NATURE LOVERS MOVEMENT Vs. STATE OF KERALA

JUDGEMENT

(1.) THE prayer in this Original Petition which is said to have been filed in public interest is for the issuance of a declaration that all leases, licences and grants given by the 1st respondent/State of Kerala in respect of any forest land stood automatically expired on the commencement of Central Act 69 of 1980 [The Forest (Conservation) Act, 1980] (for short 'the Acts') and for the issuance of a writ of certiorari quashing Exts. P1 and P-2 orders granting leases/licences of forest land to various persons after the commencement of the Act as illegal and void ab inicio if they are ordered without the prior approval of the 7th respondent/Union of India and to forbear by a writ of mandamus respondents 1 to 6 from issuing such licences or leases envisaged in Ext. P-1 and like orders, and collect the rent at the revised rate as provided for in the Kerala Grants and Leases (Modification and Rights) Act, 1980 and rules made thereunder for all licences, leases and grams existing prior to the commencement of Act 69 of 1980 and for other reliefs,

(2.) THERE are several plantations in Nelliampathy High Range in Palakkad District leased out by the erstwhile Government of Cochin to different persons.The portions of forests leased out were separately enclosed and came to be known as enclosures within the reserved forest. Since the leases were granted at different times the conditions of the lease also varied from case to case. In most cases leases have been given in perpetuity while in some cases leases have been granted for fixed lease periods. The holders of the various estates in Nelliampathy have submitted a representation to the 1st respondent/State of Kerala containing the following demands:

(3.) FROM the counter affidavit filed by the 8th respondent the following factual scenerio will emerge. Pursuant to a notification dated 13th January 1953 published in the Travancore - Cochin gazette two estates by name East Pullala and West Pullala were notified for sale by auction, which in turn was bid in auction by late P. D. Paul (husband of the 8th respondent). The auction was confirmed by the Government by order dated 15th April 1953. The area of 139-29 acres comprised as West Pullala was found to be not available for lease since the same was outstanding on lease with others. By Ext. R-8 (d) dated 9th August 1954., the State Government granted sanction for the lease of forest land measuring 139.29 acres in substitution of the West Pullala Plantation which had been sold in auction thereby making up the deficiency in extend. The possession of the said area was handed over to late P.D. Paul on 2nd February 1955 pursuant to Ext. R-8 (e) direction dated 29th January 1955. By Ext. R-8 (f) order dated 5th December 1956 sanction for sale of the tree growth in the 247.07 acres of land leased out to the aforesaid Paul was granted. A sum of Rs. 59,914-78, being the value of the tree growth .over the 247.07 acres of land leased out was paid by Paul on 1st February 1957. On the same date, Paul was issued a memo by the Divisional Forest Officer, Trichur, informing him that the Range Officer has been instructed to allow him to clear the tree growth for developing the area into a plantation. P. D. Paul clear-felled the area and developed the entire area of 247.07 acrcs into a coffee plantation. The entire forest lands were 'broken up' by the year 1959 and the area remains as a plantation even now and there are wo forest trees at all in the entire area, which is evident from Para.2 of Ext. R-8 (a) dated 24th August 1977 and R-8 (a) dated 20th February 1961 granting coffee registration for the entire extent of Rosery Estate, Ext. R-8 (w) revision of plantation tax assessment and Clause.6 anil 9 of the draft lease deed, Ext. R-8 (j) and Ext. R-5 (y) which is the report of the Advocate Commissioner produced along with a petition in C.M.P. No. 33171. of 1993 in O.P. No. 18250 of 1995 filed on 10th January 1996. The aforesaid O.P. 18250 of 1995 is filed by a public spirited environmentalist challenging Ext. P-1 G.O. dated 7th November 1995 as violative of S.2 of the Act, and as one passed without proper application of mind and unmindful of the waste and loss to the exchequer. The execution of the lease deed got delayed since the Government did not finalise the draft lease deed as borne out by Exts. R-8 (g), R-8 (n), R-8 (o) and R-8 (r). Till the death of Paul on 17th September 1971 the Government had not finalised the draft lease deed. Thereafter, the matter was taken up by the legal representatives of the deceased, Paul.. Ext. P-8 (t) letter dated 3rd January 1976 shows that the orders of the Government are awaited for the execution of the lease deed. Even in Ext. R-8 (u) dated 24th August 1977. sanctioning lease in favour of the 8th, respondent; it is stated that the draft lease deed will be forwarded to the Chief Conservator of Forests. However, this was never done. Nor was any approved draft lease deed forwarded to the 8th respondent to enable execution of the lease deed. The 8th respondent took objection to the period of lease of 40 years shown in Ext. R.-8 (a) and the condition that rubber should not be grown in the area. A final decision on the objections of the 8th respondent was communicated by the Secretary to Government on 17th October 1986 and as per the said communication, the request for cultivation of rubber was rejected. It is also stated that the lease period cannot be 99 years. On 5th June 1987, the 8th respondent filed O.P. No. 2071 of 1987 challenging the order dated 17th October 1986. This court by Judgment dated 5th June 1987 dismissed the petition holding that there is no ground for interference under Art.226 and declining to adjudicate on the points raised in the petition. By the order in Writ Appeal 195 of 1988 filed against the Judgment in O.P. No. 2071 of 1987, the 8th respondent was permitted to withdraw the O.P. It was also stated in the order that the Judgment of the learned Single Judge stands set aside. On 11th May 1988, the 8th respondent filed O.S. No. 136 of 1988, to compel the Government to execute a lease deed incorporating all the terms and conditions of the draft lease deed, except the condition regarding the period of lease, which had to be changed to 99 years instead of 40 years. The Government contested the suit saying that the lease can only be for 40 years. A commission was taken out in the suit and a report was filed by the Advocate Commissioner on 20th November 1991 The object of the commission was to note whether the shade trees in the estate were spontaneous growth or planted by the lessee, viz. the 8th respondent herein. The Commissioner has in her report Ext. R-5 (y) produced in O.P. No. 18250 of 1995 along with C.M.P. No. 33171 of 1995 found that all the shade trees are planted ones and that there were no forest trees at all since the entire area had been, cleared by 1959 and pucca plantations raised. The suit was dismissed by the Sub Court, Palakkad, against which the 8th respondent filed A. S. No. 74 of 1993. During the pendency of the above appeal, the 8th respondent was threatened with forcible eviction from the (state upon which O.S. No. 23 of 1993 was filed by the 8th respondent for injunction restraining the 1st respondent from interfering with the peaceful possession by the 8th respondent. In O.S. No. 23 of 1993 the Government Pleader undertook to maintain the status quo. When steps were taken in violation of the undertaking recorded by the Sub Court in the above suit the 8th respondent filed O.P. No. 13855 of 1993 before this court. By then, the State Government officials closed down the office building in the estate in violation of the undertaking. When the matter came up for hearing before this court, the Govern-ment took a stand that the 8th respondent has already been dispossessed. This Court allowed the Original Petition (O.P. No. 13855 of1993) and directed the Government to restore possession to the 8th respondent. The State Govern-ment filed W.A.No. 1670 of 1993 against the Judgment of the learned Single Judge which was dismissed by a Division Bench of this Court on 31st January 1994. S.L.P. (C) No.. 3599 of1994 filed by the State Government before the Hon'ble Supreme Court was also dismissed by order dated 5th September 1995. By the above three decisions, this Court and the Hon'ble Supreme Court held that the 8th respondent was in legal possession of the Rosery Estate. The 8th respondent initiated contempt of court proceedings before this court when possession was not restored and as per orders issued by this court possession was restored on llth October 1994, Thereafter, the contempt case was closed on 12th October 1994. On the same day, the State Government once again issued a notice to the 8th respondent asking her to show cause why she shall not be evicted. The 8th respondent challenged the show cause notice dated 12th October 1994 before this Court in O. P. No. 14721 of 1994. The O. P. was dismissed by a Division Bench of this Court finding that since the 8th respondent has not executed a formal lease deed, she is not a lessee and is liable to be evicted under the provisions of the Kerala Forest Act. The Court also found that the 8th respondent was liable to be evicted since the O. P. challenging a show cause notice is premature and since the term of lease of 40 years expired on 2nd February 1995 itself. Pursuant to the Judgment in O. P. 14721 of 1994, the 8th respondent was put out of possession of the estate on 12th April 1995. Exts. R-8 (y) and R-8 (z) representations dated 27th December 1994 and 9th January 1995 filed by the 8th respondent were pending before the Government. The Nelliyampathy Planters Association also filed a representation through the local M.L.A. before the Government. The Government considered the representation of the Planters Association at the cabinet level and decided to extend the leases in Nelliyampathy area for a period of 20 years. The above decision of the Government reflected in Ext. P-1 and P-2 orders are challenged in this writ petition styled as public interest litigation as already noticed.