IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 W.A.No.1809 of 2008 ----------------------------------- AGAINST ORDER IN R.P.577/2008 IN O.P.NO.22105/1999 DATED 25/06/2008 .................... APPELLANTS/REVIEW PETITIONERS IN RP:- --------------------------------------------------------------- 1. THE DIVISIONAL FOREST OFFICER, KOTTAYAM. 2. THE CUSTODIAN OF VESTED FORESTS, OLAVAKKODE CIRCLE, PALAKKAD. 3. THE DISTRICT COLLECTOR, IDUKKI. 4. THE STATE OF KERALA, REPRESENTED BY THE EX-OFFICIO SPECIAL SECRETARY TO GOVERNMENT (FOREST SPECIAL), AGRICULTURAL DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER (FORESTS) SRI.RANJITH THAMPAN. RESPONDENT/RESPONDENT IN RP:- ----------------------------------------------------- M/S.RAM BAHADUR THAKUR LTD., KOLIEKANAM STATE, ELAPPARA, REPRESENTED BY ITS GROUP MANAGER, D.DOGRA. BY ADV.SRI.JOSEPH KODIANTHARA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- W.A. No. 1809 of 2008 ------------------------------------------ Dated, this the 16th day of September, 2008 JUDGMENT A.K.Basheer, J. The State and the officials of the Forest Department have preferred this writ appeal challenging the order passed by the learned Single Judge in R.P.No.577 of 2008 in O.P.No.22105 of 1999. While disposing of the original petition by judgment dated February 20, 2008, the learned Single Judge had directed the appellants to restore possession of 9.70 hectares of land to respondent No.1 Company. 2. The review petition happened to be filed by the appellants, thereafter contending, inter alia, that the above direction was not capable of being implemented since the land in question had not been notified as provided under Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974 ('the Rules' for short) and that the State had not taken possession of the said land. 3. The learned Judge repelled the above contention and dismissed the review petition. It is in the above circumstances that the appellants have come before us impugning the above order. W.A.No.1809 of 2008 2 4. A brief reference to the essential facts may be necessary to consider the question whether any interference is warranted with the impugned order. 5. Respondent No.1 which is a public limited company is the owner of Koliekanam Estate in Elappara. The Company had approached the Forest Tribunal under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short, Act, 1971) for a declaration that the 9.70 hectares of land forming part of the estate was not a private forest. The Forest Tribunal had allowed the above prayer by its order dated May 31, 1978. The above order was challenged by the Department before this Court in M.F.A.No.424 of 1979. A Division Bench of this Court had dismissed the appeal confirming the order passed by the Forest Tribunal. The judgment was rendered by the Division Bench on January 17, 1980. 6. The original petition was filed by the Company thereafter praying for issue of a writ of mandamus or such other appropriate writ, order or direction to restore the above extent of land (9.70 hectares) to the Company free from any encumbrance and after removing all encroachers. 7. In the counter affidavit filed by the respondents it was contended that the land in question is ecologically fragile land as defined under the Kerala Forests (Vesting and Management of Ecologically W.A.No.1809 of 2008 3 Fragile Lands) Act, 2003 ('Act, 2003' for short). However, in the course of the arguments, the learned Special Government Pleader submitted, in terms of the instructions received by him from the Divisional Forest Officer, Kottayam, that no notification was issued under Act, 2003, since the land did not qualify for vesting under the said Act. The learned Judge after considering the rival contentions of the parties had found that respondent No.1 Company was entitled to restoration of possession of the said land. Accordingly a direction was issued to the appellants in this regard. 8. It is on record that the above judgment of the learned Single Judge was not challenged by the Department. In other words, the judgment of the learned Single Judge had become final. 9. However, the above review petition was filed contending, inter alia, that the Department was not in possession of the land in question in order to enable it to restore possession of the same to the Company. It was further contended that the said land had not been notified or boundaries demarcated as provided under Rule 2A of the Rules. In short it was urged before the learned Judge that the State was not in a position to restore possession of the land to the Company since the Department had not taken possession of the same. But the learned Judge while repelling W.A.No.1809 of 2008 4 the above contention noticed that the State or the Custodian of Vested Forests had no case at any earlier point of time that the land in question had not vested in the Government. 10. Sri.Renjith Thampan, learned Special Government Pleader appearing for the appellants, has laid heavy emphasis on the provisions contained in Section 3(1) of Act, 1971 and Rule 2A of the Rules. Section 3(1) of Act, 1971 is extracted hereunder: “Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala, shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.” 11. It is contended by the learned Special Government Pleader that so long as the Government had not notified the land as provided under Rule 2A of the Rules, the Company cannot claim restoration of the land. W.A.No.1809 of 2008 5 12. The learned Judge had dealt with the above contention in the light of the provisions contained in Section 8 of Act, 1971. It is the admitted position that the Company had approached the Forest Tribunal under Section 8 of Act, 1971 and got a declaration in its favour. The order passed by the Tribunal was affirmed by the Division Bench of this Court in the Miscellaneous First Appeal. Thus the declaration given in favour of the Company had become final. Neither before the Tribunal nor before the Division Bench of this Court in the Miscellaneous First Appeal, the Department had raised any contention with regard to the absence of issuance of a notification under Rule 2A of the Rules. Therefore, in our view, the learned Judge was justified in repelling the above contention raised by the appellants based on Section 3 of Act, 1971 and under Rule 2A of the Rules. 13. There is yet another aspect of the matter. In State of Kerala and another v. Popular Estates and another (2004) 12 SCC 434 the apex Court had occasion to consider the impact of Section 3 of Act, 1971. The Court held that going by the scheme of the Act, all private forests would vest in the State Government. The Court further observed that the demarcation of the forests under Section 6 of the Act (Rule 2A of the Rules) is merely a consequential act and the vesting is not postponed W.A.No.1809 of 2008 6 depending on the said act. If anyone claims that his land had not vested in the State Government, Section 8 of the Act gives remedy of moving the Forest Tribunal with full details. The Forest Tribunal would then adjudicate the dispute and decide as to how much of the land claimed by the applicant was not vested forest. It is only upon such determination that the State would be divested of the vested forest. 14. In our view, the dictum laid down by the apex Court in the above case would squarely apply to the case on hand. We do not find any error in the order passed by the learned Single Judge. There is no merit in the writ appeal. Therefore, it is dismissed. Sd/- (H.L.DATTU) CHIEF JUSTICE Sd/- (A.K.BASHEER) JUDGE vns / true copy /