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CASE NO.: Appeal (civil)  3371 of 2006

PETITIONER: KUMARI VARMA

RESPONDENT: STATE OF KERALA & ANR

DATE OF JUDGMENT: 04/08/2006

BENCH: S.B. SINHA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  (ARISING OUT OF S.L.P. (C) NO.3341-3342 OF 2005) WITH CIVIL APPEAL NO.3372 OF 2006 (ARISING OUT OF S.L.P. (C) NO.16872 OF 2005)

P.K. BALASUBRAMANYAN, J.

1.              Leave granted.   

2.              These are cross appeals by the applicant before the  Forest Tribunal and the respondent therein, the State of  Kerala.   The appeals arise from the final adjudication made in  O.A. No.90 of 1979 filed by the applicant therein claiming  exemption from vesting under the Kerala Private Forests  (Vesting and Assignment) Act, 1971 (for short "the Vesting  Act") in respect of the land scheduled to that application.    Going by the application it will be seen that the applicant  claimed that the lands in RS No.292/1A of Naduvil Village  belonging to the applicant, was a cardamom plantation before  the appointed day, namely, 10.05.1971; that the forest  authorities are proceeding as if the entire land had vested in  the State under the Vesting Act and the application scheduled  land was liable to be declared as not having vested in the  State, as per the Vesting Act.   The application was resisted by  the State and the forest authorities.   But, it was stated that a  portion of the land was planted with cardamom.  The land was  part of what was called the Koliyat Estate consisting of about  700 acres and a substantial part of the Estate fell within the  State of Karnataka when the reorganisation of states took  place with effect from 1.11.1956.  According to the applicant  the area that fell within the State of Kerala was 348 acres and  the whole of it had been planted with cardamom prior to the  appointed day and it was on that basis that the application  was filed under Section 8 of the Vesting Act.

3.              The application was made only sometime in  September 1979.   The application was dismissed by the  Forest Tribunal on the ground that it was barred by limitation,  the vesting having taken place on 10.5.1971.   That dismissal  was set aside in appeal by the High Court which remanded the  Application O.A. No.90 of 1979 to the tribunal for an  investigation and disposal on merits in accordance with law.   Some evidence was adduced including the filing of a report by  a Commissioner.   By order dated 22.3.1990, the tribunal

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dismissed the application on a finding that the land was not  put under cultivation prior to the appointed day, namely,  10.5.1971 and that it was a forest to which The Madras  Preservation of Private Forests Act applied and hence it was a  forest in terms of the Act and it had vested in the State under  the Vesting Act.  This order was again challenged by the  applicant before the High Court in M.F.A. No.658 of 1990.    The High Court took the view that what was called for was a  proper identification of the land which had been planted with  cardamom prior to the appointed day since it would be seen  from the pleadings that some portion of the land was  cultivated with cardamom even going by the objections filed by  the State and the forest officials before the forest tribunal.    After setting aside the commission report and plan that was  marked in evidence, the High Court directed the Forest  Tribunal to issue a fresh commission, to have the property  identified with particular reference to the portions, if any, in  which cardamom was planted prior to the appointed day and  to dispose of the application afresh.  Both sides were given  opportunity to adduce evidence.

4.              Pursuant to this order of remand, a commission  was issued and the commissioner after inspection reported  that an extent of 100.05 acres (wrongly added up as 99.05  acres) was found to be planted with cardamom, the planting  having been done about 25 years prior to the date of his visit.    He also identified two structures and a platform existing in the  property.   He reported that the rest of the property is seen to  be forest since it had forest tree growth.   On behalf of the  applicant some further evidence was adduced; but on behalf of  the State, nothing much was done before the Tribunal.  The  Forest Tribunal made a local inspection with notice to both  sides and in their presence so as to enable it to better  appreciate the evidence on both sides.  It prepared a note of  inspection and gave copies of the same to both sides.    Thereafter on an appreciation of the evidence in the case, the  Forest Tribunal came to the conclusion that an extent of  100.05 acres demarcated as plots A, B and C in the sketch  prepared by the Commissioner could be held to be planted  with cardamom prior to the appointed day and hence excluded  from vesting in the State under the Vesting Act.   Though the  applicant had not made any claim for exemption for ancillary  purposes, the Forest Tribunal, taking note of the two  constructions existing in the property along with the platform  which was said to be used for drying cardamom, excluded an  extent of 9.95 acres of land for that purpose.   Thus, the  Forest Tribunal passed an order holding that 110 acres of land  were excluded from vesting under the Vesting Act and granted  relief to the applicant on that basis.  The Forest Tribunal  clearly identified the land that had not vested, in its order by  indicating that the area of 110 acres is comprised in plots A, B  and C as shown in the exhibit C-3 plan and described in Ex.  C-4 report.  It ordered that Ex. C-3 plan and C-4 report should  form part of its order.  Feeling aggrieved, both sides filed  appeals before the High Court.   The High Court, on a  consideration of the relevant materials, including the minutes  of some meetings of the standing committee under a scheme  formulated, relied upon by the applicant, came to the  conclusion that the Forest Tribunal was right in accepting the  case of the applicant only to the extent of 100.05 acres as  demarcated by the commissioner in Exhibits C-3 plan and was  justified in exempting 9.95 acres for ancillary purposes though  no such specific claim was put forward by the applicant in the  original application.   Thus the order of the Forest Tribunal

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was confirmed and the appeals were dismissed.   Feeling  aggrieved by this decision of the High Court, both sides have  approached this Court with these appeals by special leave.  

5.              On behalf of the applicant it was contended that the  minutes of the standing committee chaired by the District  Collector to ensure proper utilisation of the loan taken by the  applicant from the Central Bank of India through the  Agricultural Refinance Corporation of India clearly showed  that the entire 348 acres of land that fell within the State of  Kerala had been cultivated by the appointed day and in that  situation, the Forest Tribunal and the High Court ought to  have excluded or exempted the entire 348 acres from vesting.    He submitted that the minutes were more or less official  records and of undoubted authenticity and based on them,  supported by the evidence of PW1, the claim ought to have  been upheld in full.  On behalf of the State it was contended  that the minutes relied on did not establish the claim, that  after the order of remand passed by the High Court on the  second occasion, it was more or less a case of identifying the  extent in which cardamom had been planted by the applicant  prior to the appointed day and the only reliable material  available, namely, the report of the commissioner and the plan  prepared by him showed, that the plantation was confined to  plots A, B and C in Exhibit C-3 plan.   On behalf of the State it  was contended that even the cardamom plants noticed in Plots  A, B and C were not planted prior to the appointed day but  they were of sporadic growth and the Forest Tribunal was not  justified in excluding or exempting that extent from vesting.    Counsel also pointed out that there was not even a claim for  exclusion of 9.95 acres on the ground that the land was  needed for being used for ancillary purposes and in this  situation, the tribunal clearly erred in excluding that extent  and the High Court was not justified in confirming that part of  the order of the tribunal in any event.  He also submitted that  the minutes relied on do not establish that there was actual  planting of cardamom in the entire extent before the appointed  day and the Forest Tribunal and the High Court have rightly  not relied on them to uphold the claim of the applicant.   

6.              We have given our anxious consideration to the  arguments raised.  The so called minutes of the standing  committee do not enable the applicant to establish that the  entire extent of 348 acres that allegedly fell in the State of  Kerala had actually been planted prior to the appointed day.    In fact, the applicant could not show what exactly was the  extent that fell within the State of Kerala and in respect of  which the plantation activity was carried on prior to the  appointed day.   The Forest Tribunal and the High Court  cannot be said to have erred in refusing to uphold the claim of  the applicant based on the minutes.  In the second order of  remand by the High Court what was emphasised was that  even in the pleadings of the State and the forest authorities it  was stated that some extent had been planted and the matter  was remanded for a fresh consideration mainly to identify that  extent which had been planted.    The High Court specifically  set aside the commissioner’s plan and report that were  available at that stage and directed the Forest Tribunal to  issue a fresh commission for identifying the area that had  been planted with cardamom.   After the remand by the High  Court, a commission was taken out and the commissioner  clearly reported that the plantation was confined to plots A, B  and C in Ex.C-3 plan.   He also indicated the extent of those

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plots in the plan he prepared.  He gave reasons which led him  to infer that the plantation found in those plots were  plantations effected and could not be considered sporadic  growth as sought to be contended by the forest authorities.    He also reported that the rest of the area was full of forest tree  growth.  In spite of opportunity available, the claimant did not  examine the commissioner to demonstrate that the report  about the actual extent in which old plantation was found,  was not correct.   There was therefore no justifiable reason for  the Forest Tribunal and the High Court to discard the plan  and the report.  Though a decision cannot be based on a local  inspection, the Forest Tribunal did make a local inspection so  as to appreciate the evidence better and the Forest Tribunal  found no reason to discard the report of the commissioner or  the identification of the plots made by him.   Except the  minutes relied on, and some bills for purchase of seedlings,     the applicant could not adduce any evidence to show that  more area was actually cultivated or that the identification  made by the commissioner of the plots which contained  cardamom plants aged 20 to 25 years,  was in any manner,  not correct or that the identification was unacceptable.   It was  in this situation that the Forest Tribunal came to the  conclusion that the extent of 100.05 acres was liable to be  exempted as cardamom plantation prior to the appointed day  and that an extent of 9.95 acres was also to be excluded or  exempted on the basis that it was required for purposes  ancillary to the plantation.   Of course, as rightly contended by  counsel appearing on behalf of the State, there was no specific  claim for exemption on the ground of land needed for purposes  ancillary to the purpose of the plantation, but taking note of  the existence of the buildings therein and the platform referred  to, in the report of the commissioner, the tribunal thought it  appropriate to exclude an extent of 9.95 acres also on that  ground, even though there was no specific claim in that  regard.  But then, the claim of the applicant was that the  entire 348 acres of land was to be excluded.  It was in that  situation that the High Court also chose not to interfere with  that part of the order of the tribunal.

7.              Thus, on the whole, we are not satisfied that there  is any justification in interfering with the decision of the Forest  Tribunal, as confirmed by the High Court.   The property  exempted had been clearly identified by the commissioner in  the plan which had been appended to the order of the Forest  Tribunal and the extent of the plots had been specifically  given.   It is, therefore, seen that the identity of the excluded  lands is also clear and there is no occasion for attempting any  further identification at any later stage.   The order now  passed thus suffers from no infirmity and there could be no  dispute about the area excluded or exempted.  Hence, no  interference is called for on that ground also.

8.              We, thus, confirm the decision of the High Court,  and dismiss these appeals.   In the circumstances of the case,  we direct the parties to suffer their respective costs.