TMI Blog1992 (8) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the expression `private forest' and accordingly vested in the State in term of the Act. The High Court rejected the contention of the appellants to the contrary. We shall now read section 2(f)(i)(B):- 2. In this Act, unless the context otherwise requires,- (f) `private forest' means - (1) in relation to the Malabar district referred to in sub- section (2) of section 5 of the States Reorganization Act, 1956 (Central Act 37 of 1956)- (i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before appointed day excluding - (B) lands which are used principally for the cultivation of tea, offices, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. (emphasis supplied) The High Court held that the lands on which firewood trees were grown for the purpose of fuel for either the smoke-house or factories or the employees in the estates were not lands used for purpose ancillary to the cultivation of the crops or for the preparation of the same for the market so as to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustry where it was the obligation of the employers to provide the employees with drinking water, canteen, creches, umbrellas, blankets, rain- coats, foodgrains, provisions, fire-wood and the like, Fire-wood in particular was an important necessity in the cold climate on the high ranges. Most of the estate managements had been planting redgum for example, to ensure a steady supply of firewood to the community, and also for use in the smoke-houses and estate factories. `Any purpose ancillary to cultivation' in S.2(f)(1)(i)(B) of the Vesting Act was deliberately kept wide by the legislature, because it knew that there were recognised `uses' other than those specifically enumerated in the Explanation. The object of the Act is to improve the lot of the rural population, and it should have been far from the mind of the legislators to deprive estate employees of the facilities they were enjoying at the commencement of the Act. Supply of fire-wood employees in accordance with the industry wide practice should therefore be taken as ancillary to the Cultivation of plantation crops....... (emphasis supplied) However, the learned Judges felt constrained by the decision of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the ceiling area prescribed by Act 35 of 1969 - whether sub-section (3) of s. 84 was retrospective in operation . These three points are in no way connected with the point in issue in the present cases. That judgment was rendered in a batch of cases and one of the questions which incidentally arose was as regards firewood trees grown in the estates. That question arose in C.A. No. 227 of 1978, and it has been discussed at page 870 of the judgment : (1979) 3 SCR 839, 870. This Court held that the `fuel area' claimed for the manufacture of tea was exorbitant. The High Court had allowed the entire claim of 924.01 acres as fuel area. Setting aside the High Court order, this Court restored the original order of the Land Board and thus limited the exemption to 200 acres as fuel area for the requirement of the factory. Ammad is thus an authority for the preposition that a reasonable extent of land can be set apart as fuel area for the purpose of smoke-houses and factories in the estates and such area qualifies for exemption under section 2(f)(1)(i)(B) of the Act. At the same time, the incidental observation of this Court in Ammad cannot be taken as an authority to disqualify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the term `private forest'. We must, however, emphasise that the burden is on the appellants to show it has been their practice to supply firewood to the employees of the estates for their domestic use. As for the firewood required for the factories and smoke-houses in the estates, there seems to be no doubt about the claim of the appellants. However, where evidence had been led to show that firewood was steadily and adequately available in the market at reasonable rates for use of the factories or smoke-houses as well as for supply to the workers of a particular plantation, in such a case no land could be excluded from the definition of the private forest on the ground that it was required for growing firewood trees for the purpose of the estate as well as for the workers. That, however, is not the position in the case before us. On the pleadings and evidence before us, we do not consider that any further inquiry on the point is necessary. In our view, section 2(f)(1)(i)(B) should be so understood as to grant exemption in respect of lands on which firewood trees are necessary to be grown for steady supply of a reasonable quantity of fuel to the employees as well as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r fuel for the smoke- houses or factories as well as for the employees in the estates. The appeals are allowed in the above terms. We do not, however, make any order as to costs. SAWANT,J. I have gone through the judgement of my learned brother Justice Thommen. Since I am unable to persuade myself to accept the view taken there, with due deference, I am pronouncing this separate judgement. 2. A common question which falls for consideration in all these appeals in the meaning of the expression land used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market in Section 2(f)(10(i)(B) of the Kerala Private Forests Vesting and Assignment Act, 1971 (hereinafter referred to as the Act ). In order to appreciate the controversy, it is necessary to understand the scheme of the Act. 3. As the preamble of the Act state, private forests in the State of Kerala are agricultural lands and the Government considered that such agricultural lands should be so utilised as to increase the agricultural- production and to promote the welfare of the agricultural population in the State. It is with a view to give effect to this ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forests, which is held by the owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 or any building or structure standing thereon or appurtenant thereto. The explanation to sub-section (2) states that 'cultivation'would include cultivation of trees or plants of any species. Likewise, sub-section (3) of Section 3 excludes so much extent of private forests held by an owner which is held by him under a valid registered document of title executed before the appointed day and intended for cultivation by him which together with other lands held by him does not exceed the extent of the ceiling area applicable to him under Section 82 of the Kerala Land Reforms Act, 1963.sub-section (4) of Section 3 states that for the purposes of sub-sections (2) and (3) private forests shall be deemed to be lands to which the Kerala Land Reforms Act,1963 is applicable and they shall be deemed to be 'other dry lands' for the purposes of calculating the ceiling limit under that Act. Section 4 of the Act then States that the private forests shall be deemed to be reserved forests under the Kerala Forest Act so long as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comprised in private forests have been assigned. It is not necessary to refer to the other provisions of the Act. Thus from the preamble as well from the other provisions of the Act, it is clear that the object in enacting the said Act was to secure private forests and agricultural lands comprised therein to promote agriculture, the welfare of the agricultural population and purposes ancillary thereto, and also to assign lands to needy sections of the society who were either living on agriculture or who were willing to take up agriculture as the means of their livelihood. 4. The aforesaid objectives and the provisions of the Act help us- construe the provisions of Section 2(f)(1)(i)(B) of the Act which fall for consideration in the present case. What is meant by ancillary to the cultivation has been explained by the Explanation to sub-clause (B) which shows that the lands for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops. No doubt, the Explanation contains a deeming provision and hence a purpose similar in nature to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is admittedly exempted from the Act. The exemption sought is for the land needed to grow trees,the timber of which can be used as fuel in the smoke-house. The fuel, it is claimed is necessary for drying the crop to prepare it for the market. Apart from the fact that the relationship between the land required for growing fuel trees and preparation of crops for the market is remote, the absolute need for the land for the purpose as stated above, is not proved. It has further to be remembered in this connection that the Explanation while including in it land for such remote purposes as hospitals, schools and playgrounds has chosen not to include land required for fuel whether for the workers or for the smoke- house. What is further, while expressly exempting the land for the smoke-house, it has made not reference to the land needed for growing fuel for use in the smoke-house. By the normal rule of interpretation, therefore, it will have to be held that the what is not included is deemed to have been excluded. Hence in the case of claim for land for growing trees for fuel for the workers, it is necessary to first prove that fuel-wood is actually grown in the estate and secondly,that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 200 acres as being sufficient and necessary for the purpose. That came to, according to the Tribunal, in all 23.92 acres. What is necessary to note from the Tribunal's decision is that no claim for growing fuel trees either for supply of fuel to the workers or for the smoke-house was made before the Tribunal. The only claim was for more area for constructing sufficient number of quarters to accommodate all the labourers. Against this decision of the Tribunal, both the present appellants and the respondent-State Government had preferred appeals to the High Court which in paragraph 3 of its judgment observed as follows: The Forest Tribunal found on the plea for exclusion of 44 acres as ancillary land that so much extent of land was not required for the purpose of planting trees to be used as firewood and for construction of quarters of the labourers. However, in the Tribunal's decision there is no mention of any claim for land required for firewood. It appears that the High Court while deciding the appeals had extracted the case of the petitioner from the petition and the statement accompanying the petition filed before the Tribunal. In that petition,the petitioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. Taluk Land Board and others, etc. etc., AIR 1979 SC 1573 pointed out that supply of fuel wood could not be said to be a purpose ancillary to the cultivation or plantation of crops. The High Court repelled the contentions of the present appellant that Eucalyptus trees were fruit bearing trees and therefore- exempt under Section 2(f)(1)(i)(C) of the Act. The High Court thus allowed the appeals of the State Government and rejected the claim of the appellants. It also appears from the certificate granted by the High Court under Article 133(1) of the Constitution, that it was granted on the ground that a substantial question of law of general importance concerning the interpretation of Section 2(f)(1)(i)(C) of the Act was involved. It thus appears that the certificate was not asked for and granted on the ground that the land was required for a purpose mentioned in Section 2(f)(1)(i)(B) of the Act. These are the facts in different appeals before us. It is, therefore, clear as far as the facts involved in the appeals before us are concerned, the question whether the land was needed for the purpose for which it was claimed viz., for growing fuel wood for supplying to the workers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ceiling area prescribed by Act 36 of 1969- Whether sub-section (3) of Section 64 is retrospective in operation? The Court negatived the contentions of the appellants on Points 1 and 3 and then proceeded to examine the merits of each of the appeals with regard to Point No. 2 where the said point was raised. Only in two appeals, viz., C.A. No. 2811 of 1977 and C.A. No. 227 of 1978 dealt with in paragraphs 53 and 54 respectively of the decision, the claim for the exemption of land used for growing fuel fell for consideration under that Act and this is how the Court dealt with the said claim in the two appeals: C.A. No. 2811 of 1977 ....................... 53. Mr. Bhatt has argued that the High Court erred in not granting the exemption for the entire area as a coffee plantation; but the finding of fact in this respect is against the appellant. The conversion of the land has also been held to be illegal. On the claim that the land used for growing fuel was exempt as it fell within the definition of 'plantation' under S.2(44)(a) as it was an 'ancillary purpose' also, there is a finding of fact against the Company. The appeal has no merit and is dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llary to the cultivation of plantation crops. The Land Board, as is clear from the- discussion, had disallowed the claim to the extent of 136.17 acres but the High Court had allowed the claim in full, i.e., 924.01 acres. This Court held that the High Court was not justified in interfering with the Board's finding of fact for there was nothing to show that it was an area from which crop was not gathered at the relevant time...In fact it appears from the order of the Board that no other estate had made any such claim. The appeal is therefore allowed to the extent that the Board's decision is restored in both these matters . It would thus appear from the said discussion that after having held that supply of fuel-wood could not be said to be a purpose ancillary to the cultivation of plantation crops, the Court merely proceeded to restore the finding of the Land Board on the ground that the High Court's interference with the Board's finding whereby the Board had disallowed the claim for exemption of certain acreage was not justified. Thus from paragraphs 53 and 54 of the said decision it is obvious that this Court had taken the view that the area required for gro ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
