Case: Village Officer and others Vs. Chunayamakkal Joseph and another

inter alia, the lands which are used principally for the cultivation of tea, coffee, cocoa, rubber etc. 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 submitted that as per section 8 if there is any dispute as to whether the land is a private forest or any private forest or any portion thereof has vested in the Government or not, the concerned person may apply to the Forest Tribunal. It is submitted that in the two OAs filed by the respondents, the Divisional Forest Officer (Custodian of vested forests) filed two separate counter affidavits in which he specifically admitted the possession of the respondents. It is therefore submitted that the High Court has rightly relied upon the aforesaid two counter affidavits filed by the Divisional Forest Officer and has rightly directed the revenue authorities - Village Officer to accept the basic tax payable under the 1961 Act from the respondents. 4.4 It is submitted that once the appellants herein admitted in their counter affidavits filed before the Forest Tribunal that there are certificates of purchase in favour of the respondents and that they are in possession of 12 acres each and that the department does not have a claim over the said properties, there is no dispute for settlement so as to be raised or settled under section 8 of the 1971 Act and therefore the dismissal of the two OAs by the Forest Tribunal on the ground of limitation is inconsequential. 4.5 Making the above submissions, it is prayed to dismiss the present appeal. 5. We have heard learned counsel for the respective parties at length. 5.1 At the outset, it is required to be noted that the respondents herein filed writ petition before the learned Single Judge for a writ of mandamus directing the revenue authorities and more particularly the Village Officer to accept the basic tax leviable under section 5 of the 1961 Act with respect to the lands in question. The said writ petition was filed on the premise that they are the owner and in possession of the disputed land and jenmam rights and purchase certificates were issued in their favour and that their possession and ownership have been admitted by the Divisional Forest Officer in the two counter affidavits filed before the Tribunal in OA Nos. 13 & 14 of 1986. The High Court has accepted the same and issued a writ of mandamus directing the revenue authorities – Village Officer to accept the basic tax from the respondents herein. That the said judgment and order passed by the learned Single Judge has been affirmed by the Division Bench of the High Court, by the impugned judgment and order. 5.2 However, the High Court has not at all appreciated and/or considered the fact that as such the jenmam rights and purchase certificates which were earlier issued in the years 1975 & 1979 in favour of the respondents have been cancelled by the appropriate authority. The High Court has also not appreciated the fact that as such a notification has been issued under Rule 2A of the Kerala Private Forest (Tribunal) Rules, 1972 (hereinafter referred to as the 1972 Rules) and the lands in question have been declared as a private forest land, vide notification issued in the year 1977. It is to be noted that the private respondent nos. 1 & 2 herein filed an application under Section 8 of the 1971 Act challenging the said notification and vesting of the lands in question as a private forest land and declaring the same as a forest land, however, the said application came to be dismissed by the Forest Tribunal, vide order dated 12.3.1990 and thereafter there is no challenge to the aforesaid notification including the land in question as a vested forest land. 6. The High Court has also not appreciated that in order dated 16.4.2002 passed by the Land Tribunal cancelling the order of assignment of jenmam rights and certificates of purchase, the Land Tribunal specifically observed that OA applicants failed to establish tenancy rights claimed by them and the survey plan clearly shows that the lands in question are covered by the vested forest land of the government. Thus, as per the Land Tribunal, respondent nos. 1 & 2 herein cannot claim any right over the disputed lands in question. Once the notification issued under Section 2A of the 1972 Rules declaring the lands in question as vested forest land stands and as on today there is no jenmam rights and/or purchase certificates in favour of the respondents herein with respect to the lands in question, respondent nos. 1 & 2 herein cannot be said to be the owner and/or cannot be said to be having a valid title in their favour and therefore there is no question of any acceptance of basic tax from them, leviable under the 1961 Act. It appears that by asking such a relief of writ of mandamus directing the Village Officer/revenue authorities to accept the basic tax from them, the original writ petitioners – respondents herein want to create title/ownership in their favour. Any dispute with respect to the forest land can only be settled under Section 8 of the 1971 Act. Therefore, the High Court has not properly appreciated the mala fide intention on the part of the respondents to pray for such a writ of mandamus and indirectly establishing their right, title and ownership over the disputed lands in question which, as such, is declared as a vested forest land as far back as in the years 1975/1977, pursuant to the notification issued under Rule 2A of the 1972 Rules. 7. In view of the above and for the reasons stated above, the impugned judgments and orders passed by the Division Bench of the High Court as well as by the learned Single Judge are not sustainable and the same deserve to be quashed and set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5.1 At the outset, it is required to be noted that the respondents herein filed writ petition before the learned Single Judge for a writ of mandamus directing the revenue authorities and more particularly the Village Officer to accept the basic tax leviable under section 5 of the 1961 Act with respect to the lands in question. The said writ petition was filed on the premise that they are the owner and in possession of the disputed land and jenmam rights and purchase certificates were issued in their favour and that their possession and ownership have been admitted by the Divisional Forest Officer in the two counter affidavits filed before the Tribunal in OA Nos. 13 & 14 of 1986. The High Court has accepted the same and issued a writ of mandamus directing the revenue authorities – Village Officer to accept the basic tax from the respondents herein. That the said judgment and order passed by the learned Single Judge has been affirmed by the Division Bench of the High Court, by the impugned judgment and order.5.2 However, the High Court has not at all appreciated and/or considered the fact that as such the jenmam rights and purchase certificates which were earlier issued in the years 1975 & 1979 in favour of the respondents have been cancelled by the appropriate authority. The High Court has also not appreciated the fact that as such a notification has been issued under Rule 2A of the Kerala Private Forest (Tribunal) Rules, 1972 (hereinafter referred to as the 1972 Rules) and the lands in question have been declared as a private forest land, vide notification issued in the year 1977. It is to be noted that the private respondent nos. 1 & 2 herein filed an application under Section 8 of the 1971 Act challenging the said notification and vesting of the lands in question as a private forest land and declaring the same as a forest land, however, the said application came to be dismissed by the Forest Tribunal, vide order dated 12.3.1990 and thereafter there is no challenge to the aforesaid notification including the land in question as a vested forest land.6. The High Court has also not appreciated that in order dated 16.4.2002 passed by the Land Tribunal cancelling the order of assignment of jenmam rights and certificates of purchase, the Land Tribunal specifically observed that OA applicants failed to establish tenancy rights claimed by them and the survey plan clearly shows that the lands in question are covered by the vested forest land of the government. Thus, as per the Land Tribunal, respondent nos. 1 & 2 herein cannot claim any right over the disputed lands in question. Once the notification issued under Section 2A of the 1972 Rules declaring the lands in question as vested forest land stands and as on today there is no jenmam rights and/or purchase certificates in favour of the respondents herein with respect to the lands in question, respondent nos. 1 & 2 herein cannot be said to be the owner and/or cannot be said to be having a valid title in their favour and therefore there is no question of any acceptance of basic tax from them, leviable under the 1961 Act. It appears that by asking such a relief of writ of mandamus directing the Village Officer/revenue authorities to accept the basic tax from them, the original writ petitioners – respondents herein want to create title/ownership in their favour. Any dispute with respect to the forest land can only be settled under Section 8 of the 1971 Act. Therefore, the High Court has not properly appreciated the mala fide intention on the part of the respondents to pray for such a writ of mandamus and indirectly establishing their right, title and ownership over the disputed lands in question which, as such, is declared as a vested forest land as far back as in the years 1975/1977, pursuant to the notification issued under Rule 2A of the 1972 Rules.7. In view of the above and for the reasons stated above, the impugned judgments and orders passed by the Division Bench of the High Court as well as by the learned Single Judge are not sustainable and the same deserve to be quashed and set aside.