Dismissed

Ajesh P.Nair v. the State of Kerala

Kerala HC13 Nov 2019WP(C)/40350/2018

Case brief

AI extract

What is this about?

The High Court held that a writ petition challenging a tender by Harrisons Malayalam Ltd, a private company, could not be entertained as the company is not 'State' under Article 12. The Court found no inaction by the Government as the company had permission to fell trees for re-plantation and the title dispute must be resolved in a civil court.

What did the court decide?

The writ petition to quash the tender and direct the Government to conduct an auction sale was dismissed with no merit. Confirmation that the company had permission to fell trees.

Ajesh P.Nair Vs the State of Kerala — Contract and Commercial Disputes | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶4

¶5

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶6

WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941

¶7

WP(C).No.40350 OF 2018(S)

¶8

PETITIONER/S:

¶9

AJESH P.NAIR AGED 39 YEARS

¶10

S/O RADHAKRISHNAN NAIR, PULLATTU KUNNEL, PUNJAVAYAL P.O., MUNDAKKAYAM, ERUMELI NORTH VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT, PIN-686 513.

¶11

BY ADVS. SRI.V.SETHUNATH

¶12

SRI.V.R.MANORANJAN (MUVATTUPUZHA)

¶13

RESPONDENT/S:

¶14

1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

¶15

2 THE PRINCIPAL SECRETARY REVENUE DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPRUAM, PIN-695 001.

¶16

3 THE PRINCIPAL SECRETARY FOREST AND WILD LIFE DEPARTMENT GOVERNMENT OF KERALA SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

¶17

4 THE PRINCIPAL SECRETARY FINANCE DEPARTMENT GOVERNMENT OF KERALA SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

¶18

5 THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND WILDLIFE

¶19

FOREST HEAD QUARTERS, VAZHUTHAKKAD, THIRUVANANTHAPURAM, PIN-695 014.

¶20

WP(C).No.40350 OF 2018(S)

¶21

¶22

6 HARRISONS MALAYALAM LTD. BRISTOW ROAD, WILLINGTON ISLAND, KOCHI, PIN-682 003, REPRESENTED BY ITS MANAGING DIRECTOR.

¶23

R1-5 BY GOVERNMENT PLEADER R6 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R6 BY ADV. SRI.K.JOHN MATHAI R6 BY ADV. SRI.JOSON MANAVALAN R6 BY ADV. SRI.KURYAN THOMAS R6 BY ADV. SRI.PAULOSE C. ABRAHAM

¶24

OTHER PRESENT:

¶25

SPL.GP(FORESTS)- SRI. N.NAGRAJ NARAYANAN

¶26

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶27

WP(C).No.40350 OF 2018(S)

¶28

¶29

C.K.ABDUL REHIM & AMIT RAWAL, JJ.

¶30

W.P.(C) No.40350 of 2018

¶31

Dated this the 13^th day of November, 2019

¶32

J U D G M E N T

¶33

C.K.ABDUL REHIM, J

¶34

The petitioner claims to be a social worker, approaching this Court as pro bono publico, alleging inaction on the part of the Government officials cited as respondents 1 to 5 herein in preventing the 6^th respondent from proceeding with steps initiated for cutting and removal of 1,28,600/- (Approximate) Rubber Trees from the Rubber fields in various estates occupied by it. He is seeking relief to the extent of quashing Ext.P2 Tender Notification published by the 6^th respondent company inviting tenders for disposal of the above said Rubber Trees. Inter alia, the petitioner seeks declaration that the 6^th respondent is not entitled to cut and remove the trees notified in the tender, without recourse of getting permission from jurisdictional civil courts. On the

¶35

WP(C).No.40350 OF 2018(S)

¶36

¶37

alternative, the petitioner seeks relief by way of direction to respondents 1 to 5 to conduct auction sale for cutting and removal of the Rubber Trees, with participation of the 6^th respondent and to deposit the amounts realized in any nationalized Banks until any competent civil court decide upon the title of the property.

¶38

Crux of the contentions raised is that, the properties in which the Rubber Trees situate does not belong to the 6^th respondent and those are properties which stand vested in the Government. Therefore it is contended that, the 6^th respondent has no absolute authority to cut and remove the Rubber Trees standing in the properties, either without obtaining permission from the Government or without getting orders from any competent civil court.

¶39

Firstly, we may have to observe that, the relief claimed as item No.1, to quash the tender proceedings, is not a matter falling within the jurisdiction of this court under Article 226 of the Constitution of India. This is because of the fact that the 6^th respondent is not a 'State' coming within the purview of the Article 12 of the

¶40

WP(C).No.40350 OF 2018(S)

¶41

¶42

Constitution of India and that any action initiated by such a private party cannot be challenged in a proceedings under Article 226.

¶43

With respect to alleged inaction on the part of the respondents 1 to 5 in restraining the 6^th respondent from cutting and removing the Rubber Trees, we have to consider the dispute existing between the Government and the 6^th respondent, with respect to title over the properties in question. Issue related to such a dispute was elaborately considered and decided by a Division Bench of this Court in Harrisons Malayalam Ltd. Vs. State of Kerala (2018 (2) KLT 369). In brief, action initiated by the Government under provisions of the Kerala Land Conservancy Act, 1957, in order to takeover possession of the properties in question was held to be unsustainable. In the said case, the 6^th respondent had taken an elaborate contentions with respect to their title over the properties, narrating about the history of devolution of the landholdings. For the purpose of convenience, we may extract hereunder those contentions, from the above quoted decision.

¶44

WP(C).No.40350 OF 2018(S)

¶45

¶46

“I. History of landholding

¶47

The history of landholding, as submitted by HML, is as follows. In the later part of 1800's, Malayalam Rubber & Produce Co. Ltd. (herein referred to as “MRPL”), a Company incorporated and registered in London, held large extents of land in the erstwhile Princely State of Travancore. On 14.07.1921, a new Company, called “Malayalam Plantations Ltd.,” (hereinafter referred to as “MP (UK) Ltd.”) was incorporated and registered in England by way of a special resolution and all estates and assets held by MRPL were transferred to the newly incorporated Company. The MP(UK) Ltd. was a Company recognized by the erstwhile Travancore Government to do business in the State of Travancore vide: notification

¶48

R.O.C No.2435/1921/Revenue, produced as Exhibit P22 (a) in W.P.(C) No.33122 of 2014. On 08.03.1923, document No.1600/1923 was registered at the Sub Registrar's Office, Quilon by which the estates and assets held by the MRPL was formally transferred to MP(UK) Ltd. The said document was registered as per the Registration Regulation, 1087 (M.E.) of Travancore. Even after Indian independence, MP(UK) Ltd. Continued to hold lands and there were also proceedings initiated for exemption under the KLR Act, which were granted by the Land Board of Kerala.”

¶49

The conclusions in the above referred judgment in brief is that, the Kerala Land Conservancy Act does not confer power on the Special Officer authorized under the said Act to decide on the title of the property. It was held that the order passed in this regard and the reasons mentioned therein to proceed under the said Act are not

¶50

WP(C).No.40350 OF 2018(S)

¶51

¶52

sustainable. The impugned order in that case passed under the Kerala Land Conservancy Act was set aside based on the finding that the Special Officer had no jurisdiction to proceed under the Act. Consequentially, the notices issued requiring the 6^th respondent to vacate the land in question were also set aside. The Division Bench observed that the dispute over the title of the properties cannot be adjudicated under the Land Conservancy Act. Adjudication of the title, whether it is for establishing it or controverting it, is a matter for the civil court. The title has to be found after adducing evidence in a properly instituted civil proceedings. It was observed that, if the State ventures so, to institute any civil suit for establishing the title, it can do so. However, it was observed that, there is no cause for the petitioner (6^th respondent herein) to approach the civil court to establish title, under Section 20 of the Kerala Land Conservancy Act.

¶53

In the statement filed on behalf of the 2^nd respondent, it is stated that, by following the above said judgment of the Division Bench, various orders were issued

¶54

¶55

WP(C).No.40350 OF 2018(S)

¶56

from this court in different writ petitions and the Government have decided to approach the civil court, for which directions were already issued to the District Collectors concerned, to file civil suits for establishing right and title of the Government in the properties in question. However, the 2^nd respondent had not revealed as to whether any such civil suits are already filed or not. It is mentioned that the Government have permitted felling and removal of aged Rubber Trees for the purpose of re-plantation. It is also mentioned that the Government have permitted collection of Land Tax from the 6^th respondent, subject to adjudication of the title of the property in appropriate civil cases. According to the respondents 1 to 5, there is no willful omission occurred on the part of the Government Officials in discharging their statutory responsibility and that the Government have permitted felling and removal of aged Rubber Trees only for the purpose of re-plantation, vide G.O.(MS) No.172/2019/Rev, dated 6.6.2019.

¶57

From the stand adopted by the Government, it is evident that, despite the stand taken by the Government

¶58

WP(C).No.40350 OF 2018(S)

¶59

¶60

disputing title of the 6^th respondent, they have permitted the 6^th respondent to fell and remove the Rubber Trees, for the purpose of re-plantation. Therefore the allegation of the writ petitioner that the 6^th respondent is cutting and removing the Rubber Trees without any permission, seems to be factually incorrect. For that reason alone, the writ petition has to fail.

¶61

In a public interest litigation, it is the duty of the petitioner to furnish all materials before the court, in order to agitate a public cause. In the case at hand, the petitioner has not furnished any material to show that Ext.P2 Tender was invited without getting any permission from the Government. On the contrary, it is evident that the action is based on permission obtained from the Government.

¶62

Sri.Gopinath Menon, learned Senior Counsel, entered appearance on behalf of the 6^th respondent has pointed out that, dehors the dispute alleged to be existing with respect to the title of the properties, nobody has got a case that the plantations are nurtured by the 6^th respondent

¶63

WP(C).No.40350 OF 2018(S)

¶64

¶65

and that they are holding the plantations and taking yield thereof. He placed precedents in order to contend that, there exists ownership on the 6^th respondent with respect to the Rubber Trees, independent of the title over the property, upon which the Government have raised a dispute. However, in view of the above narrated situation, we are of the opinion that we need not dwell upon the above contention or to arrive at any conclusion on those aspects.

¶66

Lastly, learned counsel for the petitioner raised an argument that, the property from which the Rubber Trees are intended to be cut and removed are land coming within the notified areas under the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 and therefore felling of any tree from the area in question is prohibited. We take note of the fact that such an issue was not pleaded in the writ petition. Learned Special Government Pleader (Forest) appearing for the respondents 1 to 5 submitted that, Rubber Trees are exempted from the purview of the above said Act by virtue of inclusion in the schedule

¶67

WP(C).No.40350 OF 2018(S)

¶68

¶69

appended to the Act. However, he submitted that, if there occurs any violation with respect to any such law, the appropriate authority concerned under the Government will take necessary actions.

¶70

Under the above mentioned circumstances, we do not think that the petitioner has made out any case warranting interference of this court to protect any public interest. Consequently, the writ petition fails and the same is hereby dismissed.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

AMIT RAWAL JUDGE

sab

WP(C).No.40350 OF 2018(S)

¶78

¶79

APPENDIX

¶80

PETITIONER'S/S EXHIBITS:

¶81

EXHIBIT P1 THE TRUE COPY OF THE ANNUAL REPORT OF THE 6TH RESPONDENT YEAR ENDED IN MARCH 31, 2018. EXHIBIT P2 THE TRUE PHOTOSTAT COPY OF THE QUOTATION PUBLISHED BY THE 6TH RESPONDENT DATED 17.10.2018 TO THE GENERAL PUBLIC.

Ajesh P.Nair v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Ajesh P.Nair v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Commissioner of Income Tax, Cochin Vs Late Smt. K.J.Marykutty

M/S. Perfect Agencies Vs State of Kerala

M/S Perfect Agencies Vs State of Kerala

Shajahan Vs the Commercial Tax Officer

The Commissioner of Income Tax, Cochin Vs St.Thomas Cathedral Church, Trichur

The Commissioner of Income Tax, Cochin Vs St.Thomas Cathedral Church,Irinjalakuda