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PETITIONER: V. PARUKUTTY MANNADISSIAR & ANR.

       Vs.

RESPONDENT: STATE OF KERALA & ORS.

DATE OF JUDGMENT05/09/1989

BENCH: MISRA RANGNATH BENCH: 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.

HEADNOTE:     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. Accord- ingly,  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 trans- it permits applied for by the appellants.     Aggrieved  against  the  decision,  the  appellants  ap- proached 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 Depart- ment to consider the application of the appellants and  pass appropriate orders after giving an opportunity to the appel- lants 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

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12  acres to be returned to the appellants. The  respondents shall have a direction to trace these 12 acres in the local- ity and make over vacant possession to the appellants there- of 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  direc- tions 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 consid- er  the appellants’ plea for timber transit permits  in  re- spect  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]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal  Nos.  3694- 3695 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 Appel- ants. 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  euca-               lyptus  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

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             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  respond-               ent. The balance 10 acres will vest. with  the               Government. With the demarcation and identifi-               cation 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  re-               spondent 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  direc- tion  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.  There- upon  the appellants filed a writ petition before  the  High Court for a direction to the State Government and its  offi- cers  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  objec-               tions." 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.

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                    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 direc- tion  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  considera- tion 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  de- serves  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 direc- tion 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 local- ity and make over vacant possession to the appellants there- of 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  Acquisi- tion  Act,  the date of the preliminary  notification  being deemed to be the date of judgment in MFA 401/78. The  direc- tions 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.

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G  .N.                                       Appeal  allowed partly. 43