Partly allowed

State of Kerala v. Indira

Kerala HC29 Mar 2022RFA/891/2012

Case brief

AI extract

What is this about?

Wrongful notification of a rubber plantation as ecologically fragile land attracted damages without statutory good-faith protection. The court partly allowed the appeal, excluded three plaintiffs who had sold their land before yielding, retained damages for four plaintiffs, and postponed the commencement of interest.

What did the court decide?

Decree reduced to damages for plaintiffs 2, 3, 5 and 6, with 6% annual interest from December 2009 until realization and costs; claims of plaintiffs 1, 4 and 7 excluded.

State of Kerala Vs Indira — Environment and Pollution | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 29^TH DAY OF MARCH 2022 / 8TH CHAITHRA, 1944 RFA NO. 891 OF 2012

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AGAINST THE JUDGMENT & DECREE DATED 30.06.2012 IN OS 76/2008 OF PRINCIPAL SUB COURT, PALAKKAD

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APPELLANTS/DEFENDANTS 1 TO 7:

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1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2 THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, FOREST HEAD QUARTERS VAZHUTHACAUD, THIRUVANANTHAPURAM.

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3 THE CUSTODIAN OF VESTED FORESTS CONVSERVATOR OF VESTED FORESTS, OLAVAKKODE,PALAKKAD.

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4 THE DIVISIONAL FOREST OFFICER, NEMMARA,PALAKKAD DISTRICT.

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5 THE FOREST RANGE OFFICER, ALATHUR RANGE,ANAKKAPARA, ANCHUMOORTHY MANGALAM.P.O,ALATHUR.

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6 THE TAHSILDAR, TALUK OFFICE,ALATHUR.

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7 THE VILLAGE OFFICER VANDAZHI,VANDAZHI.P.O,PALAKKAD.

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BY SPECIAL GOVERNMENT PLEADER SHRI.NAGARAJ NARAYANAN

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RESPONDENTS/PLAINTIFFS AND 8th DEFENDANT:

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1 INDIRA, D/O.KRISHNAN,THONIPALLAM HOUSE, PULLADIKALATHIL,MANJAPRA.P.O, ALATHUR TALUK,PALAKKAD DISTRICT, PIN-678541.

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2 VELAYUDHAN, S/O.KUTTY,KOTTAMANGALAM,NALLEPPULLY VILLAGE,CHITTUR TALUK,PALAKKAD DISTRICT, PIN-678101.

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3 SUJAYA, W/O.RADHAKRISHNAN,KOTTAKURUSSI, KALAM,PAILOOR,KOLLENGODE,CHITTUR TALUK, PALAKKAD,PIN-678101.

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4 VALSALA, W/O.KRISHNAN, PULLADIKALATHIL, MANJAPRA P.O., ALATHUR TALUK, PALAKKAD DISTRICT, PIN 678541.

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5 KRISHNAN,

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S/O.MUTHU, PULLADIKALATHIL, THONIPPALAM HOUSE, MANJAPRA P.O., ALATHUR TALUK, PALAKKAD DISTRICT, PIN 678541.

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6 VASU, S/O.CHAMI, KANAKKAMPARA, KUTTIPALLAM VILLAGE, CHITTUR TALUK, PALAKKAD, PIN -678101.

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7 PRABHAKARAN, S/O.CHAMI, PUTHEN VEDU, THEKKEMURI, NALLEPULLY, CHITTUR TALUK, PALAKKAD, PIN -678101.

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8 ALATHUR PRIMARY CO-OPERATIVE AND AGRICULTURAL DEVELOPMENT BANK ALATHUR- REPRESENTED BY ITS SECRETARY.

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(RESPONDENTS 1 TO 7 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER M.KANNAN, S/O.MUTHU, PULLADIKALATHIL, THONIPALLAM HOUSE, MANJAPRA, ALATHUR TALUK, PALAKKAD DISTRICT.)

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BY ADVS.

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SRI.K.JAYESH MOHANKUMAR } SRI.PUSHPARAJAN KODOTH } FOR R1 to R7 SRI.T.SETHUMADHAVAN } SMT.VANDANA MENON } SRI.ALAN PAPALI } SMT.O.V.BINDU } FOR R8 SMT.DHANYA P.ASHOKAN } SRI.P.K.VIJAYA MOHAN }

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“C.R.”

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P.B. SURESH KUMAR & C.S. SUDHA, JJ.

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Dated this the 29^th day of March, 2022

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J U D G M E N T

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C.S. Sudha, J.

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This is an appeal filed against the judgment and decree dated 30/06/2012 in O.S.No.76/2008 on the file of Subordinate Judge's Court, Palakkad. The suit for compensation/damages has been decreed. Defendants 1 to 7 are the appellants and the plaintiffs and the eighth defendant, the respondents herein. The parties in this appeal will be referred to as described in the suit.

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The plaintiffs through their power of attorney, allege in the plaint that property having a total extent of 46.35 acres situated in re-survey no.551, Vandazhi Village, Alathur Taluk, Palakkad district, was purchased by them during the period 1999-2000 by various registered documents. The

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property purchased by the plaintiffs was the subject matter in O.A.No.331, 333, 334 and 336 of 1976 on the file of the Forest Tribunal, Palakkad. These OAs filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (the Vesting and Assignment Act), were originally allowed by the Forest Tribunal, Palakkad, holding that the property was liable to be excluded from the provisions of the Vesting and Assignment Act. This order was set aside by this Court in M.F.A.Nos.127,128, 142 and 443 of 1980 and the matter remanded to the Forest Tribunal for a fresh consideration. After remand, the Forest Tribunal as per order dated 31/07/1988 again allowed the OAs exempting the property from the purview of the Vesting and Assignment Act. Against this order of the Forest Tribunal, the defendants therein took up the matter in appeal by filing M.F.A.No.374/1987. This Court by judgment dated 31/01/1997 confirmed the order of the Forest Tribunal and dismissed the appeal. Against the decision, Special Leave Petition No.10913/1997 was filed before the Apex Court. By order dated 01/12/1997 the SLP was dismissed. However, defendants 1 to 5 did not immediately restore possession of the property to

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the applicants. On the other hand, possession was handed over only on 14/01/1999 as per the order of this Court in O.P.No.6566/1998.

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2.1. The plaintiffs, who are agriculturists, purchased the property from the applicants in the aforesaid OAs for the purpose of developing the same as a rubber plantation. After the purchase, the plaintiffs applied to the Rubber Board, Regional Office, Palakkad, for getting necessary registration, which was granted. For the development of the property as a rubber plantation, funds were required and so the plaintiffs approached the eighth defendant bank, for a loan. Accordingly, the eighth defendant sanctioned the loan sought for, pursuant to which the first three installments were disbursed to the plaintiffs totaling an amount of ₹ 19,88,540/-. After obtaining the first three installments of the loan, the plaintiffs developed the property by planting rubber saplings. When the plaintiffs obtained possession of the property, there were no trees in the property and it had no characteristics whatsoever of an ecologically fragile land (EFL). The property was restored to the predecessors-in-interest of the plaintiffs after a protracted legal battle, but defendants 1 to 5 were in no mood to see that the

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property was available for the enjoyment by the plaintiffs. In the second week of August 2000, defendants 4 and 5 threatened the plaintiffs that they would destroy the saplings planted in the property. The fourth defendant approached the power of attorney of the plaintiffs and demanded a huge sum of money for not including the property within the purview of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000 (the Ordinance). This demand was not acceded to by the power of attorney holder of the plaintiffs. Hence defendants 4 and 5 accompanied by their subordinate officers, uprooted and destroyed the saplings in the property. So, the plaintiffs were forced to file O.P.No.24844/2000 for restraining defendants 4 and 5 and their officials from interfering with the possession and enjoyment of the property. Ext. A11 order of injunction dated 30/08/2000 in CMP No.41944/2000 was passed restraining the defendants from interfering with the possession and enjoyment of the property by the plaintiffs.

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2.2. During the pendency of the original petition and the interim order, defendants 4 and 5 with a view to cause irreparable injury and loss to

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the plaintiffs and also to deprive them from possessing and enjoying the property, with total lack of bona fides , intentionally and willfully misusing their official capacity, recommended to the second defendant to include the property in the notification to be issued under the Ordinance. The second defendant on the basis of the recommendation made by defendants 4 and 5, included the property of the plaintiffs in the notification issued under the Ordinance on 02.01.2001. The inclusion of the property in the notification was done willfully, purposefully, without any bona fides and by abusing their official powers. This was done at the instance of the fourth defendant, as the plaintiffs refused to accede to his illegal demand. The action of the fourth defendant notifying the land under the Ordinance was not in good faith, but with a mala fide intention to cause wrongful loss to the plaintiffs and to harass them.

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2.3. Pursuant to the property being notified as EFL, the 5^th defendant informed the said fact to the 7^th defendant, Village Officer, who in turn informed the 8^th defendant Bank that the possession certificate issued has been cancelled. The cancellation of the possession certificate by the 7^th

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defendant was at the instance of the 5^th defendant based on the notification. Because of the cancellation of the possession certificate, the 8^th defendant did not disburse the remaining part of the loan amount sanctioned to the plaintiffs. Hence the plaintiffs were unable to develop their property by effecting necessary agricultural operations.

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2.4. When the notification was wrongly issued, the plaintiffs complained to the Select Committee constituted by the Legislative Assembly for considering the inclusion of various lands under the purview of the Ordinance. The Select Committee headed by the then Forest Minister, inspected the plaintiffs' property on 17.02.2003. The Committee after inspection opined that the land could never be included in the notification. Before the inspection by the Select Committee, the plaintiffs' understanding is that the 3^rd defendant in order to wriggle out of the situation, had convened a meeting of the Divisional Forest Officer and Range Officer to convince the Select Committee that the inclusion of lands under the notification was after due and proper enquiry. Defendants 4 and 5 knowing fully well that the Select Committee would find fault with them, took a

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decision in the meeting to report to the 2^nd defendant that the inclusion of several items of property under the notification was due to improper verification done by the Forest Officials. Accordingly, the 3^rd defendant by Ext.A9 communication dated 08.04.2002 informed the 2^nd defendant that inclusion of the plaintiffs' land under the notification happened to be due to an improper verification and report made by the Divisional Forest Officer and the Forest Range Officer. Accordingly, the 3^rd defendant recommended to the 2^nd defendant to take remedial measures for deleting the property of the plaintiffs from the notification.

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2.5. On coming to know of the said communication, the plaintiffs filed CMP No.54397/2002 in O.P.No.24844/2000. Simultaneously, they also approached the second defendant requesting him to take necessary steps for deleting the property from the notification. This Court by judgment dated 29.01.2003 directed the second defendant to consider the representation of the plaintiffs, in the light of the recommendation dated 08.04.2002 made by the third defendant. Pursuant to the same, the second defendant passed an order to the effect that, the property has already vested

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in the Government and so he has no power to delete the property from the notification. This order of the second defendant dated 31.05.2003 was challenged by the plaintiffs by preferring W.P.(C)No.18214/2003. By Ext.A4 judgment dated 09.01.2004, the order passed by the second defendant was quashed and it was held that once the second defendant finds that the property has been wrongly notified under the Ordinance, he has all the power to de-notify the same in terms of Section 20 of the General Clauses Act, 1897 and Section 21 of the Kerala General Clauses Act, 1125. Accordingly, the second defendant was directed to de-notify plaintiffs' land within a period of four weeks. In spite of the directions issued, the second defendant failed to de-notify the land. Due to the willful failure on the part of the second defendant to comply with the directions issued by this Court, the plaintiffs filed Contempt Case (Civil) No.409/2004. This court on 29.03.2004 directed the second defendant to appear in person before the court on 02.04.2004 to show-cause as to why action should not be taken against him for not complying with the direction issued by this Court. Based on the said order, the second defendant appeared before this court and

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submitted Ext.A10 affidavit dated 02/04/2004 stating that the land claimed by the petitioners in W.P.(C) No.18214/2003 has been de-notified and the same published in the Gazette dated 01.04.2004. This was recorded and the contempt case closed as per Ext. A6 order dated 02/04/2004.

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2.6. Due to the wrongful acts of defendants 1 to 5, the plaintiffs allege that they have sustained heavy loss. They also suffered mental agony and unnecessary expenditure in filing cases one after the other for saving their property. The interest and penal interest on the loan amount disbursed has accrued. Due to the inclusion of the land under the Ordinance, the plaintiffs were prevented from giving proper care and attention to the maintenance of the plants. The growth of the rubber plants was seriously affected. The entire amount sanctioned by the eighth defendant-Bank had been invested in the property. The development of the plantation, manuring and other incidental expenses like weeding operations etc. could not be done due to paucity of funds, as further amounts were not sanctioned by the bank, due to the cancellation of the possession certificate. The planting was done by the plaintiffs during the month of July 1999. In the normal course, if proper

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attention had been given to the plants, the plaintiffs could have started tapping the trees from the year 2006. As proper care could not be given to the plantation due to the wrongful acts of the defendants, the growth of the rubber plants was severely affected. The tapping of the trees which ordinarily would have been possible from the 7^th year, would now be possible only from the 10^th year. The plaintiffs thereby lost yield of 3 years. In addition, the interest on the loan already sanctioned has accrued. The loss computed in the plaint is calculated on the basis of the average period fixed by the Rubber Board to begin tapping of rubber trees being properly looked after. The plaintiffs have sustained loss of ₹ 97,63,431/-. Hence, the suit claiming the said amount with interest at the rate of 16.5% per annum from the date of suit till realization and costs from defendants 1 to 5 and their assets.

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The 4^th defendant filed written statement contending that after the order dated 01.12.1997 in SLP No.10913/1997 by which the order of the Forest Tribunal exempting the disputed land from the Vesting and Assignment Act was confirmed, there was some official formalities to be

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completed before restoration of the property to its owners and so the handing over was slightly delayed. The property was restored to the predecessors-in-interest of the plaintiffs on 14.01.1999. The property was a portion of forest land predominantly supporting natural vegetation and lying contiguous to vested forest, coming under the definition of an EFL under the Ordinance. The land was not under cultivation as on 02.06.2000. As the land came within the definition of an EFL, it was notified on 20.10.2000 and the same was published in the Gazette on 02.01.2001. The allegation that rubber saplings had been planted in the property during 1999 is incorrect and false. The property was never cultivated till June, 2000. The power of attorney holder of the plaintiffs had encroached into the forest area adjoining their property and constructed a shed thereon. This was detected by the staff of Alathur Forest Range and on 29.08.2000 a case was registered against him as O.R.No.32/2000. The attempt of the plaintiffs was to encroach upon the vested forest situated adjacent to their property. Their attempt was to take the property out of the ambit of Section 3(1) of the Ordinance. The 5^th defendant was duty bound to inform the Village Officer

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that the property owned by the plaintiffs has been notified as EFL. Pursuant to the notification, the action of the Village Officer in cancelling the possession certificate issued to the plaintiffs is just and legal. When the property was restored to the predecessors-in-interest of the plaintiffs, it was full of small trees and bushes. Many types of butterflies and birds were seen in the schedule property. The property clearly came within the ambit of Ordinance 6/2000. The plaintiffs had not started any operation in the schedule land as on 02.06.2000. However, immediately after the promulgation of the Ordinance, the plaintiffs hurriedly planted rubber saplings in the property in a phased manner with the intention to take it out of the purview of the Ordinance. This was objected to by the officials under the defendants, who apprised the plaintiffs of the fact that the land on which the planting operation was being done is a land coming under the purview of the Ordinance. The plaintiffs then filed O.P.No.24844/2000 alleging that the defendants were trying to disturb their enjoyment and possession of the property under the cover of the Ordinance and secured Ext.A11 injunction order in CMP No.41944/2000 dated 30.08.2000, by which the defendants

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were restrained from interfering with the plaintiffs’ possession and enjoyment of the property. After obtaining the injunction order, the plaintiffs went on developing the property into a rubber plantation as a result of which neither the defendants nor their officials could prevent the same. The notification issued on 20.10.2000 was deleted by the Principal Chief Conservator of Forest and Custodian of Forest (EFL) pursuant to judgment dated 09.01.2004 in W.P.(C)No.18214/2004. The Select Committee constituted by the Legislative Assembly under the Chairmanship of the then Forest Minister had inspected the property to check whether the notification had been properly made. Thereafter physical verification was conducted by the Divisional Forest Officer and recommendation submitted for deleting certain properties wrongly notified by the notification. The power to divest as per the Ordinance was vested with the Forest Tribunal under Sections 9 and 10 of the Ordinance and hence the reason why the 2^nd defendant rejected the representation of the plaintiffs to de-notify the land. The property held by the plaintiffs is a portion of forest land predominantly supporting natural vegetation and lying contiguous to the vested forest and

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therefore, clearly coming under the definition of EFL as contemplated under Section 2(a)(1) of the Ordinance. Hence the inclusion of the land under the Ordinance was just and proper. The allegation that the plaintiffs had planted rubber saplings in the disputed property in July, 1999 is incorrect. The officials of the defendants did go to the property during the 3^rd week of August, 2000, when the plaintiffs started making preparations for planting the saplings. Though the defendants had advised the plaintiffs against the move, as their land came within the definition of EFL, the latter, did not heed to their instructions and went on developing the property into a rubber plantation. Hence, if at all they had sustained any loss as alleged by them, the defendants are not liable for the same. Further, the property has been sold by the plaintiffs to third parties. The suit is without any bonafides and hence liable to be dismissed with costs.

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On completion of the pleadings, necessary issues were framed by the court below. PW1 was examined and Exts.A1 to A30 were marked on the side of the plaintiffs. No oral evidence was adduced by the defendants. Exts.B1 to B6 were marked on the side of the defendants. The

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commission reports have been marked as Ext.C1 and C2. After considering the oral and documentary evidence and hearing both sides, the court below proceeded to decree the suit.

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Heard Shri.Nagaraj Narayanan the Special Government Pleader

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for the appellants and Shri.T.Sethumadhavan the learned Senior Counsel for respondents 1 to 7.

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The points that arise for consideration are:

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(i) Is the suit hit by the bar contained under Section 14 of the

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Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (the Act)?

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(ii) Have the plaintiffs pleaded and proved lack of bonafides or malafides by the defendants in the notification of their property as EFL?

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(iii) Have the plaintiffs sustained any loss due to the wrongful act of defendants 1 to 5 entitling them to the damages prayed for? If so, the measure of damages?

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(iv) Is there any infirmity in the findings of the court below calling for an interference by this Court?

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7. Points (i) & (ii) - Section 14 of the Act reads -

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“ 14. Indemnity. - No suit, prosecution or legal proceedings shall lie against the Government or the Tribunal or the custodian or any other officer for anything in good faith done or intended to be done under this Act or any rule or order made thereunder.”

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Therefore, the plaintiffs in order to succeed, will have to establish that the act of defendants 1 to 5 in notifying their property as EFL was done not in good faith or that it lacked bonafides or that it was done with malafides . We have already referred to in detail the case alleged in the plaint. Paragraphs 4, 5 and 6 of the plaint refer to the background and the reasons which prompted defendants 4 and 5 to recommend for notifying the property as EFL. There is absolutely no denial of the same in the written statement. The power of attorney of the plaintiffs examined as PW1 reiterate these facts pleaded in the plaint in his chief affidavit filed in lieu of chief examination. PW1 has not been cross-examined on any of these crucial aspects. It is true that the details of the person who is alleged to have demanded money from the plaintiffs has not been given in the plaint. Here we refer to Order VI Rule 4 CPC which reads-

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“ Particulars to be given where necessary. —In all cases in which the

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party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”

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When the attention of the learned senior counsel for the plaintiffs was drawn to O.VI R.4 CPC and asked as to why the details of the person who demanded money has not been pleaded in the plaint, our attention was drawn to Order 27 Rule 5A and it was submitted that the same is unnecessary as the State is vicariously liable for the act of its employees. Order 27 Rule 5A CPC reads -

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“ 5A. Government to be joined as a party in a suit against a public officer. - Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.”

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This provision only says that the Government should be made a party when a suit is instituted against a public officer for damages or other relief(s) in respect of any act alleged to have been done by him in his official capacity. The Rule does not however say that the officer concerned

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need not be impleaded or that it is unnecessary to give his details in the plaint. Here the specific case is that the 4^th defendant demanded a huge sum of money from the power of attorney holder of the plaintiffs for not notifying their property as EFL. The 4^th defendant is described in the cause title of the plaint as – “The Divisional Forest Officer, Divisional Forest Office, Nemmara, Palakkad District”. Barring this anomaly, there are ample and sufficient pleadings relating to the case of lack of bonafides or malafides on the part of defendants 4 and 5 in notifying the land as EFL, which case has not been controverted at all by the defendants in their written statement.

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In terms of O.8 R.3 CPC, a defendant is required to deny or dispute the statements made in the plaint categorically, as evasive denial would amount to an admission of the allegation made in the plaint in terms of O.8 R.5 CPC. In other words, the written statement must specifically deal with each of the allegations of fact made in the plaint. The failure to make specific denial amounts to an admission. (Jaspal Kaur Cheema v. M/s.Industrial Trade Links, AIR 2017 SC 3995; Badat and Co. v. East India Trading Co., AIR 1964 SC 538; Sushil Kumar v. Rakesh Kumar,

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(2003)8 SCC 673 and M. Venkataramana Hebbar v. M. Rajagopal Heb-

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bar, (2007) 6 SCC 401 ).

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If a plea which is relevant for the purpose of maintaining a suit has not been specifically traversed, the Court is entitled to draw an inference that the same had been admitted. A fact admitted in terms of S.58 of the Evidence Act need not be proved ( M. Venkataramana Hebbar v. M. Rajagopal Hebbar, (2007) 6 SCC 401).

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The learned Special Government Pleader drew our attention to the proviso to Sub-rule (1) of R.5 of O.8 of CPC and canvassed for the point that the court can in its discretion require any fact, even if admitted, to be proved otherwise than by such admission. According to him, in the instant case, there are no clear or specific pleadings, or a consistent case and also no proper cause of action. Therefore, even assuming that the case pleaded in the plaint has not been denied by the defendants amounting to an admission, this court shall, on the basis of the proviso to Sub-rule (1) of R.5 of O.8 of CPC insist on strict proof of the case of the plaintiffs and not merely

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rely on any admission, if any, made by the defendants or the weakness of the case of the defendants.

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We disagree with the argument advanced on behalf of the defendants. R.3 of O.8 deals with specific denial, R.4 deals with evasive denial and R.5 with specific denial. All these three Rules form an integrated Code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint. When a defendant denies any such fact alleged in the plaint, he must not do so evasively but must answer the point of substance. If denial of fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. To do justice between the parties, for which courts are intended, the rigor of R.5 has been modified by the proviso. Under the proviso the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. True, in construing such pleadings, the proviso can be invoked only in exceptional circumstances to prevent obvious in-

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justice to a party or to relieve him from the results of an accidental slip or omission. It cannot be to help a party who designedly made vague denials. The discretion under the proviso has to be exercised by a court having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting in a locality, and the traditions and conventions of a court wherein the pleadings are filed. R.3 provides that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiff and the defendant must deal specifically with each allegation of fact, of which he does not admit the truth except damages. R.4 provides that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance and if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. Sub-rule (1) of R.5 of O.8 of CPC only mandates that every allegation of fact in the plaint shall be denied either specifically or by necessary implication, or stated to be not admitted in the pleading and if not the allegations in the plaint shall be taken as admitted except the acts against a person under disability. To decide whether there is a specific de-

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nial or a denial by necessary implication, the written statement has to be read as a whole ( Josita Antony v. New India Assurance Company Ltd., 2005 KHC 2096).

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A reading of the entire written statement of the defendants would show that there is no denial at all relating to the specific case of the plaintiffs regarding the lack of bonafides or their malafides in notifying the property. Furthermore, the testimony of PW1 on these aspects has not been discredited, much less even challenged.

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In the plaint detailed pleadings regarding the numerous litigations that the plaintiffs and before them their predecessors-in-interest had to initiate and conduct to get possession of the property has been narrated in the plaint. The first proceeding before the Forest Tribunal seeking exemption from the Vesting and Assignment Act is seen filed in the year 1971. It was after a prolonged legal battle, which went up to the Hon'ble Supreme Court, the order of the Forest Tribunal exempting the property from the Vesting and Assignment Act was confirmed in the year 1997. However, the defendants still did not restore possession immediately. The fact that there

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was further delay of about 2 years in handing over possession of the property to its owners is admitted in the written statement. In paragraph 3 of the written statement the defendants contend that the restoration of possession was delayed due to ‘some official formalities’. What was this ‘official formality’ has not been explained. It is further admitted that as the possession was not handed over, the predecessors-in-interest of the plaintiffs approached this court by filing O.P.6466/1998 seeking a direction for restoring possession of the property to its rightful owners. This court by judgment dated 10/06/1998 directed the defendants to restore possession pursuant to which, possession of the property was handed over on 14/01/1999 to the predecessors-in-interest of the plaintiffs, that is, after about 28 years of the initiation of the proceedings before the Forest Tribunal.

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Even thereafter, the defendants seem to have been in no mood to allow the owners peaceful enjoyment of the property. At the risk of repetition, we again refer to the pleadings in the plaint in which it is alleged that defendants 4 and 5, due to the refusal of the plaintiffs to accede to their demand for illegal gratification, recommended and included the property in

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the notification as an EFL. This notification was challenged by the plaintiffs in WP(C) No.18214/2003. In the said proceedings, the Principal Chief Conservator of Forest submitted before the court that inclusion of the property under the Ordinance was a mistake and that it was done without proper care and attention on the part of the Forest Officials. He is also seen to have taken up a stand that the land already notified under the Ordinance has vested in the Government and as the Ordinance has lapsed, he has no power to de-notify the property from the purview of the Ordinance. This argument was rejected by this court by Ext. A4 order dated 09/01/2004 and directed the Principal Chief Conservator of Forest to de-notify the land within a period of 4 weeks of the receipt of a copy of Ext.A4 order. However, this order was also not complied with by the defendants. The plaintiffs then had to move a Contempt of Court Case, that is, Con. Case (C) No. 409/2004, in which case, this court on 02/04/2004 directed the 2^nd defendant to appear before the court in person and to show cause as to why action should not be taken for not complying with the order. Pursuant to this order, the 2^nd defendant appeared before the court and filed Ext.A10 affidavit offering his un-

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conditional apology for the delay caused in complying with the order of this court and also produced a notification dated 01/04/2004 de-notifying the property.

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Further, the allegation of the plaintiffs that they were obstructed from enjoying the property is more or less admitted by the defendants in their written statement. In paragraph 8 of the written statement, they contend that when the officials of the defendants went to the property during the 3^rd week of August 2000, the plaintiffs had started making arrangements for planting saplings in the property. The officials then apprised the plaintiffs that they should refrain from doing so as the property fell within the ambit of the Ordinance. This contention of the defendants also probalises the case of the plaintiffs that the defendants had in fact interfered with their enjoyment and possession of the property, forcing them to move for obtaining Ext.A11 injunction order.

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The plaintiffs have a specific case that when the property was

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handed over to them, there were no trees in the same. They had purchased the property with the intention of developing it into a rubber plantation and

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that after they obtained possession, they had also planted rubber saplings with the aforesaid intention in mind. Therefore, according to the plaintiffs their property could never be described as an EFL. Though the defendants in their written statement and in the arguments before us, take up a case that the property had all the characteristics of an EFL and hence the reason for the inclusion in the notification, there is absolutely no material to substantiate the same. The fact that the officials had notified the property without proper care and enquiry is apparent from their own documents, namely, Exts.A9 and A12. These letters dated 08.4.2002 from the Conservator of Forest, Olavakod Circle to the Principal Chief Conservator of Forest, Thiruvananthapuram read:

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“ 413 bits have been notified as Ecologically Fragile lands from this Circle under the Ordinance. Details of another 121 plots have been submitted to that Office which is pending notification. It was suspected that adequate care was not exercised in notifying these areas. Xxxxxxxxxxxx

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…………. From the reports it is seen that 11 plots in Nemmara Division, 45 plots in Palakkad Division, 5 plots in Nilambur (South) Division and 3 plots in Mannarkkad Division should not have been notified under the ordinance. Division wise, case wise details along with the reason why the

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area should not have been notified is enclosed.

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Kindly do the needful to ensure that such ineligible areas are deleted from the list of fragile lands through an erratum notification.

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It is understood that the Select Committee constituted for the purpose will be visiting the field shortly. This fact may also be brought to the notice of the Committee before they started the field visit so that the matter is appreciated in the right spirit.”

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The Special Government Pleader drew our attention to Section 3(22) of the General Clauses Act, 1897 which says that a thing shall be deemed to be done in “good faith” where it is in fact done honestly, whether it is done negligently or not. Section 3 of the 1897 Act reads-

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“3. Definitions. - In this Act, and in all Central Acts and Regulations made after the commencement of this Act , unless there is anything repugnant in the subject or context, -……”.

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The Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act is a State Act. Therefore, going by the definition clause of the 1897 Act, the provisions of the said Act cannot be applied to a State Act. On the other hand, Section 3 of the Kerala Interpretation and General Clauses Act, 1125 reads-

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“Definitions. - In this Act, and in all enactments now in force or

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passed after the commencement of this Act, unless there is anything repugnant in the subject or context-….”

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Section 2(14) of the 1125 Act reads -

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“(14) nothing is said to be done or believed in “good faith” which is done or believed without due care and attention;”

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Apparently, it can only be the 1125 Act that can be applied to the Act in question here, it being a Kerala Act. Now the question is, was the act of the defendants done with ‘due care and attention’? The answer, we are afraid, can only be in the negative. Exts.A9 and A12 which are admittedly the defendants’ documents itself say that adequate care was not exercised in notifying the property. These communications further probalise the case of the plaintiffs that the inclusion of their land in the notification was with total lack of bonafides and that the defendants had hurriedly taken steps before the visit of the Select Committee to make it appear that all acts had done with total care and with all bonafides. The inclusion appears to have been quite recklessly done by the officials concerned. The net result is that the plaintiffs had to run from pillar to post, initiate and conduct litigations

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before various fora for years to establish their right in the property. Therefore, it appears, as alleged by the plaintiffs, to be a clear case of lack of bonafides or good faith on the part of the defendants. Hence the bar under Section 14 of the Act is not attracted in this case and so we find the suit to be maintainable. Points answered accordingly.

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Point No.(iii): The total extent of the property is about 46.35 acres out of which rubber saplings are stated to have been planted in 10 acres of property. According to the plaintiffs they required funds for making necessary improvements and developing the property into a pucca rubber plantation. So, they approached the 8^th defendant-Bank who sanctioned the loan, out of which an amount of ₹19,88,540/-, that is, the first three instalments were disbursed to them. The entire amount was utilised for the purpose for which it was availed. By then the defendants without any bonafides notified the land as EFL, as a result of which, the possession certificate issued by the Village Officer was cancelled due to which the 8^th defendant-Bank refused to disburse further loan instalments. The plaintiffs rely on Exts. A21 and A22 series to substantiate their case that they had

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taken steps to get their property registered with the Rubber Board and that the loan amounts had been sanctioned to them. These facts have not been disputed by the defendants in the written statement. PW1 was also not cross examined or his testimony discredited on these aspects.

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It was argued on behalf of the defendants that nothing prevented the plaintiffs from properly maintaining or up-keeping their plantation. The damages claimed by them are too remote and that loss if any caused, was not due to any act on the part of the defendants in this case. In support of this argument reference was made to Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, 1997 KHC 1465; Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. Ltd., (1966) 2 All E.R. 709 and Mutha Associates v. State of Maharashtra, 2013 KHC 3889. We cannot agree to this argument in the light of the afore mentioned facts, evidence and materials brought in by the plaintiffs. This coupled with the fact that the same has not been discredited, much less disputed or denied by the defendants. All the pleadings, evidence and arguments which ought to have been taken up by the defendants before the

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trial court, is now being attempted to be thrust forward at the appellate stage, which for apparent reasons cannot be entertained. The defendants also have a case that it was on the strength of the interim order of injunction obtained from this Court that the plaintiffs had planted the rubber saplings and as the order was pending, they could not prevent it. If that be so, they ought to have brought the same to the notice of this Court and got the interim order of injunction vacated. No such steps are seen taken by the defendants.

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The Advocate Commissioner and the expert appointed to assist the Advocate Commissioner have filed Ext.C1 and C2 reports. The expert has assessed the loss caused to the plaintiffs as ₹ 1,00,41,343/-. Neither the Advocate Commissioner nor the expert who assisted the Commissioner was examined to discredit the facts stated in the reports. Therefore, we find no reasons to disbelieve the facts reported in Exts.C1 and C2.

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Now coming to the measure of damages. It was brought to our notice on behalf of the defendants that out of the 7 plaintiffs, three of them, that is the 1^st , 4^th and 7^th plaintiffs have already sold their part of the property

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even before the filing of the suit to third parties. This fact is not disputed by the plaintiffs. The learned Senior Counsel for the plaintiffs pointed out that those sale deeds have been executed by 1^st , 4^th and 7^th plaintiffs, reserving their right to claim damages. True, sale deeds were executed by the said plaintiffs reserving the right to claim damages, but since they have admittedly sold the property before the rubber saplings planted by them matured for yielding, in the absence of any case for them as to how they could claim compensation for loss of yield for three years in such a situation, according to us, they are not entitled to damages claimed in the suit. Hence, an amount of ₹ 52,93,917/- (₹ 21,16,605/- + ₹ 19,28,701/-+ ₹12,48,611/-) will have to be deducted from the total amount of ₹ 1,00,41,343/- assessed as loss by the expert in this case.

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Now coming to the damages to which the remaining plaintiffs, that is, Plaintiff Nos.2, 3, 5 and 6 are entitled to. As noticed earlier, the specific case of the plaintiffs is that the rubber saplings were planted in the year 1999. In the ordinary course, if proper attention had been given to the plants, they could have started tapping the trees by the end of 2006. The

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tapping of the trees is now possible only from the 10^th year instead of the 7^th year. The seventh year from 1999, that is, the year of planting, is 2005. The plaintiffs claim damages for the loss of income for a period of 3 years, that is, for the period from 2006 to 2009. The suit has been filed on 19.08.2005. It was pointed out on behalf of the defendants that even according to the admitted case of the plaintiffs, they would start getting income only from the end of 2006. However, suit has been filed in the year 2005, even before the cause of action has arisen, which is yet another reason to dismiss the suit.

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The claim being premature is no reason to dismiss the same. The Hon’ble Supreme Court in Vithalbhai Pvt. Ltd. vs. Union of IndiaAIR 2005 SC 1891: 2005 KHC 601 , held that a suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the Court; the Court entertaining such a suit and passing decree therein is

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not acting without jurisdiction but it is in the judicial discretion of the Court to grant decree or not. The Court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea should not be permitted to be raised at a belated stage of the suit. However, the Court shall not exercise its discretion in favour of decreeing a premature suit in the following cases : (i) When there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself

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patently void and the invalidity is incurable such as when it goes to the root of the Court's jurisdiction, and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency and (v) where leave of the Court or some authority is mandatorily required to be obtained before the institution and was not so obtained (See also Samar Singh v. Kedar Nath - 1987 KHC 801:AIR 1987 SC 1926 ). Here the plaint claim does not fall under any of the exceptions referred to in Vithalbhai ( supra ) and hence it cannot be dismissed or rejected solely on the ground that it is premature.

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The court below on the basis of Exts. C1 and C2 allowed the entire plaint claim by the impugned judgment dated 30/06/2012. We find no infirmity in the conclusion of the court below that the plaintiffs other than plaintiffs 1, 4 and 7 are entitled to the damages. But they cannot be awarded interest from the date of suit which was filed on 19/08/2005 for the loss of income sustained by them from the end of the year 2006. The loss assessed in terms of the reports of the Advocate Commissioner and the Expert being

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the loss caused to the plaintiffs for the period from 2006 to 2009, in the absence of any material indicating the year-wise loss, according to us, the plaintiffs could have been granted interest for the same only from December 2009. An amount of ₹ 52,93,917/-, computed as loss of plaintiffs 1, 4 and 7 will have to be deducted from the total loss of ₹ 1,00,41,343/- stated in Ext. C2 report of the expert. Plaintiffs 2,3,5 and 6 will be entitled to ₹ 10,49,596/-; ₹ 3,27,998/-; ₹ 6,97,429/- and ₹ 10,41,596/- respectively as loss assessed by the expert in Ext. C2 with interest @ 6% per annum from December 2009 (as it is the case in the plaint that in the ordinary course, if proper attention had been given to the plants, they could have started tapping the trees by the end of 2006) till realization and costs from defendants 1 to 5 and their assets. To that extent the judgment and decree of the court below requires to be modified. Point answered accordingly.

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Point no. (iv): - In the result, the appeal is partly allowed. The judgment and decree of the court below is modified to the following extentThe suit is partly decreed and plaintiffs 2,3,5 and 6 together are entitled to ₹ 31,16,619/- (₹ 10,49,596/-+ ₹ 3,27,998/-+ ₹ 6,97,429/- + ₹ 10,41,596/-

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respectively) with interest @ 6% per annum from December 2009 till realization and costs from defendants 1 to 5 and their assets.

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Sd/-

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P.B. SURESH KUMAR, JUDGE

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Sd/- C.S. SUDHA, JUDGE

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