Jagannadha Raju, J.
1. This Original Petition is filed by Mrs. Aliakutty Paul, widow of late P. D. Paul, who was a successful bidder for an abandoned estate which was offered for lease. Before a lease deed was executed, possession was given to Mr. P. D. Paul on his undertaking to execute a lease deed. Subsequently, without executing any lease deed and as some difference arose between the respondents and the auction purchaser, P. D. Paul postponed the execution of the lease deed. He ultimately died on 17-9-1991 leaving behind his widow, the present petitioner, as the executor of his will. As no lease deed was executed various proceedings were taken and a lot of litigations ensued. All that is mentioned in detail in the Original Petition. Ultimately Ext. P16 show cause notice was issued by the second respondent on 12-10-1994 and the petitioner received it on 17-10-1994. Contending that though Ext. P16 is styled as a show cause notice, from the statements contained in it, it is clear that the second respondent made up his mind to take over possession of the rosary estate from the petitioner in exercise of the powers vested in him under Section 66 of the Kerala Forest Act, the present writ petition is filed for quashing Ext. P16.
2. The Writ Petition is resisted on different grounds by the respondents. It is the contention of the respondents that here is a case where without executing a lease deed, unauthorisedly late P.D. Paul, and subsequent to him the present petitioner, is continuing in possession of the Government Forest property by virtue of raising various excuses for not executing a registered lease deed and by filing different Original Petitions and suits and by obtaining interim orders in those litigations. It is contended that the Original Petition is not maintainable as it is filed for quashing a show cause notice. It is also contended that the petitioner has no legal right to be in possession of the property as no lease deed was executed. It is also contended that in this particular case the provisions of Section 22 of the Forest Act are not satisfied and that Section contemplates that a right can be acquired in or over reserved forest only under a grant or contract in writing, made by or on behalf of the Government. In this particular case, what was agreed to be given is a lease for 40 years, and not for 99 years, as originally thought of. A draft lease deed was sent to the petitioner's husband, but he never accepted it and he never accepted the conditions in it. Here is a case where there was no consensus ad idem regarding contract of lease. There is no contract as such and hence the alleged contract between the parties is void. There is also the impossibility of performance because after the auction was held it was found that 139.29 acres of the property that was put to auction was in the possession of strangers and it was not available for lease. Thus there is a frustration of the contract. On that ground also the contract is void. Everyone of the litigations launched by the petitioner ended against the petitioner, but still the petitioner is illegally and unauthorisedly continuing in possession. Hence action was sought to be taken under Ext. P16. Section 66 gives power to prevent commission of offences. Under this Section the Forest Officer has the power to evict all encroachers and squatters from reserved forest or other lands under the control of the Forest Department. For exercising the powers under this Section, they have all the powers of the police officers for the purpose of investigation or prevention of forest offences. Hence Ext. P16 is perfectly valid. The Writ Petition is devoid of merits.
3. Before dealing with the arguments, it would be pertinent to mention a few salient facts and dates so that the controversy can be better appreciated. Under Ext.Pl notification dated 5-1-1953 published in the gazette on 13-1-1953 the lease right of forest lands was put up for auction on 9-2-1953. We are mainly concerned with second item in the Schedule 'Pullala West and East Nelliampathy hills' 239.99 acres consisting of 139.29 acres plus 100.70 acres. It was described as abandoned estate and it is subject to survey. Ext.Pl mentions various conditions certain amounts had to be paid before land is taken possession of and a lease deed had to be executed within a month of intimation of confirmation of bid. Failure to fulfil the conditions mentioned in Clause (2) may entail forfeiture of the amount already paid to Government and a resale of the auction right. In paragraph 4 the period of lease is indicated as 99 years. It is not necessary to deal with the other conditions at this stage. After auction it was found that 139.29 acres was not available for being leased to the auction-purchaser. It is an admitted fact that P.D. Paul never executed a lease deed. On 15-11-1962 a draft lease deed with changed terms and conditions was sent to him. He did not execute the lease deed. He objected to certain conditions. On 17-9-1991 P. D. Paul died. The petitioner filed O.P. No. 2071 of 1987 to compel the Government to execute a lease deed for 99 years. That O. P. ended in dismissal, on 5-6-1987. That judgment clearly held that there was no legal right for the petitioner to compel the Government to grant a lease much less on terms dictated by the petitioner. It also held that in any case proceedings under Article 226 are not proper remedy for enforcing any such claim. Against that judgment W.A. No. 295 of 1988 was filed and it was later withdrawn by the petitioner, on 6-4-1988. Then the petitioner filed O.S. No. 136 of 1988 on the file of the Sub Court, Palakkad for specific performance of the contract, and that suit ended in dismissal and then A. S. No. 74 of 1993 was filed by the petitioner before the District Court, and the same is pending before the District Court. When the petitioner was threatened with forcible eviction she filed O.S. No. 23 of 1993 and in that suit in I.A. No. 185 of 1993 filed for temporary injunction, it is claimed that the Government Pleader gave an undertaking to the effect that the status quo will be maintained till the disposal of the suit.
4. Ext. P2 notice dated 11-5-1993 was issued to the petitioner indicating that the lease proposed has not materialised and that she is causing loss and damage to the Government by illicit cutting of the trees, and that she violated the conditions of permissive possession by planting rubber when she undertook only to cultivate coffee, cardamom and tea. To Ext.P2 notice, Ext.P3 reply was given. In that reply notice, the petitioner asserted that even if she is said to be a lessee for a period of 40 years, she is entitled to be in possession till 2-2-1995 and that she has already filed O.S. No. 23 of 1993 on the file of the Sub Court, Palakkad and in I.A. No. 185 of 1993 the Court ordered status quo should be maintained till the I. A. is disposed of. Then the Divisional Forest Officer gave Ext. P4 reply dated 17-6-1993 reiterating Ext.P2 notice and indicating that the department is not aware of any order of the court to maintain status quo.
5. On 5-10-1993 the forest officials vitiated the petitioner's rosary estate and directed the manager and staff to vacate the premises and they also locked the office, store rooms and godowns. Then Exts. P2 and P4 notices were challenged by the petitioner in O.P. No. 13855 of 1993. On 8-12-1993 O. P. No. 13855 of 1993 was allowed and Exts. P2 and P4 were quashed. The State filed W.A. No. 1670 of 1993 against Ext. P5 judgment in O.P. No. 13855 of 1993 and the Writ Appeal was dismissed under Ext.P6 judgment dated 13-1-1994. The State carried the matter to the Supreme Court by way of S.L.P. No. 3599 of 1994. On 11-3-1994, the Supreme Court gave interim stay of operation of Ext. P5 judgment. Ultimately the S.L.P. was dismissed on 5-9-1994 under Ext.P12. Before the SLP was dismissed there were some other proceedings in the courts. The petitioner filed contempt of Court case, C.C.C. No. 271 of 1994 and as per the orders of the Court possession of the estate was restored, but possession of the godowns and store rooms with the crop therein was not ordered to be delivered to the petitioner. Another Contempt of Court case, C.C.C. No. 273 of 1994 was closed by the Court with an observation that the petitioner is at liberty to pursue her application filed before the Subordinate Judge's Court in O.S. No. 23 of 1993. While such was the state of affairs, the second respondent issued the impugned Ext. P16 dated 12-10-1994 as a show cause notice indicating as to why the lease negotiations should not be terminated and why the petitioner should not be evicted from the area. The notice also indicated that if the petitioner is interested in a personal ' hearing, she may come and submit the matter in the office on 26-10-1994. In case there is no explanation to offer, the petitioner would be a summarily evicted as per the provisions of Section 66 of the Kerala Forest Act. Then the petitioner gave Ext.P17 reply on 18-10-1994 and without waiting for a final order to-be passed the present O.P. was filed on 21-10-1994. The Writ Petition was admitted on 24-10-1994 and interim stay was granted.
6. O. P. Nos. 7518 of 1994 which was filed when the respondents tried to auction the property (produce) which was locked and sealed on 5-10-1993 is being dealt with separately.
7. Shri N. Nandakumara Menon appearing for the petitioner contends that (1) the petitioner is in lawful possession as a lessee and she cannot be evicted by invoking Section 66 of the Forest Act. The petitioner cannot be described as a trespasser or encroacher or squatter, as the possession of the land was delivered to P.D. Paul, and though a lease deed was not executed, P.D. Paul continued to be in possession as a lessee. The petitioner succeeded to his rights. At the worst she can only be treated as a lessee in possession under moral lease. The conduct of the parties also shows that it is a case of lesser and lessee relationship. (2) The Government cannot unilaterally alter the terms of the lease. Ext.P1 mentions lease of 99 years. It is not open to the Government to claim that the lease period will be only 40 years. The property is not a virgin forest land as contended by the respondent. It is an abandoned estate, as indicated in Ext.P1. (3) In the earlier litigations, the character of the possession of the petitioner is admitted as a lessee. The Government has been receiving the lease amounts paid by the petitioner. It cannot now turn round and claim that the petitioner is an encroacher, trespasser or squatter. Ext.P16 is arbitrary, and it is vitiated by inferential and factual mala fides. It is issued by the Divisional Forest Officer who is highly prejudiced against the petitioner, because he had to face contempt proceedings. Ext.P16 amounts to an abuse and misuse of the statutory power conferred on the second respondent. It is liable to be quashed. If the respondents wish to evict the petitioner, they can only do so by filing a regular suit for eviction. They cannot invoke Section 66 of the Forest Act.
8. The learned Advocate General, Sri. S. Narayanan Poti, appearing for the respondents contends that this is not the same property that was put to auction under Ext.P1. When 139.29 acres which was put up for auction was not available for being leased out, the lessee asked for his being given land in substitution of it. Then virgin forest land was given subject to certain specific conditions. One of the terms is that he should execute a lease deed and that the lease is for a period of 40 years. Under Section 22 of the Forest Act, 1961, and the corresponding provision in the previous Forest Act, namely, Travancore-Cochin Forest Act, 1951 rights in the forest land can be acquired in or over a reserved forest land only by grantor contract in writing made by or on behalf of the Government. There is no question of anybody being an oral lessee for forest land. There cannot be any permissive possession. Section 22 of the Forest Act is a total bar for the claims set up by the petitioner.
9. Relying on the provisions of the Contract Act, the learned Advocate General submits that (a) in this case there is no consensus ad idem between the parties regarding the terms of the lease. Hence under Section 20, the contract is void. There is no concluded contract at all; (b) under Section 56, an agreement to do an act impossible in itself is void. In this particular case after the auction, it was found that 139.29 acres was not available for being leased out. Hence the contract is frustrated and it is void; (c) Under section 65 of the Contract Act, when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it. In the present case, though it was found that the contract is void, the parties did not act as per Section 65, but P. D. Paul asked for his being given land in substitution and then the Government offered to give a different land which is virgin forest land, subject to certain conditions. Nor there is a novation. One of the conditions is that the lease will be for 40 years. P.O. Paul did not accept it and he did not execute the lease deed. Hence P.D. Paul, and his successor, the present petitioner, cannot claim any rights under any valid agreement, or contract; (d) On 15-11-1962 itself P. D. Paul was given a draft lease deed. He did not accept it and execute the lease deed. On 17-11-1964 notice was given to P. D. Paul to vacate the land and after ceasing of the so-called permissive possession, he became an encroacher or squatter, and the petitioner is also in the same position; (e) There is no question of petitioner having any right in the later property with terms of the first contract relying upon Ext.P1. (f) the record of this case reveals that though the petitioner and her husband were liable to be evicted as early as 1962, unfortunately the Government officials did not eject or evict them. Article 299 of the Constitution of India is a protection for the Government against the wrongs committed by its officers. In spite of the wrong acts of the Officers of the Government, the State is certainly entitled to get back the property by invoking the law.
10. The learned Advocate General pointed out that in this case from the beginning to end, the petitioner and her husband conducted themselves in a high-handed manner and still they appeared to have received collusive support from some of the officials. Even in the earlier litigations no proper stand was taken on the basis of the correct legal position. By filing different O.Ps. and by filing different suits, without disclosing the true facts and by obtaining interim orders, the petitioner has been hanging on to the property uauthorisedly, and without any legal right. Section 66 certainly applies to the facts of this case, and Ext. PI6 notice cannot be quashed. He also submits that the Writ Petition is not maintainable, because civil litigation is now pending as A.S. No. 74 of 1993 on the file of the District Court, Palakkad and O.S. No. 23 of 1993 is also pending on the file of the Sub Court, Palakkad. Apart from all these things, as Ext. P16 is only a show cause notice, unless a final order is passed, a writ petition to quash Ext.P16 does not lie on that ground alone, the O.P. is liable to be dismissed.
11-12. On the basis of the above contentions, and the facts narrated in the earlier paragraphs we shall now decide the various points in controversy.
(1) Identity of the property which is supposed to be the subject matter of the lease and the present litigation.-- It is true that originally properties were put up for auction as per Ext. P1. Pullala(West and East Nelliampathy Hills) 139.29 + 100.70 acres was put up for auction with the reserve premium price of Rs. 30/- per acre and it was described as an abandoned estate. It is true in the auction notice, the period of lease is for a period of 99 years. But immediately after P. D. Paul became the successful bidder it was discovered that 139.29 acres was in the occupation of strangers and it was not available for lease. Then it is an admitted case that P.D. Paul, successful bidder, asked for giving him some land in substitution. Ext. P26 passed by his Highness the Rajpramukh on 4-12-1954 clearly mentions that sanction is accoided for the premium for the new area granted being fixed at Rs. 42/- per acre, as recommended by the Chief Conservator of Forests. The petitioner will be given such extent of land as will cover the amount already paid as premium, at the rate now fixed. The Government proceedings stand modified to this extent. Paragraph 2 of Ext. P26 clearly shows that the period of lease of the area now granted will be 40 years. It is crystal clear that as early as in 1954, P.D. Paul was specifically informed that the land will be given only for 40 years and it is for a different land. Ext.P27 a draft lease deed sent to P.D. Paul on 16-11-1962 clearly indicates that the lease is of all those parcels of land measuring 247.07 acres of virgin forest now known as 'rosary estate' in Nelliampathies lying close to and adjoining the Thuthanpara estate between Thuthanpara and Alexandria estates and described in the schedule to the deed for 40 years. Various other conditions are indicated in this draft lease deed. Ext. P.28 dated 18-7-1964 clearly mentions that P.D. Paul pending execution of the lease deed was permitted to raise coffee, cardamom, tea and rubber vide condition No. 6 of the lease deed. Objection was raised for raising tapicca. It is quite clear from these documents that what was leased out is not the property originally auctioned under Ext. P1, but virgin forest land in substitution of it. This Ext.P26 is quoted in the counter. So the land whose possession was delivered to P. D. Paul is the land that was permitted to be leased out from within the virgin forest land under Ext, P26 order, P. D. Paul undertook to execute a lease deed on 24-1 -1956- When he failed to execute it, a notice was given to him on 17-11-1964 to show cause why he should not be evicted from the area. Though he gave a reply with some lame excuses still he did not execute the lease agreement. After P. D. Paul expired, the Government issued fresh order Ext.P18 dated 24-8-1977. Ext.P18 clearly mentions that in 1954 sanction was accorded to give the bidder the same extent and the forest land found short as per the auction of the bidder P, D. Paul died without executing the lease deed. On the ground of will and probate, the same area is now sanctioned to be granted to the present petitioner on specific terms and conditions. The lease will be deemed to have commenced on 22-2-1955, the date on which the possession was given. The period will be 40 years from 2-2-1955. Paragraph 4 clearly mentions that the lessee will execute a lease deed incorporating the term and conditions and any other conditions to safeguard the interests of the Forest Department. There is absolutely no justification for the petitioner contending that the lease is for 99 years and that it is a lease of an abandoned estate. By reason of Exts. P18, P26 and P27, it is crystal clear that virgin forest land was leased in substitution of the property which was originally put up for auction. From the beginning it is the claim of the Government that the lease is for 40 years, and subject to that condition only possession was handed over to P. D. Paul.
13. As the land is a forest land, the petitioner can get rights to the forest land only in accordance with Section 22 of the Forest Act. Section 22 reads as follows :
'No right acquired over reserved forests except as herein provided.-- No right of any description shall be acquired in or over a reserved forest except under a grant or contract in writing made by or on behalf of the Government. ...'
Unless the lessee executes a written lease deed, there is no question of lessee acquiring any rights, even if he is put in possession of the property. In this particular case, when P. D. Paul did not execute the lease deed, as early as on 17-11-1964 a show cause notice was issued to evict him. Unfortunately, either due to collusion or for other extraneous reasons, the authorities did not take action to evict him. As rightly pointed out by the learned Advocate General, there appears to have been too many laches on the part of the Government officials of the Forest Department and there appears to be laches on the part of the Government Pleaders who dealt with the matter in the previous litigations. Section 22 of the Forest Act is a complete embargo for the petitioner's claim that she is in possession as a lessee and she has a right to continue in possession of the property.
14. Judging the matter in terms of the Contract Act, we find that in this particular case there was no consensus ad idem between the parties when new land was offered for lease on certain specific terms. Hence the contract has become void. There is also the difficulty of the original contract becoming impossible of performance because the property auctioned under Ext.P 1 a major portion of which was not available to be leased out. Section 56 of the Contract Act comes into application as the original contract is impossible of performance. It was therefore void and a new contract was sought to be given by virtue of Ext.P26 and later by virtue of Ext. P18. In this particular case the parties did not act as per Section 65 of the Contract Act. The parties wanted to introduce contract for some other land. Thus there is a novation, and under the new contract, the lease period is for 40 years, and the land to be leased is the virgin forest land.
15. In this context, it would be pertinent to refer to some passages in leading Text Books. In Chapter 2 of part III of Fry, on Specific Performance clearly lays down in paragraphs 277 and 278 as follows :
'277. No proceedings in specific performance can, of course, be had unless a contract has actually been concluded, i.e., unless two persons have agreed on the same terms, and mutually signified to one another their assent to them. If what passed between them was but treaty or negotiation, or an expectation of contract, or an arrangement between them of an honourary nature, no specific performance can be had.
278. The burden of proving this concluded contract is, of course, on the plaintiff and where the law requires some peculiar mode of evidencing the contract, as e.g., a writing, or a signature, or a seal, the question of the existence of a contract in fact and of the existence of the required evidence should ever be kept distinct in thought. There may be a contract in fact, though the required evidence of it may be wanting, or there may be a writing, or signature, or seal, and yet no contract in fact. Parol evidence is admissible to show that, although there is what purports to be a signed agreement, the parties in truth never came to an agreement at all. The admission of evidence to show that does not contravene the rule of law that evidence is not admissible to vary the terms of an agreement in writing.'
It should be remembered that in this case, there was no agreement between the parties. The parties were at logger heads regarding the terms of the lease and no lease deed was executed. In such circumstances, there cannot even be a civil suit for specific performance. There is nothing strange in O.S. No.136 of 1988 ending in dismissal when it was specifically a suit for specific performance of a contract.
16. The learned Author Pullock and Mulla on the Indian Contract Act at page 100 of the I0th Edn. observed as follows :
'In English law to make a contract, there must be an offer and unreserved acceptance of the offer. If the offer is rejected there may be a counter offer but that kills the original offer. The offer cannot revert to the original offer and purport to accept it. Similarly, if the offer is accepted but another term, e.g. of price is introduced, the original offer is destroyed and cannot be accepted unless renewed.'
In the present case on hand, P.D. Paul and the present petitioner were making counter offers. They were not willing to accept the termsand conditions offered by the State. Thus by making counter offers and by not accepting the offer, the original offer is killed.
17. From these passages in text books, it can safely be said that in this particular case as the parties did not agree upon the terms and as the parties went on evading execution of the lease deed and as the petitioner made a counter offer, the original offer is destroyed or killed. She cannot now legally rely upon it.
18. The theory of petitioner being in possession as lessee and her claim regarding a person in possession as tenant holding over or person in possession under an oral lease : Sri Nandakumara Menon petitioner's counsel relies upon the provisions of the Transfer of Property Act, and contends that an oral agreement accompanied by delivery of possession constitutes an oral lease and even if a document is executed, the person who is put in possession of the property can claim to be a person having an oral lease or a person in permissive possession or as a tenant holding over. He relies upon Mulla's Commentaries under Sections 106 and 107 of the Transfer of Property Act. The particular passage at page 675 on which he places reliance reads as follows :
'An oral agreement of lease, accompanied by delivery of possession, if for more than one year is valid, by delivery of possession, for the first year, and thereafter the lessee continuing in possession with the asset of the lessor becomes a tenant by holding over under Section 106 of this Act. Such a lease being created by operation of law is binding even though the provisions of Sec. 107 have not been complied with.'
First of all this general principle under the Transfer of Property Act is not applicable when there is a statutory provision under the Special Enactment for acquiring rights for forest land. This general principle cannot apply in view of the language of Section 22 of the Forest Act. As earlier remarked, a right of any description can be acquired over reserved forests only under a grant or contract in writing made by or on behalf of the Government. It cannot be acquired by any other method. It is a complete bar for various other pleas and specially based upon Sections 106 and 107 of the T. P. Act. There is a further embargo in this particular case. Under Article 299 of the Constitution of India all contracts made in exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise. As the contract of lease is one which has to be executed by the State, it has necessarily to be executed by or on behalf of the Governor. It may be pointed out in this context that this is the specific reason why Ext. P26 sanction order passed by the T. C. Government on 4-12-1952 was executed on behalf of his Highness Rajpramukh and it was in the name of the Government of T-C. In the present case no such contract was ever executed. Only a draft lease deed was given. The draft lease deed given to P. D. Paul under Ext. P27 also indicates that it is sought to be executed between the Governor of the State of Kerala on the one part, and Sri P. D. Paul on the other part. Without a written lease deed executed in terms of Article 299 of the Constitution of India, and in view of Section 22 of the Forest Act, the theory of an oral lease or permissive possession has no legal basis. It cannot stand judicial scrutiny.
19. The theory that the Government can evict the petitioner only by filing a civil suit for eviction. Sri Nandakumara Menon relying upon the decision of the Supreme Court in Government of A. P. v. Thummala Krishna Rao, (1982) 2 SCC 234 : AIR 1982 SC 1081 contends that the Government cannot summarily evict the petitioner by issuing Ext.P16 notice and taking action under Section 66 of the Forest Act and it has to proceed under the Land Encroachment Act and file a regular suit for eviction. A reading of the decision in Thumala Krishna Rao's case clearly shows that where title to the land is bona fide disputed by the occupant such dispute must be adjudicated not by summary proceedings, but by civil suit. The principle laid down in that decision has no application to the facts of the present case. There is no necessity for the Government to file a regular suit for eviction of the petitioner. From the moment P. D. Paul refused to execute a lease deed as per the draft lease deed offered and from the moment the petitioner also refused to execute the lease deed though a draft lease deed was sent to her, they are persons in possession without valid permission. They are encroachers and squaters. Section 66 of the Kerala Forest Act empowers every Forest Officer and Police Officer to prevent and interfere with for the purpose of preventing commission of various offences and they have power to evict ail encroachers and squatters from reserved forest or other lands under the control of the forest department. The petitioner squarely comes within the ambit of Section 66 of the Forest Act and the forest department officials are certainly entitled to evict her by invoking the powers under Section 66.
20. In this context, it would be necessary to refer to some of the earlier litigations that have taken place with regard to this property. Sometime before O. P. No. 2071 of 1987 was filed in this Court, the petitioner made efforts to get the terms of the draft lease deed changed. When she was given Ext. P18 order dated 24-8-1977, her request for changing the terms of the lease was rejected. Then she filed an Original Petition and got her representations considered by the Government. Then an order was passed refusing her request. That order was challenged in O.P. No. 2071 of 1987. A reading of Ext. P29 clearly shows that from 1977 onwards she has been making efforts to get a lease deed according to her terms and the terms dictated by her. O. P. No. 2071 of 1987 was dismissed by this Court with various observations which are as follows :
'...this petition Under Article 226 is misconceived. .... The petitioner was not prepared to accept the lease on those terms and conditions (offered by the Govt.). The petitioner wants a lease with different terms and conditions, with a longer term, a larger extent, right to remove the tree growth and right to plant rubber also. In other words, the petitioner is not prepared to accept the lease as offered by Government but wants a lease on his own terms..... If the lessee was not prepared to take the lease on those terms, the matter has to end there. Even assuming that the reasons stated in Ext. P6 for not accepting the terms of the petitioner are not correct. I do not think the lessee can insist on the lease being executed on his terms. There is no legal right for the petitioner to compel Government to grant a lease, much less on terms dictated by him. In any case, proceedings under Article 226 are not the proper remedy for enforcing any such claim.'
O. P. No. 2071 of 1987 was dismissed on 5-6-1987. Against that judgment W.A. No. 295 of 1988 was filed. As can be seen from Ext. P22, the Writ Appeal was dismissed as withdrawn. The order reads as follows :
'The appellant's learned counsel seeks to withdraw O. P. No. 2071 of 1987 out of which this appeal arises. The learned High Court Government Pleader, who was directed to take notice for the respondents, has no objection. Hence permission is granted to withdraw O. P. No. 2071 of 1987 and the same is dismissed as withdrawn. Consequently, the judgment of the learned single Judge stands set aside and this writ appeal stands disposed of. We have not given liberty to the appellant to file a fresh writ petition on the same cause of action.'
21. When O. P. No. 2071 of 1987 was already dismissed by the learned single Judge, we are unable to understand how it can be withdrawn after it was disposed of on merits by the learned Judges. We are also unable to understand the observation that the judgment of the learned single Judge is set aside. If a writ appeal is dismissed, it only means that the judgment in the writ petition stands confirmed. The last sentence in the judgment is very significant: 'We have not given liberty to the appellant to file a fresh writ petition on the same cause of action'. The present OP is virtually for the same cause of action, and it is given a twist and Ext.P16 notice issued is shown as giving rise to the cause of action. Subsequent to the dismissal of W.A. No. 295 of 1988 on 6-4-1988, the present petitioner filed O.S. No. 136 of 1988 on the file of the Sub Court for a decree for specific performance of the contract. That suit ended in dismissal, as can be seen from the judgment dated 2-1-1993, now produced as Ext.P32 Against the dismissal of O.S. No. 136 of 1988, A.S. No. 74 of 1993 was filed on the file of the District Court, Palakkad, and it is still said to be pending. Subsequently when the forest authorities tried to evict the petitioner, she filed another suit O.S. No. 23 of 1993 and it is now said to be pending on the file of the Subordinate Judge's Court. During the pendency of these litigations in the civil court the petitioner has come forward with another Writ Petition O.P. No. 13855 of 1993. Writ petition was allowed by a learned single Judge of this Court on 8-12-1993 under Ext.P5 judgment. The observations in this judgment proceed on the assumption that a lease deed was executed in favour of the Government. The discussion portion of the judgment indicates that pursuant to the agreement for lease P. D. Paul was put in possession and as per the proposed lease the parties were in possession for a long time. In paragraph 8 the learned single Judge speaks of unilateral cancellation of the lease. We are unable to understand how when no lease deed was executed, there can be any unilateral cancellation of the same. The contention that the petitioner was a trespasser was rejected with the following observation:
'I do not think that neither the petitioner nor the predecessor in interest was in possession as a trespasser. If the lease deed was not executed the possession by the petitioner and her predecessor could only be characterised as lessee under an oral lease. The tenor of Ext. P10 is also to the effect that steps were taken on the ground that the lessee violated the terms of the lease.'
It is difficult for us to understand how the theory of an oral lease can be introduced in the face of Section 22 of the Forest Act and Article 299 of the Constitution of India. Obviously the provisions of Section 22 of the Forest Act and Article 299 of the Constitution of India were not brought to the notice of the learned single Judge. This judgment was confirmed in W.A. No. 1670 of 1993 by a Division Bench of this Court on 31-1-1994.
The Division Bench refused to countenance the arguments based upon Section 66 of the Forest Act on the ground that such a contention was not urged before the learned single Judge. On the ground that the learned single Judge gave liberty to the appellants to take steps in accordance with law, to evict the petitioner, the Bench was reluctant to interfere with the learned single Judge's judgment. Obviously the provisions of Section 22 and Seetion 66 of the Forest Act and Article 299 of t he Constitution of India were not brought to the notice of the learned Judges dealing with O.P. and the Writ Appeal. Anyhow, it is not for this Court at this stage to go into the correctness of the judgment in O, P. No. 13855 of 1993 and W.A. No. 1670 of 1993.
22. We may reiterate that as rightly con-tended by learned Advocate General there appeared to have been many laches on the part of the Forest Department officials as well as Government Pleaders who were in charge of these matters in the earlier litigations.
23. Sri Nandakumara Menon contended that the receipt of payments by the petitioner for all these years indicates that the respondents accepted the petitioner as a lessee and by virtue of conduct they are estopped from now claiming the petitioner as a trespasser or squatter. The learned Advocate General replies to this argument in a very simple manner. Here is a petitioner who was having the benefit of the property given to her possession. She is certainly bound to make payments as damages for use and occupation. Obviously these payments would represent a part payment of the damages for use and occupation. The Government officials are not entitled to recognise her as a tenant or as a lessee in view of the statutory provision. There is no contract between the parties in writing in conformity with Article 299 of the Constitution of India. The decision of the Supreme Court in State of Punjab v. M/s. Om Prakash Baldev Krishnan, AIR 1988 SC 2149 lays down the principle that where a tender of the contract for construction of a bridge was accepted by the Executive Engineer, but he did not sign it in the name of the Governor, it cannot be said that there is a valid contract in conformity with Article 299 of the Constitution. The present case on hand stands on a much weaker footing. There is not even a lease deed executed by any government official, leave alone it being accepted in the name of the Governor. In fact the petitioner never executed the lease deed. In paragraphs 13 and 14, the court explained the rationale and scope of Article 299 of the Constitution. The Court observed in paragraph 14 at page 2153 as follows :
'The reason is that the provisions of Section 175(3) of the Government of India'Act and the corresponding provisions of Article 299(1) of the Constitution have not been enacted for the sake of mere form but they have been enacted for safeguarding the Government against unauthorised contracts. The provisions are embodied in Section 175(3) of the Government of India Act and Article 299(1) of the Constitution on the ground of public policy on the ground of protection of general public and these formalities cannot be waived or dispensed with...'
The above decision relied heavily on the decision of the Supreme Court in Bihar E.G.F. Co-op. Socy v. Sipahi Singh, AIR 1977 SC 2149.
24. As regards the plea of estoppel raised by the petitioner, the learned Advocate General submits that all these years the petitioner was conscious of the fact that she did not execute a lease deed. She knew that she was not a lessee. She is now asking for specific performance of a contract for available land with different terms, which were originally offered for some other land, which is not now available. Learned Authors Spencer Bower and Turner in their Book Estoppel by Representation third Edn. in paragraph 131 observed as follows :
'If the representee knows, or believes, that the real facts are not as stated in the representation, he cannot be heard to say that he was induced to act to his prejudice on the faith of the representation, and proof by the representor of such knowledge or belief defeats any estoppel which might otherwise operate against him.'
Paragraph 141 which deals with the limits of the rule contains the following passage :
'Just as it is a good affirmative defence to an action on a contract that it cannot be performed without directly contravening the provisions of a statute and that, by enforcing it or otherwise judicially treating it as valid, any court would be sanctioning and condoning such contravention, so also it is a good affirmative answer to a case of estoppel by representation that any closure of the representor's mouth would result in a like judicial recognition of, and connivance at, a statutory illegality. The private rights and interests of the individual must yield in such circumstances to the higher rights and interests of the State. In accordance with these paramount consideration of public policy, it has been held that no estoppel can be allowed which will preclude the representor from asserting, and bringing to the notice of the court, the statutory illegality of such acts, proceedings, and instruments as are sought to be validated by the estoppel put forward.'
In the present case on hand there cannot be any plea of estoppel because there cannot be any estoppel against a statute. The petitioner and her husband who consistently evaded the execution of the lease deed cannot now claim that they are lessees though they have not executed a lease deed and that they are entitled to defence by way of estoppel to safeguard their possession which in its origin is illegal and against the terms of the statute.
25. The learned Advocate General further contends that neither law nor equity supports the petitioner. The petitioner and earlier her husband refused to execute the lease deed which is an essential condition for their acquiring any rights in the forest land. By various litigations and by obtaining various interim orders by misrepresentation of facts and by suppression of correct facts they managed to continue in possession and derived various benefits. It is mainly due to the laches and or collusion of officials that the petitioner and her husband derived benefits for so long. Hence there is no question of the claim of the petitioner being upheld on grounds of equity.
26. The present Writ Petition was filed on 21-10-1994 within three days of despatch of Ext.P17 explanation to Ext. P16 show cause notice. The petitioner did not even wait for a final order being passed on the basis of Ext. P16 considering the explanations submitted under Ext. P17. It can safely be said that the Writ Petition is also premature. The apprehension that the tenor of Ext. P16 clearly indicates that the authorities have made up their minds to evict the petitioner is no justification for filing the Writ Petition, even before a final order is passed.
Judged from whatever angle, there are absolutely no merits in this Writ Petition. The petitioner has no legal right to be in possession of the property which was originally delivered possession to her husband on 2-2-1955. It may also be stated that even if the terms offered by the Government in Ext. P26 are to be taken into account, the period of 40 years expired on 2-2-1995. Under any circumstance the petitioner is not entitled to continue in possession. The Writ Petition is totally devoid of merits and it is dismissed with costs. Advocate's fee fixed at Rs. 1500/-.