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      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

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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

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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

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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

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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.

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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

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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.  

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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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