IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 WA.No. 1784 of 2010 --------------------- AGAINST THE JUDGEMENT IN WPC.16623/2005 Dated 14/06/2010 .................... APPELLANT/PETITIONER: --------------------------- BOMBAY BURMAH TRADING CORPORATION LTD. BEING AN EXISTING COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT,1950,HAVING ITS REGISTERED OFFICE AT WALLACE BUILDING,WALLACE STREET FORT BOMBAY-400 001, AND ITS TEAK PLANTATIONS, BY ITS POWER OF ATTORNEY HOLDER, DIVAKRAN NOORKATH,LEGAL ADVISOR, B.B.T.C,SUBRAHMANIAM ROAD,WILLINGTON ISLAND,COCHIN. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.T.P.ELDHOSE SMT.O.K.SANTHA SMT.P.L.MARY TREASA RESPONDENTS/RESPONDENTS: ---------------------------------- 1. UNION OF INDIA,REPRESENTED BY ITS SECRETARY,MINISTRY OF ENVIRONMENT AND FORESTS HAVING HIS OFFICE AT PARYAVARAN BHAVAN, CGO COMPLEX,LODHI ROAD,NEW DELHI-110001. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,FORESTS & WILD LIFE DEPARTMENT HAVING HIS OFFICE AT SECRETARIAT, TRIVANDRUM-695 001. 3. THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS,THIRUVANANTHAPURAM-695 001. 4. THE CUSTODIAN, VESTED FORESTS, OLAVAKODE, PALAKKAD-678 002. R1 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA R2 TO R4 BY SPECIAL GOVT. PLEADER, SRI.P.M. POULOSE. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No.1784 of 2010 ------------------------------------------ Dated this the 17th day of January, 2011 JUDGMENT J.Chelameswar, C.J. Aggrieved by a judgment dated 14th June, 2010 in W.P.(C) No.16623 of 2005, the unsuccessful petitioner therein preferred the present writ appeal. 2. The appellant is a company which owned a teak plantation in Sy.No.160/21A1A1 of Poothady (now Irulam) Village in South Wayanad (now Sulthan Bathery) Taluk. The entire area covered by the plantation owned by the appellant was notified to be a private forest under the Kerala Private Forests (Vesting and Assignment) Act, 1971. Aggrieved by such a declaration, the appellant herein challenged the correctness of such a notification before the Tribunal constituted under Section 8 of the above mentioned Act. The Tribunal allowed the appeal in toto holding that the declaration made under the above mentioned Act is illegal. The State carried the matter to this Court in statutory appeal under the above mentioned Act and the appeal was admittedly allowed. The appellant herein carried the mater in further appeal before the Supreme Court unsuccessfully. 3. W.P.(C) No.16623 of 2005 from out of which the instant appeal arises was filed by the appellant with the prayers as follows: W.A.No.1784 of 2010 - 2 - “i) To hold that the petitioner is entitled to obtain exemption of 15 Acres of property included in Survey No.160/21A1A1 of Poothady Village in South Wayanad Taluk. ii) To direct the respondents 1 & 2 to surrender and vacate possession of 15 Acres of land comprised in Survey No.160/21A1A1 of Poothady Village in South Wayanad Taluk. iii) To award the cost of these proceedings to the petitioner and; iv) To grant such other and further relief as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” 4. In substance, the appellant claims that an extent of 15 Acres in the above mentioned survey number is required to be excluded from the purview of the operation of Section 3 of the Kerala Private Forests (Vesting and Assignment) Act on the ground that sub-section (2) of Section 3 carves out an exception to the rule of vesting contained under sub-section (1) of Section 3 of the said Act. 5. By the judgment under appeal, a learned Judge of this Court dismissed the writ petition holding that the writ petition is barred by the principle of res judicata and hence this appeal. 6. We are in agreement with the conclusion reached by the learned Judge that the writ petition deserves to be dismissed though with a slight modification that the writ petition is required to be dismissed not on the ground of res judicata but on the ground that it is barred by W.A.No.1784 of 2010 - 3 - the principle of constructive res judicata as admittedly the claim that the appellant is entitled for exclusion of a particular extent of land by virtue of the operation of sub-section (2) of Section 3 of the Act was not raised in the first round of litigation when the appellant herein challenged the notification under Section 3(1) of the Act. In the circumstances, we see no merit in the appeal. The writ appeal is dismissed at the admission stage. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns