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CASE NO.: Appeal (civil)  7111 of 1999

PETITIONER: State of  Kerala and Anr.

RESPONDENT: M/s Popular Estates and Anr.

DATE OF JUDGMENT: 04/11/2004

BENCH: Shivaraj V. Patil & B. N. Srikrishna

JUDGMENT: J U D G M E N T

SRIKRISHNA, J.

       This appeal by special leave impugns the judgment of the Division  Bench of the Kerala High Court dated 7.4.1994.  The High Court by its  impugned judgment set aside the judgment of the Forest Tribunal and  directed the Custodian & Conservator of Vested Forests to hand over  possession of a large area of land to the respondents.

       The respondents claim to be owners of 1534.40 acres of land   comprising  265.85 acres of cardamom plantation, 334.85 acres of paddy  field and 585.90 acres of cultivable dry land and forest land. They claim that  these lands were purchased by M/s Popular Automobiles, a registered firm,  by registered deeds alleged to have been executed in the year 1963 and  further that these lands were given to them upon partition of the assets of the  said firm. The Kerala Private Forests (Vesting and Assignment) Act, 1971  (hereinafter referred to as ’the Act’) came into force with effect from  10.5.1971.  Under Section 3 of the Act, all private forests stand vested in the  State Government.  The Act was challenged before the Kerala High Court  and was struck down as unconstitutional by the judgment delivered  sometime in 1972.  The judgment of the High Court was reversed by this  Court’s Order dated  15.9.1973 holding that the Act was a valid piece of   Legislation.

       After the Act was upheld by the Supreme Court, the forest authorities  attempted to take possession of large areas of land in the occupation of the  respondents on the ground that they were private forests which had vested in  the State Government under Section 3 of the Act.  The respondents moved  two Original Applications Nos. 242 and 243 of 1974 before the Forest  Tribunal under Section 8 of the Act.  The substantive prayer made therein  was for a declaration that no part of the estate comprising 1534.40 acres was  liable to vest in the State as it was exempted under the provisions of the Act  from vesting.  The applications were opposed by the State Government,  which disputed the facts alleged in the applications.  The Forest Tribunal  appointed a Commissioner to inspect the entire area and report about the  state of the land to the Tribunal.  The Commissioner after a preliminary  inspection was of the view that a detailed survey of the land was necessary  as most of the land was situated on hills hence inaccessible.  Private  surveyors were appointed to carry out the survey but they could not  complete the work. On the directions issued by the Forest Tribunal, the  Forest Survey Department officers were directed to carry out the survey of  the land in question.  After considering the report of the departmental  Surveyors and hearing the parties, the Tribunal dismissed Original  Applications Nos. 242 and 243 of 1974 after making critical comments   about the manner in which the surveyors had made the report and observed:  

"What exactly is the evidence on the basis of which the

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petitioners were able to convince those responsible for  demarcating the undeveloped areas that all plants  whether coffee or cardamom found in the property were  raised before the appointed day as stated by the  Commissioner is not known. Anyhow no such evidence  has been adduced before this Tribunal. But in view of  the fact that the claims has now been confined to 100  hectares on behalf of the respondents, it is not necessary  for me to consider whether the area which was  originally claimed as vested forest by the respondents  over and above the 100 hectares and which has been  excluded subsequently at the time of the demarcation  was really area which has to be excluded or not."

and further,  

"This exclusion by the forest officials, may be due to the  fact that the magic money lulled them to sleep over the  rights of the Government or may be due to the fact that  the claim originally put forward by the forest officials  was false.  Neither way it is not very complimentary to  the respondents here or to those officials concerned.  It  is for the Government to make necessary immediate  enquiry in this matter through some official, other than  Forest Department official, if the Government so think  and ascertain whether any area which legitimately come  under the classification of private forest and which had  vested in the Government besides bits 1 to 7 have been  excluded by the Forest officials or by the forest survey  officials.  On the basis of the Commissioner’s report and  the facts mentioned by him, I am inclined to think that  prima facie it appears that areas which should really be  vested forest have been excluded, when the claim was  confined to 100 hectares."

       Pursuant to the orders of the Forest Tribunal, when the forest  authorities attempted to take possession of the land, the respondents filed  Suit Nos. 69 and 71 of 1987 before the Munsiff’s Court, Hosdurg seeking  permanent injunction against the State from taking possession.  Though,  initially, the Munsiff’s Court  refused to register the plaint on the ground that  their suits were not maintainable, subsequently, the suits came to be  entertained on the orders passed by the High Court in a civil revision petition  filed by the respondents.   

On 22.7.1987 when the two suits of the Respondents were pending,  the Custodian & Conservator of Vested Forests issued a notification under  Section 6 of the Act demarcating 324 hectares of land belonging to the  plaintiff-respondent as vested forests under the Act. This notification was  challenged before the High Court of Kerala in O.P. No. 7498 of 1987. The  two Civil Suits 69 and 71 of 1987 were withdrawn by the respondents.  The  original petition filed before the High Court was dismissed on the ground  that the respondents had alternate remedy available before the Forest  Tribunal.

       The respondents filed Original Applications Nos. 28 and 29 of 1988  before the Forest Tribunal under Section 8 of the Act seeking a declaration  that the property covered by the applications was not private forest vested in  the State Government.  Simultaneously, the respondents also filed a writ  appeal against the order dismissing O.P. No. 7498 of 1987.  The writ appeal  was admitted subject to the condition that the respondents withdrew their  original applications pending before the Forest Tribunal.  The original  applications before the Forest Tribunal were withdrawn, later, the writ  appeal was also dismissed directing the respondents to approach the Forest  Tribunal for appropriate relief.

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The respondents filed Original Applications Nos. 166 and 167 of 1990  before the Forest Tribunal challenging the jurisdiction of the State  Government to issue the notification after a long lapse of time. The  respondents also filed Civil Appeal No. 200 of 1991 in this Court, which  was disposed of by Order dated 11.1.1991 as follows:  

"In view of this, the impugned order is set aside and the  appellants are given liberty to file an application to the  Tribunal within one month from today or to proceed  with the application they have already filed before the  Tribunal.  The appellants agree to confine the  application which has already made to the Tribunal to  challenging the validity of the said notification on the  grounds set out in the writ petition filed in the High  Court.  In the event of the Tribunal coming to the  conclusion that it has no jurisdiction to entertain the  dispute, the appellants will be at liberty to file an appeal  and or a writ petition to the High Court to challenge the  said notification but only on the said grounds.  The  interim orders passed by the High Court shall continue  to operate till the Tribunal decides the application of the  appellants and for a period of two weeks thereafter, it  will be for the High Court to pass such orders as it may  think fit.  The  Tribunal to dispose of the aforesaid  application within a period of six months from receiving  this order. The  Registry to transmit a copy of this order  as early as possible.  In order to challenge the said  notification and limit the grounds of challenge as  aforesaid the appellants will be at liberty to amend the  application which he has made to the Tribunal.  The  condition imposed by the High Court on the appellants  in its orders dated 13th February, 1989, and 29th  September, 1989 respectively shall continue to operate.   The appeal is disposed as aforestated. No order as to  costs."

       Pursuant to the liberty given by this Court, the respondents amended  their original applications pending before the Forest Tribunal and also filed  a writ petition O.P. No. 4751 of 1993 before the High Court challenging the  validity of the notification dated 22.7.1987 issued by the Custodian &  Conservator of  Vested Forests.  By an Order made on 30.10.1992, the  Forest Tribunal dismissed Original Applications Nos. 166 and 167 of 1990  holding that by its earlier order it had only dealt with the status of 100  hectares of the land and, therefore, with regard to rest of the land the State  Government had power to issue a fresh notification. The respondents  challenged this judgment of the Forest Tribunal by their appeal M.F.A. No.  72 of 1993 before the High Court. By the impugned common judgment  dated 7.4.1994 the High Court allowed M.F.A. No. 72 of 1993 and writ  petition O.P. No. 4751 of 1993. The High Court held as valid the  notification only in respect of 100 hectares of vested forest and held it to be  invalid vis-‘-vis the rest of the land.  The High Court also directed the  Custodian of Vested Forests to demarcate the boundaries of this extent of  156 acres (100 hectares) under Section 6 of the Act and restore possession  of the remaining extent of the properties to the respondents.  The State being  aggrieved is in appeal before us.  

       We notice from the impugned judgment of the High Court that the  High Court has proceeded on the basis of the Order made by the Taluk Land  Board in the land ceiling case pertaining to the respondents would amount to  res judicata.  We may mention here that the respondents had filed a draft  statement under the provisions of the Kerala Land Reforms Act, 1963.  Section 81 of this Act inter alia  exempts private forests and plantations.   Rule 10 of the Kerala Land Reforms (Ceiling) Rules, 1970 prescribes that  the Taluk Land Board is to prepare a draft statement of lands to be

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surrendered and a copy thereof is to be served on the persons interested in  the lands.  In the draft statement prepared by the Taluk Land Board, the  respondents were shown to hold an extent of 1576-73-257 acres of land of  which 1537-25-645 acres fell under the exempted category, and that the  respondents were eligible to retain the balance extent within the ceiling area.  The Taluk Land Board came to the conclusion that there was no surplus  land to be surrendered to the State.  Though, the State Government did not  file any proceedings to challenge the declaration made by the Taluk Land  Board, proceedings under Section 85(9A) of the Kerala Land Reforms Act,  1963 had been initiated for reopening the final order by a notice dated  18.5.1992.  That notice was challenged by  the respondents by their civil  revision petition C.R.P. No. 1409 of 1992 before the Kerala High Court and  further proceedings have been stayed.  

       Learned counsel for the State Government urged before us that there  were strong circumstances which impelled the State Government to reopen  the determination of the ceiling case pertaining to the respondents. Since the  matter is sub judice before the High Court, any determination made therein  could not be treated as res judicata.   

In our view, the appellants are justified in their contention that the  Taluk Land Board determination could not operate as res judicata for two  reasons. In the first place,  the decision of the Taluk Land Board has been  reopened by the proceedings under Section 85(9A) of the Kerala Land  Reforms Act, 1963 and it is only because of the challenge thereto made by  the respondents that further proceedings have been stayed by the High  Court.  Thus, it is not possible to say that the decision of the Taluk Land  Board had become final.  Secondly, the Taluk Land Board was only  concerned with the issue as to whether the lands held by the respondents  were liable to be exempted from the ceiling limits.  As long as the land fell  into one of the exempted categories, the Board was not concerned with the  exact category under which the land fell since both private forest and  plantation are exempted categories. Apart from the determination of the  extent of the exempted land, the Board was strictly not required to go into  the question as to whether the land was plantation or private forest. For both  these reasons, we are unable to accept that the decision of the Taluk Land  Board could operate as res judicata and prejudiced the rights of the State  Government before the Forest Tribunal. In any event, this question is no  longer res integra. As held in  Kunjanam Antony v.  State of Kerala and  Anr.   the order of the Taluka Land Board, though a statutory authority,  may be binding on the authorities under the Land Reforms Act; so far as  the  proceedings under the Kerala Private Forests (Vesting and Assignment) Act,  1971 are concerned, the order of the Taluka Land Board would be a piece of  evidence, but it cannot be treated as binding on the authorities under the  Forest Act.   

Learned counsel for the respondents produced before us copies of  registered deeds and contended that these formed the title deeds by which  the respondents’ predecessor in title had purchased the land, way back, in  the year 1963. He attempted to support the reasoning of the High Court in  its judgment that there was an admission on the part of the State  Government and its officers that only 155.90 acres was forest.  We are  unable to accept these contentions urged by the learned counsel for the  respondents. The Scheme of the Act is that upon the Act coming into force,  all private forests would vest in the State Government. The demarcation of  the forests under Section 6 of the Act is merely a consequential act and the  vesting is not postponed depending on the said act.  If anyone claims that his  land had not vested in the State Government, Section 8 of the Act gives  remedy of moving the Forest Tribunal with full details.  The Forest Tribunal  would then adjudicate the dispute and decide as to how much of the land  claimed by the applicant was not vested forest.  It is only upon such  determination that the State would be divested of the vested forest.  In the  instant case, the burden of establishing that certain disputed land was not  vested forest rested squarely upon the respondents before the Forest

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Tribunal. The respondents would succeed or fail on the merits of their own  case of showing that the land fell within the exempted category.

In the first round before the Forest Tribunal, the respondents filed  O.A. No. 242 and 243 of 1974 claiming the full extent of 1534.40 acres of  vested land as liable to be exempted from vesting under the provisions of  the Act. The Forest Tribunal by its order dated 15.2.1978  declared 100  hectares of land as vested forest land, but, at the same time, did not grant  any declaration with regard to the rest of the land and dismissed the  applications by making strong observations.

In the second round of litigation before the Forest Tribunal, the Forest  Tribunal has not granted any declaration in favour of the applicants- respondents, but has dismissed the applications by holding that under  Section 8 of the Act it had to be shown before the Forest Tribunal that the  property was not a private forest as on 10.5.1971, or that it was a private  forest but liable to be exempted from vesting under Section 3(2) of the Act.  The Tribunal obeserved:

"\005.the order in OAs. 242/74 and 243/74 was not based  on any admission as contended to be secondly the  decision in OAs. 242/74 and 243/74 was only in respect  of 100 hectares and there was absolutely no decision  regarding the rest of the properties shown in the OAs.   Further after finding that the ’disputed’ 100 hectares  were private forests the petitions were dismissed.  That  means that there was no order against the State and so  there was no question of the State filing an application  for review of the Order."

The Forest Tribunal noted that the petitions did not give a correct  description of the properties in respect  of which the relief was sought,  inasmuch as no schedules were attached, nor the extent or the boundaries of  the properties were given. It was rightly pointed out by the Tribunal that in  an application under Section 8 of the Act, it was for the claimant to prove  that the properties in respect of which relief if sought were not private  forests as defined under the Act. Considering the material on record, the  Tribunal rejected the claim in toto.

In the impugned judgment, the High Court has not been able to make  a finding as to the exact extent of the land or the nature of the land as on the  date of the Act coming into force. Nor has the High Court discussed the  evidence to record a finding that the lands claimed were not private forests  or were exempted as on 10.5.1971. The judgment of the High Court  proceeds, as we have already pointed out, firstly on the footing that there  was a decision on the land in question by the Taluk Land Board which  operates as res judicata, and, secondly, that there was an admission by the  forest authorities before the Forest Tribunal.  In our view, both the reasons  adduced by the impugned judgment for allowing the applications under  Section 8 of the Act are not correct. We notice from the  common Order of  the Forest Tribunal dated 30.10.1992 made in O.A. Nos. 166 and 167 of  1990 that, although, the respondents (applicants before the Forest Tribunal)  had placed on record the title deeds, partition deeds and several other  documents and relied upon them in support of their cases, the land to the  extent described in the said applications did not vest in the State  Government, there is hardly any discussion in the Tribunal’s order with  regard to these facts.  The discussion proceeds mostly on the question as to  whether the Taluk Land Board decision was binding on the Forest Tribunal  and, secondly, as to the effect of the previous orders of the Forest Tribunal.   In the impugned judgment of the High Court also, there is no discussion  with regard to the assessment of the evidence placed on record by the  respondents. Here also, the decision proceeded on the aforesaid legal  contentions. In the result, although valuable time has been lost, no one has  decided the claim of the respondents on the merits of the evidence produced  by the respondents.  In the circumstances, we are of the view that the

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respondents are entitled to another opportunity of satisfying the Forest  Tribunal on the merits of the case.

In the result, we set aside the impugned judgment of the High Court  and restore the Original Applications Nos. 166 and 167 of 1990 before the  Forest Tribunal. We are of the view that the finding of the Forest Tribunal  on the issue of the jurisdiction is correct and needs to be upheld.  There is no  question of the respondents being permitted to challenge the jurisdiction of  the Custodian & Conservator of Vested Forests to issue the notification in  question. The only thing now permitted to be done in the said applications is  to try the applications on merits and decide the claims of the respondents in  accordance with the law in the light of the evidence already led before the  Forest Tribunal.

Since the matter is pendente lite for quite sometime, it is preferable  that the Forest Tribunal decides the two applications O.A. Nos. 166 and 167  of 1990  within a period of eight months from the date of receipt of a copy  of this judgment. The appeal is accordingly allowed.

In the circumstances, there shall be no order as to costs.