Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.9912 OF 2010
State of Kerala & Anr. ….Appellant(s)
VERSUS
Joseph & Anr. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed against the final judgment
and order dated 03.12.2007 passed by the High
Court of Kerala at Ernakulam in M.F.A. No.137 of
1989 whereby the High Court dismissed the appeal
filed by the appellants herein.
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.09.27
15:58:09 IST
Reason:
1
2) In order to appreciate the short controversy
involved in the appeal, it is necessary to set out few
facts hereinbelow.
3) The appellant is the State of Kerala. It was the
appellant before the High Court whereas the
respondents herein were the respondents in the
appeal out of which this civil appeal arises.
4) The respondents herein are the owners of 14
acres of land situated in Thenkara Village of
Mannarghat Taluk in Kerala. This 14 acres land was
part of 47.35 acres of total land, which was
purchased jointly by the family members of the
respondents in the name of the respondents, their
father and uncles.
5) It is the case of the respondents that there
existed rubber plantation on this land. In addition,
the respondents are also the purchaser of the land,
planted Teak and other trees on the land. It is also
2
the case of the respondents that a partition amongst
their family members took place as a result of which
out of 47.35 acres of land, 23.5 acres of land was
allotted to the respondents and their father.
6) A question arose as to whether the said 14 acres
of land out of 23.5 acres stood vested in the State by
virtue of the provisions of the Kerala Private Forests
(Vesting and Assignment) Act, 1971 (hereinafter
referred to as "the Act" ) or not. Since there was also
a dispute as to whether the respondents had a right
to remain or/and to claim their lawful possession on
14 acres of land, the respondents filed an application
under Section 8 of the Act before the Forest Tribunal
and sought exemption of the said land from the
provisions of the Act as provided therein.
7) Section 2 (a) of the Act defines the "appointed
th
day" to mean the 10 day of May,1971. "Owner" in
relation to a private forest is defined in Section 2(c) to
3
include therein a mortgagee, lessee or other person
having a right to possession and enjoyment of the
private forest. Section 2 (f) defines the term "private
forest" to mean:
“2. ( f )(1) in relation to the Malabar District
referred to in subsection (2) of Section 5 of
the States Reorganisation Act, 1956 (Central
Act 37 of 1956),—
( i ) any land to which the Madras Preservation
of Private Forests Act, 1949 (Madras Act 27
of 1949), applied immediately before the
appointed day excluding—
(A) lands which are gardens or nilams as
defined in the Kerala Land Reforms Act, 1963
(1 of 1964);
(B) lands which are used principally for the
cultivation of tea, coffee, cocoa, rubber,
cardamom or cinnamon and lands used for
any purpose ancillary to the cultivation of
such crops or for the preparation of same for
the market.
Explanation .—Lands used for the
construction of office buildings, godowns,
factories, quarters for workmen, hospitals,
schools and playgrounds shall be deemed to
be lands used for purposes ancillary to the
cultivation of such crops;
4
(C) lands which are principally cultivated
with cashew or other fruitbearing trees or
are principally cultivated with any other
agricultural crop; and
(D) sites of buildings and lands appurtenant
to, and necessary for the convenient
enjoyment or use of, such buildings;
( ii ) any forest not owned by the Government,
to which the Madras Preservation of Private
Forests Act, 1949, did not apply, including
waste lands which are enclaves within
wooded areas.
(2) in relation to the remaining areas in the
State of Kerala, any forest not owned by the
Government, including waste lands which are
enclaves within wooded areas.”
8) Similarly Section 3 of The Act, which is also
relevant for disposal of this appeal, reads as under:
“3. Private forests to vest in Government (1)
Notwithstanding anything contained in any
other law for the time being in force, or in
any contract or other document but subject
to the provisions of subsections(2) and (3),
with effect on and from the appointed day,
the ownership and possession of all private
forests in the State of Kerala shall by virtue
of this Act, stand transferred to and vested in
the Government free from all encumberances,
and the right, title and interest of the owner
or any other person in any private forest
shall stand extinguished.
5
(2) Nothing contained in subsection(1)
shall apply in respect of so much extent of
land comprised in private forests held by an
owner under his personal cultivation as is
within the ceiling limit applicable to him
under the Kerala Land Reforms Act, 1963(1
of 1964) or any building or structure standing
thereon or appurtenant thereto.
ExplanationFor the purposes of this sub
section, “cultivation” includes cultivation of
trees or plants of any species.
(3) Nothing contained in subsection(1)
shall apply in respect of so much extent of
private forests held by an owner under a valid
registered document of title executed before
the appointed day and intended for
cultivation by him, which together with other
lands held by him to which Chapter III of the
Kerala Land Reforms Act, 1963, is applicable,
does not exceed the extent of the ceiling are
applicable to him under Section 82 of the
said Act.
(4) Notwithstanding anything contained in
the Kerala Land Reforms Act, 1963, private
forests shall, for the purposes of sub
section(2) or subsection(3), be deemed to be
lands to which Chapter III of the said Act is
applicable and for the purposes of calculating
the ceiling limit applicable to an owner,
private forests shall be deemed to be “other
dry lands” specified in Schedule II to the said
Act.”
6
9) The question that arose for consideration before
the Forest Tribunal was whether the respondents’
case falls under Section 3(3) of the Act so as to entitle
them to claim exemption of their land measuring 14
acres from its vesting in the State as provided under
the Act and the other question was what is the true
meaning of the expression “intended for cultivation
by him” occurring in subsection (3) of Section 3 of
the Act.
10) The Tribunal, by order dated 21.02.1979,
allowed the respondents’ application and granted the
exemption as claimed by them in relation to their 14
acres of land. It was held that firstly, the respondents
acquired the right, title and interest on the land on
the strength of the registered documents executed
prior to 10.05.1971 in their favour; Secondly, the
respondents acquired the land with the intention to
personally cultivate; Thirdly, the respondents had
7
planted rubber plantation in 3½ acres of land and
also cultivated coconut, pepper and coffee in one
acre; Fourthly, this was the only land of the
members of the respondents’ family which was being
used by them for their personal cultivation to earn
livelihood; Fifthly, the other members of family were
also using their share in the land for doing rubber
plantation; Sixthly, the respondents owned only the
land in question which falls within the ceiling limits;
and lastly, though the respondents’ scheduled
property is a private forest as defined under the Act,
yet in the light of seven findings, the land in question
is not liable to be vested in the Government by virtue
of exemption available under Section 3(3) of the Act.
In other words, it was held that the respondents were
able to make out a case on facts as contemplated
under Section 3(3) of the Act. The Tribunal therefore,
declared the land in question as exempted from being
8
vested in the State. As a consequence thereof, the
respondents were allowed to retain the land in
question for their personal cultivation.
11) The State felt aggrieved and filed review petition
before the Tribunal under Section 8B of the Act. By
order dated 24.08.1988, the review petition was
dismissed. The State then filed an appeal in the High
Court of Kerala. By order dated 16.11.1999, the High
Court allowed the appeal and set aside the main
order dated 21.02.1979 passed by the Tribunal.
12) As a result, the respondents’ application filed
under Section 8B of the Act was dismissed. The
respondents felt aggrieved and filed appeal in this
Court by way of special leave being Civil Appeal Nos.
806162 of 2001 ( Joseph & Anr. vs. State of Kerala
(2007) 10 SCC 414.
& Anr.,
13) By order dated 10.05.2007, this Court after
interpreting the relevant provisions of the Act allowed
9
the respondents’ appeals and while setting aside the
order of the High Court remitted the matter to the
High Court for its fresh consideration. (See – (2007)
10 SCC 414).
14) This Court in Paras 18 and 19 made the
following observations:
“18. Several questions arose for
consideration before the High Court. The
High Court indisputably had a limited role to
play. We, as at present advised, are not
inclined to accept the submission of Mr Iyer
that subsections (2) and (3) of Section 3 of
the 1971 Act would operate in the same field.
In our opinion, both operate in different
fields. However, on a plain reading of the
impugned order passed by the High Court, we
are of the opinion that the High Court was
not correct in its view in regard to its
construction of Section 3(3) of the 1971 Act.
The Tribunal, while exercising its power
under Section 8 of the 1971 Act, had taken
into consideration the question which arose
before it viz. as to whether the appellants
herein had intention to cultivate the land on
the appointed day. Appointed day having
been defined in the 1971 Act, the relevant
aspect was the situation as it existed on that
day i.e. on 1051971. For the purpose of
attracting subsection (3) of Section 3 of the
1971 Act, it was not necessary that the
entire area should have been cultivated for
10
arriving at a decision as to whether the
owner of the land had the intention to
cultivate or not. Also, it was required to be
considered having regard to the activities
carried on by the owner from the day of
purchase till the appointed day. For the said
purpose, subsequent conduct of the owner of
the land was also relevant. Development of
the land by plantation of rubber plants is not
in dispute. The Explanation appended to
Section 3(2) of the 1971 Act clearly suggests
that cultivation would include cultivation of
trees or plants of any species. Intention to
cultivate by the owner of the land, we think,
has to be gathered not only in regard to the
fact situation obtaining at a particular time
but also with regard to the subsequent
conduct of the parties. If the activity in
regard to cultivation of land or development
thereof is systematic and not sporadic, the
same also may give an idea as to whether the
owner intended to cultivate the land. The
words “intend to cultivate” clearly signify
that on the date of vesting the land in
question had not actually been cultivated in
its entirety but the purchaser had the
intention of doing so. Such intention on the
part of the purchaser can be gathered from
his conduct in regard to the development of
land for making it fit for cultivation
preceding to and subsequent to the date of
vesting.
19. The High Court, in our opinion, was not
correct in opining that for applying Section
3(3) of the 1971 Act, the cultivation of the
property subsequent to the vesting cannot be
taken into account. The High Court also was
not correct in arriving at a finding that there
had been no evidence whatsoever that the
11
owners intended to cultivate the land prior to
1051971. As the provision contained in sub
section (3) of Section 3 of the 1971 Act
clearly provides for exclusion of the
operation of subsection (1) thereof, the same
has to be construed liberally. So construed,
the conduct of the parties was a relevant
fact. The High Court, in our opinion,
therefore was not correct in ignoring the
findings of the Tribunal. Also, the High Court
should bestow its attention to the findings
arrived at by the Tribunal having regard to
the limited nature of the scope and ambit of
appeal in terms of Section 8A of the 1971
Act and, particularly, in view of the fact that
the order dated 2121979 had not been
appealed against.”
15) The matter was accordingly heard by the High
Court after remand with a view to find out as to
whether the findings recorded by the Tribunal are in
conformity with the law laid down by this Court in
(supra). By impugned order, the
Joseph’s case
State's appeal was dismissed by the High Court
which gives rise to filing of this appeal by way of
special leave in this Court by the State.
12
16) Heard Mr. K.N. Balgopal, learned senior counsel
for the appellants and Mr. R. Basant, learned senior
counsel for the respondents.
17) Learned senior counsel for the appellant (State)
mainly urged one point. It was his submission that
the case of the respondents (landowners) does not fall
under Section 3 (3) of the Act and, therefore, the
Tribunal and the High Court were not right in
granting exemption to the respondents from vesting
of their land in question in the State.
18) In other words, the submission of the learned
counsel was that the respondents’ land being a
“private forest" stood declared vested in the State in
accordance with the provisions of the ceiling law and
the Act on an appointed day and hence the
respondents were not entitled to get any benefit of
exemption by taking recourse to Section 3(3) of the
Act.
13
19) Learned counsel elaborated this submission
with reference to the actual findings of the Tribunal
in the context of the wording of Section 3 (3) of the
Act and especially the expression “intended for
cultivation by him” occurring in subsection (3) and
contended that the facts found by the Tribunal do not
satisfy the expression “intended for cultivation by the
landowners” and, therefore, no reliance could be
placed by the respondents on Section 3(3) of the Act
for claiming an exemption for their land from being
vested in the State.
20) In reply, learned counsel for the respondents
supported the impugned order and contended that it
does not call for any interference.
21) Having heard the learned counsel for the parties
and on perusal of the record of the case, we find no
merit in this appeal.
14
22) In our opinion, the question as to what is true
interpretation of the relevant provisions of the Act
and especially Section 3(3) and the other question
regarding holding of the land and its intended use by
the respondents stand already decided by this Court
in the earlier round of litigation in its order dated
10.05.2007 in Paras 18 and 19 quoted above. The
State cannot, therefore, be allowed to raise the same
plea again in the second round of litigation after
remand. This Court in paras 18 and 19 explained
the object and purpose of Section 3(3) of the Act and
then holding that such provision has to be construed
liberally examined the facts of this very case and set
aside the order of the High Court in the earlier round
of litigation. The remand of the case to the High
Court was to examine the issue in the light of
interpretation made by this Court.
15
23) That apart, in our view, the Tribunal has
recorded seven findings of fact as set out above in
para 10 while allowing the respondents’ application
filed under Section 8 and the same were not
interfered with by the High Court.
24) In our opinion, all the seven findings are
otherwise found to be based on documentary
evidence filed by the respondents and the same were
properly appreciated by the Tribunal keeping in view
the two requirements of subsection(3) of Section 3 of
the Act, namely, that the title was derived by the
respondents in relation to the land in question prior
to the appointed day, i.e.,10.05.1971 and second, the
land in question was found in actual use by the
respondents for their personal cultivation even prior
to the appointed day.
25) In the light of these two findings recorded by the
Tribunal on facts and upheld by the High Court in
16
the impugned order after remand, which were not
found perverse or against any evidence or illegal in
any way, we do not find any ground to interfere in the
impugned order.
26) The appeal thus fails and is accordingly
dismissed.
………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[S. ABDUL NAZEER]
New Delhi;
September 25, 2018
17