# BHA VANI TEA AND PRODUCE CO. LTD v. STATE OF KERALA AND ORS

- **Citation:** [1991] 1 S.C.R. 550
- **Court:** Supreme Court of India
- **Decided:** 1991-02-20
- **Case number:** Civil Appeal Nos. 826 A & 827-28of1991
- **Bench:** K.N. Saikia, M. Fathima Beevi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bha-vani-tea-and-produce-co-ltd-v-state-of-kerala-and-ors-11050
- **Pages:** 29

## Headnote

Land Reforms: Kerala Private Forests (Vesting & Assignment)
Act, 1971 (Act 26 of 1971): Sections 2(f), 3, 8-Private forestsCompany engaged mainly in plantations of tea, coffee, cardamom,
rubber etc.-Certain areas/plots not under plantation-Plantation
abandoned-Whether this to be deemed 'reverted to nature'-Held noMadras Preservation of Private Forests Act-Kerala Reforms Act,
1963.
Sections. 2(/), 3, 8-Private forests-Areas on the periphery of the
Com,pany·s estate admittedly virgin-The same held vested in the
' State-Whether the provisions of the Vesting Act have been applied
correctly to the facts. as found by Courts b"elow keeping in mind its
objects and purposes.
Bhavani Tea and Produce Co., a Public Ltd. Company is engaged
maW.ly in plantations of Tea, Coffee, Cardamom, Rubber and some
other plantations in the western ghats comprising R.S. Nos. 2, 3, 3/1
and 5 /1 in Sholyar village Mannargbat Taluk of Palghat District,
Kerala known as Siruvani' Group of Estates of four divisions namely,
Siruvani, Varddymalai, Elamali and Halton with the total area in its
possession being 3,151.20 acres.
-
-
As the forest officials undertook survey over the Company's plan- ~
tations under the Kerala Private Forests (Vesting & Assignment) Act,
1911, which had come into force on 10~5.1971, to locate and determine
the forest area in the estate that would vest in the State, the Company
G
tnoved an application under section 8 of the Act before the Tribunai
asserting· that no portion of the land in the estate as shown in the
schedule to the application was liable to vest in the state. An advocate
commissioner was appointed by the Tribunal to prepare a plan and to
report regarding the areas claimed by the state as vested forests. The '--(_Advocate Commissioner in his f"mal report found an area of 1397 .60
H acres identified as plots nos. 1 to 69 claimed .by the State as vested forests.
550
-
-
BHAYANI TEA v. STATE
551
~
The Company thereupon amended its application showing these 69
plots as schedule 'B' to the application. Out of the total 3,151.20 acres
A
1, 753.60 acres are admitted not to have vested under the Act. Of the
remaining 1, 397.60 acres, 609.91 acres are admitted to be private
forest on the periphery of the Estate and hence vested under the Act.
This covers plots Nos. 11, 18, 25, 28, 30 and 63. Out of the remaining B
plots, the Tribunal allowed 33 plots totalling 206.06 acres and declared
total area of 1,184.68 acres as vested forests. Both parties preferred
~ appeals to the High Court which by its impugned judgment partly
allowed the appeal of the company as well as of the State. Both sides
have again preferred appeals by special leave to this court.
The result of the High Court's judgmeμt is that the dispute before C
this Court is now confined only to an area of 641.73 acres covered by
plots nos: 12,13, 14,15,16,26,27,29,33,36,37,38,39,40,41,44,46,
50, 51, 55, 56, 58, 59, 61, 62, 64 and 65. On behalf of the company it has
been argued that these disputed plots must be held to have been principally used for cultivation of tea, coffee, rubbers and cardamom etc. and D
for purposes ancillory thereto; that if these plots are not exempted, the
plantation will be broken down in unity' economy and continguity and
that the plantation must be taken as a whole and not piece by piece or
plot by plot .
..l--
The argument on behalf of the State was to emphasise the objects
and purposes of the vesting Act namely, to distribute agricultural land
to landlords, agriculturistsjlabourers so as to reduce the scarcity of
such land, and not to allow few individuals to remain in control. It was
also contended that vesting Act did not use the word 'plantation' and
therefore private forest has to be determined on the basis of land where
upon forest stands irrespective of its size.
E
F
• f-.....1
Keeping in view the detailed f'mdings of the Tribunal as well as
the High Court this Court comes to the conclusion that out of the plots
which are in dispute now as

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BHA VANI TEA AND PRODUCE CO. LTD.
v.
STATE OF KERALA AND ORS.
AND
VICE VERSA
FEBRUARY 20, 1991
[K.N. SAIKIA AND M. FATHIMA BEEVI, JJ.]
Land Reforms: Kerala Private Forests (Vesting & Assignment)
Act, 1971 (Act 26 of 1971): Sections 2(f), 3, 8-Private forestsCompany engaged mainly in plantations of tea, coffee, cardamom,
rubber etc.-Certain areas/plots not under plantation-Plantation
abandoned-Whether this to be deemed 'reverted to nature'-Held noMadras Preservation of Private Forests Act-Kerala Reforms Act,
1963.
Sections. 2(/), 3, 8-Private forests-Areas on the periphery of the
Com,pany·s estate admittedly virgin-The same held vested in the
' State-Whether the provisions of the Vesting Act have been applied
correctly to the facts. as found by Courts b"elow keeping in mind its
objects and purposes.
Bhavani Tea and Produce Co., a Public Ltd. Company is engaged
maW.ly in plantations of Tea, Coffee, Cardamom, Rubber and some
other plantations in the western ghats comprising R.S. Nos. 2, 3, 3/1
and 5 /1 in Sholyar village Mannargbat Taluk of Palghat District,
Kerala known as Siruvani' Group of Estates of four divisions namely,
Siruvani, Varddymalai, Elamali and Halton with the total area in its
possession being 3,151.20 acres.
-
-
As the forest officials undertook survey over the Company's plan- ~
tations under the Kerala Private Forests (Vesting & Assignment) Act,
1911, which had come into force on 10~5.1971, to locate and determine
the forest area in the estate that would vest in the State, the Company
G
tnoved an application under section 8 of the Act before the Tribunai
asserting· that no portion of the land in the estate as shown in the
schedule to the application was liable to vest in the state. An advocate
commissioner was appointed by the Tribunal to prepare a plan and to
report regarding the areas claimed by the state as vested forests. The '--(_Advocate Commissioner in his f"mal report found an area of 1397 .60
H acres identified as plots nos. 1 to 69 claimed .by the State as vested forests.
550
-
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BHAYANI TEA v. STATE
551
~
The Company thereupon amended its application showing these 69
plots as schedule 'B' to the application. Out of the total 3,151.20 acres
A
1, 753.60 acres are admitted not to have vested under the Act. Of the
remaining 1, 397.60 acres, 609.91 acres are admitted to be private
forest on the periphery of the Estate and hence vested under the Act.
This covers plots Nos. 11, 18, 25, 28, 30 and 63. Out of the remaining B
plots, the Tribunal allowed 33 plots totalling 206.06 acres and declared
total area of 1,184.68 acres as vested forests. Both parties preferred
~ appeals to the High Court which by its impugned judgment partly
allowed the appeal of the company as well as of the State. Both sides
have again preferred appeals by special leave to this court.
The result of the High Court's judgmeμt is that the dispute before C
this Court is now confined only to an area of 641.73 acres covered by
plots nos: 12,13, 14,15,16,26,27,29,33,36,37,38,39,40,41,44,46,
50, 51, 55, 56, 58, 59, 61, 62, 64 and 65. On behalf of the company it has
been argued that these disputed plots must be held to have been principally used for cultivation of tea, coffee, rubbers and cardamom etc. and D
for purposes ancillory thereto; that if these plots are not exempted, the
plantation will be broken down in unity' economy and continguity and
that the plantation must be taken as a whole and not piece by piece or
plot by plot .
..l--
The argument on behalf of the State was to emphasise the objects
and purposes of the vesting Act namely, to distribute agricultural land
to landlords, agriculturistsjlabourers so as to reduce the scarcity of
such land, and not to allow few individuals to remain in control. It was
also contended that vesting Act did not use the word 'plantation' and
therefore private forest has to be determined on the basis of land where
upon forest stands irrespective of its size.
E
F
• f-.....1
Keeping in view the detailed f'mdings of the Tribunal as well as
the High Court this Court comes to the conclusion that out of the plots
which are in dispute now as pointed out above, plot nos. 33, 39, 40, 44,
46, 50, 51, 55, 58, 59 and 61 also have to be treated as not to have vested
in the state under the vesting Act. As regards the existing roads falling G
within the vested areas these shall have such margins on either side of
the road as required under the PWD rules of the state and shall be
-
P
maintained and controlled by the company. But no construction of new
CS
roads by the company in or through the vested areas shall be permissible. Thus in partly allowing the rival ·appeals by modifying the judgment of the High Court to the extent indicated above, this Court,
H
552
SUPREME COURT REPORTS
[1991] 1 S.C.R.
A
HELD: If the land was not private forest but plantation under t~
Madras preservation of Private Forest Act and was similarly not private forest but plantation on 10.5.1971, it could not, without anything
more, become private forest thereafter even though it was not under the
same efficient or successful plantation as· it was earlier. Whether the
plantation yielded any crop or not was not for the owners to decide and
8
not by the authority under the Vesting Act, unless it did make specific
provisions to cover such a situation. We have not been shown any such
provision or any provision as to such land reverting to nature. Na~
according to Collins English Dictionary, means all natural phenomena
and plant and animal life as distinct from man and his creations; a Wild
c
primitive State untouched by man or Civilization. According to Shorter ~,
Oxford English Dictionary, natural vegitation means self-sown or -r-:.
planted; land not cultivated; uncultivated or undomesticated plants or
-
animals. There is no fmding as to prevalence of such a condition in these
plots. [570F-571A]
While, we are not inclined to agree that the entire estate of
D
the Company was required to be taken as one whole, we fmd it
difficult to agree that wherever some forest was found under the
Company's estate the Vesting Act would apply. We fmd that M.P.P.F.
Act, the Kerala Forest Act, the Kerala Reforms Act considered the
plantations as Units by providing that they would include the land used
for ancillary purposes as well. Therefore while applying the Ve!>1in~
E
Act to such plantations the same principle would be applicable. It is on
record that the estate of the Company is divided into four divisions. In
conformity with the idea of plantations, it would be reasonable to take
each division as a Unit, subject, of course, to natural and geographical
factors. [573A-CJ
F.
G
Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu, [1972] .
2 SCC 133; The Kannan Devan Hills Produce v. The State of Ker~
and Anr., [1972] 2 SCC 218; State of Kera/a & Anr. v. The Gwalior
Rayon Silk Mfg. (Wvg.) Co. Ltd. etc., [1974] 1 SCR 671; V. Venugopala Verma Rajaa v. Controller of Estate Duty, Kerala, [1969] KL T
230; State of Kerala v. Anglo American Direct Tea Trading Co. Ltd.,
[1980] KLT 215; Malankara Rubber & Produce Co. & Ors. etc. v.State
of Kerala & Ors., (1973] 1 SCR 399; State ofKerala & Anr. v. Nilgiri
Tea Estates Ltd., [1988] (Supp) SCC 79; State of Kerala & Anr. v. K .... ,,...llllJT••EI
Moosa Haji & Ors., AIR 1984 Kerala 149 and Gwalior Rayons Silk..._•, __
Mfg. (Wvg.) Co. Ltd. v. The Custodian of Vested Forests, Palghat &
H
Anr., AIR 1990 SC 1747, referred to.
BHAYANI TEA v. STATE [SAIKIA, J.]
553
~
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 826
A
& 827-28of1991.
From the Judgment and Order dated 10.9.1986 of the Kerala
High Court in M.F.A. Nos. 48 & 291of1981.
K. Sudhakaran, Attorney General, T.S. Krishnamurthy Iyer, B
fA.S. Nambiar, T.R.G. Wariyar, P.S. Poti, P.K. Manohar, Shanta
Vasudevan, K.R. Nambiar, P.K. Pillai and V. Jai Kumar for the
appearing parties.
~
The Judgment of the Court was delivered by
..
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K.N. SAi.KIA, J. Special leave granted.
·...,:
Civil Appeal arising out of Special Leave Petition (Civil)
No. 7314 of 1987 and Civil Appeals arising out of Special Leave petitions (Civil) Nos. 6837-38 of 1987 are from common Judgment of the
High Court of Kerala dated 10.9.1986 passed in MFA Nos. 48 and 291
D
of 1981. The appellant Bhavani Tea and Produce Co. Ltd., hereinafter
referrd to as 'the company', is a public limited company engaged
mainly in plantations of Tea, Coffee, Cardamom, Rubber and other
;..,
plantation crops over an extensive area in the Western Ghats close to
the border of the States of Kerala and Tamil Nadu. On the basis of
their title deeds, the company claimed to have purchased an extent of E
3273.72 acres of land, but it and. only 3,151.20 acres in occupation.
-
Bulk of the plantations were purchased by the company in 1946 from
M/s. B.B. Rubber Estates Ltd., hereinafter called 'the vendors', and
the remaining estates acquired in 1955 and 1956. The vendors were in
possession of 3151.20 acres of land situated in surveyed lands in R.S.
~--
Nos. 2, 3, 3/1and5/1 in Sholayar village, mannarghat Taluk of patghat ,F
district which belonged in 'Jenmom' to mannarghat mooppil Sthairnm
and the vendors established the plantations taking the same on Verumpattam lease in the year 1935. The plantations are now known as
Siruvani Group of Estates of four divisions namely, Siruvani, Yarddymalai, Elamali and Halton.
G
'·
The Kerala Private Forests (Vesting & Assignment) Act, 1971
.{
~ (Act 26 of 1971), hereinafter referred to as 'the Vesting Act', an Act
to provide for the vesting in the Govt. private forests ip. the State of
Kerala and for the assig_pment thereof to agriculturists and agricultural
labourers for cultivation, extending to the whole of Kerala State, received the assent of the President on 23.8.1971, and as provided in its
H
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A
B
554
SUPREME COURT REPORTS
[1991] 1 S.C.R.
Section 1(3) it was deemed to have come into force on the 10th day of~
May, 1971 which was also declared to be the appointed day. The
preamble to the Vesting Act indicates that the 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 in the State and to promote the welfare of the
agricultural population of the State. The statement of objects and
reasons also said that the private forests as defined in the Kerala Land ..
Reforms Act,• 1963 ( l of 1964) were exempt from the ceiling thereun- ___..4,_
der and that with high density of population there was scarcity of
land and it was against the Directive Principles of State policy to allow
c
a few persons to be in ownership and control of these agricultural ~
lands. In other words, the object of the Vesting Act was to distribute
D
the private forest lands among the agriculturists and agricultural
labourers for agriculture.
The forest officials having commenced survey over the ~m
pany 's plantations' land from 28.6. 1977, it approached the Tribunal
under Section 8 of the Vesting Act for a declaration that no portion of
the land in R.S. Nos. 2, 3, 3/1and5/1 in Sholayar Village, Nannarghat
Taluk, Palghat District shown in the schedule to the application was
liable to vest in the State under the Vesting Act.
The company maintained that at the time of the Vesting Act ,,..l.
E
coming into force out of the company's lands about 10 acres were
covered by roads, 50 acres by bulidings, 490.14 acres by tea plants,
700.00 acres by coffee plants, 798.56 acres by cardamom and 250 acres
by rubber plantation. Besides an area of 60 acres was maintained as
windbelts and an area of l89.50 was reserved for the purpose of firewood meant for the preparation of rubber for the market. The comF
pany claimed that the entire area was thus principally cultivated with
tea, coffee, cardamom and rubber and for the purposes ancillary ~
thereto and that total 2,338. 70 acres were utilised for plantations by
the end of 1969. The entire area having stated to have been principally
cultivated, the company claimed that -no portion thereof was covered
by the exproprietory povisions of the Vesting Act. The respondentG State of Kerala stated-before the Tribunal that the plantation area -in
the-schedule property had already been exempted, and that only such
.
areas as fell within the definition of private forests in the Vesting Act, .... -{-
mainly areas full of forest trees aged 20 to 100 years were being
surveyed and demarcated as' vested forests. The state also disputed the
area under plantations and the areas claimed to have been reserved for
H
fuel and fire-wood- etc. It was also stated that in favour of the fourth
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'-../'
,A
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,(=--....
-'y"
BHAYANI TEA v. STATE [SAIKIA, J.]
555
respondent which was a cooperative farming society 190.54 hectares of
the area taken over as vested forests was already assigned and the
society got possession of that area from out of uncultivated forest
tracts for itself.
An Advocate Commissioner was appointed by the T~ibunal to
prepare a plan and report regarding the properties claimed as vested
forests out of the schedule land and he submitted Exhibit C-1 plan, C-2
and C-3 interim reports and C-4 final report. On the basis of Exhibit
C-4 report the company amended its application. The earlier Schedule
was retained as 'A' Schedule.
An area of 1397.60 acres (566.11 hectares) identified as plot
Nos. l to 69 were located by the Commissioner as areas claime·d by the
respondents as vested forests and those 69 plots were included in the
'B' Schedule to the application after the amendment. The controversy
thenceforth related only to some of the plots in 'B' Schedule.
The company examined PW~. 1 to 3 and produced documents Al
to A24 in support of its claim, while the respondents examined RW-1
and marked Exhibit B-1 only.
On the basis of the evidence available before it and mainly depending
upon the observations of the Commissioner, the Tribunal held that
plot Nos. 2, 9, 12, 13, 15, 16, 24, 25, 29, 35, 48, 49 and 56 had been
brought under cultivation prior to 14.12.1949, and therefore, did not
fall within the purview of the Madras Preservation of Private Forests
Act (hereinafter referred to as M.P.P.F. Act), and were therefore held
to be outside the purview of the Vesting Act. plot Nos. 4, 5, 7, 10, 19,.
20, 21, 27, 32, 34, 42, 43, 45, 47, 52, 53, 54, 57, 60, 66 and 67 were held
to be used principally for the cultivation of tea, coffee, and cardamom
and therefore were to be excluded from the purview of the Vesting Act
in view of the provisions contained in Section 2(f) thereof. The remaining plots 1, 3, 6, 8, 11, 14, 17, 18, 22, 23, 25, 28, 30, 31, 33, 36, 37,
38,39,40,41,44;46,50,51,51A,55,58,59,61,62,63,64,65,68,and
69 were found to be not excludable under Section 2(f) or to be exempted under Section 3 of the Vesting Act. The Tribunal thus aliowed the
company to retain 206.06 acres out of B Schedule lands as excluded/
exempted from the provisions of the vesting Act and declared total
1, 184.68 acres as vested forests under the Vesting Act.
From the Tribunal's order both the company and the State appealed to the High Court which by the impugned common Judgment
A
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556
SUPREME COURT REPORTS
[1991] 1 S.C.R.
A dated 10.9.86 partly allowed the company's MFA No. 48of1981 to the
extent of modifying the order of the Tribunal and declaring that plot
Nos. 1, 3, 6, 8, 17, 22, 23, 31, 51A, 68, and 69 were to be excluded
from vesting; and also partly allowed the State's MFA Nos. 291of1981
to the extent of declaring that plots Nos. 12, 13, 15, 16; 26, 27, &, 56
B
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G
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were to vest in the state. The result was that the company would be
entitled to retain plot Nos. 1to10, 17, 19, to 24, 31, 32, 34, 35, 42, 43,
45, 47, 48, 49, 51A, 52 to 54, 57, 60 and 66 to 69 totalling 144.13 acres
in B Schedule properties and the remaining plot Nos. 11 to 16, 18, 25,
to 29, 30, 33, 36 to 41, 44, 46, 50, 51, 55, 56, 58, 59 and 61to65 would
vest in the State. The High Court also observed that out of the
excluded areas less than 70 acres alone were planted areas, meaning
thereby_ lands which were principally used for the cultivation of tea,
coffee and cardamom under Section 2(f) (B) of the Act and that the
remaining area could be used for ancillary purposes. The reservation
for roads, water sources etc. which were in use at that time were also
allowed. The High Court also directed:
"One existing road each to connect each of the different
blocks of plantations along the shortest route lying along
the vested areas will be allowed to be used and maintained
by the applicant at its cost, but in roads passing through the
vested forests will be under the control of the respondents.
The existing roads providing access from the Estate to the
public road will also be maintained by the applicant at its
cost subject to the above reservation. The present case of
water sources, streams and channels located within the vested forests for supply of drinking water or as source for
irrigation and for supply for purposes of the factories etc.
will be preserved. The respondents will not interfere with
any such user of these facilities."
Thus out of the total 3,151.20 acres 1,753.60 acres are admitted
not to have been vested under the Act. Out of the remaining 1,397 .60
acres 609. 91 acres are admitted to be private forest and hence vested
under the Act. This covers plot Nos. 11, 18, 25, 28, 30 and 63. Out of
the remaining plots, namely, 1-10, 12-17, 19-24, 26, 27, 29-62 and
64-69, the Tribunal allowed 33 plots totalling 206.06 acres. The High
Court by the impugned order allowed 36 plots totalling 144.13 acres.
The result is that excluding the plots included in the peripheral area of
virgin forests of 609.91 acres, the dispute is now confined only to
following plots totalling 641. 73 acres.
·--r
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BHAVANI. TEA v. STATE [SAIKIA, J.]
557
-1''
Plot 12
27.50 acres
A
Plot 13
25.08 acres
Plot 14
3.67 acres
Plot 15
1.65 acres
Plot 16
3.82 acres
B
>-
Plat 26
10.70 acres
Plot 27
10.58 acres
.-~
Plot 29
8.10 acres
Plot 33
16.20 acres
c
Plot36
14.87 acres
~
Plot 37
9.63 acres
Plot 38
5.26 acres
Plot 39
6.37acres
D
Plot40
32.42 acres
Plot 41
26.32 acres
•
Plot 44
84.06 acres
Plot 46
5.31 acres
E
Plot 50
30.96 acres
Plot 51
44.11 acres
Plot 55
13.12 acres
Plot 56
24.84 acres
F
Plot 58
75.19 acres
Plot 59
73.03 acres
Plot 61
7.56 acres
Plot 62
23.45 acres
G
Plot 64
9.21 acres
Plot 65
48.72 acres
Total: 641. 73 acres
H
558
SUPREME COURT REPORTS
[1991] 1 S.C.R.
Both the company and the State of Kerala have filed Special
Y
A
Leave Petitions from the common order of the High Court and are
B
given special leave.
Both the company and the State having claimed these plots
under the provisions of the Vesting Act and the Custodian and the
Tribunal on the basis of the Commissioner's report and evidence
adduced before it as also the High Court having already found the facts
, as regards these plots we are of the view that the scope of this Court in
this Appeal under Article 136 of the Constitution of India is rather
limited. Both Mr. Krishnamurthy Ayer for the company and Mr. P.S.
Poti for the State have argued this case with dexterity presentin~ the
meticulous details and explaining the relevant statutory provisions.
Mr. Krishnamurthy emphasised that these disputed plots must be held
to have been principally used for cultivation of tea, coffee, rubber,
cardamom and cinnamon which are the crops envisaged under the
Vesting Act and for purposes ancillary thereto. Counsel submits that if
these plots were not exempted from vesting the company's plantations
will be broken down in unity,· contiguity and economy, and that for
deciding the area principally cultivated, the plantations owned by the
company m~st be taken as a whole and not piece by piece or plot by
plot as has been done in this case. Mr. Poti emphasises the objects and
purposes of the Vesting Act, namely, to distribute agricultural land to
the landless agriculturists and agricultural labourers so as to reduce the
scarcity of agricultural land, and not to allow few individuals to remain
in control thereof. Counsel submits that the Vesting Act even did not
use the word 'plantation' and therefore private forest has to be
determined on the basis of land whereupon the private forest stands
irrespective of its size and there could arise no q_uestion of the plantations of the company being treated as a whole, and that., at any rate it
was the Custodian and the Commissioner who demarcated the plots
and the company has also been arguing on plot by plot basis. In deciding
these appeals, therefore, this Court has to take the facls as found by the
courts and authorities below and examine whether the provisions of
the Vesting Act have been applied correctly to those facts keeping in
mind its objects and purposes; and so we proceed.
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Some acquaintance with the relevant laws of the place may be
instructive at this stage. The company's plantations are within erstwhile Malabar district. Baden Powell in Land Systems of British India,
Vol. 1 page 95 described Malabar as "curious district on the west coast
of _India" and as "source of puzzled remarks from reporters on land
H
affairs". Some of the unique facts about the district accorcling to the
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BHAYANI TEA v. STATE [SAIKIA, J.]
559
~· author were that there _"private property'. in land had existed, while it
A
could not be found anywhere else and it presented a unique history of
land holding customs and the development. When the Mysore Sultan
conquered the country the local military chiefs retained their rule over
some territorfal estates and the families of the chiefs clung to the land
or part of it as landlords, calling themselves 'Janmis' and claiming to
be, in fact absolute landlord. The lower landholders acknowledged the
B
.J.--, 'Janmis' as their superior. The reports compiled showed that "almost
the whole of land in Malabar, cultivated and uncultivated, was private
property and held by "Jemnum" (Janmam), right which conveys full
absolute property in the soil ....... " Thus the janmis became the
~)(,.-
proprietors. We find mention of this 'Jenmom' right in the sale deeds
--
of the company.
c
The meaning of the words '.Tanmam' and Janmi' and their rights
~-
envisaged in Gudalur Janmam Estates (Abolition and Conversion into
Ryotwari) Act, 1969 (24 of 1969) were considered in Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu, [1972] 2 SCC 133. The
exclusive right to, and herditary possession of the soil in Malabar is
D
denoted by word Janmam which means birth right and the holder
therof is known as Janmi, Janmakaran or Mutalalan. In other words
"Janmam" is- a hereditary proprietorship in the freehold property in
>--
Kerala. Janmam interest has been described as proprietary interest of
the landlords in lands and such a right is described as 'estate' in the
Constitution. This was followed in The Kannan Devan Hills Produce v.
E
The State of Kera/a and Anr., [ 1972] 2 SCC 218.
-
The Statement of Objects and Reasons of the Vesting Act and
the definition of private forests under the Act were examined in State
of Kera/a & Anr. v. The Gwalior Rayon Silk Mfg. (Wvg.j Co. Ltd. etc.
~--
1974 (1) SCR 671. It was observed by Palekar, J. that the Vesting Act
F
purported to acquire forests land without payment of compensation
for implementing a scheme of agrarian reform by assigning lands on
registry or by way of lease to the poorer section of the agricultural
pouplation. This was done after reserving certain portions of the
forests as might be necessary for purposes ''directed towards the promotion of agriculture for the welfare of the agricultural population or
G
for purposes ancillary thereto." It was observed that extensive areas of
-r· private forests were available in the Malabar district which could be
acquir.ed and distributed and that the private forest lands of Malabar
district were contiguous and formed one long belt of a mountainous
terrain now forming part of the State of Kerala. It was also observed
that plantations of tea, coffee, rubber, cardamom, cinnmon and the
H
A
B
c
560
SUPREME COURT REPORTS
(1991) 1 S.C.R.
like were grown on extensive scale in these forests and industries had
taken leases of vast areas of these forests for those .pruposes. This
Court observed:
"In recent years industrialists have taken liases of vast
areas of these forests from their owners and a fraction of
the same. has been brought under cultivation by planting
eucalyptus and other types of trees useful for paper and
other industries. Large areas in these forests seem to be
even now in their pristine form but are capable of being
utilized by absorbing a large proportion of the population
by setting them on the land. These forests, therefore, have
attained a peculiar character owing to their geography and
climate and the evidence available to us shows that vast
areas of these forests are still capable of supporting a large
agricultural population."
This Court quoted from paragraph 6 of the Judgment in V. VenuD
gopala Varma Rajaa v. Controller of Estate Duty, Kera/a, [1969) KLT
230: "It is well-known that the extensive areas of different varieties of
plantations that we have got in this State were once forest lands; and it
is also equally well-known that year after year large areas of forest
lands in this State are being cleared and converted into valuable plantations. In the absence of exceptional circumstances such as the land
E
being entirely rocky or barren for other reasons all forest lands in this
State are agricultural lands in the sense that they can be prudently and
profitably exploited for agricultural purposes." The scheme of the
Vesting Act was also examined while upholding its validity.
F
G
H
The Madras Preservation of Private Forests Act 1949 (Madras
Act XXVII of 1949) which received the assent of the Governor
General on the 10th December, 1949, hereinafter referred to as 'the
M.P.P.F. Act', was an Act to prevent the indiscriminate destruction of
private forests and interference with customary and prescriptive rights
therein. Under sub-section (2) of Section 1 thereof, that Act applied
(i) to private forests, in the districts of Malabar and South Kanara
having a contiguous area exceeding 100 acres. By an Explanation
added thereto by Section 2(a) of the Madras Preservation of Private
Forests (Second Amendment) Act, 1954, (Madras Act XVIII of 1954),
it was explained that nothing in this clause shall be deemed to apply to
any land which was brought under fugitive or other cultivation prior to
the 14th December, 1949 by an owner or any person claiming under
him. Thus the company's plantations, if cultivated before that date
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BHAYANI TEA v. STATE [SAIKIA, J.]
561
would be excluded The word 'forest' is defined in Section 2 clause (a)
of the M.P.P.F. Act: "forest includes waste or communal land containing trees and shrubs, pasture land and any other class of land
declared by the State Government to be a forest by notification in the
Fort St. George Gazette." "Communal' land meant any land of the
description mentioned in sub-clause (a) or sub-clause (b) of clause (16)
of section 3 of the Madras Estates Land Act, 1908. There is nothing in
evidence in the case to show that the company's plant[tions area was a
forest under the M.P.P.F. Act.
The Kerala Forest Act, 1961(Act4 of 1962) was an Act to unify
and amend the law relating to the protection and management of
forests in the State of Kerala and it extended to the whole of the State
of Kerala. This Act repealed the Travancore-Cochin Forest Act, 1951
(Act III of 1952) and the madras Forest Act, 1882 (XXI of 1882) and
the Madras Wild Elephants Preservation Act, 1872 (Act I of 1873) as
in force in the Malabar district referred to in sub-section (2) of section
5 of the State Reorganisation Act, 1956. The M.P.P.F. Act in so far as
it applied to Malabar district was not repealed. The Kerala forest Act
did not itself define 'private forest'.
The Kerala Land Reforms Act, 1963 (Act I of 1964) was a comprehensive legislation relating to land reforms in the State of Kerala
and it extended to the whole of the State. Sub-section (7) of section 2
defined the word 'cultivate'. Clause (l5) of section 2 defined 'garden'
to mean land used principally for growing cocoanut trees, arecanut
trees or pepper vines, or any two or more of the same. As defined in
clause (38) 'nilam' means land adapted for the cultivation of paddy.
Under clause (34) 'malabar' means the Malabar District referred to in
sub-section (2) of section 5 of the States Reorganisation Act, 1956.
Under clause (44) plantation means any land used by a person principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or
cinnamon(hereinafter in this clause referred to as: 'plantation crops')
and includes (a) land used by the said person for any purpose ancillary
to the cultivation of plantation or for the preparation of the same for
the market. ........ (c) agricultural lands interspersed within the
boundaries of the area cultivated by the said person with plantation
crops not exceeding such extent as may be determined by the Land
Board (or the Taluk Land Board) as necessary for the protection and
efficient management of such cultivation. Under the Explanation,
lauds used for the construction of the office buildings, godowns,
factories, quarters for workmen, hospitals, schools and play grounds
shall be deemed to be lands used for the purposes of sub-clause (a).
A
B
c
D
E
F
G
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562
SUPREME COURT REPORTS
[1991] 1 S.C.R.
A
Thus· under this Act 'plantation' has been defined to include· areas
principally cultivated with plantation crops and the land used for ancillary purposes.
B
c
As defined in clause (47) of the Land Reforms Act,. 'private
Forest'· means a forest which is not owned by the Government, but
does not include - (i) areas which are waste and are not enclaves within
the wooded areas; (ii) areas which are gardens or nilams; (iii) areas
which are planted with tea, coffee, cocoa, rubber, cardamom or cinnamon; and (iv) other areas which are cultivated with pepper, arecanut,
cocoanut, cashew or other fruit-bearing trees or are cultivated with
any otner agricultural crop. Chapter III of the Act dealt with restriction on ownership and possession of land in excess of ceiling area and
disposal of excess lands. Section 81 dealt with exemptions and said that
'the provisions of this Chapter shall not apply to, amongst others, (d)
private forests; ( e) plantations. Section 82 prescribed the ceiling area
and sub-section ( 6) thereof provided that in computing the ceiling
area, lands exempted under section 81 shall be excluded. Thus the
D
private forests and plantations were excluded from ceiling area under
the Land Reforms Act.
The provisions of the Vesting Act which was enacted in 1971
have, therefore, to be interpreted keeping in mind the relevant provisions of the above Acts in so far as plantations and private forests are
E
concerned.
'Private forest' as defined in Section 2 (f) of the ·Vesting Act
means:
"[l] in relation to the Malabar district referred to in sub.
'
.~
F
section (2) of section 5 of the States Reor.:ganisation Act,
.
1
1956 (Central Act 37 of 1956)
,.....-;;--
G
H
(i) any land to whcih the. Madras Preservation of
Private Forests Act, 1949 (Madras Act XXVII of 19.19,
applied immediately before the appointed day excluding-
(A) lands which are gardens or nilams as defined in
the Kerala Land Reforms Act, 1963 (1of1964):
y
(B) lands which are used principally for the cultivator
of tea, coffee, cocooa, rubber, cardamom or cinnamon and
•
lands . used for any purpose ancillary to the cultivation of
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BHAYANI TEA v. STATE [SAIKIA, J.)
563
such Crops or for the preparation of the same for the
market.
Explanation: Lands used for the construction of office
building, 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; ·
(C) lands which are principally cultivated with cashew
or other fruit bearing trees or are principally cultivated
with any other agricultural crop and
A
B
(D) sites of buildings and lands appurtenant to. and C
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 D
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 enclaves within wooded areas.
Explanation: For the purposes of this clause, a land shall be
deemed to be a waste land notwithstanding the existence
thereon of scattered trees or shrubs;"
E
Section 3 of the Vesting Act whereunder private forests were to
vest in the Government said:
F
"3. Private forests to vest in Government. -(1) Notwithstanding any thing contained in any other law for the time
being in force, or in any contract or other document, but
subject to the provisions of sub-sections (2) and (3), with G
effect on and from the appointed day, the ownership and
possession of all private forests in the State of Kerala shall
by virtue of this Act, stand transferred to and vested in the
Government free from all encumbrances, and the right,
title and' interest of the owner or any other person in any
private forest shall stand extinguished.
H ..
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B
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D
E
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564
SUPREME COURT REPORTS
[ 1991] 1 S.~.R.
(2) Nothing contained in sub-sectiOn (1) shall apply in
~
respect of so much extent of land comprised in private
forests held by an owner under his personal cultivation as is
within the ceiling limit applicable to him under the Kerala
Land Reforms Act, 1963 [1 of 1964] or any building or
structure standing thereon or appurtenant thereto.
Explanation. For the purposes of this sub-section, 'cultiva-
'
tion' includes cultivation of trees or plants of any species.
A-
.(3) Nothing contained in sub-section 1 shall apply in
respect of so much extent of private forests h~ld by an owner
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 to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable,
does not exceed the exten~ of the ceiling area applicable to
him under section 82 of the said Act.
(4) Notwithstanding anything contained.in the Kerala Land
Reforms Act, 1963, private forests shall, for the purposes
of sub-section (2) or sub-section (3), be deemed to be lands
to which chapter Illof the said Act is applicable and for the
purposes of calculating the ceiling limit applicable to an
owner, private forests shall be deemed to be 'other dry
lands' specified in Schedule II to the said Act."
Section 4 of the Vesting Act" provided that private forests after
being vesting in the Stat~ were to be deemed to be reserved forests,
and Section 5 provided for eviction of persons in unauthorised occupation of any such private forest. Section 6 provided for demarcation of
boundaries of the private forests vested in the Government by the
Custodian.
·
W_e ~ay now take the areas in dispute as stated above with their
location and plantation. In the sketch map Annexure D, the green
coloured area is the planted area and it was not claimed by the State.
The blue coloured plots were also excluded from vesting and were
allowed to: the company by the High Court; and the remaining plots
are disputefl ones and are coloured pink and violet. Mr. Poti points out
that the original sketch map was not shaded and that the water tank
and the darn were not shown therein. There is, however, no dispute as
to the colouring indications which are helpful for identification.
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....
BHAYANI TEA v. STATE [SAIKIA, J.]
565
~·
The areas on the periphery, according to the Commissioner, are
A
forest areas namely plot Nos.11 (76.70 acres), 18 (28.36 acres), 25.
(11.88 acres), 28 (90.79 acres), 30 (77.93 acres) and 63 (324.25 acres).
The total of this peripheral areas come to 609.91 acres. Admittedly,
these areas are virgin forests which as per the Vesting Act vested in the
State. We have no hesitation in confirming this finding.
B
~
According to Mr. Poti, to the entire North of the company's
estates, there are vested forests, namely, LGB Estates, Kakkanampara Estates and Malikkal Estates which are vested forest areas. In the
Eastern isolated estates, namely, upper Varadimullai Estates there is
;~
coffee plantation on plot Nos_. 66, 67, 68, and 69 which have been
....
rightly given to the company .
c
Regarding plots 12, 13, 15, 16, 26, 27, 29, and 56, Mr. Krish-
-'"'"'{
namurthy submits that the Tribunal on the basis of the Commissioner's
report, Ext. C-4, found these plots to have been cultivated prior to
1949. There were reminiscences of the old plantations in these plots, of
course they became decayed. The Tribunal held that since these plots
D
were brought under cultivation prior to 1949 and the provisions of the
M.P.P.F. Act excluded these areas from definition of private forests,
they could not be held to be forests as on 10.5.1971 under the Vesting
>-
Act. The High Court, it is submitted, has not been shown to have
reversed the findings of the Tribunal. Mr. Poti submits that these plots
are contiguous to forest areas and have rightly been given by the High
E
Court to the State, though the Tribunal gave those to the company.
-
From the map it appears that on the other sides they are also contiguous to planted areas, excepting plot No. 56 which though connected
with vested forsts by a narrow strip, is almost surrounded by areas
excluded from vesting by the High Co.urt. The company claimed these
~
\
areas as principally cultivated areas and not included in the peripheral
F
)~~
area. The High Court has held that plots 12, 13, 15, and 16 are not
principally planted as cultivation has been abandoned and the area
"reverted to nature". The conclusion that the area reverted to nature
is presumably based on the observation of the Commissioner that the
plantations were abandoned about 40 years ago as evidenced by the
presence of scattered old plants, of shade trees and fruit bearing trees G
'
here and there such as silver oak trees, orange trees, guava trees,
r
dadap trees and albezia which could not be of natural growth. The
Commissioner also observed that the condition of the estate was really
miserable due to lack of proper maintenance and the plants were
decayed or destroyed. The explantation that due to continuous labour
trouble in the previous 4 or 5 years, the estate could not be maintained H
566
SUPREME COURT REPORTS
[1991) 1 S.C.R.
A properly was not accepted. For this reason the Commissioner expressed that the forest department had treated these areas as abandoned
plantations and so vested forest and not as areas principally cultivated
for the purpose of the Act and as according to the High Court "the
area had reverted to nature decades ago and such reversion was naturB
ally as forest." The High Court did not record any finding that these
areas were forests either in 1949 or on 10.5.1971. Its legal implication
was not considered by the High Court. The Commissioner on the other
hand found about plot Nos. 12 and 13 that these were old plantaition
areas and the plants were aged 40 to 50 years and that almost all the
plants were senile due to old age and that there were 100 to 200 coffee
plants per acre and there were old silver oak trees and dadap trees
C
which were planted as shade trees. The Commissioner also found that
from pl~t No. 13 old coffee plants were cut and removed by the
cooperative society people who cleared the under-growth of the area
whereafter new saplings were sprouted out of the old coffee plants cut
by the society people and there were good growth of young plants which
0
would start to yield. Similarly plot No.