Reportable  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8032 OF 2001

Elizabeth Jacob … Appellant(s)

Vs.

District Collector, Idukki & Ors. … Respondent(s)

O R D E R

R.V.RAVEENDRAN, J.

The  Revenue  Divisional  Officer,  Devikulam  (second  respondent

herein), the Authorised Officer and delegate of the District Collector under

the Kerala Revenue Recovery Act,  1968 (in short ‘the Act’) attached the

immovable property (land bearing Survey No.1131 of Peermade measuring

9.39 acres) belonging to Ansari and others under section 36 of the Act, on

9.1.1992, to recover their abkari dues to the state government. The property

was  put  up  for  sale  by public  auction  under  section  49 of  the Act.  The

appellant  was the  successful  bidder in the auction held on 5.6.1998. The

sale was confirmed in her favour on 28.7.1998 under section 54 of the Act.

On payment of the entire consideration of Rs.3,65,500/-  a sale certificate

was issued under section 56 of the Act, on 7.10.1998 (duly registered in the

office of jurisdictional Sub-Registrar on 13.10.1998). In pursuance of such

sale, the property was mutated in the revenue records in the name of the

appellant  and  she  paid  the  tax  due  in  regard  to  the  said  property  on

19.11.1998.  The  sale  was  not  challenged  by  anyone.  It  has  not  been

cancelled by any authority, nor set aside by any court.  

2. As  there  was  some  resistance  when  she  entered  the  property,  the

appellant  applied under section 58 of the Act for delivery of possession.

There was no response from the Collector or the Authorised Officer. On the

other hand, there was an evasive reply dated 7.1.1999 from the Tehsildar,

Peermade,  requesting  the  appellant  to  contact  the  forest  authorities.

Aggrieved by the inaction on the part of the Collector under section 58 of

the Act and the evasive reply, the appellant filed a writ petition before the

Kerala  High  Court  in  OP  No.5297/1999  seeking  a  direction  to  the

respondents to deliver possession of the property purchased by her. When

the  matter  came up for  hearing  before  a  learned  Single  Judge,  the  facts

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alleged by the appellant were neither denied nor disputed. The inaction to

perform the statutory duty under section 58 of  the Act was sought  to be

explained  by  the  respondents  by  submitting  that  the  matter  was  under

verification to find out whether the land sold to the appellant was a forest

land  or  not.  The  learned  Single  Judge  did  not  find  the  explanation

satisfactory. He therefore allowed the petition by order dated 7.4.1999. He

noted that the Revenue authorities had put up the said land to sale by public

auction;  that  the  appellants’  bid  had  been  accepted,  the  sale  had  been

confirmed and a sale certificate had been issued to her under the Act; and

the property had been mutated to her name in the revenue records and she

had paid the  land tax also.  He was of the view that  after  putting up the

property for sale and having received the full consideration of Rs.365500/-,

the State government could not turn round and take a stand that it will not

deliver possession merely on the ground that it had some doubt that the land

may be  a  forest  land.  Therefore,  the  learned  Single  Judge  directed  the

respondents to deliver the possession of the land to the appellant within one

month.  In  pursuance  of  the  said  order  of  the  learned  Single  Judge,

possession  of  the  land  was  duly  delivered  by  the  respondents  to  the

appellant on 9.6.1999 under a mahazar.  

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3. Long after such delivery, the respondents challenged the order of the

learned Single Judge in Writ Appeal No.270 of 2000. In the memorandum

of  appeal,  the  respondents  disclosed  that  the  land  in  question  had  been

assigned by the Revenue department to Kunjumon and three others (in 1981

and 1984) under the Kerala Land Assignment Rules by issuing Pattas; that

the said assignees had sold the land to Ansari and others; that as the said

Ansari and others had committed default  in paying their  akbari  dues, the

land  was  attached  and  brought  to  sale  by  the  revenue  authorities.

Respondents further pleaded that there was a likelihood that land assigned

in favour of Kunjumon and others in 1981 and 1984 was a forest land and

that the same being assigned on account of collusion and fraud by revenue

authorities.  They  submitted  that  if  the  land  was  a  forest  land,  the

assignments would be void and consequently, all subsequent transfers of the

land also would be void. They therefore contended that the learned Single

Judge was not justified in allowing the writ petition without giving the state

sufficient time to verify whether the land was forest land or not.   

4. The Division Bench allowed the appeal by judgment dated 8.8.2000.

It was of the view that the question whether the land was forest land as on

the date when State Government had assigned the land to Kunjumon and

others in 1981 and 1984 had to be decided before the appellant’s claim to

the land could be considered; that in the absence of any material, it was not

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possible to hold that  the land was forest  land or not;  that  if  there was a

dispute as to whether a particular land was a forest land or not, the same

could not be decided either by the Forest Department or by the High Court

in exercise of writ jurisdiction; and that the matter required decision by a

civil court. It therefore set aside the order of the learned Single Judge and

dismissed the writ petition without prejudice to the rights of the appellant to

approach the civil court and establish her title and seek possession of the

property on the strength of such title. Feeling aggrieved, the appellant has

filed this appeal by special leave.  

5. At the outset, it  should be noticed that the issue is not whether the

land is forest land or not. The right of the state government to take action in

accordance  with  law,  if  the  land  is  forest  land  is  not  disputed  by  the

appellant, subject of course to her right to defend her title and possession.

The  limited  question  is  whether  the  Division  Bench  was  justified  in

directing the appellant to approach the civil court and establish that the land

was non- forest land and that she had title thereto and on that basis seek

possession.  The  question  is  whether  the  division  bench  was  justified  in

interfering with the decision of the single Judge.

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6. Admittedly the property was put to sale by the Authorised Officer at

the instance of the state government. The appellant purchased the property

in an auction held by the revenue authorities under the Act. The appellant

paid the entire consideration amount to the state government and obtained a

sale certificate from the state government. The property was mutated in the

name of the appellant. She was entitled in law to seek delivery of possession

if there was any obstruction. Section 58 of the Act provides that when any

lawful purchaser  holding a sale certificate seeks possession, the collector

shall cause the proper process to be issued for the purpose of putting such

purchaser in possession in the same manner as if the immovable property

had been decreed to the purchaser by a decision of civil court and that the

Collector may exercise all  the powers of a civil  court under the Code of

Civil  Procedure, for the purposes of the said section. In spite of the said

mandatory  provision,  the  Collector  failed  to  take  action  when  appellant

claimed delivery of possession. The appellant was therefore constrained to

approach the High Court. Before the learned Single Judge, the respondent’s

explanation for their failure to issue process for delivery of possession was

unsatisfactory. Nothing was produced to show that the land sold to appellant

was a forest land. Nor any steps initiated to annul the sale and return the

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sale consideration to the appellant. In the circumstances, the learned Single

Judge was justified in directing delivery of possession.  

7. The obligation to cause proper process to be issued for putting the

purchaser  in  possession,  when  applied  for  within  one  year  of  the

confirmation  of  sale,  is  a  statutory obligation.  The  duty of  the  collector

under section 58 of Revenue Recovery Act is distinct from the obligation

and duty of the state to protect forest land. If the state government found on

any enquiry or verification that the land was a forest land, it was open to the

state government to take such action as required or permissible under law to

recover possession. All that the learned Single Judge did was to direct that

the respondents to perform their statutory duty under the Kerala Revenue

Recovery Act. Being a bonafide auction purchaser in a revenue recovery

sale, to whom title had been conveyed free from encumbrances by issue of a

sale certificate, there was no need for the appellant to go to a civil court and

establish that the land sold to her was not forest land, that the sale by the

revenue authorities was valid, and therefore she was entitled to possession.

She was entitled to seek remedy under section 58 of the Act for securing

possession. It was for the state government to take necessary action if the

land was forest land.

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8. Let  us  next  examine  whether  there  was  any  material  before  the

Division  Bench  to  reverse  the  decision  of  the  learned  Single  Judge.  No

documents were produced by the respondents to show the land was a forest

land. Respondents had admitted in the memorandum of appeal that the land

in question was assigned by the state government to Kunjumon and others

under the Kerala Land Assignment Rules as per Patta Nos. LA 30/81, 31/81,

277/1984 and 278/1984; that the said assignees had sold the land to Ansari

and others; and that on account the default committed by Ansari and others

to  pay  their  dues  to  the  State  government,  the  land  was  attached  on

9.1.1992. The records also showed that forest department planted some trees

in  the land in  the year 1992 after  the property was attached and that  on

3.11.1994, Tahsildar, Peermade wrote to the forest department to vacate the

land, as it had to be sold by public auction. The forest department did not

initiate any action in regard to the land even thereafter. On the other hand,

the Revenue authorities asserted their possession and put up the land for

sale in 1998 under the provisions of the Act. The appellant purchased the

land in the auction sale and obtained a sale certificate, under which the land

vested in her free from encumbrances. The Division Bench also noticed that

the land had been shown as “government Poramboke” (that is waste land

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belonging to government) in the revenue records at the relevant time and

that the notification under the Forest Act relied upon by the respondents did

not show that the land was forest land. The Division Bench did not record

any finding that the land was a forest land, but on the other hand, held that

that state government had not produced any material to show that the land

was  forest  land  or  part  of  reserved  forest.  It  also  observed  that  as  the

revenue authorities had proceeded on the basis that Ansari and others had

right over the land and as the revenue authorities had sold the land to the

appellant in a revenue auction, the state government could not in the normal

course turn around and say that no rights were acquired by the appellant as

purchaser at the revenue auction.  

9. Having held so, the Division Bench proceeded to allow the appeal on

the  unsupported  surmises  and  inferences.  One  surmise  was  that  it  was

generally known that Revenue authorities used to assign lands by ignoring

the provisions of protective enactments and the public trust doctrine. The

second surmise was that the past experience in the state showed a possibility

that the land assigned in 1981 and 1984 was a forest land and the revenue

authorities colluded with the assignees in assigning the land. The third was

that  therefore  the  appellant  should  approach  the  civil  court  and  seek  a

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declaration that the land purchased by her was not forest land and establish

her title and then obtain possession. Such a direction on surmises alone was

unwarranted. A doubt or surmise is not proof of a fact. A claim that land

may be forest land is not proof that it is forest land. A suspicion that there

might have been collusion and fraud is not proof of collusion and fraud. At

all  events,  who should  establish  fraud  and  collusion?   Is  it  for  the  state

which  alleged  fraud  and  collusion  by  someone  in  1981  and  1984,  to

establish those facts? Or is it for the bonafide purchaser from the state to

establish that there was no fraud or collusion in respect of the property put

up by the State for sale? The onus is clearly on the state. We are therefore of

the  view  that  the  Division  Bench  committed  a  jurisdictional  error  in

interfering with the order of the learned Single Judge.

10. The  issue  before  the  High  Court  was  whether  the  appellant  who

purchased the land  in  a public  auction,  held  by the  State  government  in

1998 under the Revenue Recovery Act, was entitled to possession from the

state government in the manner set out in section 58 of the Act. Even if the

land could be deemed to be a forest land under certain circumstances, the

state should have alleged and proved the existence of those circumstances.

It was for the state government to take action in accordance with law to

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resume  the  land  if  the  land  was  a  forest  land  and  not  for  the  auction

purchaser to approach the civil court.   

11. Another  aspect  to  be  noticed  is  that  the  doubts  about  fraud  and

collusion  are  not  against  the  appellant.  There  is  no  allegation  of  any

misrepresentation, fraud, forgery, collusion or any kind of wrongful conduct

on the part of the appellant. Appellant was a bonafide purchaser for valuable

consideration in a revenue recovery public auction. She did not at the time

of  purchase  know,  or  had  reason  to  believe  that  any  fraud  had  been

committed.  

12. It is of some interest to note that even as on date the state government

is still in the process of verification as to whether the land is forest land or

not. This Court on 6.2.2008 issued the following direction :

“In this appeal, the disputed question of fact is involved with regard to the possession and ownership of the property having an extent of 8.39 acres of land in Survey No.1131 of Peermade Village. The disputed question of fact is whether the said land is a part of a reserve forest. It appears that in this appeal the Forest Department has not been impleaded as a party. We, however, feel that this question can be answered by the Forest Department. We direct the Chief Conservator of Forest, Government of Kerala to file a detailed  affidavit  as  to  whether  the  aforesaid  land  is  within  the  forest reserves or not within six weeks. Two weeks’ thereafter is allowed to file reply. List thereafter.”     

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In response  to  the  said  order,  the  Chief  Conservator  of  Forests  filed his

affidavit dated 2.5.2008 wherein he has given the following status report :

“It  is  submitted  that  the  Divisional  Forest  Officer,  Kottayam  made attempts to verify the status of the land in question through the Forest Mini Survey,  Thiruvananthapuram.  The  Superintendent  of  Survey,  Forest Survey, Thiruvananthapuram, as per his Letter No.223/95 dated 12.4.1996 informed the Divisional Forest Officer, Kottayam that 473 acres and 24 cents  of  land in Sy No.1131 is  Government  Poramboke as  per  village records and that 9 acres, 49 cents of this Poramboke were assigned as per LA No.9/81, 30/81, 27/1984, 277/1984. The Superintendent of Survey also reported that according to the 4” map of Peermade Village, land in Sy No. 1131 is known as “Government Reserve”. He had opined that in order to confirm whether the land in Sy No.1131 is a Reserve Forest and whether the  same  land  has  been  assigned,  perusal  of  files  relating  to  the  land assignment is necessary. However, the Superintendent of Survey was not able  to  procure  the  land  assignment  files  from  the  Village  Office, Peermade,  Taluk  Office,  Peermade  and  office  of  the  Sub  Collector, Devikulam.

It is submitted that Chief Conservator of Forests (Protection) as per his letter No.L-32181/96 dated 25.9.1996 requested the Tahsildar Peermade to make  available  the  Land  Assignment  Files  to  the  Superintendent  of Survey, to solve the issue. However, these files were not made available.”

The said affidavit also avers that the forest department planted some trees in

1992. But that is not decisive. What is relevant is whether the land, when it

was assigned by the revenue department in 1981 and 1984, was forest land.

Further  as  the  land  had  already  been  attached  in  January,  1992  by  the

Revenue department for recovery of dues, any subsequent planting of trees

by forest department will not prove that the land was forest land. In fact the

Tahsildar,  Peermade by letter  dated 3.11.1994 referred to the  planting of

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trees  and called  upon the  forest  department  to  vacate  the land  so that  it

could be sold by public auction. The forest department was aware that the

Revenue department was to sell the land by public auction as long back as

1994 (See Pr. 8 of the Affidavit dated 2.5.2008 of the Chief Conservator).

But it did not take any action.   

13. This case demonstrates, though in a very limited manner, the lack of

co-operation  and  co-ordination  between  government  departments.  All

departments  should  function  in  the  interest  of  the  public  and  for  public

good.  Merely  because  a  particular  department  or  an  authority  functions

under a particular statute, it does not follow that they should or could ignore

the  provisions  of  other  statutes.  Inter-departmental  co-operation  and  co-

ordination  is  vital  for  the  smooth  and  successful  functioning  of  the

Government. But unfortunately there is thriving inter-departmental rivalries

and  a  mutual  non-caring   attitude  towards  the  functioning  of  other

departments  and  enforcement  of  other  statutes.  Non-cooperation  between

Revenue department and Forest department, Revenue department and Mines

&  Minerals  department,  Forest  department  and  Mines  &  Mineral

department,  are too well  known.  Unless  immediate  and serious  steps  are

taken  for  improving  the  co-ordination,  co-operation  and  understanding

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among various departments, offenders will escape, violators will walk away,

national resources will be swindled, and public interest will suffer. Be that

as it may.

14. This  is  a simple case where the revenue department  and the forest

department could have sorted out the issue as to whether the land was forest

land or non-forest government Poramboke. They had all the time between

1992  and  1998.  The  revenue  records  showed  the  land  as  Government

Poramboke that is non-forest land. The forest department’s claim that it is

forest land is not supported any acceptable evidence. We fail to understand

why the forest department cannot examine the revenue registers from time

to time and take action when they came across any forest land being shown

otherwise. Similarly the revenue department and forest department can sort

out and demarcate what is forest land and what is non forest government

land. As noticed above the forest department for the first time attempted to

plant some trees in the land only in 1992 even though it knew that it was

shown as government Poramboke land in the revenue records and not  as

forest land. Similarly, even though the revenue department knew that the

forest department was attempting to plant trees in 1992 and claim that it was

forest  land,  it  chose to put  up the land for auction sale in  1998, without

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sorting out whether the land was forest land or not, and sold the land and

recovered  Rs.365500  from  an  innocent  citizen.  Because  of  the

misunderstanding  and  non-cooperation  between  the  two  departments,  a

citizen who bonafide participated in a public auction and parted with a large

amount of money is made to run from pillar to post.  To add to her woes,

she has been unnecessarily directed to approach the civil court and prove

the negative.

15. As  noticed  above  to  this  day  neither  forest  department  nor  the

revenue department have taken any steps or issued any notice to have the

land declared as a forest land or to annul the sale in favour of the appellant.

Though one of the grievances of the respondents in respect of the order of

the learned Single Judge was that he did not give sufficient time in 1999 to

verify whether  the  land is  a forest  land or  not,  the affidavit  filed by the

forest department in May 2008 in this case shows that the issue still remains

under the process of verification.  

16. One last aspect. It was pointed out that in the normal course, while

allowing  such  a  writ  petition,  the  learned  Single  Judge  ought  to  have

directed the Collector to initiate action under section 58 of the Act, instead

of straightaway directing possession. But there were special circumstances.

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Firstly, the obstruction to possession was not by a private party. Secondly

the land was attached and sold by public auction, at the instance of the state

government.  Thirdly,  without  any proof,  the  state  government  contended

that  it  wanted to verify whether land was forest  land, without  explaining

why then it was sold by public action.  

17. We are clear that there was no justification for the Division Bench to

set aside the order of the learned Single Judge and direct the appellant to

approach the civil court to prove the negative and obtain a declaration of

title and possession. We, therefore, allow this appeal, set aside the order of

the  Division  Bench,  and  restore  the  order  of  the  learned  Single  Judge.

Liberty,  of  course,  is  reserved  to  the  state  government  to  take  action  in

accordance in law if it finds that the land is a forest land.  

……………………….J [R. V. Raveendran]

……………………….J [P. Sathasivam]

New Delhi; August 21, 2008.   

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