Civil Appeal Nos 826  827 28 of 1991
From the Judgment and Order dated 1091986 of the Kerala High Court in MFA Nos
48  291 of 1991
K Sudhakaran Attorney General TS Krishnamurthy Iyer AS Nambiar TRG Wariyar PS Poti PK Manohar Shanta Vasudevan KR Nambiar PK Pillai and V Jai Kumar for the appearing parties
The Judgment of the Court was delivered by KN SAIKIA 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 1091986 passed in MFA Nos 48 and 291 of 1981
The appellant Bhavani Tea and Produce Co Ltd hereinafter referred 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 327372 acres of land but it and only 3 15120 acres in occupation
Bulk of the plantations were purchased by the company in 1946 from Ms BB Rubber Estates Ltd hereinafter called the vendors  and the remaining estates acquired in 1955 and 1956
The vendors were in possession of 315120 acres of land situated in surveyed lands in RS Nos
2331 and 51 in Sholayar village mannarghat Taluk of palghat district which belonged in Jenmom  to mannarghat mooppil Sthanam 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 Varddymalai 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 in the State of Kerala and for the assignment thereof to agriculturists and agricultural labourers for cultivation extending to the whole of Kerala State received the assent of the President on 2381971 and as provided in its 554 Section 13 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 indicated 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 19631 of 1964 were exempt from the ceiling thereunder 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 company s plantations  land from 2861997 it approached the Tribunal under Section 8 of the Vesting Act for a declaration that no portion of the land in RS Nos 2331 and 51 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 coming into force out of the company s lands about 10 acres were covered by roads 50 acres by buildings 49014 acres by tea plants 70000 acres by coffee plants 79856 acres by cardamom and 250 acres by rubber plantation
Besides an area of 60 acres was maintained as windbelts and an area of 18950 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 233870 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 provisions 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 555 respondent which was a cooperative farming society 19054 hectares of the area taken over as vested forests as 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 Tribunal 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 139760 acres 56611 hectares identified as plot Nos 1 to 69 were located by the Commissioner as areas claimed by the respondent 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 PWs
1 to 3 and produced documents A1 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 observation of the commissioner the Tribunal held that plot Nos
2912131516242529354849 and 56 had been brought under cultivation prior to 14121949 and therefore did not fall within the purview of the Madras Preservation of Private Forests Acthereinafter referred to as MPPF Act and therefore held to be outside the purview of the Vesting Actplot 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 2f 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 2f or to be exempted under Section 3 of the Vesting Act
The Tribunal thus allowed the company to retain 20606 acres out of B Schedule lands as excludedexempted from the provisions of the vesting Act and declared total 118468 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 556 dated 10986 partly allowed the company s MFA No 48 of 1981 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 291 of 1981 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 1 to 10 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 14413 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 61 to 65 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 2f 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 15120 acres 1 75360 acres are admitted not to have been vested under the Act
Out of the remaining 139760 acres 60991 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 plot totalling 20606 acres
The High Court by the impugned order allowed 36 plots totalling 14413 acres
The result is that excluding the plots included in the peripheral area of virgin forests of 60991 acres the dispute is now confined only to following plots totalling 64173 acres
557 Plot 12 2750 acres Plot 13 2508 acres Plot 14 367 acres Plot 15 165 acres Plot 16 382 acres Plot 26 1070 acres Plot 27 1058 acres Plot 29 810 acres Plot 33 1620 acres Plot 36 1487 acres Plot 37 963 acres Plot 38 526 acres Plot 39 637 acres Plot 40 3242 acres Plot 41 2632 acres Plot 44 8406 acres Plot 46 531 acres Plot 50 3096 acres Plot 51 4411 acres Plot 55 1312 acres Plot 56 2484 acres Plot 58 7519 acres Plot 59 7303 acres Plot 61 756 acres Plot 62 2345 acres Plot 64 921 acres Plot 65 4872 acres Total  64173 acres 558 Both the company and the State of Kerala have filed Special Leave Petition 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 PS Poti for the State have argued this case with dexterity presenting 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 untiy contiguity and economy and that for deciding the area principally cultivated the plantations owned by the company must 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 scarciy 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 question of the plantation 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 company has also been arguing on plot by plot basis
In deciding these appeals therefore this Court has to take the facts 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 purpose 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 according to the 559 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 territorial 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 facts absolute landlord
The lower landholders acknowledged the Janmis  as their superior
The reports compiled showed that almost the whole of land in Malabar cultivated and uncltivated 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 Janmam  and Janmi  and their rights envisaged in Gudalur janmam Estates Abolition and Conversion into Ryotwari Act 1969 24 of 1969 were considered in Balmadies Plantation Ltd  Anr
vs State of Tamil Nadu  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 proprietory 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 vs The State of Kerala and Anr 19722 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 Kerala  Anr
vs The Gwalior Rayons Silk Mfg
Wvg Co Ltd etc
 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 acquired 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 560 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 leases 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 Venugopala Varma Rajaa vs Controller of Estate Duty Kerala It is well known that the extensive areas of different varieties of plantations that we have got in this State were once forest land 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 being entirely rocky or barren for other reasons all forest land 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
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 MPPF 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 2a 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 561 would be excluded
The words forest  is defined in Section 2 clause a of the MPPF 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 shown that the company s plantations area was a forest under the MPPF Act
The Kerala Forest Act 1961 Act 4 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 MPPF Act in so far as it applied to Malabar district was not repealed
The Kerala forest Act did not itself define privat 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 15 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 
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 includesa 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 lands used for the construction of the office buildings godowns factories quarters for workmen hospitals school and play grounds shall be deemed to be lands used for the purposes of sub clause a
562 Thus under the Act plantation  has been defined to include areas principally cultivated with plantation crops and the lands used for ancillary purposes
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 other 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 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 concerned
Private forest  as defined in Section 2 f of the Vesting Act means 1 in relation to the Malabar district referred to in sub
section 2 of section 5 of the Central Act 37 of 1956 i any land to which the Madras Preservation of Private Forests Act 1949 Madras Act XXVII of 1919 applied immediately before the appointed day excluding A lands which are gardens or nilams and defined in the Kerala Land Reforms Act 1963 1 of 1964 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 563 such Crops or for the preparation of the same of 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 baring trees or are principally cultivated with any other agricultural crop and D sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of such buildings ii any forest not owned by the Government to which the Madras Preservation of Private Forests Act 1949 did not apply including waste lands which are enclaves within wooded areas
2 in relation to the remaining areas in the State of Kerala any forest not owned by the Government including waste lands which are 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 Section 3 of the Vesting Act whereunder private forests were to vest in the Government said 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 section 2 and 3 with 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
564 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 cultivation  includes cultivation of trees or plants of any species
3 Nothing contained in sub section 1 shall apply in respect of so much extent of private forests held 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 extent 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 III of 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 State 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
We may 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 disputed 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 dam were not shown therein
There is however no dispute as to the colouring indications which are helpful for identification
565 The areas on the periphery according to the Commissioner are forest area namely plot Nos 11 7670 acres 18 2836 acres 25 1188 acres 28 9079 acres 30 7793 acres and 63 32425 acres
The total of this peripheral areas come to 60991 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
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
Regarding plots 12 13 15 16 26 27 29 and 56 Mr Krishnamurthy 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 were brought under cultivation prior to 1949 and the provisions of the MPPF Act excluded these areas from definition of private forests they could not be held to be forests as on 1051971 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 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 forests by a narrow strip is almost surrounded by areas excluded from vesting by the High Court
The company claimed these areas as principally cultivated areas and not included in the peripheral 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 here and there such as silver oak trees orange trees guava trees 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 566 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 naturally as forest
 The High Court did not record any finding that these areas were forests either in 1949 or on 1051971
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 plantation 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 which were planted as shade trees
The Commissioner also found that from plot 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 would start to yield
Similarly plot No 15 was found to be an old coffee planted area with scattered coffee plants aged 30 to 40 years and similar shade trees
Plot No 16 was also found to be coffee plantation
Similarly Plots 26 and 27 were found to be old coffee plantations
Plot No 27 was found to be a pucca cardamom area with plants aged 15 years and was allowed by the Tribunal as a cultivated area
The High Court however held that it reverted to nature
Similarly plot No 29 was excluded by the Tribunal as an area not covered by the MPPF Act since they were cultivated prior to 1949 which finding the High Court has not directly reversed
Plot no 56 was considered by the High Court with Plot No 49 the extent of the plots being 2484 acres and 089 acres respectively The Commissioner found 50 old rubber trees in Plot 49 and 600 older rubber trees in Plot 56 and both areas to have been neglected and abandoned and not used as a rubber plantation for a long time and definitely not on 1051971
The High Court concluded that 500 rubber trees in an area of 25 acres would not make it principally cultivated with rubber
since the average number of trees per acre according to the publication of the Rubber Board is from 140 to 160 per acre vide Manual of Rubber Planting in India
The High Court exempted Plot No 49 but held Plot No 56 liable to vest in the State
Some of these plots having been planted and still containing old plants and shade trees the High Court applied the theory that the areas reverted to nature
This leads to the question as to the meaning of forest and when if at all a particular plantation may be said to have reverted to nature
567 In Words and Phrases Legally Defined Vol 2 p 269 forest  means A certain territorie of woody grounds and fruitful pastures privileged for wilde beasts and foules of forest chase and warren to rest and abide in in the safe protection of the King for his princely delight and pleasure which territorie of ground so privileged is meered and bounded with unremovable marks meeres and boundaries either known by matter of record or else by prescription and also replenished with wilde beasts of vererie or chase and with great coverts of vert ie green leaved trees bushes etc for the succour of the said wilde beasts to have their abode in for the preservation and continuance of which said place together with the vert and venison there are certain particular laws privileges and officers belonging to the same meete for that purpose that are only proper unto a forest any not to any other place
 The earliest of the Forest Laws in England is said to be the Charter of the forest which was issued in 1217 by Henry as mentioned in Pollock and maitland s History of English Law Vol 1 p 179
The forestal rights of the crown consisted essentially of the King s rights to use the land forest whether belonging to himself or another for hunting game and for preserving the game and for preserving the land in such a way as to give maximum shelter and free room for the game
The Forest Laws were applied to royal forests and were designed to protect these rights
The medieval forest law in England has now been abrogated except in so far as it relates to the appointments and functions of verderers
According to Mozley and Whiteley s Law Dictionary forest  as a legal right is defined as a right of keeping for the purpose of hunting the wild beasts and fowls of forest chase park and warren in a territory or precinct of woody ground or pasture set apart for the purpose
According to Black Law Dictionary forest  means a tract of land covered with trees and one usually of considerable extent
It is said that in old English law a certain territory of wooded ground and frutiful pastures privileged for wild beasts and fowls of forest chase and warren to rest and abide in the safe protection of the prince for his princely delight and pleasure having a peculiar court and officers
Thus treatment of a certain extent of land as forest was implied
The fact that an extent of land has not been so treated or declared would therefore be relevant in determining 568 whether that land constituted a forest
This rule is found to have been applied by the Kerala High Court
In State of Kerala vs Anglo American Direct Tea Trading Co Ltd where the respondents were owners of tea estates the areas planted with tea had been excluded from the operation of the vesting provision of the Vesting Act
There were portions of tea estates where there were eucalyptus plantations
It was claimed by the respondents that those were areas which were required for ancillary purposes of the tea plantations ancillary in the sense that the Eucalyptus trees grown in the Eucalyptus plantations served as fuel for processing the tea for the market
There was also a plea that the lands having been converted into Eucalyptus plantations long before the appointed day under the Vesting Act such areas could not be said to be forests as on 1051971 and therfore there was no scope for vesting of such areas in the State
The latter plea having been accepted by the Tribunal and consequently the area where there were Eucalyptus plantations held not to have vested in the State the Custodian challenged the findings in appeal before the High Court and the cases having related to lands outside the Malabar District to which Section 2f 2 of the Vesting Act was applicable the State contended that Eucalyptus plantation was a forest
The question therefore arose whether the land which had been converted into eucalyptus plantations could be said to be forest within the meaning of the terms in Section 2f 2 of the Vesting Act
Subramonian Poti J speaking for the Division Bench consulted the dictionary meanings of forest as a large uncultivated tract of land covered with trees a tract of woodland and open uncultivated grounda large tract of land covered with trees and underbush extensive wooded area
 It was observed that the word forest  was derived from latin foris meaning outside the reference being to village boundary or fence and must have included all uncultivated and uninhabited land
The World of the Knowledge Encyclopaedia Vol
10 defines forest  at page 2201 as a circuit of wooded ground and pastures known in its bounds and piviledged for the abiding of wilde beasts and fouls of forest chase and carron to be under the King s protection for his princely delight
 It was also found that the Abridged Glossary of Technical Terms published by Forest Research Institute and Colleges Dehra Dun page 52 the term forest was understood as an area set side for the production of timber and other forest produce or maintained under woody vegetation for certain indirect benefits which it provided
For example climatic or protective
It was further observed that in the context in which the term private forest  had been used in the Act it was evident that it applied to lands other than those 569 on which human skill labour and resources had been spent for agricultural operations
In Malankara Rubber  Produce Co  Ors etc
vs State of Kerala  Ors
   it was held that lands under eucalyptus or teak which were the result of agricultural operations normally would be agricultural lands and not forests but lands which were covered by eucalyptus or teak growing spontaneously as in a jungle or a forest would be outside the purview of acquisition under Kerala Land Reforms Act
In State of Kerala  Anr
vs Nilgiri Tea Estates Ltd 1988supp SCC 79 the view taken by the High Court that eucalyptus trees planted in a tea estate for supply of fuel for the manufacture of tea were not covered by the vesting provisions of the Vesting Act was upheld
There the eucalyptus trees were raised not for a forest but for supply of fuel necessary for the manufacture of tea which was the industry carried on by the respondent company
In State of Kerala  Anr
vs KC Moosa Haji  Ors
A Full Bench of the Kerala High Court approved the observation of Poti J in State of Kerala vs Anglo American Direct Tea Trading Co Ltd supra that forest was not a term defined in the Act and that with reference to lands in the malabar area to which the MPPF Act applied on the appointed day the test for determination whether the land was private forest was different and that if the land was shown to be private forest on the date the MPPF Act came into force it would continue to be a private forest even if it had actually ceased to be a forest unless one or other of the exclusions in clauses A to D in the definition applied
it was contended therein that the Vesting Act applied only to those lands which were forests under the MPPF Act immediately before 1051971 inasmuch as the lands in question had ceased to be forest having been clear felled and as such had gone out of the purview of the MPPF Act and consequently they were not private forests for the purpose of the Vesting Act also
Rejecting the contention the Full Bench held that if the MPPF Act was applicable to the land in 1949 and if it continued to apply to it up to 1051971 that land would be a private forest for the purposes of the Vesting Act
The question was not whether there was a forest in existence in 1971 but was whether there was any land in 1971 to which the MPPF Act was applicable in 1949 and continued to be under its coverage till 1971
As the lands involved in that case were all private forests as definded in the Act clear felling and replanting were carried out with the permission of the District Collector
It was held that 570 denudation could not be held to have put the land out of the purview of the Act and that once the Act was applicable to the area in 1949 nothing done by the owners of the area or others was capable of putting an end to such applicability to that area
We respectfully agree with this view
The definition of private forest given in Section 2f of the Vesting Act and Section 247 of the Kerala Land Reforms Act were considered by K Jagannatha Shetty J in Gwalior Rayons Silk MfgWvg
 Co Ltd vs The Custodian of Vested Forests Palghat  Anr  JT The lands involved in that case were all forests as defined in the MPPF Act 1949 and continued to be so when the Vesting Act came into force in 1971
It was observed that the definition of private forests as was applicable to the Malabar district was not general in terms but limited to the area and lands to which the MPPF Act applied and exempted therefrom land described under sub clause A to D
This significant reference to MPPF Act in the definition of private forests in the Vesting Act made all the difference in the case
The MPPF Act was a special enactment by the erstwhile Madras State to preserve the private forests in the district of Malabar and erstwhile South Kanara district
The scheme appeared to be that if the land was shown to be private forest on the date on which the MPPF Act came into force it would continue to be a forest even if there was subsequent replantation
Accordingly it was held that the lands which were forests as defined MPPF Act and continued to be so when the Vesting Act came into force would continue as forests as under that Act
The reverse question is involved in this case namely if the land was not private forest but plantation under the MPPF Act and was similarly not private forest but plantation on 1051971 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
We have not been shown any such provision or any provision as to such land reverting to nature
Nature according to Collings English Dictionary means all natural phenomena and plant and animal life as distinct from man and his creations a wild primitive state untouched by man or civilization
According to Shorter Oxford English Dictionary natural vegetation means self sown or planted and not cultivated
Uncultivated or undomesticated plants or animals
There is 571 no finding as to prevalence of such a condition in these plots
Mr Krishnamurthy submits that the Ordinance which preceded the Vesting Act promulgated on 1051971 included the private forests as defined in the MPPF Act
We have seen that the Vesting Act gave two definitions of private forest the first was in relation to the Malabar district referred to in sub section 2 of section 5 of the Central Act 37 of 1956
In that district private forest meant any land to which the MPPF Act applied immediately before the appointed day excluding the lands which were gardens or nilams as defined in Kerala Land Reforms Act 1963 Act 1 of 1964 and lands which were 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
It is accordingly argued that the company s plantations did not constitute private forest either under the MPPF Act or under the Kerala Land Reforms Act and as such the entire area of the company s plantations could not have come within the purview of the Vesting Act
We find force in the submission to this extent but in view of the objects and purposes of the Vesting Act it can not be said that there could never be a case of such plantation land being converted to a forest by natural growth or otherwise
It must necessarily depend on facts
Mr Krishnamurthy then submits that even assuming the Vesting Act applied the entire plantation area ought to be taken as a unit for the purpose of ascertaining whether there was private forest and not piece by piece or plot by plot as has been done in this case
If the entire area is taken as a whole if major portion of the area was found to be cultivated the whole area ought to be taken as principally cultivated area small enclaves or patches meant to give rest by rotation should also have been treated as cultivated area
The entire method adopted by the respondents counsel submits was wrong and has immensely prejudiced the company s case As regards the concept of reversion to forest Mr Poti submits that this applied to a land where Section 2i of the MPPF Act did not apply
According to him it applied to two categories namely areas of less than 100 acres and areas of abandoned cultivation in both cases when it was found to be forest on the appointed day ie 1051971
There is no difficulty about the extent of less than 100 acres but the difficulty is with abandonment
Mr Poti submits that the Custodian judged by visual appearance but the Tribunal did not notice 572 clause 2 at all
We are of the view that mere abandonment would not convert an area into a forest unless the owner has decided to do so or the appropriate authority has notified it to be so
Mere visual test would not be enough
The decision of the owner could of course be expressed or implies
Mr Poti submits that the definition of forest as given in Section 2a is only an inclusive one
Forest includes waste or communal land containing trees and shrubs pastural land and any other class of land declared by the State Government to be a forest by Notification issued in the St George Gazette
Thus according to counsel forest has not been defined in the Act exhaustively nor has it been defined in the Kerala forests Act
Mr Poti while admitting that the Kerala Land Reforms Act exempted all plantations submits that the Vesting Act made drastic curtailments and that when historically interpreted principally planted did not mean with reference to the area but with reference to the crop only inasmuch as the word plantation has not been used at all in the Vesting Act and therefore the plantations can not be treated as a unit but only as land and the vesting Act is prospective and not retrospective
Counsel relied on Gwalior Rayons Silk Mfg
Wvg Co Ltd vs The Custodian of Vested Forests Palghat  Anr
supra and State of Kerala vs K C Moosa Haji supra
According to Mr Poti if the definition permitted the area could be taken plot by plot inasmuch as there could be a forest of even 1 acre only
The size of the forest was not material and the estate as a unit of management is also not material the concept of plantation itself being absent
It is submitted that the expression used principally for cultivation in sub clause B and principally cultivated with in sub clause C mean the same thing
It is further submitted that if the land which was not cultivated in 1949 might have already come under the MPPF Act
Division into plots was done by the Commissioner as he found these plots to have been different and the demarcation was of compact areas with few isolated areas and such a demarcation was contemplated under the Act
It was pointed out that the company also contested the case on plot by plot basis
The Tribunal as well as the High Court also proceeded on that basis
It is pointed out the company objected to the principle of division before the High Court but did not question the correctness of the actual division made and hence the High Court could decide only on plot by plot basis
We have no difficulty in holding that the forest area is generally described or notified with reference to land in forest laws
But that does not mean that what stood on the land has to be ignored particularly in case of plantations which were exempted under the MPPFAct
573 While we are not inclined to agree that the entire estate of the company was required to be taken as one whole we find it difficult to agree that wherever some forest was found inside the company s estate the Vesting Act would apply
We find that the MPPF Act the Kerala Forest Act the Kerala Land Reform Acts considered the plantations as units by providing that they would include the land used for ancillary purposes as well
Therefore while applying the Vesting 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 namely Siruvani Varadimulai Elamali and Halton
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
Considered in light of the above principles also we find that plots 131516262729 and 56 form small portions of the respective divisions and can be taken to have been principally cultivated
We accordingly have no hesitation to exempt these plots from vesting
However considering the scarcity of land and the location of plot No12 and the fact that the Co operative Society has already been formed for the ends of distributive justice this plot should be taken to have vested in the State so that the road will form the boundary of the company s plantations
Plot No 14 of 367 acres though a forest area has been claimed by the company as its wind belt
Mr Poti submits that this plot is of high elevation but the experts did not agree that it could serve as wind belt
From the sketch map however it is found to have been projecting inside the plantations and that may be sufficient reason for its special consideration
It should accordingly be exempted from vesting
After formulating the principles on the basis of the case law at one stage we were thinking of remanding the case of the High Court for fresh determination in light of the observations made above
However there was the consensus that in view of the detailed findings of the Tribunal as well as the High Court this old pending case may be decided by this Court itself instead of remanding it
We therefore decided to do so on the basis of the materials on record
Plot No 33 admeasuring 1620 acres 656 hectares was claimed by the company as originally planted area
The Tribunal found that at the relevant time there was no evidence of any plantation but there were small forest trees aged 20 years and also wild bushes and shrubs
The High Court did not specifically referred to this plot
From the 574 sketch map it is seen that on all sides it is covered by planted area and only to the north by forest
The company claimed it as an enclave
There is some building and a road passing throughout it
It is a part of the Alamalai Division
There is nothing to show that this plot was not exempted under the MPPF Act as plantations
Considering all these factors this plot has to be left as a part of the plantation and exempted from vesting
Accordingly it is exempted
Plot No 36 admeasuring 1487 acres 602 hectares was found by the Tribunal to be an uncultivated grassy waste land with some scattered forest trees
As there is no evidence of it ever having been planted having forests almost on three sides this plot may be taken to have vested in the State
Plot Nos
37  38 have been claimed by the company as cardamom plantations
To the south of these plots there is a strip of plantations
Plot No 37 admeasuring 963 390 hectares was found to have been newly planted with cardamom which the company claimed to have been replantation
Some scattered old cardamom plants aged nearly 15 years here and there were also found
Similarly Plot No 38 admeasuring 526 213 hectares was claimed by the company as a cardamom plantation but there were no plants
Both the plots may therefore be treated together as cardamom planted area and as such not vested in the State
Plot no64 extending over 921 acres 372 hectares contains as found by the Tribunal water channel through which water from the forest area was flowing to the water tank constructed at the end of the north channel and that the entire water supply to the tea factory and other residential areas of this building was through this channel
On both sides of this channel there were some scattered cardamom plants aged 10 15 years
The High Court dealt it with plot Nos 62 and 63 but did not mention about the water channel and the plants
The findings of the Tribunal would justify exemption of this plot from vesting inasmuch as the water supply must be considered to be vital for the plantations and their administration
Plot Nos 39 and 40 extending over 637 acres 258 hectares and 3242 acres 1312 hectares are contiguous and through these plots passes a road
They are surrounded on three sides by planted areas and only on one side by LGB estates
The Tribunal found that plot No39 was newly planted with coffee the plants being 6 months to 1 year old
The company stated this area to have been an old cardamom planted 575 area and newly converted into coffee plantation
Plot No 40 was claimed to have been a cardamom plantation and the plants to have been destroyed by wild fire the Tribunal found it to be a forest area with trees ages 30 40 years and 15 dadaps of equal age
There is nothing to show that this was not an exempted area under the MPPF Act or not included in the plantations when the Vesting Act came into force
The High Court did not find otherwise
These two plots accordingly have to be exempted from vesting
The Tribunal found plot No 41 extending over 2632 acres 1065 hectares to be grassy land with only about 10 to 20 forest trees wild bushes and undergrowth
The company said that this area was used for fugitive cultivation by the estate labourers
The High Court does not appear to have specifically dealt with this plot
There having been no plantation it was not shown to have been included as forests under the MPPF Act
In view of the objects and purposes of the Vesting Act it may be treated as to have vested in the State
Plot No 44 extending over 8406 acres 3462 hectares was found by the Tribunal as mainly grassy hills with some scattered trees in some portion and not cultivated
In the High Court it was submitted by the company that there were no forest trees in this area that there were old tree plantations which were destroyed and that it was close to the bungalow of the Managing Director Exhibit A 19 which was the preliminary Land Register showed that this plot was tea area and the same was included in a re planting scheme sanctioned by the Tea Board
This was also said to be an enclave within the plantations
The High Court observed that re planting scheme sanctioned by the Tea Board had not been put in evidence and that the recital in Ext
A 19 by itself could not entitle the applicant to claim exemption on he basis that the plot was a tea area and that Ext
A 19 could only be a record of representation of the company
It was not denied that this plot was close to the bungalow of the Managing Director and that there were no forest trees in that area
It is seen to be extending far inside the plantations in Siruvani division
There is no evidence to show that this area was not exempted as plantation under the MPPF Act or when the spontaneous growth of forest thereafter
This plot cannot therefore be taken to have vested in the State
Plot No 46 admeasuring 531 acres 215 hectares was claimed by the company to be an old coffee plantation though the Tribunal found that there were no coffee plants but there were dadaps aged 30 576 to 40 years which were planted as shade trees and some scattered forest trees also
Neither the Tribunal nor the High Court found the area not to have ever been planted
The presence of the shade trees proved otherwise
It is also located to the north of plot No65 and well inside the plantation and as such may be treated as an enclave
It has therefore to be exempted
Plot No 50 is extending over 3096 acres 1253 hectares
The company claimed that it was coffee planted area but subsequently the coffee plants were destroyed by wild fire
The Tribunal found this to have been a planted area as there were a good number of shade trees such as dadaps which were aged about 40 years and there were a few scattered forest trees aged 30 to 40 years and the area was covered with bushes and wild growth
The High Court did not exclude this area from vesting on the ground that there were no existing specified crops without considering whether this area was or was not excluded as plantation by the MPPF Act
This plot is located almost at the centre of Siruvani Division and hardly touched by peripheral plot No 63
On north eastern side of this plot number of houses have been shown in the sketch map
This cannot therefore be taken as vested in the State
Plot No51 is described by the Tribunal as a thin forest area with scattered forest trees aged 15 to 20 years and no sort of cultivation or plantation seen
Plot No 55 extending over 1312 acres 531 hectares described by the Tribunal as a forest area with trees aged 40 to 50 years and not cultivated
The High Court dealt with these two plots together
The company claimed that plot No 55 was a part of rubber plantation alongwith plot No56 which have been exempted and that both these areas were covered by Registration No 2 of 1964 under the Rubber Act
At the relevant time the High court observed that the registration survey had not been produced inspite of the statement that the document was available for production or verification and that neither in Ext
A 13 nor in Ext
B 1 the applicant have claimed to have any area to be planted with rubber
The Tribunal further observed that the balance sheet and profit and loss accounts attached to Ext
A 13 also did not disclose any income from rubber and no other evidence was produced that there was any rubber plantation
The High Court did not arrive at any finding that this area was a forest area under the MPPF Act or at the time of the Vesting Act coming into force
It is surrounded on all sides by plantations and may be taken an enclave
From its location and the claim of registration under the Rubber Act these two areas cannot be taken to have been vested in the State
577 The Tribunal treated plot No 58 of 7519 acres 3043 hectares and plot No 59 of 7303 acres 2915 hectares together
The company claimed that the two plots were regularly planted with cardamom but a good number of plants were destroyed by the wild animals which were frequently coming from the nearby Muthikulam Reserve Forest
But it found that there were only scattered cardamom plants which were 10 to 15 years
In some portions of the area there were cardamom plants at the rate of 200 250 per acre and in other portion only 100 150 plants per acre
There were regular forest trees also aged some 50 years but number was not stated
The Tribunal accordingly observed Though the area is planted with cardamom this portion of the estate is not at all properly looked after or maintained The High Court dealt with plot 5859 and 61 together and observed that it contained some cardamom plants which were found among regular forest trees aged about 50 years
The cardamom plants few in number 100 150 in some places and 200 250 in other places and aged about 10 15 years as against about 1000 2000 per acre which according to PW 3 would be an ordinary number did not justify the claim that these areas were exempted as cardamom plantation
Before the High Court it was submitted for the State that cardamom was only a plantation and it would not be found in forest was only a misapprehension and that cardamom was a wild plant found in profusion as natural growth in tropical forests
Encyclopaedia Britanica state that native to the moist forests of Southern India cardamoms may be collected from wild plants but most are cultivated in India Sri Lanka and Guatemala
 The High Court accordingly concluded that the presence of a few scattered cardamom plants in thickly wooded forests cannot therefore justify an asumption that the aera is a cardamom plantation
There was no finding to the effect that the area is a cardamom plantation
There was no finding to the effect that this area was private forest under the MPPF Act and when the vesting Act came into force
These two area are no doubt adjacent to the peripheral plot No 63 but they extend far inside the plantation
They cannot be said to have been forests and never brought under plantation
The number of cardamom plants mentioned is enough to show that these areas were not private forests when the Vesting Act came into force nor they have become so thereafter
These two areas therefore have to be taken not to have been vested in the State
The result is that plot Nos333940444650 51555859 61 also have to be treated as not to have vested in the State under the Vesting Act
578 As regards the exiting roads falling within the vested areas those shall have such margins on either side of the road as required under the PWD rules of the State and shall be maintained and controlled by the company
No construction of new road by the company in or through the vested areas shall be permissible
Needless to say that there shall be no restriction as to roads on the company s own non vested areas
The result is that the High Court s Judgment stands modified only to the above extent
The appeals of the company and the State are partly allowed to the above extent
We leave the parties to bear their own costs of these appeals
RNJ Appeals partly allowed


Summary:
The second respondent was a tenant copartnership co operative Housing Society and father of the first respondent was its tenant co partner member
By an application dated 1061969 he sought permission of the society to temporarily induct the appellant into his flat
On the same date the appellant applied to the said Society for its nominal membership stating that he intended to take the flat for temporary use and occupation that he would not claim any right of permanent nature and that on receipt of notice he would vacate the flat
By an agreement of leave and licence dated 1161969 the father of respondent No 1 licensorgave use of the flat with its furniture and fittings to the appellant licensee on Rs 1000 per month as compensation for use and occupation for a period of 11 months with a facility of renewal of the agreement for two such further periods
The Managing Committee of the Society by its Resolution dated 1361969
I granted the permission
593 The licensor by letter dated 2211972 purported to terminate the licence wef 1031972 and asked the appellant to vacate the flat but the latter declined to do so
On receiving intimation from the licensor the Society by its letter dated 2221972 required the appellant to vacate the flat and deliver its possession to the licenser before the stipulated date but in vain
Instead the appellant on 1331972 applied to the Court of Small Causes Bombay for fixation of standard rent of flat
In April 1972 the licensor and the Society raised a dispute under section 91 of the Maharashtra Co operative Societies Act 1960 to recover possession from the appellantwho in turn filed a suit in the Court of Small Causes Bombay for declaration that he was tenant of the flat
He also filed an interim application for stay of the dispute proceeding till disposal of his application for fixation of standard rent which was rejected and his writ petition against the said order was also dismissed by the High Court on 791977
The Co operative Court Bombay dismissed the dispute proceeding holding that the appellant was a licensee and not a tenant but the society was an idle party which acted in collusion with the licensor to evict the appellant
On appeal by the licenser and the Society the Maharashtra State Co operative Appellate Court set aside the order of the Co operative Court against which the appellant filed a writ petition before the High Court contending that the agreement though style as a leave and licence was a lease that section 91 of the Maharashtra Co operative Societies Act was not attracted and could not have been invoked by the respondents and that section 91 itself was ultra vires article 14 of the Constitution to the extent it tried to reach non members of co operative societies
The High Court dismissed the writ petition
Hence the present appeal by special leave
By Maharashtra Act 17 of 1973 sections 54A and 15 A were introduced in the Bombay Rents Hotel and Lodging House Rates Control Act 1947to confer the status and protection of a tenant on a licensee who on the first day of Feb 1973 had a subsisting agreement and was on that date in occupation of any premises or part thereof which was not less than a room as a licensee
On the question whether1 the agreement dated 1161969 was one of leave and licence or if lease and if it was so whether the 594 occupant was entitled to benefit of section 15 A of the Rent Act and 2 the matter was one touching the business of the society so as to attract s19 of the Maharashtra co operative Societies Act within the jurisdiction of Co operative Courts
Dismissing the appeal this Court HELD 11 By mere use of the word lease or licence the correct categorisation of an instrument under law cannot be affected
Whether a particular grant amounts to lease or a licence depends on its substance
If a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof it will be a licence
If there is a transfer of interest in law and exclusive possession is given to the grantee or where the ingredients of a lease are present and the licensee is according to law a tenant then it is a lease and he ought to be given benefit of the Rent Act
602B E 12 In determining whether the agreement was a lease or licence the test of exclusive possession though of significance is not decisive and exclusive possession itself will not amount to creation of interest nor would it militate against the concept of a licence if the circumstances negative any intention to create a tenancy
602G E F 13 The intention of the parties in making the agreement is determinative of the question whether it was a lease or licence
The intention has to be gathered from the terms of the agreement construed in the context of the surrounding antecedent and consequent circumstances
The crucial test would be what the parties intended
If in fact it was intended to create an interest in the property it would be a lease if it did not it would be a licence Interest for this purpose means a right to have the advantage accruing from the premises or a right in the nature of property in the premises but less than title
603H 602F H 2
In the instant case it is clear from the tenor of the agreement that the intention of the parties was to create only a licence and not a lease
Positively it speaks of a licence for the use of the flat and negatively that the licensee would not claim any tenancy or subtenancy
What was given to the licensee was the use of the flat with furniture fittings etc which could not be said to have created any interest in the flat though in effect the use continued for a stipulated period of time
602A C 595 Board of Revenue etc
vs AM Ansari etc
   Tarkeshwar Sio Thakur Jiu vs Dar Dass Dey  Co  Ors   relied on Sohan Lal Naraindas vs Laxmidas Raghunath Gadit  followed
Antoniades vs Villiers and Anr 1988 3 All
ER 1058 NE Railway vs Hastings  Isaac vs Hotel De Paris Ltd  Booker vs Palmer referred to
31 Section 15A read with section 511bb of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 makes the tenant one of status rather than of contract
Intention to create a licence as defined in the Act if the other requirements fulfilled would therefore be enough to confer that status from the specified date
Section 15A required that the occupant must be in occupation of the premises as a licensee as defined in s54A on the first day of Feb 1973
If he be such a licensee the non obstante clause of s15A1 gives him the status and protection of a tenant in spite of there being anything to the contrary in any other law or in any contract
Even as against the express terms of the subsisting contract licence a person in occupation of any premises or part thereof which is not less than a room as a licensee shall in view of these provision be deemed to have become a tenant on the first day of Feb 1973 and would enjoy the benefits of section 15A
But if he was not a licensee under a subsisting agreement on the 1st of Feb 1973 then he did not get the advantage of the amending provision of the Rent Act
608E F 610AB 32 The sine qua non for the applicability of section 15A of the Rent Act was that a licensee must be in occupation as on Feb1 1973 under a subsisting licence
A person continuing in possession after termination withdrawal or revocation of the licence is a trespasser or a person who has no semblance of any right to continue in occupation of the premises
Such a person by no stretch of imagination could be called a licensee
612B C 610C 4
The appellant would otherwise be included in the definition of licensee under section 54A of the Rent Act but as he had no subsisting licence the same having stood terminated by notice on 1031972 the licence as defined by the Rent Act itself would not apply to appellant s case and he was nothing but a rank trespasser not entitled to the protection of section 15A of the Rent Act and could not therefore plead the bar of section 281 thereof608A 609A 612C D 596 DH Maniar and Ors
vs Waman Laxman Kudav   ON Bhatnagar vs Smt
Rukibai Narsindas  Others   relied on
Chandavarkar Sita Ratna Rao vs Ashalata section Guram   referred to
Hindustan Petroleum Corporation Ltd  Anr
vs Shyam Cooperative Housing Society  Ors   distinguished
The matter of eviction of the appellant was a dispute touching the business of the society as envisaged by s91 of the Maharashtra Co operative Societies Act and the Co operative Courts rightly exercised jurisdiction611B 613B Smt
Krishna Rajpal Bhatia and Ors
vs Miss Leela H Advani  Ors   relied on
Deccan Merchants Cooperative Bank Ltd vs MS Dalichand Jugraj Jain  Ors 1969 1 SCR 887 referred to
Since the appellant was involved in a dispute touching the business of the society of which he was a nominal member his contention that section 91 of the Maharashtra Co operative Societies Act to the extent it tries to reach persons who are not members is ultra vires article 14 of the Constitution was not tenable
613C D