Case: Pioneer Rubber Plantation, Nilambur Vs. State of Kerala and Ors.

T.K. Thommen, J. 1. A common question arises in all these cases. Are lands set apart in the estates in question for growing firewood trees such as eucalyptus or redgum to be used as fuel for the purpose of manufacturing rubber or tea in the smoke-houses or factories or for the personal use of the employees in the estates excluded from the definition of private forests as contained in Section 2(f)(1)(i)(B) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act 26 of 1971) hereinafter referred to as the Act)? The Kerala High Court in the three judgments, which are impugned in these appeals, held that such lands fell within the expressions private forest and accordingly vested in the State in terms of the Act. The High Court rejected the contention of the appellants to the contrary. 2. We shall now read Section 2(f)(1)(i)(B):- 2. In this Act, unless the context otherwise requires,- (f) private forest means- (1) in relation to the Malabar district referred to in Sub-section (2) of Section 5 of the States Reorganisation Act, 1956 (Central Act 37 of 1956) (i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding (B) lands which are 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. (emphasis supplied) 3. The High Court held that the lands on which firewood trees were grown for the purpose of fuel for either the smoke-houses or factories or the employees in the estates were not lands used for purposes ancillary to the cultivation of the crops or for the preparation of the same for the market so as to be excluded from the definition of private forests which vested in the State. 4. It is not disputed that large quantities of firewood are essential as fuel for the manufacture of tea or rubber and certain areas in the estates are generally set apart for growing firewood trees like Eucalyptus or redgum. It is also not disputed that large number of persons are employed in the estates where quarters are generally provided for them and it is in the best interests of the estates that such persons are supplied with sufficient firewood for cooking as well as for keeping themselves warm, particularly in view of the high altitude at which many estates are located. 5. Some of the earlier decisions of the Kerala High Court had taken the view that lands set apart for growing firewood trees in the estates for the purpose of fuel did not qualify for exclusion from private forests so as to prevent their vesting in the State in terms of the Act. This was the view that was followed in the impugned judgments. Significantly, however, a Bench consisting of five Judges of the Kerala High Court subsequently considered this very question in the State of Kerala v. Moosa Haji, apparently because the law laid down in the earlier decisions on the point was doubted. The larger Bench expressed the view that it was essential for an estate to grow firewood trees for the purpose of fuel for the employees as well as for the smoke-houses and factories. In regard to the requirement of the employees, the High Court felt constrained by the observations of this Court in Chettiam Veettil Ammad and Anr. v. Taluk Land Board and Ors. [1979]3SCR839 . It was accordingly held that no exemption could be claimed in respect of areas utilised for cultivation of firewood trees to supply fuel for the employees. However, discarding the interpretation put on the section in some of the earlier decisions of the High Court, the learned Judges of the larger Bench held that a reasonable area set apart for growing firewood trees for the purpose of fuel in the smokehouses or factories could be excluded from private forests. Such areas, they held, qualified as lands used for the preparation of the (crops) for the market. 6. Referring to the need for growing firewood trees in an estate, the larger Bench of the High Court observed:- A practice or custom had thus grown up with the industry where it was the obligation of the employers to provide the employees with drinking water, canteen, creches, umbrellas, blankets, rain-coats, foodgrains, provisions, fire-wood and the like. Fire-wood in particular was an important necessity in the cold climate on the high ranges. Most of the estate managements had been planting red gum, for example, to ensure a steady supply of firewood to the community, and also for use in the smoke-houses and estate factories. Any purpose ancillary to cultivation in Section 2(f)(1)(i)(B) of the Vesting Act was deliberately kept wide by the legislature, because it knew that there were recognised uses other than those specifically enumerated in the Explanation. The object of the Act is to improve the lot of the rural population, and it should have been far from the mind of the legislators to deprive estate employees of the facilities they were enjoying at the commencement of the Act. Supply of fire-wood to the employees in accordance with the industry-wide practice should therefore be taken as ancillary to the cultivation of plantation crops.... (emphasis supplied) 7. However, the learned Judges felt constrained by the decision of this Court in Ammad (supra). They observed:- These arguments of counsel are no doubt persuasive, but in paragraph (54) of its judgment in C. Veettil Ammad v. Taluk Land Board [1979]3SCR839 , the Supreme Court has held that supply of fire-wood to estate employees cannot be said to be a purpose ancillary to the cultivation of plantation crops. That decision was rendered in a case arising from the Ceiling provisions of the Land Reforms Act, but the statutory provisions are almost identical. We cannot therefore permit ourselves to be swayed by the reasoning of counsel, and we are bound to hold that the claim under this sub-head is impermissible. This observation indicates that the larger Bench of the High Court might have come to the opposite conclusion as regards fuel for the employees had it not been for a certain observation of this Court in Ammad [1979]3SCR839 . 8. However, the learned Judges felt no such constraint in regard to fuel for the smokehouses and factories in the estates. Adopting what they refer to as a liberal and purposive interpretation, the learned Judges of the larger Bench held that a reasonable portion of the jungle area set apart for purposes of firewood could be regarded as land used to facilitate preparation of the crops for the market. 9. We have referred to the decision of the larger Bench of the High Court at some length to show that the final view which the High Court has taken subsequent to the impugned judgments supports the contentions of the appellants counsel as regards fuel for the smokehouses and factories. 10. We shall now refer to the observation of this Court in Ammad [1979]3SCR839 . It is important to remember that the question regarding fuel was not one of the main points which arose for consideration in Ammad. The main points of controversy in that case are correctly summarised in the head notes as follows:- 1. Whether lands converted into plantations between April 1, 1964 and January 1, 1970 qualified for exemption under Section 81(1)(e) of the Act. 2. Whether a certificate of purchase issued by the Land Tribunal under S.72K of the Act was binding on the Taluk Land Board in proceedings under Chapter III of the Act. 3. Whether the validity or invalidity of transfers effected by persons owning or holding lands exceeding the ceiling limit could be determined with reference to the ceiling area in force on the date of the transfer or in accordance with the ceiling area prescribed by Act 35 of 1969 - whether Sub-section (3) of s.84 was retrospective in operation. 11. These three points are in no way connected with the point in issue in the present cases. That judgment was rendered in a batch of cases and one of the questions which incidentally arose was as regards firewood trees grown in the estates. That question arose in C.A. No. 227 of 1978, and it has been discussed at page 870 of the judgment: [1979]3SCR839 . This Court held that the fuel area claimed for the manufacture of tea was exorbitant. The High Court had allowed the entire claim of 924.01 acres as fuel area. Setting aside the High Court order, this Court restored the original order of the Land Board and thus limited the exemption to 200 acres as fuel area for the requirement of the factory. Ammad is thus an authority for the proposition that a reasonable extent of land can be set apart as fuel area for the purpose of smoke-houses and factories in the estates and such area qualifies for exemption under Section 2(f)(1)(i)(B) of the Act. At the same time, the incidental observation of this Court in Ammad cannot be taken as an authority to disqualify for exemption a reasonable area meant to supply fuel to the employees living in the estate quarters. 12. We agree with the learned Judges of the larger Bench of the Kerala High Court that it would not be in accordance with the legislative intent to read the provisions in question without regard to the purpose for which exemption is specially provided for lands principally used for the cultivation of certain cash-crops or for the preparation of such crops for the market. Bearing in mind that, in granting the exemption it was the legislative intent not to disregard the legitimate interests of the estates, namely, their efficient functioning as an industry engaged in the production of cash-crops and the welfare of the concerned employees, it is necessary that a liberal and purposive construction should be put on the section. 13. A perusal of the definition of Private Forests contained in Clause (f) of Section 2 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 shows that lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, 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. The observations of the five learned Judges of the Kerala High Court in State of Kerala v. Moosa Haji show that all the Judges considered that it was essential for an estate to grow firewood trees for the purpose of fuel for the employees as well as for the smoke-houses and factories. This view was taken particularly in the light of the fact that the estates concerned were at a considerable height where it was cold and it would not be feasible for the employees to secure heating material to keep warm and for domestic purposes. 14. The entire purpose of exclusion of the items set out in the foregoing paragraph from the scope of the definition of Private Forest seems to be not to hinder or create any difficulty in the functioning of plantations of tea, coffee, cocoa, rubber, cardamom and cinnamon as viable commercial enterprises. In these circumstances, it appears reasonable that the minimum area required for the purpose of growing firewood trees for fuel in the factories and smoke-houses as well as for supply to the employees of the estates for their domestic use should be excluded from the definition of the term private forest. We must, however, emphasise that the burden is on the appellants to show that it has been their practice to supply firewood to the employees of the estates for their domestic use. As for the firewood required for the factories and smokehouses in the estates, there seems to be no doubt about the claim of the appellants. 15. However, where evidence had been led to show that firewood was steadily and adequately available in the market at reasonable rates for use of the factories or smoke-houses as well as for supply to the workers of a particular plantation, in such a case no land could be excluded from the definition of the private forest on the ground that it was required for growing firewood trees for the purpose of the estate as well as for the workers. That, however, is not the position in the case before us. On the pleadings and evidence before us, we do not consider that any further inquiry on the point is necessary. 16. In our view Section 2(f)(1)(i)(B) should be so understood as to grant exemption in respect of lands on which firewood trees are necessary to be grown for steady supply of a reasonable quantity of fuel to the employees as well as to the smoke-houses or factories in the estates. In the absence of satisfactory evidence to show that firewood is adequately and steadily available in the market at reasonable prices, such lands, in our view, qualify for exemption under Section 2(f)(1)(i)(B) of the Act as lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. This principle, in our view, much hold good in relation to all crops mentioned under the aforesaid provision. The Tribunal shall merely ascertain as to what is the minimum reasonable area of and required for growing firewood trees to be used as fuel in the factories or smoke-houses and for supply to the employees for their domestic purposes, if such supply to the latter is proved, and to exclude such area in demarcating private forest. 17. What exactly is the area which can be reasonably regarded as required for growing firewood trees for the aforesaid purposes so as to qualify for exemption from vesting under the Act is a question of fact which has to be determined with reference to various factOrs. Some of these factors are mentioned by the larger Bench of the High Court in the following words:- 32. The next point is what area of the jungle land could be excluded on the above basis? A precise assessment will almost be impossible, because the quantum of fire-wood needed for smoking purposes will depend on the volume of rubber to be processed, the yield of the trees, the quality of the wood and other factOrs. The best solution seems to be to make an approximate assessment as was made by the Taluk Land Board in Ammads case (supra). 18. We do not express any final view as to what factors are relevant in determining the reasonable area that qualifies for exemption under Section 2(f)(1)(i)(B) of the Act. That/is a matter for consideration by the concerned forest tribunals.

Decision:
1[ds]9. We have referred to the decision of the larger Bench of the High Court at some length to show that the final view which the High Court has taken subsequent to the impugned judgments supports the contentions of the appellants counsel as regards fuel for the smokehouses and factories.10. We shall now refer to the observation of this Court in Ammad [1979]3SCR839 . It is important to remember that the question regarding fuel was not one of the main points which arose for consideration in Ammad. The main points of controversy in that case are correctly summarised in the head notes as follows:-1. Whether lands converted into plantations between April 1, 1964 and January 1, 1970 qualified for exemption under Section 81(1)(e) of the Act.2. Whether a certificate of purchase issued by the Land Tribunal under S.72K of the Act was binding on the Taluk Land Board in proceedings under Chapter III of the Act.3. Whether the validity or invalidity of transfers effected by persons owning or holding lands exceeding the ceiling limit could be determined with reference to the ceiling area in force on the date of the transfer or in accordance with the ceiling area prescribed by Act 35 of 1969 - whether Sub-section (3) of s.84 was retrospective in operation.11. These three points are in no way connected with the point in issue in the present cases. That judgment was rendered in a batch of cases and one of the questions which incidentally arose was as regards firewood trees grown in the estates. That question arose in C.A. No. 227 of 1978, and it has been discussed at page 870 of the judgment: [1979]3SCR839 . This Court held that the fuel area claimed for the manufacture of tea was exorbitant. The High Court had allowed the entire claim of 924.01 acres as fuel area. Setting aside the High Court order, this Court restored the original order of the Land Board and thus limited the exemption to 200 acres as fuel area for the requirement of the factory. Ammad is thus an authority for the proposition that a reasonable extent of land can be set apart as fuel area for the purpose of smoke-houses and factories in the estates and such area qualifies for exemption under Section 2(f)(1)(i)(B) of the Act. At the same time, the incidental observation of this Court in Ammad cannot be taken as an authority to disqualify for exemption a reasonable area meant to supply fuel to the employees living in the estate quarters.12. We agree with the learned Judges of the larger Bench of the Kerala High Court that it would not be in accordance with the legislative intent to read the provisions in question without regard to the purpose for which exemption is specially provided for lands principally used for the cultivation of certain cash-crops or for the preparation of such crops for the market. Bearing in mind that, in granting the exemption it was the legislative intent not to disregard the legitimate interests of the estates, namely, their efficient functioning as an industry engaged in the production of cash-crops and the welfare of the concerned employees, it is necessary that a liberal and purposive construction should be put on the section.13. A perusal of the definition of Private Forests contained in Clause (f) of Section 2 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 shows that lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, 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. The observations of the five learned Judges of the Kerala High Court in State of Kerala v. Moosa Haji show that all the Judges considered that it was essential for an estate to grow firewood trees for the purpose of fuel for the employees as well as for the smoke-houses and factories. This view was taken particularly in the light of the fact that the estates concerned were at a considerable height where it was cold and it would not be feasible for the employees to secure heating material to keep warm and for domestic purposes.14. The entire purpose of exclusion of the items set out in the foregoing paragraph from the scope of the definition of Private Forest seems to be not to hinder or create any difficulty in the functioning of plantations of tea, coffee, cocoa, rubber, cardamom and cinnamon as viable commercial enterprises. In these circumstances, it appears reasonable that the minimum area required for the purpose of growing firewood trees for fuel in the factories and smoke-houses as well as for supply to the employees of the estates for their domestic use should be excluded from the definition of the term private forest. We must, however, emphasise that the burden is on the appellants to show that it has been their practice to supply firewood to the employees of the estates for their domestic use. As for the firewood required for the factories and smokehouses in the estates, there seems to be no doubt about the claim of the appellants.15. However, where evidence had been led to show that firewood was steadily and adequately available in the market at reasonable rates for use of the factories or smoke-houses as well as for supply to the workers of a particular plantation, in such a case no land could be excluded from the definition of the private forest on the ground that it was required for growing firewood trees for the purpose of the estate as well as for the workers. That, however, is not the position in the case before us. On the pleadings and evidence before us, we do not consider that any further inquiry on the point is necessary.16. In our view Section 2(f)(1)(i)(B) should be so understood as to grant exemption in respect of lands on which firewood trees are necessary to be grown for steady supply of a reasonable quantity of fuel to the employees as well as to the smoke-houses or factories in the estates. In the absence of satisfactory evidence to show that firewood is adequately and steadily available in the market at reasonable prices, such lands, in our view, qualify for exemption under Section 2(f)(1)(i)(B) of the Act as lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. This principle, in our view, much hold good in relation to all crops mentioned under the aforesaid provision. The Tribunal shall merely ascertain as to what is the minimum reasonable area of and required for growing firewood trees to be used as fuel in the factories or smoke-houses and for supply to the employees for their domestic purposes, if such supply to the latter is proved, and to exclude such area in demarcating private forest.Some of these factors are mentioned by the larger Bench of the High Court in the following words:-32. The next point is what area of the jungle land could be excluded on the above basis? A precise assessment will almost be impossible, because the quantum of fire-wood needed for smoking purposes will depend on the volume of rubber to be processed, the yield of the trees, the quality of the wood and other factOrs. The best solution seems to be to make an approximate assessment as was made by the Taluk Land Board in Ammads case (supra).18. We do not express any final view as to what factors are relevant in determining the reasonable area that qualifies for exemption under Section 2(f)(1)(i)(B) of the Act. That/is a matter for consideration by the concerned forest tribunals.