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2009 DIGILAW 987 (KER)

Kumari Varma v. State of Kerala

2009-10-16

HARUN-UL-RASHID

body2009
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 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 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. 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 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 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. Form No.5 attached to Ext.P1 which is the extracted order, shows that the 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 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. 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 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 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. 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 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 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. 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 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, 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. 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 '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 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. 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 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. 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. 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 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. 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 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 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 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 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. 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 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 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. 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 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 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. 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. 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 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 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 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 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 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. 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 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. 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 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 (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 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 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. 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 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. 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 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 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. 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, 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 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. 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 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 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 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 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. 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. 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 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 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. 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 by 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 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. There is no difficulty in assessing the correct amount due from the petitioner. The same will be worked out by the 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 disposed of as above. No order as to costs. Send a copy of this judgment to the Sub Court, Thalassery.