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1992 (8) TMI 283 - SUPREME COURT OF INDIA

1992 (8) TMI 283 - SUPREME COURT OF INDIA - 1993 AIR 192, 1992 (3) SCR 972, 1992 (4) SCC 175, 1992 (5) JT 144, 1992 (2) SCALE 231 - C.A. 106 of 1982 - Dated:- 24-8-1992 - Kania, M.H., Thommen, T.K., And Sawant, P.B. For the Appellants : T.S. Krishnamurthi Iyer, G. Viswanatha Iyer, S. Sukumaran, J.B. Dadachanji, Baby Krishnan, K. Prabhakaran, Devan and E.M.S. Anam. For the Respondents : A.S. Nambiar and K.R. Nabiar JUDGMENT: THOMMEN, J. A common question arises in all these cases. Are lands set a .....

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nts, which are impugned in these appeals, held that such lands fell within 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 (Ce .....

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ere 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 excluded from the definition of private forests' which vested in the State. It is not disputed that large quantities of firewood are essential as fuel for the manufacture of tea or rubber and certain areas in the estates generally set apart for growing f .....

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growing firewood trees in the estates for the purpose of fuel did not qualify for exclusion from private forests' so as to prevent their vesting in the State in terms of the Act. This was the view that was followed in the impugned judgments. Significantly, however, a Bench consisting of five Judges of the Kerala High Court subsequently considered this very question in the State of Kerala v. Moosa Haji, (1984) KLT 494, apparently because the law laid down in the earlier decisions on the point .....

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firewood trees to supply fuel of the employees. However, discarding the interpretation put on the section in some of the earlier decisions of the High Court, the learned Judges of the larger Bench held that a reasonable area set apart of growing firewood trees for the purpose of fuel in the smoke- houses or factories could be excluded from private forest's. Such areas, they held, qualified as lands used for the preparation of the (crops) for the market'. Referring to the need for growin .....

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e 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 empl .....

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Board, AIR (1979) SC 1573, the Supreme Court has held that supply of fire-wood to estate employees cannot be said to be a purpose ancillary to the cultivation of plantation crops'. That decision was rendered in a case arising from the ceiling provisions are almost identical. We cannot therefore permit ourselves to be swayed by the reasoning of counsel, and we are bound to hold that the claim under this sub-head is impermissible." This observation indicates that the larger Bench of the .....

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rded as land used to facilitate preparation of the crops for the market. We have referred to the decision of the larger Bench of the High Court at some length to show that the final view which the High Court has taken subsequent to the impugned judgments supports the contentions of the appellants' counsel as regards fuel for the smoke-houses and factories. We shall now refer to the observation of this Court in Ammad [1979] 3 SCR 839. It is important to remember that the question regarding fu .....

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he validity or invalidity of transfers effected by persons owning or holding lands exceeding the ceiling limit could be determined with reference to the ceiling area in force on the date of the transfer or in accordance 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 quest .....

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0 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 for exemption a reasonable area meant to supply fuel to the employees living in .....

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e interests of the estates, namely, their efficient functioning as an industry engaged in the production of cash-crops and the welfare of the concerned employees, it is necessary that a liberal and purposive construction should be put on the section. A perusal of the definition of Private Forests contained in clause (f) of section 2 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 shows that lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, carda .....

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particularly in the light of the fact that the estates concerned were at a considerable height where it was cold and it would not be feasible for the employees to secure heating material to keep warm and for domestic purposes. The entire purpose of exclusion of the items set out in the foregoing paragraph from the scope of the definition of Private Forest seems to be not to hinder or create any difficulty in the functioning of plantations of tea, coffee, cocoa, rubber, cardamom and cinnamon as .....

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eir 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 i .....

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to the smoke-houses or factories in the estates. In the absence of satisfactory evidence to show that firewood is adequately and steadily available in the market at reasonable prices, such lands, in our view, qualify for exemption under section 2(f)(1)(i)(B) of the Act as "lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market". This principle, in our view, must hold good in relation to all crops mentioned under the afore .....

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from vesting under the Act is a question of fact which has to be determined with reference to various factors. Some of these factors are mentioned by the larger Bench of the High Court in the following words :- "32. 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 purpose will depend on the volume of rubber to be processed,the yield of the trees, the quali .....

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t aside and the cases are remanded to the appropriate forest tribunals : namely, the Forest Tribunal, Manjeri with respect to Civil Appeal Nos.106-107 of 1982; the Forest Tribunals, Palghat with respect to Civil Appeal No.2050 of 1981; and the Forest Tribunal, Calicut with respect to Civil Appeal Nos. 557-61 & 1214-18 of 1981. The tribunals shall determine the extent of the land required, as aforesaid, for fuel for the smoke- houses or factories as well as for the employees in the estates. T .....

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aration 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 .....

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- (f) 'private forest' means- (1) in relation to the Malabar district referred to in sub-section (2) of section 5 of the States Reorganisation 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 the appointed day excluding- (A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act,1963 (1 of 1964); (B) lands which are used principally for the cultivation of .....

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incipally cultivated with any other agricultural crop and (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of such buildings; (ii) any forest not owned by the Government, to which the- Madras Preservation of Private Forests Act,1949 did not apply, including waste lands which are enclaves within wooded areas. (2) in relation to the remaining areas in the State of Kerala,any forest not owned by the Government, including waste lands which are enclave .....

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r 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 .....

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ing 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 they remain vested in the Government. Section 8 provides for settlement of disputes which arise with regard to (a) whether any land is a private forest or not and (b) whether any private forest or portion thereof is vested in the Government or not. The said dispute is to be resolved by the Tribunal constituted under Section 7 of the Act .....

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n such private forests as may be necessary for purposes directed towards the promotion of agriculture or the welfare of agricultural population or for purposes ancillary thereto and secondly, for assigning on registry or lease, the remaining private forests or the lands comprised in private forests to (a) agriculturists, (b) agricultural labourers, (c) members of scheduled castes or scheduled tribes who are willing to take up agricultural as the means of their livelihood, (d) unemployed young pe .....

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d. Under Section 11, the assignment of the private forests has to be completed as far as may be within two years from the date of the publication of the Act. Section 13 bars jurisdiction of civil courts to decide or deal with any question or to determine any matter which is required to be decided or dealt with or to be determined by the tribunal, the custodian or any other officer. Section 15 provides for the constitution of an Agriculturists Welfare Fund to be utilised for the settlement and we .....

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f 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, fa .....

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needed by those who work to cultivate the crops? If yes, the land for growing which of the provisions is to be included in the meaning of the said word ? It is true that the Explanation deems land used for schools, hospitals and playground meant for the workers as land ancillary to cultivation of the crops. But precisely because the said purposes are remotely or mediately connected with the cultivation of the crops in question that they are specifically mentioned in the Explanation. It also furt .....

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eeded for use as fuel for the domestic use of the workmen. There is nothing on record to show that unless the fuel-wood is locally grown on the estate and made available to the workmen, they will have no supply of fuel-wood or of any other fuel, making it impossible for them to live in the estates of and work there. In the absence of such finding on record, it is not possible to concede the said claim on the ground that the land is used for a purpose "ancillary to the cultivation of the cro .....

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rees for fuel are grown captively on the estates, no fuel-wood would be available or no other substitute fuel can be used for the purpose. The land needed for the smoke-house 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 fue .....

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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 but for the locally grown fuel, the workers will go without fuel of any kind making it impossible for them to work on the estat .....

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e substitute fuel is costlier, it is no ground for claiming exemption of land from the Act for either of the two purposes. It would only lead to increase in the cost of production necessitated by appropriate increase in wages of the workers and by use of such fuel in the smoke-house. Such higher cost if any, may be taken care of by the market or by suitable crops. That cannot be a consideration for exemption of the land from the provisions of the Act. In Civil appeal Nos.106-107 of 1982, before .....

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uthorities granted the said claim although in the body of the judgement, it is observed that the claim except that for 5.50 acres of land was being accepted. As regards the second claim, the Tribunal found that no land had been specifically earmarked or allotted to the appellant as ancillary land; there was a play-ground, smoke-house and workers' quarters in the estate, though the accommodation required by the labourers was not sufficient for accommodating all the labourers. The Plantation O .....

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ther 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 .....

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land for planting trees to use the timber thereof in due course as firewood in addition to the land for construction of workers' quarters in future. The- High Court rejected the claim for both on the ground that the Act did not envisage exemption of land for the purpose of construction of quarters and for growing fuel trees in future. According to the High Court, the Act envisaged the exemption of the land which was being used for such purposes on the appointed day, viz., 10th May,1971. The .....

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collecting firewood for use in the smoke-house. There was no claim for growing fuel for supplying it to the workers. The stand of the Government was that the lands claimed were never brought under cultivation at any point of time and that since the lands were six miles away from the rubber estate, they did not form part of the estate. The Tribunal allowed the said claim. On appeal by the State Government, the High Court rejected the claim relying upon a decision of the Full Bench in state of Ke .....

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#39;s case was that firewood and other fuel were available elsewhere and secondly the claim for land was vague since no particular area was specified. The Tribunal allowed the claim of the petitioners. However, in appeal before the High Court by the State Government, the High Court relying upon a decision of this Court in Chettiam Veettil Ammad and another, etc. etc. 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 .....

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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 cl .....

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ternative source of supply of fuel-wood and that there was also substitute fuel available, the said contention of the State Government was not dealt with by the Forest Tribunal. The High Court did not think it necessary to consider the said contention because of its finding that the land required for such purpose could not be said to fall within the scope of Section 2(f)(1)(i)(B) of the Act. The High Court in support to its view that the land required for growing fuel-wood for supplying it to th .....

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ision to advance their contentions. The controversy in the said case related to the provisions of the Kerala Land Reforms Act, 1963. It was not a decision under the Act which falls for consideration before us. This Court by the said common decision had disposed of a large number- of civil appeals arising under that Act. The controversy related to three main points which were as follows: "1. Whether lands converted into plantations between April 1, 1964 and January 1, 1970 qualify for exempt .....

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hether 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 .....

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der 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 dismissed. C.A. No. 227 of 1978 ..................... 54. The controversy before us relates to exclusion of 'fuel area' and 'rested area'. The Company has claimed that it has planted red gum as fuel in 924.01 acres as it was required for the 'manufacture of tea'. The Taluk Board found it to be an exhorbitant claim and reduced it to 2 .....

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Here again 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. If that had been so, it might have been an area within the plantation. 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 will be apparen .....

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the operation of the Act. The Company's claim was that it had planted red gum as fuel in 924.01 acres as it was required for the manufacture of tea. The General Manager of the Company, however, had stated that firewood was being supplied to the employees free of cost. This Court held that on the General Manager's statement the earlier claim for exemption, viz., that the area was required for manufacture of tea, stood belied. But the Court also further held "moreover supply of fuel-w .....

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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 wi .....

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