IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1784 of 2010()
1. BOMBAY BURMAH TRADING CORPORATION LTD.
... Petitioner
Vs
1. UNION OF INDIA,REPRESENTED BY ITS
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
3. THE PRINCIPAL CHIEF CONSERVATOR OF
4. THE CUSTODIAN, VESTED FORESTS,
For Petitioner :SRI.D.KRISHNA PRASAD
For Respondent :SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :17/01/2011
O R D E R
J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.
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W.A. No.1784 of 2010
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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
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“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
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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