2007 Supreme(SC) 696

2007(5) Supreme 154
Supreme Court of India
(From Kerala High Court)
S.B. Sinha & Markandey Katju, JJ.
Joseph & Anr. — Appellants
versus
State of Kerala & Anr. — Respondents
Appeal (civil) 8061-8062 of 2001
Decided on : 10-05-2007
Counsel for the Parties :
For the Appellant : T.L.V. Iyer, Sr. Adv., P.K. Manohar, Advocate.
For the Respondent : G.Prakash and Ms. Beena Prakash (for Ramesh Babu M.R.) Advcoates.

Headnote:Kerela private Forest(Vesting and Assignment) Act, 1971 – Purchase of 14 acres of land by appellants in Thankara village of Mannaghat Taluk in District of Kerela – Appellants claiming exemption of said land from vesting in State by virtue of provisions of Act – No dispute that lands in question was purchased under a registered deed of sale - Lands were, held by appellants prior to appointed day specified in 1971 - Application was allowed by Tribunal holding that appellants had got title and possession thereto and had been holding lands within ceiling limits - Tribunal granted exemption in respect of land in question in terms of Section 3(3) of the 1971 Act - Provision for review of order of Tribunal was introduced by way of insertion of Section 8B of 1971 – However review application was dismissed – Appeal – Allowed by High Court - High Court held not correct in its view in regard to its construction of Section 3(3) of the 1971 Act - Tribunal, while exercising its power under Section 8 of the 1971 Act, had taken into consideration question which arose before it, viz., as to whether appellants herein had intention to cultivate land on appointed day - Appointed day having been defined in the 1971 Act, relevant aspect was situation as it existed on that day, i.e., on 10.05.1971 - For the purpose of attracting Sub-section (3) of Section 3 of the 1971 Act, it was not necessary that entire area should have been cultivated for arriving at a decision as to whether owner of land had intention to cultivate or not - Development of the land by plantation of rubber plants was not in dispute - Intention to cultivate by owner of land, has to be gathered not only in regard to fact situation obtaining at a particular time but also with regard to subsequent conduct of the parties - If the activity in regard to cultivation of land or development thereof is systematic and not sporadic, same also may give an idea as to whether owner intended to cultivate the land - High Court, held unjustified in opining that for applying Section 3(3) of 1971 Act, cultivation of property subsequent to vesting could not be taken into account - High Court also was not correct in arriving at finding that there had been no evidence whatsoever that owners intended to cultivate land prior to 10.05.1971 - As provision contained in Sub-section (3) of Section 3 of the 1971 Act clearly provided for exclusion of operation of Sub-section (1) thereof, same had to be construed liberally - So construed, conduct of parties was a relevant fact- High Court, erred in ignoring findings of Tribunal - Also, High Court ought to have bestowed its attention to findings arrived at by Tribunal having regard to limited nature of scope and ambit of appeal in terms of Section 8A of the 1971 Act and, particularly, in view of fact that the order dated 21.02.1979 had not been appealed against - Impugned judgment of High Court set aside and matter remitted back to High Court for its consideration thereof afresh in accordance with law - Appeals allowed. (Paras 16,17,18)

       Facts of the case :

       The appellants herein in the instant case purchased 14 acres of land in Thankara village of Mannaghat Taluk in District of Kerela. Appellants claimed exemption of said land from vesting in State by virtue of provisions of Act. Application was allowed by Tribunal holding that appellants had got title and possession thereto and had been holding lands within ceiling limits. Tribunal granted exemption in respect of land in question in terms of Section 3(3) of the 1971 Act. Provision for review of order of Tribunal was introduced by way of insertion of Section 8B of 1971. However review application was dismissed. An appeal there against by Respondents was allowed by High Court

       Present appeal has been filed against said order of High court.

       Findings of the Court :

       The Court held that High Court was not correct in its view in regard to its construction of Section 3(3) of the 1971 Act. Tribunal, while exercising its power under Section 8 of the 1971 Act, had taken into consideration question which arose before it, viz., as to whether appellants herein had intention to cultivate land on appointed day. Appointed day having been defined in the 1971 Act, relevant aspect was situation as it existed on that day, i.e., on 10.05.1971. For the purpose of attracting Sub-section (3) of Section 3 of the 1971 Act, it was not necessary that entire area should have been cultivated for arriving at a decision as to whether owner of land had intention to cultivate or not .Development of the land by plantation of rubber plants was not in dispute. Intention to cultivate by owner of land, had to be gathered not only in regard to fact situation obtaining at a particular time but also with regard to subsequent conduct of parties. High Court, held unjustified in opining that for applying Section 3(3) of 1971 Act, cultivation of property subsequent to vesting could not be taken into account. High Court also was not correct in arriving at finding that there had been no evidence whatsoever that owners intended to cultivate land prior to 10.05.1971. As provision contained in Sub-section (3) of Section 3 of the 1971 Act clearly provided for exclusion of operation of Sub-section (1) thereof, same had to be construed liberally. So construed, conduct of parties was a relevant fact. High Court, erred in ignoring findings of Tribunal. Also, High Court ought to have bestowed its attention to findings arrived at by Tribunal having regard to limited nature of scope and ambit of appeal in terms of Section 8A of the 1971 Act and, particularly, in view of fact that the order dated 21.02.1979 had not been appealed against. Impugned judgment of High Court set aside and matter remitted back to High Court for its consideration thereof afresh in accordance with law.