VILLAGE OFFICER AND OTHERS versus CHUNAYAMAKKAL JOSEPH AND ANOTHER on 19 January 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 23.11.2017 passed by the High Court of Kerala atErnakulam in Writ Appeal No. 29/2011, by which the Division Bench ofthe High Court has dismissed the said appeal preferred by the appellantsherein and has not interfered with the judgment and order dated 8.7.2010passed by the learned Single Judge of the High Court in Writ Petition(C) No.11252/2008, by which the learned Single Judge directed theappellants herein to accept the basic tax from the respondents herein –original writ petitioners under the provisions of the Kerala Land Tax AB

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AAct, 1961 (hereinafter referred to as the ‘1961 Act’) with respect to thelands in question, the Village Officer, Kannur District, Kerala and othershave preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are asunder:B

That the Kerala Private Forests (Vesting and Assignment) Act,1971 (hereinafter referred to as the ‘1971 Act’) came into force in theyear 1971. Section 3 of the 1971 Act provides that notwithstandinganything contained in any other law for the time being in force, or in anycontract or other document, but subject to the provisions of sub-sectionsC(2) and (3), with effect on and from the appointed day, the ownershipand possession of all private forests in the State of Kerala shall by virtueof the 1971 Act stand transferred to and vested in the Government freefrom all encumbrances, and the right, title and interest of the owner orany other person in any private forest shall stand extinguished. Section 4of the 1971 Act provides that all vested forests are deemed ReservedDForests.

2.1 The area/land in question was notified as vested Forest on8.7.1977 under Section 4 of the 1971 Act. That the Land Tribunal,Thaliparamba (hereinafter referred to as the ‘Land Tribunal”) issuedPurchase Certificates in favour of the respondents herein in respect ofE12 acres of land in R.S. No. 292/1A in Naduvil village. That the Tahsildar,Taliparamba and the Taluk Surveyor, Taliparamba inspected the scheduleproperty and surveyed the area. It was found that part of the propertyinvolved in the patta was actually the vested forest in R.S. No. 292/1Ain Naduvil village. The survey sketch was produced before the LandFTribunal in the objections filed by the Forest department before the LandTribunal.

2.2 Thereafter, the respondents herein filed OA Nos. 13/1986and 14/1986 before the Forest Tribunal, Kozhikode (hereinafter referredto as the ‘Forest Tribunal’), constituted under the 1971 Act. A counterGaffidavit was filed on behalf of the appellants to the aforesaid OAs beforethe Forest Tribunal.

2.3 Based on the decision of the District Development Committee,a site inspection of the property was conducted on 25.9.1989. It wasreported by the Deputy Collector vide letter dated 30.09.1989 addressedto the District Collector that the survey rock mark has been destroyedH

and that a refixation of the boundary is absolutely necessary. Therespondents herein submitted a representation to the District Collector,Kannur to remedy their grievance.

2.4 The OAs filed by the respondents herein came to be dismissedby the Forest Tribunal vide order dated 12.3.1990. Thereafter as per thedecision of the District Development Committee, the Taluk Surveyor,Taliparamba conducted a survey of the area on 30.5.1991 and re-fixedthe boundary of the land in the possession of the respondents and thevested forest. Subsequently, notices were issued to the respondents on23.12.1992 to show cause as to why the earlier decision granting PurchaseCertificates should not be re-opened/cancelled. The said notices werechallenged by the respondents before the High Court by way of O.P.No. 2678/1993. The High Court disposed of the said OP No. 2678/1993vide order dated 9.9.1998 directing the authorities to complete theproceedings initiated.

2.5 Thereafter the Land Tribunal, vide order dated 16.4.2002,cancelled the order of assignment of jenmam rights and the PurchaseCertificates issued to the respondents. The said order was passed inO.A. No. 2745 of 1973 in a reopened case in the year 1992, which wasreopened in view of order dated 21.11.1990 of the Secretary, State LandBoard, Thiruvananthapuram to review the assignment of jenmam rightsordered on vested forest land in O.A. No. 2745/1973 dated 29.6.1974 ofthe Land Tribunal No. III, Taliparamba. Against the aforesaid order, therespondents filed appeals before the appellate authority, which remandedthe matter to the Tribunal.

2.6 Subsequently, the respondents filed O.S. No. 2/2005 and 3/2005 before the Munsiff’s Court, Taliparamba seeking for a permanentprohibitory injunction. The learned Munsiff’s Court decreed the suits.However, the judgments and decrees passed by the learned Munsiff’sCourt were set aside by the Subordinate Judge’s Court, Payyannur. Thesecond appeals filed against the judgment of the Subordinate Judge’sCourt came to be dismissed by the High Court holding that the civilCourt has no jurisdiction as per Section 13 of the 1971 Act in respect ofmatters which are to be decided by the Forest Tribunal constituted underthe said Act.

2.7 Instead of initiating any further proceedings under the 1971Act, the respondents filed Writ Petition No. 11252/2008 before the learnedSingle Judge of the High Court and prayed for a writ of mandamus A

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Adirecting original respondent no.1 – appellant no.1 herein to accept thebasic tax of the properties from them. Before the learned Single Judge,it was the case on behalf of the respondents that they are in possessionof the disputed properties and that their possession has been admitted bythe authorities in their affidavits filed in earlier proceedings being O.A.Nos. 13 & 14 of 1986. Therefore, it was submitted that when they are inBpossession of the properties in question, the revenue authorities are obligedand bound to accept the basic tax, leviable under the 1961 Act.

2.8 That the said writ petition was opposed by the Divisional ForestOfficer, Kannur. A written statement was filed by the Divisional ForestOfficer, Kannur wherein it was specifically stated that the respondentsCherein have no right over the forest land vested with the government.That vide judgment and order dated 8.7.2010, learned Single Judgeallowed the said writ petition and directed the Village Officer – appellantno.1 herein to accept the basic tax from the respondents herein solely onthe basis of the affidavits filed in the earlier proceedings in OA Nos. 13D& 14 of 1986.

2.9 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge allowing the writ petition and directingappellant no.1 herein – Village Officer, Kannur to accept the basic taxfrom the respondents payable under the 1961 Act, the appellants preferredEwrit appeal before the Division Bench of the High Court. By the impugnedjudgment and order, the Division Bench of the High Court has dismissedthe said appeal by observing that the learned Single Judge has simplydirected to accept the basic tax from the respondents and that the learnedSingle Judge has granted the relief by referring to the affidavits filed bythe State authorities filed in the earlier round of litigation in OA Nos. 13F& 14 of 1986 and therefore no interference of the appellate Court iscalled for.

2.10 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the Division Bench of the High Court dismissingthe appeal and not interfering with the judgment and order passed by theGlearned Single Judge, by which the learned Single Judge directed therevenue authorities to accept the basic tax from the respondents, theVillage Officer, Kannur and others have preferred the present appeal.

3. Learned counsel appearing on behalf of the appellants hasvehemently submitted that both, the Division Bench of the High CourtHas well as the learned Single Judge of the High Court have not appreciated that the disputed land in question is vested with the forest departmentand it is a private forest land for which a notification has been issued asfar back as in the year 1975 and therefore there is no question of acceptingany basic tax from the respondents herein.

3.1 It is submitted that both, the Division Bench of the High Courtas well as the learned Single Judge have materially erred in notappreciating the fact that before the appropriate authority – ForestTribunal, the respondents have lost and the matter has not been carriedfurther. The jenmam rights and Purchase Certificates in respect of therespondents have been cancelled and the same has attained finality.

3.2 It is submitted that so long as the land in question is vestedwith the forest department pursuant to the notification issued under the1971 Act and the jenmam rights and purchase certificates in favour ofthe respondents herein have been cancelled, respondent nos. 1 & 2 hereinhave no right, title or interest in the property in question and thereforethere is no question of accepting any basic tax from them.

3.3 It is further submitted that even the judgments and decreespassed by the Munsiff’s Court granting permanent injunction in favourof the respondents have been set aside by the Subordinate Judge’s Court,which has been affirmed by the High Court in a second appeal holdingthat civil Court has no jurisdiction and the dispute in respect of forestland is to be decided by the Forest Tribunal constituted under the 1971Act. It is submitted that thereafter no further proceedings are initiatedby the respondents herein under the provisions of the 1971 Act.

3.4 It is further submitted that the High Court has not properlyappreciated the mala fide intention on the part of the respondents inseeking a writ of mandamus directing the revenue authorities to acceptthe basic tax. It is submitted that the High Court ought to have appreciatedthat by asking such a writ of mandamus, respondent nos. 1 & 2 wantedto establish their right and ownership over the land which as such is vestedwith the Government/Forest Department, pursuant to the notificationissued in the year 1975, by which the land in question is declared as aforest land. It is therefore submitted that the High Court has committed agrave error in issuing a writ of mandamus directing the revenue authoritiesto accept the basic tax from respondent nos. 1 & 2 herein.

4. The present appeal is vehemently opposed by the learned counselappearing on behalf of the respondents.

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A4.1 It is submitted that the properties involved in this case are twopieces of land of 12 acres each owned and possessed by the respondents,who are the writ petitioners before the High Court.

4.2 It is submitted that the said properties originally belonged toC.K. Kerala Varma Raja in Jenm. That the respondents initially obtainedBpossession of the properties in the year 1956 on leasehold rights andthey were regularly paying tax, enjoying the properties by residing thereinand effecting improvements and cultivating rubber, pepper, coffee, etc.It is submitted that thereafter the respondents herein obtained the saidproperties assigned in their favour by certificates of purchase issued bythe Land Tribunal under the Kerala Land Reforms Act in recognition ofCtheir status as cultivating tenants of the said properties as defined underthe said Act. It is submitted that thus the respective lands in questionstood assigned to them by virtue of Ex. P1 and P2 produced before theHigh Court. It is submitted that the learned Single Judge also observedin the judgment that though the said certificates of purchase wereDcancelled subsequently, the appellate authority set aside the said orderof cancellation and remanded the matter to the Land Tribunal.

4.3 It is submitted that Section 8 of the 1971 Act deals with“Settlement of Disputes”. As per section 3(1) of the said Act, “privateforest” shall stand vest in Government. The term “private forest” isEdefined under section 2(f) of the 1971 Act and it excludes, inter alia, thelands which are used principally for the cultivation of tea, coffee, cocoa,rubber etc. and lands used for any purpose ancillary to the cultivation ofsuch crops or for the preparation of the same for the market. It issubmitted that as per section 8 if there is any dispute as to whether theland is a “private forest” or any “private forest” or any portion thereofFhas vested in the Government or not, the concerned person may apply tothe Forest Tribunal. It is submitted that in the two OAs filed by therespondents, the Divisional Forest Officer (Custodian of vested forests)filed two separate counter affidavits in which he specifically admittedthe possession of the respondents. It is therefore submitted that the HighGCourt has rightly relied upon the aforesaid two counter affidavits filedby the Divisional Forest Officer and has rightly directed the revenueauthorities - Village Officer to accept the basic tax payable under the1961 Act from the respondents.

4.4 It is submitted that once the appellants herein admitted in theircounter affidavits filed before the Forest Tribunal that there areH

certificates of purchase in favour of the respondents and that they are inpossession of 12 acres each and that the department does not have aclaim over the said properties, there is no “dispute for settlement” so asto be raised or settled under section 8 of the 1971 Act and therefore thedismissal of the two OAs by the Forest Tribunal on the ground of limitationis inconsequential.

4.5 Making the above submissions, it is prayed to dismiss thepresent appeal.

5. We have heard learned counsel for the respective parties atlength.

5.1 At the outset, it is required to be noted that the respondentsherein filed writ petition before the learned Single Judge for a writ ofmandamus directing the revenue authorities and more particularly theVillage Officer to accept the basic tax leviable under section 5 of the1961 Act with respect to the lands in question. The said writ petition wasfiled on the premise that they are the owner and in possession of thedisputed land and jenmam rights and purchase certificates were issuedin their favour and that their possession and ownership have been admittedby the Divisional Forest Officer in the two counter affidavits filed beforethe Tribunal in OA Nos. 13 & 14 of 1986. The High Court has acceptedthe same and issued a writ of mandamus directing the revenue authorities– Village Officer to accept the basic tax from the respondents herein.That the said judgment and order passed by the learned Single Judgehas been affirmed by the Division Bench of the High Court, by theimpugned judgment and order.

5.2 However, the High Court has not at all appreciated and/orconsidered the fact that as such the jenmam rights and purchasecertificates which were earlier issued in the years 1975 & 1979 in favourof the respondents have been cancelled by the appropriate authority.The High Court has also not appreciated the fact that as such a notificationhas been issued under Rule 2A of the Kerala Private Forest (Tribunal)Rules, 1972 (hereinafter referred to as the ‘1972 Rules’) and the landsin question have been declared as a “private forest land”, vide notificationissued in the year 1977. It is to be noted that the private respondent nos.1 & 2 herein filed an application under Section 8 of the 1971 Actchallenging the said notification and vesting of the lands in question as aprivate forest land and declaring the same as a forest land, however, the A

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Asaid application came to be dismissed by the Forest Tribunal, vide orderdated 12.3.1990 and thereafter there is no challenge to the aforesaidnotification including the land in question as a vested forest land.

6. The High Court has also not appreciated that in order dated16.4.2002 passed by the Land Tribunal cancelling the order of assignmentBof jenmam rights and certificates of purchase, the Land Tribunalspecifically observed that OA applicants failed to establish tenancy rightsclaimed by them and the survey plan clearly shows that the lands inquestion are covered by the vested forest land of the government. Thus,as per the Land Tribunal, respondent nos. 1 & 2 herein cannot claim anyCright over the disputed lands in question. Once the notification issuedunder Section 2A of the 1972 Rules declaring the lands in question asvested forest land stands and as on today there is no jenmam rights and/or purchase certificates in favour of the respondents herein with respectto the lands in question, respondent nos. 1 & 2 herein cannot be said tobe the owner and/or cannot be said to be having a valid title in theirDfavour and therefore there is no question of any acceptance of basic taxfrom them, leviable under the 1961 Act. It appears that by asking such arelief of writ of mandamus directing the Village Officer/revenueauthorities to accept the basic tax from them, the original writ petitioners– respondents herein want to create title/ownership in their favour. AnyEdispute with respect to the forest land can only be settled under Section8 of the 1971 Act. Therefore, the High Court has not properly appreciatedthe mala fide intention on the part of the respondents to pray for such awrit of mandamus and indirectly establishing their right, title andownership over the disputed lands in question which, as such, is declaredas a vested forest land as far back as in the years 1975/1977, pursuantFto the notification issued under Rule 2A of the 1972 Rules.

7. In view of the above and for the reasons stated above, theimpugned judgments and orders passed by the Division Bench of theHigh Court as well as by the learned Single Judge are not sustainableand the same deserve to be quashed and set aside.G

8. In view of the above and for the reasons stated above, thepresent appeal is allowed. The impugned judgment and order passed bythe Division Bench of the High Court dated 23.11.2017 passed in WritAppeal No. 29/2011 and the judgment and order dated 08.07.2010 passedin Writ Petition No. 11252/2008, as also the order dated 22.10.2010H

passed in Review Petition No. 877/2010 are hereby quashed and setaside. However, in the facts and circumstances of the case, there shallbe no order as to costs.

Bibhuti Bhushan Bose

Appeal allowed.

(Assisted by : Roopanshi Virang, LCRA)

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