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1984 DIGILAW 151 (KER)

STATE OF KERALA v. CHINNAMMA AMMA

1984-06-19

BALAKRISHNA MENON, JOHN MATHEW

body1984
Judgment :- 1. This is a consolidated appeal against the common order of the Forest Tribunal, Palghat, in O. A. Nos. 1285, 1350 and 1368 of 1974.0. A. No. 1285 of 1974 is by one applicant for a declaration under S.3 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as the Act), that the land mentioned in the schedule to the application is not vested forest under S.3 (1) of the Act. O. A. No.1350 of 1974 is a similar application by two applicants for similar relief and O. A. No. 1368 of 1974 is by three applicants also for the relief of declaration that the lands mentioned in the schedule to the application are not private forest vested in the Government under S.3(1) of the Act. The applications were opposed by the Custodian of Vested Forests who filed separate counter statements contending that the lands involved in these applications form part of Annaganmala which is a private forest vested in the Government. The Forest Tribunal on the basis of Exts. A5 to A7 certificates of purchase issued to the respective applicants by the Land Tribunal under S.72-K of the KLR. Act held that the lands involved in these applications fall within the ceiling limit applicable to the respective applicants and are therefore exempted under S.3(2) of the Act. It is against this that the State and the Custodian of Vested Forests, have come up in appeal. 2. Even though in the counter statements filed on behalf of the Custodian there is denial of the title of the respective applicants to the land involved in these applications, there is no dispute before us, that these lands were included in Ext. Al partition dated 23-4-1974, among the members of the tarwad of the applicants, and the lands involved in the three applications were allotted towards the shares due to the respective applicants. All the three applications filed before the Forest Tribunal are in the prescribed form and under the entry "ground for filing the application", it is stated that the lands involved in these applications are not vested forests, they are lands under the personal cultivation of the respective applicants, and the applications are occasioned for the reason of obstruction by the Forest Officials against cultivation of these lands by the applicants. 3. 3. The prayer in all these petitions is for a declaration that the lands involved are not private forests vested in the Government. What the Tribunal has found is that the lands fall within the exemption mentioned in subsection (2) of S.3 of the Act, for the reason that it falls within the ceiling limit applicable to the respective applicants. That finding is based on the certificates of purchase Exts. A5 to A7 issued by the Land Tribunal. 4. Even though the relief prayed for in these petitions would involve a question as to the exemption under sub-section (2) of S.3, the principal question for determination is as to whether the lands concerned are private forests within the meaning of the Act. If the lands involved are not private forests there will be no need to consider the question of exemption under sub-section (2) of S.3. The certificates of purchase Exts. A5 to A7 relied on by the Tribunal are issued by the Land Tribunal under S.72-K of the KLR. Act. Clause.7 of S.3(1) of the KLR Act exempts leases of private forests from the operation of Chapter II of the said Act. Under S.72 of the said Act, the right, title and interest of the landlord and the intermediary in respect of holdings held by a cultivating tenant vested in the Government on the notified date, and there are elaborate provisions in Chapter II for the assignment of such rights vested in the Government, to the cultivating tenant and for the issue of certificate of purchase to him. It was therefore contended that for the reason of the issue of the certificates of purchase Exts. A5 to A7 by the Land Tribunal to the respective applicants, it should be presumed that the lands involved are not private forests. The definition of private forests in the Act is not the same as in the Land Reforms Act. The Tribunal has not also considered the question whether the certificates of purchase Exts. A5 to A7 relate to the land involved in these applications. The principal question as to whether these lands are private forests vested in the Government under S.3(1) of the Act is also not seen considered. The finding of the Tribunal that the lands fall within the ceiling limit applicable to the respective applicants cannot also be sustained. The Act came into force on 10-5-1971. The principal question as to whether these lands are private forests vested in the Government under S.3(1) of the Act is also not seen considered. The finding of the Tribunal that the lands fall within the ceiling limit applicable to the respective applicants cannot also be sustained. The Act came into force on 10-5-1971. On the date on which the Act came into force the lands involved in these applications belonged to the tarwad of the applicants. The applicants got separate rights on partition of the tarwad in 1974 as per the partition deed produced in the case and marked as Ext. Al. The question as to the applicability of the exemption under subsection (2) of S.3 of the Act, should therefore be considered with reference to the ceiling limit applicable to the then owner of the land viz. the tarwad of the applicants. It is also necessary to consider whether the lands involved in these applications were under the personal cultivation of the owner of these lands on the date on which the Act came into force. These questions arising in these cases are not even adverted to by the Tribunal. 5. Learned Counsel appearing for the respondents has raised a contention that the common appeal against the decisions in the three separate applications is not maintainable. Learned Counsel points out that sub-rule (3) of R.3 of the Kerala Private Forests (Vesting and Assignment) Appeal Rules was introduced by amendment dated 10-1-1980. This appeal is filed as early as in 1978, before sub rule (3) was introduced permitting the filing of one appeal against the common order of the Tribunal in more than one application. We do not find much substance in this contention. Sub-rule (3) introduced by amendment in 1980 is only a procedural provision. Bindra in his Interpretation of Statutes, 6th Edition, page 750 quotes the following passage from the decision of Lord Blackburn in Gardner v. Lucas (1878) 3 AC. 562: "It is perfectly settled that if the Legislature intended to frame a new procedure that, instead of proceeding in this form or that, you should proceed in another and a different way, clearly than bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be." 6. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be." 6. In the decision of the Supreme Court in Anant Gopal Sheorey v. The State of Bombay (AIR. 1958 SC.915), it is stated at page 917: "No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the code of procedure is altered he has no other right than to proceed according to the altered mode. See Maxwell on Interpretation of Statutes on p. 225; Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC. 369(A). In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective." 7. There can therefore be no doubt that the appeal filed against the common order in the three applications before the Tribunal is perfectly within the scope of sub rule (3) of R.3 introduced by amendment effected in 1980, the sub rule relates to a purely procedural matter, and there is no substance in the objection raised against the maintainability of the appeal. The objection is accordingly overruled. 8. Since we have found that the real questions arising for decision in the applications before the Tribunal have not been considered, we set aside the order of the Tribunal and remand the applications to the Tribunal for fresh disposal, according to law and in the light of the directions and observations contained in this judgment. The appeal is allowed as indicated above. There will be no order as to costs. Allowed.