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CASE NO.: Appeal (civil)  321-322 of 1998 Appeal (civil)  324 of 1998

PETITIONER: State of Kerala & Ors.                           State of Kerala & Ors.   

RESPONDENT: K.Sarojini Amma & Ors.                           Ookamputhan Veettil Vakkachan & Ors.     

DATE OF JUDGMENT: 14/10/2003

BENCH: SHIVARAJ V. PATIL & D.M.DHARMADHIKARI.

JUDGMENT: J U D G M E N T

Shivaraj V. Patil J.

        The State of Kerala is in appeal assailing the impugned  orders passed by the High Court made in exercise of its revisional  jurisdiction under Section 103 of the Kerala Land Reforms Act,  1963 (for short ‘the Act’).  The Taluk Land Board directed the  respondents to surrender a total extent of about 2067 acres of  land holding that, that was the excess land in their possession as  on 1.1.1970, the date on which the ceiling provisions of the Act  were brought into force.  Late Shri C. Kumaran Nair purchased 1501  acres of land on 22.12.1965 which was a private forest.  It was  also the case of the respondents that the said land was converted  into rubber plantation before 1.1.1970.  The legal heirs of Late  Shri C.Kumaran Nair were the declarants in Ceiling Case S.R. 780  of 1973 in the Taluk Land Board, Perintalmanna.  Their main  contention was that the area of 1501 acres of land purchased by  Late Shri C.Kumaran Nair, being a private forest, was exempted  under Section 81 of the Act and further that the said land having  been converted into rubber plantation before 1.1.1970 also got the  benefit of exemption under the said Section.  The Taluk Land Board  rejected the contentions of the respondents and held that excess  land of 1501 acres was in their possession.  Hence, aggrieved by  the said order, the respondents filed C.R.P. No. 1654 of 1991 in  the High Court.

       The claim made by the assignees of the declarants in respect  of the properties in Mannarkkad taluk over 546.56 acres was also  rejected on the ground that they failed to establish their claim  of plantation over the said land prior to 1.1.1970.  Aggrieved by  the rejection of their claim, the assignees of the declarants  filed C.R.P. No. 1697 of 1991.  The High Court by the impugned  common order concluded that the area of 1501 acres purchased by  Late Shri C.Kumaran Nair on 22.12.1965 should be excluded from  reckoning in the ceiling area applicable to the respondents but no  discussion was made in regard to the subject matter and the  questions raised in C.R.P.No.1697 of 1991.  In that situation, a  review petition was filed by the respondents in C.R.P. No. 1697 of  1991 which was allowed by the High Court by the order dated 30th  July, 1996 holding that non-mentioning of 257 acres of land  covered by revision petition in C.R.P. No. 1697 of 1991 was only  an omission and that was to be incorporated in last paragraph of

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the common order made in both the C.R.Ps. on 11.19.1995 without  affecting the order made in C.R.P. No. 1654 of 1991.  C.A. No. 324  of 1998 is against this order of the High Court made in review.  

       The learned counsel for the appellants contended that the  High Court in its revisional jurisdiction under Section 103 of the  Act was not right and justified in interfering with the order  passed by the Taluk Land Board; the High Court could disturb the  finding recorded by the Taluk Land Board only when the Board  decided the question of law erroneously or failed to decide any  question of law; from the impugned order, it cannot be said that  the Taluk Land Board had decided any question of law erroneously  or failed to decide any question of law.  The learned counsel  further submitted that on the facts found by the Taluk Land Board,  its conclusions could be sustained;  the respondents failed to  establish that there was plantation in the lands in question prior  to 1.1.1970; further the lands in question being the private  forest vested in the Government under the Kerala Private Forests  (Vesting and Assignment) Act, 1971.

       In opposition, the learned senior counsel for the  respondents made submissions supporting the impugned order for the  reasons recorded therein; they submitted that the situation  existing on the lands and the nature of lands as on 1.4.1964 were  relevant.  According to them, the lands in question were private  forest as on 1.4.1964 and even assuming that there was no  plantation on the lands before 1.1.1970, the position as to  exemption of the lands from the calculation to ceiling area is not  affected as per Section 81(1)(d); it is not the case that the  exempted category of lands on 1.4.1964 were converted into non- exempted category of lands.  According to the learned senior  counsel, when the Taluk Land Board committed a serious error in  law as regards the relevant date in considering the exemption in  the light of the law laid down by the High Court in the earlier  judgments, the High Court was justified in interfering exercising  revisional jurisdiction under Section 103 of the Act inasmuch as  the Talk Land Board decided the question of law erroneously on the  facts either found or established; the Board also failed to decide  the question of law as to the effect when the exempted category of  lands were converted to non-exempted category of lands.  Even  otherwise, the High Court was justified in passing the impugned  order in its jurisdiction under Article 227 of the Constitution of  India.

       In order to appreciate the rival contentions urged on behalf  of the parties having regard to the facts found or established or  admitted, it is useful to notice certain provisions of the Act to  the extent they are relevant and having bearing on the decision of  the case"

"Section 2(47) â\200\223 "Private forest" means a forest  which is not owned by the government, but does not  include-

(i)     areas which are waste and are not enclaves  within wooded areas;

(ii)    areas which are gardens or nilams;

(iii)areas which are planted with tea, coffee, cocoa,  rubber, cardamom or cinnamon; and

(iv)    other areas which are cultivated with pepper,  arecanut, coconut, cashew or other fruit-bearing  trees or are cultivated with any other

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agricultural crop;"

Section 81 â\200\223 Exemptions â\200\223 (1) The provisions of this  Chapter shall not apply to -

(a)     ................. (b)     ................. (c)     .................

(d)     private forests;

(e)     plantations;"

Section 83 â\200\223 "No person to hold land in excess of the  ceiling area â\200\223 With effect from such date as may be  notified by the Government in the Gazette, no person  shall be entitled to own or hold or to possess under a  mortgage lands in the aggregate in excess of the  ceiling area."   

Section 87 â\200\223 "Excess land obtained by gift etc., to  be surrendered -  (1) Where any person acquires any  land after the date notified under Section 83 by gift,  purchase, mortgage with possession, lease, surrender  or any other kind of transfer intervivos or by bequest  or inheritance or otherwise and in consequence  thereof, the total extent of land owned or held by  such person exceeds the ceiling area, such excess  shall be surrendered to such authority as may be  prescribed.

Explanation I â\200\223 Where any land is exempted by or under  Section 81 and such exemption is in force on the date  notified under Section 83, such land shall, with  effect from the date on which it ceases to be  exempted, be deemed to be land acquired after the date  notified under Section 83.

Explanation II -  Where, after the date notified under  Section 83, any class of land specified in Schedule II  has been converted into any other class of land  specified in that Schedule or any land exempt under  Section 81 from the provisions of this Chapter is  converted into any class of land not so exempt and in  consequence thereof the total extent of land owned or  held by a person exceeds the ceiling area, so much  extent of land as is in excess of the ceiling area,  shall be deemed to be land acquired after the said  date."

Section 103 â\200\223 "Revision by High Court â\200\223  (1)(i)...................................

(ii)    ...................................

(iii)any final order of the Taluk Land Board under  this Act, may, within such time as may be  prescribed, prefer a petition to the High Court  against the order on the ground that the  appellate authority or the Land Board, or the  Taluk Land Board, as the case may be, has either  decided erroneously, or failed to decide, any  question of law.

(1A)    ........................

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(1B)    ........................ (2)     ........................ (3)     ........................ (4)     ........................"

The relevant provisions of the Madras Preservation of  Private Forests Act, 1949 (for short ’the MPPF Act’) are as  under:- Section 3.       "Preservation of Private Forests â\200\223  (1) (a)- No owner of any forest shall, without the  previous sanction of the District Collector sell,  mortgage, lease or otherwise alienate the whole or any  portion of the forest.

Explanation - ..........................

(b)     Any alienation in contravention of clause (a)  shall be null and void â\200\223

(i)     if the alienation is of any forest declared by  the District Collector to be a forest under  clause (iii) of Section 1(2) or of any portion  of such a forest, and is made on or after the  date on which the declaration takes effect;

(ii)    [.......]

(iii)if the alienation is of any other forest or of  any portion of such a forest, and is made on or  after the 16th August, 1946."

Section 2(f) of the Kerala Private Forests (Vesting and  Assignment) Act, 1971 reads as under:-

"private forests" means -

(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) â\200\223 (i)     any land which the Madras Preservation of  Private Forest Act, 1949 (Madras Act XXVII of  1949) applied immediately before the appointed  day excluding â\200\223

(A)     land which are gardens or nilams as  defined in the Kerala Land Reforms Act,  1963 (1 of 1964). (B)     land 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."

It is clear from the definition of private forests given in Kerala  Private Forests (Vesting and Assignment) Act, 1971 that any land  to which the MPPF Act applied immediately before the appointed day  was a private forest.  Admittedly, to the lands in question, the  MPPF Act was applicable as the very permission for selling the  lands was granted by the District Collector under Section 3(1)(a)  of the MPPF Act.

       Sections 81 and 82 of the Act appearing in Chapter III came

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into force on 1.4.1964 and Section 83 of the Act relating to  ceiling area was brought into force w.e.f. 1.7.1970.  The Kerala  Forests (Vesting and Assignment) Act, came into force on  10.5.1971.  

The Taluk Land Board directed the respondents to surrender  excess land of 2067 acres holding that they were in possession of  this excess land as on 1.1.1970, the date on which the ceiling  provisions of the Act came into force.  According to the  respondents, they were not the excess lands being private forests  falling within the purview the MPPF Act and the same had been  converted into a plantation before 1.1.1970.  According to them,  these lands were exempted under Section 81(1)(d)&(e).  The Taluk  Land Board did not accept the plea of the respondents.  It  recorded a finding that the respondents did not place records and  proper evidence to show that the lands held by them were private  forests to claim exemption and to prove that those lands had been  converted into rubber plantation before 1.1.1970.  Thus, rejecting  the claim of the respondents for exemption, the Board held that  the respondents had to surrender the total extent of 2067 acres of  land.   

The High Court upset the order passed by the Taluk Land  Board observing thus:

"It appears that even the State has no dispute on the  point that the land purchased by Shri Kumaran Nair was  initially a private forest falling within the purview  of Madras Preservation of Private Forests Act.  This  may be because the State cannot now wriggle out of the  permission granted by the District Collector on  23.8.1965 under Section 3(1)(a) of the MPPF Act in  favour of one Abdu Haji and Kadarshah for selling the  property of Shri Kumaran Nair.  District Collector  could have granted permission only if the property  fell within the meaning of the said Act.  If it was a  private forest and remained so on 1.1.1970 such land  was exempted from the ceiling provisions enumerated in  Chapter III of the Kerala Land Reforms Act.  If  private forest had been converted into plantation  before 1.1.1970 then also the same would stand  exempted from the ceiling provisions.  This can be  discerned from Section 81(a)(d) and (e) of the Kerala  Land Reforms Act.  Learned senior counsel invited my  attention to the decision rendered by U.L. Bhat. J.  (as His Lordship then was) reported in Alekutty John  v. Taluk Land Board (1981 K.L.T. 731) that the crucial  date  as for Section 81 was 1.4.1964 and not 1.1.1970.   The latter may be important if the exempted category  happened to be a non-exempted category before that  date.  I would say that if the exempted category was  converted into another exempted category before  1.1.1970 the position would still remain unaffected as  for the declarant."

       The High Court has also recorded in the impugned order that  a specific question was put to the learned Additional Advocate  General as to whether the State had a case that private forest was  not converted into a plantation before 1.1.1970 and that the  learned Additional Advocate General replied that he was not  definite about it.

       It is on record that the District Collector, Palakkad  granted permission to transfer 1501 acres of land to Abdul Haji  and Kadarshah in favour of late Shri Kumkaran Nair on 23.8.1965.  

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In the said permission, there is reference to the MPPF Act â\200\223  Survey of Forest and alteration granted in respect of 1583.95  acres and that on the application made by Abdul Haji and Kadarshah  permission was granted under Section 3(1)(a) of the said Act and  the rules and regulations made thereunder read with Section 119 of  the States’ Reorganisation Act, 1956 and clause 4(1) of the Kerala  Adoption of Laws Order, 1956 to sell various lands measuring  1583.95 acres in favour of Late Shri Kumaran Nair.  The permission  also indicates that separate permission was to be obtained from  the Collector for felling treas.  It is not disputed that the said  Act applies to the private forests. Previous sanction of the  District Collector was required under Section 3(1) of the said Act  in case an owner of the forest i.e. private forest wished to  alienate any portion of the forest.  The fact that the owners of  the private forest applied to the District Collector seeking  permission to sell the forest land of 1501 acres in favour of Late  Shri Kumaran Nair and that the District Collector granted  permission accordingly under the Act as early as on 23.8.1965 is a  matter of record.  If the lands were not private forests, there  was no question of the owners applying for previous sanction and  at any rate District Collector granting permission under Section  3(1)(a) of the Act did not arise.  If the lands were not private  forests, the District Collector ought to have refused permission  as rightly observed by the High Court.   The Taluk Land Board  committed a serious error both on facts and in law in holding that  the respondents failed to prove that the lands in question were  private forests.  As per Section 81(1)(d), private forests are  exempted in reckoning or determining the ceiling area of a holder  of the lands.  Although material was placed before the Board to  show that the forest lands were converted into plantation before  1.1.1970, the Taluk Land Board rejected the plea of the  respondents as to the conversion into plantations before 1.1.1970.  Under Section 81(1)(d)&(e), both private forests and plantations  are exempted. Assuming that the respondents failed to establish  that the forest lands were not converted into plantation before  1.1.1970,  yet  it did not affect their claim for exemption as the  lands continued to be private forests.  It is not the case of the  appellants that the exempted category of lands were converted into  non-exempted category of lands so as to apply Section 87 of the  Act.  It is not the case where exemption available to private  forest ceased.  For the purpose of reckoning the ceiling area of  the holder of the lands, the position existing as on 1.4.1964 is  to be taken into consideration subject to Section 87 of the Act.   The Kerala High Court has considered this aspect of the matter in  earlier decisions.  In Aleykutty John v. Taluk Land Board [1981  KLT 731] in paras 7 and 8 of the said judgment, it is held thus:-

"7.     S.82(4) states that where after the commencement  of this Act, any class of land specified in Schedule  II has been converted into any other class of land  specified in that Schedule or into a plantation, the  extent of land liable to be surrendered by a person  owning or holding such land shall be determined  without taking into consideration such conversion.   The date of the commencement of the Act for the  purpose of S. 84 is undoubtedly 1.4.1964.  This has  been made clear by this Court in Ramunni Nair v. The  State of Kerala (1976 K.L.T. 732) and by the Supreme  Court in Mathew & Others v. Taluk Land Board  (1979  KLT. 601).  The date of the commencement of the Act  i.e. 1.4.1964 is significant in two ways; that is, the  nature of the land on a particular day and the  conversion after that day.  S. 82(4) will be attracted  only if the land was of the nature specified in  Schedule II on 1.4.1964.  Again, only where the

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conversion was made after 1.4.1964, this provision  will be attracted.  In other words, the meaning of  this provision would be clearly brought out if we read  the provision in the following way:

"Where any class of land of the nature specified in  Schedule II at the commencement of the Act i.e. on  1.4.1964 has been, after the commencement of this Act,  i.e. 1.4.1964, converted into any other class of land  specified in that schedule or into a plantation, the  extent of land liable to be surrendered by a person  owning or holding such land shall be determined  without taking into consideration such conversion."

If the provision is read in the above manner, it will  bring out correctly the legislative meaning.  The time  element is relevant vis-a-vis conversion as well as  the nature of the property prior to conversion.  On  1.4.1964 the land must be of the class specified in  Schedule II.  After 1.4.1964 it must be converted into  any other class of land specified in Schedule II or a  plantation. It is only where both these conditions are  satisfied that the operation of the provision would be  attracted.  If one of these conditions is not  satisfied, the provision will not have any operation  at all.

8.      The above proposition can be explained in the  following way. One of the conditions is that the  conversion must be after the commencement of the Act,  viz. 1.4.1964.  Of course, if the conversion is after  1.1.1970, this provision will not be applicable though  under the general scheme of Chapter III such a  conversion will have to be ignored or in appropriate  cases it may attract the operation of S. 87 of the  Act.  Then there is the other condition; the land must  be a class of land specified in Schedule II on  1.4.1964.  If the land was a house site on 1.4.1964  and ceased to be house site and has become dry land  thereafter, this condition is not fulfilled and  S.82(4) will not be attracted.  If the land was  plantation on 1.4.1964 and has been converted into dry  land or cocoanut garden thereafter (but before  1.1.70), this condition is not fulfilled.  That is  because on 1.4.1964 the land was not of the class  specified in Schedule II.  If this be the proper way  to understand the scope of S. 82(4), and I have no  doubt that it is so, it would follow that whenever it  is found that land is exempt by reason of its falling  within one or the other of the clauses in S.81(1) of  the Act (I am not taking into consideration clauses  (b), (h) and (k) which are not permanent exemptions or  which are only exemptions of a temporary nature) it  cannot be taken into account for the purpose of  determining the ceiling area under Section 85 whatever  may have happened to its nature after 1.4.1964 and  before 1.1.1970 and even thereafter, subject of course  to S.87.  In this view, the fact that land which was  private forest on 1.4.1969 has been converted into dry  land in 1965 and thereafter into plantation in 1969  will not matter at all and the land continues to be  exempted for the purpose of S.85 of the Act."                  The same High Court yet in another case in Joseph Thomas v.  State of Kerala [1987 (2) KLT 273] has taken the view that "On a

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plain reading of S.81, it is clear that "Private Forests" belong  to that category of land which enjoys the exemption without any  restriction.  If that be so, ’private forest’ converted into  rubber plantation, although the conversion took place after  1.4.1964, requires to be excluded from the accounts of the  declarant because the land converted belongs to the category of  lands permanently exempted from the purview of the ceiling  provisions contained in KLR Act."

       Thus, this being the legal position, in the absence of any  material that private forests were converted into non-exempted  category of lands, it was not permissible to the Taluk Land Board  to deny the benefit of exemption claimed by the respondents.   Hence, the High Court was right in upsetting the order of the  Taluk Land Board.

       The alternative argument advanced on behalf of the  appellants that the lands in question vested in the State by  virtue of the provisions of the Kerala Private Forests (Vesting  and Assignment) Act, 1971 does not help the appellants as on this  front also the State had failed in the proceedings taken up under  the said Act.  The Forest Tribunal by its order dated 21.7.1978 in  O.A. Nos. 81/1986, 82/1976, 83/1976 and 84/1976 had held that the  land did not vest in the Government except some rocky and other  portions stated in the said order.  Appeal filed before the High  Court by the State of Kerala challenging the said order of the  Forest Tribunal was also dismissed. Further, even the S.L.P. filed  in this regard against the order of the High Court passed in the  appeal was dismissed.  In this view, the argument that the lands  in question vested in the State cannot be accepted.  

What remains to be considered is whether the High Court  committed an error of jurisdiction in passing the impugned order  when the Taluk Land Board did not consider the question of law  erroneously or failed to consider any question of law.  From the  facts found and looking to the provisions of law and the  discussion made in the impugned order of the High Court, it is  clear that the Taluk Land Board decided the question of law  erroneously in taking the view that the benefit of exemption  available to private forests could be denied on account of non- conversion of those lands into plantation before 1.1.1970.  As  already discussed above, denying the benefit of exemption of the  lands being private forests when they were not converted into  category of non-exempted lands was a clear case of deciding the  question of law erroneously.  This apart, as held by this Court in  dealing with the scope of the provision of Section 103 of the Act  in Baby vs. Travancore Devaswom Board and Ors. [1998 (8) SCC 310],  the High Court had powers under Article 227 of the Constitution of  India to quash the orders passed by the Tribunals if the findings  of fact had been arrived at by non-consideration of the relevant  and material documents.  Para 6 of the said judgment reads:

"But that, in our opinion, is not the end of the  matter.  The High Court had still powers under Article  227 of the Constitution of India to quash the orders  passed by the tribunals if the findings of fact had  been arrived at by non-consideration of the relevant  and material documents the consideration of which  could have led to an opposite conclusion.  This power  of the High Court under the Constitution of India is  always in addition to the powers of revision under  Section 103 of the Act. In that view of the matter,  the High Court rightly set aside the orders of the  tribunals.  We do not, therefore, interfere under  Article 136 of the Constitution of India.  The appeals

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fail and are dismissed."

       The decision of this Court in Kerala Ayurveda Vydyasala Ltd.  Vs. Pandara Valappil Kallianai & Anr. [1999 (3) SCC 238] on which  reliance is placed on behalf of the appellants in support of their  contention as to the limited jurisdiction of the High Court under  Section 103 of the Act, in our view, does not help them.  The said  decision was on the facts of that case.  That was a case where the  learned Single Judge of the High Court did not record a finding  that the Tribunal or the appellate authority has either decided a  question of law or has failed to decide the question of law.  But  a perusal of the impugned judgment in the present case shows that  the High Court has recorded that the Taluk Land Board decided the  question of law erroneously.  Even otherwise, in the light of the  decision in Baby vs. Travancore Devaswom Board and Ors. (supra)  the High Court could exercise powers under Section Article 227 of  the Constitution of India.

       Having regard to all aspects and in the light of what is  stated above, we decline to interfere with the impugned orders.  Consequently, the appeals are dismissed.  Parties to bear their  costs.