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CASE NO.: Appeal (civil)  8061-8062 of 2001

PETITIONER: Joseph & Anr

RESPONDENT: State of Kerala & Anr

DATE OF JUDGMENT: 10/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

S.B. SINHA, J :          1.      This appeal is directed against a judgment and order dated 16.11.1999  passed by a Division Bench of the Kerala High Court in MFA No. 137 of  1989 whereby and whereunder the appeal preferred by the respondents  herein questioning the order dated 21.02.1979 passed by the Forest Tribunal,  Manjeri in OA No. 594 of 1976 was allowed.

2.      The basic facts of the case are not in dispute.

       Appellants herein purchased 14 acres of land in Thenkara Village of  Mannarghat taluk in the District of Kerala.  The said 14 acres of land was a  part of 47.35 acres of land purchased jointly in the name of the appellants,  their father and uncle.  There allegedly existed rubber plantation in the said  land.  Teak and other trees had also been planted there.  A partition in the  family took place as a result whereof 23.5 acres of land out of 47.35 acres of  land was allotted to the appellants and their father.  A question arose as to  whether the said 14 acres of land out of total 23.5 acres vested in the State  by virtue of the provisions of the Kerala Private Forest (Vesting and  Assignment) Act, 1971 (for short "the 1971 Act").  As their right to  possession over the said land was questioned, the appellants filed an  application before the Forest Tribunal claiming exemption of the said land.   

3.      The question which arose for consideration before the Tribunal and  consequently the High Court was as to whether they had any intention to  cultivate the land.   

4.      The 1971 Act was enacted to provide for vesting the private forests  with the government in the State of Kerala and for the assignment thereof to  agriculturists and agricultural labourers for cultivation.   

5.      Section 2(a) of the 1971 Act defines the "appointed day" to mean the  10th day of May, 1971.  "Owner" in relation to a private forest has been  defined in Section 2(c) to include a mortgagee, lessee or other person having  right to possession and enjoyment of the private forest.  The term "private  forest" has been defined in Section 2(f) to mean:

"(1) in relation to the Malabar district referred to in  sub-section (2) of Section 5 of the State  Reorganisation Act, 1956 (Central Act 37 of 1956) (i) any land which the Madras Preservation of  Private Forest Act, 1949 (Madras Act XXVII of  1949), applied immediately before the appointed  day excluding \026  (A)     land which are gardens or nilams as defined  in the Kerala Land Reforms Act, 1963 (1 of 1964).

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(B)     lands which are used principally for the  cultivation of tea, coffee, cocoa, rubber, cardamom  or cinnamon and lands used for any purpose  ancillary to the cultivation of such crops or for the  preparation of the same for the market. Explanation \026 Lands used for the construction of  office buildings, godowns, factories, quarters for  workmen, hospitals, schools and playgrounds shall  be deemed to be lands used purposes ancillary to  the cultivation of such crops; (C) lands which are principally cultivated with  cashed or other fruit bearing trees or are  principally cultivated and any other agricultural  crop and (D) sites of buildings and land appurtenant to and  necessary for the convenient enjoyment or use of  such buildings; (ii)    any forest not owned by the Government, to  which the Madras Preservation of Private Forests  Act, 1949 did not apply, including waste lands  which are enclaves within wooded areas. (2) in relation to the remaining areas in the State of  Kerala any forest not owned by the Government  including waste lands which are enclaves within  wooded areas."

       Section 3 of the 1971 Act provides that the private forest would vest  in the government.  Sub-section (2) of Section 3 thereof, however, carves out  an exception thereto stating that nothing contained in Sub-section (1) shall  apply in respect of land comprised in private forests held by an owner under  his personal cultivation, as is within the ceiling limit applicable under the  Kerala Land Reforms Act, 1963 or any building or structure standing  thereon or appurtenant thereto.  The Explanation appended to Sub-section  (2) of Section 3 includes cultivation of trees or plants of any species.  Sub- section (3) of Section 3, however, deals with a situation stating that sub- section (1) shall apply in respect of private forests held by an owner under a  valid registered document executed before the appointed day and intended  for cultivation by him, which together with other lands held by him to which  Chapter III of the Kerala Land Reforms Act, 1963 is applicable, does not  exceed the extent of the ceiling area applicable to him under Section 82  thereof.   

6.      The fact that the lands in question was purchased under a registered  deed of sale dated 13.09.1966 is not in dispute.  The lands were, therefore,  held by the appellants prior to the appointed day specified in the 1971 Act.   According to the appellants, they planted teak, irul and maruthu trees on or  before 31.12.1970 covering an extent of 1.60 hectares, as would appear from  grant of a new planting licence granted by the Rubber Board.  It further  appears from a certificate dated 30.11.1999 that in the year 1972, they  planted 1300 trees over an area of 2.83 hectares.   

7.      By reason of the 1971 Act, a forum for settlement of disputes has been  provided in the form of Tribunal constituted thereunder inter alia for  resolution of disputes in regard to the questions such as whether any private  forest or portion thereof has been vested in the government or not, or  whether the land in question is a private forest or not.  The High Court has  been conferred with the appellate power thereunder.   

8.      An application appeared to have been filed by the appellants before  the Forest Tribunal which was marked as OA No. 594 of 1976 stating that  13.50 acres (5.46 hectares) of rubber had been planted.  The dispute was  only in relation to the 14 acres of land.  The said application was allowed by  the Tribunal by an order dated 21.02.1979 holding that the appellants have  got title and possession thereto and have been holding lands within the  ceiling limits.  The Tribunal granted exemption in respect of the land in

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question in terms of Section 3(3) of the 1971 Act.  It was held:

"8. It was contended for the petitioners that they  are entitled to the exemption provided in section  3(3) of the Act.  The petitioners had obtained right  over this property as per the registered documents  executed prior to 10.5.1971.  In the circumstances  of this case, it can also be held that the property  was obtained by the petitioners with the intention  to cultivate the same.  PW1 has stated that besides  the petition scheduled property he has got 3-1/2  acres of rubber plantation and one acre of property  where coconut, pepper, coffee, etc. are planted.   He had a wife and 5 minor children as on 1.1.1970.   His wife and minor children have also no other  property.  According to PW 1 the second petitioner  has got only 2 acres of rubber estate besides the  property obtained by him under Ext. A1.  The  second petitioner had also a wife on 1.1.1970.  She  has no other property.  PW 1 has further stated that  the third petitioner has also no property apart from  what was obtained under Ext. A 1.  The third  petitioner had no family as on 1.1.1970.  There is  no evidence on the side of the respondents to show  that the above statements of PW 1 are false and  that the petitioners have other properties also.  In  the circumstances, it can be held that including the  petition scheduled property, the petitioners will be  having only properties within ceiling limits  applicable under the Kerala Land Reforms Act.   Therefore, I find that even though the petition  scheduled property is a private forest, the same is  not liable to be vested in the Government under  section 3(3) of Act 26 of 1971."

9.      Against the said order, no appeal was preferred.  The said order,  therefore, was allowed to attain finality.  However, on or about 1.12.1986, a  provision for review of the order of the Tribunal was introduced by way of  insertion of Section 8B of the 1971 Act which reads as under:

"8B. Power of Custodian to apply for review of  decisions of Tribunal. (1)     Notwithstanding anything contained in this  Act or in the Limitation Act, 1963 (Central Act 36  of 1963), or in any other law for the time being in  force, or in any judgement, decree or order of any  court or other authority, the Custodian may, if he is  satisfied that any decision of the Tribunal under  Section 8 requires to be reviewed on the ground  that such decision has been made on the basis of  concessions made before the Tribunal without the  authority in writing of the Custodian or the  Government or due to the failure to produce  relevant data or other particulars before the  Tribunal or that an appeal against such decision  could not be filed by reason of the delay in  applying for and obtaining a certified copy of such  decision, make an application to be Tribunal  during the period beginning with the  commencement of the Kerala Private Forests  (Vesting and Assignment) Amendment Act, 1986  and ending on the 31st day of March, 1987 for  review of such decision. (2) An application under sub-section (1) shall be in  the prescribed form and shall be verified in the

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prescribed manner. (3) On receipt of an application under sub-section  (1), the Tribunal shall, notwithstanding anything  contained in this Act or in the Limitation Act, 1963  (Central Act 36 of 1963), or in any law for the time  being in force, or in any judgement decree or order  of any court or other authority review decision and  pass such orders as it may think fit."

10.     "Custodian of Vested Forests" and "Conservator of Forests" filed a  revision petition before the Forest Tribunal.  Column 6 of the prescribed  form, however, was not filled.  In the said revision petition, it was inter alia  stated:

"3. It is noticed that the relevant data and certain  particulars that are very relevant and necessary for  the proper appreciation and for arriving at a just  decision, were not produced earlier before the  Tribunal. 4. Certain material particulars, relevant data and  evidence are now available, which will help the  revision petitioners to substantiate that the disputed  property is a private forest and that the respondent  herein is not eligible for any relief of exclusion or  exemption from vesting."

11.     A Commissioner was appointed by the Tribunal.  He submitted a  report stating:

"From the present nature of the property, the sign  of cultivation as on the appointed day cannot be  ascertained.  I was told by the 3rd respondent that  the teak wood were planted.  But the same were  seen scattered except some of teak trees on the  South-Western portion are seen stood in the lined  up nature and some of them are seen in the  boundary of this portion.

The other point which I was told by the Forest  Official is that on the western side in between the  disputed property and property belong to Ayilloor,  there is no clear boundary demarcation, and the  nature of the species seen in the disputed property  where the forest nature trees like Teak and other  trees found is the same in the property of Ayilloor  in certain portion only."

12.     By reason of an order dated 24.08.1983, the said review petition filed  by the Custodian was dismissed stating:

"10. The question is regarding ceiling area.  The  first petitioner is having his wife and 5 minor  children.  Apart from the other two applicants his  share in the disputed property is 7.72 acres.  He  can keep upto 20 acres or 14 standard acres.  He  has produced Ext. A4 possession certificate from  the Tahsildar, Meenachil, 11.28 acres is the total  holding of three applicants.  He has produced Exts.  A5 and A6 the registration from the Rubber Board  to show that about 3.65 acres out of his property is  planted with rubber.  It has to be excluded for the  purpose of ceiling.  Even otherwise, if we add  11.28 acres by 7.72 acres of the disputed property,  the total makes only 19 acres.  The first applicant  and his wife and children are entitled to keep up to

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20 acres, and therefore, they are within the ceiling  area.  Second petitioner has produced Ext. A3  possession certificate from the Tahsildar stating  that he is in possession of 2 acres of land.  Ext. A7  will show that these two acres is planted with  rubber.  He is also married.  Therefore, he is also  within the ceiling area.  The third petitioner was  not married and he can keep only this property.   He has not produced a possession certificate  because he has no lands in his native place.   Therefore, I find that the applicants are within the  ceiling area.

11. My learned predecessor has found that the  applicants were holding the lands with intention to  cultivate.  The very fact that the entire property is  now planted with rubber is revealed from the  Commissioner’s report proved that the applicant  has acquired the property with intention to  cultivate.  In these circumstances, I do not find any  ground to interfere with the orders passed by my  learned predecessor.

       In the result, there is no merit in the review  application and the same is dismissed."

13.     The High Court, however, by reason of the impugned judgment has  allowed the appeal preferred by the respondents herein stating:

"\005The tribunal properly held that the respondents  had title to the property.  But there was no  evidence to show that the respondents herein were  holding the property with intention to cultivate on  the appointed day.  No documents were produced  to show that they had the intention to cultivate the  land with rubber, coffee or any other type of  cultivation as on or prior to the appointed day.   The tribunal allowed the application solely because  these applicants were not having land in excess of  the ceiling area and that the property had been  found cultivated at the time of the visit of the  Commissioner.  For applying sec. 3(3) of the Act,  the cultivation of the property subsequent to the  vesting cannot be taken into account.  For  exempting the land u/s 3(3) of the Act, the  intention to cultivate the land must be evident at  least prior to or as on 10.5.1971 and it should be  pleaded and proved.  In fact there was no pleading  in the application for claiming exemption u/s 3(3)  of the Act.  As there was no pleading and evidence  regarding the intention to hold the property as on  the date of vesting or prior to it, sec. 3(3) of the  Act cannot be applied.  In the absence of any such  evidence, the tribunal cannot be justified in  allowing the petition as per the order dt. 21.2.1979  and in dismissing the review application.  Hence  the review application has only to be allowed and  the O.A. to be dismissed."  

14.     Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of the  appellants, in support of this appeal, would submit that the High Court  committed a serious error insofar as it failed to take into consideration that it  was not a case where the review petition could have been entertained.  In  any event, the learned counsel would contend that having regard to the  limited scope of appeal in terms of Section 8A of the 1971 Act, the order of

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the Tribunal should not have been interfered with by the High Court.  The  High Court, the learned counsel would contend, misconstrued and  misinterpreted the provisions of Section 3(3) of the 1971 Act.  According to  the learned counsel, Sub-sections (2) and (3) of Section 3 must be read  conjointly so as to give an effective meaning thereto.

15.     Mr. G. Prakash, learned counsel appearing on behalf of the  respondents, however, would submit that the review petition was  maintainable.   

16.     Several questions arose for consideration before the High Court.  The  High Court indisputably had a limited role to play.  We, as at present  advised, are not inclined to accept the submission of Mr. Iyer that Sub- sections (2) and (3) of Section 3 of the 1971 Act would operate in the same  field.  In our opinion, both operate in different fields.  However, on a plain  reading of the impugned order passed by the High Court, we are of the  opinion that the High Court was not correct in its view in regard to its  construction of Section 3(3) of the 1971 Act.  The Tribunal, while exercising  its power under Section 8 of the 1971 Act, had taken into consideration the  question which arose before it, viz., as to whether the appellants herein had  intention to cultivate the land on the appointed day.  Appointed day having  been defined in the 1971 Act, the relevant aspect was the situation as it  existed on that day, i.e., on 10.05.1971.  For the purpose of attracting Sub- section (3) of Section 3 of the 1971 Act, it was not necessary that the entire  area should have been cultivated for arriving at a decision as to whether the  owner of the land had the intention to cultivate or not.  Also, it was required  to be considered having regard to the activities carried on by the owner from  the day of purchase till the appointed day.  For the said purpose, subsequent  conduct of the owner of the land was also relevant.  Development of the land  by plantation of rubber plants is not in dispute.  The Explanation appended  to Section 3(2) of the 1971 Act clearly suggests that cultivation would  include cultivation of trees or plants of any species.  Intention to cultivate by  the owner of the land, we think, has to be gathered not only in regard to the  fact situation obtaining at a particular time but also with regard to the  subsequent conduct of the parties.  If the activity in regard to cultivation of  land or development thereof is systematic and not sporadic, the same also  may give an idea as to whether the owner intended to cultivate the land.  The  words ’intend to cultivate’ clearly signify that on the date of vesting the land  in question had not actually been cultivated in its entirety but the purchaser  had the intention of doing so.  Such intention on the part of the purchaser  can be gathered from his conduct in regard to the development of land for  making it fit for cultivation preceding to and subsequent to the date of  vesting.     

17.     The High Court, in our opinion, was not correct in opining that for  applying Section 3(3) of the 1971 Act, the cultivation of the property  subsequent to the vesting cannot be taken into account.  The High Court also  was not correct in arriving at finding that there had been no evidence  whatsoever that the owners intended to cultivate the land prior to  10.05.1971.  As the provision contained in Sub-section (3) of Section 3 of  the 1971 Act clearly provides for exclusion of the operation of Sub-section  (1) thereof, the same has to be construed liberally.  So construed, the  conduct of the parties was a relevant fact.  The High Court, in our opinion,  therefore was not correct in ignoring the findings of the Tribunal.  Also, the  High Court should bestow its attention to the findings arrived at by the  Tribunal having regard to the limited nature of the scope and ambit of appeal  in terms of Section 8A of the 1971 Act and, particularly, in view of the fact  that the order dated 21.02.1979 had not been appealed against.

18.     For the reasons aforementioned, the impugned judgment is set aside  and the matter is remitted to the High Court for its consideration thereof  afresh in accordance with law.  The appeals are allowed with the  aforementioned observations.  No costs.