V. Parukutty
Mannadissiar & Anr Vs. State of Kerala & Ors [1989] INSC 264 (5 September 1989)
Misra
Rangnath Misra Rangnath Venkatachalliah, M.N. (J)
CITATION:
1990 AIR 817 1989 SCR Supl. (1) 37 1990 SCC Supl. 245 JT 1989 (3) 572 1989
SCALE (2)529
ACT:
Kerala
Private Forests (Vesting and Assignment) Act, 1971: Sections 2(f),
3(2)--Vesting of private forests--Decision of Tribunal-Whether Government could
alter by administrative order.
HEAD NOTE:
The
High Court, in an appeal against a decision of the Forest Tribunal, under the
provisions of the Kerala Forests (Vesting & Assignment) Act, 1971, held
that 92 acres of forest land were to be given back to the appellants.
Accordingly, the Forest Department returned certain lands. Later on they realised
that the lands constituted thick forests and had valuable trees thereon and
refused the timber transit permits applied for by the appellants.
Aggrieved
against the decision, the appellants approached the High Court by way of a Writ
Petition. The High Court held that the appellants were not entitled to any
relief with regard to rosewood and other trees cut from the lands that did not
form part of the land ordered to be restored to them. The High Court directed
the Forest Department to consider the
application of the appellants and pass appropriate orders after giving an
opportunity to the appellants to put forward their contentions.
This
appeal, by special leave, is against the said order of the High Court.
Allowing
the appeal in part,
HELD:
1.1 The appellants are entitled to return of 92 acres of land and not 80 acres..This
is on the ground that the direction of the High Court in the first appeal
became final and in terms of such direction 92 acres were to go back to the
appellants. Government had no authority to alter the decision by an
administrative order as has been done in this case. [41D]
1.2
There is no dispute that 56.31 acres have been restored to the appellants.. By
the affidavit of 24th
June, 1989, 23.69
acres have been 38 offered to be restored from three survey numbers indicated
therein. With the restoration of 23.69 acres the appellants would have got back
80 acres of land. There would still be 12 acres to be returned to the
appellants. The respondents shall have a direction to trace these 12 acres in
the locality and make over vacant possession to the appellants thereof within
four months. [41E]
1.3 In
case 23.69 acres or any part thereof as indicated in the affidavit Cannot be
delivered possession and the balance 12 acres are not identified and possession
thereof cannot be delivered, the appellants shall be entitled to compensation
in respect of the shortfall out of 35.69 acres in all which remain to be
delivered and compensation for such shortfall shall be determined as if it were
acquisition under the provisions of the Land Acquisition Act, the date of the
preliminary notification being deemed to be the date of judgment of the
Division Bench in MFA 401/78. The directions indicated above shall be worked
out by the respondents within a total period of six months. [41F-G]
2. The
High Court called upon the respondents to consider the appellants' plea for
timber transit permits in respect of trees cut from certain other lands. There
is no material on record as to whether that has been complied with. In case the
respondents have not done the same yet, they are directed to comply with the
order of the High Court within three months. [41H; 42A]
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 36943695 of 1989.
From
the Judgment and Order dated 22.9. 1987 of the Kerala High Court in O.P. Nos.
4932 of 1983 and 1091 of 1982.
T.S.
Krishnamurthy Iyer and E.M.S. Anam for the Appelants.
P.S. Poti
and P.K. Pillai for the Respondents.
The
Judgment of the Court was delivered by RANGANATH MISRA, J. Special leave granted.
We have heard learned counsel for the parties.
In
disposing of the appeal against a decision of the Forest Tribunal under the
provisions of the Kerala Private Forests (Vesting & 39 Assignment) Act,
1971, a Division Bench of the Kerala High Court in MFA No. 401/78 disposed of
on 14th of July, 1980, directed:
"It
follows that out of 102 acres 25 acres over which teak was planted in 1967 and
eucalyptus was planted in 1955 will be private forest coming within the Private
Forests (Vesting & Assignment) Act. But since this area is under the
personal cultivation of the respondent she will be entitled to 15 acres under
Section 3(2) of the Act. The rest 10 acres will vest with the Government.
In the
result the appeal is partly allowed and the order of the lower court is
modified as follows:
It is
declared that 75 acres over which the respondent had planted teak-wood, orange
and soft wood prior to 14th December, 1949, is held to be not a private forest
under the Madras Preservation of Private Forests Act, 1949 and Kerala Private
Forests (Vesting & Assignment) Act, 26 of 197 1. But of the rest 2 acres
over which the respondent had planted cashew is declared to be not a private
forest under Section 2(f)(1)(i)(A) and (C) of the Act. Another 15 acres under
the personal cultivation of the respondent is also held not to vest under the
above Act under Section 3(2) of the Act. The Custodian shall demarcate this 15
acres in such a manner that it will be convenient for the enjoyment of the
respondent. The balance 10 acres will vest. with the Government. With the
demarcation and identification of that 10 acres the case is sent back to the
Forest Tribunal. If the Custodian has taken possession of the area declared not
to vest, he will surrender the same to the respondent forthwith ....." In
terms of this judgment 92 acres (being the total of 75 acres + 15 acres + 2
acres) were to be given back to the appellants. In the process of
implementation of this direction certain lands were returned to the appellants
by the Forest officials. These lands constituted
thick forests and had valuable trees thereon. This fact was realised by the
higher officers of the Department and timber transit permits were not issued to
the appellants when applied for. Thereupon the appellants filed a writ petition
before the High Court for a direction to the State Government and its officers
to issue the requisite transit permits to enable the appellants to transport
the rosewood trees and other 40 timber. The claim contested. The High Court
came to the conclusion:
"It
is made clear that the petitioners are not entitled to any relief with regard
to rosewood and other trees cut from the lands which do not form part of the
lands ordered to be restored to the petitioner in O .P. No. 4832 of 1983 and
are vested in the Government. With respect to the trees cut from the properties
ordered to be restored to the petitioner, respondents 1 to 3 are directed to
consider the applications filed by the petitioner for issue of transit permits
and pass appropriate orders according to law. Before determining this question
also the respondents may give an opportunity to both the petitioners to put
forward their contentions and a final decision may be taken after considering
their objections." This order of the High Court is the subject-matter of
the present appeal.
In an
affidavit filed in this appeal by the conservator and Custodian of Vested
Forests it has been accepted that in terms of the judgment of the High Court in
MFA No. 40 1/78, 92 acres were found not to vest in the State under the Act.
In the
judgment the survey numbers with the respective extents had been furnished. It
is stated that 12 acres had not been taken possession of and, therefore,
surrender had to be made of 80 acres only. A further affidavit has been filed
by the said Custodian where it has been said:
"Hence
only 80 acres are to be restored and out of this 56.31 acres have admittedly
been restored already. For the remaining 23.69 acres, Government are pleased to
restore the same as follows vide G.O. Rt. No. 1345/82/AD dated 24.5.82, in lieu
of the land wrongly handed over to the petitioner.
Survey
No. Area to be restored.
1518
10.19 acres 1580 6.03 acres 1580 7.47 acres" It has been further stated
therein that in case any part of such land is not available, the Government are
prepared to pay reasonable compensation for such shortfall as if the same had
been acquired by the State for a public purpose.
41 We
are of the view that the High Court was right in refusing to act upon the
footing that pursuant to the direction by the High Court about 36 acres of land
containing forest growth had been surrendered to the appellants and, therefore,
they were entitled to appropriate the trees. In fact within the ambit of the
writ petition as filed before the High Court, the only question that fell for
consideration was whether timber transit permits should or should not be issued
to the appellants to enable them to transport the felled timber from the area
which should not have been delivered to the appellants. Since we do not intend
to differ from the High Court on that issue this appeal deserves to be
dismissed but with a view to doing complete justice to the parties and give a
final verdict in the matter we had enquired from Mr. Poti appearing for the
respondent-State on 27.3.1989 as to how Government proposed to comply with the
binding direction of the High Court given in the first appeal. The affidavit of
24th of June, 1989 by the Custodian of Vested Forests is in answer to that
query.
We
would like to reiterate that the appellants are entitled to return of 92 acres
of land and not 80 acres.
This
is on the ground that the direction of the High Court in the first appeal
became final and in terms of such direction 92 acres were to go back to the
appellants. Government had no authority to alter the decision by an
.administrative order as has been done on 22.5.1982. There is no dispute that
56.31 acres have been restored to the appellants. By the affidavit of 24th of
June, 1989, 23.69 acres have been offered to be restored from three survey
numbers indicated therein. With the restoration of 23.69 acres the appellants
would have got back 80 acres of land. There would still be 12 acres to be
returned to the appellants. The respondents shall have a direction to trace these
12 acres in the locality and make over vacant possession to the appellants
thereof within four months hence. In case 23.69 acres or any part thereof as
indicated in the affidavit cannot be delivered possession and the balance 12
acres are not identified and possession thereof cannot be delivered, the
appellants shall be entitled to compensation in respect of the shortfall out of
35.69 acres in all which remain to be delivered and compensation for such
shortfall shall be determined as if it were acquisition under the provisions of
the Land Acquisition Act, the date of the preliminary notification being deemed
to be the date of judgment in MFA 401/78. The directions indicated above shall
be worked out by the respondents within a total period of six months from
today.
The
High Court called upon the respondents to consider the appellants' plea for
timber transit permits in respect of trees cut from 42 certain other lands.
There is no material on record as to whether that has been complied with. In
case the respondents have not done the same yet they are directed to comply
with the order of the High Court within three months from today.
The
appeal is allowed in part. Parties are directed to bear their respective costs.
G .N.
Appeal allowed partly.
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