# STATE OF KERALA & ANR v. M/S POPULAR ESTATES (NOW DISSOLVED) & ANR

- **Citation:** [2021] 11 S.C.R. 541
- **Court:** Supreme Court of India
- **Decided:** 2021-10-29
- **Case number:** Civil Appeal No. 903 of 2011
- **Bench:** Indira Banerjee, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-kerala-anr-v-m-s-popular-estates-now-dissolved-anr-34764
- **Pages:** 32

## Headnote

Kerala Private Forests (Vesting and Assignment) Act, 1971:
ss. 2(a), 2(f), 3, 6 and 8 - Kerala Land Reforms Act, 1963 - ss.
2(47) and 81 - Private forests - Meaning of - Nature of land -
Determination of, by Taluk land Board - Evidentiary value of -
Held: Where the Land Board arrives at a determination about the
character of lands, under the Act of 1963, that becomes a piece of
evidence for the purposes of the Vesting Act - Unless a contrary
state of affairs shown to exist, the Board's order to be given due
weight - On facts, rounds of litigation between the State and the
respondent - Respondent claiming that they were owner of 1534.40
acres of land which was acquired by sale, and forest authorities
attempted to take possession of large areas of land occupied by the
respondent on the ground that they were private forests and were
vested in the State - Draft statement by the Taluk Land Board,
wherein respondent shown to hold 1576 acres of land, of which
1537 acres fell under the exempted category, and that respondent
was eligible to retain the balance extent within the ceiling area;
and that there was no surplus land to be surrendered to the State -
High Court correctly invoked the Board's order and held that an
area of slightly over 100 hectares and 155.90 acres was forest land
that vested in the State, and the rest of the 1534.40 acres land had
to be treated as plantation, and thus, belonged to the respondent -
High Court placed reliance on preliminary and final report by the
Commissioner, draft statement of the land, respondent's auditor's
balance sheet, agricultural income tax, sales tax return, and
employees provident fund - All these materials, support the
conclusions of the High Court, based on plausible (and not an
unreasonable) inference of the overall analysis of the evidence on
the record - Thus, the order of the High Court does not call for
interference - Madras Preservation of Private Forests Act, 1949.
[2021] 11 S.C.R. 541
A
B
C
D
E
F
G
H
542
SUPREME COURT REPORTS
[2021] 11 S.C.R.
Constitution of India: Art. 136 - Discretionary Jurisdiction -
Exercise of - Held: Where two plausible views on the conclusions
that can be drawn from facts on the record exist - View taken by the
High Court being a plausible one, interference with the findings of
the High Court is not called for.
Dismissing the appeal, the Court
HELD: 1.1 Section 2(f)(1) of the Kerala Private Forests
(Vesting and Assignment) Act, 1971 defines "private forest", in
relation to Malabar District. Section 2(f)(1)(i) says that "private
forest" means any land to which the Madras Preservation of
Private Forests Act, 1949 applied immediately before the
appointed day, viz., 10.05.1971. It thereafter, enacts that certain
lands are excluded from the definition of "private forest" falling
under sub-clauses (A) to (D). Lands, which are gardens or nilams
(defined in the Kerala Land Reforms Act, 1963), are excluded
from the definition of "private forest" under the Vesting Act under
sub-clause (A). Likewise, lands used principally for the cultivation
of tea, coffee, 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 are excluded from
the definition of "private forest" by reason of sub-clause (B).
Explanation to Section 2(f)(1)(I)(B) further showed that lands used
for the purpose of construction of office buildings, go-downs,
factories, quarters for workmen, hospitals, schools and
playgrounds were deemed to be lands used for purposes ancillary
to the cultivation of such crops. Therefore, Section 2(f)(1)(i)(B)
evidences that lands used principally for cultivation of certain
crops and lands used for construction of buildings for the purpose
of running and maintaining a plantation are excluded from the
definition of "private forest". Under Section 3 of the Vesting Act
under which private forests were to vest in the Government.
[Para 29][563-D-H]
State of Kerala v Gw

## Text

_Characters 0–39,636 of 74,203. This is a partial read: ask again with offset=39636 for what follows._

A
B
C
D
E
F
G
H
541
541
STATE OF KERALA & ANR.
v.
M/S POPULAR ESTATES (NOW DISSOLVED) & ANR.
(Civil Appeal No. 903 of 2011)
OCTOBER 29, 2021
[INDIRA BANERJEE AND S. RAVINDRA BHAT, JJ.]
Kerala Private Forests (Vesting and Assignment) Act, 1971:
ss. 2(a), 2(f), 3, 6 and 8 - Kerala Land Reforms Act, 1963 - ss.
2(47) and 81 - Private forests - Meaning of - Nature of land -
Determination of, by Taluk land Board - Evidentiary value of -
Held: Where the Land Board arrives at a determination about the
character of lands, under the Act of 1963, that becomes a piece of
evidence for the purposes of the Vesting Act - Unless a contrary
state of affairs shown to exist, the Board's order to be given due
weight - On facts, rounds of litigation between the State and the
respondent - Respondent claiming that they were owner of 1534.40
acres of land which was acquired by sale, and forest authorities
attempted to take possession of large areas of land occupied by the
respondent on the ground that they were private forests and were
vested in the State - Draft statement by the Taluk Land Board,
wherein respondent shown to hold 1576 acres of land, of which
1537 acres fell under the exempted category, and that respondent
was eligible to retain the balance extent within the ceiling area;
and that there was no surplus land to be surrendered to the State -
High Court correctly invoked the Board's order and held that an
area of slightly over 100 hectares and 155.90 acres was forest land
that vested in the State, and the rest of the 1534.40 acres land had
to be treated as plantation, and thus, belonged to the respondent -
High Court placed reliance on preliminary and final report by the
Commissioner, draft statement of the land, respondent's auditor's
balance sheet, agricultural income tax, sales tax return, and
employees provident fund - All these materials, support the
conclusions of the High Court, based on plausible (and not an
unreasonable) inference of the overall analysis of the evidence on
the record - Thus, the order of the High Court does not call for
interference - Madras Preservation of Private Forests Act, 1949.
[2021] 11 S.C.R. 541
A
B
C
D
E
F
G
H
542
SUPREME COURT REPORTS
[2021] 11 S.C.R.
Constitution of India: Art. 136 - Discretionary Jurisdiction -
Exercise of - Held: Where two plausible views on the conclusions
that can be drawn from facts on the record exist - View taken by the
High Court being a plausible one, interference with the findings of
the High Court is not called for.
Dismissing the appeal, the Court
HELD: 1.1 Section 2(f)(1) of the Kerala Private Forests
(Vesting and Assignment) Act, 1971 defines "private forest", in
relation to Malabar District. Section 2(f)(1)(i) says that "private
forest" means any land to which the Madras Preservation of
Private Forests Act, 1949 applied immediately before the
appointed day, viz., 10.05.1971. It thereafter, enacts that certain
lands are excluded from the definition of "private forest" falling
under sub-clauses (A) to (D). Lands, which are gardens or nilams
(defined in the Kerala Land Reforms Act, 1963), are excluded
from the definition of "private forest" under the Vesting Act under
sub-clause (A). Likewise, lands used principally for the cultivation
of tea, coffee, 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 are excluded from
the definition of "private forest" by reason of sub-clause (B).
Explanation to Section 2(f)(1)(I)(B) further showed that lands used
for the purpose of construction of office buildings, go-downs,
factories, quarters for workmen, hospitals, schools and
playgrounds were deemed to be lands used for purposes ancillary
to the cultivation of such crops. Therefore, Section 2(f)(1)(i)(B)
evidences that lands used principally for cultivation of certain
crops and lands used for construction of buildings for the purpose
of running and maintaining a plantation are excluded from the
definition of "private forest". Under Section 3 of the Vesting Act
under which private forests were to vest in the Government.
[Para 29][563-D-H]
State of Kerala v Gwalior Rayon Silk Manufacturing
and Weaving Co. 1974 (1) SCR 671; Parameswara
Sastrigal K.S. v. State of Kerala & Ors 2008 2 ILR
371; Bhawani Tea & Produce Co. Ltd. v. State of Kerala
& Ors. 1991 (2) SCC 463 : [1991] 1 SCR 550; Gwalior
A
B
C
D
E
F
G
H
543
Rayons Silk Mfg. (Wvg.) Ltd v. The Custodian of Vested
Forests, Palghat & Anr. 1990 (Supp) SCC 785;
Malankara Rubber & Produce Co. v. State of Kerala &
Ors. [1973] 1 SCR 399; State of Kerala v. Pullangode
Rubber & Produce Co. Ltd. (1999) 6 SCC 92 : [1999]
3 SCR 1163 - referred to.
1.2 The State's contention that as the respondents had
mentioned in its petition that a certain area was forest (since it
was so, by virtue of provisions of the Madras Act) therefore, does
not preclude the latter's contention that no vesting could take
place; whether the lands were "forest" or cultivated plantations
or estates, for the purposes of Section 2(f)(1)(i)(B) of the Vesting
Act, especially whether they stood excluded from operation of
that Act, had to be considered independently. [Para 34][567-F]
1.3 The judgment in Kunjanam Antony's case enunciated
the rule that where the Land Board arrives at a determination
about the character of lands, under the KLR Act, that becomes a
piece of evidence for the purposes of the Vesting Act. Therefore,
it is no longer open for the State to argue that the Board's
determination or order, had little or no evidentiary value. In view
of the judgments of this Court, including Popular II's case, the
enunciation of the principle that "unless a contrary state of affairs"
were shown to exist, the Board's order "would have to be given
due weight" had to apply, and was correctly invoked by the High
Court. [Para 35, 36][567-G; 568-D-E]
Kunjanam Antony v. State of Kerala (2003) 3 SCC 221
: [2003] 1 SCR 967; State of Kerala v. Mohammed
Basheer (2019) 2 SCC 260; State of Kerala v. Popular
Estates (2004) 12 SCC 434 : [2004] 5 Suppl. SCR 943
- relied on.
1.4 The two reports: preliminary and final, filed by the
Commissioner, in the first proceeding (instituted by the
respondent in 1974 by two applications) were the nearest in point
of time, to the appointed date. The preliminary report, (filed on
15.01.1976) discloses widespread cultivation of coffee, cardamom,
rubber, areca nut, etc. The two reports are part of the record.
STATE OF KERALA v. M/S POPULAR ESTATES (NOW DISSOLVED)
A
B
C
D
E
F
G
H
544
SUPREME COURT REPORTS
[2021] 11 S.C.R.
The final report dated 12.09.1977 by the Commissioner recorded
that the Forest Range Officer, after inspection stated that "only
disputed portions in Bit Nos. 1 to 7 had been demarcated and
that the other areas were cultivated". The respondents contention
was that this reflected the true factual position, coupled with the
Range Officer's memorandum filed before the Commissioner on
01.09.1977. [Para 37][567-F-G]
1.5 A combined reading of the materials, leads to the
inference that a detailed inspection of the area took place. Only
those areas that vested with the government were demarcated
by the survey party, attached with the Superintendent, Land
Records. It was in these circumstances that the respondent
successfully urged before the High Court that what was
demarcated was only 100 hectares and the others were not
demarcated since they were cultivated. This was borne out by
the final report. The possession with respect to 100 hectares of
uncultivated forest lands was also covered by draft statement of
land furnished to the Board in proceedings under the KLR Act,
which was the foundation for the Board's order dated 04.11.1980.
Both these documents confirmed that 100 hectares was vested
forest. The respondent had submitted that 533 acres was under
cardamom cultivation; 120 acres under rubber plantation; 257
acres under coffee plantation and that 155.9 acres was forest land;
and 17.5 acres of were comprised of roads and buildings. These
arguments found favour with the High Court. There is no glaring
error in the impugned judgment, having regard to these
circumstances. [Para 38][569-A-D]
1.6 The tribunal entirely rejected the evidence of PW-1,
the Forest Range Officer, who gave the memorandum to the
Commissioner on 01.09.1977. The tribunal wholly discredited
and brushed aside the evidence of this officer and viewed it with
suspicion. This is clear from the repeated use of the phrase "magic
money" suggesting that PW-1 was devious and had been bribed.
A reading of his deposition shows no such suggestion to him; no
material was placed on record that he was prosecuted for an
offence, nor were departmental proceedings initiated, for
misconduct. [Para 39][569-E]
A
B
C
D
E
F
G
H
545
1.7 The other materials on record-the auditor's balance
sheets, the evidence of the auditor (PW-4), the deposition of the
manager of the respondent (PW-5), who had worked since 1969
onwards reinforce the respondent's contentions that the largest
part of the area was cultivation for plantation crops. The tribunal
unreasonably discarded these materials. The other documents,
Settlement arrived at between the respondents and its workers
after closure on 25.6.1982 reveal that it had 80 permanent workers
and 29 temporary workers on its rolls. Likewise, copies of income
tax returns for various dates showed that income from these
estates was consistently reported, along with expenditure. For
the year ending on 31.3.1968 income was reported as ` 81,319;
for the year ending 31.3.1969 it was ` 95,707/-; the year ending
31.3.1970 it was ` 1,12,524; and for the year ending 31.3.1971 it
was ` 1,38,918. The respondent was apparently depositing
agricultural income tax and employees provident fund. It had
produced correspondence with these statutory authorities, as well
as sales tax returns. [Para 40, 41][569-F-H; 570-A-B]
1.8 The title deeds of the predecessor-in-interest of the
partners of the respondents who had acquired the lands in 1963,
show that large areas were shown as cardamon plantation. The
respondents had filed agricultural income returns and even in
1970, it was producing coffee, rubber and cardamom. The fact
that it had some labour trouble also supported its contention that
the respondents' plantation activities were on in full scale. All
these materials, support the conclusions of the High Court, which
are based on plausible (and not an unreasonable) inference of
the overall analysis of the evidence on the record. This court has
carefully considered the findings of the High Court while setting
aside the order of the tribunal. The reasons which led the High
Court to conclude that the tribunal's findings called for
interference are merited and in accord with the material evidence
on record. This Court is therefore of the opinion that no
interference with the impugned judgment of the High Court is
called for. [Para 42, 45][570-C-D; 572-A]
1.9 Where two plausible views on the conclusions that can
be drawn from facts on the record exist, this Court, in exercise
STATE OF KERALA v. M/S POPULAR ESTATES (NOW DISSOLVED)
A
B
C
D
E
F
G
H
546
SUPREME COURT REPORTS
[2021] 11 S.C.R.
of its discretionary jurisdiction under Article 136 of the
Constitution would not interfere with the findings of the High
Court. [Para 43][570-E]
Pritam Singh v. The State 1950 SCR 453; Tirupati Balaji
Developers Pvt. Ltd. v. State of Bihar (2004) 5 SCC 1 :
[2004] 1 Suppl. SCR 494; Jamshed Hormusji Wadia v.
Board of Trustees, Port of Mumbai (2004) 3 SCC 214 :
[2004] 1 SCR 483; Union of India v. Gangadhar
Narsingdas Agarwal & Anr (1997) 10 SCC 305; Jai
Mangal Oraon v. Mira Nayak (Smt) & Ors (2000) 5
SCC 141 : [2000] 3 SCR 1128; Taherakhatoon (D) By
Lrs. v. Salambin Mohammad (1992) 2 SCC 635;
Popular Plantation v. State of Kerala 1991 Supp (2)
SCC 720; State of Kerala v ACK Rajah 1994 Supp. (3)
SCC 250 - referred to.
Case Law Reference
[1974] 1 SCR 671
referred to
Para 2
(1991) Supp 2 SCC 720
referred to
Para 4
[1991] 1 SCR 550
referred to
Para 12
(1994) Supp 3 SCC 250
referred to
Para 21
(1990) Supp SCC 785
referred to
Para 31
[1973] 1 SCR 399
referred to
Para 31
[1999] 3 SCR 1163
referred to
Para 33
[2003] 1 SCR 967
relied on
Para 35, 36
[2004] 5 Suppl. SCR 943
relied on
Para 36
(2019) 2 SCC 260
relied on
Para 36
[1950] SCR 453
referred to
Para 43
[2004] 1 Suppl. SCR 494
referred to
Para 43
[2004] 1 SCR 483
referred to
Para 43
(1997) 10 SCC 305
referred to
Para 44
[2000] 3 SCR 1128
referred to
Para 44
(1992) 2 SCC 635
referred to
Para 44
A
B
C
D
E
F
G
H
547
CIVIL APPELLATE JURISDICTION: Civil Appeal No.903 of
2011.
From the Judgment and Order dated 05.12.2008 of the High Court
of Kerala at Ernakulam in M.F.A. No.108 of 2006 (B).
Pallav Sishodia, Sr. Adv., G. Prakash, Jishnu M. L., Mrs. Priyanka
Prakash, Mrs. Beena Prakash, Advs. for the Appellants.
K. V. Vishwanathan, Sr. Adv., Raghanth Basant, Ms. Liz Mathew,
Raghav Mehrotra, Apoorv Singhal, Advs. for the Respondents.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
1. This appeal by special leave challenges a judgment of the Kerala
High Court1, which allowed an appeal preferred by the respondent
(hereafter called "Popular Estates") and held that an area of slightly
over 402 acres (i.e., 100 hectares and 155.90 acres) vested in the State
of Kerala (hereafter "the state"), and the rest of the land (of a total
1534.40 acres) had to be treated as plantation, and thus, belonged to the
said respondent.
2. Popular Estates became owners of 1534.40 acres of land. Those
lands were acquired by sale, by M/s Popular Automobiles, a registered
firm, through four registered deeds executed in 1963. These lands fell to
Popular Estate's share upon partition of the firm's assets. The Kerala
Private Forests (Vesting and Assignment) Act, 1971 (hereafter "the
Vesting Act") came into force with effect from 10.5.1971. Under Section
3 of the Vesting Act, all private forests vested in the State Government.
The Act was challenged before the Kerala High Court, which struck it
down, by a judgment, in 1972. That judgment was reversed by this Court's
ruling in 19732.
3. The forest authorities attempted to take possession of large
areas of land occupied by Popular Estates, arguing that they were private
forests and had vested in the state, under the Act. Popular Estates moved
two Original Applications3 before the Forest Tribunal ("tribunal"
hereafter) under Section 8 of the Act claiming a declaration that no part
1 In MFA 108/2006 decided on 05.12.2008
2 State of Kerala v Gwalior Rayon Silk Manufacturing and Weaving Co.1974 (1) SCR
671
3 O.P Nos. Nos. 242 & 243/ 1974
STATE OF KERALA v. M/S POPULAR ESTATES (NOW DISSOLVED)
A
B
C
D
E
F
G
H
548
SUPREME COURT REPORTS
[2021] 11 S.C.R.
of the estate consisting 1534.40 acres was liable to vest in the state.
Since it was being cultivated and hence, it was exempt under the provisions
of the Vesting Act. The state opposed those applications. The tribunal
appointed a commissioner to inspect the entire area and report about its
state to it. The commissioner after a preliminary inspection was of the
view that a detailed survey of the land was necessary as most of the
land was situated on hills, and therefore, inaccessible. Private surveyors,
appointed to survey the land were unable to complete the work. The
tribunal directed Forest Department Survey Officers to survey the lands.
The tribunal, thereafter dismissed the Original Applications4. It made
critical comments about the manner in which the surveyors had made
the report and recorded that:
"This exclusion by the forest officials, may be due to the fact
that the magic money lulled them to sleep over the rights of
the Government or may be due to the fact that the claim
originally put forward by the forest officials was false. Neither
way it is not very complimentary to the respondents here or to
those officials concerned. It is for the Government to make
necessary immediate enquiry in this matter through some
official, other than Forest Department official, if the
Government so think and ascertain whether any area which
legitimately come under the classification of private forest
and which had vested in the Government besides bits 1 to 7
have been excluded by the forest officials or by the forest
survey officials. On the basis of the Commissioner's report
and the facts mentioned by him, I am inclined to think that
prima facie it appears that areas which should really be vested
forest have been excluded, when the claim was confined to
100 hectares."
After orders of the tribunal, forest authorities attempted to take
possession of the land. In the meanwhile, the state also issued notification
no. 4713/1977 notifying 100 hectares of the respondent estate as private
forest, based on survey undertaken by the forest department. Popular
Estates filed two appeals5 impugning the tribunal's orders, before the
High Court. These were dismissed; the special leave petition against
those orders too, were dismissed. Popular Estates then filed civil suits6
4 By order dated 15.02.1978
5 MFA 230 & 231/1978
6 Suit Nos. 69 & 71/ 1987 before the civil court Munsif's Court, Hosdurg
A
B
C
D
E
F
G
H
549
claiming that the state be permanently injuncted from taking possession.
Initially, the civil court refused to register the plaint on grounds of
maintainability, later, the suits were entertained on the intervention of the
High Court in civil revision.
4. On 22.7.1987, the Custodian and Conservator of Vested Forests
issued a notification (Ex. A-27) under Section 6 of the Act demarcating
324 hectares of land belonging to Popular Plantation as vested forests
under the Act. This notification was challenged in writ proceedings7.
Popular Plantation also withdrew the two suits. Their writ petitions were
dismissed on the ground that the respondents had alternate remedy
available before the tribunal. In these circumstances, Popular Estates
filed applications8 before the tribunal under Section 8 of the Vesting Act
challenging the notification dated 22.07.1987 and seeking a declaration
that the property covered by the applications was not private forest and
had not vested in the state government. Simultaneously, they also filed a
writ appeal9 against the order dismissing their writ petition. The writ
appeal was admitted subject to the condition that Popular Plantation
withdraw its original applications pending before the tribunal, and upon
complying with the same, they approached the tribunal as directed, by
filing original applications in 199010 challenging the state's jurisdiction to
issue the notification after a long lapse of time. Popular Plantation also
filed an appeal before this court, which was disposed of11. This court
observed that Popular Plantation had the liberty of appearing and pursuing
their application before the tribunal, confining the challenge to the validity
of the notification "on the grounds set out in the writ petition filed in
the High Court". In the event the tribunal held it had no jurisdiction,
liberty was given to file an appeal and/or a writ petition before the High
Court to challenge the notification "but only on the said grounds".
5. Popular Estates amended its original applications pending before
the tribunal (OA Nos. 166 & 167/1990) and also filed a writ petition
before the High Court12 challenging the validity of the notification dated
7 Before the Kerala High Court in OP No. 7498/ 1987
8 Original Applications Nos. 28 & 29/ 1988
9 Before the Kerala High court in WA No. 165/1989.
10 Original Applications Nos. 166 & 167/ 1990
11 Civil Appeal No. 200/ 1991 disposed by order dated 11.1.1991 [reported in Popular
Plantation v. State of Kerala, 1991 Supp (2) SCC 720]
12 OP No. 4751/ 1993
STATE OF KERALA v. M/S POPULAR ESTATES (NOW DISSOLVED)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
550
SUPREME COURT REPORTS
[2021] 11 S.C.R.
22.7.1987. The tribunal dismissed13 the two original applications holding
that in its earlier order it had only dealt with the status of 100 hectares of
the land and, therefore, with regard to rest of the land the State was
empowered to issue a fresh notification. This order was challenged in
an appeal before the High Court14. By a common judgment15 the High
Court allowed the appeal and writ petition, holding the notification to be
valid only in respect of the 100 hectares of vested forest. It was held
that there was no vesting so far as the rest of the land was concerned.
The High Court also directed the Custodian of Vested Forests to
demarcate the boundaries of the certain extent under Section 6 of the
Act and restore possession of the remaining extent of the properties to
Popular Plantation.
6. The state appealed to this court, by special leave. The appeal16
was decided by a judgment17 dated 04.11.2004 (hereafter referred to as
"Popular-II"). This court, in Popular-II noticed that the High Court
had proceeded on the basis that the order made by the Taluk Land Board
in a land ceiling case pertaining to Popular Plantation would amount
to res judicata. A draft statement under the provisions of the Kerala
Land Reforms Act, 1963 (hereafter, "KLR Act") was filed. Section 81
of the KLR Act exempted private forests and plantations. Rule 10 of
the Kerala Land Reforms (Ceiling) Rules, 1970 prescribed that Taluk
Land Boards were to prepare a draft statement of lands to be surrendered
and serve copies of such drafts on persons interested in the lands. In the
draft statement prepared by the Taluk Land Board (hereafter, "the
Board"), Popular Estates was shown to hold an extent of 1576-73-257
acres of land, of which 1537-25-645 acres fell under the exempted
category, and that Popular Estates was eligible to retain the balance
extent within the ceiling area. The Board concluded18 that there was no
surplus land to be surrendered to the state. The state government did not
challenge the declaration made by the Board but sought to initiate
proceedings under Section 85(9-A) of the KLR Act, by issuing notice
dated 18.05.1992 for reopening the final order of the Taluk Land Board.
That notice had been challenged by Popular Estates by their civil revision
13 By order dated 30.10.1992
14 MFA No. 72/ 1993
15 Dated 07.04.1994 the High Court allowed MFA No. 72/1993 and writ petition OP
No. 4751/1993
16 C.A 7111/1999
17 State of Kerala v. Popular Estates, (2004) 12 SCC 434
18 Order of Taluk Land Board dated 04.11.1980.
A
B
C
D
E
F
G
H
551
petition19 before the Kerala High Court by which further proceedings
were stayed. Based on a previous judgment rendered in Kunjanam
Antony v. State of Kerala20 this court held that the Board's determination
could not operate as res judicata, but would be a piece of evidence. This
court remanded the matter back to the tribunal.
7. The tribunal re-appreciated the evidence on the record as
required by this court and rejected Popular Estates' appeal21. Noticing
that the burden was upon Popular Estates to establish that the disputed
properties were not private forests but were cultivated as plantations,
the tribunal observed that in terms of the Vesting Act, especially Section
2(f) and its various components, the first requirement was to consider
whether the lands or any part of the lands fell within the purview of
the Madras Preservation of Private Forests Act, 1949 (hereafter, "the
Madras Act") which was immediately in force before the Vesting Act
was enacted. It was noticed that the Madras Act applied to all private
forests in Malabar and south Kanara having a contiguous area of 100
acres. The disputed properties were situated at a place within
erstwhile Malabar district and the tribunal took note of the Range Officer's
evidence (RW-1) which suggested that the Madras Act applied to the
disputed property. The tribunal's order also took into account Ex. A-37,
one of the title deeds which referred to the permission granted by the
District Collector to sell the property and held that such permission was
necessary having regard to the provisions of the Madras Act. Relying
on Section 2(f)(1)(i)(B) of the Vesting Act, the tribunal stated that this
provision takes lands which were principally used for the cultivation of
tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for
any purpose ancillary to such cultivation, out of its coverage. In this
regard Popular Estates had examined PW-5 and relied on a few
documents to establish that the properties were cultivated with rubber,
coffee and cardamom. PW-5 was the manager of the plantation: his
services began in 1969 as Office Assistant. He stated, in his evidence
that at that stage (in 1969), 1130 acres of the estate was plantation and
that 160 acres were also planted before commencement of the Act. The
tribunal brushed aside this evidence, concluding that nothing tangible
emerged from it and that Popular Estates necessarily had to prove that
the disputed properties were principally cultivated with rubber, coffee or
19 CRP No. 1409/ 1992
20 (2003) 3 SCC 221
21 By its order dated 25.05.2005
STATE OF KERALA v. M/S POPULAR ESTATES (NOW DISSOLVED)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
552
SUPREME COURT REPORTS
[2021] 11 S.C.R.
cardamom. The tribunal faulted PW-5's evidence as not being precise
with respect to the extent of properties which had been planted with the
different crops. It also faulted his evidence on the ground that he had
limited knowledge since he had to deal only with the estate when he
became an Estate Supervisor in 1974-75; it was concluded that he did
not have any direct knowledge with respect to the nature or extent of
cultivation. The tribunal considered Ex. A37-A41 holding that they were
title deeds. It was noted that Ex. A41 was executed in 1972, i.e. after
the appointment date; and being a photocopy - was in any case
inadmissible. The other documents had come into existence
before the appointed day, however, their recitals did not disclose expressly
that before the appointed date, the properties were cultivated with rubber,
coffee and cardamon. The tribunal noted that the schedules in two of
the documents - Ex. A-37 and 38 - showed that the properties were
cultivated with cardamom. These were to the extent of 72.762 hectares
and 89.92 acres, but were not proved to be land within the disputed
properties.
8. The tribunal noted that this court's holding was that the Board's
orders were not binding on the authorities under the Vesting Act. It
proceeded to analyse Ex. A-50 & 51 which was the draft statement of
lands surrendered to the government under the KLR Act and the certified
copy of the order of the Taluk Land Board, respectively. In this context,
the tribunal considered Objection no.7, that Popular Automobiles owned
1530.4 acres in Maloth village and that out of this, the private forest
coming within the purview of the Madras Act - an extent of 1127.50
acres - had been converted into plantation. The tribunal discarded the
Board's findings as inconclusive.
9. The tribunal further rejected the evidence of PW-1, the Range
Forest Officer, who had deposed before the earlier tribunal proceedings
in O.A. 242 & 243/1974 to say that the dispute was confined to 100
hectares. In this regard, the tribunal relied firstly, upon certain
observations of this court in Popular-II and secondly, that PW-1 had
no authority to admit any fact to the detriment of the state. Likewise, the
tribunal rejected other documentary evidence in the form of Ex. A-11
and A-14 as well as Ex. A-6 and A-7 as insufficient to prove that the
disputed properties were principally planted with rubber, coffee or
cardamom. In the final analysis, the tribunal went by the fact that the
disputed properties were covered by the Madras Act immediately before
the appointed date. It consequently held that Popular Estates failed to
A
B
C
D
E
F
G
H
553
bring their case under any of the clauses to Section 2(f)(1)(i) of the
Vesting Act (i.e. the exclusionary part), and therefore, failed to prove
that any part of such properties were Estates meant for the cultivation
of coffee, rubber, cardamom etc.
10. Aggrieved by the tribunal's order, Popular Estates preferred
an appeal. The High Court in the impugned judgment recounted the
entire proceedings particularly the judgement of this court in Popular-II
and the decision in Kunjanum Anthony (Supra). It gave certain weight
and credence to the observations and findings of the Board and held
that the land ceiling proceedings were not res judicata in the
proceedings under the Vesting Act but constituted a valid piece of
evidence. The impugned judgement relied upon the judgment
in Kunjanum Antony's case (supra) that until a contrary state of affairs
is shown to exist, the order of the Board would have to be given due
weight. The High Court observed that the excess land automatically
vests with the state like in the private forests vesting under Section 3 (1)
of the Vesting Act. The purpose of or intent of both enactments is to
distribute excess lands to landless agricultural labourers. The High Court
was of the view that the state never alleged that the Board's order was
obtained under fraud but rather that it was passed after considering all
statutory formalities. The Board, noted the High Court, rendered findings
with respect to the nature of the land as on the appointed date of the
KLR Act, i.e., 01.01.1970. The appointed date for the Vesting Act
was 10.05.1971. The High Court held that there is not much difference
between the two dates in point of time and that there was nothing on
record to suggest that the land usage had changed in between.
Proceeding with its analysis on the evidence on record, the Court took
note of the title deeds (Ex. A-37 to A-40) and the balance sheets and
profit and loss account (Ex. A-59 to A-64) to show that Popular Estates
was earning agricultural income from the land before the appointed date,
and that it maintained regular balance sheet, and profit and loss account.
The High Court was of the opinion that the notification issued on
08.07.1977 ultimately led to the state establishing that only 100 hectares
were private forest. It was also stated that Ex. A-27, i.e., the notification
dated 22.07.1987, was issued after demarcating the land under Section
6 and taking those 100 hectares as included in the 1534.40 acres purchased
by the firm after nine years when legal proceedings were pending. Ex.
A-65 is the accounts ledger for 1970-71 which showed that there was
cultivation in the relevant accounting year. There were other letters in
STATE OF KERALA v. M/S POPULAR ESTATES (NOW DISSOLVED)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
554
SUPREME COURT REPORTS
[2021] 11 S.C.R.
the form of exhibits, i.e., Ex. A-66, A-69 and A-70 which showed that
Labour authorities such as the Labour Commissioner and Provident Fund
authorities were involved with respect to labour unrest in the estate. Exhibit
A-67 and A-68 were addressed to the Agricultural Income Tax Officer
and Ex. A-71 and A-72 were letters addressed to the Sales Tax Officer.
These also showed that some labour disputes in the estate starting from
1983 existed and that production had slowed down. It was only after
these that Ex. A-27, notification dated 22.08.1987 was issued.
11. The High Court was of the opinion that all these documents
clearly showed that the entire area other than the 100 hectares of land
earlier notified by notification dated 08.07.1977 were not private forests
on the appointed date but exempted in view of the definition of private
forest. The court also noted the location sketch given by PW-3 the
Commissioner, a copy of the memorandum submitted before the Advocate
Commissioner by forest officials (Ex. A-4), and the reports of the
Commissioner (Ex. A-6 and A-7), all of which revealed that only 100
hectares in the entire lands were private forest on the appointed date.
The final report Ex. A-7, Ex A-8 and A-9 (location sketches) also showed
the details of the survey by the forest officials. All these were produced
by the Commissioner. Also, the demarcated areas by the official
survey ascertained the extent by actual theodolite survey. The High Court
observed that all these showed only the disputed area marked as Bits 17; the plan was also exhibited as Ex. C-3. The High Court took into
account the evidence of the then Range Officer (PW-1), the
Commissioner (PW-3), PW-4 & PW-5 - all of which pointed that the
disputed area covered by Ex. A-7 was plantation on the date when the
act came into force.
12. The High Court then relied on the full bench decision of the
Kerala High Court in Parameswara Sastrigal K.S. v. State of Kerala
& Ors.22. That judgment observed that if the land vested in the
government as a private forest on the appointed date, the owner cannot
thereafter alienate or transfer or assign the land for certain. However, if
it is not a private forest vested in the government there is no impediment
for the title holder to transfer the land. The Court also took note of the
judgment of this court in Bhawani Tea & Produce Co. Ltd. v. State of
Kerala & Ors.23 where it was observed that:
22 2008 2 ILR 371
23 1991 (2) SCC 463
A
B
C
D
E
F
G
H
555
"The reverse question is involved in this case, namely if the
land was not private forest but plantation under the M.P.P.F.
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 for the owners to
decide and not by the authorities under the Vesting Act, unless
it did make specific provisions to cover such a situation."
13. Taking note of these circumstances the court concluded that
on the appointed date, except the area of 155.9 acres of land, the rest of
the lands covered by Ex. A-27 were not private forest but plantations
falling within the exclusions under Section 2(f)(1)(i)(A) to (D) of the
Vesting Act. The High Court finally held that 1127.50 acres of land were
plantation and 100 hectares, i.e. 247 acres were private forest. Since
there was no claim with respect to 155.90 acres of land nor any proof
that it was converted into plantation on the appointed date, that extent
was also held to vest in the state. However with respect to the rest, i.e.
1127.50 acres minus 155.90 acres of land, the appeal was
allowed and Ex.A-27 notification to that extent was set aside.
Submission of parties
14. Mr. Pallav Sisodia, learned senior counsel argued on behalf of
the state that the impugned judgement requires interference as it is based
on a misappreciation of the facts on record. Learned counsel urged that
the primary onus to establish that the extent of land notified by the state
was not a private forest covered by the Vesting Act lies upon the party
or individual asserting it to be so. Thus, the burden lay upon
the appellant before the High Court, i.e. Popular Estates to prove
that the entire extent of 1534.40 acres of land were in fact under
cultivation as plantation. Mr. Sisodia submitted that before 10.05.1971,
Popular Estates was not the owner of the forest land; two partnerships
had formed since the earlier partnership was dissolved by deed dated
07.01.1972 produced as Ex. A-41. In these circumstances Popular
Estates was not entitled to maintain the original application since
the vesting took place on 10.05.1971 and therefore, as the subsequent
purchaser could not agitate with respect to the vesting. It was alleged
that the High Court principally relied on Ex A-50 and A-51
proceedings under the KLR Act or the determination of the Land Board
STATE OF KERALA v. M/S POPULAR ESTATES (NOW DISSOLVED)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
556
SUPREME COURT REPORTS
[2021] 11 S.C.R.
to allow the appeal. In this regard, learned counsel stressed that the
decision of this court in Popular-II was clear that such determinations
by the Board for an entirely different purpose could not constitute res
judicata by giving undue weight to that piece of evidence and ignoring
that the other evidence led before the tribunal was utterly inadequate;
the appellant state urged that the High Court fell into error.
15. The State argued that the High Court erred in holding that Ex.
A-6 and A-7 showed that only 100 hectares were private forest. In this
respect, learned counsel highlighted the observations of the tribunal that
the said two documents do not prove the fact that the rest of the lands
were in fact cultivated with plantation crops. He also relied upon the
deposition of PW-3 (Commissioner) who had stated that he could not
ascertain the planted areas, the number of plants or the age of such
plants in his first inspection and that he had confined his second inspection
to Plot numbers 1 to 7. Learned counsel emphasised that by Ex. A-6 and
A-7 the Commissioner had reported that a thick forest existed and had
highlighted the need to conduct a detailed survey. It was urged that the
Commissioner had visited the area in December 1975, long after the
date of vesting, i.e. 10.05.1971 and therefore, the report was not
determinative. It was further argued that the High Court completely
ignored examining whether the plantations were registered under the
Coffee Act, the Rubber Act or the Cardamom Act which now fall within
the purview of the Spices Board under the Spices Board Act, 1986 or
whether they had any valid registration in law. In these circumstances
there could have been no conclusive finding that plantations existed, as
was asserted by Popular Estates.
16. Learned counsel relied upon the pleadings made by Popular
Estates in the earlier rounds of litigation, especially in the first writ petition
which had challenged the enactment of the Vesting Act, in which an
assertion was made that more than 1000 acres was forest area. He also
submitted that a comparison of the respondent's pleadings clearly
showed that there were glaring inconsistencies in this regard. It was
submitted that in the writ petition filed at the earliest point of time in
1971, the total plantation area mentioned was 923 acres and that 682.47
acres grasslands were leased for dairy purposes. According to that writ
petition, the total extent of land was 1589.47 acres. In another writ petition
filed subsequently, another version that the plantation area was only
228.55 acres was asserted, in relation to one block; 780.34 acres was
leased out for dairy purposes. A total of 573.69 acres of balance land
A
B
C
D
E
F
G
H
557
were mentioned out of which 194.44 acres were plantation in one area,
and the entire plantation area in both parcels of land put together in this
writ petition did not exceed 425 acres. It was highlighted that if one took
into account these pleadings, a conflicting picture emerged. On an overall
analysis of the pleadings, the nature of oral testimony, over reliance on
the suspect testimony and the deposition of PW-1, a Forest range officer
who had no business to depose against the state and PW-5, whose
evidence did not inspire confidence with respect to the specifics regarding
the area of cultivation, could not have led the High Court to reasonably
conclude that 1127 acres were in fact cultivated, based upon on almost
similar finding of the land board. It was also urged that the High Court
failed to see that the burden of proving that the lands claimed by Popular
Estates as not covered by forest, remained unproved and undischarged.
Consequently, the High Court, even on an independent analysis of the
evidence could not have allowed the appeal.
17.