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2019 DIGILAW 857 (KER)

State of Kerala v. K. G. Suresh Kochuthoppil

2019-10-24

ANU SIVARAMAN

body2019
JUDGMENT : This review petition is filed seeking review of the judgment dated 30.10.2018 in W.P.(C) No.16876 of 2018. It is submitted that the prayer in the writ petition was for a direction to the 3rd respondent to accept land tax from the petitioner for the property having an extent of 492.13 acres in Aryankavu Village. It is stated in the review petition that out of the 492.13 acres of land, 328.76 acres (133.05 hectares) had been notified as ecologically fragile land by notification dated 25.1.2010 which is produced as Annexure A1. It is stated that by Annexure A2 notification dated 30.01.1986, 20.82 hectares (51.42 acres) out of the 492.13 acres claimed by the petitioner had been notified as vested forest under the provisions of the Kerala Private Forest (Vesting and Assignment) Act, 1971. It is stated that as against Annexure A1 notification, the petitioner had filed an O.A before the EFL Tribunal. By order dated 20.3.2018, the Tribunal found that the above land is not ecologically fragile land. Against the said order, the State had filed MFA No.133/2018 and the same had been admitted and an interim order of status quo had been passed in the above appeal on 19.6.2019. 2. It is submitted that the petitioner had willfully suppressed the above facts and had filed the writ petition without arraying the forest department or the custodian of Ecologically Fragile Land as party to the writ petition. It is stated that the judgment had been rendered relying on a decision of the Devision Bench in Harrisons Malayalam Ltd. And another v. State of Kerala and another ( 2018 (2) KHC 719 ) directing the acceptance of land tax on the basis of title deeds relied on by the petitioner. 3. A contempt of court case as COC No.698 of 2019 dated 26.6.2019 was filed by the petitioner alleging non compliance with the directions contained in the judgment. Pursuant to the same, an order was passed by the District Collector on 25.6.2019 and land tax had been accepted from the petitioner. 4. Leave was granted to the Forest Department to file this review petition on 24.6.2019. Notice was ordered in the application to condone delay on 26.6.2019 and the delay was condoned on 22.7.2019. Thereafter, the review petition was admitted and stay of operation of the judgment under review was ordered on 23.7.2019. 4. Leave was granted to the Forest Department to file this review petition on 24.6.2019. Notice was ordered in the application to condone delay on 26.6.2019 and the delay was condoned on 22.7.2019. Thereafter, the review petition was admitted and stay of operation of the judgment under review was ordered on 23.7.2019. There was no appearance for the respondents and time was granted till 19.8.2019. On that day and later on 26.8.2019 when the review petition was heard, there was no appearance for the respondent. 5. The learned Special Government Pleader appearing for the review petitioners made available a copy of the interim order in I.A No. 2 of 2018 in MFA(Forest) No.133/2018 of a Division Bench of this Court dated 19.6.2019. The interim order directed both sides to maintain status quo as it existed on the date of the order passed by the Tribunal. It was also directed that both sides shall not take any steps to change the entries in the revenue records pursuant to the order passed by the Tribunal. It is seen from the order that the order under challenge was the order dated 20.3.2018 in O.A No. 1 of 2010 on the file of the Tribunal for EFL cases. Priya Rubber Estate and Plantation Pvt. Ltd., Dr. Suresh and Priya Radhamony were respondents 1 to 3 in the MFA. 6. I find from a perusal of the writ petition that there was no whisper in the pleadings, the notification of a substantial portion of the land as ecologically fragile land in the year 2010 or the pendency of the O.A before the Tribunal. The writ petition had been filed on 23.5.2018. This was after the order passed by the EFL Tribunal. However, it is pertinent to note that there is no pleading as to either the notification or the successful challenge against the same before the Tribunal. The petitioner proceeds on the basis that he has valid title to the property in question. 7. A statement had been filed on behalf of the respondents in the writ petition wherein it is inter alia contended as follows: “Subsequently, the property claimed by the petitioner was taken over by the Tahsildar, Punalur and boards were erected to that effect. The petitioner proceeds on the basis that he has valid title to the property in question. 7. A statement had been filed on behalf of the respondents in the writ petition wherein it is inter alia contended as follows: “Subsequently, the property claimed by the petitioner was taken over by the Tahsildar, Punalur and boards were erected to that effect. Of the extent 492.13 acres, an extent of 328.76.877 acres (133.05.09 hectares) reported to be taken over by the Forest Department as EFL and an extent of 50.22.110 acres (20.3242 hectares) is reported to be taken over as vested forest by the Forest Department. The remaining portion of the land is now under the control of the District Administration, Kollam.” 8. Though such a pleading was raised in the statement, the writ petition had been disposed of along with connected cases and the issuance of the notification under the EFL Act was not specifically brought to the notice of this Court. This has resulted in the direction contained in the judgment for acceptance of land tax from the petitioner in respect of the entire extent of land without reference to the notifications under the Kerala Private Forest (Vesting and Assignment) Act, 1971 as also Annexure A1 notification under the EFL Act. The petitioner had evidently not disclosed the necessary facts for a proper consideration of the issue before this Court in the writ petition. 9. The learned Special Government Pleader relies on the decisions of the Apex Court in Dnyandeo Sabaji Naik and Another v. Pradnya Prakash Khadekar and Others ( 2017 (5) SCC 496 ) to contend that where the frivolous and groundless filings constitute a serious menace to the administration of justice and a strong message is to be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. It was stated by the Apex Court that the imposition of exemplary costs is a necessary instrument which has to be deployed to weed out as well as to prevent the filing of the frivolous cases. Costs of Rs.5 lakhs was imposed on the respondents in the said case. 10. I have considered the contentions advanced. It was stated by the Apex Court that the imposition of exemplary costs is a necessary instrument which has to be deployed to weed out as well as to prevent the filing of the frivolous cases. Costs of Rs.5 lakhs was imposed on the respondents in the said case. 10. I have considered the contentions advanced. The pleadings raised in the writ petition which was filed after the order was passed by the EFL Tribunal on 20.3.2018 would clearly show that there was absolutely no whisper of the relevant facts in the writ petition. The writ petition had been filed claiming title over the entire extent of 492.13 acres land. The fact that a portion of such land was notified as vested forest as early as in 1986 was not disclosed in the writ petition. Further, the fact that Annexure A1 notification had been issued notifying a substantial portion of the property as ecologically fragile land and the challenge raised to that notification had been suppressed by the writ petitioner. Though the existence of such notifications was referred to in the statement filed on behalf of the respondents, it appears that the writ petition had been disposed of along with a batch of connected cases as being covered by the judgment of the Division Bench in Harrisons Malayalam Ltd.'s case (Supra). 11. In the above view of the matter, I am of the opinion that the non disclosure of the relevant fact of the pendency of a notification and the legal proceedings pursuant thereto was a clear attempt on the part of the writ petitioner to suppress relevant aspects of the matter from this Court and to mislead this Court to pass an order which would not have been passed, had all the facts been truthfully brought before the Court. Moreover, a contempt of court case was filed alleging non compliance with the judgment and the respondents were forced to receive tax in respect of the property. I am of the opinion that the attempt of the respondents was clearly to mislead this Court and amounts to clear malpractice and abuse of process of law. In the circumstances, I am of the opinion that the respondents in this review petition who are the writ petitioners before this Court are also liable to be mulcted with exemplary costs. The review petition is hence allowed. The judgment under review is recalled. In the circumstances, I am of the opinion that the respondents in this review petition who are the writ petitioners before this Court are also liable to be mulcted with exemplary costs. The review petition is hence allowed. The judgment under review is recalled. The writ petition is dismissed. It is however clarified that the property in the review petitioner's possession to which the petitioner has clear title and which is not covered by any notifications either under the EFL Act or the Kerala Private Forest (Vesting and Assignment) Act, 1971 can be enjoyed by the petitioner. In view of the fact that the relevant facts had been suppressed from this Court to obtain favourable orders, a cost of Rs.5 lakhs is imposed on the first respondent herein. The costs shall be paid to the Kerala Legal Services Authority within a period of two months from today. In case the costs are not paid within the time granted, it will be open to the KELSA to recover the amount by recourse to Revenue recovery proceedings.