Hamza Haji vs State Of Kerala & Anr

2. In the year 1968, the appellant herein claims to have purchased an extent of 22.25 hectares of land blocked in Survey No.2157 in Palakkayam Village, Mannarghat Taluk. The deed was accompanied by a sketch showing the property conveyed. It is seen that the appellant disposed of almost the entire property by way of assignments mostly in the years 1971 and 1972 and by way of a gift of 5 acres to his brother. Thus, he was left with no property allegedly acquired under the sale deed No. 2685 of 1968 of the Mananarghat sub Registry.

3. On 10.5.1971, The Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short "the Act") came into force. In the year 1979, the appellant filed an application, O.A. No.247 of 1979, before the Forest Tribunal, Manjeri, under Section 8 of the Act seeking a declaration that the application scheduled property was not a private forest liable to be vested in the Government. He scheduled 8.10 hectares equivalent to 20 acres in Sy. No. 2157, Agali Village, Mannarghat Taluk in the application. He claimed exemption under Section 3(2) of the Act and in the alternative, claimed that even if the land was private forest, the same was held by him as owner under his personal cultivation and with intent to cultivate and that it is within the ceiling limit applicable to him under the Kerala Land Reforms Act and hence the same may be declared to be exempt from vesting under Section 3(3) of the Act. Through the forest authorities, the State of Kerala filed objections to the original application. It was contended that the land was private forest; that the Madras Preservation of Private Forests Act applied to the same; and it continued to be a forest under the Act and hence the prayer under Section 3(2) of the Act was unsustainable. The claim under Section 3(3) of the Act was also opposed on the plea that the appellant had no valid title to the land, that it was not cultivated and that the appellant had no intention to cultivate the same. By order dated 17.12.1980, the Forest Tribunal held that the land was forest to which the Madras Preservation of Private Forests Act applied immediately prior to 10.5.1971, the appointed day and it continued to be forest under the Act. The Tribunal accepted the evidence of the officer examined on behalf of the State to find that the area was full of forest tree growth. Thus, the claim of the appellant under Section 3(2) of the Act was negatived. The claim of the appellant was upheld by the Tribunal under Section 3(3) of the Act by rejecting the plea of absence of title in the appellant based on a pending litigation as set up by the State. It upheld the title and possession of the appellant as per the deed of purchase, Document No. 2685 of 1968 put forward by him. It held that the extent claimed did not exceed the extent of ceiling area applicable to the appellant under Section 82 of the Kerala Land Reforms Act. It, therefore, excluded the 20 acres scheduled to the application and declared it as not vested in view of Section 3(3) of the Act. The State filed an appeal, MFA No.328 of 1981, against the said decision in the High Court under Section 8A of the Act. The High Court, on 8.3.1983, dismissed the appeal at the stage of admission on the ground that a specific ground of challenge to the finding based on Section 3(3) of the Act had not been raised in the memorandum of appeal. The order of the Forest Tribunal in that sense became final.

4. Due to widespread complaints and emerging public opinion, the Government realised that quite a number of applications before Forest Tribunals for exemption or exclusion were got allowed by unscrupulous elements with the connivance of the Forest Authorities and even of counsel engaged by the State before Forest Tribunals and before the High Court. Hence, an amendment to the Act was brought about with effect from 19.11.1983, conferring a right on the Custodian of Vested Forests to apply for review of the decisions of Forest Tribunals and conferring power on the State Government to file appeals or applications for review in certain other cases before the concerned court and for other incidental matters. Pursuant to this availability of power, the State filed R.P. No.219 of 1987 on 14.3.1987, before the Forest Tribunal seeking a review of the decision of the Forest Tribunal dated 17.12.1980. It is seen that a commission was taken out in these proceedings presumably on the dispute whether the property scheduled was under cultivation or was part of a dense forest. On 14.3.1988, the Forest Tribunal dismissed the review petition on the ground that its order sought to be reviewed, had merged with the judgment of the High Court in MFA No.328 of 1981, which, as we have already noticed, was dismissed at the admission stage. Whether the view of the Forest Tribunal that it could not review the order in exercise of power under Section 8B of the Act, notwithstanding the dismissal of the appeal from its decision at the stage of admission, need not be considered at this stage. The fact remains that the Forest Tribunal dismissed the review petition.

6. It appears that at this stage the Custodian realised that the very approach of the appellant to the Forest Tribunal was a fraudulent attempt to knock off forest land vested in the State and on the date he made the application before the Forest Tribunal, the appellant had no vestige of right in the application schedule property, he having sold or transferred the entire extent of land allegedly purchased by him under document No.2685 of 1968, the title he put forward when he approached the Forest Tribunal. On 1.1.1991, nearly eight years after the dismissal of MFA No.328 of 1981 by the High Court at the stage of admission, the State filed RP No.17 of 1991 for a review of the order in the appeal, accompanied by an application for condoning the delay of seven years eight months and twenty six days in filing the review. Without considering the merits of the case or the nature of the attempt made by the appellant as put forward by the State in the petition for review, the High Court on 18.11.1993, dismissed the petition for condoning the delay in filing the review petition on the ground that no sufficient cause had been made out for condoning such a long delay. Consequently, the High Court dismissed the review petition without going into the merits of the same. Though the State of Kerala filed an application for special leave to appeal in this Court as a SLP) No.16318 of 1994, the same was not entertained by this Court and it was rejected on 3.10.1994.

8. The attempt to handover 20 acres of fragile forest to the appellant, generated considerable public opinion and protest that it ultimately forced the State and the forest authorities, to approach the High Court again with a petition for review. On 2.11.2000, a petition for review was filed as CMP No.456 of 1991 in RP No.17 of 1991 in MFA No.328 of 1981 to review the order of the Division Bench dated 18.11.1983, whereby the High Court refused to condone the delay in filing the review petition against the order in MFA No.328 of 1981. Another review petition was filed to review the order in OP No.2926 of 1989 issuing the writ of mandamus directing restoration. Yet another review petition was filed to review the order in the contempt of court case CCC No.274 of 1997. One other review petition was filed to review the order in MFA No.328 of 1981 itself which was not numbered presumably on the objection that it was really a petition to review an order on a review petition. Meanwhile a body of citizens filed a writ petition, OP No.20946 of 1997 praying for the issue of a writ of mandamus directing the respondent State not to assign, release or surrender 20 acres of evergreen forest to the appellant, and for a writ of prohibition restraining the appellant from carrying on any felling activity in the property including the clearing of natural growth. One other writ petition was filed allegedly by the assignees from the appellant. The Division Bench of the High Court heard all these review petitions together along with the two writ petitions filed by strangers. The High Court found that the appellant had secured an order from the Forest Tribunal by playing a fraud on it and since fraud vitiates the entire proceedings it was a fit case where the High Court should exercise its jurisdiction invoking Article 215 of the Constitution of India and set at naught, the order of the Forest Tribunal found to be vitiated by fraud. Thus, the High Court allowed the claim of the State and that of the writ petitioners and setting aside the order of the Forest Tribunal in OA No.247 of 1979, dismissed that application filed by the appellant before the Forest Tribunal. The High Court also directed the State to take back the 20 acres of land said to have been put in the possession of the appellant during the pendency of the contempt of court case. This decision of the High Court is challenged by the appellant, the applicant before the Forest Tribunal, in these appeals.

mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury."

20. In the view that we have taken as above, the plea that the second review was not maintainable, that the Division Bench could not have ignored the earlier orders of the High Court dismissing the appeal at the stage of admission and the dismissing of the petition for condonation of delay in filing the first review, are all of no avail to the appellant. In this case, the Forest Tribunal had also been moved by way of review and that tribunal refused to exercise its jurisdiction under Section 8B of the Act and nothing stands in the way of the High Court setting aside that order on a finding that the original order from the Forest Tribunal was secured by playing a fraud on the Tribunal. Equally, nothing stood in the way of the High Court reviewing the judgment in O.P. No. 2926 of 1989 in which a mandamus was issued by the High Court to restore possession of the application schedule property to the appellant. Similarly, nothing stood in the way of the High Court in allowing O.P. No. 20946 OF 1997 filed by a body of citizens challenging the restoration of 20 acres of virgin forest to the appellant in presumed enforcement of the order in O.A. No. 247 of 1979 and passing the necessary order nullifying the original order. The fact that the High Court has chosen to review the earlier order on the petition for condonation of delay in filing the first review petition and then to exercise the power of review cannot be of any moment in the light of the what we have stated. In any event, as we have indicated, this is a fit case where we should clearly decline to exercise our jurisdiction under Article 136 of the Constitution of India to come to the aid of the appellant to secure to him the fruits of the fraud practiced by him on the Forest Tribunal and the High Court. Thus, we find no merit in the argument that the High Court had exceeded its jurisdiction in setting aside the order of the Forest Tribunal at this distance of time.

21. We thus confirm the decision of the High Court and dismiss these appeals with costs. We hope that this judgment will act as an eye opener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims, (obviously now they are belated claims) for exemption or exclusion under Section 8 of the Act. It behoves the Forest Tribunals and the appellate court to carefully scrutinise the case of title and possession put forward by claimants as also the identities of the lands sought to be claimed, while entertaining applications under Section 8 of the Act.