BHAVANI TEA AND PRODUCE CO. LTD. v. STATE OF KERALA AND ORS. AND VICE VERSA

Citation: [1991] 1 S.C.R. 550

Court: Supreme Court of India

Bench: K.N. SAIKIA, M. FATHIMA BEEVI

Case summary

91 acres, the dispute is now confined only to following plots totalling 641. On the basis of the evidence available before it and mainly depending ,A upon the observations of the Commissioner, the Tribunal held that plot Nos.

Judgment text

The Judgment of the Court was delivered by ~ .. 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 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 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. 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 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 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 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. 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 company 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 respondent- 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 fuel and fire-wood- etc.

It was also stated that in favour of the fourth 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 ,A 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/ -'y" 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 dated 10. 9. 86 partly allowed the company's MFA No. 48of1981 to the ·--r 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 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. BHAVANI. TEA v. STATE [SAIKIA, J. ] 557 Plot 12 27. 50 acres -1'' Plot 13 25. 08 acres Plot 14 3. 67 acres Plot 15 1. 65 acres Plot 16 3. 82 acres Plat 26 10. 70 acres >- Plot 27 10. 58 acres Plot 29 8. 10 acres . -~ Plot 33 16. 20 acres Plot36 14. 87 acres Plot 37 9. 63 acres ~ Plot 38 5. 26 acres Plot 39 6. 37acres Plot40 32. 42 acres Plot 41 26. 32 acres Plot 44 84. 06 acres • Plot 46 5. 31 acres Plot 50 30. 96 acres Plot 51 44. 11 acres Plot 55 13. 12 acres Plot 56 24.

84 acres Plot 58 75. 19 acres Plot 59 73. 03 acres Plot 61 7. 56 acres Plot 62 23. 45 acres Plot 64 9. 21 acres Plot 65 48. 72 acres Total: 641. 73 acres Both the company and the State of Kerala have filed Special Y Leave Petitions from the common order of the High Court and are 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. 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 affairs". Some of the unique facts about the district accorcling to the author were that there _"private property'. in land had existed, while it ~· 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 'Janmis' as their superior. The reports compiled showed that "almost . J. --, 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. -- 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 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. The State ofKera/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 ~-- 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 for purposes ancillary thereto. " It was observed that extensive areas of private forests were available in the Malabar district which could be -r· 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