STATE OF KERALA & Anr. v. MOHAMMED BASHEER

Judgment

1 S.C.R. 477 477 STATE OF KERALA AND ANR. v. MOHAMMED BASHEER (Civil Appeal Nos. 10075-10076 of 2014) JANUARY 22, 2019 [S. ABDUL NAZEER AND DEEPAK GUPTA, JJ.] Kerala Land Reforms Act, 1963 – s.72(K) and 102 – Respondent filed petition in the Forest Tribunal for settlement of dispute in relation to the land in question inter alia on the ground that the land is not a private forest as defined u/s.2(f) of the 1971 Act and it did not vest in the government u/s.3 of the 1971 Act and that the Land Tribunal issued certificate of purchase in favour of the respondent, as he was found to be the cultivating tenant in possession of the said land – Appellant-State contended that the land vested in the government u/s.3 of the 1971 Act and is under the custody of the Forest Department since then – Petition dismissed – Challenge by Respondent before High Court, allowed – On appeal, held: Sub-s.(2) of s.72K of the 1963 Act states that the certificate of purchase issued by Land Tribunal u/sub-s.(1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any – Land Tribunal initiated suo motu proceedings, after obtaining information that the cultivating tenant had been in possession – Land Tribunal initiating proceedings in favour of the cultivating tenant would be considering the possession of a tenant as on the said date which is far earlier than the 1971 Act – Possession and title under the certificate of purchase have to relate back to a date prior to the date of vesting under the 1963 Act, i.e. 01.04.1964 – Therefore, there is no question of vesting of the land in the Government under the 1971 Act which came into force subsequent to the date of 1963 Act – Certificate of purchase was issued by the Land Tribunal, u/sub-s.(1) of s.72K of the 1963 Act – No appeal was filed u/s.102 of the 1963 Act challenging the said certificate either by the Government or any other person – Thus whatever right, title and interest, the landlord had in the land, was assigned in favour of the respondent under the certificate of purchase – Respondent is the owner of the land as 477 A B C D E F G H 478 SUPREME COURT REPORTS [2019] 1 S.C.R. A B C D E F G H he has legal title to hold the said land – Further, land in question is exempted from vesting in the State u/sub-s.(2) of s.3 of the 1971 Act – Kerala Private Forests (Vesting and Assignment) Act, 1971 – s.2, 3 – Kerala Land Reforms (Vesting and Assignment) Rules, 1970 – Evidence Act, 1872 – s.4. Words & Phrases – ‘own’ – Meaning of – Discussed. Dismissing the appeals, the Court HELD: 1.1 The Kerala Private Forests (Vesting and Assignment) Act, 1971 (KPF Act) has been enacted 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. Section 3 in this Act provides for the vesting of all private forests in the State Government free from all encumbrances. But by virtue of sub- sections (2) and (3), two categories of lands are exempted or excluded from the application of the provision for vesting. The appointed day for the purpose of Section 3 is 10.5.1971, which is clear from Section 2(a) of the KPF Act. [Para 9][483-C-D; 484-C- D]

1.2 Kerala Land Reforms Act, 1963 received the assent of the President on 31.12.1963. Sub-section (1) of Section 72K of the Land Reforms Act states that as soon as may be after the determination of the purchase price under Section 72F or the passing of an order under sub-section (3) of Section 72MM, the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries, if any. [Paras 11, 14][484-F-G; 485-E-F]

1.3 Sub-section (2) of Section 3 of the KPF Act provides for the exemption of the private forest from vesting. The appointed day for the purpose of Section 3 is 10.5.1971, which is clear from Section 2(a) of the KPF Act. Sub-section (2) of Section 3 states that the land comprised in private forest held by an owner under his personal cultivation is exempted from vesting, if the ceiling limit under the Kerala Land Reforms Act is not exceeded. The STATE OF KERALA v. MOHAMMED BASHEER 479 land in question measures about 2 acres. It is not the case of the appellants that the land exceeds the ceiling limit under the Kerala Land Reforms Act. The expression ‘held by the owner under his personal cultivation’ contained in sub- section (2) of Section 3 of the KPF Act is crucial. To bring the land under the exempted category, the claimant should hold the same as an owner and that it should be under his personal cultivation. ‘To own’ is to have good legal title to hold and possess the property. Black’s Law Dictionary, Ninth Edition defines the word ‘own’ as ‘to rightfully have or possess as property; to have legal title to’. When the enactment enjoins that any evidence would be treated as a conclusive proof of certain factual situation or legal hypothesis, the law would forbid other evidence to be adduced for the purpose of contradicting or varying the aforesaid conclusiveness. [Paras 9, 17, 18][484-B-C; 486-H; 487-A-C]

1.4 In the instant case, the land in question is jenmam land. The Land Tribunal initiated suo motu proceedings under Rule 5 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970, after obtaining information that the cultivating tenant had been in possession, obviously on a report of the revenue inspector. It is evident from Section 74 of the Land Reforms Act that any tenancy after 01.04.1964 is prohibited. Any tenancy created after that date is invalid. The Land Tribunal initiating proceedings under Section 72B in favour of the cultivating tenant would be considering the possession of a tenant as on the said date which is far earlier than the KPF Act. Possession and title under the certificate of purchase have to relate back to a date prior to the date of vesting under the Land Reforms Act, i.e. 01.04.1964. Therefore, there is no question of vesting of the land in the Government under the KPF Act which has come into force subsequent to the date of Land Reforms Act. The certificate of purchase issued under the Land Reforms Act is attributed with statutory conclusiveness as regards ownership/title under sub- section (2) of Section 72K. The certificate issued by a competent Land Tribunal after finding that the tenant was in possession of the property as a cultivating tenant is a conclusive proof of possession as well. In the instant case, certificate of purchase has been issued in favour of the respondent after enquiry by the A B C D E F G H 480 SUPREME COURT REPORTS [2019] 1 S.C.R. Land Tribunal. Though the State Government is not a party to this order, there was no bar for it to challenge this order under Section 102 of the Land Reforms Act. No appeal was filed challenging the certificate of purchase either by the Government or by any other person. Thus, the certificate of purchase has become final. [Paras 19, 20][487-D-H; 488-A]

1.8 The certificate of purchase was issued by the Land Tribunal, under sub-section (1) of Section 72K. Sub-section (2) of Section 72K of the Land Reforms Act clearly states that the certificate of purchase issued under sub-section (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, was assigned in favour of the respondent under the certificate of purchase. Therefore, the respondent is the owner of the land as he has legal title to hold the said land. The certificate is also a conclusive proof of the fact that the respondent has been in possession of the land as a cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. The land in question is exempted from vesting in the State under sub- section (2) of Section 3 of the KPF Act. The respondent has established that he is the owner and in possession of the land on the appointed day on the basis of certificate of purchase and other materials placed on record.[Paras 21, 22][488-B-D, F-G]