P.V. Kunhiraman and others v. Custodian of Vested Forest, State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 1ST DAY OF SEPTEMBER 2014/10TH BHADRA, 1936** ## **WP(C).No. 12072 of 2010 (H)** **----------------------------** ## **PETITIONER(S):** ## **--------------------------** **1. P.V.KUNHIRAMAN, S/O.AMMALU AMMA, KRIPALAYAM, PULLENGODE, KALIKAVU PO MALAPPURAM, DISTRICT** **2. P.V.KUNHIKRISHNAN,DO. DO.** **3. P.V.NANIKKUTTY, DO. DO.** **4. P.RAMACHANDRAN,S/O.LATE K.PADMANABHAN NAIR, ANIMANAL, PO ATAKKUNDU KALIKAVU, MALAPPURAM, DISTRICT.** **5. P.NIRMALA, D/O.LATE K.PADMANABHAN NAIR, DO. DO.** **6. P.PADMAJA, D/O.DO. DO. DO.** **7. K.GIRIJA, KRIPALAYAM, PULLENGODE PO, MALAPPURAM DISTRICT.** **8. M.K.PRABHAKARAN NAIR, DO. DO.** **9. K.ACHUATHANKUTTY, DO... DO.** **10. K.RAMAKRISHNAN, DO. DO.** **11. K.VENUGOPAL, DO. DO.** **BY ADVS.SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR** ## **RESPONDENT(S):** - **----------------------------** **1. CUSTODIAN OF VESTED FOREST** **2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** ## **W.P.(C).NO.12072/2010** **3. PRINCIPAL CHIEF CONSERVATOR OF VESTED** - **FOREST, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** **4. THE CUSTODIAN (ECOLOGICALLY FRAGILE LANDS) AND CHIEF CONSERVATOR OF FORESTS (WILD LIFE) THIRUVANANTHAPURAM.** **R BY SRI.M.P.MADHAVANKUTTY, SPL. GOVT. PLEADER FOR FORESTS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-08-2014, THE COURT ON 01-09-2014 DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.12072/2010** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1: COPY OF THE ORDER OF THE CUSTODIAN OF VESTED FORESTS, PALAKKAD DT. 12.2.1976 IN FAVOUR OF THE PETITIONERS 1 TO 3, THE PREDECESSOR-IN-INTEREST OF PETITIONERS 4, 5 AND 6 AND ALSO IN FAVOUR OF OTHER PETITIONERS.** ## **EXT.P2: COPY OF THE JUDGMENT IN O.P.NO.5204/1981 DATED 28.2.1983.** **EXT.P3: COPY OF THE MEMO FILED BY THE GOVERNMENT PLEADER IN O.P.NO.5204/1981 DATED 12.4.1988.** **EXT.P4: COPY OF THE ORDER OF THE APEX COURT IN C.A.NO.4253/1984 AND THE CONNECTED MISCELLANEOUS APPLICATIONS DATED 22.7.1999.** **EXT.P5: COPY OF THE JUDGMENT OF APEX COURT IN C.A.NO.4253/1984 AND THE CONNECTED MISCELLANEOUS APPLICATIONS DATED 22.7.1999.** **EXT.P6: COPY OF THE PETITION FILED BY LATE PARU AMMA BEFORE R1, WHO IS THE SENIOR MOST MEMBER OF THE TARWAD DT. 31.8.1999.** **EXT.P7: COPY OF THE PETITION SUBMITTED BY LATE PARU AMMA DT. 16.7.2001 BEFORE THE 1ST RESPONDENT.** **EXT.P8: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C). NO.27696/2003 DATED 3.9.2003.** **EXT.P9: COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 8.10.2003.** **EXT.P10: COPY OF THE LETTER DATED 14.11.2003 SENT BY 14.11.2003 SENT BY R1 TO THE PETITIONERS.** **EXT.P11: COPY OF THE DETAILED STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 31.10.2003.** **EXT.P12: COPY OF THE ADDITIONAL STATEMENT SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT DATED 26.11.2003.** **EXT.P13: COPY OF THE ORDER OF THE 1ST RESPONDENT NO.B1-1609/87 DATED 7.1.2004.** **EXT.P14: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C). NO.8783/2004 DATED 15.9.2008.** **EXT.P15: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.A.NO.318/2009 DATED 27.5.2009.** ## **W.P.(C).NO.12072/2010** **EXT.P16: COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 15.10.2009.** **EXT.P17: COPY OF THE NOTIFICATION ISSUED UNDER THE KERALA FOREST (VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) ACT, 2003 DATED 21.7.2009.** **EXT.P18: COPY OF THE ORDER OF THE APEX COURT IN SLP NO.17233/2009 DATED 1.2.2010.** ## **RESPONDENTS EXHIBITS: NIL** **//TRUE COPY//** **P.S. TO JUDGE** **( CR)** ## **A.K.JAYASANKARAN NAMBIAR, J. ------------------------------W.P.(C).NO.12072 OF 2010 ----------------------------------Dated this the 1[st] day of September, 2014** ## **J U D G M E N T** Ext.P16 order passed by the Custodian of Vested Forest, Palakkad, as also Ext.P17 notification issued under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 are impugned in this writ petition preferred by the petitioners who are members of the Kookil Tharwad of Thalassery in the State of Kerala. 2. The brief facts necessary for the disposal of this writ petition are as follows: The Petitioners are members of the Kookil tharwad, which owned vast extents of forest land in Ernad Taluk in Malappuram District. The properties of the tharwad were partitioned in O.S.No.69/1949 before the Sub Court, Thalassery. A final decree was passed in I.A.No.734 in the said suit. As per the final decree, the forest land owned by the tharwad was partitioned equally and each member of the tharwad stood entitled to get 57.5 acres of land. The **W.P.(C).No.12072/2010** **2** tharwad had leased out 1630 acres of land to the Pullengode Rubber and Produce Company Limited as per a lease agreement dated 1.5.1910. The land that was allotted to the several members of the tharwad, pursuant to the final decree in the partition suit, formed part of the land that was demised to the Pullengode Rubber and Produce Company Limited. A portion of this land was unplanted forest land which was declared as a private forest by the 1[st] respondent. On account of the provisions of the Kerala Land Reforms Act, read with the provisions of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as the 'Act'), the petitioners, although allotted 57.5 acres each pursuant to the final decree in the partition suit referred to above, could not actually hold the entire extent of 57.5 acres each since, by the provisions of the aforementioned enactments, they could hold only an equal extent of land as was permitted under the aforementioned enactments. 3. In 1974, the petitioners approached the 1[st] respondent invoking the provisions of the Kerala Private Forests (Exemption from Vesting) Rules, 1974 (hereinafter referred to as the 'Rules), through separate applications, for the grant of exemption for the different **W.P.(C).No.12072/2010** **3** extents of land that were allotted to them and which formed part of the land that was declared as a private forest by the 1[st] respondent. In exercise of his powers under Section 3(3) of the Act read with Rules 3 and 6 of the Rules, the 1[st] respondent considered the applications preferred by the petitioners for exemption and found 65 acres of land to be eligible for the exemption in terms of Section 3(3) of the Act. He accordingly passed Ext.P1 order dated 12.2.1976, wherein, the total extent of land that was exempted, as also the separate parcels of land that were ordered to be returned to the petitioners, were separately indicated. It was observed that the parties would identify the land which they wanted returned and that these would be surveyed and demarcated at their costs. 4. When no action was taken by the forest authorities pursuant to Ext.P1 order of the 1[st] respondent, the petitioners approached this Court through O.P.No.5204/1981, which was disposed by Ext.P2 judgment directing the 1[st] respondent to demarcate the properties, ordered to be exempted in favour of the petitioners, within a period of six months. It is relevant to note that, in the meanwhile, disputes arose between the Forest Department and the Pullengode Rubber and **W.P.(C).No.12072/2010** **4** Produce Company Limited regarding the identity and extent of land that was vested with the Government. This assumes significance because the area that was ordered to be restored to the petitioners by Ext.P1 order also formed part of the disputed area. The dispute raised by Pullengode Rubber and Produce Company Limited eventually reached the Supreme Court where an order of status quo came to be passed pending disposal of the civil appeals. In view of the status quo order passed by the Supreme Court, the direction in Ext.P2 judgment could not be complied with by the forest authorities, who filed Ext.P3 Memo before this Court in O.P.No.5204/1981 pointing out the said fact. The civil appeals before the Supreme Court were eventually disposed by Ext.P5 judgment. Therein, the Supreme Court, while dealing with the appeals preferred both by the State Government as also the Pullengode Rubber and Produce Company Limited, found that the Company had not established through evidence, oral and documentary, that the land, or any part thereof, was being used by the Company for purposes in connection with cultivation such as supplying firewood to the smokehouses or its workmen. It was accordingly found that the claim of the Company for exemption of the land in question, from the provisions of the Act, was **W.P.(C).No.12072/2010** **5** not sustainable. Consequent to the dismissal of the civil appeals by the Supreme Court, the petitioners filed petitions before the 1[st] respondent for releasing the lands that were directed to be returned to them by Ext.P1 order of the 1[st] respondent. When no action was taken on the said petitions, the petitioners approached this Court through W.P.(C).No.27696/2003, which was disposed by Ext.P8 judgment directing the 1[st] respondent to consider the petitions preferred by the petitioners and pass orders thereon within a period of four months. 5. The 1[st] respondent thereafter proceeded to consider the petitions preferred by the petitioners and passed Ext.P13 order dated 7.1.2004, rejecting the claim of the petitioners for the restoration of the properties to which they were found entitled by virtue of Ext.P1 order and Ext.P2 judgment. In Ext.P13, the 1[st] respondent virtually reviewed Ext.P1 order, already passed by his predecessor in 1976, and found the exemption claim preferred by the petitioners to be legally unsustainable. Challenging Ext.P13 order, the petitioners once again approached this Court through W.P.(C).No.8783/2004. A learned Single Judge by Ext.P14 judgment dated 15.9.2008 found that **W.P.(C).No.12072/2010** **6** Ext.P13 was legally unsustainable insofar as it had proceeded beyond the scope of the directions in Ext.P8 judgment and hence quashed Ext.P13 order and directed the 1[st] respondent to put the petitioners in possession of their respective properties within a period of three months. The said judgment of the learned Single Judge was carried in appeal by the State Government and a Division Bench of this Court, by Ext.P15 judgment dated 27.5.2009, modified the directions in Ext.P14 judgment, to the extent it directed the 1[st] respondent to put the petitioners in possession of the property, and directed the 1[st] respondent to pass fresh orders in the matter after considering the representations and applications preferred by the petitioners for release of their lands. Although the petitioners preferred a Special Leave Petition before the Supreme Court against the said judgment, the same was subsequently dismissed as infructuous since it was reported before the Supreme Court that in the meanwhile, the 1[st] respondent had passed fresh orders based on the directions of the Division Bench in Ext.P15 judgment. 6. Ext.P16 order dated 12.10.2009 is the one that was passed by the 1[st] respondent pursuant to the directions of the Division Bench **W.P.(C).No.12072/2010** **7** of this Court in Ext.P15 judgment. In Ext.P16 order, the 1[st] respondent once again re-examines the validity of the claims raised by the petitioners for exemption from the provisions of the Act as also the legality of Ext.P1 order that was passed by his predecessor in office. It was found that the petitioners did not satisfy the preconditions required under the Act and the Rules for the purposes of claiming exemption from the provisions of vesting of private forests. To that extent, it was found that Ext.P1 order of his predecessor was one that was not in conformity with the law and hence unsustainable. In addition, it was pointed out that the land in question was also notified as an ecologically fragile land as per notification dated 29.6.2009 of the Custodian of Ecologically Fragile Lands. The notification, which is produced here as Ext.P17, was also annexed to Ext.P16 order that was issued to the petitioners. The petitioners were informed that the land had vested in the Government of Kerala free from all encumbrances and the right, title and interest of the owner or any other person thereon stood extinguished from the date of commencement of the Act, namely, 2[nd] June, 2000. As already noted, Exts.P16 and P17 are impugned in the present writ petition. **W.P.(C).No.12072/2010** **8** 7. A counter affidavit has been filed on behalf of the 1[st] respondent, wherein, the sequence of events leading up to Ext.P16 order of the 1[st] respondent have been narrated and the reasoning in the said order is sought to be justified. In addition, referring to Ext.P17 notification, it was pointed out that the notification was issued in accordance with the provisions of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, which provided for alternate remedies to persons aggrieved by notifications issued thereunder. The petitioners have preferred a reply affidavit to the counter affidavit filed by the 1[st] respondent. 8. I have heard learned senior counsel Sri.T.Sethumadhavan assisted by Adv.Smt.Vandana Menon, appearing on behalf of the petitioners as also the learned Special Government Pleader Sri.M.P.Madhavankutty appearing on behalf of the respondents. 9. The contentions of the learned senior counsel on behalf of the petitioners can be summarised as follows: - Ext.P1 order of the 1[st] respondent had the effect of granting the petitioners an exemption from the provisions of the Act and also declaring that the said **W.P.(C).No.12072/2010** **9** lands have not vested in the Government in terms of Section 3 of the said Act. The exemption in question was granted to the petitioners after a detailed scrutiny of the applications preferred by the petitioners for exemption and also verifying compliance with the preconditions for the grant of exemption. The said order, therefore, was final and binding on the respondent authorities more so when it was not challenged or set aside in any valid legal proceedings. This is more so because Ext.P1 order was considered by this Court, and Ext.P2 judgment passed, in O.P.No.5204/1981, directing the 1[st] respondent to give effect to the exemption granted in Ext.P1 order. The respondents, therefore, could not wish away these glaring facts that confronted them. - The decision of the 1[st] respondent, in Ext.P16 order, virtually amounts to the exercise of a power of review over Ext.P1 order passed by his predecessor in office. Under the Statute, the power to review an order already passed is accorded only in limited circumstances and only to certain authorities. There is no power of review granted to the 1[st] respondent under the Statute, and, hence, in the absence of any express power of review, the 1[st] respondent, as a statutory authority, could not exercise an inherent power of review. This is all the more so in the case of **W.P.(C).No.12072/2010** **10** Ext.P1 order since by virtue of Ext.P2 judgment, the said order had effectively merged in the judgment, thereby making it immune from a review at the hands of the 1[st] respondent. - In the alternative, it is also pointed out that the stand of the 1[st] respondent that the petitioners were not entitled to claim exemption in respect of the lands in question was wholly misplaced. The only precondition for the claim for exemption was that the petitioners had to establish an intention to cultivate the lands in question. The petitioners did not have to show an actual cultivation of the land for the purposes of claiming exemption. The existence of an intention to cultivate had to be found by the 1[st] respondent, who had to exercise his discretionary power to grant the exemption under Rule 6 of the Rules read with Section 3 of the Act. There was nothing to indicate that the exercise of discretion by the 1[st] respondent was in any manner illegal or arbitrary. The decisions of the Supreme Court in **Joseph v. State of Kerala [2007 (3) KLT 144 (SC)]** and of a Full Bench of this Court in **Parameswara Sastrigal v. State of Kerala [2008 (2) KLT 461 (F.B.)]** are referred to for substantiating the said contention. ● As regards the applicability of Ext.P17 notification, it **W.P.(C).No.12072/2010** **11** is pointed out that the notification in question was deliberately brought out by the State Government with a view to overreach Exts.P2, P14 and P15 judgments of this Court and was hence vitiated by mala fides. It is contended that, at any rate, the lands directed to be returned to the petitioners could not be treated as falling within the definition of “ecologically fragile lands” in view of the fact that the said lands had been specifically exempted from the purview of the 1971 Act. In support of the said proposition, reliance is placed on the decision reported in **State of Kerala v. Kumari Varma [2011 (1) KLT 1008]** . 10. Per contra, the learned special Government Pleader Sri.M.P.Madhavankutty, appearing on behalf of the respondents would contend as follows: - The view taken by the 1[st] respondent in Ext.P16 order is absolutely legal and valid. As a Custodian of Vested Forests, appointed to preserve the forest wealth of the State, it was well within his powers to ignore an order of his predecessor if it was found to be non est and void. In the instant case, Ext.P1 order was passed by the predecessor in office on applications that were filed by the petitioners only in 1976. Reliance is placed on the averments in the writ **W.P.(C).No.12072/2010** **12** petition to that effect. It is contended therefore that the applications preferred by the petitioners were not in accordance with the procedure prescribed in Section 3 of the Act and therefore any order that was passed thereon by the predecessor in office was non est and liable to be ignored. - Ext.P5 judgment of the Supreme Court reveals that a claim for exemption from the provisions of the Act had been made in respect of the very same land by the lessee - Pullengode Rubber and Produce Company Limited - and the Supreme Court had negatived the claim for exemption of the said land from the provisions of the Act. The lessee was also included in the definition of “owner” for the purposes of the Rules. In that view of the matter, the 1[st] respondent could not, in respect of the same land, have taken a contrary view with regard to exemption when claims were preferred by the petitioners who were also “owners” for the purposes of the Rules. It is pointed out that diametrically opposite conclusions with regard to the land, as to whether it is a private forest or not, could not co-exist merely because claims were preferred by different persons. - With regard to the exercise of the power of review by the 1[st] respondent over Ext.P1 order passed by his **W.P.(C).No.12072/2010** **13** predecessor in office, it is submitted that there was nothing that stood in the way of the 1[st] respondent challenging a void or non est order passed by his predecessor in office, while dealing with the issue of returning lands to the petitioners on the ground of an exemption granted to them by the said order. The action of the 1[st] respondent could only be viewed as a collateral challenge against Ext.P1 order passed by his predecessor, in the course of an adjudication of the issue pursuant to directions of this Court. It is pointed out, therefore, that there was no illegality in the 1[st] respondent re-examining the issue of eligibility of the petitioners to claim exemption over the lands in question. - The decision of the Supreme Court in Ext.P5 judgment operated as a binding precedent, with regard to the declaration made in the said judgment, by virtue of the provisions of Article 141 of the Constitution of India. A clear conclusion arrived at by the Supreme Court could not ignored merely because the reasoning in the said decision was different from the one contended by the petitioners. Reliance is placed on the decision of the Supreme Court in **Ramesh Birch v. Union of India [1989 (Supp) 1 SCC 430]** . The principles of constructive res judicata also would operate to non-suit the petitioners in the **W.P.(C).No.12072/2010** **14** pursuit of the reliefs claimed by them in the writ petition. Reliance is placed on the following decisions for the said contention viz. **Suganthi v. Jagadeeshan [2002 (1) KLT 581 (SC)]** and **M.Nagabhushana v. State of Karnataka and Others [(2011) 3 SCC 408]** . ● With regard to Ext.P17 notification issued under the 2003 Act, it is pointed out that the land in question, notwithstanding the exemption granted in Ext.P1 order would evidently fall within the definition of “Ecologically fragile land” under the EFL Act. The fact of having obtained an exemption in terms of Section 3(3) of the Act would be of no avail to the petitioners since the decision relied upon by the petitioners in **State of Kerala v. Kumari Varma [2011 (1) KLT 1008]** has been taken up in an appeal before the Supreme court and the Supreme Court has passed an order of status quo. That apart, Ext.P17 notification can be separately challenged by the petitioners under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 before the Tribunal constituted under that Act. Inasmuch as there is an effective alternate remedy against Ext.P17 notification that is available to the petitioners, a challenge to the said notification in proceedings under Article 226 cannot **W.P.(C).No.12072/2010** **15** be maintained. 11. I have considered the pleadings in this case as also the submissions made by counsel on either side. The following issues arise for consideration in this writ petition viz. (i) Whether the first respondent could re-open the issues that had already been concluded in Ext.P1 order issued by his predecessor in office? (ii) Whether Ext.P5 judgment of the Supreme Court had any bearing on the petitioners' claim for exemption, that had been accepted by the first respondent in Ext.P1 order? (iii) Whether Ext.P17 notification is legally sustainable? ## **Re: Issue 1** : The primary challenge of the petitioners, against Ext.P16 order of the 1[st] respondent, is that it virtually re-opens issues that already stood concluded in favour of the petitioner vide Ext.P1 order of the predecessor in office of the 1[st] respondent. To appreciate the said contention, one has to recall the sequence of events that led to Ext.P16 order. As already noted, pursuant to the grant of exemption **W.P.(C).No.12072/2010** **16** in respect of the lands owned by the petitioners, by Ext.P1 order, the petitioners had sought an enforcement of the said order through recourse to a writ petition filed before this Court. In that writ petition, Ext.P2 judgment was passed, directing the 1[st] respondent to demarcate the properties that had to be returned to the petitioners and return the same. The said judgment of this court was not implemented only because the respondents cited the pendency of the another case, in respect of the same property, before the Supreme Court. When the said case before the Supreme Court was eventually disposed, the petitioners had approached the 1[st] respondent for an implementation of Ext.P1 order as directed in Ext.P2 judgment. On that occasion, the 1[st] respondent passed Ext.P13 order, virtually re-opening the issue of grant of exemption under the 1971 Act, and rejected the applications preferred by the petitioners' for the return of their lands. This action of the 1[st] respondent was disapproved of in Ext.P14 judgment of this court that went on to quash Ext.P13 order and direct the 1[st] respondent to put the petitioners' in possession of their properties. In an appeal preferred by the State against the said judgment, a Division bench of this court, in Ext.P15 judgment only modified the judgment of the single judge to the extent it directed the **W.P.(C).No.12072/2010** **17** 1[st] respondent to put the petitioners' in possession of their properties. Ext.P15 judgment did not, in any manner, authorise the 1[st] respondent to re-examine issues that had already attained finality through Ext.P1 order and Ext.P2 judgment. Notwithstanding this, the 1[st] respondent, once again, through Ext.P16 order proceeded to re-examine the issue of eligibility of the petitioners to the benefit of exemption under the 1971 Act. The justification for this action of the 1[st] respondent is sought to be founded on two grounds viz. That Ext.P1 order was, in itself, void and non est and further that the 1[st] respondent had an inherent power to set right an earlier order that was passed in disregard of the statutory provisions. I am not impressed by the said arguments, advanced on behalf of the respondents. Even if Ext.P1 order could be viewed as void or non est, the fact remains that it has not been challenged till date, in any valid proceedings and consequently, there is no order passed by any Court declaring the same as void or non est in law. The decisions in **State of Kerala v. M.K.Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others [AIR 1996 SC 906]; Shiv Chander Kapoor v. Amar Bose [(1990) 1 SCC 234]** and **Pune Municipal Corporation v. State of Maharashtra and Others [(2007) 5 SCC 211]** are but **W.P.(C).No.12072/2010** **18** some of the many precedents that hold that even a void order continues to have validity until it is set aside. The rationale for these decisions is the principle that a determination, and consequent declaration, of the void or non est nature of an order must be done only by a court of competent jurisdiction. Such a declaration cannot be left to the ipsi dixit of administrative authorities for otherwise chaos would result in the administration of justice. On the facts of this case, therefore, I cannot accept the proposition that the 1[st] respondent could ignore Ext.P1 order of his predecessor, more so when the said order had already been considered by this Court while issuing Ext.P2 judgment directing its implementation. In that respect, Ext.P1 order had merged in Ext.P2 judgment, thereby rendering it immune from a review at the hands of the 1[st] respondent. I am also not impressed with the second limb of the argument of the learned special government pleader that suggests the existence of an inherent power of review in the 1[st] respondent. The 1[st] respondent being a creature of the statute cannot have a power of review unless there is one expressly conferred on him under the statute. It is trite that statutory authorities do not possess any implied or inherent power of review. In the instant case, the power of review under the Act is conferred only **W.P.(C).No.12072/2010** **19** on the Tribunal and the Court and that too subject to conditions. There is no express provision in the Act or the Rules that confers a power of review on the 1[st] respondent. In that view of the matter, it was not open to the 1[st] respondent to re-open issues that had already been concluded in favour of the petitioners in Ext.P1 order. ## **Re: Issue 2** : The respondents would contend that the decision of the Supreme Court in Ext.P5 judgment was declaratory of the status of the land in question as a Private Forest and hence, the petitioners' could not claim that their lands, which admittedly formed part of the larger extent of land that was the subject matter of the case before the Supreme Court, did not vest in the Government. In my view, the said argument stems from an erroneous understanding of the scope of the appeal that was decided in Ext.P5 judgment. A reading of Ext.P5 judgment of the Supreme Court would reveal that the Court was considering appeals preferred by the State Government and the Pullengode Rubber and Produce Company Limited, against a judgment of the High Court that found the claim of the Company, for exemption in respect of of an extent of 594.78 Acres of Private Forest, **W.P.(C).No.12072/2010** **20** to be legally unsustainable because the Company had not succeeded in establishing that the entire extent of land was used by it for the stated purpose of a use ancillary to the cultivation of rubber or for the preparation of the same for the market. The exemption was thus limited to an extent of 28.40 Acres. The issue to be considered here is whether the findings in Ext.P5 judgment would, in any way, affect the rights of the petitioners' under Ext.P1 order. In this connection, it is relevant to note that, during the pendency of the case before the Supreme Court, the petitioners' had, in fact, approached the Supreme Court with an impleadment application, so as to implead themselves in the matter being considered by the Supreme Court, with a view to protect their interests in the land. The said impleadment petition was dismissed by the Supreme Court by Ext.P4 order wherein it is clearly stated that the petitions were being dismissed on finding that they had no relation to the issues in the appeals. It was also made clear that the petitioners' herein were at liberty to adopt such proceedings in law as were available to them against both the State and the Company. That apart, other than the commonality with respect to the land in question (the claim of the petitioners being in respect of 65 Acres forming part of the larger extent of the land that was demised **W.P.(C).No.12072/2010** **21** to the Company which had approached the Supreme Court), the issue considered by the Supreme Court was the validity of a claim for exemption preferred by the lessee of the land. In Ext.P1 order, what is considered is the claim for exemption preferred by the petitioners' as owners of the lands. The claim for exemption, in terms of the Act and the Rules, is an issue that has to be examined by the authorities under the Act vis-a-vis the particular claimant. The right in question is one that is specific to the claimant, subject to his complying with the pre-conditions for the grant of the right in his favour. In this view of the matter, therefore, a declaration made by a court is essentially one pertaining to the right to exemption of the particular claimant. The denial of the claim for exemption by one claimant does not preclude the authorities from accepting the claim of another claimant, in respect of the same land, if the latter independently establishes his right for exemption in terms of the Act and Rules. Under Section 3 of the Act, it is the actual holding of the land under personal cultivation or the holding of the land under a valid title with an intention to personally cultivate, that entitles a person to claim a declaration that the land has not vested in the Government. In the instant case, Ext.P5 judgment that declares the rights of the Company, cannot operate to **W.P.(C).No.12072/2010** **22** defeat the rights that have already accrued to the petitioners' and the declarations made in their favour. The reliance placed by the respondents on the provisions of Article 141 of the Constitution of India and the principles of constructive res judicata are, on the facts of the instant case, misplaced. The lands covered by Ext.P1 order are to be treated as lands that have not vested with the Government and the petitioners' rights over the said land have to be recognised by directing the 1[st] respondent to put the petitioners' in possession of the said lands. ## **Re: Issue 3** : Lastly, I must deal with the challenge against Ext.P17 notification that is issued by the respondents, invoking the provisions of the Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. As already noted, the said notification is dated 29.6.2009 and was issued immediately after Ext.P15 judgment of the Division bench of this Court. The notification is also relied upon in Ext.P16 order of the 1[st] respondent, to reject the applications of the petitioners for return of their lands. The notification is one that purports to be issued in terms of Section 3 of the 2003 Act. For the provisions of Section 3 to be **W.P.(C).No.12072/2010** **23** attracted, it is necessary to first establish that the land in question, and covered by the notification, is an “Ecologically Fragile Land” as defined in Section 2(b) of the 2003 Act. The definition reads as under: ## **2. Definition** :-............ ## (b) “ecologically fragile lands” means,- (i) any Forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest of a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation; and (ii) any land declared to be an ecologically fragile land by the Government by notification in the official Gazette under S.4; Interpreting the said provision, a Division Bench of this Court in **State of Kerala v. Kumari Varma [2011 (1) KLT 1008]** , held that, in the absence of a finding that the lands in question were either “reserved forests” under the Kerala Forest Act or “protected forests” under the said Act, such lands, if excluded from the purview of “private forests” under the Act, could not be treated as Ecologically Fragile Lands merely because they were lying contiguous to or encircled by a reserve forest or a vested forest. Although the State Government has preferred an appeal, before the Supreme Court, against the said judgment, the judgment continues to operate as a binding precedent **W.P.(C).No.12072/2010** **24** when I am called upon to decide a similar issue. It must be noted at this juncture that another Division Bench of this Court had in **State of Kerala v. Unnikrishnan [2013 (2) KLT 420]** chosen not to apply the ratio in **Kumari Varma's case (supra)** to the facts before it. That case however turned on the peculiar facts that were available in that case namely that the person whose lands had been exempted from the vesting provisions under the Act, obtained possession of the lands from the Government soon after but then did not do any cultivation thereon. In such circumstances, when a notification under the 2003 Act was issued in respect of the lands owned by the respondent in that case, this Court found that the ratio of **Kumari Varma's case (supra)** would not apply and the inaction of the owner in cultivating the land effectively prevented him from contesting the validity of the notification. On the facts of the instant case, the declaration in favour of the petitioners under the 1971 Act effectively serves to insulate their lands from the vesting provisions under the 2003 Act. This is more so because the petitioners had never obtained possession of their lands from the Government despite Ext.P1 order. Further their relentless pursuit of the matter with the Government all these years indicates an intention to use the land for the purposes **W.P.(C).No.12072/2010** **25** mentioned in their application for exemption under the 1971 Act. In this view of the matter, therefore, Ext.P17 notification cannot operate to thwart the rights of the petitioners over the lands in question. Resultantly, I quash Ext.P17 notification as illegal and direct the 1[st] respondent to put the petitioners' in possession of the lands covered by Ext.P1 order, after demarcating the same, within a period of three months from the date of receipt of a copy of this judgment. Before parting with this case, I must observe that the conduct of the 1[st] respondent, while passing Exts.P13 and P16 orders, is far removed from the concept of fairness in administrative action, that must inform governmental authorities in a modern society. Despite the clear and unambiguous directions of this Court in Exts.P8, P14 and P15 judgments, the 1[st] respondent chose to pass a similar order for the second time, in a litigation that commenced more than 35 years ago. This virtually forced the petitioners' in this case, some of whom are stated to be fairly advanced in age, to spend long years pursuing a relief that was virtually granted to them in 1976. It ill behoves a statutory authority to function in such a callous manner and it is hoped that governmental authorities, entrusted with the task of **W.P.(C).No.12072/2010** **26** administration, will discharge their duties in a manner expected of a repository of governmental power and keeping in mind the dignity of those governed. The writ petition is allowed. No costs. **A.K.JAYASANKARAN NAMBIAR JUDGE** prp