of Kerala & Ors Vs. K.Sarojini Amma &
Ors  Insc 519 (14
V. Patil & D.M.Dharmadhikari. Shivaraj V. Patil J.
Appeal (civil) 324 of 1998 State of Kerala & Ors.Ookamputhan
Veettil Vakkachan & Ors.
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.
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 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.
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.
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
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) – "Private
forest" means a forest which is not owned by the government, but does not
which are waste and are not enclaves within wooded areas;
which are gardens or nilams;
which are planted with tea, coffee, cocoa, rubber, cardamom or cinnamon; and
areas which are cultivated with pepper, arecanut, coconut, cashew or other
fruit-bearing trees or are cultivated with any other agricultural crop;"
81 – Exemptions – (1) The provisions of this Chapter shall not apply to –
83 – "No person to hold land in excess of the ceiling area – 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."
87 – "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.
I – 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.
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 – "Revision by High
Court – (1)(i)...................................
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.
........................" 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 – (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.
Any alienation in contravention of clause (a) shall be null and void – (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;
[.......] (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) – (i) any land which the Madras Preservation of
Private Forest Act, 1949 (Madras Act XXVII of 1949) applied immediately before the
appointed day excluding – (A) land which are gardens or nilams as defined in
the Kerala Land Reforms Act, 1963 (1 of 1964).
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.
81 and 82 of the Act appearing in Chapter III came 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
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.
High Court upset the order passed by the Taluk Land Board observing thus:
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.
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
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.
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.
said permission, there is reference to the MPPF Act – 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.
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.
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.
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 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
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.
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.
of Kerala [1987 (2) KLT 273] has taken the view that "On a 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 High Court was right in upsetting the order of the Taluk Land Board.
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
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:
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 fail and are
dismissed." The decision of this Court in Kerala Ayurveda Vydyasala Ltd.
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.
regard to all aspects and in the light of what is stated above, we decline to
interfere with the impugned orders.
the appeals are dismissed. Parties to bear their costs.