Judgment

RANGANATH MISRA, J.:- Special leave granted. We have heard learned counsel for the parties.

2. In disposing of the appeal against a decision of the Forest Tribunal under the provisions of the Kerala Private Forests (Vesting & Assignment) Act, 1971, a Division Bench of the Kerala High Court in MFA No. 401/ 78 disposed of on 14th of July, 1980, directed :

"It follows that out of 102 acres 25 acres over which teak was planted in 1967 and eucalyptus was planted in 1955 will be private forest coming within the Private Forests (Vesting & Assignment) Act, But since this area is under the personal cultivation of the respondent she will be entitled to 15 acres under S. 3(2) of the Act. The rest 10 acres will vest with the Government.

In the result the appeal is partly allowed and the order of the lower court is modified as follows:-

It is declared that 75 acres over which the respondent had planted teakwood, orange and soft wood prior to 14th December, 1949 is held to be not a private forest under the Madras Preservation of Private Forests Act, 1949 and Kerala Private Forests (Vesting & Assignment) Act, 26 of 1971. But of the rest 2 acres over which the respondent had planted cashew is declared to be not a private forest under S. 2(f) (1)(i)(A) and (C) of the Act. Another 15 acres under the personal cultivation of the respondent is also held not to vest under the above Act under S. 3(2) of the Act. The Custodian shall demarcate this 15 acres in such a manner that it will be convenient for the enjoyment of the respondent. The balance 10 acres will vest with the Government. With the demarcation and identification of that 10 acres the case is sent back to the Forest Tribunal. If the Custodian has taken possession of the area declared not to vest, he will surrender the same to the respondent forthwith ......."

3. In terms of this judgment 92 acres (being the total of 75 acres + 15 acres + 2 acres) were to be given back to the appellants. In the process of implementation of-this direction certain lands were returned to the appellants by the Forest officials. These lands constituted thick forests and had valuable trees thereon. This fact was realised by the higher officers of the Department and timber transit permits were not issued to the appellants when applied for. Thereupon the appellants filed a writ petition before the High Court for a direction to the State Government and its officers to issue the requisite transit permits to enable the appellants to transport the rose wood trees and other timber. The claim was contested. The High Court came to the conclusion:-

"It is made clear that the petitioners are not entitled to any relief with regard to rosewood and other trees cut from the lands which do not form, part of the lands ordered to be restored to the petitioner in O.P. No. 4832 of 1983 and are vested in the Government. With respect to the trees cut from the properties ordered to be restored to the petitioner, respondents 1 to 3 are directed to consider the applications filed by the petitioner for issue of transit permits and pass appropriate orders according to law. Before determining this question also the respondents may give an opportunity to both the petitioners to put forward their contentions and a final decision may be taken after considering their objections."

This order of the, High Court is the subject matter of the present appeal.

4. In an affidavit filed in this appeal by the Conservator and Custodian of Vested Forests it has been accepted that in terms of the judgment of the High Court in. MFA No. 401/ 78, 92 acres were found not to vest in the State under. the Act. In the judgment the survey numbers with the respective extents had been furnished. It is stated that 12 acres had not been taken possession of and, therefore,, surrender had to be made of 80 acres only. A further affidavit has been filed by the said Custodian where it has been said :-

"Hence only 80 acres are to be restored and out of this 56.31 acres have