State
of Kerala and ANR
Vs. M/S Popular Estates and ANR [2004] Insc 679 (4 November 2004)
Shivaraj V. Patil & B. N.
Srikrishna 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 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.
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 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 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:
".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 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.
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