Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.9912 OF 2010

 State of Kerala & Anr.  ….Appellant(s)

VERSUS

Joseph & Anr.        …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This appeal is filed against the final judgment

and order dated 03.12.2007 passed by the High

Court  of  Kerala  at  Ernakulam in M.F.A.  No.137 of

1989 whereby the High Court dismissed the appeal

filed by the appellants herein.  

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2) In order to appreciate the short controversy

involved in the appeal, it is necessary to set out few

facts hereinbelow.

3) The appellant is the State of Kerala. It was the

appellant before the High Court whereas the

respondents herein were the respondents in the

appeal out of which this civil appeal arises.

4) The respondents  herein  are the  owners  of  14

acres of land situated in Thenkara Village of

Mannarghat Taluk in Kerala. This 14 acres land was

part of 47.35 acres of total land, which was

purchased jointly by the family members of the

respondents in the  name of the respondents, their

father and uncles.  

5) It is the case of the respondents that there

existed rubber plantation on this  land. In addition,

the respondents also are the purchaser of the land

planted Teak and other trees on the land. It is also

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the case of the respondents that a partition amongst

their family members took place as a result of which

out of  47.35 acres of land, 23.5 acres of land was

allotted to the respondents and their father.

6) A question arose as to whether the said 14 acres

of land out of 23.5 acres stood vested in the State by

virtue of the provisions of the Kerala Private Forests

(Vesting and Assignment) Act, 1971 (hereinafter

referred to as "the Act" ) or not. Since there was also

a dispute as to whether the respondents had a right

to remain or/and to claim their lawful possession on

14 acres of land, the respondents filed an application

under Section 8 of the Act before the Forest Tribunal

and sought exemption of the said land from the

provisions of the Act as provided therein.

7) Section 2 (a) of the Act defines the "appointed

day" to mean the 10th  day of May,1971. "Owner" in

relation to a private forest is defined in Section 2(c) to

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include therein a mortgagee, lessee or other person

having  a right to  possession and enjoyment  of the

private forest. Section 2 (f) defines the term "private

forest" to mean:  

 “2. (f)(1) in relation to the Malabar District referred to in sub­section (2) of Section 5 of the States Reorganisation Act, 1956 (Central Act 37 of 1956),—

(i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act 27 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 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;

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(C) lands which are principally cultivated with  cashew or  other fruit­bearing 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; (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.”

8) Similarly  Section  3 of The  Act,  which is also

relevant for disposal of this appeal, reads as under:

“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  sub­sections(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 encumberances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.

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(2) Nothing contained in sub­section(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.

Explanation­For the purposes of this sub­ section, “cultivation” includes cultivation of trees or plants of any species.

(3) Nothing contained in sub­section(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 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 sub­section(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.”

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9) The question that arose for consideration before

the Forest Tribunal  was  whether the respondents’

case falls under Section 3(3) of the Act so as to entitle

them to claim exemption of their land measuring 14

acres from its vesting in the State as provided under

the Act and the other question was what is the true

meaning of the expression “intended for  cultivation

by him” occurring in sub­section (3) of Section 3 of

the Act.

10) The Tribunal, by order dated 21.02.1979,

allowed the respondents’ application and granted the

exemption as claimed by them in relation to their 14

acres of land. It was held that firstly, the respondents

acquired the right, title and interest on the land on

the strength  of the registered  documents executed

prior to 10.05.1971 in their favour; Secondly, the

respondents acquired the land with the intention to

personally cultivate; Thirdly, the respondents had

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planted rubber plantation in  3½   acres of land and

also cultivated coconut, pepper and coffee in one

acre; Fourthly, this was the only land of   the

members of the respondents’ family which was being

used by them for their personal cultivation to earn

livelihood; Fifthly, the other members of family were

also using their share in the land for doing rubber

plantation; Sixthly, the respondents owned only the

land in question which falls within the ceiling limits;

and lastly, though the respondents’ scheduled

property is a private forest as defined under the Act,

yet in the light of seven findings, the land in question

is not liable to be vested in the Government by virtue

of exemption available under Section 3(3) of the Act.

In other words, it was held that the respondents were

able to  make out  a  case  on  facts  as  contemplated

under Section 3(3) of the Act. The Tribunal therefore,

declared the land in question as exempted from being

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vested in the State.   As a consequence thereof, the

respondents were allowed to retain the land in

question for their personal cultivation.

11) The State felt aggrieved and filed review petition

before the Tribunal under Section 8­B of the Act. By

order dated 24.08.1988, the review petition was

dismissed. The State then filed an appeal in the High

Court of Kerala. By order dated 16.11.1999, the High

Court allowed the appeal and set aside the  main

order dated 21.02.1979 passed by the Tribunal.  

12) As  a result, the respondents’ application filed

under Section 8­B of the Act  was dismissed. The

respondents felt aggrieved  and filed  appeal in this

Court by way of special leave being Civil Appeal Nos.

8061­62 of 2001 (Joseph & Anr. vs. State of Kerala

& Anr., (2007) 10 SCC 414.

13) By order  dated  10.05.2007, this  Court after

interpreting the relevant provisions of the Act allowed

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the respondents’ appeals and while setting aside the

order of the High Court remitted the matter to the

High Court for its fresh consideration. (See – (2007)

10 SCC 414).

14) This Court in Paras 18 and 19 made the

following observations:          

“18.  Several questions arose for consideration before the High Court. The High Court indisputably had a limited role to play. We, as at present advised, are not inclined to accept the submission of Mr Iyer that sub­sections (2) and (3) of Section 3 of the 1971 Act would operate in the same field. In our opinion, both operate in different fields. However, on a plain reading of the impugned order passed by the High Court, we are of the opinion that the High Court was not correct in its view in regard to its construction of Section 3(3) of the 1971 Act. The Tribunal, while exercising its power under Section 8 of the 1971 Act, had taken into consideration the question which arose before it viz. as to  whether the appellants herein had intention to cultivate the land on the appointed day. Appointed day having been defined  in the 1971 Act, the  relevant aspect was the situation as it existed on that day i.e. on 10­5­1971. For the purpose of attracting sub­section (3) of Section 3 of the 1971 Act, it was not necessary that the entire  area  should have been cultivated  for

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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 Section 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 the 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. 19. The High Court, in our opinion, was not correct in opining that for applying Section 3(3) of the 1971 Act, the cultivation of the property subsequent to the vesting cannot be taken into account. The High Court also was not correct in arriving at a finding that there had  been  no evidence  whatsoever that the

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owners intended to cultivate the land prior to 10­5­1971. As the provision contained in sub­ section (3) of Section 3 of the 1971 Act clearly provides for exclusion of the operation of sub­section (1) thereof, the same has to be construed liberally.  So construed, the conduct of the parties was a relevant fact. The High Court, in our opinion, therefore was not correct in ignoring the findings of the Tribunal. Also, the High Court should  bestow  its  attention to the findings arrived at by the Tribunal  having regard to the limited nature of the scope and ambit of appeal  in terms of Section 8­A of the 1971 Act and, particularly, in view of the fact that the order dated 21­2­1979 had not been appealed against.”

15) The matter was accordingly heard by the High

Court after remand  with  a view to find out as to

whether the findings recorded by the Tribunal are in

conformity with the law laid down by this Court in

Joseph’s case  (supra).   By impugned order, the

State's appeal was dismissed by the High Court

which  gives rise to filing  of this  appeal  by  way  of

special leave in this Court by the State.

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16) Heard Mr. K.N. Balgopal, learned senior counsel

for the appellants and Mr. R. Basant, learned senior

counsel for the respondents.

17) Learned senior counsel for the appellant (State)

mainly urged one point. It was his submission that

the case of the respondents (landowners) does not fall

under  Section  3 (3) of the  Act and, therefore, the

Tribunal and the High Court were not right in

granting exemption to the respondents from vesting

of their land in question in the State.  

18) In other words, the submission of the  learned

counsel was that the respondents’ land being a

“private forest" stood declared vested in the State in

accordance with the provisions of the ceiling law and

the Act on an appointed day and hence the

respondents  were not  entitled to get  any benefit  of

exemption by taking recourse to Section 3(3) of the

Act.    

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19) Learned counsel elaborated this submission

with reference to the actual findings of the Tribunal

in the context of the wording of Section 3 (3) of the

Act and especially the expression “intended for

cultivation by him” occurring in sub­section (3) and

contended that the facts found by the Tribunal do not

satisfy the expression “intended for cultivation by the

landowners” and, therefore, no reliance could be

placed by the respondents on Section 3(3) of the Act

for claiming an exemption for their land from being

vested in the State.

20) In reply, learned counsel for the respondents

supported the impugned order and contended that it

does not call for any interference.

21) Having heard the learned counsel for the parties

and on perusal of the record of the case, we find no

merit in this appeal.

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22) In our opinion, the question as to what is true

interpretation  of the relevant  provisions  of the  Act

and  especially  Section  3(3) and  the  other  question

regarding holding of the land and its intended use by

the respondents stand already decided by this Court

in  the earlier round of litigation  in  its  order  dated

10.05.2007 in Paras 18 and 19 quoted above.   The

State cannot, therefore, be allowed to raise the same

plea again in the second round of litigation after

remand.   This Court in paras 18 and 19 explained

the object and purpose of Section 3(3) of the Act and

then holding that such provision has to be construed

liberally examined the facts of this very case and set

aside the order of the High Court  in the earlier round

of litigation.  The remand of the  case to the  High

Court was to examine the issue in the light of

interpretation made by this Court.

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23) That apart, in our view, the Tribunal has

recorded seven findings of fact as set out above in

para 10 while allowing the respondents’ application

filed under Section 8 and the same were not

interfered with by the High Court.  

24) In our opinion, all the seven findings are

otherwise found to be based on documentary

evidence filed by the respondents and the same were

properly appreciated by the Tribunal keeping in view

the two requirements of sub­section(3) of Section 3 of

the Act,  namely,  that  the title  was derived by the

respondents in relation to the land in question prior

to the appointed day, i.e.,10.05.1971 and second, the

land in question  was found in actual use by the

respondents for their personal cultivation even prior

to the appointed day.

25) In the light of these two findings recorded by the

Tribunal on facts and upheld by the High Court in

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the impugned  order  after remand,  which  were  not

found perverse or against any evidence or illegal in

any way, we do not find any ground to interfere in the

impugned order.

26) The appeal thus fails and is accordingly

dismissed.

                  ………...................................J.   [ABHAY MANOHAR SAPRE]

…...……..................................J.       [S. ABDUL NAZEER]

New Delhi; September 25, 2018  

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