Elizabeth Jacob vs District Collector, Kerala & Ors

Elizabeth Jacob ... Appellant(s)

Vs.

District Collector, Idukki & Ors. ... Respondent(s)

ORDER

R.V.RAVEENDRAN, J.

The Revenue Divisional Officer, Devikulam (second respondent

herein), the Authorised Officer and delegate of the District Collector under

the Kerala Revenue Recovery Act, 1968 (in short `the Act') attached the

immovable property (land bearing Survey No.1131 of Peermade measuring

9.39 acres) belonging to Ansari and others under section 36 of the Act, on

9.1.1992, to recover their abkari dues to the state government. The property

was put up for sale by public auction under section 49 of the Act. The 2

appellant was the successful bidder in the auction held on 5.6.1998. The

sale was confirmed in her favour on 28.7.1998 under section 54 of the Act.

On payment of the entire consideration of Rs.3,65,500/- a sale certificate

was issued under section 56 of the Act, on 7.10.1998 (duly registered in the

office of jurisdictional Sub-Registrar on 13.10.1998). In pursuance of such

sale, the property was mutated in the revenue records in the name of the

appellant and she paid the tax due in regard to the said property on

19.11.1998. The sale was not challenged by anyone. It has not been

cancelled by any authority, nor set aside by any court.

2. As there was some resistance when she entered the property, the

appellant applied under section 58 of the Act for delivery of possession.

There was no response from the Collector or the Authorised Officer. On the

other hand, there was an evasive reply dated 7.1.1999 from the Tehsildar,

Peermade, requesting the appellant to contact the forest authorities.

Aggrieved by the inaction on the part of the Collector under section 58 of

the Act and the evasive reply, the appellant filed a writ petition before the

Kerala High Court in OP No.5297/1999 seeking a direction to the

respondents to deliver possession of the property purchased by her. When

the matter came up for hearing before a learned Single Judge, the facts 3

alleged by the appellant were neither denied nor disputed. The inaction to

perform the statutory duty under section 58 of the Act was sought to be

explained by the respondents by submitting that the matter was under

verification to find out whether the land sold to the appellant was a forest

land or not. The learned Single Judge did not find the explanation

satisfactory. He therefore allowed the petition by order dated 7.4.1999. He

noted that the Revenue authorities had put up the said land to sale by public

auction; that the appellants' bid had been accepted, the sale had been

confirmed and a sale certificate had been issued to her under the Act; and

the property had been mutated to her name in the revenue records and she

had paid the land tax also. He was of the view that after putting up the

property for sale and having received the full consideration of Rs.365500/-,

the State government could not turn round and take a stand that it will not

deliver possession merely on the ground that it had some doubt that the land

may be a forest land. Therefore, the learned Single Judge directed the

respondents to deliver the possession of the land to the appellant within one

month. In pursuance of the said order of the learned Single Judge,

possession of the land was duly delivered by the respondents to the

appellant on 9.6.1999 under a mahazar.

4 3. Long after such delivery, the respondents challenged the order of the

learned Single Judge in Writ Appeal No.270 of 2000. In the memorandum

of appeal, the respondents disclosed that the land in question had been

assigned by the Revenue department to Kunjumon and three others (in 1981

and 1984) under the Kerala Land Assignment Rules by issuing Pattas; that

the said assignees had sold the land to Ansari and others; that as the said

Ansari and others had committed default in paying their akbari dues, the

land was attached and brought to sale by the revenue authorities.

Respondents further pleaded that there was a likelihood that land assigned

in favour of Kunjumon and others in 1981 and 1984 was a forest land and

that the same being assigned on account of collusion and fraud by revenue

authorities. They submitted that if the land was a forest land, the

assignments would be void and consequently, all subsequent transfers of the

land also would be void. They therefore contended that the learned Single

Judge was not justified in allowing the writ petition without giving the state

sufficient time to verify whether the land was forest land or not.

4. The Division Bench allowed the appeal by judgment dated 8.8.2000.

It was of the view that the question whether the land was forest land as on

the date when State Government had assigned the land to Kunjumon and

others in 1981 and 1984 had to be decided before the appellant's claim to

the land could be considered; that in the absence of any material, it was not 5

possible to hold that the land was forest land or not; that if there was a

dispute as to whether a particular land was a forest land or not, the same

could not be decided either by the Forest Department or by the High Court

in exercise of writ jurisdiction; and that the matter required decision by a

civil court. It therefore set aside the order of the learned Single Judge and

dismissed the writ petition without prejudice to the rights of the appellant to

approach the civil court and establish her title and seek possession of the

property on the strength of such title. Feeling aggrieved, the appellant has

filed this appeal by special leave.

5. At the outset, it should be noticed that the issue is not whether the

land is forest land or not. The right of the state government to take action in

accordance with law, if the land is forest land is not disputed by the

appellant, subject of course to her right to defend her title and possession.

The limited question is whether the Division Bench was justified in

directing the appellant to approach the civil court and establish that the land

was non- forest land and that she had title thereto and on that basis seek

possession. The question is whether the division bench was justified in

interfering with the decision of the single Judge.

6

6. Admittedly the property was put to sale by the Authorised Officer at

the instance of the state government. The appellant purchased the property

in an auction held by the revenue authorities under the Act. The appellant

paid the entire consideration amount to the state government and obtained a

sale certificate from the state government. The property was mutated in the

name of the appellant. She was entitled in law to seek delivery of possession

if there was any obstruction. Section 58 of the Act provides that when any

lawful purchaser holding a sale certificate seeks possession, the collector

shall cause the proper process to be issued for the purpose of putting such

purchaser in possession in the same manner as if the immovable property

had been decreed to the purchaser by a decision of civil court and that the

Collector may exercise all the powers of a civil court under the Code of

Civil Procedure, for the purposes of the said section. In spite of the said

mandatory provision, the Collector failed to take action when appellant

claimed delivery of possession. The appellant was therefore constrained to

approach the High Court. Before the learned Single Judge, the respondent's

explanation for their failure to issue process for delivery of possession was

unsatisfactory. Nothing was produced to show that the land sold to appellant

was a forest land. Nor any steps initiated to annul the sale and return the 7

sale consideration to the appellant. In the circumstances, the learned Single

Judge was justified in directing delivery of possession.

7. The obligation to cause proper process to be issued for putting the

purchaser in possession, when applied for within one year of the

confirmation of sale, is a statutory obligation. The duty of the collector

under section 58 of Revenue Recovery Act is distinct from the obligation

and duty of the state to protect forest land. If the state government found on

any enquiry or verification that the land was a forest land, it was open to the

state government to take such action as required or permissible under law to

recover possession. All that the learned Single Judge did was to direct that

the respondents to perform their statutory duty under the Kerala Revenue

Recovery Act. Being a bonafide auction purchaser in a revenue recovery

sale, to whom title had been conveyed free from encumbrances by issue of a

sale certificate, there was no need for the appellant to go to a civil court and

establish that the land sold to her was not forest land, that the sale by the

revenue authorities was valid, and therefore she was entitled to possession.

She was entitled to seek remedy under section 58 of the Act for securing

possession. It was for the state government to take necessary action if the

land was forest land.

8

8. Let us next examine whether there was any material before the

Division Bench to reverse the decision of the learned Single Judge. No

documents were produced by the respondents to show the land was a forest

land. Respondents had admitted in the memorandum of appeal that the land

in question was assigned by the state government to Kunjumon and others

under the Kerala Land Assignment Rules as per Patta Nos. LA 30/81, 31/81,

277/1984 and 278/1984; that the said assignees had sold the land to Ansari

and others; and that on account the default committed by Ansari and others

to pay their dues to the State government, the land was attached on

9.1.1992. The records also showed that forest department planted some trees

in the land in the year 1992 after the property was attached and that on

3.11.1994, Tahsildar, Peermade wrote to the forest department to vacate the

land, as it had to be sold by public auction. The forest department did not

initiate any action in regard to the land even thereafter. On the other hand,

the Revenue authorities asserted their possession and put up the land for

sale in 1998 under the provisions of the Act. The appellant purchased the

land in the auction sale and obtained a sale certificate, under which the land

vested in her free from encumbrances. The Division Bench also noticed that

the land had been shown as "government Poramboke" (that is waste land 9

belonging to government) in the revenue records at the relevant time and

that the notification under the Forest Act relied upon by the respondents did

not show that the land was forest land. The Division Bench did not record

any finding that the land was a forest land, but on the other hand, held that

that state government had not produced any material to show that the land

was forest land or part of reserved forest. It also observed that as the

revenue authorities had proceeded on the basis that Ansari and others had

right over the land and as the revenue authorities had sold the land to the

appellant in a revenue auction, the state government could not in the normal

course turn around and say that no rights were acquired by the appellant as

purchaser at the revenue auction.

9. Having held so, the Division Bench proceeded to allow the appeal on

the unsupported surmises and inferences. One surmise was that it was

generally known that Revenue authorities used to assign lands by ignoring

the provisions of protective enactments and the public trust doctrine. The

second surmise was that the past experience in the state showed a possibility

that the land assigned in 1981 and 1984 was a forest land and the revenue

authorities colluded with the assignees in assigning the land. The third was

that therefore the appellant should approach the civil court and seek a 10

declaration that the land purchased by her was not forest land and establish

her title and then obtain possession. Such a direction on surmises alone was

unwarranted. A doubt or surmise is not proof of a fact. A claim that land

may be forest land is not proof that it is forest land. A suspicion that there

might have been collusion and fraud is not proof of collusion and fraud. At

all events, who should establish fraud and collusion? Is it for the state

which alleged fraud and collusion by someone in 1981 and 1984, to

establish those facts? Or is it for the bonafide purchaser from the state to

establish that there was no fraud or collusion in respect of the property put

up by the State for sale? The onus is clearly on the state. We are therefore of

the view that the Division Bench committed a jurisdictional error in

interfering with the order of the learned Single Judge.

10. The issue before the High Court was whether the appellant who

purchased the land in a public auction, held by the State government in

1998 under the Revenue Recovery Act, was entitled to possession from the

state government in the manner set out in section 58 of the Act. Even if the

land could be deemed to be a forest land under certain circumstances, the

state should have alleged and proved the existence of those circumstances.

It was for the state government to take action in accordance with law to 11

resume the land if the land was a forest land and not for the auction

purchaser to approach the civil court.

11. Another aspect to be noticed is that the doubts about fraud and

collusion are not against the appellant. There is no allegation of any

misrepresentation, fraud, forgery, collusion or any kind of wrongful conduct

on the part of the appellant. Appellant was a bonafide purchaser for valuable

consideration in a revenue recovery public auction. She did not at the time

of purchase know, or had reason to believe that any fraud had been

committed.

12. It is of some interest to note that even as on date the state government

is still in the process of verification as to whether the land is forest land or

not. This Court on 6.2.2008 issued the following direction :

"In this appeal, the disputed question of fact is involved with regard to the possession and ownership of the property having an extent of 8.39 acres of land in Survey No.1131 of Peermade Village. The disputed question of fact is whether the said land is a part of a reserve forest. It appears that in this appeal the Forest Department has not been impleaded as a party. We, however, feel that this question can be answered by the Forest Department. We direct the Chief Conservator of Forest, Government of Kerala to file a detailed affidavit as to whether the aforesaid land is within the forest reserves or not within six weeks. Two weeks' thereafter is allowed to file reply. List thereafter."

12 In response to the said order, the Chief Conservator of Forests filed his

affidavit dated 2.5.2008 wherein he has given the following status report :

"It is submitted that the Divisional Forest Officer, Kottayam made attempts to verify the status of the land in question through the Forest Mini Survey, Thiruvananthapuram. The Superintendent of Survey, Forest Survey, Thiruvananthapuram, as per his Letter No.223/95 dated 12.4.1996 informed the Divisional Forest Officer, Kottayam that 473 acres and 24 cents of land in Sy No.1131 is Government Poramboke as per village records and that 9 acres, 49 cents of this Poramboke were assigned as per LA No.9/81, 30/81, 27/1984, 277/1984. The Superintendent of Survey also reported that according to the 4" map of Peermade Village, land in Sy No. 1131 is known as "Government Reserve". He had opined that in order to confirm whether the land in Sy No.1131 is a Reserve Forest and whether the same land has been assigned, perusal of files relating to the land assignment is necessary. However, the Superintendent of Survey was not able to procure the land assignment files from the Village Office, Peermade, Taluk Office, Peermade and office of the Sub Collector, Devikulam.

It is submitted that Chief Conservator of Forests (Protection) as per his letter No.L-32181/96 dated 25.9.1996 requested the Tahsildar Peermade to make available the Land Assignment Files to the Superintendent of Survey, to solve the issue. However, these files were not made available."

The said affidavit also avers that the forest department planted some trees in

1992. But that is not decisive. What is relevant is whether the land, when it

was assigned by the revenue department in 1981 and 1984, was forest land.

Further as the land had already been attached in January, 1992 by the

Revenue department for recovery of dues, any subsequent planting of trees

by forest department will not prove that the land was forest land. In fact the

Tahsildar, Peermade by letter dated 3.11.1994 referred to the planting of 13

trees and called upon the forest department to vacate the land so that it

could be sold by public auction. The forest department was aware that the

Revenue department was to sell the land by public auction as long back as

1994 (See Pr. 8 of the Affidavit dated 2.5.2008 of the Chief Conservator).

But it did not take any action.

13. This case demonstrates, though in a very limited manner, the lack of

co-operation and co-ordination between government departments. All

departments should function in the interest of the public and for public

good. Merely because a particular department or an authority functions

under a particular statute, it does not follow that they should or could ignore

the provisions of other statutes. Inter-departmental co-operation and co-

ordination is vital for the smooth and successful functioning of the

Government. But unfortunately there is thriving inter-departmental rivalries

and a mutual non-caring attitude towards the functioning of other

departments and enforcement of other statutes. Non-cooperation between

Revenue department and Forest department, Revenue department and Mines

& Minerals department, Forest department and Mines & Mineral

department, are too well known. Unless immediate and serious steps are

taken for improving the co-ordination, co-operation and understanding 14

among various departments, offenders will escape, violators will walk away,

national resources will be swindled, and public interest will suffer. Be that

as it may.

14. This is a simple case where the revenue department and the forest

department could have sorted out the issue as to whether the land was forest

land or non-forest government Poramboke. They had all the time between

1992 and 1998. The revenue records showed the land as Government

Poramboke that is non-forest land. The forest department's claim that it is

forest land is not supported any acceptable evidence. We fail to understand

why the forest department cannot examine the revenue registers from time

to time and take action when they came across any forest land being shown

otherwise. Similarly the revenue department and forest department can sort

out and demarcate what is forest land and what is non forest government

land. As noticed above the forest department for the first time attempted to

plant some trees in the land only in 1992 even though it knew that it was

shown as government Poramboke land in the revenue records and not as

forest land. Similarly, even though the revenue department knew that the

forest department was attempting to plant trees in 1992 and claim that it was

forest land, it chose to put up the land for auction sale in 1998, without 15

sorting out whether the land was forest land or not, and sold the land and

recovered Rs.365500 from an innocent citizen. Because of the

misunderstanding and non-cooperation between the two departments, a

citizen who bonafide participated in a public auction and parted with a large

amount of money is made to run from pillar to post. To add to her woes,

she has been unnecessarily directed to approach the civil court and prove

the negative.

15. As noticed above to this day neither forest department nor the

revenue department have taken any steps or issued any notice to have the

land declared as a forest land or to annul the sale in favour of the appellant.

Though one of the grievances of the respondents in respect of the order of

the learned Single Judge was that he did not give sufficient time in 1999 to

verify whether the land is a forest land or not, the affidavit filed by the

forest department in May 2008 in this case shows that the issue still remains

under the process of verification.

16. One last aspect. It was pointed out that in the normal course, while

allowing such a writ petition, the learned Single Judge ought to have

directed the Collector to initiate action under section 58 of the Act, instead

of straightaway directing possession. But there were special circumstances. 16

Firstly, the obstruction to possession was not by a private party. Secondly

the land was attached and sold by public auction, at the instance of the state

government. Thirdly, without any proof, the state government contended

that it wanted to verify whether land was forest land, without explaining

why then it was sold by public action.

17. We are clear that there was no justification for the Division Bench to

set aside the order of the learned Single Judge and direct the appellant to

approach the civil court to prove the negative and obtain a declaration of

title and possession. We, therefore, allow this appeal, set aside the order of

the Division Bench, and restore the order of the learned Single Judge.

Liberty, of course, is reserved to the state government to take action in

accordance in law if it finds that the land is a forest land.

............................J [R. V. Raveendran]

............................J [P. Sathasivam] New Delhi;

August 21, 2008.