IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 MFA.No. 108 of 2006(B) -------------------------------- AGAINST THE ORDER DATED 25/05/2005 IN OA NOS. 166 AND 167 OF 1990 OF FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS/APPLICANTS: --------------------------------------- 1. M/S. POPULAR ESTATES (NOW DISSOLVED) REPRESENTED BY ITS PARTNER, SRI.JOHN PAUL. 2. M/S. POPULAR PLANTATIONS (NOW DISSOLVED) REPRESENTED BY ITS PARTNER SRI.JOHN PAUL. BY ADV. SRI.T.KRISHNAN UNNI (SR.) SRI.T.R.RAVI RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, TRIVANDRUM. 2. CUSTODIAN & CONSERVATOR OF VESTED FORESTS, KOZHIKODE. SPL.GOVERNMENT PLEADER (FORESTS) SRI.M.P.PRAKASH. FOR R1& R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON 05/12/2008 DELIVERED THE FOLLOWING: Rs/ J.B. Koshy & K.P.Balachandran, JJ. -------------------------------------- M.F.A.(Forest) No.108/2006 --------------------------------------- Dated this the 5th day of December, 2008 Judgment Koshy,J. Appellant obtained 1534.40 acres of land by registered deeds. Exts.A37 to A40 are the four registered documents executed between 23.5.1963 and 30.6.1966. When land ceiling provisions were incorporated in the Kerala Land Reforms Act (for short 'KLR Act'), after physical verification through the authorised officer, it was found by the Taluk Land Board that out of the 1534.40 acres of land in question, 1127.50 acres were plantations as on 1.1.1970 and 247 acres were private forest and there was dispute regarding the nature of land regarding 155.90 acres. According to the appellant, it was converted into plantation before 1.1.1970. According to the report of the authorised officer, it was not a plantation as on 1.1.1970. Since both private forest and plantations are exempted under the land ceiling provisions, the entire 1534.40 acres of land were not taken into account for the purpose of calculating the excess land. The Kerala Private Forests (Vesting and Assignment) M.F.A. (Forest) No. 108/2006 2 Act, 1971 (for short 'the Vesting Act') which came into force on 10.5.1971 provided that all private forests as on the appointed day (10.5.1971) in the State of Kerala will automatically vest in the Government subject to sub-sections (2) and (3) of section 3. Section 3 (1), (2) and (3) are 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 M.F.A. (Forest) No. 108/2006 3 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." The Act itself was enacted as a measure of agricultural reform for assigning land to agriculturists and agricultural labourers for cultivation. The Act starts as follows: "An Act to provide for the vesting in the Government of private forests in the State of Kerala and for the assignment thereof to agriculturists and agricultural labourers for cultivation. Preamble:- Whereas the private forests in the State of Kerala are agricultural lands; And whereas Government consider that such agricultural lands should be so utilized as to increase the agricultural production in the State and to promote the welfare of the agricultural population in the State; And whereas Government also consider that to give effect to the above objectives it is necessary that the private forests should vest in the Government;" 2. Various parties including the appellant challenged the validity of the Act and the Kerala High Court struck down the Act as unconstitutional in the decision reported in Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. and others v. State of Kerala (1972 KLT M.F.A. (Forest) No. 108/2006 4 628), but, in appeal, the above view was reversed by the Supreme Court in State of Kerala v. Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. (1973 KLT 896). After the decision of the Hon'ble Supreme Court, Forest authorities started taking action for getting possession of the land. The original applications were filed by the appellants as application Nos.242 and 243 of 1974 before the Forest Tribunal under section 8 of the Act. According to them, 1534.40 acres of land called 'Popular Estate' are cultivated with various agricultural crops like cardamom, rubber etc. are not liable to be vested under section 3 (1) of the Act. Exts.A11 and A14 are the counter statements filed by the State in O.A.Nos.242 and 243 of 1974 filed by the appellants before the Forest Tribunal, Kozhikode. The appellants had contended in O.A.No.242 of 1974 that out of 213.806 hectares involved in O.A. No.242 of 1974, an extent of 209.88.6 hectares was registered area, registration as plantation in respect of the balance 80.36 hectares was pending and 3.92 hectares was uncultivated area consisting of roads and buildings. In O.A. No.243 of 1973, it was contended that out of the total extent of 406.84.44 hectares involved in the application, an extent of 398.544 hectares were planted area, that there was no natural growth in the area, that 148.5 hectares was registered plantation and application M.F.A. (Forest) No. 108/2006 5 for registration was pending for the remaining area. In Exts.A11 andA14 counter statements, the State admitted that in O.A. No.242 of 1974, 181.45 acres were cardamom plantations and 16.96 acres were rubber plantations. The rest of the area was contended to be vested. In O.A. No.243 of 1974, the State admitted that a portion of the property was planted prior to 10.5.1971 and that survey is required to fix the correct extent under plantations. According to the appellants, the entire area is not private forest as defined under the Act on the day when the Act came into force and even if it is a private forest, it is liable to be exempted under sections 3 (2) and 3 (3) of the Act. The un-planted area is also necessary for the ancillary use of the estate. There are buildings and roads also. A Commissioner was appointed by the Forest Tribunal to inspect the entire area. Ext.A6 preliminary report of the Commissioner dated 15.1.1976 submitted by the Advocate Commissioner shows some details of the areas cultivated and areas uncultivated. The Commissioner indicated the necessity to survey the area and fix the correct extent under plantations. The Commissioner found that most of the areas are cultivated with cardamom, rubber etc., that a small area is forest and that it is not possible to visit the entire area. Hence, the Commissioner recommended that detailed survey M.F.A. (Forest) No. 108/2006 6 of the land was necessary as most of the land was situated in hills and private surveyors were not able to complete the work. A survey was carried out in the month of February, 1976 by the forest and other government officials and the work continued for about one month. After one and a half years of the filing of the report of the Advocate Commissioner, the State Government on 8.7.1977 issued a notification No.4713/77 notifying an extent of 100 hectares (247 acres) as private forest. This was on the basis of the survey undertaken by the Forest Department independently. The inspection which had been stopped since the Forest survey was also being done simultaneously was recommended on 1.9.1977. On 1.9.1977, the Range Officer submitted Ext.A4 memo before the Advocate Commissioner which states that 100 hectares alone is vested in the Government. Since the claim of the Government as private forest was only 100 hectares of land which are admittedly private forest, there was no necessity to pursue the application and the claim petitions were dismissed. No detailed arguments were addressed regarding balance land because as per the forest survey only 100 hectares of land were private forest, but, while disposing of the application, without any material, a passing observation was made by the Forest Tribunal that various officials may not have M.F.A. (Forest) No. 108/2006 7 conducted proper survey due to influence of 'magic money'. But, in view of the observations, Vigilance conducted an investigation and found that there is no basis for such allegation. 3. Even after the decision of the Forest Tribunal, when the forest officials interfered in the possession and cultivation of the appellant, they filed two civil suites as O.S.Nos.69 and 71 of 1987 before the Munsiff's Court seeking permanent injunction against the State from taking possession. During the pendency of the suits, Custodian issued a notification (Ext.A27) in respect of 324 hectares of land belonging to the appellant demarcating as vested private forest by the Custodian of Vested Forests. Then, the civil suits were allowed to be withdrawn (Exts.A22 and A25 judgments) and the appellant filed writ petition O.P.No.7498 of 1987. That was dismissed in view of the available alternate remedy of filing application before the Forest Tribunal. Hence, O.A.Nos.28 and 29 of 1988 were filed before the Forest Tribunal under section 8 of the Act. Appellant also filed an appeal against the judgment dismissing the O.P. No.7498 of 1987. Writ appeal No.165 of 1989 was admitted on condition that appellants withdraw their O.A. pending before the Forest Tribunal. Thus O.A.Nos.28 and 29 of 1988 were withdrawn, but, finally the writ appeal was dismissed holding that M.F.A. (Forest) No. 108/2006 8 appellant has got alternate effective remedy by filing application to the Forest Tribunal under section 8 of the Vesting Act. Accordingly, O.A.Nos.166 and 167 of 1990 were filed before the Forest Tribunal. Against Ext.A1 judgment in writ appeal, Civil Appeal No.200 of 1991 was filed before the Hon'ble Apex Court and the above was disposed of directing the Tribunal to consider the question of validity of the notification as notification is issued only as a consequence of demarcating the land as vested private forest on the appointed day and also directed the Tribunal to dispose of the application by Ext.A2 judgment (Popular Plantations and another v. State of Kerala and others (1991 Supp (2) SCC 720). Meanwhile, appellants also filed O.P. No.4751 of 1993 challenging the validity of the notification dated 22.7.1987. The Forest Tribunal dismissed t O.A.Nos.166 and 167 of 1990 holding that earlier decision relates to only 100 acres of land and, therefore, Custodian can issue a fresh notification in respect of other land. Against the above M.F.A.No.72 of 1993 was filed before this Court. That appeal and writ petition filed were allowed by a common judgment by which it was held that Ext.A27 notification is valid only in respect of 100 hectares of vest forest and notification in respect of other land was invalid. Therefore, the Custodian of Vested Forest was directed to demarcate the land and M.F.A. (Forest) No. 108/2006 9 boundaries of the extent of 155.90 acres of land under section 6 of the Act and restore possession of the extent of the properties to the appellant. While deciding the case, apart from the earlier decision of the Forest Tribunal and 1977 notification demarcating 100 hectares of land, the Division Bench also relied on the order of the Taluk Land Board (Ext.A51) in the land ceiling case. The Division Bench in the above judgment ordered as follows: "30. Accordingly we uphold the notification Ext.A27 (Ext.P1 in the O.P.) so far as it relates to the 155.90 acres of land which was shown as forest in Ext.A51 order of the Taluk Land Board and declare that the notification in respect of the remaining area is illegal and invalid. The notification is quashed to the above extent." The decision of the High Court was challenged before the Hon'ble Supreme Court. The Hon'ble Supreme Court in Civil Appeal No.7111 of 1999 set aside the judgment of this Court and remanded the matter to the Tribunal (State of Kerala and another v. Popular Estates and another - (2004) 12 SCC 434) with the following observations: "..... 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 M.F.A. (Forest) No. 108/2006 10 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. ..... 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." Land ceiling proceedings under section 85 (9A) of the Kerala Land Reforms Act is not a res judicata and is not binding on the Forest Tribunal as such. It is only a piece of evidence. If the land is a private forest on the appointed day, that is, on 10.5.1971, it will automatically vest in the Government even if no notification is issued demarcating the land as private forest under section 6 of the Act and if it is not a private forest as on 10.5.1971, the land will not vest in the Government and parties can challenge the notification. Therefore, the whole question to be decided was whether the land M.F.A. (Forest) No. 108/2006 11 covered by Ext.A27 notification was a private forest on the appointed day (10.5.1971) or not. If the land is a private forest and is vested in the Government under section 3 (1), then the only question to be decided is whether the land is exempted under section 3 (2) or 3 (3). The notification issued under rule 2A (2) of the Kerala Private Forests (Vesting and Assignment) Rules, 1974 by the custodian is only a consequential act of demarcation after identifying and measuring the private forest as provided under section 6 of the Vesting Act. 4. On remand, the Tribunal found that the land was covered by the M.P.P.F. Act. Ext.A37 title deed refers to the permission of the District Collector obtained by the seller to sell the property covered by the said document. Therefore, at paragraph 8, it was found that the property was covered under the M.P.P.F. Act, but, even if the land is covered by the M.P.P.F. Act, it will be excluded from the purview of 'private forest', if it falls under any of the exclusions (A) to (D) to section 2 (f) (1) (i) of the Vesting Act, and the land will not come under the definition of 'private forest'. Hence, it will not vest with the Government. In this connection, we refer to the definition of 'private forest' as defined under section (2) (f) of the Vesting Act as follows: M.F.A. (Forest) No. 108/2006 12 "(f) 'private forest' means -- (1) in relation to the Malabar district referred to in sub-section (2) of section 5 of the State Re-organisation Act, 1956 (Central Act 37 of 1956) -- (i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII 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 the 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; (C) lands which are principally cultivated with cashew or other fruit bearing 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; M.F.A. (Forest) No. 108/2006 13 (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. Explanation:- For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;" It is the definite contention of the appellant that as on the appointed day the land was cultivated with cardamom, coffee, rubber and other agricultural crops, buildings and lands appurtenant thereto, but, the Tribunal did not accept the same because PW5 who was examined to prove the cultivation was only in possession of documents and partners of the firm were not examined. The documentary evidence was not sufficient to prove that it was a land principally cultivated with rubber, cardamom, coffee or other agricultural crops. It was also found that the order of the Taluk Land Board has no evidenciary value. On these findings, the Tribunal rejected the application. This appeal is filed against the above order. M.F.A. (Forest) No. 108/2006 14 5. First we will come to the order passed by the Taluk Land Board under the land ceiling proceedings. Under Chapter III of the Kerala Land Reforms Act, 1963, restriction on ownership of the land in excess of the ceiling area was made, but, for calculating the ceiling area, private forest and plantations were excluded. Rule 6 of the Land Reforms Ceiling Rules requires that any person claiming exemption from the provisions of Chapter III of the Act should furnish details of the land to the Land Board. Under rule 9A the statements submitted are verified by the Taluk Land Board through the Tahsildar or such other officer (authorised officer) for their correctness. The verification report is to be sent to the Taluk Land Board. The Board has power to call for information from any officer of Government for the purpose under rule 9. The authorised officer (statutory officer) has to visit the places, conduct local inspection and Taluk Land Board has to make a draft statement as per rule 10 after considering the reports from the officer. The Taluk Land Board has to publish the draft statement under the rules and the declarants can file objections to the draft statement under rule 13. Ext.A50 dated 24.1.1979 is the draft statement of the lands to be surrendered issued by the Taluk Land Board, Hosdurg in the ceiling proceedings relating to the predecessor-in-interest of the M.F.A. (Forest) No. 108/2006 15 appellants. This was followed by Ext.A51 order of the Taluk Land Board dated 4.11.1980. The order shows that 247 acres (100 hectares) out of the total extent of 1534.40 acres are vested forests, 533 acres are under Cardamom cultivation, 120 acres are under rubber plantation, 457 acres are under coffee plantation and 155.90 acres are disputed lands. But, nature of land means 17.5 acres are covered by roads and buildings. The dispute was only regarding the 155.90 acres of land. The proceedings of the Taluk Land Board are governed by statutory provisions which provides for actual physical verification of the property. After physical verification, it was found that 1127.50 acres of land was converted to plantation before 1.1.1970. In this connection, we refer to Ext.A51 order of the Taluk Land Board. With regard to objection 7, it is stated as follows: "Objection 7: The firm owns an extent of 1530.40 acres of land in Maloth village. The land was part of private forests coming within the purview of the M.P.P.F. Act. Out of 1530.40 acres, an extent of 1127.50 acres has been converted into plantations coming under the exempted category. The balance extent of 402.90 acres is not containing any plantations coming under exempted category and as such the authorised officer has classified the land as other dry Out of this 402.90 acres, an extent of 247.00 acres has been taken away as vested forest by the Forest Department. The remaining M.F.A. (Forest) No. 108/2006 16 area of 155.90 is not containing plantations. The advocate for the statement giver has produced the certified copy of the documents by which they acquired the properties in Maloth village and also the certified copy of the orders of the Forest Tribunal and copy of the order of the High Court to prove that the land measuring 1530.40 acres are private forests as on 1.4.1964 and also that they were subject matter of cases before the Forest Tribunal which has found that 100 hectares is vested forest. He, therefore, argued that the entire land falls under the exempted category as they were either private forest or plantations converted from private forest as on 1.1.1970 and that these lands are beyond the scope of the KLR Act. Since the enquiry report of the A.O. shows that the lands were private forest as on the date of purchase and since there are no evidence that the entire extent was clearfelled before 1.4.1964, the Taluk Land Board is constrained to accept the above argument and exempt the entire areas as lands not coming within the purview of the KLR Act." This shows that out of the 1534.40 acres, an extent of 1127.50 acres was converted into plantation even before 1964, much before the Vesting Act came into force. Out of the 402.90 acres, 247 acres (100 hectares) was the vested forest. Dispute was only regarding the remaining area of 155.90 acres. According to the declarant, the portion of the land was also converted as plantation even though authorised officer reported that there is no evidence that it is planted and clear felling was done before 1964. The Land Board excluded this portion of 155.90 acres as both private forest and M.F.A. (Forest) No. 108/2006 17 plantations are exempted for the purpose of land ceiling. The point stressed by the appellant is that the order of the Taluk Land Board passed after verification by the authorised officer clearly states that 1127.50 acres of land was converted into plantation even in 1964 and the dispute was only regarding the 155.90 acres. Admittedly, 247 acres of land was private forest. At that time, State has no dispute to the proposition that 1127.50 acres in the scheduled property was plantation etc. 6. Then, the question is how far the proceedings of the Taluk Land Board are binding on the Forest Tribunal. Certainly, it is not a res judicata and binding as