2004 Supreme(SC) 1402

2004(8) Supreme 501
SUPREME COURT OF INDIA
(From Kerala High Court)
Shivaraj V. Patil & B.N. Srikrishna, JJ.
State of Kerala & Anr. -Appellants
versus
M/s. Popular Estates & Anr. -Respondents
Civil Appeal No. 7111 of 1999
Decided on 4-11-2004
Counsel for the Parties :
For the Appellants : T.L.V. Iyer, Sr. Advocate, Ramesh Babu M.R., Advocate.
For the Respondents : A.S. Nambiar, Sr. Advocate, P.K. Manohar, R. Ramdas, Sewa Ram and Ms. Shanta Vasudevan, Advocates.

Headnote:Kerala Private Forests (Vesting and Assignment) Act, 1971-Sections 3 and 8-Kerala Land Reforms Act, 1963-Sections 81 and 85(9A)-Kerala Land Reforms (Ceiling) Rules, 1970-Rule 10-Private Forests Vesting in State Government-Respondents claim to be owners of 1534.40 acres of land comprising 265.85 acres of cardamom plantation, 334.85 acres of paddy field and 585.90 acres of cultivable dry land and forest land-After the enactment of the Kerala Private Forests Act, forest authorities attempted to take possession of large areas of land in occupation of respondents on the ground that they were private forests which had vested in the State Government u/s 3 of the Act-Respondents filed application u/s 8 of the Act claiming that no part of the estate was liable to vest in the State as it was exempted under the provisions of the Act from vesting-Applications dismissed by the Tribunal-Respondents filed suit seeking permanent injunction against the State from taking possession-Custodian and Conservator of Vested Forests issued a notification u/s 6 of the Act demarcating 324 hectares of land belonging to plaintiff respondent as vested forests under the Act-Respondents filed Application before the Forest Tribunal challenging jurisdiction of State Government to issue the notification after a long lapse of time-In draft statement prepared by Taluk Land Board, respondents were shown to hotel an extent of 1576-73-257 acres of land of which 1537-25-645 acres fell under the exempted category-Respondents were held eligible to retain the balance extent within the ceiling area-Proceedings initiated u/s 85(9A) of the Kerala Land Reforms Act for reopening the final order by a notice-Notice challenged-Whether determination made by Taluk Land Board would operate as res judicata-(No).

       Held : The appellants are justified in their contention that the Taluk Land Board determination could not operate as res judicata for two reasons. In the first place, the decision of the Taluk Land Board has been reopened by the proceedings under Section 85(9A) of the Kerala Land Reforms Act, 1963 and it is only because of the challenge thereto made by the respondents that further proceedings have been stayed by the High Court. Thus, it is not possible to say that the decision of the Taluk Land Board had become final. Secondly, the Taluk Land Board was only concerned with the issue as to whether the lands held by the respondents were liable to be exempted from the ceiling limits. As long as the land fell into one of the exempted categories, the Board was not concerned with the exact category under which the land fell since both private forest and plantation are exempted categories. Apart from the determination of the extent of the exempted land, the Board was strictly not required to go into the question as to whether the land was plantation or private forest. For both these reasons, we are unable to accept that the decision of the Taluk Land Board could operate as res judicata and prejudiced the rights of the State Government before the Forest Tribunal. In any event, this question is no longer res integra. (Para 11)

       The Scheme of the Act is that upon the Act coming into force, all private forests would vest in the State Government. The demarcation of the forests under Section 6 of the Act is merely a consequential act and the vesting is not postponed depending on the said act. If anyone claims that his land had not vested in the State Government, Section 8 of the Act gives remedy of moving the Forest Tribunal with full details. The Forest Tribunal would then adjudicate the dispute and decide as to how much of the land claimed by the applicant was not vested forest. It is only upon such determination that the State would be divested of the vested forest. In the instant case, the burden of establishing that certain disputed land was not vested forest rested squarely upon the respondents before the Forest Tribunal. The respondents would succeed or fail on the merits of their own case of showing that the land fell within the exempted category. (Para 12)

       In the impugned judgment of the High Court also, there is no discussion with regard to the assessment of the evidence placed on record by the respondents. Here also, the decision proceeded on the aforesaid legal contentions. In the result, although valuable time has been lost, no one has decided the claim of the respondents on the merits of the evidence produced by the respondents. In the circumstances, we are of the view that the respondents are entitled to another opportunity of satisfying the Forest Tribunal on the merits of the case. (Para 16)