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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