Facts of the Case:
The Kerala Private Forests (Vesting and Assignment) Act, 1971 (“the Act”) was enacted in 1971. Section 3 of the Act states that notwithstanding any other provisions of law being in force, as per subsections (2) and (3), possession of all the private forests present in the state of Kerala, will be transferred to the Government with relief from any mortgages and the right, title and interest of the owner of those forests being removed hereafter. The land in question was notified on 8/07/1977 as a vested forest as per Section 4 of the Act. Land Tribunal of Thaliparamba furnished Purchase Certificates to respondents for 12 acres of land in Naduvil Village. Tahsildar and Taluk Surveyor conducted survey of the area on which it was found that part of property was a vested forest. The sketch of the survey was given before the Land Tribunal in the complaints filed by the Forest department.
The respondents filed OAs at the Forest Tribunal in Kozhikode under the Act. Then appellants before the Forest Tribunal filed counter affidavits.. The land site was examined as per the decision of District Development Committee, where there was a report of destruction of survey rock mark.
The OAs filed by the respondents was dismissed by the Forest Tribunal. As per the decision of District Development Committee, the Taluk Surveyor did the survey and fixed the boundary. Notice were given to respondents on why the earlier decision of purchase certificates should not be cancelled/re-opened. These notices were challenged by the respondents in the High Court which was disposed stating authorities to complete the proceedings. Then the land tribunal cancelled the order to assign the jenmam rights, purchase certificates given to the respondents. The respondents filed appeal before the appellate authority against this order.
The respondents filed O.S. No. 2/2005, 3/2005 in Munsiff’s Court for a permanent prohibitory injunction which was allowed. But, decisions of the Court was set aside by Subordinate Judge’s Court and second appeal on this judgement was dismissed by High Court that it has no jurisdiction as per Section 13 of the Act and to be decided by Forest Tribunal.
Instead of proceedings under the Act, the respondents filed a writ petition before High Court as a writ of mandamus making Respondent 1 and Appellant 1 to accept the basic tax of the properties from them as per the 1961 Act. The learned judge held that appellant 1 to accept the tax from the respondents. Being dissatisfied with the judgement, the appellant 1 filed a writ appeal before the Division Bench of High Court which was dismissed stating the Single judge had only asked to accept the basic tax and held no interference of the appellate court is needed.
Being dissatisfied by the above judgment, this present appeal has been sought by the appellants.
Arguments of the Case:
Learned counsel for appellants argued that Division Bench of High Court and Single Bench of High Court did not consider that the land is possessed by the forest department since 1975 and there is no need for accepting of tax. The counsel said that they also overlooked that respondents have lost at the proper authority i.e. Forest Tribunal and jenmam rights and purchase certificates have been cancelled as a final decision. The counsel stated as respondents have no right in the property, the appellants have no need to accept basic tax and the permanent injunction provided was set aside by Subordinate Judge’s Court which was approved by High Court in 2nd appeal that it is not the jurisdiction of that court to provide injunction as per the Act and hereafter the respondents did not proceed under the Act. The counsel submitted that High Court did not notice the malicious intent of respondents in seeking writ of mandamus to direct revenue authorities to approve the basic tax
The learned counsel for respondents submitted that the properties originally owned by C.K. Kerala Verma and since 1956 on leasehold, paying taxes and regularly cultivating on the land. The respondents obtained the land via purchase certificates issued by Land Tribunal as per the Act. It is submitted that Single Judge held that even if purchase certificates were cancelled, appellate authority set aside the cancellation and remanded the same to Land Tribunal. The counsel submits that as per Section 3(1) of the Act, private forest excludes land used primarily for cultivation or purpose secondary to cultivation. It is submitted that two OAs filed by respondents, where counter-affidavits admitted that the land of 12 acres are in possession of the respondents with certificates in respondent’s favour, and thus, the High Court has correctly directed the village officer to accept the basic tax to paid. The counsel submitted that the department have no claim on the land and as per Section 8, there is no dispute and dismissal of two OAs by Forest Tribunal is irrelevant.
Judgment of the Case:
The Supreme Court of India led by Justices M.R. Shah and B.V. Nagarathna in Civil Appeal No. 207 of 2022 decided on 19/01/2022 , held that the High Court did not consider the fact that jenmam purchase certificates has been cancelled by Forest Tribunal and has not considered that it had been declared “private forest land” in 1977 and there was no opposition of this notification involving the land as a vested forest. The Court held that the High Court did not notice the fact that the Land Tribunal had cancelled the assigning of jenmam rights, purchase certificates and tribunal’s observance of failure in initiating tenancy rights claimed by them and survey plan showing the land covered by vested forests. Thereby, as per Land Tribunal, respondent 1 and 2 cannot claim any rights over the land. The Court held that as per Section 2(A) of the 1972 Rules that declares these lands as vested forest of the government. Therefore, as per Land Tribunal, respondents 1 and 2 cannot claim to be the owner and there will be no jenmam rights, purchase certificates in their favour and thus there will be no acceptance of basic tax. The Court stated that filing relief of writ of mandamus directing village officers to accept basic tax seems to asking ownership in their favour. The Court also stated that High Court did not oversee the malicious intent of the respondents in their pray for writ of mandamus by implicitly asking for ownership of the land.
Thereby, the Court held that the judgment passed by Division Bench of High Court as unjustifiable and quashed the same and approved the present appeal made by the appellants.
This article is written by Jwaalaa Suresh of SVKM's NMIMS School Of Law, Navi Mumbai.