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1992 DIGILAW 236 (KER)

State of Kerala v. Subramonian Namboodiri

1992-07-15

MANOHARAN, VISWANATHA.IYER

body1992
Judgment :- Viswanatha Iyer, J. This is an application filed under S.8C(2) of the Kerala Private Forests 869 acres of land a varied document of title executed before the appointed day Si10^vl^71), that it was intended for cultivation by him, and that his holdings not exceed the extent of the ceiling area applicable to his family under S.82 of the Kerala Land Reforms Act 1963. The Forest Tribunal accepted the content and allowed the application. The appeal therefrom was dismissed by this court. 2 In support of his contention for exclusion of the land from vesting in the that the area in dispute was under the personal cultivation of the respondent and that it was excluded from vesting in Government under S.3(3). 3 The State did not challenge this decision in appeal. They accepted it. It was long there Land of Vested Forests have filed this Review Petition. S.8C(2) which is an extraordinary provides for a review under limited circumstances and reads: "8C (2) Notwithstanding anything contained in this Act, or in the Limitation Act, 1963 act 36 of 963 to many other law for the time being in force, or in any judgment, decree Forests (Vesting and assignment) Amendment Act, 1986 and ending on the 31st day of March, 1987, make an application to the High Court for review of such order." 4. Two contentions are very strenuously urged by the learned Government Pleader Sri. V. Bhaskara Menon, appearing for the petitioners. It is his case that the burden of proving that the area in question was excluded under S.3(3) of the Act lay on the respondent and that that burden has not been discharged. This contention has only to be staled and rejected. - It is true that the burden of proving the exclusion is on the respondent. He has attempted to discharge that burden by 'examining himself, as also by producing numerous documents to prove that the area was under cultivation. The evidence on the side of the State was totally barren. The respondent's evidence was appraised, and the Forest Tribunal as well as this court came to the conclusion that the land had been under his cultivation. The question whether the evidence in the case was sufficient to discharge the burden or not is a mailer pertaining to appreciation of the evidence in the case. The respondent's evidence was appraised, and the Forest Tribunal as well as this court came to the conclusion that the land had been under his cultivation. The question whether the evidence in the case was sufficient to discharge the burden or not is a mailer pertaining to appreciation of the evidence in the case. This has already been done by this court with the result and conclusion that the land was liable to be excluded under S.3(3). Section 8C does not contemplate a review on the same materials. The question of review arises only if one or other of the circumstances mentioned in the section exists. The review petition is not an appeal from the judgment justifying a second look at the evidence, without any fresh material and without any of the conditions laid down in S.8C(2) existing. The petitioners have therefore to satisfy the court about the existence of the conditions specified in S.8C(2) before making a request to consider the matter afresh. 5. If the petitioners were aggrieved by the decision of this court and the appreciation of evidence therein, they should have gone in appeal against the said decision. A remedy of review under S. SC(2) is not available to them merely because the State feels the decision is wrong on the merits. S.8C(2) envisages a review only if the decision of this court had been made on the basis of concession made before it without the authority in witting of the Custodian or the Government, or due to the failure to produce relevant data or other particulars before the Tribunal or that an appeal against such decision could not be filed by reason of the delay in applying for and obtaining a certified copy of the decision. What the Government Pleader would contend is that relevant material had not been brought to the notice of this court at the time the mailer was argued earlier and therefore in law, there is a concession. Assuming that the proposition of law propounded is correct, we are not in a position to accept the submission of the Government Pleader on the facts of this case for the reason that this court did apply its mind to the evidence in the case and was satisfied that it was sufficient to sustain the respondent's claim that the land was under his personal cultivation. There is no question of any non-application of the mind or of this court's almond not being drawn to any part of the evidence in the case, even assuming that was sufficient to be a concession in law. No fresh data, material or particulars as mentioned in S.8C(2) have been produced along with this review petition. We do not therefore find any substance in this first contention on behalf of the petitioners. 6. The learned Government Pleader submitted next that the exclusion under 3.3(3) and S.3(2) can be earned by following the procedure prescribed in the Kerala private Forests (Exemption from Vesting) Rules 1974 (hereinafter referred to as the 'Exemption from Vesting Rules. The learned Government Pleader would maintain that the exclusion under S.3(3) (which he would claim to be an exemption) can be obtained only by presenting an application to the Custodian in Form No.l to these Rules specifying the lands in respect of which the "exemption" is claimed. Unless that procedure is followed, and that too within the time prescribed by the Rules, namely on or before 25th August 1974, the question of claiming any "exemption" under S.3(3) does not arise. In other words, the contention of the Government Pleader is that there is an ousting of the jurisdiction of the Forest Tribunal to the extent that there is a claim under S.3(2) or 3(3). A petition under S.8 will not lie for a claim under S.3(2) or 3(3). He states therefore that the decision of this court as well as of the Forest Tribunal rendered in proceedings under S.8 are void in law. This aspect of the matter, according to him, had not been presented before the Bench when it rendered the decision in the appeal, and that constitutes a ground for review. 7. Having heard the learned Government Pleader, who fervently put forward this plea, at great length, we do not find our way to accept this submission. The question really pertains to the jurisdiction of the Forest Tribunal to decide the dispute in question. Before we deal with this point, we may refer to the scheme of the Act and to some of its salient provisions. S.2(f) defines what is a private forest. The question really pertains to the jurisdiction of the Forest Tribunal to decide the dispute in question. Before we deal with this point, we may refer to the scheme of the Act and to some of its salient provisions. S.2(f) defines what is a private forest. S.3(1) provides that 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 the 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. The appointed day is 10 May 1971. The section is explicit that the vesting of private forests in the government is subject to the provisions of sub-sections (2) and (3). Sub-section (2) provides that nothing contained in sub-section (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. Sub-section (3) provides that nothing contained in sub-section (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 area applicable to him under S.82 of the Act. The effect of these two sub-sections is that land held by an owner under his personal cultivation, or intended for his personal cultivation, shall not vest in the Stale, if the other conditions specified therein are also satisfied. It must be noted that subsections (2) and (3) lay down an exclusion from vesting, and not merely an exemption. 8. The effect of these two sub-sections is that land held by an owner under his personal cultivation, or intended for his personal cultivation, shall not vest in the Stale, if the other conditions specified therein are also satisfied. It must be noted that subsections (2) and (3) lay down an exclusion from vesting, and not merely an exemption. 8. Section 6 of the Act specifies that as soon as may be, after the appointed date, the Custodian shall cause the boundaries RI the private forests vested in the Government under sub-section (1) of S.3 to be demarcated. This may be done despite the pendency of a petition under S.8 before the Tribunal. S.8 provides for settlement of disputes, for which purpose, Tribunals are constituted under S.7. Sub-section (1) slates that where any dispute arises as to whether (a) any land is a private forest or not; or (b) any private forest or portion thereof has vested in the Government or not, the person who that the land is not a private forest or that the private forest has not vested in the Government, may, within such period as may be prescribed, apply to the Tribunal for decision of the dispute. An appeal lies to the High Court against this decision under S.8A. These are some of the important provisions. 9. The disputes envisaged by S.8(1) fall into two categories: (1) whether any land is a private forest or not; a matter referrable to S.2(f) of the Act; (2) whether any private forest or portion thereof has vested in the Government or not, a matter which falls under sub-sections (2) and (3) of S3. These are the two categories of disputes likely to arise for decision under the Act, and between them, they will exhaust all the categories of disputes that could arise for decision between the owners of the land and the government. S.8 vests the Tribunal with the exclusive jurisdiction to decide both these categories of disputes, the jurisdiction of the civil courts being barred under S.13. The jurisdiction of the Tribunal is thus comprehensive and all embracing. There is no exclusion in the Act of the jurisdiction of the Tribunal to decide claims under S.3(2) or3(3) namely exclusion of lands used or intended for personal cultivation. The jurisdiction of the Tribunal is thus comprehensive and all embracing. There is no exclusion in the Act of the jurisdiction of the Tribunal to decide claims under S.3(2) or3(3) namely exclusion of lands used or intended for personal cultivation. Nor is there any provision anywhere in the Act which obliges the Tribunal to reface such a dispute for the decision of the Custodian of Private Forests, as under S.125(3) of the Land Reforms Act, 1963. On the terms of S.8, the Tribunal's jurisdiction to decide such a dispute is unquestionable and that jurisdiction is plenary and absolute, not hedged in by any condition, that it should be referred for decision by the Custodian or be rendered by following any particular procedure. We are of the opinion that it is the right of the owner to approach the Tribunal for decision of the dispute under S.8 when once it. is raised. That cannot be taken away by framing any rules. We are not in a position to accept the tall contention of the learned Government Pleader based on the Exemption from Vesting Rules that there is an exclusion of the jurisdiction of the Tribunal to that extent. Needless to say, the Rules cannot deprive the Tribunal of the jurisdiction which is otherwise vested in it under the Act. 10. We may also mention that if we do accept this contention of the Government Pleader, we will be depriving the Tribunal of its jurisdiction without at the same time providing for any reference therefrom to the custodian in case such a dispute arises before it incidentally. In fact many of the landowners will be deprived of their remedy in view of the outer date of 25 August 1974 prescribed in the Exemption from Vesting Rules for an application thereunder. 11. The relative scope of S.8 and of the Exemption from Vesting Rules came up for consideration in O.P.No.3073 of 1975 (Balan v. State of Kerala, 1976 KLT SN 18). A Bench of this court stated that the Rules were intended to provide the machinery, the flesh and blood as it were, to the skeleton that is contained in S.6 authorising the Custodian to demarcate the boundaries of private forests. A Bench of this court stated that the Rules were intended to provide the machinery, the flesh and blood as it were, to the skeleton that is contained in S.6 authorising the Custodian to demarcate the boundaries of private forests. S.6 is not in conflict with S.8 because the two have to co-exist and there are sufficient indications in the sections themselves as to the manner in which the Tribunal has to act. A determination of the demarcation of the boundaries under S.6 by the Custodian is a tentative or preliminary demarcation apparently for the purpose of having some material on the basis of which actions can be proceeded with pending final determination of the matter by the Tribunal In that view of the matter, this court found no conflict between S.8 and the Exception from Vesting Rules.