DIVISIONAL FOREST OFFICER Vs. T U CHERIYAN

JUDGEMENT

(1.) The short point that arises for consideration in this Civil Miscellaneous Petition is whether the High Court has the power to review or reconsider an interlocutory order passed in an original petition under Art.226 of the Constitution pending the original petition, even if the order was passed after hearing the party seeking the review. The further point is whether the insertion of the Explanation to S.141 of the Code of Civil Procedure, 1908 by the 1976 Amendment Act making the procedure provided in the Code not applicable to proceedings under Art.226 of the Constitution, will in any way affect the powers of the High Court in this regard. This petition for review has been filed by the Divisional Forest Officer, Palghat, the 2nd respondent in the O. P.

(2.) The short facts of the case, shorn of unnecessary details, are: The petitioner in the original petition, who is the counter petitioner in the petition for review, got an assignment of 92 acres of land from one Parukutty Mannadissiar. He cut the trees from Sy No. 1580 included in the lands he got. As the forest authorities did not give him transit permits for the transport of timber he approached this Court with the original petition. One of the averments in the original petition is that wild fire will destroy the timber. Along with the original petition the petitioner filed CMP No. 3307 of 1982 for direction to issue the transit permits. After hearing the Liaison Officer this Court gave a direction for the issue of transit permits. The petitioner again filed CMP No. 4602 of 1982 for directions. In the affidavit filed along with the above CMP it was averred that timber worth Rs. 40,000/- was already destroyed by fire. After hearing the Liaison Officer, a further direction was issued. As the permits were not issued, the petitioner again filed CMP No. 5213 of 1982 for directions and this Court after hearing the Additional Advocate General issued fresh directions subject to certain conditions. It is a fact that at no stage the Liaison Officer or the Additional Advocate General raised any objections against the directions issued. As the transit passes were not issued, the petitioner filed an original petition (contempt) against the forest officers. It was then that the Divisional Forest Officer filed this petition for review.

(3.) The following further facts were also brought to light by the affidavits filed by the petitioner and the respondents in the original petition and the Civil Miscellaneous Petitions. The lands that the petitioner got assignment of from Mannadissiar are lands restored to her in pursuance of the judgment of this Court in M.F. A. 401 of 1978. The lands involved in the M.F.A. were only plantations. Some dense forest with gregarious growth of rosewood trees not included in the lands covered by the M.F.A. was wrongly banded over to Mannadissiar by the forest officers without the sanction of the Custodian of Vested Forests or the competent authority. It was from this land 5 to 6 Kilometres away from the lands covered by the M F.A. that the petitioner cut 423 rosewood trees and it is for the transport of the above timber that the petitioner wants transit permits On 22-5-1982 the State Government have issued G. O. Rt. No. 1345/82/AD directing the Custodian and the Conservator of Forests to take immediate action for taking back the 31.36 acres of Forest land.