IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 7105 of 2007(U)
1. MRS. KUMARI VARMA, D/O. LATE P.R.RAMA
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE PRINCIPAL SECRETARY TO GOVT.,
3. PRINCIPAL CHIEF CONSERVATOR OF FOREST
4. PRINCIPAL CHIEF CONSERVATOR OF FORESTS,
For Petitioner :SRI.MKS.MENON
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :16/10/2009
O R D E R
"C.R."
HARUN-UL-RASHID,J.
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W.P.(C).NOS.7105 OF 2007,
26694 OF 2008 AND
31146 OF 2006
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DATED THIS THE 16th DAY OF OCTOBER, 2009
JUDGMENT
Writ Petition Nos. 7105/07, 26694/08 and 31146/06
are connected cases filed by the same peitioner. W.P.(C).
No.7105 is filed challenging the notification published on
15/5/2001 marked as Ext.P4. W.P.(C).No.26694/08 is filed
challenging Ext.P7 notice and Ext.P8 erratum notification
published on 29/1/2008. W.P.(C).No.7105/07 is filed for a
declaration that Ext.P4 notification issued by the 4th respondent
declaring the land belonging to the petitioner in Resurvey
No.292/1A in Vellad Village of Kannur Forest Division,
Taliparamba Taluk, Kannur District as vested in the Government
under Section 3(1) of the Kerala Forest (Vesting and
Management of Ecologically Fragile Land) Act 2003 as arbitrary,
illegal and therefore unconstitutional and quash the same by the
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26694/08 & 31146/06
issuance of a writ of certiorari. W.P.(C).No.26694/08 is a
continuation of W.P.(C).No.7105/2007. The extent of land notified
in Ext.P4 notification in W.P.(C).No.7105/07 is 24.28 hectares in
R.S.No.292/1A. An erratum notification was published by the
Government marked as Ext.P8 in W.P.(C).No.26694/08 wherein the
extent of land is seen corrected as 35.1072 hectares and also
corrected the boundary description. In both these writ petitions the
first prayer is to declare Section 3(1) and Section 8(2) of the Kerala
Forest (Vesting and Management of Ecologically Fragile Land) Act,
2003 (hereinafter referred to as ‘the Act’) as arbitrary, illegal and
therefore unconstitutional and quash the same by the issuance of a
writ of certiorari.
2. Several other connected writ petitions filed by other
property owners challenging the constitutionality of the Act are
pending. Learned counsel for the petitioner submitted that in view
of the prayers of the petitioner in W.P.(C).No.31146/06, the
constitutionality of the Act need not be considered in these writ
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26694/08 & 31146/06
petitions for the reason that several writ petitions challenging the
virus of the Act are pending. Therefore, these writ petitions may be
decided on merits. The petitioner also sought for permission of this
Court to reserve the challenge against the constitutionality of the Act
in appropriate proceedings. Since the connected case (W.P.(C).
No.31146/06) requires urgent consideration, the permission sought
for is granted.
3. The main prayers in W.P.(C).No.31146/2006 are for
the issuance of a writ of mandamus directing the 3rd respondent
Tahsildar, Taliparamba to lift the revenue recovery attachment over
the property comprised in Resurvey No.53/1A of Alakkode Village
and Resurvey No.292/1A of Vellad Village, Taliparaba and to limit
the attachment to a small portion of the above property which is
sufficient for realisation of the balance amount allegedly due to the
Government by demarcating the boundaries, for a further direction
to the Sub Registrar, Alakkode to issue non-encumbrance certificate
enabling the petitioner to dispose of the property in the said resurvey
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numbers by creating charge over the small portion of land and by
demarcating the boundaries and for a direction to the 4th respondent
Village Officer to receive the basic tax for the land in the resurvey
numbers referred above.
4. These writ petitions have a chequered career. Petitioner
is the daughter and the legal heir of late P.R. Rama Varma Raja of
Alakkode. Petitioners’ father own and held vast extent of land. Out
of the land in possession of the petitioner’s father, the Forest
Department claimed a sizable extent as vested forest, which led to a
litigation for several years. In the ceiling proceedings initiated
against Rama Varma Raja, the Land Board, Kerala, by its
proceedings dated 22/11/1973 ordered that the assessee shall
surrender 1232.26 acres as excess land. Under the head ‘details of
land to be surrendered’ 5 items of property were shown including
132.50 acres in R.S.No.53/1A and 945.76 acres in R.S.No.292/1A.
Ext.P1 is the proceedings of the Land Board referred above. Form
No.5 attached to Ext.P1 which is the extracted order, shows that the
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total extent of land owned, held and possessed by the assessee is
2776.76 acres, the total extent of land exempted under Section 81 is
1530.00 acres, ceiling area applicable to the assessee is 14.50 acres
and the extent of land to be surrendered is 1232.26 acres.
5. The Government by notification issued under Section 3
(1) of the Kerala Private Forest (Vesting and Assignment) Act, 1971
(For short ‘the Vesting Act’) notified that an extent of 348 acres in
R.S.No.292/1A in Naduvil Village in Taliparamba Taluk belonging
to Rama Varma Raja with effect from the appointed day, the
ownership and possession shall stand transferred to and vested in the
Government free from all encumbrances and that the right, title and
interest of the owner or any other person, if any, shall stand
extinguished. Sri Rama Varma Raja thereupon filed O.A.No.90/79
claiming exemption from vesting under the Vesting Act. The
applicant claimed that the land in R.S.No.292/1A in Naduvil Village
is a cardamom plantation before the appointed day in 1971 that the
Forest Authorities are proceeding as if the entire land had vested in
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the State under the Vesting Act and prayed that the application
schedule land shall liable to be declared as not having vested in the
State as per the Vesting Act. The said application was resisted by
the State and the Forest Authorities contended that the application
schedule land was part of Koliat Estate consisting of about 700
acres and that the substantial part of the estate fell within the State of
Karnataka when the reorganisation of States took place with effect
from 1/11/1956. According to the applicant, the area that fell within
the State of Kerala is 348 acres and the whole of it had been planted
with cardamom prior to the appointed day and it was on that basis
that the application was filed under Section 8 of the Vesting Act.
The original application was dismissed by the Forest Tribunal on the
ground that it was barred by limitation, finding that the vesting
having taken place on 10/5/1971. The dismissal order was set aside
by this Court and remanded the application for fresh disposal on
merits in accordance with law. Subsequent to the remand, by order
dated 22/3/1990 the Tribunal again dismissed the application finding
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that the land was not put under cultivation prior to the appointed day
and that it was a forest to which The Madras Preservation of Private
Forests Act applied and therefore it is a forest in terms of the
Vesting Act and it had vested in the State under the said Act. The
applicant again challenged the order before this Court in
M.F.A.No.658/1990. This Court took the view that what was called
for was a proper identification of the land which had been planted
with cardamom prior to the appointed day, since it would be seen
from the pleadings that some portion of the land was cultivated with
cardamom even going by the objections filed by the State and the
Forest Officials before the Tribunal. This Court directed the Forest
Tribunal to issue a fresh commission to identify the property with
particular reference to the portions, if any, in which cardamom was
planted prior to the appointed day and to dispose of the application
afresh.
6. The Tribunal appointed a Commissioner and the
Commissioner reported that an extent of 100.05 acres was found to
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be planted with cardamom, the planting having been done about 25
years prior to the date of his visit. The Commissioner also identified
two structures and a platform existing in the property and reported
that rest of the property is seen to be forest, since it had forest tree
growth. The Forest Tribunal also made a local inspection with
notice to both sides and prepared a note of inspection and gave
copies of the same to both sides. After hearing the parties, the
Tribunal passed a final order finding that an extent of 100.05 acres
demarcated as plots A, B and C in the sketch prepared by the
Commissioner could be held to be planted with cardamom prior to
the appointed day and hence excluded from vesting in the State
under the Vesting Act. Taking note of the two constructions
existing in the property along with the platform which was said to be
used for drying cardamom, the Tribunal held that the applicant is
entitled to exclusion of an extent of 9.95 acres of land for that
purpose. Thus, the Forest Tribunal passed an order holding that 110
acres of land is liable to be excluded from vesting under the Vesting
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Act and granted relief to the applicant on that basis. The Tribunal
identified 110 acres as plots A, B and C as shown in Ext.C3 plan and
described in Ext.C4 report. The Tribunal also ordered that Exts.C3
plan and C4 report shall form part of its order.
7. The State of Kerala and the Forest Department
challenged the order of the Tribunal dated 16/10/1995 before this
Court in M.F.A.No.595/96 and by interim order dated 12/6/1996 in
the said appeal this Court stayed the order of the Tribunal.
Simultaneously, the applicant also challenged that portion of the
order excluding the relief in respect of the balance extent and
claimed that the entire extent of 348 acres ought to have exempted
from vesting. This Court confirmed the order of the Tribunal.
8. The petitioner herein, who is the legal heir of the
original applicant, challenged the order of the Tribunal confirmed in
appeal in Civil Appeal Nos.3371/06 and 3372/06. Ext.P2 is the
judgment passed by the Apex Court. The State also filed an appeal
challenging the grant of exemption of 110 acres. The Supreme Court
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held that there is no justification in interfering with the decision of
the Tribunal as confirmed by the High Court and that the property
exempted had been clearly identified by the Commissioner in the
plan which had been appended to the order of the Forest Tribunal
and therefore the identity of the exempted lands is also clear and
there is no occasion for attempting any further identification at any
later stage. The Apex Court confirmed the decision of the High
Court and dismissed the appeals filed by the aggrieved parties.
Before the Supreme Court the State contended that cardamom plants
noticed in plots A, B and C were not planted prior to the appointed
day, but they were of sporadic growth and the Forest Tribunal was
not justified in excluding or exempting that extent from vesting. The
State also challenged the exclusion of 9.95 acres on the ground that
the land was not used for ancillary purposes. Both contentions are
repelled by the Supreme Court finding that the Commissioner
identified the plantation and confined to plots A, B and C in Ext.C3
plan, where he gave reasons which led him to infer that the
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plantations found in those plots were plantations effected and could
not be considered sporadic growth as sought to be contended by the
Forest Authorities. The Apex Court also taken note of the fact that
the rest of the area was full of forest tree growth. After attaining the
finality of the litigations between the petitioner and the State of
Kerala, the petitioner approached the Village Officer, Vellad to remit
land tax in respect of the exempted 110.05acres; but the Village
Officer declined to accept the land tax. According to the petitioner,
it is nothing but dereliction of duty on the part of the Tahsildar and
the Village Officer not to receive the basis tax in respect of the
property which was declared as not private forest. Therefore, she
approached the District Collector and the District Collector called
for the report from the Divisional Forest Officer, Kannur on
13/9/2005 vide Ref.No.13A 13064/90 dated 13/9/2005 . The
Divisional Forest Officer vide communication reference No.13A
13064/90 dated 13/9/2005 informed the District Collector that SLP
Nos.3341 and 3342/2005 are pending before the Supreme Court,
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that 24.28 hectares of the disputed property was already notified
under Section 3 of the Act vide PCCFSS 0621437/00 dated
21/4/2001 and published in the Kerala Gazette No.l46 dated
15/5/2001 and hence the application from the petitioner for
accepting basic tax for the disputed property in the above case is
liable to be rejected.
9. While the appeal under the Kerala Private Forest
(Vesting and Assignment) Act was pending in this Court, Kerala
Forest (Vesting and Management of Ecologically Fragile Land)
Ordinance was issued in 2001. Later the Fragile Land Act, 2003
was enacted. With effect from the date of commencement of the
Act, the ownership and possession of an ecologically fragile land
held by any person shall stand transferred to and vested in the
Government free from all encumbrances and the right, title and
interest of the owner or any other person thereon shall stand
extinguished from the said date.
10. Section 2(c) of the Act defines “Forest”. The word
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‘Forest’ under Section 2(c) of the Act does not include any land
which is principally used for the cultivation of crops of long
duration such as tea, coffee, rubber, pepper, cardamom, coconut,
arecanut or cashew or any other sites of residential buildings and
surroundings essential for the convenient use of such buildings.
11. Section 2(b) defines “ecologically fragile lands”.
“Ecologically fragile lands” means any forest land or any portion
thereof held by any person and lying contiguous to and encircled by
a reserved forest or a vested forest or any other forest land owned
by the Government and predominantly support natural vegetation
and any land declared to be an ecologically fragile land by the
Government by notification in the Gazette under Section 4.
12. Ext.P4 is the notification published on 15th May,
2001. The ordinance promulgated by the Government of Kerala
came into effect from 2/6/2000. Ext.P4 notification contains the
details and items of properties. Item No.88 in Ext.P4 notification
relates to 24.28 hectares of land comprised in R.S.No.292/1A of
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Vellad Village which is the subject mater of the extent involved in
the case pending before the Forest Tribunal.
13. The Government published an erratum notification
produced as Ext.P8 in W.P.(C).No.26694/08, in the gazette dated
29th January, 2008 amending Ext.P4 notification with regard to the
details of the petitioner’s property, which was dealt with in Ext.P4
notification under Sl.No.88. As per Ext.P8 notification amendment
was made with respect to the extent of property and the boundaries.
The extent was amended as 35.1072 hectares in R.S.No.292/1A.
The amendment was also made to the boundaries also. Exts.P4 and
P8 notifications are under challenge in the respective writ petitions.
14. It is important to note that Ext.P4 notification was
issued at a time when the appeal filed against the Tribunal’s order
was pending before this Court. The Tribunal passed final order on
16/10/1995. Ext.P4 notification was issued invoking Section 3 of
the ordinance No. 8 of 2000. The O.A. was finally disposed of in
1995 by the Tribunal holding that an extent of 110.05 acres out of
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the total extent of 348 acres in R.S. No.292/1A was found and
declared as a cardamom estate not being vested forests. The final
order of the Forest Tribunal was challenged by the State and the
petitioner in two separate appeals. The appeal as M.F.A.No.595/96
was filed by the petitioner challenging the non-declaration of the
entire land of 348 acres as not vested forest and the State Appeal
(M.F.A.No.177/97) was filed against the declaration of 110.05 acres
as not vested forest. This Court confirmed the final order passed by
the Forest Tribunal. Finally, the matter was agitated before the Apex
Court and the Apex Court as stated supra, confirmed the judgment
passed by this Court in the above said appeals. The said facts are
repeated only to state that the State of Kerala firmly pleaded and
contested the litigations contending that the entire 348 acres of land
is private forest vested in the Government under the provisions of
the Vesting Act, 1971. At a time when such contentions are taken
up and are pending finality in O.A.No.11/95, Ext.P4 notification
was published.
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15. The Vesting Act, 1971 came into force with effect
from 10/5/1971. As per the notification issued under the said Act,
the entire 348 acres in R.S.No.292/1A stand vested in the
Government free from all encumbrances. The Government treated
the entire extent of 348 acres as private forest vested in the
Government. The matter was finally decided by the Apex Court by
judgment dated August 4, 2006. In spite of the fact that the Forest
Tribunal declared 110 acres of land in R.S.No.292/1A as cardamom
plantation, which was confirmed by this Court and the Apex Court,
the Government issued Ext.P4 notification in the year 2001 notifying
the very same property under the Act. At the time when Ext.P4
notification is issued the Government is fully aware that 110.05
acres of land is declared as cardamom plantation and is an exempted
land under the provisions of the Vesting Act, 1971. In the definition
clause of the present Act the area covered by plantations such as tea,
coffee, rubber, pepper, cardamom, coconut etc. is exempted. I have
referred to Sections 2(b) and 2(c) which define “Ecologically Fragile
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Lands” and “Forest”. Plantations are exempted from the other Acts,
namely, Kerala Land Reforms Act, 1964 and the Kerala Private
Forest (Vesting and Assignment) Act, 1971. In the present Act also
Section 2(c) excludes plantations. For invoking section 3(1) of the
present Act it is necessary that the land should be forest land and not
plantation, which is exempted under Section 2(c) of the present Act.
The Apex Court in Ext.P2 judgment held as follows:
“Thus, on the whole, we are not satisfied
that there is any justification in interfering with
the decision of the Forest Tribunal, as confirmed
by the High Court. The property exempted had
been clearly identified by the commissioner in the
plan which had been appended to the order of the
Forest Tribunal and the extent of the plots had
been specifically given. It is, therefore, seen that
the identity of the excluded lands is also clear and
there is no occasion for attempting any further
identification at any later stage. The order now
passed thus suffers from no infirmity and there
could be no dispute about the area excluded or
exempted. Hence, no interference is called for on
that ground also.”
16. Under Section 3(1) of the Act all ecologically fragile
lands shall stand vested in the Government. Section 4 of the Act
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empowers the Government to declare by notification in the Gazette,
any land to be ecologically fragile land on the recommendation of
the Advisory Committee appointed for the purpose under Section 15
of the Act. The word used in Section 4 is to declare any land to be
ecologically fragile land on the recommendation of the Advisory
Committee. Under Section 3, the Government can notify only
ecologically fragile land as defined under Section 2(b) of the Act. A
combined reading of the definition of “forest” under Section 2(c)
and the definition of “ecologically fragile lands” under Section 2(b)
makes the position clear that only forest as defined under Section 2
(c) alone could be notified by the Government under Section 3 as
ecologically fragile land. But under Section 4, the Government can
declare by notification in the Gazette, any land as ecologically
fragile land. Under sub-section 4 of Section 4 any land declared as
ecologically fragile land under sub-section (1), the ownership and
possession of the land shall stand transferred to and vested in the
Government free from all encumbrance and the right, title and
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interest of the owner or any other person thereon shall stand
extinguished from the said date. In order to declare any land as
ecologically fragile land other than the forest land as defined under
Section 2(b) and 2(c) of the Act, the Government shall form an
Advisory Committee under Section 15 of the Act and under Section
15(3), the Committee shall identify the lands which are ecologically
fragile and shall recommended to the Government for the
declaration of such lands under Section 4 as ecologically fragile.
Sub-section 4 of Section 15 mandates that the committee shall take
into consideration the factors mentioned in sub-section (i) to (vi),
which are the parameters prescribed to declare any land as
ecologically fragile land and the committee had to make specific
findings on the ecological sensitivity and significance of such land
before making its recommendation to the Government under sub-
section (3). With effect from the date of declaration under Section 4
(1) any land declared as ecologically fragile land shall stand
transferred to and vested in the Government free from all
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encumbrance and the right, title and interest of the owner or any
other person thereon shall stand extinguished from the said date by
virtue of sub section (4) of Section 4. The owner of the land, which
was vested under sub section (4) of Section 4 shall be eligible for
compensation for the said land including permanent improvements
thereon by virtue of section 8(1) of the present Act. Section 8(2)
mandates that no compensation shall be payable for the vesting in
the Government of any ecologically fragile land or for the
extinguishment of the right, title and interest of the owner or any
person thereon under sub section (1) of Section 3. The aforesaid
provisions would indicate that the lands excluded from the purview
of Section 2(b) and Section 2(c) of the Act can also be declared as
ecologically fragile land under Section 4, if the requirement under
Section 15(4) is satisfied, such lands also could be declared as
ecologically fragile land; but subject to further condition of payment
of compensation. The nature and status of 110.05 acres of land in
R.S.No.292/1A as a cardamom plantation is declared by the Forest
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Tribunal and confirmed by this Court and the Apex Court. No
further adjudication as to the nature of the land is required. The
lands vested in Government under Sections 3 and 4 shall be deemed
to be reserved forests constituted under the Kerala Forest Act, 1961
and the provisions of that Act shall, so far may be, applied to such
lands under Section 5 of the present Act. Admittedly the disputed
property is included in the notification issued under the Vesting Act,
1971. The Government maintained possession and enjoyment of the
entire 348 acres of land including the lands exempted. Whether the
exempted land was maintained as cardamom plantation or not is not
a question to be gone into in the light of the judgments referred to
above. The land which was cardamom plantation was taken over
wrongly under the Vesting Act, 1971 as found by the courts. If that
be so, it is the duty of the Government to maintain the nature and
status of the lands from the date of vesting till it is handover to the
owner. The Government once declared the land as a private forest
and while the notification was in force, the Government again
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notified this land under Section 3(1) of the present Act. Since the
property is excluded under Section 2(b) and 2(c) of the present Act,
the notification issued under Section 3(1) of the Act is illegal. It is
open to the Government to proceed against the said property in
accordance with Section 15 and other related provisions, if so
advised.
17. The learned Additional Advocate General contended
that the 110 acres referred to above supports thick forests of
predominantly natural vegetation supporting progressive ecosystem
and therefore the said property qualifies to the definition of
ecologically fragile land as defined under Section 2(b)(i) of the
present Act. According to him, the property is principally covered
with naturally grown trees and undergrowth and hence it is a forest
as defined under Section 2(c) of the Act and that the said property is
lying contiguous with the vested forest in the same survey number.
The learned Advocate General also contended that the notified area
covered by Ext.P8 erratum notification is not under cultivation as on
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2/6/2000. Therefore, Section 3 (1) of the present Act is attracted. In
such circumstances Exts.P4 notification and Ext.P8 erratum
notification are issued in accordance with the provisions of the
present Act and therefore the said area has been vested in the
Government under Section 3(1) of the present Act. He has also
referred to the pleadings in the counter affidavit filed by the 2nd
respondent. According to him, there is no cardamom plantation
exists in the property as on 2/6/2000. Since there was no cultivation
in the exempted land as on the date of coming into force of the
ordinance, the land can be notified under Section 3(1) of the Act. As
I stated supra that the notification was issued under the present Act
at a time when the Government’s stand was that the entire 348 acres
of land including 110 acres in R.S.No.292/1A are private forest
vested under the provisions of the Vesting Act,1971 and at a time
when the said dispute was pending consideration. The said
contention of the learned Advocate General can only be appreciated
on the basis of the facts and the judgments pronounced by the Forest
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Tribunal, this Court and the Supreme Court and after examining the
provisions of the present Act which are discussed in the preceding
paragraphs. I do not think that the contentions canvassed by the
Learned Advocate General can be accepted. This Court examined
the dispute in question as if the present Act is valid legislation. I am
told that the virus of the Act is pending consideration by the
Division Bench. Therefore, none of the parties wanted to argue the
constitutionality of the Act in this case. In the reply affidavit filed
by the petitioner at page 3 it is averred that the State after notifying
the land under the Vesting Act, 1971 damaged the entire cardamom
plantation on account of their inaction as well as deliberate attempts
destroyed the entire cardamom plantation in the land. It is also
averred that if the cardamom plants are not properly protected and
taken care of for a short period, the cardamom shall get perished and
for this action on the part of the State the petitioner is reserving her
right to seek compensation from the Government at appropriate time.
The petitioner also produced a communication (Ext.P6) dated
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5/9/2000 issued by the Government Pleader admitting the existence
of cardamom cultivation. Exts.P7 and P8 are the complaints lodged
by the petitioner alleging the mischief made by the Forest Officials.
The stand of the State is that 110 acres are not cardamom
plantation. The said question was vehementally argued before the
Supreme Court. The Supreme Court did not appreciate the stand of
the State and confirmed the findings of the Tribunal and this Court
that area of 110 is a cardamom plantation.
18. For the aforesaid reasons, Ext.P8 notification and
Ext.P7 notice dated 7/6/2008 produced in W.P.(C).No.26694/2008
relating to 110 acres of land in R.S.No.292/1A of Vellad Village,
Kannur Forest Division, Taliparamba are quashed.
W.P.(C).No.31146/2006.
19. The reliefs sought for by the same petitioner in this
writ petition are for a direction to the 3rd respondent to lift the
attachment over the property comprised in R.S. No. 53/1A of
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Alakkode Village and R.S.No.292/1A of Vellad Village,
Taliparamba Taluk or to limit the attachment to a small portion of
the above property, which may be sufficient for the alleged dues to
the Government, for a direction to the 5th respondent to issue non-
encumbrance certificate enabling the petitioner to dispose of the
property by limiting charge over a small portion of land and by
demarcating the boundaries, for a direction to the 4th respondent to
receive the basic tax for the said lands, for a direction to the
respondents to limit the attachment to a portion of land out of 110
acres in Sy.No.292/1A of Vellad Village, for a direction to the 7th
respondent to receive the basis tax for 8 acres of land in
R.S.No.53/1A of Alakkode Village and for a direction to
respondents 1 to 3 and 7 to issue statement of accounts for the
alleged dues.
20. The brief facts leading to the filing of this writ
petition is as follows:
“Koliat Estate” is a firm which possessed extensive acres
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
of plantation in the northern districts of Kerala. In 1967 on the
request of Rama Varma Raja and on the recommendation of the
Agricultural Re-financing and Development Corporation, the State
of Kerala agreed to stand as a guarantor for the Koliat Estate for the
long term loan of Rs.46.61 lakhs obtained from the Central Bank of
India. The loan was availed for the development of the existing
plantations and for raising new plantation on 4676.76 acres
belonging to Rama Varma Raja. The mortgage deed was executed
on 23/10/1967 by the partners of the Koliat Estate in favour of the
the Bank mortgaging the entire extent of land held by the estate. The
State of Kerala stood as a guranator. In the year 1970 as requested
by the Agricultural Re-financing and Development Corporation, the
scheme was revised to reduce loan amount to Rs.43.58 lakhs and
out of this, a sum of Rs.39.95 lakhs was disbursed to Koliat Estate
by the Central Bank of India during the period 1967 to 1972. Para 14
of the mortgage deed marked as Ext.P12 recites that all sums found
due to the Government under or by virtue of these presents shall be
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
recoverable from the mortgagors and from the mortgagors’
properties movable and immovable under the provisions of the
Revenue Recovery Act in force, as if they are arrears of land
revenue. The bipartite agreement was executed on 23/10/1967.
Pursuant to the said agreement, Koliat Estate on the same day
executed mortgage deeds in favour of the Bank and the State
Government stood as a guarantor for the payment of the loan in
terms of the agreement. While the mortgage was subsisting, an
extent of 1232.26 acres which includes the property in
Sy.No.292/1A (945.765 acres) and R.S.No.53/1A (122.50 acres)
were declared as excess land and vested in the Government of
Kerala free from all encumbrances. According to the statement in the
counter affidavit of the 3rd respondent, the measurement of excess
land was found to be 1161.84 acres as against 1232.26 acres liable
for surrender. Subsequently, by virtue of the provisions of Vesting
Act, 1971, an extent of 348 acres in R.S.No.292/1A was declared as
private forest vested in the Government. In the proceedings referred
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
to in detail in the preceding paragraphs while dealing with the
connected writ petitions, an extent of 110 acres out 348 acres was
exempted from the the provisions of the Act being cardamom
plantation. When the estate defaulted payment of instalments of the
loan, the Bank issued a suit notice to the Managing Partner of the
estate and to the State on 8/2/1975 demanding for Rs.49.43 lakhs as
the outstanding amount. Since the estate did not make payments, the
Government, after negotiation with the Bank, has paid a sum of
Rs.45.49 lakhs and has taken assignment of the right of the Bank.
Though the amount outstanding to the Bank was Rs.55.59 lakhs,
after negotiation, the Government paid Rs.45.59 lakhs in full
settlement of the dues as per assignment deed dated 7/9/1978. It is to
be noted that the vesting of 1232.26 acres of land and 348 acres
under the provisions of the Kerala Land Reforms Act and the
Vesting Act, 1971 respectively took place long before 1978. After
the execution of assignment deed dated 7/9/1978, the State
Government initiated proceedings under the provisions of the
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
Revenue Recovery Act for realisation of the mortgage money. It was
in the aforesaid background the petitioner filed O.S.No.148/83 for
redemption of the mortgage. The plaintiff claimed a pro tanto
reduction of the mortgage debt on the footing that the State
Government became a mortgagee when it took assignment of the
mortgage right, since the large area of mortgage land has now
become vested with the mortgagee.
21. The State Government resisted the claim for pro tanto
reduction of the mortgage debt. The trial court repelled the
Government’s contention and passed a preliminary decree for
redemption in terms of the plaintiff’s plea for pro tanto redemption.
The decree was passed in the following terms.
“(1) That the plaintiff do pay into court
such amount as may be decided in the final decree
proceedings.
(2)That o such payment and on payment
thereafter, before such dated as the court may fix, ;
of such amount, with interest if any, as the court
may adjudge due in respect of such costs of the
suit and such costs, charges and expenses as may
be payable under Rule 7 of Order XXXV of the
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
First Schedule to the Code of Civil Procedure, Act
v 1908, the defendant shall brig into court all
document in his possession or power relating to
the mortgage property in the plait mentioned and
all such documents shall be delivered over to the
plaintiff, or to such person as he appoints, and the
defendant shall, if so required, recovery or
retransfer the said property free from the said
mortgage and clear (2nd page begins) of and from
all encumbrances created; by the defendant or any
person claiming; under him or any person under
whom he claims and from all liability whatsoever
arising from the mortgage or from this suit and
shall, if so required, deliver upto the plaintiff quiet
and peaceful possession of the said property.
(3) And it is hereby further ordered and decreed
that, in default of payment as aforesaid, ;the
plaintiff and all persons claiming through or under
him be and thy are hereby absolutely debarred and
foreclosed of and from all right of redemption of,
and in the property described in the schedule
annexed hereto and (if the plaintiff be in
possession of the said mortgaged property) that the
defendant shall deliver to the plaintiff quite and
peaceable possession of the said mortgaged
property and that th whole of the liability
whosoever of the plaintiff upto the date mentioned
in (2)(i) arising from the said mortgage mentioned
in plaint or from this suit is hereby discharged and
extinguished.
(4) That the extent of the area taken by the
Government under the Kerala Private Forest
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26694/08 & 31146/06
(Vesting and Assignment) Act be left undecided
since the same is pending before the Forest
Tribunal, Calicut, and that area, for purpose of the
present suit be that extent of area that will be
ultimately determined by the Forest Tribunal,
Calicut.
(5) That the plaintiff is entitled to reduction of
mortgage liability covered by Ext.B1 in
proportion to the value of the properties taken by
the Government under Ext.A17 order and also
under the Kerala Private Forest (Vesting and
Assignment) Act as on the date or dates of the
taking over of those lands.
(6) That the proportionate value for which the
plaintiff is entitled for reduction be left open to be
decided in the Final Decree Proceedings.
(7) That if it is found in the final decree
proceedings that the plaintiff has already
discharged their liability with respect to the lands
that they are entitled to redeem by the property
already made by it and also in case it is found that
they have paid any excess amount to the
Government the plaintiff be entitled to recover the
same from the defendant and in such an event the
defendant will not be entitled to claim the cost of
the suit from the plaintiff.”
22. Ext.P15 is the preliminary decree. The State of Kerala
preferred an appeal before this Court against the preliminary decree
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26694/08 & 31146/06
and judgment. This Court confirmed the judgment and decree. The
State of Kerala preferred a Civil Appeal No.2502/94 before the
Apex Court. The Apex Court, after referring to the relevant
provisions of the Kerala Land Reforms Act and the Vesting Act held
that the vesting of land in the Government was free from all
encumbrances, that the Government would have no liability to clear
any encumbrance on the land so vested and that if the land is
covered by a mortgage the liability therein would not remain with
that part of the land which Government got through the vesting
process. The Apex Court modified the decree and judgment passed
by the trial court, which was confirmed in appeal. The Apex Court
held that vesting of portion of the mortgaged property with the
Government and the subsequent assignment of mortgaged right in
favour of the Government are not sufficient to formulate the
exception provided in the last paragraph of Section 60 of the TP Act
and therefore the plaintiff is not entitled to pro tanto reduction in the
mortgage land. Ext.P4 is the judgment passed by the Apex Court.
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
The final decree proceeding is pending before the Sub Court.
23. The question as to what is the amount payable to the
Government and also the question of liability to pay any amount to
the Government were the subject matter of the suit filed by the
plaintiff. The outcome of the decision Ext.P15 which was modified
by the Apex Court in Ext.P4 judgment is that the final decree court
has to decide the amount due to the Government, if any. It is true
that the Supreme Court modified the decree and judgment and held
that the petitioner is not entitled to pro tanto reduction of mortgage
money and that the judgment of the trial court which was confirmed
by the High Court, would stand modified to the above extent. In all
other respects, the judgment of the trial court stands.
I.A.No.1405/96 in O.S.No.148/83 for final decree proceeding is
pending before the Sub Court, Thalassery. The effect of the decree
passed by the trial court is that the amount due to the mortgagor will
have to be decided in the final decree proceedings. In this context,
the learned counsel for the petitioner submits that the amount due to
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26694/08 & 31146/06
the mortgagee is pending decision by the final decree court.
24. The Government initiated revenue recovery
proceedings and attached 5 items of properties on 25/11/1981 by
serving demand notice as provided under the Kerala Revenue
Recovery Act. The items of properties attached are as follows:
Taluk Village R.S.No. Extent Description
1. Taliparamba Nadvil 292/1A 500 Acres Rubber
2. Taliparamba Naduvil 292/1A 286.35 Acres Cardamom
(Present Vellad)
3. Taliparamba Tadikkadavu 53/1A 300.00 Acres Rubber
(Present Alakode)
4. Taliparamba Tadikkadavu 53/1A 14.50 Acres Coconut
5. Taliparamba Tadikkadavu 53/1A 20.00 Acres Staff
------------- Quarters
Total: 1120.85 Acres
========
25. The revenue recovery proceedings is under challenge.
According to the petitioner, she had remitted an amount of
Rs.35,00,000/- during 1980 to 1985 pursuant to the interim orders
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26694/08 & 31146/06
passed in the suit and therefore, the court stayed the revenue
recovery proceedings. True copy of the statement of account of
remittance is marked as Ext.P2. Ext.P2 remittance statement shows
that the petitioner remitted an amount of Rs.35 lakhs in the
Government Treasury during the period from 9/9/1980 to 29/3/1985.
I have referred in the earlier paragraphs that the total amount of
Rs.39.95 lakhs was disbursed to the Koliat Estate by the Central
Bank of India during the period from 1967 to 1992 and that the
Government after negotiation in full settlement of the dues
purchased the mortgaged right for an amount of Rs.45.59 lakhs as
per the assignment deed dated 7/9/1978 marked as Ext.P12. So the
total amount due to the Government as on 7/9/1978 is Rs. 45.59
lakhs. From the statement Ext.P2 it is seen that the petitioner
remitted an amount of Rs.35 lakhs. It is not disputed that the
petitioner remitted 35 lakhs during the year 1980-1985. Hence, it is
clear that the substantial portion of the debt was cleared by the
petitioner as on 29/3/1985. In paragraph 20 of the counter affidavit
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26694/08 & 31146/06
filed by the 3rd respondent it is stated that the defaulter firm has
already remitted Rs.35 lakhs as per the information from the file and
it has been credited to the arrears. The petitioner submitted that
though substantial amount was remitted towards the debt due to the
Government, the respondents are claiming more than Rs.1 crore
without any basis. Therefore, the petitioner has approached the
authorities concerned for statement of accounts for the said claim,
but they have not taken any steps to issue statement of accounts.
According to the petitioner, the Government is claiming exorbitant
amount without considering the remittance of substantial portion of
the amount.
26. The petitioner during the year 1987 challenged the
revenue recovery proceedings initiated by the Government in
O.P.No.2948/87 before this Court. This Court by judgment dated
13/21991 observed that the question as to what amount is payable
and also the question of liability to pay any amount to the
respondents was the subject matter of a suit filed by the petitioner,
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
that the suit stands dismissed and that the appeal before this Court is
pending. Therefore, this Court held that the respondents cannot take
any action on the ground that certain amounts are due from the
petitioner, unless a final decision is rendered in the suit. The
judgment is marked as Ext.P3.
27. Petitioner’s grievance is that when she approached the
Revenue Authorities for payment of land tax, the Village Officer
has declined to receive the land tax, due to the instructions issued by
the District Collector. Ext.P5 dated 31/10/2005 is the
communication issued by the District Collector to the Inspector
General of Registration not to register any document relating to the
land belonging to Sri Rama Varma Raja. The petitioner approached
the Commissioner for Land Revenue. The Commissioner by Ext.P6
letter addressed to the petitioner intimated that since SLP Nos.3341
& 3342/2005 are pending before the Hon’ble Supreme Court, your
application for accepting the basic tax for an extent of 110 acres in
R.S.No.292/1A in Naduvil Village in Taliparamba Taluk cannot be
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
considered. The petitioner submitted that the case pending before
the Supreme Court as Civil Appeal No.3372/2006 arising out of
SLP. Nos. 3341 & 3342/2005 referred to in ExP6 communication of
the Commissioner of Land Revenue was finally heard on 4th August,
2006 and disposed of the same by Ext.P7 judgment. On the basis of
Ext.P7 judgment the petitioner again requested the Village Officer to
accept the basic tax for the land for an extent of 110 acres. It is
averred that no action has been taken even after the final decision
taken by the Supreme Court and that the revenue recovery
proceedings initiated by the Government in the year 1981 and the
subsequent proceedings under the Revenue Recovery Act are illegal,
arbitrary and violative of the judgments rendered by the various
courts including the Apex Court. The Apex Court held that the
petitioner is not entitled to pro tanto reduction, but the other
findings of the court below were not interfered with by the Supreme
Court including the quantum of liability. This Court in Ext.P3
judgment in O.P.No.2948/1987 held that the respondents cannot take
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
any action on the ground that certain amounts are due from the
petitioner, unless a final decision is rendered in the suit. Admittedly
the final decree proceedings are pending. The question of quantum
of liability if any due from the petitioner is a matter to be decided in
the final decree proceedings. Therefore, in the light of the direction
issued by this Court in Ext.P3 judgment and for the reason that the
question is to be decided in the suit, the revenue recovery
proceedings cannot stand for the time being.
28. The petitioner was not allowed to remit the basic tax
in respect of 110 acres of land in R.S.No.292/1A. When the
petitioner approached the Commissioner for Land Revenue, he
issued Ext.P6 letter to the petitioner stating that her application for
accepting the basic tax cannot be considered, in view of the
pendency of the SLP. Nos.3341 & 3342/05. The said reason also is
not available now, since the case was disposed of by the Apex Court
vide Ext.P7 judgment.
29. It is not disputed that the land tax has not been
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
accepted for the last five years stating that there is a dispute with
regard to 110 acres of land in R.S.No.292/1A of Vellad Village and
with regard to 8 acres of land in R.S.No.53/1A of Alakkode Village.
In these circumstances, the stand taken by the Government not to
accept the basic tax nor its refusal to issue non-encumbrance
certificate is not justified.
30. It is the case of the petitioner that since the substantial
amount is remitted as stated in Ext.P2 statement as per the original
demand, the balance amount is only Rs.10,40,000/-. In the counter
affidavit filed by the 3rd respondent it is stated that the liability as on
7/9/1978 is Rs.49.59 lakhs and that the remittance made by the
petitioner had been adjusted towards the dues. This Court by interim
order dated 13/8/2009 directed the Government Pleader to submit a
statement showing the amount due from the petitioner in which
action under the Revenue Recovery Act is pending and this Court
also directed him to furnish the details regarding the probable market
value of 110 acres and 8 acres of land covered by the attachment
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
orders. In the statement filed, the Government Pleader submitted
that 110 acres of land in R.S.No.292/1A of Vellad Village is not
under the attachment now because the said land remains as an
ecologically fragile land and the ownership and possession of the
land vested in the Government by virtue of Section 3(1) of the
Fragile Land Act, 2003 with effect from 2/6/2000 and from 2/6/2000
no attachment or sale by invoking provisions of the Revenue
Recovery Act is permissible. In the statement he also submitted that
the market value of the property in R.S.No.292/1A of Vellad Village
is Rs.40,000/- per acre which comes to Rs.44,00,000/- and the value
of 8 acres of land in R.S.No.53/1A of Alakkode Village is Rs.4
crores valued at the rate of Rs.50,000/- per cent. It is further stated
that the amount due from the petitioner, according to the
Government, is Rs.1,29,69,417/- and that the revenue recovery dues
as on 31/8/2009 is Rs.1,29,69,417/-. Even according to the
Government, the value of two items of property is Rs.44 lakhs and
Rs.4 crores respectively.
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
31. Ext.P9 is the true copy of the valuation report issued
by the Chartered Engineer and Government approved Valuer. The
Valuer fixed the market value of 8 acres in R.S.No.53/1A at the rate
of Rs.95,000/- per cent, the total vlaue of which is Rs.7,60,00,000/-.
The depreciated value of the building in the said land is valued at
Rs.41,88,500/-, after assessing the age of the building as 40 years.
Thus, the total valuation for 8 acres of land in R.S.No.53/1A of
Alakkode Village and the building is Rs.8,01,88,500/-.
32. The Sub Court, Thalassery in the final decree
proceedings appointed a Commissioner to work out the amount due
to the Government, after deducting the payments made by the
petitioner. The Advocate Commissioner filed a statement stating
that an amount of Rs.39,95,000/- as principal amount and interest is
calculated at the rate of 4.5 percent, totalling to Rs.45,59,000/-.
Ext.P18 is the commission report produced along with
I.A.No.821/2009. The total liability of the petitioner to the
Government under the revenue recovery proceedings is worked out
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
at Rs.45,59,000/-.
33. According to the petitioner, the value of 110 acres of
land in R.S.No.292/1A of Vellad Village is between Rs.1 lakh and
1.2 lakhs per acre. The petitioner has already produced three
registered documents evidencing the market value of the property.
Ext.P18, P19 and P20 comparable sale deeds produced in order to
show that the market value of the land is more than Rs.1,00,000/- per
cent.
34. In the statement filed by the Government Pleader
pursuant to the interim order passed by this Court on 13/8/2009 it is
stated that 110 acres of land in R.S.No.292/1A of Vellad Village is
not under the attachment now, because the said land remain as an
ecologically fragile land and the ownership and possession of the
land is vested in the Government by virtue of Section 3(1) of the
Act with effect from 2/6/2000 and from 2/6/2000 no attachment or
sale by invoking the provisions of Revenue Recovery Act is
permissible. The statement is recorded by this Court in the judgment
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
in the above connected writ petitions. This Court held that Exts.P4
and P8 notifications are illegal and hence they are quashed.
Therefore, the land is at present free from attachment and vesting.
According to the petitioner, 110 acres of the cardamom land in
R.S.No.292/1A of Vellad Village is sufficient to meet the liability.
The market value of the property is stated in the statement dated
8/9/2009 and the claim of the petitioner that the market value is
between Rs.1 lakh and Rs.1.2 lakhs per acre. Both are not
acceptable for want of sufficient evidence. Even going by the
statement filed by the Government Pleader the value of 110 acres is
Rs.44,00,000/-. The total amount payable by the petitioner to the
Government worked out by the Commissioner is as follows:
“Calculation No.1 – Total amount payable is Rs.39,26,612/-
Calculation No.2 – Total amount payable is Rs.43,12,246/-
Calculation No.3 – Total amount payable is Rs.45,59,695/-.”
35. The amount which was received from the petitioner
by the Bank was paid by the Government after the settlement. Going
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06by the calculation statement of the Commission the amounts due to
the Government can be either Rs.39,26,612/- Rs.43,12,246/- or
Rs.45,59,695/- is a matter which the final decree court has to decide.
36. In the above facts and circumstances, I do not think
that the two items of properties belonging to the petitioner shall
remain under attachment to settle the revenue recovery proceedings.
A sizable property belonging to the petitioner was taken over in the
ceiling proceedings. Subsequently, another sizable property was
taken over under the provisions of the Vesting Act,1971 and the
balance extent owned by the petitioner is declared to be vested
with the Government under the provisions of the Act. Going by the
Commissioner’s report, the liability due to the Government is
between Rs.39,26,612/- and Rs.45,59, 695/-. In order to protect the
interest of Revenue, this Court is of the view that 110 acres of land
in R.S.No.292/1A is sufficient for realisation of the amount due
from the petitioner. There is no difficulty in assessing the correct
amount due from the petitioner. The same will be worked out by the
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W.P.(C).Nos.7105/07,
26694/08 & 31146/06
final decree court in the suit. 110 acres of land shall not be alienated
or encumbered by the petitioner, till the amount due to the
Government is assessed and paid by the petitioner. The petitioner is
free to deal with 8 acres of land comprised in R.S.No.53/1A of
Alakkode Village. The attachment in respect of the said property is
lifted. The final decree court shall pass final decree within a period
of nine months from today. The 5th respondent is directed to issue a
non-encumbrance certificate so as to enable the petitioner to dispose
of the property in R.S.No.53/1A of Alakkode Village, if she so
chose. The 4th respondent is directed to receive the basic tax for the
land in R.S.No.292/1A of Vellad Village and R.S.No.53/1A of
Alakkode Village.
W.P.(C).Nos.7105/2007 and 26694/2008 are allowed and W.P.
(C).No.31146/2006 is zdisposed of as above. No order as to costs.
Send a copy of this judgment to the Sub Court, Thalassery.
HARUN-UL-RASHID,
Judge.
kcv.