HC upholds govt's takeover of estate
KOCHI: The Kerala High Court has upheld state government’s decision to take over the 486.63-acre Miraflores Estate in Nelliampathy.
The land that was notified as a reserve forest and initially leased out in the 1930s for cultivation of coffee, tea, and spices was allegedly being used by the present lease holders for tourism purposes. Government had ordered resumption of the leased land in June 2011.
Cancellation of the lease was upheld by a division bench comprising chief justice Ashok Bhushan and justice PR Ramachandra Menon after considering an appeal filed by the state government.
Through five lease deeds executed between 1933 and 1947, a total of 507.6 acres was leased out for cultivation by the government. The original lessees transferred the leased land in favour of different persons from time to time. Through three purchase deeds registered on April 26, 1994, 486.63 acres was purchased by New World Investment Pvt Ltd and Malabar Dairy Farms Pvt Ltd of Nelliampathy from Rajagiri Rubber and Produce Company Ltd. In the sale deeds, the vendors claimed to be absolute owners having perpetual leasehold right of coffee and cardamom estates.
Forest department noticed in 2002 that the leased land is being used for plantation tourism and asked the lessees not to put the land to any other use than for cultivation. In January 2008, the government asked the lessees to show cause for not terminating the lease and an explanation was submitted in March. On June 24, 2011, government ordered resumption of the entire 486.63 acres of leased land. The ‘owners’ then approached the high court.
Government contended at the high court that leased land could not have been sold to the petitioner, New World Investment Pvt Ltd, as the original lessee had no right of alienation of the property. The petitioner was using forest land for non-forest use, by running a tourist resort named Tropical Hill Resort, which is prohibited under Kerala Forest Act of 1980. Petitioner has converted the entire area into resorts, parks, dairy farms, etc in violation of law, special government pleader MP Madhavankutty argued. The counsel for the company submitted that the 1980 Act could not have retrospective operation.
It was held by the court that the area in question was declared as reserve forest as per notifications issued by the diwan and the law as existed then and introduced later on prohibits right of any description upon reserved forest except through a grant or contract in writing by the government.
Cancellation of the lease by the government was fully in accordance with the provisions of the 1980 Act and cannot be faulted, the division bench held.
HERE'S THE JUDGMENT:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
THURSDAY, THE 19TH DAY OF NOVEMBER 2015/28TH KARTHIKA, 1937
WA.NO. 89 OF 2011 ( ) IN OP.35736/2002
----------------------------------------
AGAINST THE JUDGMENT IN OP 35736/2002 DATED 11-08-2010
APPELLANT(S)/RESPONDENTS IN O.P.:
1. THE STATE OF KERALA REP.BY SECRETARY,
FORESTS & WILDLIFE DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM.
2. THE CHIEF CONSERVATOR OF FORESTS (P),
THIRUVANANTHAPURAM.
3. THE CONSERVATOR OF FORESTS,
OLAVAKKODE, PALAKKAD.
4. THE DIVISIONAL FOREST OFFICER,
NEMMARA DIVISION, NEMMARA, PALAKKAD.
5. THE FOREST RANGE OFFICER,
NELLIAMPATHY RANGE, PALAKKAD.
BY SPECIAL GOVERNMENT PLEADER SHRI M.P. MADHAVANKUTTY
RESPONDENT(S)/PETITIONER:
NEW WORLD INVESTMENT (P) LIMITED,
MALABAR DAIRY FARMS (P) LIMITED, NELLIYAMPATHY
PALAKKAD REPRESENTED BY ITS DIRECTOR, S.SUNILKUMAR.
R,R BY ADV. SRI.N.N.SUGUNAPALAN (SR.)
R, BY ADV. SRI.N.J.MATHEWS
R,R BY ADV. SRI.K.MOHANAKANNAN
R BY SRI.M.P.ASHOK KUMAR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2015
ALONG WITH W.P(C) NO.18339 OF 2011, THE COURT ON 19.11.2015
DELIVERED THE FOLLOWING:
"C.R"
ASHOK BHUSHAN, C.J.
and
P.R. RAMACHANDRA MENON, J.
====================================
W.A. No.89 of 2011
&
W.P(C) No.18339 of 2011
====================================
Dated this the 19th day of November, 2015
J U D G M E N T
Ashok Bhushan, C.J.
Writ Petition as well as the Writ Appeal have been
heard together and are being decided by this common
judgment.
2. Facts and pleadings in W.P(C) No.18339 of 2011 shall
suffice in deciding the Writ Petition as well as the Writ
Appeal. Parties shall be referred to as described in the Writ
Petition.
3. The Cochin State had enacted "The Cochin Forest Act
III of 1080 ME" (for short, "Regulation III of 1080") for making
better provision for protection and management of the forest
in the Cochin State. Regulation III of 1080 was passed on
12.03.1905. As per the Regulation, the Diwan was
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 2 :-
empowered to constitute any area as reserve forest.
Section 8 contemplated that, whenever it is proposed to
constitute any area as reserve forest, the Diwan shall
publish a Notification in the Sirkar Gazette specifying the
details as mentioned under Section 8 of the Regulation. A
Notification is contemplated in Section 12 specifying the limit
of forest which is intended to be reserved and declare the
same to be reserve forest from a date to be fixed by the said
Notification. Notification dated 08.05.1909 under Section 12
of Regulation III of 1080 declared the reserve forest
including Nelliyampathy block with details of boundaries
mentioned therein. Several coffee estates were treated as
enclosures within the State reserves and at serial No.18 of
the coffee estate, Valvachan area of 507 Acres, 68 cents
was also included. By a subsequent Notification dated
11.02.1933 issued under Section 12 of the Regulation III of
1080, reserve forest was declared, whereby block No.9 of
Nelliyampathy, as described in the schedule, included
Valvachan area of 507.68 Acres as reserve forest. A lease
deed dated 19.05.1933 was executed by the Diwan of Cochin
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 3 :-
representing the Cochin Government in favour of one Cecil
Ralpt Townshend Congreve Esq. of 82.45 Acres as Miraflores
Estate. The lease deed contemplated that for purposes of
lease, the Conservator of Forests shall be regarded as the
superior authority in matters relating to the lease forest.
Lease rent was also fixed. Lease was granted for purposes
of cultivation of coffee, tea, cardamom and other products.
Another area of 126.50 Acres was leased out on 04.09.1936
by the Conservator of Forests representing the Cochin
Government in favour of persons as mentioned above on the
premium and rent as fixed. The lease was again for purposes
of cultivation of coffee, cardamom and other products except
tea and rubber. Similarly by another lease dated 04.09.1936
93 Acres of Miraflores estate was leased out by the
Conservator of Forests in favour of the persons named above
on premium and rent for cultivation of coffee, cardamom and
other products except tea and rubber. Another 27 Acres was
leased out on 03.02.1941 by the Conservator of Forests on
behalf of the Cochin Government in favour of Miraflores
Estate Ltd., a company for cultivation of crops on the rent as
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 4 :-
fixed in the deed. Another lease dated 24.09.1947 an area
of 157.68 Acres, namely, Valvachan Estate was leased out
by the Chief Secretary to the Government on behalf of the
Government in favour of K.M.Velayudh Panicker for
cultivation of crops on rent as fixed in the deed. By the
aforesaid 5 leases a total extent of 507.68 Acres was leased
out between the period from 1933 to 1947. The lessees
transferred the leased land in favour of different persons
from time to time. Petitioner purchased the entire area by
sale deeds bearing Nos.494, 925 and 926 dated 26.04.1994
from Rajagiri Rubber and Produce Company Ltd. covered by
the above five leases. Copy of the above lease deeds have
been brought on record as Exts.P1, P1(a), P1(b), P1(c) and P1
(d) whereas sale deeds have been brought on record as
Ext.P2, P2(a) and P2(b). In the sale deeds the vendors
claimed to be absolute owners having perpetual leasehold
right of coffee and cardamom estates.
4. Sale deeds were registered on the basis of
directions issued by this Court in O.P. No.3953 of 1994.
Petitioner paid lease rent and tax from time to time. The
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 5 :-
Divisional Forest Officer by letter dated 21.11.1996 issued
notice to the petitioner directing him to inform the
willingness to conduct a comprehensive survey, demarcate
boundaries and prepare sketches. Petitioner sent a reply
that it is ready to bear the expenses of survey. Petitioner
was informed that matter has been taken up with the higher
authorities and petitioner shall be accordingly informed.
Various cases were booked against the petitioner regarding
removal of boundary stones, encroachment, etc. Petitioner
filed O.P. No.35736 of 2002 seeking a direction to conduct
survey and further restraining the respondents from
attaching any portion of the plantation including the
Bungalow and further to direct the respondents not to
unnecessarily harass the petitioner before the final
determination of the exact boundaries. Writ Petition was
disposed of on 12.08.2000 directing the respondents to
conduct a comprehensive survey. In the year 2002 the
Forest Department having noticed that petitioner is using
the estate for entertaining tourists informed that the
petitioner is not entitled to undertake any activities in the
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 6 :-
area other than those mentioned in the lease deed. Letter
dated 25.11.2002 was issued by the Conservator of Forests in
the above context. Challenging the letter dated 25.11.2002,
petitioner has filed O.P. No.38847 of 2002 where a direction
was sought to the Conservator of Forests or other Officers
not to interfere in the conduct of plantation tourism by the
petitioner in the Miraflores Estate. Initially an interim order
was passed in favour of the petitioner which came to an end
on 19.11.2004. Notice dated 04.01.2008 had been issued by
the State Government to the petitioner asking it to show
cause as to why the lease in respect of whole area of 486.63
Acres should not be terminated as contemplated in the
aforesaid lease. Several grounds for taking action were
mentioned in the show cause notice. Petitioner submitted
explanation to the show cause notice dated 14.03.2008. On
04.12.2010 the petitioner was also personally heard by the
Government. Order dated 24.06.2011, Ext.P10 was passed by
the Government by which the Government decided to order
resumption of an area of 486.63 of the leased forest.
Challenging the order dated 24.06.2011 the Writ Petition
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 7 :-
has been filed by the petitioner praying for the following
reliefs:
(i) To issue a writ of certiorari or appropriate writ,
order or direction calling for the records leading to Ext.P10 and
quash the same;
(ii) To issue a writ of mandamus or any other
appropriate writ or order or direction directing the respondents not
to interfere in any manner in possession and enjoyment of the
property covered by Exs.P1 to P1(d).
(iii) To issue a writ of mandamus or any other
appropriate writ or order of direction permitting the petitioner to
enjoy and maintain the Estate covered by Exts.P1 to P1(d)
including the office store and bungalow without any interference
or hindrance by the respondents and their men and and orders
may be passed accordingly.
(iv) To declare that the cancellation of lease by Ext.P10
order is non-est in the eye of law.
(v) To grant such other relief as this Honourable Court
deem fit to grant in the interest of justice."
5. Counter affidavit has been filed by the State
Government opposing the Writ Petition. In the counter
affidavit it has been pleaded that the lands purchased by the
petitioner on 26.04.1994 were the lands comprised in
reserve forest which were leased out between 1933 to 1947.
Leased land could not have been sold to the petitioner.
Provisions of the Forest Conservation Act, 1980 (hereinafter
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 8 :-
referred to as "the 1980 Act") are applicable and the
petitioner was using the forest land, also for non-forest
purpose, i.e., tourism resort. The original lessee had no right
of alienation of the Estate. Government have rightly
initiated action to cancel the lease conforming to the
Kerala Forest Act, 1961 (hereinafter referred to as "the 1961
Act") and the 1980 Act. An Order dated 10.01.2011 was
issued by the Government stating for not accepting any
tax from the estates as the State proposed to cancel the
lease. Use of forest land for non-forest purpose is
prohibited by the 1980 Act. Petitioner has converted the
entire area into resorts, parks, dairy farms, etc., violating
the provisions of the 1980 Act. The area was inspected and
report was submitted mentioning that the property was used
for non-forest purpose by running resorts, etc. Reply was
also filed by the petitioner. It was pleaded by the petitioner
that the 1980 Act has no retrospective operation and sale
deed was registered in favour of the petitioner under orders
of this Court. It was further pleaded that there being
provisions for amending the lease deeds, application was
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 9 :-
submitted to the Government.
6. Writ Appeal No.89 of 2011 has been filed by the
State Government against the judgment of the learned
Single Judge dated 11.08.2010 in O.P. No.35736 of 2002.
O.P.No.35736 of 2002 was filed by New World Investments
(P) Limited and Malabar Dairy Farms (P) Limited praying for
the following reliefs:
"(i) to issue writ of mandamus or other appropriate order
directing the respondents 2 to 5 or other concerned officers to
conduct a survey under the Kerala Survey and Boundaries Act in
the Forest Land to identify the Boundary of 486.63 acres of
plantation in Nelliyampathy Forest, Nenmara Division as
described in Exts.P1 to P3 documents.
(ii) to issue a writ of prohibition or any other writ or order
restraining the respondents 2 to 5 from attaching any portion of
486.63 acres of the plantation including the Bungalow No.N.P. VI
387 and two workmen quarters attached to it situated in the
Nelliampathy Grama Panchayat owned by the petitioner company.
(iii) to issue a writ of mandamus or any other writ, order or
direction directing the respondents 2 to 5 to supply copies of
preliminary report in respect of 486.63 acres comprised in the
Estate if any to the petitioner forthwith.
(iv) to issue a writ of mandamus or any other writ, order or
direction directing the forest authorities or their subordinates not
to unnecessarily harass the petitioner before the final
determination of the exact boundaries of the 486.63 acres
comprised in the Estate"
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 10 :-
Writ Petition was disposed of by a learned Single Judge by
judgment dated 11.08.2010 issuing direction to the
respondents to conduct comprehensive survey. The learned
Single Judge also directed the respondents to pay
Rs.25,000/- as costs to the petitioner within one month.
The State has filed by the appeal against the said judgment.
A Division Bench of this Court by order dated 27.01.2011
stayed the said judgment in appeal.
7. We have heard Shri N.N. Sugunapalan, learned
Senior Advocate for the petitioner and Shri
M.P.Madhavankutty, learned Special Government Pleader on
behalf of the State.
8. Learned Senior Advocate for the petitioner in support
of the Writ Petition contended that there was no prohibition
for alienation of leased land in favour of the petitioner as per
the terms and conditions of the lease deeds. It is submitted
that the original lessee had transferred the land comprised in
the lease deeds from time to time which was purchased by
the petitioner from a subsequent transferee of the original
lessee. The sale deed in fact was got registered under an
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 11 :-
order passed by this Court dated 17.03.1994 in O.P. No.3953
of 1994. Forest area was already cleared and plantation was
undertaken before enforcement of the 1980 Act and hence
provisions of the 1980 Act have no application. It is further
contended by the learned Senior Advocate for the petitioner
that leases were separate leases and hence, even if any
violation was alleged regarding using portion of the area for
tourism, the State could have cancelled only that portion of
the lease, where allegation was made for use of the land for
non-forest purpose and that the lease in respect of the entire
area was not liable to be cancelled. The areas which were
leased out originally between 1933 to 1947 were only
'enclosures' to reserve forest and could not have been
regarded as 'reserve forest'. Terms and conditions of the
lease clearly provided that the expression 'lessee' shall
include heirs, administrators, and assignees and hence the
lease deeds clearly contemplated assignment in favour of
others. Thus there was no prohibition in transferring the
leasehold rights. No objection has been raised by the
Forest Department at the time of registration of sale deed in
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 12 :-
the year 1994 in favour of the petitioner and further the
deed having been registered under orders of this Court on
17.03.1994, it is not open to the respondents to contend that
the sale deed is void or inoperative. Petitioner has been
paying lease rent and taxes and hence the respondents
cannot at this stage say that said sale was impermissible.
For transfer of the estate, no restriction under the 1980 Act
has been provided for.
9. Learned Special Government Pleader refuting the
submissions made by the learned counsel for the petitioner
contended that the area comprising 486.63 Acres which has
been purchased by the petitioner in the year 1994 and which
was leased between 1933 to 1947 is comprised in reserve
forest constituted by the Diwan under the Regulation III of
1080 and by further Notification dated 11.02.1933 under
Section 12 of Regulation III of 1080, the land in question is
included in the forest area. Petitioner was put to notice by
letter dated 25.11.2002 that it is using the land for non-
forest purposes and why the lease be not cancelled.
Petitioner immediately rushed to this Court by filing O.P.
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 13 :-
No.38847 of 2002 challenging the notice where initially an
interim order was obtained which came to an end on
19.11.2004. Petitioner throughout entertained tourists and
used the land for non-forest purposes. Even after the interim
order came to an end, they continued to use the land for
entertaining tourists which was found on inspection and
reported by the forest Officials. Section 22 of the 1961 Act
contains a prohibition for transferring the land. Land could
have been devolved only by succession and grant or
contract is contemplated only by a person who was
entitled for issuing such grant or contract at the time of
declaration of the land as reserve forest. The 1980 Act
prohibits use of forest land for non-forest purpose.
Petitioner having violated the terms and conditions of the
lease and the provisions of the 1961 Act and the 1980 Act,
the lease has rightly been cancelled. The State had given
valid reasons in the order impugned in the Writ Petition.
Since no tenable grounds have been made out in the Writ
Petition, the Writ Petition deserves to be dismissed.
10. Learned counsel for the parties have relied and
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 14 :-
referred to various decisions of the Apex Court and this Court
which we shall notice while considering the submissions in
detail.
11. From the pleadings on record and submissions of
the learned counsel for the parties, the following are the
issues which arise for consideration.
I. Whether the land in question, i.e. 486.63
Acres leased out by five lease deeds between
1933 to 1947 and purchased by the petitioners
by three sale deeds dated 26.04.1994 from the
subsequent purchasers are part of reserve
forest?
II. Whether the respondents are estopped from
raising any objection regarding sale deeds dated
26.04.1994 as the sale deeds having been
registered under the orders of High Court dated
17.03.1994 in O.P. No. 3953 of 1994 ?
III. Whether the transfer of leased area in
favour of petitioners through sale deeds dated
26.04.1994 executed by subsequent purchasers
from the original lessee is void in view of Section
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 15 :-
22 of the Kerala Forest Act, 1961 ?
IV. Whether the order of the State Government,
cancelling the leases, in the facts of the present
case, could also be supported on the ground of
violation of terms and conditions of the lease
deed ?
V. Whether the petitioners violated the
provisions of the Forest (Conservation) Act,
1980 by using the leased land comprised in
reserve forest for running 'tourist resort' which
is a non-forest activity ?
VI. Whether, on the contention of the petitioners
that they were running a tourist resort only in a
part of the leased property, the State was
justified in cancelling the entire lease ?
ISSUE NO.I
12. In the Cochin State, the State exercised control
over the Forest in accordance with the Cochin Forest Act,
(Regulation III of 1080). The preamble of the Act indicates
that the enactment was made to protect and manage the
forest in the Cochin State. Under Section 7 the Diwan was
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 16 :-
empowered to constitute any area as reserved forest in the
manner provided. Section 8 dealt with procedure for
constituting an area as reserved forest. Section 11 provided
for the steps to be taken by the Forest Settlement Officer
which included consideration of various claims in the area.
Section 12 provided for issuance of notification declaring
reserved forest. Section 12 of Regulation III of 1080 reads as
follows:
"12. When all proceedings prescribed by section eleven
have been taken, and all lands (if any) to be included in the
proposed forest which the Forest Settlement Officer has elected to
acquire under the Land Acquisition Act have become vested in the
Government under section fifteen of that Act and all rights of way, or
rights to water, pasture or forest produce have been adjudicated
upon as provided in section eleven;
The Diwan may publish a notification in the Government
Gazette, specifying the limits of the forest which it is intended to
reserve, and declaring the same to be reserved from a date to be
fixed by such notification. From the date so fixed, such forest shall
be deemed to be a reserved forest."
13. The State in the counter affidavit has brought on
record two notifications issued under Section 12 of
Regulation III of 1080. By notification dated 08.05.1909,
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 17 :-
under Section 12, the Nilambur Reserved Forest was
constituted. The notification also mentioned about various
coffee estates which were to be treated as enclosures within
the State reserves. An area of 507.60 Acres of Valvachan
Coffee Estate was also mentioned therein. By a subsequent
notification dated 11.02.1933 issued under Section 12 of the
Regulation III of 1080 various estates were declared as
reserve forests which also includes Valvachan Estate of
507.60 Acres. The original leases were executed by the
Diwan of Travancore-Cochin/Conservator of Forests between
the period 1933 to 1947. The terms and conditions of all 5
leases are similar. Clause 5 of the lease deed clearly
indicates that what has been leased to the lessees was forest
and Conservator of the Forest was regarded as the superior
authority in matters relating to leased forest. Clause 5 of the
lease deed is as follows:
"5. For purpose of this lease the Conservator of Forests
shall be regarded by the Lessees as a Superior authority in matters
relating to their leased forests and if in his opinion any injury of
permanent nature is done to the land whereby the land becomes
unfit for the growth of valuable timber, the Lessees shall be liable to
pay a fine of Rs.10/ per acre."
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 18 :-
14. Learned counsel for the petitioner submitted that
since the area in question was only an 'enclosure' of the
reserve forest, as is clear from the Notification dated
08.05.1909, the area cannot be treated as reserve forest.
The above submission has no substance. It is sufficient to
refer to the subsequent notification dated 11.02.1933 (Ext.R2
(b)) which is to the following effect:
"THE COCHIN GOVERNMENT GAZETTE
PUBLISHED BY AUTHORITY
Vol.XVII Ernakulam, Saturday, 29th Makaram 1108 (11th
February
1933) No.19
PART I NOTIFICATION BY GOVERNMENT
Revenue Department
NOTIFICATION
No.65 : The Diwan hereby declares under the provisions of
section 12 of the Cochin Forest Regulation III of 1080, as amended by
Regulations VII of 1093 IV of 1096 and I of 1100, the areas, the
boundaries of which are described in the schedule below "Reserved
Forest" under the said Regulation.
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 19 :-
No. and Names of the portions Extent
Name of of the abandoned AC C Remarks
Block estates to be re-
afforested
Block No.9 Alexandria 751 75 The surveyed,
Nelliampathi 45 demarcated and
es Victoria 619 mapped boundary of the
(Unsurveyed Monkwood 232 82 relinquished area of
) Beatrice 279 94 Alexandria, Victoria,
Monkwood, Beatrice,
Pullala (East & West) 239 99 Pullala (E & W),
Valuvachan 507 68 Valuvachan,
Polayampara,
Polayampara 794 63 Pothupara, Manalaroo,
Pothupara 185 72 Padagiri and Riffle Butts
estates of the
Manalaroo 459 95 Nelliampathy
Padagiri 6 09 Coffee estates
Riffle Butts 31 65
--------------------
4109 67
Office of the Diwan of Cochin
Revenue Department T.V. Kasthuri Ranga Ayyer
(Separate Revenue) Ag. Diwan of Cochin.
5th February 1933
23rd Makaram 1108"
15. It is not the case of the parties that at any point of
time the estate was taken out from the reserved forests.
Shri N.N.Sugunapalan, learned Senior Advocate appearing
for the petitioner submitted that the enclosures to the
reserve forest cannot be treated as reserve forest. He
submitted that Notification dated 08.05.1909 which has
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 20 :-
been brought on record as Ext.R2(a) mentions coffee estates
as enclosures within the State reserve. He submitted that
the enclosures within the State reserve are not reserve
forest. It is not necessary to dwell any further upon the
above submission in view of the subsequent Notification
dated 11.02.1933 issued under Section 12 of the Regulation
III of 1080 filed as Ext.R2(b). The above Notification has
already been extracted which clearly stated that the Diwan
thereby declared under the provisions of section 12 of the
Cochin Forest Regulation III of 1080, as amended by
Regulations VII of 1093 IV of 1096 and I of 1100, the areas,
the boundaries of which were described in the schedule given
below as "Reserved Forest".
16. Notification dated 11.02.1933 thus clearly
declared the area as reserve forest which no longer remains
as enclosure in the State reserve. Thus in any view of the
matter, by subsequent Notification dated 11.02.1933 the
area in question has been declared as reserve forest under
Regulation III of 1080 and at no point of time any Notification
has been issued taking out the said area out of the reserve
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 21 :-
forest. It is further relevant to note that in the original lease
deeds from the year 1933 to 1947 the area in question was
described as forest area. We thus conclude that the area in
question which has been purchased by the petitioner by sale
deeds dated 29.04.1994 is comprised in 'reserve forest'. The
Issue is answered accordingly.
ISSUE NO.II
17. One the of the submissions raised by Shri
N.N.Sugunapalan is that the sale deed dated 26.04.1994 was
got registered under the direction of this Court dated
17.03.1994 in O.P. No. 3953 of 1994, hence the State cannot
raise any objection regarding the validity of the sale deed on
any ground. It is submitted that the State is now estopped
from raising any objection against the sale deed dated
26.04.1994. The registering authority did not register the
sale deed when it was presented by the petitioner and hence
they had approached this Court by filing O.P. No.3953 of
1994, wherein a direction was issued by the High Court to
register the sale deed. The mere issuance of direction by this
Court to register a document under the Registration Act,
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 22 :-
1908 does not mean that the High Court has pronounced
about the validity or otherwise of the document which was
directed to be registered. The registration of a document has
a different consequence and mere direction of this Court to
register the document and Registration of document on
26.04.1994 can in no manner estopped the State from
raising the issues regarding violation of Section 22 of the
1961 Act in the present writ petition. The State is not raising
any objection regarding the registration of the document;
rather the submission of respondents in the present case is
that there is prohibition in acquiring the right by transfer by
the petitioners in the present case. We thus conclude that
the State is not estopped from raising its objection on the
ground of violation of Section 22 of the 1961 Act.
ISSUE NO.III
18. One of the submissions which has been pressed by
learned Special Government Pleader (Forest) appearing for
the State is that the sale deed dated 26.04.1994 was void
and hit by Section 22 of the 1961 Act. Before we come to
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
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Section 22 of the 1961 Act, it is necessary to look into the
earlier two enactments regulating the reserved forests. The
Cochin Forest Regulation III of 1080, as noted above, was the
first enactment for control over the forest. Section 8
provided that whenever it is proposed to constitute any area
as reserved forest, the Diwan shall publish a notification in
the Government Gazette declaring that it is proposed to
constitute such area as reserved forest. After verification of
claims by Forest Settlement officer, under Section 11, a
notification is contemplated to be issued and under Section
12, a notification is to be issued declaring the area as
reserved forest. Section 13 of Regulation III of 1080 provides
for consequence of declaration of reserve forest which was to
the following effect:
"13. When any area is constituted a reserved forest
under section twelve, all property in or over such area shall vest
absolutely in the Government subject to any right of way, right to
water, pasture or forest produce that may have been admitted
under section eleven; and the management of such area shall vest
in the Conservator, subject to the control of the Diwan. No right of
any description shall be acquired in or over a reserved forest
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-: 24 :-
except under a grant or contract in writing made by the Diwan on
behalf of the Government."
19. Section 13, as quoted above, thus provided that no
right of any description shall be acquired in or over a
reserved forest except under a grant or contract in writing
made by the Diwan on behalf of the Government. Thus there
was clear prohibition of creating any right in or over a
reserved forest except under a grant or contract in writing
made by the Diwan.
20. The provisions of Regulation III of 1080 were
repealed by Act III of 1952 i.e., the Travancore-Cochin Forest
Act, 1951 (hereinafter referred to as 'Forest Act 1951').
Chapter II of the Act contains the heading "Reserved Forest".
Section 4 provided for issuance of notification whenever it is
proposed to constitute any land as reserved forest. After
various proceedings and determination of right by Forest
Settlement Officer, final notification is contemplated under
Section 19 declaring a reserved forest. Section 19 is quoted
as below:
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"19. When the proceedings prescribed in the preceding
sections
have been taken, the Government
Notification declaring forests may publish a notification in the
reserved. Gazette specifying the limits of
the forests which it is intended to
reserve and declaring the same to
be reserved from a date to be fixed by such notification.
Copies of the notification shall also be published at the
headquarters of each Taluk in which any portion of the land
included in such notification is situate and in every town and
village or pakuthy in the neighbourhood of such land.
From the date so fixed the forest shall be deemed to be
a "Reserved Forest"."
21. Section 22 of Forest Act, 1951 provided that no
right of any description shall acquire in or over a Reserved
Forest except as provided therein. Section 22 is quoted as
below:
"22. No right of any description shall be acquired in
or over a
Reserved Forest except under a
grant or contract in writing
No right acquired over made by or on behalf of the
Reserved Forests except as
herein provided. Government or by or on behalf
of some person in whom such
right or the power to
create such right was vested when the notification under
Section 19 was issued or by succession from such person."
22. Section 22 thus prohibited acquisition of any right in
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-: 26 :-
or over the reserved forest except under the following two
circumstances (i) under a grant or contract in writing made
by or on behalf of the Government or (ii) by or on behalf of
some person on whom such right or power to create such
right was vested, when a notification under Section 19 was
issued or by succession from such person. Thus apart from
the right of Government by a grant or contract the right of
person who at the time of issuance of final notification under
Section 19 was entitled to create such right was saved.
Section 101 of Forest Act, 1951 provided for repeal. Section
101 is quoted as below:
"101. (1) The Travancore Forest Act of 1068 (Act II of
1068) as
subsequently amended and the
Cochin Forest Act (Act III of
Repeal. 1080) as subsequently
amended are hereby repealed.
(2) All references made in any enactment to the
enactments hereby repealed shall be read as if made to the
corresponding provisions of this Act.
(3) All rules prescribed, appointments made, powers
conferred and orders issued under the enactments hereby
repealed shall, so far as they are consistent with this Act, be
deemed to have been respectively prescribed, made,
conferred and issued hereunder".
23. The Forest Act, 1951 was repealed by the 1961 Act,
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-: 27 :-
1961. The 1961 Act also contains similar provisions
regarding reserved forest in Chapter II. Under Section 4 of
1961 Act a notification is to be issued by the Government
whenever it is proposed to constitute any land as reserved
Forest. Section 6 deals with proclamation by Forest
Settlement Officer. Section 7 provides for Bar of accrual of
forest right, prohibition of clearings, etc. Section 8 provides
for inquiry by Forest Settlement Officer and final notification
is contemplated under Section 19 of the 1961 Act which is to
the following effect:
"19. When the proceedings prescribed in the preceding
sections
have been taken, the Government
may publish a notification in the
Notification declaring forests
reserved. Gazette specifying the limits of the
forests which it is intended to
reserve and declaring the same to
be reserved from a date to be fixed by such notification.
Copies of the notification shall also be published at the headquarters
of each Taluk in which any portion of the land included in such notification
is situate and in every town and village or pakuthy in the neighbourhood of
such land.
From the date so fixed the forest shall be deemed to be a
"Reserved Forest"."
24. Section 22 of the 1961 Act is relevant for the
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present case which provides as follows:
"22. No right of any description shall be acquired in or over a
Reserved Forest except under a
No right acquired over grant or contract in writing made by
Reserved Forests except as or on behalf of the Government or
herein provided. by or on behalf of some person in
whom such right or the power to
create such right was vested when the notification under Section 19
was issued or by succession from such person".
25. The question to be answered is as to whether the
sale deed dated 26.04.1994 is hit by Section 22. It is also
relevant to note Section 85 of the 1961 Act which provides
for repeal. Section 85 is pari materia to Section 101 of 1951
Act. Section 85 is quoted as below:
"85. Repeal.- (1) The Travancore-Cochin Forest Act, 1951 (III
of 1952) and the Madras Forest Act, 1882 (V of 1882) and the
Madras Wild Elephants Preservation Act, 1873 (Act I of 1873) as in
force in the Malabar District referred to in sub-section (2) of Section
5 of the States Reorganisation Act, 1956, are hereby repealed.
(2) All references made in any enactment to any provision of
the enactments hereby repealed shall be read as if made to the
corresponding provisions of this Act.
(3) All rules prescribed, appointments made, powers
conferred and orders issued under the enactments hereby repealed
shall be deemed to have been respectively prescribed, made,
conferred and issued hereunder till new rules and enactments are
made under the various sections of this Act."
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-: 29 :-
26. A perusal of the aforesaid statutory provisions of
Regulation III of 1080, 1951 Act and 1961 Act makes it clear
that after an area is declared as reserved forest, there is
prohibition of right of any description under the reserved
forest and the statutory scheme admit only following two
contingencies when acquisition of any right can be admitted.
They are: (i) a grant or contract in writing made by or on
behalf of the Government and (ii) by or on behalf of some
person in whom such right or the power to create such right
was vested when the notification under Section 19 was
published or by succession for such person.
27. There is no issue regarding right of Government in
issuing a grant or contract. What is the scope and content of
right of a private person to create a right of any description
in a reserve forest has to be examined. The statutory
provision as contained in Section 22 indicates that a grant or
contract can be issued only by a person in whom such right
or the power to create such power was vested when
notification under Section 19 was published. Notification
under Section 19 is a final notification declaring the reserved
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forest. By virtue of Section 101 of 1951 Act and Section 85
of 1961 Act, the date, on which final notification declaring the
reserved forest is issued, is relevant for the aforesaid
provision. For the present case the aforesaid date shall be
the date i.e. 08.05.1909/11.02.1933 when notification under
Section 12 of Regulation III of 1080 was issued. There is a
purpose and object for saving the right of a person who had
right to create a grant or contract on the date when
declaration was issued on reserved forest. The statutory
scheme when pins down a particular date, for exercise of
right of grant or contract, the said statutory scheme has a
purpose and object. Further more Section 22 provides for
acquisition of a right by succession from such person. The
word 'such person' is a person who has right to create a grant
or contract on the date of declaration of reserved forest.
Thus the right in reserved forest could acquire only by
succession from the person who has such right on the date of
declaration of reserved forest. Petitioners in the writ petition
do not claim any right of succession from any person who has
right to issue any grant or contract on the date on which the
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-: 31 :-
area was declared as reserved forest. Petitioners also did not
claim any such right of succession from the original lessees
of the area. The word "succession" has been defined in
P.Ramanatha Aiyar's Advanced Law Lexicon (4th Edition)
which is to the following effect:
""SUCCESSION" includes both intestate and testamentary
succession.
The process by which one person succeeds another in the
occupation or possession of any estate or the like; the act or
process of following in order of time or place.
The act or right of legal or official investment with a predecessor's
officer, dignity, possessions, or functions; a series of persons
following one another; a lineage; an order of descendants. In the
law of descent, the coming in of another to take the property of one
who dies without disposing of it by will.
The word "succession" is a word of technical meaning, and refers
to those who by descent or will take the property of a decedent. It is
a word which clearly excludes those who take by deed, grant, gift, or
any form of purchase or contract.
The word "succession" is often used synonymously with the word
"descent".
"Succession" is the transmission of the rights and obligations of a
deceased to his heirs."
Similarly the Black's Law Dictionary (9th Edition) defines the
word "Succession" has defined as follows:
"Succession. 1. The act or right of legally or officially taking
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-: 32 :-
over a predecessor's office, rank, or duties. 2. The acquisition of
rights or property by inheritance under the laws of descent and
distribution."
28. The word 'Succession' used in Section 22 thus
contemplates testamentary or intestate succession from the
deceased. Learned counsel for the petitioners submits that
the lease deed did not contain any type of restriction in
transfer of the leasehold rights. It is true that in the lease
deed dated 09.05.1933, the word 'lessee' was referred to as
"hereinafter called the lessee which expression shall include
were applicable their heirs, administrators and assigns."
When the statutory provision as contained in Section 13 of
Regulation III of 1080, Section 22 of 1951 Act, Section 85 of
the 1961 Act permits acquisition of right only by succession,
the said expression used in lease deed does not advance the
case of the petitioners. The expression defining the lessee as
quoted above used the word "were applicable". Thus for the
interpretation of Section 22 it cannot be said that the lessee
shall have a right of transferring the land or right can be
acquired in a reserved forest by alienation contrary to
Section 22.
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-: 33 :-
29. Shri N.N. Sugunapalan, learned Senior Counsel
appearing for the petitioners contended that the word
'succession' has a wide meaning and it may include
acquisition of right by transfer also. In support of his
submission he has placed reliance on the judgment of Apex
Court reported in Sambudamurthi Mudaliar v. The State
of Madras and another [1970 (1) SCC 4]. In the above
case the Apex Court was considering the provisions of
Madras Hindu Religious and Charitable Endowments Act,
1951. Section 6(9) which defined the term Hereditary
Trustee noted in paragraph 2 of the judgment reads as
follows:
"2. The appellant brought the suit in O. S. No. 3 of 1961 in
the Court of Subordinate Judge, Nagapattinam for setting aside the
order dated May 10, 1960 of respondent No. 1 the Commissioner of
Hindu Religious and Charitable Endowments, Madras who had
affirmed earlier the order of the second respondent, the Deputy
Commissioner, holding that the trusteeship of the Kumaran Koil in
Manjakollai village was not hereditary. The appellant was elected as
a trustee by the Sengunatha Mudaliars of Manjakollai village at a
meeting held on June 27, 1957. According to the appellant the
temple was founded two hundred years ago by the members of his
community and since then the management of the temple and its
affairs was always vested in the community of the Sengunatha
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-: 34 :-
Mudaliars and no person other than the elected trustee had at any
time the right of management and control of the temple. The
appellant said that the temple was declared as an "exempted"
temple under the provisions of Madras Act 1 of 1925. The case of
the appellant was that the trusteeship of the temple was "hereditary."
The respondents, however, took a different view and proceeded on
the basis that trusteeship of the Kumaran Koil was not hereditary.
The Subordinate Judge held that the appellant was a hereditary
trustee and the suit was not barred by limitation. The respondents
took the matter in appeal to the Madras High Court which by its
judgment dated March 31, 1965 allowed the appeal and set aside
the judgment of the Subordinate Judge. Nagapattinam. S.6, sub-
section (9) of Madras Act 19 of 1951 states:
"In this Act, unless there is anything repugnant in the subject
or context--
xxxx xxxx
xxxx (9) 'hereditary trustee' means the trustee of a religions
institution succession to whose office devolves by hereditary right or
is regulated by usage or is specifically provided for by the founder,
so long as such scheme of succession is in force;"
This Act has been substituted by Madras Act 22 of 1959 but the
definition of the trustee is identical in both the Acts."
30. In the above case the Apex Court was considering
the word 'succession' in the context of hereditary trustee and
following was laid down in paragraph 3 of the judgment
which reads as follows:
"3. The question to be considered in this appeal is whether
the appellant is a hereditary trustee within the meaning of the
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-: 35 :-
section. The definition includes three types of cases: (1) succession
to the office of trusteeship devolving by hereditary right; (2)
succession to such office being regulated by usage; and (3)
succession being specifically provided for by the founder on
condition that the scheme of such succession is still in force. It is not
the case of the appellant that the trustees of the temple of the
Kumaran Koil are hereditary trustees because their office devolves
by hereditary right or because succession to that office is specifically
provided for by the founder. The contention on behalf of the
appellant is that the succession is "regulated by usage." It was said
that according to the usage of the temple the trustees were elected
for a period of one year each at a meeting of the members of the
Sengunatha Mudaliar Community and so the appellant must be
held to be a trustee within the meaning of S.6(9) of Act 19 of 1951. In
our opinion, there is no warrant for this argument. The phrase
"regulated by usage" in S.6(9) of the Act must be construed along
with the phrase "succession to this office" and when so construed
that part of the definition would only apply where the ordinary rules of
succession under the Hindu Law are modified by usage and
succession has to be determined in accordance with the modified
rules. The word "succession" in relation to property and rights and
interests in property generally implies "passing of an interest from
one person to another" (vide in Re. Hindu Women's Right to
Property Act, 1937, (1941 FCR 12 : AIR 1941 FC 72). It is now well
established that the office of a hereditary trustee is in the nature of
property. This is so whether the trustee has a beneficial interest of
some sort or not. (see Ganesh Chunder Dhur v. Lal Behary, (63 Ind
App 448 : AIR 1936 PC 318) and Bhabatarini v. Ashalata, (70 Ind
App 57 : AIR 1943 PC 89). Ordinarily a shebaitship or the office of
dharmakarta is vested in the heirs of the founder unless the founder
has laid down a special scheme of succession or except when usage
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-: 36 :-
or custom to the contrary is proved to exist Mukherjea J., in
Angurbala Mullick v. Debabrata Mullick, (1951 SCR 1125 : AIR 1951
SC 293) delivering the judgment of this Court observed:
"Unless, therefore the founder has disposed of the
shebaitship in any particular manner -- and this right of disposition is
inherent in the founder -- or except when usage or custom of a
different nature is proved to exist, shebaitship like any other species
of heritable property follows the line of inheritance from the founder."
In the case of mutts, whose heads are often celibates and
sometimes sanyasins, special rules of succession obtain by custom
and usage. In Sital Das v. Sort Ram, AIR 1954 SC 606 the law was
taken as well settled that succession to mahantship of a mutt or
religious institution is regulated by custom or usage of the particular
institution except where the rule of succession is laid down by the
founder himself who created the endowment In that case the custom
in matters of succession to mahantship was that the assembly of
Bairagis and worshippers of the temple appointed the successor; but
the appointment had to be made from the disciples of the deceased
mahant if he left any, and failing disciples, any of his spiritual
kindred. Such a succession was described as not hereditary in the
sense that on the death of an existing mahant, his chela does not
succeed to the office as a matter of course, because the successor
acquires a right only by appointment and the authority to appoint is
vested in the assembly of the Bairagis and the worshippers. In Sri
Mahant Paramananda Das Goswami v. Radhakrishna Das, (51 MLJ
258 : AIR 1926 Mad. 1012), the Madras High Court took the view
that where succession to the mahantship is by nomination by the
holder in office, it is not a hereditary succession. In that case
Venkatasubba Rao, J., said:
"If the successor owes his title to nomination or appointment,
that is, his succession depends on the volition of the last incumbent
and does not rest upon independent title. I am inclined to the view
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-: 37 :-
that the office cannot be said to be hereditary."
Krishnan, J., stated as follows:
"Where succession is by nomination by the holder in office of his
successor it seems to be impossible to contend that it is a hereditary
succession. Hereditary succession is succession by the heir to the
deceased under the law, the office must be transmitted to the
successor according to some definite rules of descent which by their
own force designate the person to succeed. There need be no blood
relationship between the deceased and his successor but the right of
the latter should not depend upon the choice of any individual."
It is true that the artificial definition of hereditary trustee in S.6(9) of
the Act would include even such cases."
31. The above case has thus no application in the
present case where the question is succession to property.
Present is not a case of succession to any office. It is true that
the word succession is also used in the context of an office
but present is not a case of succession to office. We thus are
of the view that the above judgment of the Apex Court does
not help the petitioners in the present case.
32. The Constitution of India contains several provisions
for protection of forests. Article 48A provides for protection
and improvement of environment and safeguarding of forests
and wild life. Article 51A sub-clause (g) provides that it shall
be the duty of every citizens of India to protect and improve
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 38 :-
the natural environment including forests, lakes, rivers and
wild life.
33. The State Legislature, even more than a century
ago, have passed legislation for protection of forests. An
area when declared as reserved forests, it has to be
maintained as such and it is the obligation of the forest
department of the State to maintain reserved forests. The
provisions of Section 22 of 1961 Act has been enacted with
the object of creating restrictions of acquisition of right in a
reserved forest which has been imposed with an object and
the provisions of Section 22 has to be interpreted keeping in
mind the very object and purpose of the Act. We thus
conclude that the petitioner could not have acquired any
right in the reserved forest contrary to the provisions of
Section 22 of the Act, it is also relevant to note that as per
the proviso to Section 22, no Patta without previous sanction
of the Government can be granted for any land included
within the reserve forests. When the grant of patta is
prohibited without sanction of the Government, we fail to see
any reason in permitting a private owner to grant right by
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 39 :-
transfer in a leased area without sanction from the State
Government. Thus the restriction under Section 22
prohibited the vendor, from whom the petitioners acquired
the leased area by sale deed dated 26.04.1994. We thus
hold that sale deed dated 26.04.1994 was hit by Section 22
and no valid right could be claimed by the petitioners in the
leased area. We however leave it open for the petitioners to
take such remedy against the vendor as permissible under
law.
ISSUE NO.IV
34. One of the submissions pressed by learned Special
Government Pleader (Forests) is that the order of the State
Government dated 24.06.2011 cancelling the lease deed is
also supportable on the ground that petitioner has violated
the terms and conditions of the lease. It is submitted that
both in the show cause notice issued to the petitioner as well
as in the order cancelling the lease, violation of the terms
and conditions of the lease was found. For appreciating the
aforesaid submission, the terms and conditions of the lease
deed are to be noted. Clauses 4, 5 and 10 in the lease deed
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-: 40 :-
dated 09.05.1933 are relevant and are extracted below:
"4. 82.45 acres of land thus leased out shall be used by
the lessees for raising catchcrops at their option provided the nature
of the crops is not in the opinion of the Conservator of Forests
injurious to the soil. The Lessees shall develop 16 and odd acres
each year so that the whole area is developed by the end of the 5th
year.
5. For purpose of this lease the Conservator of Forests
shall be regarded by the Lessees as a Superior authority in matters
relating to their leased forests and if in his opinion any injury of
permanent nature is done to the land whereby the land becomes
unfit for the growth of valuable timber, the Lessees shall be liable to
pay a fine of Rs.10/ per acre.
10. In the event of the Lessees making default in the
observance or fulfillment of any of the terms and conditions herein
contained and failing to remedy such default for six months after
notice so to do shall have been given to them by the Conservator of
Forests the Lessor shall be at liberty at any time thereafter after
notice to the Lessees and hearing them in person or through their
agent or vakil duly appointed about the failure of the Lessees to
remedy such defaults they may be reported to the Lessor from time
to time by the Conservator of Forests to determine this lease and the
Lessees shall forthwith vacate the land hereby leased and demised
and notwithstanding such determination of this lease be liable for
any loss which the Lessor may sustain by reason of such default and
all such improvements made by the Lessees on the land hereby
leased and demised as exist at the time of vacating the same must
be left in tact and no compensation therefore can be claimed."
35. The forest land was leased to the original lessee for
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-: 41 :-
the purpose of cultivation of coffee, cardamom and other
products. Clauses 4, 5 and 10 are the terms and conditions
of the lease. Under Clause 4 the leased land was required to
be used by lessee for catchcrops. The Conservator of Forest
was the superior authority in the matter relating to lease of
forest land and under Clause 10, lease was liable to be
determined on committing any default. The petitioner has
started using leased area for running a resort. The
Conservator of Forest has issued a letter dated 25.11.2002
informing the petitioner that they are not allowed to take up
any activities in the leased area, other than those
permitted. The letter further mentioned that it had come to
the notice of the department that the Estate Authorities had
already started entertaining the tourists in the area.
Petitioners were put to notice that the lease was liable to be
prematurely terminated. It is useful to refer to the following
extract from letter dated 25.11.2002 issued by the
Conservator of Forest :
"The Government has leased out the land for the limited
purpose of raising catchcrops under tree cover. The tourism activity
now proposed by the Estate Management amounts to non-forestry
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-: 42 :-
activity and hence clearance of Government of India is also required
under the provisions of Forest Conservation Act, 1980. Further,
Government of Kerala have not taken any policy decision in
promoting tourism activities within the leased out forest areas and
hence the Department cannot permit you to conduct tourism within
the forest area leased for the purpose of cultivation of coffee,
cardamom etc. Further you are not allowed to take up any other
activity in the leased area other than those permitted in the lease
deed. Under these circumstances the application for permission
submitted by the estate authorities as per letters cited is rejected. It
has come to the notice of the department that the Estate authorities
have already started entertaining tourists in the area. You may also
take note that the violation of lease conditions and conduct of non-
forestry activity within the leased area without clearance of
Government of India under the Forest Conservation Act, 1980, may
force the department to initiate action for premature termination of
the lease. Hence you are advised not to resort to any activity not
permitted under the agreement.
xx xx xx ."
36. On receipt of the letter dated 25.11.2002 the
petitioner rushed to this Court by filing O.P. No.38847 of
2002. The petitioners also prayed for an interim order
directing the respondent not to interfere in their running of
tourist activities. An interim order was passed by this Court
in the aforesaid writ petition, which, however, came to an end
on 19.11.2004. The petitioner even after the expiry of the
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-: 43 :-
interim order continued to carry on the tourist activities in the
leased area as has been reported by the Divisional Forest
officer in its letter dated 21.08.2006 Ext.R2(d). The Flying
Squad of Divisional Forest Officer inspected the estate on
16.08.2006. It was reported that the petitioner was running a
resort namely "Tropical Hill Resort" at Nelliyampathy Hills.
Inspection team took various registers, bill etc from the
Resort. The Divisional Forest Officer in his letter dated
21.08.2006 has reported that the last stay of the tourist was
on 01.08.2006. It is thus clear that even after vacation of the
interim order obtained by the petitioner in O.P. No.38847 of
2002, they continued with the tourist activities in the said
area for more than 1= years. As noted above, the terms and
conditions of lease deed oblige the petitioner to use the
estate for growing catchcrops. Use of the estate for any
other purpose by the petitioner was also a clear violation of
the terms and conditions of the lease and we do not find any
error in the finding of the State Government that the
petitioner had violated the terms and conditions of the lease
and hence the leased area was liable to be resumed by the
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-: 44 :-
State. The State has also recorded a finding that the
application of the petitioner for amendment of the conditions
of lease to include the tourist activities was rejected by the
Forest Officer, Nenmara. Since the tourist activity is a non-
forestry activity, starting of resort activity could not have
been permitted. We thus hold that cancellation of lease for
violation of the lease conditions was fully justified. Issue
No.IV is answered accordingly.
ISSUE NO.V
37. The 1980 Act has been enacted by the Parliament
for the conservation of forests and for matters connected
therewith or ancillary or incidental thereto. The Statement of
objects and reasons for the enactment of the 1980 Act states
"deforestation causes ecological imbalance and leads to
environmental deterioration. De-forestation had been
taking place on a large scale in the country and it had
caused widespread concern....". Section 2 of the 1980 Act
contained a restriction on the de-reservation of forests or use
of forest land for non-forest purpose. Section 2 as amended
by Amendment Act 1988 is as follows:
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-: 45 :-
"2. Restriction on the de-reservation of forests or use
of forest land for non-forest purpose.- Notwithstanding
anything contained in any other law for the time being in force in a
State, no State Government or other authority shall make, except
with the prior approval of the Central Government, any order
directing-
(i) that any reserved forest (within the meaning of the
expression "reserved forest" in any law for the time being
in force in that State) or any portion thereof, shall cease to
be reserved;
(ii) that any forest land or any portion thereof may be used
for any non-forest purpose;
(iii) that any forest land or any portion thereof may be
assigned by way of lease or otherwise to any private
person or to any authority, corporation, agency or any
other organisation not owned, managed or controlled by
Government;
(iv) that any forest land or any portion thereof may be
cleared of trees which have grown naturally in that land or
portion, for the purpose of using it for reafforestation.
Explanation - For the purpose of this section, "non-forest purpose"
means the breaking up or clearing of any forest land or portion
thereof for-
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-
bearing plants, horticultural crops or medicinal plants;
(b) any purpose other than reafforestation;
but does not include any work relating or ancillary to
conservation, development and management of forests
and wildlife, namely, the establishment of check-posts, fire
lines, wireless communications and construction of
fencing, bridges and culverts, dams, waterholes, trench
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 46 :-
marks, boundary marks, pipelines or other like purposes."
Preservation and conservation of forests have always
weighed with the Legislature in the State of Kerala as well
as Central Legislature while enacting laws even before the
enforcement of the Constitution of India. The Apex Court in
M.C. Mehta v. Kamal Nath and Others ([1997] 1 SCC
388) had occasion to consider the principle of 'public trust
doctrine' which enjoins the State to protect the natural
resources such as rivers, forests, seas shores, etc., for the
purpose of protecting the eco system. The following was
laid down by the Apex Court in paragraphs 25 and 34:
"25. The Public Trust Doctrine primarily rests on the
principle that certain resources like air, sea, waters and the forests
have such a great importance to the people as a whole that it
would be wholly unjustified to make them a subject of private
ownership. The said resources being a gift of nature. They should
be made freely available to everyone irrespective of the status in
life. The doctrine enjoins upon the Government to protect the
resources for the enjoyment of the general public rather than to
permit then use for private ownership or commercial purposes.
According to Professor Sax the Public Trust Doctrine imposes the
following restrictions on governmental authority.
Three types of restrictions on governmental authority are often
thought to be imposed by the public trust: first, the property
subject to the trust must not only be used for a public purpose, but
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 47 :-
it must be held available for use by the general public; second, the
property may not be sold, even for a fair cash equivalent; and
third, the property must be maintained for particular types of
uses.
34. Our legal system based on English Common Law -
includes the public trust doctrine as part of its jurisprudence. The
State is the trustee of all natural resources which are by nature
meant for public use and enjoyment. Public at large is beneficiary
of the sea shore, running waters, airs, forests and ecologically
fragile lands. The State as a trustee is under a legal duty to
protect the natural resources. These resources meant for public
use cannot be converted into private ownership."
The Apex Court again in Samatha v. State of A.P ([1997]
8 SCC 191) has occasion to consider the provisions of the
1980 Act. Noticing Section 2 of the 1980 Act, the Apex
Court held that Section 2 prohibits de-reservation of forest
or use of any forest land for non-forest purpose or
assignment by way of lease or any portion thereof by way
of lease or otherwise to any private person or to any
authority or corporation, agency or any other organization
not owned, managed or controlled by the Government. In
paragraph 121, the following was laid down by the Supreme
Court:
"121. It would thus be seen that 'forest' bears extended
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 48 :-
meaning of a tract of land covered with trees, shrubs, vegetation
and undergrowth inter mingled with trees with pastures, be it of
natural growth or man made forestation. The FC Act, as amended
by 1988 Act was enacted to check deforestation and conservation
of forest. Sub-s.(2) with a non obstante clause on deforestation of
forest or use of forest land for non forest purposes; regulates the
forest and provides that notwithstanding any other law for the time
being in force in the State, no State Government or other authority
shall make, except with prior approval of the Central Government,
(i) any order directing that any reserved forest or any portion
thereof shall cease to be a reserved forest, (ii) that any forest land
or portion thereof may be used for any non forest purpose; (iii) that
any forest land or any portion thereof may be assigned, by way of
lease or otherwise, to any private person or to any authority or
corporation, agency or any other organisation, not owned,
managed or controlled by the Government, (iv) that any forest
land or any portion thereof may be cleared or trees which have
grown natural in the land or portion for the purpose of using it for
reforestation. Clauses (iii) and (iv) were added by Amendment Act
69 of 1988 w.e.f. December 19, 1988. The explanation thereto of
non forest purpose was defined to mean the breaking up or
clearing of any forest land or portion thereof for the cultivation of
but does not include any work relating to ancillary to conservation
development and management of forest and wild life, namely,
establishment of check posts, fire lines ......... or other like
purposes. S.2, therefore, prohibits de - reservation of the forest or
use of any forest land for and non forest purpose or assignment
by way of lease or otherwise of any portion of land to any private
person other than Government controlled or owned, organised or
managed by the State Government agency; it prohibits clearance
of trees or natural growth in the forest land or any portion thereof
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 49 :-
to use it for reforestation, except for preservation. Breaking up or
clearance of forest land or a portion thereof is amplified to be of
non forest purpose. The object of the F.C. Act is to prevent any
further deforestation which causes ecological imbalance and leads
to environmental degradation. it is, therefore, necessary for the
State Government to obtain prior permission of the Central
Government for (1) de - reservation of forest; and (2) the use of
forest land for non forest purpose. The prior approval of the
Central Government, therefore, is a condition precedent for such
permission. The State Governments are enjoined by FC Act, with
power coupled with duty, to obtain prior approval of the Central
Government. The leases/renewal of leases otherwise are good.
38. In T.N. Godavarman Thirumulpadu v. Union of
India [AIR 1997 SC 1228] the Apex Court had occasion to
consider Section 2 of the 1980 Act. It was held that Section
2 shall apply clearly to all forests irrespective of the
ownership or classification thereto. In paragraph 4 of the
judgment, following was held:
"4. The Forest Conservation Act, 1980 was enacted
with a view to check further deforestation which ultimately results
in ecological imbalance; and therefore, the provisions made
therein for the conservation of forests and for matters connected
therewith, must apply to all forests irrespective of the nature of
ownership or classification thereof. The word "forest: must be
understood according to its dictionary meaning. This description
covers all statutorily recognised forests, whether designated as
reserved, protected or otherwise for the purpose of Section 2(i) of
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 50 :-
the Forest Conservation Act. The term "forest land", occurring in
Section 2, will not only include "forest" as understood in the
dictionary sense, but also any area recorded as forest in the
Government record irrespective of the ownership. This is how it
has to be understood for the purpose of Section 2 of the Act. The
provisions enacted in the Forest Conservation Act, 1980 for the
conservation of forests and the matters connected therewith must
apply clearly to all forests so understood irrespective of the
ownership or classification thereof. This aspect has been made
abundantly clear in the decisions of this Court in Ambica quarry
Works and Ors. v. State of Gujarat and Ors.: AIR1986SC1620,
Rural Litigation and Entitlement Kendra v. State of U.P.:
AIR1988SC2187 , and recently in the order dated 29th
November, 1996 in W.P.(C) No. 749/95 (Supreme Court
Monitoring Committee v. Mussorie Dehradun Development
Authority and Ors.). The earlier decision of this Court in State of
Bihar v. Banshi Ram Modi and Ors.: AIR1985SC814 , has,
therefore, to be understood in the light of these subsequent
decisions. We consider it necessary to reiterate this settled
position emerging from the decisions of this Court to dispel the
doubt, if any, in the perception of any State Government or
authority. This has become necessary also because of the stand
taken on behalf of the State of Rajasthan even at this late stage,
relating to permissions granted for mining in such area which is
clearly contrary to the decisions of this court. It is reasonable to
assume that any State Government which has failed to
appreciate the correct position in law so far, will forthwith correct
its stance and take the necessary remedial measures without any
further delay."
39. Shri M.P. Madhavankutty, learned Special
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 51 :-
Government Pleader has referred to and relied on a
judgment of the Division Bench of this Court in Jairaj A.P. v.
Chief Conservator of Forests (Wild life) and Others (ILR
1996 [2] Kerala 270). In the above case, the State
Government proposed a construction of forest lodge in the
buffer zone of Parambikulam Wild Life Sanctuary. The
proposed construction was challenged on the ground that it
violates Section 2 of the 1980 Act since prior approval of the
Central Government has not been obtained. The Apex Court
upheld the challenge and issued a writ of mandamus. The
following was laid down in paragraph 8:
"8. The requirement in S.2 for prior approval of Central
Government must be strictly construed as any relaxation of it
would be perilous to the fast depleting forest wealth of the country.
One of the directive principles of State Policy is to "safeguard the
forests and wild life of the country" (Art.48A of the Constitution).
One of the fundamental duties of every citizen of India is to protect
and improve forests (Art.51A Clause (g)). So clearance of forest
area should be allowed only as a stark exception. When
Parliament insisted that such clearance can be made only with the
prior permission of Central Government the rule should be
rigorously followed. Forest wealth is already an endangered
bounty of nature."
40. Shri N.N.Sugunapalan, learned Senior Advocate for
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 52 :-
the petitioner has relied on the Division Bench judgment of
this Court in Nature Lovers Movement v. State of
Kerala (ILR 2000 [3] Kerala 219). It is contended by the
learned Senior Advocate that when the forest has been
cleared prior to the enforcement of the 1980 Act, prior
approval of the Central Government is not necessary. In the
above case Original Petition was filed in public interest for a
declaration that all leases, licences and grants given by the
State Government in respect of the forest land stood
automatically expired on the commencement of the 1980
Act, and a prayer was made for quashing Exts.P1 and P2
granting lease and licences to various persons after the
commencement of the 1980 Act. The Division Bench in the
above case held the following in paragraph 6:
"6. The main question that arises for consideration in this
writ petition is whether the prior approval of the Central
Government is a sine-qua-non before renewing/extending leases
of plantations which had been broken up and used for the non
forest purposes of plantation activity even before the coming into
force of the Act. In this connection, it has to be noted that the
question has to be answered . with reference to the type of
activity carried on in the land. Admittedly, the land in question is a
plantation and in order to continue the plantation activity in the
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 53 :-
estate no further 'breaking up' of the area is required, whereas, all
that is required is only periodical "shade tree lopping" which is not
an activity prevented by any law in force. The plantation activity
will not result in further deforestation. These facts are admitted in
Para.6 of the counter affidavit filed by the State Government on
21st February 1996. Admittedly, plantation activity can be called a
form of afforestation as plantations provide more than 40 percent
green cover, as in the case of a dense forest. The case of
plantation is different from the case of mining leases in forest land
where for every mining activity, breaking up of the forest is
involved".
The Apex Court had occasion to consider the issue as to
whether the 1980 Act has any retrospective operation in a
case arising out of the Full Bench judgment of this Court in
Nature Lovers Movement v. State of Kerala ([2009] 5
SCC 373). The Writ Petition was dismissed by the High Court
holding that the 1980 Act was prospective in operation and
the provisions contained therein were not applicable to the
cases where land was used for non-forest purpose prior to
25.10.1980. Considering the object of the 1980 Act, the
following was laid down by the Apex Court in paragraphs 39,
47 and 48:
"39. Undisputedly, the object of the 1980 Act is
conservation of forest and to prevent depletion thereof. Therefore,
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 54 :-
the Court is bound to interpret the provisions of that Act which
would further the object of the legislation. After enforcement of the
1980 Act, the State Governments were denuded of suo moto
power to deal with reserved forest or forest land and permit use
thereof for non forest purposes. They could do so only after
obtaining prior approval of the Central Government. However, as
large tracts of reserved forests and forest land had been occupied
by landless poor, who also undertook cultivation for their
sustenance many decades before the enactment of the 1980 Act,
and there was demand from several quarters that old occupation
of the forest land may be regularised, the Government of India,
after taking note of the recommendations made in the Forest
Ministers Conference and committee appointed by it, issued
guidelines for grant of approval to the decision taken by the State
Governments before the enforcement of the 1980 Act, i.e.,
25/10/1980 to regularize encroachments made on forest land and
/ or use thereof for non forest purpose. This necessarily implies
that where the State Government had not taken any policy
decision to regularize pre 25/10/1980 occupation / encroachment
of forest land no order for regularization of such occupation /
encroachment can be passed without obtaining prior approval of
the Central Government in terms of S.2 of the 1980 Act which, as
mentioned above, contains a non obstante clause.
47. The ratio of the above noted judgments is that the
1980 Act is applicable to all forests irrespective of the ownership
or classification thereof and after 25/10/1980, i.e., date of
enforcement of the 1980 Act, no State Government or other
authority can pass an order or give a direction for dereservation of
reserved forest or any portion thereof or permit use of any forest
land or any portion thereof for any non forest purpose or grant
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 55 :-
any lease, etc. in respect of forest land to any private person or
any authority, corporation, agency or organization which is not
owned, managed or controlled by the Government.
48. Another principle which emerges from these
judgments is that even if any forest land or any portion thereof
has been used for non forest purpose, like undertaking of mining
activity for a particular length of time, prior to the enforcement of
the 1980 Act, the tenure of such activity cannot be extended by
way of renewal of lease or otherwise after 25/10/1980 without
obtaining prior approval of the Central Government."
The Apex Court had disposed of the aforesaid appeal by
issuing certain directions and declaration in paragraph 52
which are to the following effect:
"52. In the result, the appeal is disposed of in the following
terms:
(1) The policy decision taken by the Government of Kerala
to assign 28,588.159 hectares of forest land to unauthorized
occupants / encroachers after seeking approval from the Central
Government does not suffer from any legal infirmity and the High
Court rightly declined to interfere with the said decision.
(2) After the enforcement of the 1980 Act, neither the State
Government nor any other authority can make an order or issue
direction for de-reservation of reserved forest or any portion
thereof or permit use of any forest land or any portion thereof for
any non forest purpose or assign any forest land or any portion
thereof by way of lease or otherwise to any private person or to
any authority, corporation, agency or organization not owned,
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 56 :-
managed or controlled by the Government except after obtaining
prior approval of the Central Government.
(3) Conclusion No.D recorded by the High Court in para
103 of the impugned judgment is legally unsustainable and is set
aside.
(4) As and when the State Government decides to assign
10,000 hectares of forest land to unauthorised occupants /
encroachers, it shall do so only after obtaining prior approval of
the Central Government and the latter shall take appropriate
decision keeping in view the object of the 1980 Act and the
guidelines framed for regularization of encroachments on forest
land."
41. In the present case as noted above, the State
issued show cause notice for cancellation of the lease on the
ground that petitioners are using the leased land for running
a tourist resort which is a non-forest activity requiring prior
approval of the Central Government under Section 2 of the
1980 Act. The Division Bench judgment as relied on by the
petitioners in Nature Lovers Movement v. State of
Kerala (supra) does not help the petitioner in the present
case.
42. Learned Senior Advocate for the petitioner further
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 57 :-
placed reliance on the judgment of the Apex Court in State
of Bihar v. Banshi Ram Modi ([1985] 3 SCC 643) in
support of his argument that in event permission had been
granted for breaking of reserve forest prior to enforcement
of the 1980 Act, permission of the Central Government is not
required. It is submitted that in the present case plantation
lease was granted prior to the enforcement of the 1980 Act,
hence the provisions of the the 1980 Act shall not apply.
The judgment in State of Bihar v. Banshi Ram Modi
(supra) was explained by the Apex Court in a Constitution
Bench in Ambica Quarry Works v. State of Gujrat and
Others ([1987] 1 SCC 213) where it was held that the ratio
of judgment in State of Bihar v. Banshi Ram Modi
(supra) has to be understood in the background of facts of
that case. As noted above, in Nature Lovers Movement
v. State of Kerala (supra) after considering all the relevant
judgment, the Three Judges Bench held that after
enforcement of the 1980 Act neither the State Government
nor any authority can make an order or direction for de-
reservation of forest or permit use of forest land for non-
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 58 :-
forest purpose or any portion thereof assigned by way of
lease or otherwise to any private person or to any authority
or corporation, agency or any other organization not owned,
managed or controlled by the Government except with the
prior approval of the Central Government. From the
above discussion it is clear that petitioner has used the
leased land for non-forest purpose, i.e., for running tourism
resort after the enforcement of the 1980 Act which was in
clear violation of the provisions contained in Section 2 of the
1980 Act. For violation of the statutory provisions as
contained in Section 2 of the 1980 Act, the State has rightly
proceeded to issue show cause notice to the petitioner and
cancelled the lease. The action of the State for cancellation
of the lease granted to the petitioner was thus fully in
accordance with the provisions of the 1980 Act. Ext.P10
cannot be faulted.
ISSUE NO.VI
43. Learned Senior Advocate for the petitioner has
contended in support of the Writ Petition that petitioner was
running a tourist resort only in a part of the leased land and
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 59 :-
at best the State could have proceeded against that portion
of the lease on which non-forest activity was carried on. The
State has no authority or right to cancel the entire leased
area which was purchased by the petitioner on 26.04.1994.
The above submission raised by the learned counsel for the
petitioner has been refuted by the learned Special
Government Pleader appearing for the State. It is submitted
by the learned Special Government Pleader that in reply to
the show cause notice dated 04.01.2008 given to the
petitioner no such plea was raised by the petitioner.
Learned Special Government Pleader has referred to the
reply submitted by the petitioner dated 14.03.2008, Ext.P8.
44. We have perused the reply given by the petitioner
to the show cause notice. Although in the reply it was
admitted that petitioner was running home stay facility
which was stopped after the stay order was vacated in the
Original Petition filed by the petitioner in this Court
challenging the notice dated 25.11.2002, there was no such
plea in the reply that petitioner is running the tourism resort
in any part of the leased area of land. No such details were
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 60 :-
mentioned in the reply. In the Writ Petition in any of the
paragraphs also, no such plea was raised by the petitioner
that the petitioner was carrying tourist resort only in a
particular portion of the lease and respondents are not
entitled to cancel the entire lease area. There being no
pleading on behalf of the petitioner that the petitioner is
carrying on tourism activities only in a portion of the leased
area, it was not necessary for the State to consider any such
plea. Moreover, petitioner having violated the terms and
conditions of the lease, as held above, the State was well
within its power and jurisdiction to cancel all the leases
which leased area was purchased by the petitioner by sale
deed dated 26.04.1994.
45. In view of the foregoing discussion we are of the
view that petitioner has not made out any ground for
setting aside Ext.P10 order cancelling the lease deed in
respect of Miraflores Estate of 486.63 Acres. The State has
after issuance of Ext.P10 order has already resumed the land
on 27.06.2011.
46. Now we come to W.A. No.89 of 2011 which has been
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 61 :-
filed by the State against the judgment dated 11.08.2010 by
which judgment, the learned Single Judge has directed the
respondents to conduct a comprehensive survey and
demarcate and measure 486.63 acres possession of which
forest land was claimed by the petitioner. Learned Single
Judge further directed for payment of cost of Rs.25,000/-.
The State in its counter affidavit filed in the Writ Petition has
pleaded that survey was already conducted and boundaries
demarcated. A survey sketch was also filed along with the
counter affidavit as Ext.R3(a). Learned counsel for the
appellants is also right in his submission that there was no
ground for imposing the cost of RS.25,000/- on the State. For
the reasons, we have noted above, the Writ Appeal filed by
the State is to be allowed setting aside the judgment of the
learned Single Judge dated 11.08.2010.
The Writ Appeal and Writ Petition are disposed of as
follows:
(1) W.P. No.18339 of 2011 is
dismissed.
(2) W.A. No.89 of 2011 is allowed.
The judgment of the learned Single Judge
W.A. No. 89 of 2011 & W.P(C) No.18339 of 2011
-: 62 :-
in W.P(C) No.35736 of 2002 dated
11.08.2010 is set aside and W.P(C)
No.35736 of 2002 is dismissed.
Parties shall bear their costs.
ASHOK BHUSHAN,
CHIEF JUSTICE.
P.R. RAMACHANDRA MENON,
JUDGE.
vsv/ttb