Full Judgment Text
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PETITIONER:
THE STATE OF KERALA & ANR.
Vs.
RESPONDENT:
THE PULLANGODE RUBBER & PRODUCE CO. LTD.
DATE OF JUDGMENT: 27/07/1999
BENCH:
S.P.Bharuch, R.C.Lahoti, N.Santosh Hedge
JUDGMENT:
Bharucha, J.
CIVIL APPEAL NO.4253/1984 AND CIVIL APPEAL
NO.4423/1984 :
The Pullangode Rubber & Produce Co. Ltd.
(hereinafter referred to as the company) is the appellant
in Civil Appeal No.4423 of 1984. It owned 3687.48 acres of
land, on 2148.28 acres of which rubber trees were planted.
The said land fell within the Malabar District of the State
of Madras prior to the coming into force of the States
Reorganisation Act, 1956; thereafter it fell within the
State of Kerala. The said land was governed by the Madras
Preservation of Private Forest Act, 1949, immediately before
the appointed day, 10th May, 1971, under the Kerala Private
Forests (Vesting and Assignment) Act, 1971 (hereinafter
referred to as the said Act).
The said Act was enacted to provide for the vesting of
private forests in the State Government and the assignment
thereof to agriculturists and agricultural labourers for
cultivation. Section 2 of the said Act defined private
forest to mean, in relation to the Malabar District
aforementioned, land to which the Madras Preservation of
Private Forests Act, 1949, applied immediately before the
appointed day under the said Act, excluding, inter alia,
lands which are used principally for the cultivation of
tea, coffee, cocoa, rubber, cardamom or cinnamon and lands
used for any purposes ancillary to the cultivation of such
crops or for the preparation of the same for the market.
The company contended, among other things, that an
area of 594.78 acres out of the said land was not a private
forest within the meaning thereof quoted above being
uncultivated jungle area reserved for fuel purpose for
manufacture of rubber, for use of labourers employed in the
estate numbering about 1000, and for green manure/mulching
ancillary to the plantation and rocky area. It was stated
in the companys claim statement thus :
This is a chunk of land overgrown with wild growth
whose retension with the applicant is absolutely necessary
for reasons more than one. It is the only source of
firewood necessary for the use as fuel for the manufacture
of rubber and the vast plantations owned by the applicant
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depend for their economic exploitation on the firewood made
available by the bit of jungle area. The firewood required
by the large contingent of labourers and members of the
staff employed in the estate is also supplied by this area.
It also constituted the sole source of green manure so
vitally required by the rubber plantations ground, which
would be in their absence devoid of manure. Besides they
are also the grazing ground for the cattle of the petitioner
and its employees.
The Forest Tribunal constituted under the said Act
which adjudicated the Companys claim noted :
The date of commencement of the Act is 10.5.1971. So
the state of affairs as on that date has to be considered.
The requirement of firewood may increase as years go by.
The point to be considered is whether this vast extent of
jungle area was being used for taking firewood and not
whether this property is not (sic) required by the
petitioner to meet all its needs regarding firewood.
The Tribunal discussed the evidence of the witness on
behalf of the company and the stock books that it had
produced. It noted that the stock books, especially those
prior to 1971, did not show that firewood was being
regularly supplied to the workers and staff. According to
the witness, firewood was necessary for making charcoal for
sharpening the tools for tapping and for other maintenance
work in the companys estate. He had also stated that
firewood was being supplied to the canteen and the hospitals
in the estate. The stock registers of the period prior to
10th May 1971, the Tribunal found, did not show that
considerable quantities of firewood were being used for
these purposes at that time. Further, in the Tribunals
view, the requirements of firewood for the domestic use of
workers and staff for converting into charcoal and for
supplying to the hospital and canteen could not be stated to
be purposes ancillary to the cultivation of rubber or for
the preparation of the same for the market. The companys
witness had stated that it was a condition of employment in
the company that it would supply firewood free and so the
workers were allowed to collect firewood. He had also
stated that such a condition was contained in the written
agreement between the workers union and the management of
the company, but no such agreement was produced and it was
also not known whether such agreement was prior to or
subsequent to 10th May, 1971. The Tribunal found, based
upon the evidence, that there were miscellaneous trees in
the companys estate, at least on the boundaries thereof,
which could be cut and used for firewood; also, that vast
areas within the said land had been clear-felled during the
period 1964-71, as could be seen from clear- felling permits
on the record. The Tribunal concluded that there would have
been no necessity for cutting any trees from the jungle area
of 594.78 acres, at least prior to 10th May, 1971. It found
that the companys case that firewood had been taken from
this area did not appear probable and true. There was also
no satisfactory material to show that this area was being
used by the company at the commencement of the said Act for
obtaining firewood for use in the smoke- houses in its
estate. The Tribunal concluded that this area of 594.78
acres was a private forest under the said Act.
The companys appeal in this behalf, along with other
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appeals, was considered by a Five Judge Bench of the Kerala
High Court and its judgment and order is under challenge
before us.
The High Court said that the question was whether the
supply of firewood for staff and workmen could be treated as
satisfying a purpose ancillary to cultivation and whether
the smoke-house needs were relatable to use of land in the
preparation of rubber for the market. It added that the
further problem was of fixing up the jungle area which could
reasonably be ear-marked for the purpose. It held that the
supply of firewood to the employees could not be said to be
a purpose ancillary to the cultivation of the plantation
crops, and in this regard it followed the judgment of this
Court in Chettian Veetil Ammad & Anr. vs. Taluk Land Board
& Ors., [1980 (1) SCC 499]. It then proceeded to consider
whether the use of land for supply of firewood for
smoke-house purposes would exempt the land, and held that it
would. It then said :
The next point is what area of the jungle land could
be excluded on the above basis? A precise assessment will
almost be impossible, because the quantum of fire-wood
needed for smoking purposes will depend on the volume of
rubber to be processed, the yield of the trees, the quality
of the wood and other factors. The best solution seems to
be to make an approximate assessment as was made by the
Taluk Land Board in Ammads case (supra). Taking into
account the finding of the Tribunal that the yield in 1971
was lower, and that dry branches of rubber trees are also
likely to be available for fire-wood purposes, we fix the
extent as 75 acres.
The Company is in appeal from the decision of the High
Court in so far as it relates to the aspect of supply of
firewood to its staff. The State is in appeal (C.A.
No.4253 of 1984) in so far as the decision relates to the
aspect of firewood for the smoke-house.
It is necessary first, we think, to construe the
definition of private forest in the said Act. It means,
as aforestated, in relation to the erstwhile Malabar
District of the State of Madras, land to which the Madras
Preservation of Private Forests Act applied immediately
before 10th May, 1971, being the appointed day under the
said Act, but excluding, inter alia, lands which are used
principally for the cultivation of tea, coffee, cocoa,
rubber, cardamom or cinnamon and lands for any purpose
ancillary to the cultivation of such crops or to the
preparation for the same to the market. Such lands so used
are, therefore, not private forests within the meaning of
the said Act. Now what this means is that lands in the
Malabar District aforementioned which are used (a)
principally for the cultivation of tea, coffee, cocoa,
rubber, cardamom or cinnamon, (b) for any purpose ancillary
to the cultivation of such crops, and (c) for the
preparation of such crops for the market are not private
forests under the said Act. The use of the words are used
in this context necessarily refers to such use as on the
appointed date under the said Act, namely, 10th May, 1971.
It is not possible to give any other meaning to the words
are used. They must relate to use on that particular day
for it is on that day that land is or is not a private
forest within the meaning of the said Act.
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What, therefore, is necessary for a claimant for
exemption to establish in regard to land within the
aforementioned Malabar District is that on 10th May, 1971,
its lands were being used principally for the cultivation of
tea, coffee, cocoa, rubber, cardamom or cinnamon or that
they were being used on that day for any purpose ancillary
to the cultivation of such crops or that they were being
used on that day for the preparation of such crops for the
market.
We now turn to the question whether land used for
providing firewood to a rubber estates smoke-houses and its
workers is land that is not a private forest within the
meaning of the said Act. The question is now answered by
the judgment of this Court in Pioneer Rubber Plantation,
Nalambur, Kerala State vs. State of Kerala and another
[1992 (4) SCC 175]. The majority on the Bench of three
learned Judges held that it appeared reasonable that the
area required for the purpose of growing firewood trees for
fuel in the factories and smoke-houses (of rubber
plantations) as well as for supply to the employees of the
estate for their domestic use should be excluded from the
definition of the term private forest.
The High Court was, therefore, right in holding that
land used for supplying firewood for the smoke-houses of the
company was excludible from the definition of private
forest under the said Act. The consequential question is
whether the High Court was right in making an assessment
thereof as indicated above and fixing an extent of 75 acres
in this behalf. The answer must be in the negative.
As demonstrated above by an analysis of the
definition, it was for the company to plead and establish by
evidence that on 10th May, 1971 the land admeasuring 594.78
acres or some specific part thereof was being used for
supplying firewood to its smoke-houses and its workmen.
As the companys claim statement before the Tribunal,
which we have quoted above, shows, it had not even made an
averment that the area of 594.78 acres or some specific part
thereof was being used on 10th May, 1971 for supplying
firewood to its smoke-houses or its workmen. Even so, and
concentrating very properly on the date 10th May, 1971, the
Tribunal discussed the companys evidence, oral and
documentary, in some detail. It found, and rightly, that
the evidence did not establish that this acreage of land or
any specific part thereof was being used by the company for
these purposes on 10th May, 1971. In the absence of
evidence the companys claim must fail in regard to the
entire area of 594.78 acres.
In the same proceeding, the company contended before
the Tribunal that two areas of land (R.S. 1032 admeasuring
28.40 acres and R.S. 1964 admeasuring 37.75 acres) were
wooded areas in enclaves surrounded by its rubber plantation
and that these should not be considered private forests.
The Tribunal noted the evidence of the companys witness
that if such land was treated as a forest vested in the
State, the companys surrounding plantation would be
jeopardised. The Tribunal found that it could not be held
that these were lands utilised for any purpose covered by
the definition quoted above and held them to be private
forests. The High Court, in appeal, noted that the wooded
area of 28.40 acres in R.S. 1032 was an enclave surrounded
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by rubber trees but that the area of 37.75 acres in R.S.
739 lay on the boundary of the companys estate. The High
Court, being unsatisfied with the evidence in this behalf,
rejected the companys claim in regard to these two areas of
the said land, and the company is in appeal.
Our attention was drawn by learned counsel for the
company to the judgment of this Court in Bhavani Tea and
Produce Co. Ltd. vs. State of Kerala and Ors. [1991(2)
SCC 463]. Among other claims in this matter was a claim by
the appellant tea company that certain areas of land within
its plantation were excluded from the purview of the said
Act. A Bench of two learned Judges of this Court said that
the said Act, the Kerala Forest Act, the Kerala Land Reforms
Act and the Madras Preservation of Private Forest Act
considered plantations as units by providing that they would
include land used for ancillary purposes as well.
Therefore, while applying the said Act, the same principle
was applicable. Accordingly, it was reasonable to take each
division of the plantation as a unit and apply the principle
aforementioned. Based thereon, this Court held that plots
admeasuring 25.08 acres, 1.65 acres, 3.82 acres, 10.70
acres, 10.58 acres, 8.10 acres and 24.84 acres formed small
portions of the respective divisions of the plantation and
could be taken to have been principally cultivated.
Accordingly, these plots were found to be exempt from
vesting under the said Act.
We respectfully agree, having regard particularly to
the words in the definition, lands which are used
principally for the cultivation of ...................,
where the large part of a parcel of land is used for
plantation of the specified crops leaving only a small part
within not so cultivated, it is reasonable to say that the
parcel of land as a whole is used principally for the
cultivation of the specified crops. The principle would
apply in the instant case to the land admeasuring 28.40
acres in R.S. 1032 because it is an enclave within the
companys plantation of 2148.28 acres. The area of 37.75
acres in R.S. 1964 is on the periphery of the companys
plantation and there is nothing to suggest that it is
bounded elsewhere also by a rubber plantation. The
exemption, therefore, cannot be made applicable to R.S.
1964.
Before parting with these appeals we must mention that
they were ordered to be heard by a three Judge Bench because
it had been contended, based upon the decision in the case
of Bhavani Tea and Produce Co. Ltd. (supra), that a
cultivated plantation was excluded from the operation of the
Madras Preservation of Private Forest Act. No such argument
has been advanced before us, even after we pointed out the
referral order. It is, therefore, not necessary for us to
consider the correctness of the decision in Bhavani Tea and
Produce Co. Ltd. in its entirety.
CIVIL APPEAL NO.4925 OF 1985 :
The State is in appeal and the respondent is not
represented. The High Court made an assessment of the land
claimed to be used for providing firewood trees or a
fire-belt and exempted an area of 15 acres, taking the total
extent of the land, the nature of land and other aspects
into consideration. As we have pointed out above, it is for
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the claimant to establish by appropriate evidence that the
land in respect of which he seeks an exemption was being
used on the appointed day under the said Act for a purpose
which falls within the exception to the definition quoted
above and that no assessment of this kind is permissible.
The judgment of the High Court is, therefore, erroneous.
In the result, Civil Appeal No.4253 of 1984 is allowed
and the order of the High Court in so far as it exempts an
area of 75 acres from the purview of the said Act is set
aside. Civil Appeal No.4423 of 1984 is allowed only to the
extent that an area of 28.40 acres in R.S. 1032 is exempt
from the purview of the said Act. Civil Appeal No.4925 of
1985 is allowed and the judgment and order of the High Court
is set aside in its entirety.
costs. T here shall be no order as to