STATE OF KERALA & ANR. versus JOSEPH & ANR. on 25 September 2018

STATE OF KERALA & ANR.

v.

JOSEPH & ANR.

(Civil Appeal No. 9912 of 2010)

SEPTEMBER 25, 2018

[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]

Kerala Private Forests (Vesting and Assignment) Act, 1971:ss. 3(3) and 8 – On facts, respondent-landowners owned a piece ofland with rubber plantation and other trees – Claim of exemptionof the said land from its vesting in the State – Entitlement to – Tribunaldeclared the land as exempted from being vested in the State – HighCourt set aside the order of the tribunal – In appeal before thisCourt, matter remitted to the High Court – After remand, the HighCourt upheld the order passed by the tribunal – On appeal, held:Issue as regards interpretation of s.3(3) and holding of the landand its intended use by the landowner having already decided bythis Court in the earlier round of litigation, the State cannot raisethe same plea again in the second round of litigation after remand– Tribunal rightly based its finding on the documentary evidencefiled by the respondents keeping in view the requirements of s.3(3),that the title was derived by the respondents in relation to the landprior to the appointed day and that the land was found in actualuse by the respondents for their personal cultivation even prior tothe appointed day – Thus, the order by High Court after remandupheld.

Dismissing the appeal, the Court

HELD: 1.1 The question as to what is true interpretationof the relevant provisions of the Act and especially Section 3(3)of the Kerala Private Forests (Vesting and Assignment) Act, 1971and the other question regarding holding of the land and itsintended use by the respondents stand already decided by thisCourt in the earlier round of litigation. The State cannot, therefore,be allowed to raise the same plea again in the second round oflitigation after remand. This Court in explained the object andpurpose of Section 3(3) of the Act and then holding that such

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Aprovision has to be construed liberally examined the facts of thisvery case and set aside the order of the High Court in the earlierround of litigation. The remand of the case to the High Court wasto examine the issue in the light of interpretation made by thisCourt. [Para 22] [693-E-G]

B1.2 The tribunal recorded findings of fact as set out whileallowing the respondents’ application filed u/s. 8 and the samewere not interfered with by the High Court. All the findings areotherwise found to be based on documentary evidence filed bythe respondents and the same were properly appreciated by thetribunal keeping in view the requirements of sub-section (3) ofCSection 3, that the title was derived by the respondents in relationto the land in question prior to the appointed day and the landwas found in actual use by the respondents for their personalcultivation even prior to the appointed day. [Paras 23-24] [693-G-H; 694-A-B]

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1.3 In the light of these two findings recorded by the Tribunalon facts and upheld by the High Court in the impugned orderafter remand, which were not found perverse or against anyevidence or illegal in any way, there is no ground to interfere inthe impugned order. [Para 25] [694-C]S

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Joseph & Anr. vs. State of Kerala & Anr.(2007) 10SCC 414 : [2007] 6 SCR 347 – referred to.

Case Law Reference

[2007] 6 SCR 347referred toPara 12

FCIVIL APPELLATE JURISDICTION : Civil Appeal No. 9912of 2010.

From the Judgment and Order dated 03.12.2007 of the High Courtof Kerala at Ernakulam in MFA No. 137 of 1989.

K. N. Balgopal, Sr. Adv., G. Prakash, Jishnu M. L., Ms.GPriyanka Prakash, Ms. Beena Prakash, Mukundan, Jogy Scaria andNishe Rajen Shonker, Advs., for the appellants.

R. Basant, Sr. Adv., Vishnu P. and P. K. Manohar, Advs., for therespondents.

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The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. This appeal is filed againstthe final judgment and order dated 03.12.2007 passed by the High Courtof Kerala at Ernakulam in M.F.A. No.137 of 1989 whereby the HighCourt dismissed the appeal filed by the appellants herein.

2. In order to appreciate the short controversy involved in theappeal, it is necessary to set out few facts hereinbelow.

3. The appellant is the State of Kerala. It was the appellant beforethe High Court whereas the respondents herein were the respondents inthe appeal out of which this civil appeal arises.

4. The respondents herein are the owners of 14 acres of landsituated in Thenkara Village of Mannarghat Taluk in Kerala. This 14acres land was part of 47.35 acres of total land, which was purchasedjointly by the family members of the respondents in the name of therespondents, their father and uncles.

5. It is the case of the respondents that there existed rubberplantation on this land. In addition, the respondents are also the purchaserof the land, planted Teak and other trees on the land. It is also the caseof the respondents that a partition amongst their family members tookplace as a result of which out of 47.35 acres of land, 23.5 acres of landwas allotted to the respondents and their father.

6. A question arose as to whether the said 14 acres of land outof 23.5 acres stood vested in the State by virtue of the provisions of theKerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafterreferred to as “the Act” ) or not. Since there was also a dispute as towhether the respondents had a right to remain or/and to claim their lawfulpossession on 14 acres of land, the respondents filed an application underSection 8 of the Act before the Forest Tribunal and sought exemption ofthe said land from the provisions of the Act as provided therein.

7. Section 2 (a) of the Act defines the “appointed day” to meanthe 10[th] day of May,1971. “Owner” in relation to a private forest isdefined in Section 2(c) to include therein a mortgagee, lessee or otherperson having a right to possession and enjoyment of the private forest.Section 2 (f) defines the term “private forest” to mean:

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A “2. (f)(1) in relation to the Malabar District referred to insub-section (2) of Section 5 of the States ReorganisationAct, 1956 (Central Act 37 of 1956),—

(i) any land to which the Madras Preservation of PrivateForests Act, 1949 (Madras Act 27 of 1949), appliedBimmediately before the appointed day excluding—

(A) lands which are gardens or nilams as defined in theKerala Land Reforms Act, 1963 (1 of 1964); (B) lands which are used principally for the cultivation oftea, coffee, cocoa, rubber, cardamom or cinnamon andClands used for any purpose ancillary to the cultivation ofsuch crops or for the preparation of same for the market.

Explanation.—Lands used for the construction of officebuildings, godowns, factories, quarters for workmen,hospitals, schools and playgrounds shall be deemed to beDlands used for purposes ancillary to the cultivation of suchcrops;

(C) lands which are principally cultivated with cashew orother fruit-bearing trees or are principally cultivated withany other agricultural crop; and E

(D) sites of buildings and lands appurtenant to, andnecessary for the convenient enjoyment or use of, suchbuildings;

(ii) any forest not owned by the Government, to which theMadras Preservation of Private Forests Act, 1949, did notFapply, including waste lands which are enclaves withinwooded areas.

(2) in relation to the remaining areas in the State of Kerala,any forest not owned by the Government, including wastelands which are enclaves within wooded areas.”

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8. Similarly Section 3 of The Act, which is also relevant fordisposal of this appeal, reads as under:

“3. Private forests to vest in Government- (1)Notwithstanding anything contained in any other law forthe time being in force, or in any contract or other H

document but subject to the provisions of sub-sections(2)and (3), with effect on and from the appointed day, theownership and possession of all private forests in the Stateof Kerala shall by virtue of this Act, stand transferred toand vested in the Government free from allencumberances, and the right, title and interest of theowner or any other person in any private forest shall standextinguished.

(2) Nothing contained in sub-section(1) shall apply inrespect of so much extent of land comprised in privateforests held by an owner under his personal cultivation asis within the ceiling limit applicable to him under the KeralaLand Reforms Act, 1963(1 of 1964) or any building orstructure standing thereon or appurtenant thereto.

Explanation-For the purposes of this sub-section,“cultivation” includes cultivation of trees or plants of anyspecies.

(3) Nothing contained in sub-section(1) shall apply inrespect of so much extent of private forests held by anowner under a valid registered document of title executedbefore the appointed day and intended for cultivation byhim, which together with other lands held by him to whichChapter III of the Kerala Land Reforms Act, 1963, isapplicable, does not exceed the extent of the ceiling areapplicable to him under Section 82 of the said Act.

(4) Notwithstanding anything contained in the Kerala LandReforms Act, 1963, private forests shall, for the purposesof sub-section(2) or sub-section(3), be deemed to be landsto which Chapter III of the said Act is applicable and forthe purposes of calculating the ceiling limit applicable toan owner, private forests shall be deemed to be “otherdry lands” specified in Schedule II to the said Act.”

9. The question that arose for consideration before the ForestTribunal was whether the respondents’ case falls under Section 3(3) ofthe Act so as to entitle them to claim exemption of their land measuring14 acres from its vesting in the State as provided under the Act and theother question was what is the true meaning of the expression “intended A

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Afor cultivation by him” occurring in sub-section (3) of Section 3 of theAct.

10. The Tribunal, by order dated 21.02.1979, allowed therespondents’ application and granted the exemption as claimed by themin relation to their 14 acres of land. It was held that firstly, the respondentsBacquired the right, title and interest on the land on the strength of theregistered documents executed prior to 10.05.1971 in their favour;Secondly, the respondents acquired the land with the intention to personallycultivate; Thirdly, the respondents had planted rubber plantation in 3½acres of land and also cultivated coconut, pepper and coffee in oneacre; Fourthly, this was the only land of the members of the respondents’Cfamily which was being used by them for their personal cultivation toearn livelihood; Fifthly, the other members of family were also usingtheir share in the land for doing rubber plantation; Sixthly, the respondentsowned only the land in question which falls within the ceiling limits; andlastly, though the respondents’ scheduled property is a private forest asDdefined under the Act, yet in the light of seven findings, the land in questionis not liable to be vested in the Government by virtue of exemptionavailable under Section 3(3) of the Act. In other words, it was held thatthe respondents were able to make out a case on facts as contemplatedunder Section 3(3) of the Act. The Tribunal therefore, declared the land in question as exempted from being vested in the State. As a consequenceEthereof, the respondents were allowed to retain the land in question fortheir personal cultivation.

11. The State felt aggrieved and filed review petition before theTribunal under Section 8-B of the Act. By order dated 24.08.1988, thereview petition was dismissed. The State then filed an appeal in theFHigh Court of Kerala. By order dated 16.11.1999, the High Court allowedthe appeal and set aside the main order dated 21.02.1979 passed by theTribunal.

12. As a result, the respondents’ application filed under Section8-B of the Act was dismissed. The respondents felt aggrieved and filedGappeal in this Court by way of special leave being Civil Appeal Nos.8061-62 of 2001 (Joseph & Anr. vs. State of Kerala & Anr., (2007)10 SCC 414.

13. By order dated 10.05.2007, this Court after interpreting therelevant provisions of the Act allowed the respondents’ appeals and whileH

setting aside the order of the High Court remitted the matter to the HighCourt for its fresh consideration. (See – (2007) 10 SCC 414).

14. This Court in Paras 18 and 19 made the following observations:

“18. Several questions arose for consideration before theHigh Court. The High Court indisputably had a limitedrole to play. We, as at present advised, are not inclined toaccept the submission of Mr Iyer that sub-sections (2)and (3) of Section 3 of the 1971 Act would operate in thesame field. In our opinion, both operate in different fields.However, on a plain reading of the impugned order passedby the High Court, we are of the opinion that the HighCourt was not correct in its view in regard to itsconstruction of Section 3(3) of the 1971 Act. The Tribunal,while exercising its power under Section 8 of the 1971Act, had taken into consideration the question which arosebefore it viz. as to whether the appellants herein hadintention to cultivate the land on the appointed day.Appointed day having been defined in the 1971 Act, therelevant aspect was the situation as it existed on that dayi.e. on 10-5-1971. For the purpose of attracting sub-section(3) of Section 3 of the 1971 Act, it was not necessary thatthe entire area should have been cultivated for arriving ata decision as to whether the owner of the land had theintention to cultivate or not. Also, it was required to beconsidered having regard to the activities carried on bythe owner from the day of purchase till the appointed day.For the said purpose, subsequent conduct of the owner ofthe land was also relevant. Development of the land byplantation of rubber plants is not in dispute. TheExplanation appended to Section 3(2) of the 1971 Actclearly suggests that cultivation would include cultivationof trees or plants of any species. Intention to cultivate bythe owner of the land, we think, has to be gathered notonly in regard to the fact situation obtaining at a particulartime but also with regard to the subsequent conduct ofthe parties. If the activity in regard to cultivation of landor development thereof is systematic and not sporadic,the same also may give an idea as to whether the owner A

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intended to cultivate the land. The words “intend tocultivate” clearly signify that on the date of vesting theland in question had not actually been cultivated in itsentirety but the purchaser had the intention of doing so.Such intention on the part of the purchaser can be gatheredfrom his conduct in regard to the development of land formaking it fit for cultivation preceding to and subsequentto the date of vesting.

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19. The High Court, in our opinion, was not correct inopining that for applying Section 3(3) of the 1971 Act, thecultivation of the property subsequent to the vesting cannotCbe taken into account. The High Court also was not correctin arriving at a finding that there had been no evidencewhatsoever that the owners intended to cultivate the landprior to 10-5-1971. As the provision contained in sub-section (3) of Section 3 of the 1971 Act clearly providesDfor exclusion of the operation of sub-section (1) thereof,the same has to be construed liberally. So construed, theconduct of the parties was a relevant fact. The High Court,in our opinion, therefore was not correct in ignoring thefindings of the Tribunal. Also, the High Court shouldbestow its attention to the findings arrived at by theETribunal having regard to the limited nature of the scopeand ambit of appeal in terms of Section 8-A of the 1971Act and, particularly, in view of the fact that the order dated21-2-1979 had not been appealed against.”

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15. The matter was accordingly heard by the High Court afterremand with a view to find out as to whether the findings recorded bythe Tribunal are in conformity with the law laid down by this Court inJoseph’s case (supra). By impugned order, the State’s appeal wasdismissed by the High Court which gives rise to filing of this appeal byway of special leave in this Court by the State.

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16. Heard Mr. K.N. Balgopal, learned senior counsel for theappellants and Mr. R. Basant, learned senior counsel for the respondents.

17. Learned senior counsel for the appellant (State) mainly urgedone point. It was his submission that the case of the respondents(landowners) does not fall under Section 3 (3) of the Act and, therefore, H

the Tribunal and the High Court were not right in granting exemption tothe respondents from vesting of their land in question in the State.

18. In other words, the submission of the learned counsel wasthat the respondents’ land being a “private forest” stood declared vestedin the State in accordance with the provisions of the ceiling law and theAct on an appointed day and hence the respondents were not entitled toget any benefit of exemption by taking recourse to Section 3(3) of theAct.

19. Learned counsel elaborated this submission with reference tothe actual findings of the Tribunal in the context of the wording of Section3 (3) of the Act and especially the expression “intended for cultivationby him” occurring in sub-section (3) and contended that the facts foundby the Tribunal do not satisfy the expression “intended for cultivation bythe landowners” and, therefore, no reliance could be placed by therespondents on Section 3(3) of the Act for claiming an exemption fortheir land from being vested in the State.

20. In reply, learned counsel for the respondents supported theimpugned order and contended that it does not call for any interference.

21. Having heard the learned counsel for the parties and on perusalof the record of the case, we find no merit in this appeal.

22. In our opinion, the question as to what is true interpretation ofthe relevant provisions of the Act and especially Section 3(3) and theother question regarding holding of the land and its intended use by therespondents stand already decided by this Court in the earlier round oflitigation in its order dated 10.05.2007 in Paras 18 and 19 quoted above.The State cannot, therefore, be allowed to raise the same plea again inthe second round of litigation after remand. This Court in paras 18 and19 explained the object and purpose of Section 3(3) of the Act and thenholding that such provision has to be construed liberally examined thefacts of this very case and set aside the order of the High Court in theearlier round of litigation. The remand of the case to the High Court wasto examine the issue in the light of interpretation made by this Court.

23. That apart, in our view, the Tribunal has recorded seven findingsof fact as set out above in para 10 while allowing the respondents’application filed -under Section 8 and the same were not interfered withby the High Court.

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A24. In our opinion, all the seven findings are otherwise found tobe based on documentary evidence filed by the respondents and thesame were properly appreciated by the Tribunal keeping in view the tworequirements of sub-section(3) of Section 3 of the Act, namely, that thetitle was derived by the respondents in relation to the land in questionprior to the appointed day, i.e.,10.05.1971 and second, the land in questionBwas found in actual use by the respondents for their personal cultivationeven prior to the appointed day.

25. In the light of these two findings recorded by the Tribunal onfacts and upheld by the High Court in the impugned order after remand,which were not found perverse or against any evidence or illegal in anyCway, we do not find any ground to interfere in the impugned order.

26. The appeal thus fails and is accordingly dismissed.

Nidhi Jain Appeal dismissed.

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