V. Parukutty Mannadissiar & Anr. v. State of Kerala & Ors.
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 _ ,,
H Tribunal under the provisions of the Kerala Priva_te Forests (Vesting &
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V.P. MANNADJSSIAR v. STATE OF KERALA (MISRA, J.( 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 (Vest
ing & 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 woop 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 D
1971. But of the rest 2 acres over which the respondent had
planted cashew is declared to be not a private fore,St 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 E
such a manner that it will be con,~ient for the enjoyment
of the respondent:-Tue balance '10 acres will vest with the
Government. With .the demarcation and identification of
that 10 acres the ca~e is sent back to the J'nrest Tribunal. If
the Custodian has \liken possession of the area declared not
to vest, he will surrender the same to the respondent forth- F
with ..... "
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 G
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 H
40 SUPREME COURT REPORTS l 1989] Supp. 1 S.C.R.
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 peti
tioner, 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 Custo
dian of Vested Forests it has been accepted that in terms of the judg
ment of the High Court in MFA No. 401/78, 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
IE 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.0. Rt. No. 1345/82/AD da.ted
24.5.82, in lieu of the land wrongly handed over to the
petitioner.
Survey No.
1518
1580
1580
Area to be restored.
10.19 acres
6.03 acres
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 com
H pensation for such shortfall as if the same had been acquired by the
Staie for a public purpose.
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V.P. MANNADISSIAR v. STATE OF KERALA .(MISRA, J.I 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 Govern
ment 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 ~f 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 administra
tive 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 provi
sions of the Land Acquisition Act, the date of the preliminary notifica
tion 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 H
42 SUPREME COURT REPORTS (1989] Supp. 1 S.C.R.
A ce;tain 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.
B The appeal is allowed in part. Parties are directed to bear their
respective costs.
G.N. Appeal allowed partly.
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