MAJEED Vs. STATE OF KERALA

JUDGEMENT

(1.) This case has come up before us on reference by a Division Bench. The Division Bench opined that a question identical to the one arising in this case concerning demand of seigniorage for the shade trees cut and 'removed had been directed by another Division Bench to be placed before a larger bench doubting the correctness of the decision in State of Kerala v. Kannan Devan Hills Produce Co. Ltd., 1998 (1) KLT 28 = 1998 (1) KLJ 78. But the issue was not decided therein. Therefore, the Division Bench felt that,

(2.) The earlier reference referred to by the Division Bench was in Ext.R2(c). Therefore, in order to understand the question of law to be decided by us, we have to refer to Ext.R2(c). The question arose for consideration there, was "the interpretation of Section 4 of the Kerala Grants & Leases (Modification of Rights) Act, 1980". That Division Bench, referring to the decision in State of Kerala v. Kannan Devan Hills Produce Co. Ltd., , found that the Apex Court has held that "the State Government could refuse to permit transportation of timber from the Concession Area" and that "Government being the owner had a right to impose kuttikanam on the removal of the trees out of the Concession Area". That Division Bench also opined that the contention that Kuttikanam could not be charged in respect of "such timber which was planted by the grantee in the concession Area" was negatived by the Apex Court and that the said decision has been distinguished by yet another Bench of this Court in State of Kerala v. Kannan Devan Hills Produce Co. Ltd., 1998 (1) KLT 28, holding that "if the Government had intended to claim ownership on the trees which are to be cultivated by the grantee, specific reference would have been made to such trees also in the documents" and that the Bench, therefore, concluded that if the trees are planted by the grantee, "the grantee is not liable to pay any seigniorage or kuttikanam in respect of timber of those shade trees". That Division Bench noticed that such a finding was arrived at without noticing the Kerala Grants & Leases (Modification of Rights) Act, 1980, Section 4 of which contains a non-obstante clause to the effect that notwithstanding anything contained in any law for the time being in force, or in any grant, lease deed, contract etc., the lessee is bound to pay seigniorage to Government. As "the impact of Section 4 was not considered by the earlier Division Bench in State of Kerala v. Kannan Devan Hills Produce Co. Ltd., 1998 (1) KLT 28, in order to avoid conflict of views" that Division Bench opined that the matter had to be considered by a larger bench. But when that case came up for consideration before a Full Bench, it was not pressed, and the issue was not decided. That was why the present reference order has been passed as mentioned above by another Division Bench.

(3.) Thus, the question to be decided is whether, in the light of Section 4 of the said Act, seigniorage is liable to be paid for removal of the timber of the trees stated to be planted by the grantee from a property assigned by way of grant by Government.