Kerala High Court
M.S. Bhargavi Amma And Etc. Etc. vs State Of Kerala And Anr. on 27 August, 1997
Equivalent citations: AIR 1998 KERALA 1, 1998 A I H C 288, (1997) ILR(KER) 3 KER 771, (1997) 2 KER LJ 337, (1997) 2 KER LT 513
JUDGMENT Thulasidas, J.
1. M.F.A. No. 791 of 1988 is by one of the petitioners against the common order of the Forest Tribunal, Palghat dated 24-2-1988 on two unregistered petitions filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971, (26 of 1971) (for short the Act). M.F.A. Nos. 740, 748 and 1438 of 1996 are against orders passed on O.A. Nos. 122 of 1993, 67 of 1995 and 204 of 1990 respectively of the Forest Tribunal, Kozhikode, whose common order on O.A. Nos. 36, 37, 38, 39 and 40 of 1993 is under challenge in M.F.A. No. 68 of 1997.
2. Two Division Benches of this Court by separate orders passed on 6-8-1986 arid 15-1-1997 noticed a conflict of views as to the scope of Section 8 of the Act and about the jurisdiction of the Forest Tribunal and pointed out that the decision in State of Kerala v. Komalavally, (1995) 2 Ker LT 26 : (1995 AIHC 2874), whose correctness was challenged, ran counter to Ranga Sesha Hills (P) Ltd. v. State of Kerala (1991) 2 Ker LT 49 and unreported decisions in M.F.A. Nos. 510 of 1984, 86 and 249 of 1988. These cases are referred to us to settle the controversy.
3. We heard counsel for the appellants and the Government Pleader.
4. By the order challenged in M.F.A. No. 791 of 1988, the Forest Tribunal held upon the relevant provisions of the Act and the Rules (Kerala Private Forests (Tribunal) Rules and Vesting and Assignment Rules) (for short the Rules), that its powers are not as wide as of a Civil Court, that under Rule 3 of the Tribunal Rules art application under Section 8 has to be tiled within sixty days from 6-8-1981 or within 60 days from the date of publication of the notification under Rule 2-A of the Private Forests (Vesting and Assignment) Rules, whichever is later. Since in those cases it was urged that no notification was published, the Tribunal was of the view that the applications should have been filed within 60 days from 6-8-1981, but were filed only on 15-12-1987 and, therefore, were held to be time-barred. Accordingly the petitions were rejected.
5. By order on O.A. No. 122 of 1993, which is the subject-matter in M.F.A. No. 740 of 1996, the applications under Section 8 were filed on 8-10-1993 following an alleged interference by the Forest Officials with the enjoyment of the property by the appellants, whose case was that it was not a private forest, had not been notified and vested with the government on the appointed day. The Tribunal held on the basis of the decision in 1992 (2) Ker LT 26, the dispute that had been raised did not fall within its purview and dismissed the petition. On the same reasoning the other petitions were also dismissed.
6. The Act which came into force on 23-8-1971, was to provide for the vesting in the Government of private forests in the State of Kerala and for the assignment thereof to agriculturists and agricultural labourers for cultivation. It is unnecessary to go into the history of the legislation, which is well known. Private Forests as defined in Act 1 of 1964 were exempted from the ceiling provisions. The State had taken note of the scarcity of lands and density of population, which is very high. Surplus lands which may be available by the implementation of the ceiling provisions were found not sufficient to meet the demand for land for agricultural labourers. It was also felt that to allow a few people to be in ownership and control of these agricultural lands would be against the directive principles of State policy. It was as part of agrarian reforms in the State that it was felt necessary to take over lands and utilise the same by distribution to agricultural labourers for the promotion of agriculture and for the welfare of the agricultural population in the State. It was observed in V. Venugopala Varma Rajah v. Controller of Estate Duty, Kerala, 1969 Ker LT 320 : (AIR 1969 Kerala 304) that in the absence of exceptional circumstance such as the land being entirely rocky and barren or for other reasons, all forest lands in this State arc agricultural lands in the sense that they could be prudently and profitably exploited for agricultural purposes.
Several other decisions also came and the Government passed Kerala Private Forests (Vesting and Assignment) Ordinance, 14 of 1971, that was replaced by the Act.
Section 2(c) states that "owner" in relation to a private forest includes a mortgagee lessee or other persons having right to possession and enjoyment of the private forest, and as per clause (f), "private forest" means -
(1) in relation to the Malabar Districl referred to in Sub-section (2) of Section 5 of the States Reorganisation Act, 1956 (Central Act 37 of 1956) -
(1) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied 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 cinamom and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.
Explanation omitted.
(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop, and (D) Omitted.
7. Under Section 3 : (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-section (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 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.
Explanation : For the purposes of this subsection, "cultivation" includes cultivation of trees or plants of any species.
(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 Chapter III of Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling area applicable to him under Section 82 of the Act.
(4) omitted.
8. Section 4 states that "All private forests vested in the Government under Sub-section (1) of Section 3 shall, so long as they remain vested in the Government, be deemed to be reserved forests constituted under the Kerala Forest Act, 1961 (4 of 1962), and the provisions of that Act shall, so far as may be, apply to such private forest" and Section 5 empowers "the custodian or any officer not below the rank of Divisional Forest Officer authorised by the custodian in that behalf, to summarily evict any person in unauthorised occupation of any private forest vested in the Government under Sub-section (1) of Section 3."
Section 6 provides for demarcation of boundaries by the custodian of the private forests vested in the Government under Sub-section (1) of Section 3 and under Sub-section (2), even during the pendency of an application under Section 8 before the Tribunal, the custodian may, if satisfied that any land is a private forest vested in the Government under Sub-section (1) of Section 3 cause the boundaries thereof to be demarcated as if such land has vested in the Government under that Sub-section.
Section 7 provides for the constitution of Tribunals and Section 8 for settlement of disputes by the Tribunal. Section 8-A provides for appeal to the High Court by the Government or any person objecting to any decision of the Tribunal within the time prescribed. We will omit Sections 8-B, 8-C, 8-D, 9 and 10, which deal with assignment of private forests.
Under Section 13 : "(Except as otherwise provided in this Act), no civil Court shall have jurisdiction to decide or deal with any question or to determine any matter which is, by or under this Act, required to be decided or dealt with or to be determined by the Tribunal, the custodian or any other officer" and Section 17 empowers the Government to make rules to carry out the purposes of the Act.
9. The word "dispute" is not defined in the Act and would mean "a controversy having both positive and negative aspects and postulates the assertion of a claim by one party and its denial by the other." (See AIR 1979 SC 1203). In the context of Section 8, it would relate to the question "whether any land is a private forest or any private forest or portions thereof has vested in Government or not". Indeed there can be disputes following the publication of the notification and without (sic) or where it had not been proved or admitted and also in regard to its scope and legality. Section 13 bars the jurisdiction of civil Court to decide or deal with any question or to determine any matter, which is by or under the Act required to be decided or dealt with or determined by the Tribunal, the custodian or any other officer, (which normally comes within the scope of Sub-sections (2) and (3) of Section 3.). It was held in State of Kerala v. Subramonian Namboodiri, (1992) 2 Ker LT 300 that :
"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. It is the right of the owner to approach the Tribunal for decision of the dispute under Section 8 when once it is raised. That cannot be taken away by framing any rules. What the Exemption from Vesting Rules provide is an additional remedy by which the owner may gel relief under Section 3(2) or 3(3) without approaching the Tribunal. It enables the custodian himself to exclude the lands where it is due. It only provides an alternate forum for providing speedy relief to an owner by excluding the lands from the vesting even at the threshold. This apparently is the reason why a very short period of time was provided for making an application under those Rules namely on or before 25th August, 1974. Failure to apply under those rules cannot, therefore, deprive the owner of the benefit of an adjudication under Section 8(1)(b)."
10. In Ranga Sesha Hills (P) Ltd. v. State of Kerala, (1991) 2 Ker LT 49, the Court held that Rule 3 of the Tribunal Rules does not preclude an aggrieved party from moving an application even if a notification had not been issued and in that context it was also observed that :
"The mere fact that the appellant takes the position that the notification issued under the Act does not take in his land, cannot preclude the operation of Sub-section (1) of Section 8. Whether the appellant's land is included in the notification or not is the very essence of the dispute in the case and that dispute has to be resolved in accordance with the scheme provided by the Act."
In yet another unreported decision in M.F.A. No. 510 of 1984 this Court held that:
"It is open to an aggrieved person to file a petition under Section 8 of the Act if his possession is threatened and even without a notification. In such a case, the petition will be in time. It is open to an aggrieved person to wait for the publication of notification. In such a case, he has to file the petition within 60 days from the date of publication of notification."
11. But in State of Kerala v. Komalavally, (1995) 2 Ker LT 26 : (1995 AIHC 2874 at pp. 2875-76) it was held that:
"When there was no notification under Rule 2-A of the Vesting Rules in respect of a land over which the dispute was raised on or after 6-10-1981 then the Forest Tribunal has no jurisdiction to deal with the dispute concerning that land. If so, civil Court has ample jurisdiction to determine such dispute. We cannot stretch the swipe of the ban beyond the contours of Section 13 of the Vesting Act."
12. The case arose out of an order of the Tribunal, which held that the land in question was not a private forest that was challenged before this Court. The petitioner contended that she had been cultivating the land for a long time and that on 6-10-1981 forest officials resisted her men who are carrying out agricultural operations in the property on the ground that it is a private forest vested with the Government, which was denied by her and she filed the application for declaration that it is not a private forest and no notification had been issued in respect of the same. Before the Tribunal a notification was produced that was stated to take in the property of the petitioner. This was not accepted by the Tribunal, which held that the property was not covered by the notification and proceeded to consider the claim on merits and granted the reliefs prayed for, also finding that the application was not barred by limitation. The Bench examined the relevant provisions of the Act and observed that the Government failed to establish that the notification related to the disputed property. It was, therefore, a case where there was no notification that could have given rise to a dispute, which was outside the jurisdiction of the Tribunal that it was held, had to be agitated before a civil Court.
13. Having given our anxious consideration to the scheme and the relevant provisions of the Act, we are of the view that the Tribunal's jurisdiction is all comprehensive and admits of no restriction in regard to disputes coming under Sub-sections (2) and (3) of Section 3, which are comprehended by Clauses (a) and (b) of Section 8 whether it pertained to notified or non-notified properties. A dispute is what it is under the Act and not that it should also have originated subsequent to or as a consequence of the notification published under Rule 2-A r/w Section 6 of the Act, whose scope and purpose seem to have been over emphasised to dilute the wide reach of Section 8 and unsettle generally the very scheme of the Act itself. What Section 6 enjoins upon the custodian is to demarcate boundaries of private forests vested with the Government under Sub-section (1) of Section 3. He could do so even when an application under Section 8 is pending before the Tribunal, if he was satisfied the land is vested forest, which without anything more showed that the publication of the notification is not a condition precedent to entertain the application by the Tribunal. In other words, the existence of a dispute is not to be found from whether there was or not a notification, but from the allegations in the petition that show its existence and it is not barred by the relevant rules as to form and limitation. The Tribunal's jurisdiction is not conditioned by the notification even in whose absence it could entertain the application, if it disclosed a dispute under Clauses (a) and (b) of Section 3 for its adjudication. We also wish to point out that in several other decisions too this Court had taken a consistent view that without entering on a finding whether a notification had been issued and if so it was valid and proper, dismissal of the application filed under Section 8 treating them as relating to non-notified properties and hence beyond the Tribunal's jurisdiction, was held to be bad and the Tribunal was directed to entertain the applications and dispose them on merits. We agree, that was rightly said.
14. There is no doubt an apparent inconsistency in the decisions in (1991) 2 Ker LT 49 and the unreported decision in M.F.A. No. 510 of 1984 on the one hand, and (1995) 2 Ker LT 26 : (1995 AIHC 2874). With respect we hold that what was said about the jurisdiction of the Tribunal in the latter (case) in regard to non-notified properties does not either appear to be correct or to lay down the correct law. The civil Court will not have jurisdiction to entertain disputes coming within Clauses (a) and (b) of the Act, even if they pertained to properties which had not been notified.
15. We accordingly set aside the orders of the Tribunal and remand the cases to it for fresh disposal in accordance with law.
The appeals are disposed of as above.