Full Judgment Text
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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.