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Sunday, February 26, 2017

In our view, having regard to the nature of controversy involved in these appeals, the contentious issues decided by the Tribunal and the Single Judge of the High Court, the implications of various Forest and Revenue laws governing the issues and further keeping in view the Commissioner's report obtained by the Division Bench pursuant to the order dated 29.10.2000 in relation to the disputed land in question, the writ appeal deserves to be heard on merits.=we are inclined to allow the appeals in part and while setting aside the impugned judgment remand the case to the High Court (Division Bench) to decide the writ appeal afresh on merits.

                                                       Non-reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 2099 OF 2008


State of Kerala & Ors.                   ….Appellant(s)

                             VERSUS

Yusuff & Ors.                                      …Respondent(s)

                       WITH


                        CIVIL APPEAL No. 2100 OF 2008


State of Kerala & Ors.                   ….Appellant(s)

                             VERSUS

Yusuff & Ors.                                      …Respondent(s)



                               J U D G M E N T

Abhay Manohar Sapre, J.
1)    Civil appeal No. 2099 of 2008 is  filed  against  the  final  judgment
dated 22.01.2004 passed by the High Court of Kerala  at  Ernakulam  in  Writ
Appeal No. 198 of 2000 whereby the High Court disposed of  the  writ  appeal
filed by the appellants herein by granting six months’ time to complete  the
demarcation and to hand over the land in question.  2)    Civil  Appeal  No.
2100 of 2008 is filed against the final order  dated  11.06.2004  passed  by
the High Court of Kerala at Ernakulam in R.P.No. 254 of 2004  filed  against
the judgment dated 22.01.2004 in W.A. No. 198 of  2000  by  which  the  High
Court closed the review petition on the  basis  of  the  submission  of  the
Government pleader that the Government is resorting to other remedies.
3)    We herein set out  the  facts,  in  brief,  to  appreciate  the  issue
involved in these appeals.
4)    The impugned judgment and order read as under:

                      “Judgment in W.A. No. 198 of 2000

The learned Government Pleader submits that what the Government requires  is
only some time to  demarcate  the  land  in  question  for  the  purpose  of
restoration to the Respondents.  Accordingly, the Writ  Appeal  is  disposed
of, as suggested by the Government Pleader, granting six months’  time  from
today to complete the demarcation and to hand over the land in question.”


                       “Order in R.P. No. 254 of 2004
Government Pleader  submits  that  the  Government  is  resorting  to  other
remedies.

Review Petition is closed.”

5)    The dispute in these appeals essentially center around to  the  forest
land measuring around 4.0755 Hectares  in  Sy.  No  2019/Part,  situated  in
Pattassery (Agaly) Village, Mannaghat Taluk, District Palakkad in the  State
of Kerala. It is between the State (Forest Department) on the one  hand  and
the private individuals(respondents) on  the  other  hand.  The  respondents
assert their rights on the said land  to  the  exclusion  of  the  State  on
variety of grounds whereas  the  State  equally  disputes  the  respondents’
claim and assert their rights.
6)    The Forest Tribunal, Manjeri, by order dated 03.10.1979, in  O.A.  No.
97 of  1978  first  decided  the  dispute.  It  was  then  carried  in  writ
jurisdiction to the High Court in O.P. No 1470 of 1991 and  was  decided  on
merits and then was taken in appeal being W.A. No 198  of  2000  before  the
Division Bench which resulted in passing the impugned judgment  giving  rise
to filing of  C.A. No. 2099 of 2008 by the State.  Against the  judgment  in
W.A. No. 198 of 2000,   Review Petition No. 254 of  2004  was  filed  before
the High Court, which was closed by order  dated  11.06.2004.   Against  the
said order, C.A. No. 2100 of 2008 is filed.
7)    Heard Mr. V. Giri, learned senior counsel for the appellants  and  Mr.
M.S. Vishnu Sankar, learned counsel for the respondents.
8)    Submission of learned Senior  counsel  for  the  appellant(State)  was
only one. According to him, having  regard  to  the  nature  of  controversy
which was the subject matter before the Forest Tribunal in O.A.  No.  97  of
1978 and then carried to the High  Court  in  O.P.  No.  1470  of  1991  and
lastly, in appeal being W.A. No. 198 of 2000 at the instance of  the  State,
which is now finally brought to this Court in these appeals, the High  Court
ought to have dealt with and decided variety of grounds urged on  merits  by
the parties.
9)    Learned Counsel pointed out that presumably due  to  reason  that  the
State’s counsel did not argue any point, the High Court did not consider  it
necessary to go into  any  of  the  contentious  issues  but,  according  to
learned counsel, it caused serious prejudice to the State.
10)   Learned counsel pointed out from the record that the  State’s  counsel
was neither authorized to make such statement before the Division  Bench  on
behalf of the State and nor was there any occasion  for  him  to  make  such
statement which unfortunately resulted in disposal  of  the  State’s  appeal
without deciding any of the contentious issues. Learned counsel,  therefore,
urged for hearing the State's writ  appeal  on  merits  by  the  High  Court
afresh in accordance with law.
11)   In reply, learned  counsel  for  the  respondents  (writ  petitioners)
while supporting the impugned judgment/order  contended  that  the  impugned
judgment/order  deserve  to  be  upheld  calling  no  interference  therein.
Learned counsel urged that the State’s counsel rightly made  the  concession
which was duly recorded by the Division Bench resulting in disposal  of  the
appeal.
12)   Learned counsel also urged several  issues  arising  in  the  case  on
merits to show that the appellant (State) has no case even on facts.
13)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we are inclined to allow the  appeals  in  part  and
while setting aside the impugned judgment remand the case to the High  Court
(Division Bench) to decide the writ appeal afresh on merits.
14)   In our view, having regard to the nature of  controversy  involved  in
these appeals, the contentious  issues  decided  by  the  Tribunal  and  the
Single Judge of the High Court,  the  implications  of  various  Forest  and
Revenue  laws  governing  the  issues  and  further  keeping  in  view   the
Commissioner's report obtained by the Division Bench pursuant to  the  order
dated 29.10.2000 in relation to the disputed  land  in  question,  the  writ
appeal deserves to be heard on merits.
15)   So far as the issue with regard to the statement  of  the  appellants’
counsel made before the High Court is concerned, we find from the record  of
the case that it was not called for inasmuch as the  same  appears  to  have
been made under some misconception.  Be that as it  may,  in  the  light  of
what we have observed supra, it is not necessary to go  into  this  question
any more.
16)   In our view, the remand of the  appeal  to  the  High  Court  for  its
decision  on  merits  would  not,  in  any  way,  cause  prejudice  to   the
respondents because they would also be heard in appeal.
17)   In the light of foregoing discussion, we allow the appeals, set  aside
the impugned judgment and order, restore Writ Appeal No. 198 of 2000 out  of
which these appeals arise and request the High  Court  to  decide  the  writ
appeal afresh on merits in accordance with law expeditiously.
18)   We make it clear that we have not expressed any opinion on the  merits
of the controversy involved  in  these  appeals  and,  therefore,  the  writ
appeal would be decided by  the  High  Court  uninfluenced  by  any  of  our
observations.

                       ………...................................J.
                                  [R.K. AGRAWAL]



…...……..................................J.
                               [ABHAY MANOHAR SAPRE]     New Delhi;
February 23, 2017
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