STATE OF KERALA & ANR.versusJOSEPH & ANR.

                         [2018] 12 S.C.R. 685                                685


                    STATE OF KERALA & ANR.                                   A
                                    v.
                           JOSEPH & ANR.
                    (Civil Appeal No. 9912 of 2010)
                        SEPTEMBER 25, 2018                                   B
[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
       Kerala Private Forests (Vesting and Assignment) Act, 1971:
ss. 3(3) and 8 – On facts, respondent-landowners owned a piece of
land with rubber plantation and other trees – Claim of exemption
                                                                             C
of the said land from its vesting in the State – Entitlement to – Tribunal
declared the land as exempted from being vested in the State – High
Court set aside the order of the tribunal – In appeal before this
Court, matter remitted to the High Court – After remand, the High
Court upheld the order passed by the tribunal – On appeal, held:
Issue as regards interpretation of s.3(3) and holding of the land            D
and its intended use by the landowner having already decided by
this Court in the earlier round of litigation, the State cannot raise
the same plea again in the second round of litigation after remand
– Tribunal rightly based its finding on the documentary evidence
filed by the respondents keeping in view the requirements of s.3(3),
                                                                             E
that the title was derived by the respondents in relation to the land
prior to the appointed day and that the land was found in actual
use by the respondents for their personal cultivation even prior to
the appointed day – Thus, the order by High Court after remand
upheld.
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      Dismissing the appeal, the Court
       HELD: 1.1 The question as to what is true interpretation
of the relevant provisions of the Act and especially Section 3(3)
of the Kerala Private Forests (Vesting and Assignment) Act, 1971
and the other question regarding holding of the land and its
intended use by the respondents stand already decided by this                G
Court in the earlier round of litigation. The State cannot, therefore,
be allowed to raise the same plea again in the second round of
litigation after remand. This Court in explained the object and
purpose of Section 3(3) of the Act and then holding that such
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                                   685
686            SUPREME COURT REPORTS                      [2018] 12 S.C.R.


A     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. [Para 22] [693-E-G]
B           1.2 The tribunal recorded findings of fact as set out while
      allowing the respondents’ application filed u/s. 8 and the same
      were not interfered with by the High Court. All the 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 requirements of sub-section (3) of
C     Section 3, that the title was derived by the respondents in relation
      to the land in question prior to the appointed day and the land
      was found in actual use by the respondents for their personal
      cultivation even prior to the appointed day. [Paras 23-24] [693-
      G-H; 694-A-B]
D           1.3 In the light of these two findings recorded by the Tribunal
      on facts and upheld by the High Court in the impugned order
      after remand, which were not found perverse or against any
      evidence or illegal in any way, there is no ground to interfere in
      the impugned order. [Para 25] [694-C]S
E           Joseph & Anr. vs. State of Kerala & Anr. (2007) 10
            SCC 414 : [2007] 6 SCR 347 – referred to.
                             Case Law Reference
      [2007] 6 SCR 347                referred to             Para 12
F           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9912
      of 2010.
            From the Judgment and Order dated 03.12.2007 of the High Court
      of Kerala at Ernakulam in MFA No. 137 of 1989.
            K. N. Balgopal, Sr. Adv., G. Prakash, Jishnu M. L., Ms.
G     Priyanka Prakash, Ms. Beena Prakash, Mukundan, Jogy Scaria and
      Nishe Rajen Shonker, Advs., for the appellants.
            R. Basant, Sr. Adv., Vishnu P. and P. K. Manohar, Advs., for the
      respondents.

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         STATE OF KERALA & ANR. v. JOSEPH & ANR.                               687


      The Judgment of the Court was delivered by                               A
       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.
      2. In order to appreciate the short controversy involved in the          B
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.
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       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.
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       5. It is the case of the respondents that there existed rubber
plantation on this land. In addition, the respondents are also the purchaser
of the land, planted Teak and other trees on the land. It is also 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.                              E
       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     F
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           G
defined in Section 2(c) to 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:


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688           SUPREME COURT REPORTS                      [2018] 12 S.C.R.


A             “2. (f)(1) in relation to the Malabar District referred to in
             sub-section (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
B            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
C            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
D            lands used for purposes ancillary to the cultivation of such
             crops;
             (C) lands which are principally cultivated with cashew or
             other fruit-bearing trees or are principally cultivated with
             any other agricultural crop; and
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             (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
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             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.”
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            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
H            the time being in force, or in any contract or other
        STATE OF KERALA & ANR. v. JOSEPH & ANR.                            689
              [ABHAY MANOHAR SAPRE, J.]

       document but subject to the provisions of sub-sections(2)           A
       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
                                                                           B
       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 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      C
       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.                                                            D

       (3) 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           E
       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          F
       of sub-section(2) or sub-section(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.”               G
       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
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690             SUPREME COURT REPORTS                             [2018] 12 S.C.R.


A     for cultivation by him” occurring in sub-section (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
B     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 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’
C     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
D     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 vested in the State. As a consequence
E     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 8-B of the Act. By order dated 24.08.1988, the
      review petition was dismissed. The State then filed an appeal in the
F     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
      8-B of the Act was dismissed. The respondents felt aggrieved and filed
G     appeal in this Court by way of special leave being Civil Appeal Nos.
      8061-62 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 the respondents’ appeals and while
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        STATE OF KERALA & ANR. v. JOSEPH & ANR.                             691
              [ABHAY MANOHAR SAPRE, J.]

setting aside the order of the High Court remitted the matter to the High   A
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         B
       accept the submission of Mr Iyer that sub-sections (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               C
       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.                D
       Appointed day having been defined in the 1971 Act, the
       relevant aspect was the situation as it existed on that day
       i.e. on 10-5-1971. For the purpose of attracting sub-section
       (3) of Section 3 of the 1971 Act, it was not necessary that
       the entire area should have been cultivated for arriving at          E
       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               F
       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              G
       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
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692            SUPREME COURT REPORTS                        [2018] 12 S.C.R.


A            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
B
             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
C            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 owners intended to cultivate the land
             prior to 10-5-1971. As the provision contained in sub-
             section (3) of Section 3 of the 1971 Act clearly provides
D            for exclusion of the operation of sub-section (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
E            Tribunal having regard to the limited nature of the scope
             and ambit of appeal in terms of Section 8-A of the 1971
             Act and, particularly, in view of the fact that the order dated
             21-2-1979 had not been appealed against.”
             15. The matter was accordingly heard by the High Court after
F     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.
G           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,
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         STATE OF KERALA & ANR. v. JOSEPH & ANR.                                693
               [ABHAY MANOHAR SAPRE, J.]

the Tribunal and the High Court were not right in granting exemption to         A
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          B
get any benefit of exemption by taking recourse to Section 3(3) of the
Act.
       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        C
by him” occurring in sub-section (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.
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     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.
        22. In our opinion, the question as to what is true interpretation of   E
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         F
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.         G
      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.
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694                SUPREME COURT REPORTS                       [2018] 12 S.C.R.


A            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 sub-section(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
B
      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 the impugned order after remand,
      which were not found perverse or against any evidence or illegal in any
C     way, we do not find any ground to interfere in the impugned order.
              26. The appeal thus fails and is accordingly dismissed.
      Nidhi Jain                                                   Appeal dismissed.


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