IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 M.F.A.No. 359 of 2000 --------------------- Against Order dated 23.12.1999 in O.A.No.88/1998 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT: ----------- K.S. Parameswara Sastrigal, S/o. Late K.P. Subbarama Sastrigal, Sivasailam, Easwar Pattar Madom, Kavassery, Alathur taluk. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.JOJI VARGHESE SRI.M.HARISHARMA SRI.T.P.ELDHOSE RESPONDENTS: ------------- 1. State of Kerala, represented by Chief Secretary, Government of Kerala, Thiruvananthapuram. 2. Custodian of Vested Forests, Aranya Bhavan, Forest Complex, Olavakkod, Palakkad. 3. Gracy Daniel, W/o. Daniel, II/378, Thaikkottathil House, Mudiyoorkonam, Pandalam, Adoor, Pathanamthitta. BY Shri M.P.Prakash, SPL. GOVERNMENT PLEADER FOR FORESTS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. Koshy, A.K.Basheer & K.P.Balachandran, JJ. ------------------------------------------------------------------ M.F.A. No. 359 of 2000 ------------------------------------------------------------------ Dated this the 7th day of March, 2008 Judgment Koshy,J. The only question referred to the Full Bench in this case is as follows: "Whether assignee of the land after transfer can get the benefit of sections 3 (2) or 3 (3) of the Kerala Private Forests (Vesting and Assignment) Act. 1971, if his predecessor-in- interest had any right on the appointed day. " The matter was referred to the Full Bench in view of the observations of the Division Bench in Koya v. State of Kerala (1987 (1) KLT 830). In the above decision it was held as follows: "..... The owner as defined under the Act does not include an assignee or transferee. As on the appointed day the applicant did not have any right over the property he could not have claimed exemption under S.3 (2) of the Act. The person who is entitled to file a petition claiming benefit under S.3 (2) or 3 (3) is the person who had right over the property. At the time when the property had vested in the State, the applicant did not have any right." The court further observed as follows: "..... As the property, being a private forest, had already vested in the State the M.F.A.No.359/2000 2 person who had right over the property on the appointed day alone could have claimed exemption under S. 3 (2) or 3 (3) of the Act. Such a right is not conferred on the assignee under the Act. The assignment after the property had vested in State has no validity, as S.3 (1) clearly stipulates that the right, title and interest of the owner shall stand extinguished. It is only the owner who is given the right to claim exemption under S.3 (2) or 3 (3). As the applicant did not have any right as he was not the owner of the property at the time when it vested in the State, he cannot have any locus standi to file the petition on the ground that he obtained assignment from the person who had right over it." According to the Division Bench which referred the matter to the Full Bench, there is substance in the following argument of the counsel for the appellant: "..... If the owner of the land, on the appointed day, is entitled to the benefit of sections 3 (2) or 3 (3) of the Act, his assignees will get some right as they are getting into the shoes of the assignor. Such assignees will get a right within the subsequent transfer." 2. A close reading of the Koya's case (supra) shows that the above decision only says that if the land is vested in the Government being private forest on the appointed day and that the then owner cannot claim any exemption, his assignee has no locus standi to claim exemption as land is already vested in the M.F.A.No.359/2000 3 Government and the owner on the appointed day has no title to transfer the land. 3. Section 3 of the Kerala Private Forests (Vesting and Assignment) Act (in short 'the Act') reads as follows: "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 sub-sections (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 encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished. (2) Nothing contained in sub-section (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. Explanation:- For the purposes of this sub-section, "cultivation" includes cultivation of trees or plants of any species. (3) Nothing contained in sub-section (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 M.F.A.No.359/2000 4 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 sub-section (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." Therefore, all private forests coming within the definition of section 2 (f) of the Act in the State of Kerala will automatically vest in the Government on the appointed day (Section 2 (a) fixed appointed day as 10th May, 1971), unless the owner can claim exemption under section 3 (2) or 3 (3). The term 'owner' is defined under section 2 (c) as a mortgagee or lessee or any person having right to possession and enjoyment of the property. To claim exemption under section 3 (2), the owner shall prove that: (1) the land in question is under his personal cultivation of trees or plants of any species; and (2) the land is within the ceiling limits under the Kerala Land Reforms Act. To claim exemption under section 3 (3): (1) owner must have registered title deed executed in his favour before M.F.A.No.359/2000 5 the appointed day; (2) he must have an intention to cultivate the private forest in question; and (3) the land is within the ceiling area. If the owner is entitled to get the benefit of exemption under section 3 (2) or 3 (3) on the appointed day, the land will not be vested in the Government on the appointed day under section 3 (1) and, like any other owner of the property, he has the right to transfer his rights in the land. If forest officials claim that it is a forest vested in the Government, his assignee is entitled to file an application before the Forest Tribunal that the land in question, though a private forest, is not vested in Government in view of the exemption envisaged under section 3 (2) or 3 (3) to his assignor. If the then assignor (owner) on the appointed day has land in excess of the ceiling limit, he cannot claim exemption under section 3 (2) or 3 (3) and has no authority to transfer the land as land is vested in the Government automatically on 10.5.1971 under section 3 (1) and assignment by him after 10.5.1971 is void. Merely because assignee has land below the ceiling limit, he cannot claim exemption and he cannot file application before the Forest Tribunal. Similarly, if the owner on the appointed day has no registered deed of title executed in his favour before the appointed day, he cannot M.F.A.No.359/2000 6 claim exemption under section 3 (3) even if his assignee or the then owner after the appointed day gets a registered deed of title. In other words, if the owner of the land on the appointed day is not entitled to claim exemption under section 3 (2) or 3 (3), he cannot transfer the land and his assignee cannot claim exemption. Therefore, the question to be considered is whether the land is a private forest on the appointed day and even if it is a private forest, whether the then owner can claim exemption under section 3 (2) of 3 (3) of the Act. If it can be proved that the land is not a private forest on the appointed day or the then owner is entitled to claim the benefit of section 3 (2) or 3 (3) of the Act, there is no prohibition on the owner to assign his right to a third party and his assignee can also approach the Forest Tribunal for a declaration that the land is not vested under section 3 (1) of the Act on the appointed day. In other words, an assignee also can claim and prove that his predecessor-in-interest who was in possession of the land on the appointed day was entitled to get exemption under section 3 (2) or 3 (3) of the Act. The assignee will step into the shoes of the assignor in that event. The question would be what was the nature of the land and also whether the land had got vested in the M.F.A.No.359/2000 7 Government as on the appointed day and not on any other subsequent day. Therefore, we answer the question in the affirmative and the decision in Koya's case (supra) is clarified accordingly. If the land in question is already vested under section 3 (1) as in Koya's case (supra), the then owner has no right to transfer the land and his assignees will not get any right on the property. 4. On the facts of the case, the tribunal has already found, on evidence, that the predecessor-in-interest of the appellant had got valid claim of title executed before the appointed day over the property. The tribunal has also found from commissioner's report and evidence that major portion of the land was actually cultivated by the predecessor-in-interest, but, only a small portion of 1.25 acres was not actually cultivated on the appointed day. To claim exemption under section 3 (3) for the property under a valid registered document of title, he need not prove that the land was under his personal cultivation as in section 3 (2), but, he has to prove that there was intention to cultivate the land on the appointed day. What is to be gathered for getting exemption under section 3 (3) is an intention to cultivate the land on the appointed day. Whether there was intention to cultivate the land has to be M.F.A.No.359/2000 8 gathered from all attendant circumstances. The Apex Court in Joseph v. State of Kerala (2007 (3) KLT 144 SC) held as follows: "16. ..... For the purpose of attracting sub- s. (3) of S.3 of the 1971 Act, it was not necessary that the entire area should have been cultivated for 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 S.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 to 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. 17. The High Court, in our opinion, was not correct in opining that for applying S.3 (3) of the 1971 Act, the cultivation of the property M.F.A.No.359/2000 9 subsequent to the vesting cannot be taken into account. The High Court also was not correct in arriving at finding that there had been no evidence whatsoever that the owners intended to cultivate the land prior to 10.5.1971. As the provision contained in sub-s. (3) of S.3 of the 1971 Act clearly provides for exclusion of the operation of sub-s. (1) thereof, the same has to be construed liberally........." In fact, from Ext.A13, the register maintained under the Madras Preservation of Private Forest Act, it can be seen that the entire land was prepared for cultivation before the appointed day. Clear felling was done. The land was made ready for cultivation even before the appointed day. Major part of the land was cultivated before the appointed day and balance was, in fact, cultivated after the appointed day. That shows that there was intention to cultivate the entire land on the appointed day. Hence appellant is entitled to exemption under section 3 (3) if the assignor, the owner on the appointed day was not possessing the land in excess of the ceiling limit prescribed under the Kerala Land Reforms Act. 5. There is no evidence for that. Therefore, the matter is remanded to consider the limited question whether the assignor, owner of the land, on the appointed day had got land only within the ceiling area or not. M.F.A.No.359/2000 10 Parties shall appear before the Forest Tribunal on 28.4.2008. Both parties are allowed to adduce evidence on that aspect. J.B.Koshy Judge A.K. Basheer Judge K.P. Balachandran Judge vaa M.F.A.No.359/2000 11 J.B. KOSHY, A.K.BASHEER AND K.P.BALACHANDRAN ,JJ. ------------------------------------- M.F.A. No. 359 of 2000 ------------------------------------- Judgment Dated:7th March, 2008