are pending. It is also alleged that one K.G.Kuruvila claiming as the power of attorney holder of G.P.Nair Family Trust has filed OS. No. 405 of 2000 before the Munsiff Court, Palakkad in collusion with the forest officials and the same is pending. OS. No. 398 of 1988 and OS. 831 of 1996 are mentioned WP(C). 17738 of 2011 -7- among the suits which are pending. According to the petitioners, portions of the properties in question were attached by the Income Tax Recovery officer for recovery of the personal income tax liability of the petitioner. Petitioner alone became concerned and paid the demands for salvaging the property. In this context, the petitioner relies on Ext.P12 judgment in OP. No. 7175/87 filed for quashing the auction sale which was conducted. Petitioner relies on Ext.P13 order of the District Collector to show that the property sold in auction has been reconveyed to the petitioner. Documents like Exts.P14, P15 are relied on to show that the statutory authorities under the Income Tax Act have recognised the petitioner's possession over the property. The petitioner relies on Ext.P16 order of this Court in CMP. No. 13042 of 1998 in OP No. 7437 of 1998 to show that the petitioner was permitted to carry out normal agricultural operations in the estate. The petitioner points WP(C). 17738 of 2011 -8- out that OS. No. 513 of 1993 filed by the petitioner against the Government and the forest officials seeking injunction is pending. Petitioner points out further that when the temporary injunction application filed in that suit was dismissed, the petitioner preferred CMA. No. 100 of 1993 before the District Court, Palakkad. According to the petitioner, Ext.P17 order was issued by the Palakkad District Court in the above CMA directing the police to enforce the order passed by the District Court to restrain trespass. It is pointed out that Ext.P17 is even now in currency. Petitioner then very strongly relies on Ext.P18 common judgment of the Division Bench of this Court in MFA. No. 75 of 2004 and connected MFAs. preferred by the Government and Custodian of Vested Forest and highlights that this court by the above judgment found that 67.56 hectares of land is not private forest and the Government cannot claim any right over the said property. It is pointed out that the WP(C). 17738 of 2011 -9- Government has preferred appeal to the Supreme Court challenging Ext.P18. According to the petitioners, out of the total extent of 3300 acres, only 1300 acres involved in OA. No. 41/91 and connected OAs can be said to be subject to dispute. Regarding the remaining 2000 acres there is no dispute and that the same is in the possession of Kalliara Estates Pvt. Ltd. of which the petitioner is the managing director. Nobody including respondents 1 to 4 have raised any claim over the above said 2000 acres. The petitioner also relies on Ext.P19 order order of the Supreme Court by which the Supreme Court directed the receivers to put back G.P. Nair Plantation and other tenants in possession accepting their case that 3rd parties evicted them without authorisation. It is also pointed out that the Supreme Court passed an order dated 1-2-1990 in SLP (Crl.) No. 7057 of 1989 and SLP. No. 11723 of 1988 directing the plaintiff in the suit not to put any third parties in possession of the WP(C). 17738 of 2011 -10- building and not to make any impro9vements. According to the petitioners, forest officials are trespassing into the property and threatening their employees who are staying in the estate quarters. On various dates the forest officials threatened and harassed the women employees. Respondents 1 to 4 demanded first petitioner and his employees to quit from one of the bungalows so that they can cook and eat deer flesh and consume liquor from there. Recently about six months back electricity charged barbed wire fencing is drawn at various boundaries of the property in order to harm the petitioner's workers and this amounts to an attempt to commit murder under Section 511 IPC. It is alleged that the subordinates of respondents 1 to 4 are illegally tapping rubber and cutting trees causing heavy loss of Rs.1 crore per day to the petitioner. The petitioner apprehends that the subordinates of the respondents will attack the petitioner and his workers and cause danger to WP(C). 17738 of 2011 **==> picture [21 x 9] intentionally omitted <==** their lives. On these allegations various grounds have been raised and the writ petition is filed seeking the reliefs already indicated. 2. The 8th respondent Sub Inspector of Police, Malampuzha, the station house officer having domain over the area has filed a counter affidavit wherein it is contended interalia as follows: Based on the message received from the Advocate General's Officer regarding the writ petition he conducted an enquiry about the allegations regarding ownership and possession of petitioners over the properties. The enquiry revealed that no agricultural work is carried out at the alleged estate for a long time and that no tapping of rubber trees is done since there are litigations pending regarding the ownership of the Kalliyara Estate. According to the Forest Department, the entire area in Akamalavaram which originally belonged to Emoor Bhagavathy Devaswom vested with the Government. The area is now under the WP(C). 17738 of 2011 -12- supervision and control of the Forest Department. The disputed area is inaccessible due to wild growth and wild animals. 3. The Forest Department through second and fourth respondent have filed a detailed counter affidavit. Documents Exts.R2(a) to R2(q) have been produced along with the above counter affidavit. All the claims and averments of the petitioners regarding possession and control over the properties in question is disputed. With particular reference to averments in paragraph 16 of the writ petition it is contended that by operation of law title and possession of the properties became vested in the Government. The allegation that the subordinates of respondents 1 to 7 are attempting to trespass over the property continuously from 12-12-2007 and are threatening the employees of the 1st petitioner and that latex is being tapped illegally and unauthorisedly, factory buildings, WP(C). 17738 of 2011 -13- bungalows etc. are destroyed, that the machineries are being removed are all stoutly denied. 4. To the above counter affidavit a reply affidavit has been filed by the petitioner reiterating his claims and contentions. IA. No. 10771 of 2011 has been filed by Sri. K.G. Kuruvila, power of attorney holder of G.P. Nair Family Trust seeking his impleadment as additional 11th respondent in the writ petition. According to him, it is G.P. Nair Family Trust who is in possession of the disputed property extending to 1300 acres of land in Malampuzha Village. It is submitted that an injunction order is in force against the writ petitioner in O.S. No. 405 of 2000 of the Munsiff Court, Palakkad which is now transferred to the Sub Court, Palakkad. Ext.R11(a) is copy of that injunction order. The petition filed by the writ petitioner seeking stay of that suit was dismissed. The order dismissing that petition attained finality at the hands of this Court in revision. WP(C). 17738 of 2011 -14- Ext.R11(b) is the order of this Court in CRP. 2371 of 2001. It is submitted that utilising interlocutory orders passed in suits which were subsequently dismissed the writ petitioner filed complaints against the petitioner in the I.A. Ext.R11 (c) and R11(d) judgments of this court quashing the complaints against the petitioner in the I.A. are relied on. It is submitted that against Ext.P18 common judgment the petitioner has filed SLP(Civil) No. 3436 of 2007 before the Supreme Court and the same is pending. Ext.R11(e) and (f) are relied on to show that civil disputes are pending between the petitioner in the IA and the writ petitioner and to the above IA a counter affidavit has been filed by the writ petitioner. Along with the counter affidavit documents Exts.R1(a) to R1(aa) have been produced. These documents have been produced to show that the claim raised by the petitioner in the IA over the properties is without substance and has been turned down by various WP(C). 17738 of 2011 -15- courts. To the above counter affidavit a reply affidavit has been filed by the petitioner in IA. 10771 of 2011. Along with the reply affidavit, documents Exts. R11(g) , R11(h) and R11(i) copy of judgment of this court and copies of two orders passed by the Palakkad Sub Court are produced. 5. Extensive submissions were addressed before us by Sri. Mathai M.Paikeday, Senior Counsel for the writ petitioner, Sri. K.P. Dandapani, the Advocate General for the State, Sri. M.P.Prakash, Special Govt. Pleader (Forests) for the Forest Department, Sri. N.N. Sugunapalan, Senior Counsel for the impleading petitioner and also by Sri. V.G. Arun for the 3rd respondent (The Kerala State Forest Development Corporation) in the writ petition. On the authority of some of the observations of the Supreme Court in Moran M. Baselios Marthoma Mathews II v. State of Kerala, (2007) 6 SCC 517 Mr.Paikeday, Senior Counsel for the petitioners submitted that in exceptional case like the WP(C). 17738 of 2011 -16- present one, where patent illegalities are being perpetrated by the officials of the Forest Department protection directions can be issued even if the same purports to enforce civil rights for which remedies are available in private law to the parties. Reliance was placed by Mr. Paikeday also on the observation of the Supreme Court in Howrah Mills Co. Ltd. v. MD.Shamin, (2006) 5 SCC 539 to argue that just because there are claims over a fraction of the property for the respondents, relief cannot be denied in respect to the other fraction regarding which there are no such claims. It is open to this court to examine atleast prima facie the merit of the claims in proceedings under Article 226. 6. Sri. K.P. Dandapani, learned Advocate General would argue at the very outset that the writ of mandamus which is sought for against the police officers cannot be granted for the simple reason that the petitioners never moved them for WP(C). 17738 of 2011 -17- protection before moving this court for a writ of mandamus. Strong reliance was placed by the learned Advocate General on the judgment of the Supreme Court in Director of Settlements, A.P. v. M.R.Apparao, (2002) 4 SCC 638. Police cannot be directed to meddle in civil disputes lest the same should result in calamitous consequences. Reliance was placed by the Advocate General on the judgment of a Division Bench of this Court in Suseela v. State of Kerala, 2008 (4) KLT 561. Reliance was placed by the learned Advocae General also on the judgment of the Supreme Court in P.R.Muralidharan v. Swami Dharmananda Theertha Padar, (2006) 4 SCC 501. In the teeth of the serious dispute raised in this case over the claim of title and possession raised by the petitioners in respect of the disputed properties this court will have to adjudicate on the civil rights. This court is not expected to do so in the jurisdiction under Article 226, the learned Advocate General WP(C). 17738 of 2011 -18- would argue. The learned Advocate General relied also on the judgment of the Supreme Court in Mandal Revenue Officer. Goundla Venkaiah, (2010) 2 SCC 461 and the judgment of the Supreme Court in State of Kerala and another v. Popular Estates and another, (2004)12 SCC 434, State of Karnataka v. I.S.,Nirvane Gowda, (2007) 15 SCC 744, the judgment of a Division Bench of this Court in Ranga Sesha Hills (P) Ltd. v. State of Kerala, 1991(2) KLT 49, the judgment of a Full Bench of this Court in Achuthan Pillai v. State of Kerala, 1970 KLT 838 fortifying various submissions made by him on the basis of the counter affidavit submitted by the Sub Inspector of Police and also by the various department officials. Lastly, relying on the judgment of a Division Bench of this Court in Sachidanandan K.K. v. District Collector, 2011 (2) KHC 731 the learned Advocate General submitted that ideally the petitioner should seek relief from the civil courts which are already in seizin of the WP(C). 17738 of 2011 -19- matter or from the Supreme Court which is considering appeals preferred against Ext.P18 judgment. 7. Sri. M.P. Prakash, Special Government Pleader (Forests) also addressed elaborate submissions based on the detailed counter affidavit submitted by his parties. According to him, reliefs sought for cannot be granted by this court for the various reasons stated by the Advocate General. Ideally those reliefs should be sought for from the Supreme Court which is in seizin of the civil appeals directed against Ext.P18 judgment. 8. Sri. N.N. Sugunapalan, learned senior counsel appearing for additional R-11, the impleading petitioner would endeavour to show that the additional R-11 has a strong claim of title and possession than the writ petitioners. If relief is granted to the writ petitioners the same will result in prejudice to additional R-11 in the litigations which are presently pending before competent civil courts and before WP(C). 17738 of 2011 -20- the Supreme Court. 9. We have given our anxious consideration to the submissions addressed at the Bar. We have carefully gone through the rival pleadings raised as well as through the various documents produced by the parties. The short question which arises for decision by us is whether the police protection sought for can be issued in favour of the petitioners. We have no difficulty to answer that question against the petitioners. Pleadings and the documents will show that the ownership and possession which the petitioners claims is not a settled one. The same is being adjudicated not only by the competent civil courts but also by the Honourable Supreme Court. Even the physical control over the property is claimed by the petitioner and his claim that agricultural operations are being conducted and that industrial units are functioning is under serious dispute. When these basic claims of the petitioner are WP(C). 17738 of 2011 -21- seriously disputed, this Court in the present jurisdiction will not be justified in venturing upon an adjudication into the above disputes. We decline jurisdiction and dismiss this writ petition. We make it clear that this judgment will not stand in the way of the petitioner seeking like reliefs if so advised from the civil courts which are already in seizin of the matter or from the Honourable Supreme Court itself as that court is in seizin of the civil appeals directed against Ext. P18 judgment. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(C.K.ABDUL REHIM, JUDGE)** ksv/-