Taluk Land Board's Determination Has Evidentiary Value In Proceedings Under Kerala Private Forest Vesting Act : Supreme Court

The Supreme Court has observed that determination arrived by the Land Board about the character of lands, under the Kerala Land Reforms Act, 1963 ("KLR Act") becomes a piece of evidence for the purposes of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ("Vesting Act").

The bench of Justices Indira Banerjee and S Ravindra Bhat in the present matter was dealing with a special leave petition assailing Kerala High Court's order by which the Court held that an area of slightly over 402 acres vested in the State of Kerala and the rest of the land of a total of 1534.40 acres had to be treated as plantation and thus belonged to Popular Estates.

While dismissing the appeal, the bench in State Of Kerala & Anr. V. M/S Popular Estates (Now Dissolved) & Anr. relied on Popular II (State of Kerala v. Popular Estates, (2004) 12 SCC 434) , State of Kerala v. Mohammed Basheer (2019) 2 SCC 260 and Kunjanam Antony v. State of Kerala (2003) 3 SCC 221 on the aspect of giving weightage to the Taluk Land Board's order.

It thus opined that, "the enunciation of the principle that "unless a contrary state of affairs" were shown to exist, the Board's order "would have to be given due weight" had to apply, and was correctly invoked by the High Court."

The bench also observed that the Top Court would not interfere with the High Court's findings under Article 136 if there exists facts on records based on which two plausible views of conclusion can be drawn.

Factual Background

Popular Estates ("Respondent") became owner of 1534.40 acres of land upon partition of assets of M/S Popular Automobiles. After the validity of Vesting Act was affirmed by the Top Court in 1973, the forest authorities attempted to take possession of large areas of land occupied by Popular Estates, arguing that they were private forests and had vested in the state, under the Act.

Although Popular Estates moved two Original Applications before the Forest Tribunal u/s 8 of the Act claiming a declaration that no part of the estate consisting 1534.40 acres was liable to vest in the state but the same were dismissed by the Tribunal. After orders of the tribunal, forest authorities attempted to take possession of the land. In the meanwhile, the state also issued notification notifying 100 hectares of the respondent estate as private forest, based on a survey undertaken by the forest department.

Popular Estates filed two appeals impugning the tribunal's orders, before the High Court but the same and even the special leave petition against those orders were dismissed. The respondent then filed civil suits claiming that the state be permanently injuncted from taking possession. Initially, the civil court refused to register the plaint on grounds of maintainability, later, the suits were entertained on the intervention of the High Court in civil revision.

On 22.7.1987, the Custodian and Conservator of Vested Forests issued a notification u/s 6 of the Vesting Act demarcating 324 hectares of land belonging to Popular Plantation as vested forests under the Vesting Act. Popular Estates challenged the same before the Tribunal. Holding that in its earlier order it had only dealt with the status of 100 hectares of the land and, therefore, with regard to the rest of the land the State was empowered to issue a fresh notification, the Tribunal dismissed the original applications.

The same was challenged before the High Court by the Respondent. Holding the notification to be valid only in respect of 100 hectares of vested forest, the High Court allowed Respondent's appeal. It was held that there was no vesting so far as the rest of the land was concerned. The High Court also directed the Custodian of Vested Forests to demarcate the boundaries of the certain extent under Section 6 of the Vesting Act and restore possession of the remaining extent of the properties to Popular Plantation.

Aggrieved, the State approached the Top Court and the Top Court November 4, 2004 (State of Kerala v. Popular Estates, (2004) 12 SCC 434/ Popular II) remanded the matter back to the tribunal.

While adjudicating the appeal, the Court noticed that the High Court had proceeded on the basis that the order made by the Taluk Land Board in a land ceiling case pertaining to Popular Plantation would amount to res judicata.

As per Rule 10 of the Kerala Land Reforms (Ceiling) Rules, 1970, the Taluk Land Board prepared a draft statement of lands to be surrendered and serve copies of such drafts on persons interested in the lands. The same was framed under the provisions of Kerala Land Reforms Act, 1963. In the draft statement prepared by the Taluk Land Board , Popular Estates was shown to hold an extent of 1576-73-257 acres of land, of which 1537-25-645 acres fell under the exempted category, and that Popular Estates was eligible to retain the balance extent within the ceiling area. The Board concluded that there was no surplus land to be surrendered to the state. The state government did not challenge the Board's declaration but sought to initiate proceedings under Section 85(9-A) of the KLR Act, by issuing notice dated May 18, 1992 for reopening the final order of the Taluk Land Board. The notice was challenged by Popular Estates before the Kerala High Court by which further proceedings were stayed.

While remanding the matter back, the Court relied on Kunjanam Antony v. State of Kerala (2003) 3 SCC 221 and observed that the order made by the Taluk Land Board that there was no surplus land to be surrendered to the state was not to be operated as res judicata and only as a piece of evidence.

Case Before Tribunal

The Tribunal noticed that the burden was upon Popular Estates to establish that the disputed properties were not private forests but were cultivated as plantations. It further opined that u/s 2(f) of the Vesting Act and its various components, the first requirement was to consider whether the lands or any part of the lands fell within the purview of the Madras Preservation of Private Forests Act, 1949 ("Madras Act") which was immediately in force before the Vesting Act was enacted. Tribunal also noticed that the Madras Act applied to all private forests in Malabar and south Kanara having a contiguous area of 100 acres and that the disputed properties were situated at a place within erstwhile Malabar district. It also took note of the Range Officer's evidence which suggested that the Madras Act applied to the disputed property.

The tribunal's order also took into account one of the title deeds which referred to the permission granted by the District Collector to sell the property and held that such permission was necessary having regard to the provisions of the Madras Act. Relying on Section 2(f)(1)(i)(B) of the Vesting Act, the tribunal stated that this provision took lands which were principally used for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to such cultivation, out of its coverage.

Brushing aside the evidence, the tribunal observed that nothing tangible emerged from it and that Popular Estates necessarily had to prove that the disputed properties were principally cultivated with rubber, coffee or cardamom.

Rejecting Popular Estate's appeal, tribunal held that Popular Estates failed to bring their case under any of the clauses to Section 2(f)(1)(i) of the Vesting Act (i.e. the exclusionary part), and therefore, failed to prove that any part of such properties were Estates meant for the cultivation of coffee, rubber, cardamom etc. The tribunal entirely discarded the Board's determination which was based on the appreciation of the objective facts.

Case Before High Court

The High Court observed that the excess land automatically vests with the state like in the private forests vesting under Section 3 (1) of the Vesting Act. It further noted that there was not much difference between the two dates January 1, 1970 (Kerala Land Reforms Act) and May 10, 1971 (Vesting Act) in point of time and that there was nothing on record to suggest that the land usage had changed in between. Perusing the evidence on record, the High Court opined that the notification dated July 8, 1977 ultimately led to the state establishing that only 100 hectares were private forest. The High Court thus opined that all these documents clearly showed that the entire area other than the 100 hectares of land earlier notified by notification dated July 8, 1977 were not private forests on the appointed date but exempted in view of the definition of private forest.

The court concluded that on the appointed date, except the area of 155.9 acres of land, the rest of the lands covered by notification dated July 22, 1987 were not private forest but plantations falling within the exclusions under Section 2(f)(1)(i)(A) to (D) of the Vesting Act.

The High Court held that 1127.50 acres of land were plantation and 247 acres were private forest. Since there was no claim with respect to 155.90 acres of land nor any proof that it was converted into plantation on the appointed date, that extent was also held to vest in the state.

However with respect to the rest, the High Court allowed the appeal and notification dated July 22, 1987 to that extent was set aside.

Submission of Counsels

Submissions On State's Behalf

Senior Advocate Pallav Sisodia appearing on State's behalf submitted that the primary onus to establish that the extent of land notified by the state was not a private forest covered by the Vesting Act lies upon the party or individual asserting it to be so. It was further observed that the burden lay upon the appellant before the High Court, i.e. Popular Estates to prove that the entire extent of 1534.40 acres of land were in fact under cultivation as a plantation.

With regards to High Court relying on the proceedings under the KLR Act or the determination of the Land Board to allow the appeal, Senior counsel while relying on the Top Court's decision in Popular-II argued that it was clear that such determinations by the Board for an entirely different purpose could not constitute res judicata by giving undue weight to that piece of evidence and ignoring that the other evidence led before the tribunal was utterly inadequate; the appellant state urged that the High Court fell into error.

It was also his contention that the High Court failed to see that the burden of proving that the lands claimed by Popular Estates as not covered by forest, remained unproved and undischarged.

Senior Counsel also argued that the primary objective of the Vesting Act was to ensure that large chunks of private forests held by a few individuals or entities, but which constituted valuable economic resource which required redistribution in terms of Directive Principles of State Policy, were made over to those sections of society who did not own any land. He thus contended that the High Court failed in noticing the salutary purposes of the Act by holding that the notification dated July 22, 1987 could be upheld only to the extent of 155.90 acres and in setting aside the rest.

Submissions On Popular Estate's Behalf

Relying on the Top Court's judgement in Popular II, Senior Advocate KV Viswanathan submitted that even though the determinations of Boards could not be treated as res judicata in proceedings under the Vesting Act, nevertheless, they had to be given due weight. He further argued that they carried credibility as long as the basis of such a decision indicated factual investigation and the order was not under a cloud. It was also his contention that in the present case too, there was no reason for the tribunal to doubt or question the Board's findings.

Reiterating the nature of the KLR Act and the objectives of the Vesting Act, Senior Counsel submitted that both enactments observed common public good, namely determination of either excess lands or uncultivated forest lands, but not plantation; and ensuring redistribution to deserving categories of persons.

Reiterating the decision in Kunjanom Antony and Popular Estates-II, Counsel argued that the same were binding on the question of law that though the decision of the Land Board under the KLR Act could not be conclusive as res judicata, nevertheless it had considerable evidentiary weight and that unless the contrary state of affairs is shown, the Board's order would have to be given due weight. He thus submitted that since the Board's order was not under cloud or under appeal, prima facie, due weight had to be given.

Senior Counsel also highlighted that in the present case, the inspection undertaken was in the context of assertions made in the mid-1970s and that the board's determination was decisive. It was also his contention that it had considerable evidentiary weight and could not be brushed aside as a mere piece of paper.

Supreme Court's Analysis

The bench in the judgement authored by Justice SR Bhat took into consideration the judgements in Gwalior Rayons Silk Mfg. (Wvg.) Ltd v. The Custodian of Vested Forests, Palghat & Anr 1990 (Supp) SCC 785 to discuss the definition of private forest given in Section 2(f) of the Vesting Act and Section 2(47) of the KLR Act and State of Kerala v. Pullangode Rubber & Produce Co. Ltd (1999) 6 SCC 92 to deal with the manner of interpreting the interplay between Madras Act and the Vesting Act.

Taking into consideration the documents and evidence on record, the Top Court also observed that,

"The title deeds of the predecessor-in-interest of the partners of the Popular Estates who had acquired the lands in 1963, show that large areas were shown as cardamon plantation. Popular Estates had filed agricultural income returns and even in 1970, it was producing coffee, rubber and cardamom. The fact that it had some labour trouble also supported its contention that Popular Estates' plantation activities were on in full scale. All these materials, in the opinion of the court, support the conclusions of the High Court, which are based on plausible (and not an unreasonable) inference of the overall analysis of the evidence on the record."

To further emphasis on the proposition that where two plausible views on the conclusions that can be drawn from facts on the record exist, this court, in exercise of its discretionary jurisdiction under Article 136 of the Constitution would not interfere with the findings of the High Court, top Court in its judgement relied on Pritam Singh v. The State 1950 SCR 453, Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar (2004) 5 SCC 1, Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2004) 3 SCC 214 and Taherakhatoon (D) By Lrs. v. Salambin Mohammad (1992) 2 SCC 635.

The Apex Court while dismissing the appeal observed that, "A combined reading of these materials, leads one to infer that a detailed inspection of the area took place. Only those areas that vested with the government were demarcated by the survey party , attached with the Superintendent, Land Records. It was in these circumstances that the respondent successfully urged before the High Court that what was demarcated was only 100 hectares and the others were not demarcated since they were cultivated. This was borne out by Ex. A-7, the final report. The possession with respect to 100 hectares of uncultivated forest lands was also covered by a draft statement of land (Ex. A- 50, dated 24.01.1979) furnished to the Board in proceedings under the KLR Act. Ex. A-50 was the foundation for the Board's order dated 04.11.1980 (Ex. A-51). Both these documents confirmed that 100 hectares was vested forest. Popular Estates had submitted that 533 acres was under cardamom cultivation; 120 acres under rubber plantation; 257 acres under coffee plantation and that 155.9 acres was forest land; and 17.5 acres of were comprised of roads and buildings. These arguments found favour with the High Court. In our considered opinion, there is no glaring error in the impugned judgment, having regard to these circumstances."

Case Title: State Of Kerala & Anr. V. M/S Popular Estates (Now Dissolved) & Anr.| Civil Appeal No. 903 Of 2011

Citation:  LL 2021 SC 619

Coram: Justices Indira Banerjee and SR Bhat

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