STATE OF KERALA v. KONGAD T. DEVASWOM — 1979 DIGILAW 227 (KER)

Judgment :- Subramonian Poti J: Can it be said that a Devaswom, which is found to be a religious institution of a public nature, does not hold land within the ceiling limit applicable to the Devaswom, because the lands are those which are exempt under S.81 (1)(t) of the Kerala Land Reforms Act. It is contended so by the Devaswom in this case, which is the respondent before us. This contention arose in an application filed by the Devaswom under S.8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971. Admittedly the Devaswom held forest land, 52 acres 25 cents in Sy. No. 381/8. Only 15 acres are said to be wooded area and the remaining is said to be cultivable dry land. The Devaswom has claimed that it was a religious institution of a public nature and for that reason the lands held by it are outside the purview of , Chapter III of the Kerala Land Reforms Act, 1963. S.81 of the Act exempted from the provisions of Chapter III certain categories of lands and one of them was lands owned or held by a religious institution of a public nature, provided the entire income of such lands is appropriated for the institution concerned. On the facts there is no dispute. Assuming that the income of the lands is used by the institution solely for the institution, and therefore the lands out of which such income is derived is exempt under S.81 (1) (t), can it be said that in respect of the lands which are found to be private forests there would be no vesting under the Kerala Private Forests (Vesting and Assignment) Act, 1971. In other words, are lands exempt from the operation of the provisions of Chapter III of the Kerala Land Reforms Act by reason of S.81 of the Act lands outside the purview of vesting under Kerala Act 26 of 1971? The Forest Tribunal has found that it is so and accordingly allowed the application of the Devaswom. That is challenged in this appeal by the State and the Custodian of Vested Forests. 2. S.82 defines ceiling area. S.82 (1) (a) to (c) deals with the ceiling area for an adult unmarried person and a family, and S.82 (1) (d) deals with the ceiling area of 'any other person'. That is challenged in this appeal by the State and the Custodian of Vested Forests. 2. S.82 defines ceiling area. S.82 (1) (a) to (c) deals with the ceiling area for an adult unmarried person and a family, and S.82 (1) (d) deals with the ceiling area of 'any other person'. That the Devaswom falls within the class or category of 'any other person' is not in dispute. Therefore, the provision with regard to ceiling in regard to the Devaswom is that such ceiling area shall be 10 standard acres, so however, that the ceiling area shall not be less than twelve and more than fifteen acres in extent. No doubt by reason of S.81 of the Act in directing surrender of excess land, lands exempt under S.81 would be outside the purview of any such direction. They could be held despite the fact that they are in excess of the ceiling area. That would mean that a person who holds lands falling within the exempted category could hold such lands in addition to what such person is permitted to hold as ceiling area. That is to say that the ceiling and surrender provisions will not operate in respect of land which is exempt. 3. There is no provision in the Kerala Private Forests (Vesting and Assignment) Act, 1971 which excludes from the purview of vesting lands which are of the exempted category under the Kerala Land Reforms Act. Therefore, merely because a person is allowed to hold such exempted land besides land within the ceiling limits under the provisions of the Kerala Land Reforms Act, he cannot claim that the lands exempt under the Kerala Land Reforms Act would be exempt from the operation of the provisions of Kerala Act, 26 of 1971. But what is urged is that though there is no specific provision in this behalf in the Kerala Private Forests (Vesting and Assignment) Act, S.3(2) of the Act must necessarily lead to this result. That Section reads thus: "3. But what is urged is that though there is no specific provision in this behalf in the Kerala Private Forests (Vesting and Assignment) Act, S.3(2) of the Act must necessarily lead to this result. That Section reads thus: "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 such 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." By reason of S.3(1), all private forests would vest with effect from the appointed day, (which is 10-5-71) in the Government and the right, title and interest of the owner or any other person concerning such forest will stand extinguished as from that date. This is irrespective of the question whether such private forest is a subject of exemption under the provisions of the Kerala Land Reforms Act or not. Sub-section (2) saves from the purview of vesting 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. or any building or structure standing thereon or appurtenant thereto. This provision, it may be noticed, works out the safeguard provided in Art.31A of the Constitution. Therefore, despite the provision in sub-section (1) that private forest shall vest so much extent of the private forest as would be within the ceiling limit applicable to a person under the Kerala Land Reforms Act would be outside the scope of vesting. This provision, it may be noticed, works out the safeguard provided in Art.31A of the Constitution. Therefore, despite the provision in sub-section (1) that private forest shall vest so much extent of the private forest as would be within the ceiling limit applicable to a person under the Kerala Land Reforms Act would be outside the scope of vesting. Sub-section (1) of S.3 would not apply to that much extent of land. Naturally therefore the question that will arise would concern the area of land that could be the ceiling limit applicable to the claimant. If the claimant is an institution of the nature contemplated in S.81(1)(t) of the Kerala Land Reforms Act. the lands, the entire income from which is appropriated for the institution, could be outside the provisions of Chapter III of the Act. It may be that the institution may possess other lands. It may be that it acquires other lands in due course. In respect of such lands it is possible that either on 1-1-1970, the date on which the ceiling provisions came into force, or on subsequent date, extent in excess of the ceiling area is held by a person and if so the provision as to surrender may become applicable. We are only indicating that even in respect of a person like a religious institution of a public nature the ceiling area is provided for under S.82(1)(d) of the Act. It may hold land other than exempted land within the ceiling area. It may hold no land at all other than the exempted land. It may hold laud in excess of the ceiling area other than land falling within the scope of exemption under S.81(1)(t). It may not hold land other than exempted land on 1-1-1970, but may acquire such land in excess of the ceiling area later. It may hold no exempted land at all. In all these cases the question of ceiling area of land for such person would arise for consideration. It is not as if in respect of a religious institution of a public nature there is no provision as to what should be the ceiling area to be held. There is, and that is provided in S.82(1)(d). The reference in S.3(2) of Act 26 of 1971 to the ceiling limit applicable to a person is to the ceiling limit as indicated in S.82(1) of the Kerala Land Reforms Act. There is, and that is provided in S.82(1)(d). The reference in S.3(2) of Act 26 of 1971 to the ceiling limit applicable to a person is to the ceiling limit as indicated in S.82(1) of the Kerala Land Reforms Act. Though 'private forest' is land exempt under S.81(1), S.3(1) of Act 26 of 1971 provides for vesting of private forest in the State, subject of course to S.3(2). That itself is sufficient to show that despite the fact that the land is exempt directly under S 81(1)(t) of the Act, Act 26 of 1971 applies to such land and the ceiling limit referred to in S.3(2) of the Act is in fact a reference to the limit mentioned in S.82(1)(d) of the Act. Therefore in regard to lands which fall within S.81(1)(t) of the Land Reforms Act also, the ceiling limit referred to in S.3(2) of Act 26 of 1971 must be understood as the limit of land specified in S.82(1)(d) of the Kerala Land Reforms Act. The Forest Tribunal was therefore in error in assuming that there is no question of ceiling limit applicable to the Devaswom, because it held land exempted under S.81(1)(t) of the Kerala Land Reforms Act. 4. To qualify for exclusion under S.3(2) of Act 26 of 1971 the question of considering the ceiling limit of land as the term is understood in S.3(2) is necessary. That has not been determined by the Forest Tribunal. That calls for fresh determination by the Tribunal. We therefore set aside the order of the Tribunal and remit the case back to the Tribunal to consider the extent of land to which S.3(1) of Act 26 of 1971 would not apply as land within the ceiling limit applicable to the Devaswom. The appeal is disposed of as above. No costs. Allowed.