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1997 DIGILAW 16 (KER)

State of Kerala v. Muhammed Shereef

1997-01-16

J.B.KOSHY, P.A.MOHAMMAD

body1997
Judgment :- Mohammed, J. This appeal has been filed by the State of Kerala and the Custodian and Conservator of Vested Forests, Kozhikode against the revised order dated 28th May 1987 in O.A. No. 94 of 1979 of the Forest Tribunal, Palghat. The respondent in the appeal is the applicant in the above O.A. filed under S.8 of the Kerala Private Forests (Vesting and assignment) Act, 1971 (for short, 'the act). The said application was earlier disposed of by the Tribunal granting exemption in favour of the respondent in respect of 11.75 acres in terms of sub-s.3 of S.3 of the Act. As against the said order an appeal had been filed by the present appellants as M.F.A.No. 247 of 1982. This court by judgment dated 26.11.1986 remanded the matter to the Tribunal for determining a specific question with regard to the ceiling limit. After the remand, the respondent has produced Exts. A7 to A9 documents. The Tribunal after placing reliance on those documents allowed the O.A. ordering consequently that the entire petition schedule property will be released to the respondent under S.3(3) of the Act. This decision is under challenge before us. 2. Heard learned Government Pleader who argued the case on behalf of the appellants before us. He maintains that the respondent has not complied with the directions issued by this Court in the judgment dated 26.11.1986. His further case is that the Tribunal acted erroneously in placing reliance on Exts. A7 to A9 documents. 3. This court by judgment dt. 26.11.1986 in MFA No. 247 of 1982 remanded the matter to the Tribunal observing as below: "We are, however, of the view that the respondent should be given another opportunity to produce before the Tribunal the relevant certificate of the Tahsildar and an affidavit sworn by him in accordance with Annexures B and C of the Kerala Private Forests (Exemption from Vesting) Rules, 1974 within one month from today. The Tribunal shall then reconsider the question of ceiling limit with reference to such evidence. Accordingly, we set aside the order of the Tribunal in so far as it relates to the question of ceiling limit. It is confirmed in every other respect. This question alone is now remitted to the Tribunal for fresh consideration with reference to such documents and other evidence as the parties may produce before him on the question of ceiling limit. It is confirmed in every other respect. This question alone is now remitted to the Tribunal for fresh consideration with reference to such documents and other evidence as the parties may produce before him on the question of ceiling limit. The appeal is allowed to this limited extent." The paramount duty before us is to find out whether there is compliance with the above directions of this Court by the respondent. In this context, it is apt to have a glimpse at the relevant provisions contained in the Kerala Private Forests (Exemption from Vesting) Rules, 1974 referred to in the judgment. The said rule was- introduced by the Government in exercise of the powers conferred by S.17 of the Act, as per the notification dated 23.4.1974. R.3(1) prescribes that if any owner claim exemption in respect of any land held by him from the provisions of sub-s.1 of S.3 he shall apply to the Custodian in Form No. I specifying the lands in respect of which he claims such exemption. Sub-r.2 provides that the application under sub-r.1 shall be accompanied by such documents as may be necessary for the verification of the particulars mentioned in the application in Form No. I. This application shall be accompanied by Annexures A, B & C. 4. Annexure B and C referred to in the judgment of this court in MFA No. 247 of 1982 are the same Annexures accompanying Form No. I. We have absolutely no doubt that the direction of the Court cannot be interpreted as a mere direction to produce certain documents in order to claim exemption. When this court has specifically directed production before the Tribunal of the certificate of Tahsildar and an afffiavit sworn by the respondent in accordance with Annexures B and C of the Rules, he has no option to produce the documents in any other manner. The direction given by this court is mandatory and the force of such direction cannot be minimised by saying that it is only directory. The very purpose of the direction to produce the certificate and affidavit in accordance with Annexures B and C would be effaced if it is treated as directory. In order to ascertain the true scope of these Annexures we find it essential to reproduce the full text of Form No. I which is as follows: 2 5 0 1R., (See rule 3) $33/,&$7,21 1. In order to ascertain the true scope of these Annexures we find it essential to reproduce the full text of Form No. I which is as follows: 2 5 0 1R., (See rule 3) $33/,&$7,21 1. Name and address of the applicant. 2. Have your furnished any statement to the Land Board under S.85(2) of the Kerala Land Reforms Act? If the answer is in the affirmative have you attached a copy of the said statement. 3. Have you furnished any statement to the Land Board under S.85A of the KLR Act? If the answer is in the affirmative, have your attached a copy of the said statement? 4. Has the Land board/taluk Land Board passed any order under S.85(5)(c) of the KLR Act? If the answer is in the affirmative have you attached a copy of the said order? 5. Have you furnished the particulars of such lands in the State held by you on 10th May, 1971 in Annexure A? 6. Have you furnished the particulars of land for which exemption is claimed under S.3(2) of the Kerala Private Forests (Vesting and assignment) Act, 1971 in Annexure B? 7. Have you furnished the particulars of lands for which exemption is claimed under S.3(3) of KPF (V & a) Act 1971 in Annexure C? SCHEDULE FORM No. 3 (See rule 5) AFFIDAVIT I, A.B „ do swear in the name of God/solemnly affirm that do not hold any land anywhere in the State except in the Taluk of and that do not hold any land in the said Taluk except the lands specified in the Schedule hereunder. SCHEDULE 5. What is prescribed in Annexure B to Form No. I is the certificate of the Tahsildar in whose jurisdiction the lands in respect of which the owner claims exemption from the provisions of S.3(1) of the Act situate. Likewise Annexure C is prescribed for the affidavit of the owner who claimed such exemption. Annexure A shall contain the particulars of the lands in the State held by the applicant-owner as on 10th May 1911. The question contained in column 5 of Form I also relates to the particulars of all lands in the State held by the owner on 10th May 1971. Therefore, the particulars of land to be included in Annexures B and C are the particulars as on 10th May 1971. The question contained in column 5 of Form I also relates to the particulars of all lands in the State held by the owner on 10th May 1971. Therefore, the particulars of land to be included in Annexures B and C are the particulars as on 10th May 1971. This requirement is mandatory because the determination of the question whether the owner holds the land in excess of the ceiling limit is dependent on the particulars of the land to be included in Annexure A, B & C. The failure to observe this provision strictly may result in defeating the purpose of the Act itself. The provision for exemption under sub-Ss.2 and 3 of S. 3 will apply only in case the owner holds the land not in excess of the ceiling limit. 6. Now we will examine the documents which were produced by the respondent pursuant to the direction of this court. Ext. A7 is the certificate dt.16.12.1986 issued by the Tahsildar, Ottappalam, certifying that Muhammed Sheriff (respondent) is holding land in Pompra desom in Karimpuzha-II Village of Ottappalam Taluk having an extent of 16.68 acres in survey number 9/1B in respect of which he has paid tax during the year 1975-76. First of all, Ext. A7 is not in the prescribed form of Annexure B. The certificate issued on 16.12.1986 is seen to have been corrected by the Tahsildar on 11.5.1987 stating the correct survey number as 50/1B instead of 9/1B. Whatever that be, the certificate further shows that apart from the aforesaid properties Muhammed Sheriff has no other property in that village. What is required as per Annexure B certificate is the extent of land held by the owner in the Taluk and not in the village. What is contained in the certificate is that the owner had paid tax during the year 1975-76 and not during 1971-72. There is nothing in the certificate to indicate that the extent of land shown therein is the land held by the applicant as on 10th May 1971. Then how could this certificate be taken in aid for determining the ceiling area applicable to the respondent? What is required is a definite and true information to determine the ceiling area applicable to the owner on the basis of the particulars of land held by him as on 10th May 1971. Ext. A7 will not serve that purpose. Then how could this certificate be taken in aid for determining the ceiling area applicable to the respondent? What is required is a definite and true information to determine the ceiling area applicable to the owner on the basis of the particulars of land held by him as on 10th May 1971. Ext. A7 will not serve that purpose. We therefore, decline to accept Ext. A7 as a valid certificate in Annexure B as directed by this Court. 7. Ext. A8 is another certificate issued by the Tahsildar, Meenachil Taluk dt. 3.12.1986 stating that the wife of M.P. Muhammed Sheriff is holding 3.25 acres of land in survey number 162/1-2 of Erattupettah village during the year 1970-71. That certificate is also infirm for the reason that it is not in the prescribed form of Annexure B. 8. Ext. A9 is the affidavit sworn by the respondent produced before the Tribunal in view of the direction of this Court Firstly it has to be said that this affidavit is not in the prescribed Annexure C (From No. 3). The affidavit in Form No. 3 shall be signed in the presence of two witnesses. There is nothing to show that it was signed by the applicant in the presence of the witnesses. The name of the witnesses are not stated. The attestation by the advocate is not a substitute for witnesses. The presence of witnesses at the time of execution of the affidavit is a measure against stating false and incorrect particulars. At any rate, this affidavit does not contain the particulars of land held by the respondent as on 10th May 1971. In view of the above reasons, we decline to accept Ext. A9 document produced by the respondent. 9. In view of the discussion herein above, we hold that the respondent has failed to comply with the directions given by this Court in the judgment in M.F. A. No. 247 of 1982. The impugned order passed by the Tribunal is therefore, invalid in law. In the result, the appeal is allowed.