JUDGMENT :

S. RAVINDRA BHAT, J.

1. This appeal by special leave challenges a judgment of the Kerala High Court¹[In MFA 108/2006 decided on 05.12.2008], which allowed an appeal preferred by the respondent (hereafter called “Popular Estates”) and held that an area of slightly over 402 acres (i.e., 100 hectares and 155.90 acres) vested in the State of Kerala (hereafter “the state”), and the rest of the land (of a total 1534.40 acres) had to be treated as plantation, and thus, belonged to the said respondent.

2. Popular Estates became owners of 1534.40 acres of land. Those lands were acquired by sale, by M/s Popular Automobiles, a registered firm, through four registered deeds executed in 1963. These lands fell to Popular Estate’s share upon partition of the firm’s assets. The Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereafter “the Vesting Act”) came into force with effect from 10.5.1971. Under Section 3 of the Vesting Act, all private forests vested in the State Government. The Act was challenged before the Kerala High Court, which struck it down, by a judgment, in 1972. That judgment was reversed by this Court’s ruling in 1973²[State of Kerala v Gwalior Rayon Silk Manufacturing and Weaving Co.1974 (1) SCR 671].

3. The forest authorities attempted to take possession of large areas of land occupied by Popular Estates, arguing that they were private forests and had vested in the state, under the Act. Popular Estates moved two Original Applications³[O.P Nos. Nos. 242 & 243/1974] before the Forest Tribunal (“tribunal” hereafter) under Section 8 of the Act claiming a declaration that no part of the estate consisting 1534.40 acres was liable to vest in the state. Since it was being cultivated and hence, it was exempt under the provisions of the Vesting Act. The state opposed those applications. The tribunal appointed a commissioner to inspect the entire area and report about its state to it. The commissioner after a preliminary inspection was of the view that a detailed survey of the land was necessary as most of the land was situated on hills, and therefore, inaccessible. Private surveyors, appointed to survey the land were unable to complete the work. The tribunal directed Forest Department Survey Officers to survey the lands. The tribunal, thereafter dismissed the Original Applications⁴[By order dated 15.02.1978]. It made critical comments about the manner in which the surveyors had made the report and recorded that:

“This exclusion by the forest officials, may be due to the fact that the magic money lulled them to sleep over the rights of the Government or may be due to the fact that the claim originally put forward by the forest officials was false. Neither way it is not very complimentary to the respondents here or to those officials concerned. It is for the Government to make necessary immediate enquiry in this matter through some official, other than Forest Department official, if the Government so think and ascertain whether any area which legitimately come under the classification of private forest and which had vested in the Government besides bits 1 to 7 have been excluded by the forest officials or by the forest survey officials. On the basis of the Commissioner's report and the facts mentioned by him, I am inclined to think that prima facie it appears that areas which should really be vested forest have been excluded, when the claim was confined to 100 hectares.”

After orders of the tribunal, forest authorities attempted to take possession of the land. In the meanwhile, the state also issued notification no. 4713/1977 notifying 100 hectares of the respondent estate as private forest, based on survey undertaken by the forest department. Popular Estates filed two appeals⁵[MFA 230 & 231/1978] impugning the tribunal’s orders, before the High Court. These were dismissed; the special leave petition against those orders too, were dismissed. Popular Estates then filed civil suits⁶[Suit Nos. 69 & 71/1987 before the ci