STATE OF KERALA & ANR. versus M/S POPULAR ESTATES (NOW DISSOLVED) & ANR. on 29 October 2021

[2021] 11 S.C.R. 541

STATE OF KERALA & ANR.

v.

M/S POPULAR ESTATES (NOW DISSOLVED) & ANR.

(Civil Appeal No. 903 of 2011)

OCTOBER 29, 2021

[INDIRA BANERJEE AND S. RAVINDRA BHAT, JJ.]

Kerala Private Forests (Vesting and Assignment) Act, 1971:ss. 2(a), 2(f), 3, 6 and 8 – Kerala Land Reforms Act, 1963 – ss.2(47) and 81 – Private forests – Meaning of – Nature of land –Determination of, by Taluk land Board – Evidentiary value of –Held: Where the Land Board arrives at a determination about thecharacter of lands, under the Act of 1963, that becomes a piece ofevidence for the purposes of the Vesting Act – Unless a contrarystate of affairs shown to exist, the Board’s order to be given dueweight – On facts, rounds of litigation between the State and therespondent – Respondent claiming that they were owner of 1534.40acres of land which was acquired by sale, and forest authoritiesattempted to take possession of large areas of land occupied by therespondent on the ground that they were private forests and werevested in the State – Draft statement by the Taluk Land Board,wherein respondent shown to hold 1576 acres of land, of which1537 acres fell under the exempted category, and that respondentwas eligible to retain the balance extent within the ceiling area;and that there was no surplus land to be surrendered to the State –High Court correctly invoked the Board’s order and held that anarea of slightly over 100 hectares and 155.90 acres was forest landthat vested in the State, and the rest of the 1534.40 acres land hadto be treated as plantation, and thus, belonged to the respondent –High Court placed reliance on preliminary and final report by theCommissioner, draft statement of the land, respondent’s auditor’sbalance sheet, agricultural income tax, sales tax return, andemployees provident fund – All these materials, support theconclusions of the High Court, based on plausible (and not anunreasonable) inference of the overall analysis of the evidence onthe record – Thus, the order of the High Court does not call forinterference – Madras Preservation of Private Forests Act, 1949.

A

B

C

DE

F

GH

Constitution of India: Art. 136 – Discretionary Jurisdiction –Exercise of – Held: Where two plausible views on the conclusionsthat can be drawn from facts on the record exist – View taken by theHigh Court being a plausible one, interference with the findings ofthe High Court is not called for.

A

BDismissing the appeal, the Court

HELD: 1.1 Section 2(f)(1) of the Kerala Private Forests(Vesting and Assignment) Act, 1971 defines “private forest”, inrelation to Malabar District. Section 2(f)(1)(i) says that “privateforest” means any land to which the Madras Preservation ofCPrivate Forests Act, 1949 applied immediately before theappointed day, viz., 10.05.1971. It thereafter, enacts that certainlands are excluded from the definition of “private forest” fallingunder sub-clauses (A) to (D). Lands, which are gardens or nilams(defined in the Kerala Land Reforms Act, 1963), are excludedfrom the definition of “private forest” under the Vesting Act underDsub-clause (A). Likewise, lands used principally for the cultivationof tea, coffee, cocoa, rubber, cardamom or cinnamon and landsused for any purpose ancillary to the cultivation of such crops orfor the preparation of the same for the market are excluded fromthe definition of “private forest” by reason of sub-clause (B).EExplanation to Section 2(f)(1)(I)(B) further showed that lands usedfor the purpose of construction of office buildings, go-downs,factories, quarters for workmen, hospitals, schools andplaygrounds were deemed to be lands used for purposes ancillaryto the cultivation of such crops. Therefore, Section 2(f)(1)(i)(B)evidences that lands used principally for cultivation of certainFcrops and lands used for construction of buildings for the purposeof running and maintaining a plantation are excluded from thedefinition of “private forest”. Under Section 3 of the Vesting Actunder which private forests were to vest in the Government.[Para 29][563-D-H]GState of Kerala v Gwalior Rayon Silk Manufacturingand Weaving Co. 1974 (1) SCR 671; ParameswaraSastrigal K.S. v. State of Kerala & Ors 2008 2 ILR371; Bhawani Tea & Produce Co. Ltd. v. State of Kerala& Ors. 1991 (2) SCC 463 : [1991] 1 SCR 550; Gwalior H

Rayons Silk Mfg. (Wvg.) Ltd v. The Custodian of VestedForests, Palghat & Anr. 1990 (Supp) SCC 785;Malankara Rubber & Produce Co. v. State of Kerala &Ors. [1973] 1 SCR 399; State of Kerala v. PullangodeRubber & Produce Co. Ltd. (1999) 6 SCC 92 : [1999]3 SCR 1163 – referred to.

1.2 The State’s contention that as the respondents hadmentioned in its petition that a certain area was forest (since itwas so, by virtue of provisions of the Madras Act) therefore, doesnot preclude the latter’s contention that no vesting could takeplace; whether the lands were “forest” or cultivated plantationsor estates, for the purposes of Section 2(f)(1)(i)(B) of the VestingAct, especially whether they stood excluded from operation ofthat Act, had to be considered independently. [Para 34][567-F]

1.3 The judgment in Kunjanam Antony’s case enunciatedthe rule that where the Land Board arrives at a determinationabout the character of lands, under the KLR Act, that becomes apiece of evidence for the purposes of the Vesting Act. Therefore,it is no longer open for the State to argue that the Board’sdetermination or order, had little or no evidentiary value. In viewof the judgments of this Court, including Popular II’s case, theenunciation of the principle that “unless a contrary state of affairs”were shown to exist, the Board’s order “would have to be givendue weight” had to apply, and was correctly invoked by the HighCourt. [Para 35, 36][567-G; 568-D-E]

Kunjanam Antony v. State of Kerala (2003) 3 SCC 221: [2003] 1 SCR 967; State of Kerala v. MohammedBasheer (2019) 2 SCC 260; State of Kerala v. PopularEstates (2004) 12 SCC 434 : [2004] 5 Suppl. SCR 943– relied on.

1.4 The two reports: preliminary and final, filed by theCommissioner, in the first proceeding (instituted by therespondent in 1974 by two applications) were the nearest in pointof time, to the appointed date. The preliminary report, (filed on15.01.1976) discloses widespread cultivation of coffee, cardamom,rubber, areca nut, etc. The two reports are part of the record.

A

B

C

DE

F

G

H

AThe final report dated 12.09.1977 by the Commissioner recordedthat the Forest Range Officer, after inspection stated that “onlydisputed portions in Bit Nos. 1 to 7 had been demarcated andthat the other areas were cultivated”. The respondents contentionwas that this reflected the true factual position, coupled with theRange Officer’s memorandum filed before the Commissioner onB01.09.1977. [Para 37][567-F-G]

1.5 A combined reading of the materials, leads to theinference that a detailed inspection of the area took place. Onlythose areas that vested with the government were demarcatedby the survey party, attached with the Superintendent, LandCRecords. It was in these circumstances that the respondentsuccessfully urged before the High Court that what wasdemarcated was only 100 hectares and the others were notdemarcated since they were cultivated. This was borne out bythe final report. The possession with respect to 100 hectares ofDuncultivated forest lands was also covered by draft statement ofland furnished to the Board in proceedings under the KLR Act,which was the foundation for the Board’s order dated 04.11.1980.Both these documents confirmed that 100 hectares was vestedforest. The respondent had submitted that 533 acres was undercardamom cultivation; 120 acres under rubber plantation; 257Eacres under coffee plantation and that 155.9 acres was forest land;and 17.5 acres of were comprised of roads and buildings. Thesearguments found favour with the High Court. There is no glaringerror in the impugned judgment, having regard to thesecircumstances. [Para 38][569-A-D]

F

1.6 The tribunal entirely rejected the evidence of PW-1,the Forest Range Officer, who gave the memorandum to theCommissioner on 01.09.1977. The tribunal wholly discreditedand brushed aside the evidence of this officer and viewed it withsuspicion. This is clear from the repeated use of the phrase “magicGmoney” suggesting that PW-1 was devious and had been bribed.A reading of his deposition shows no such suggestion to him; nomaterial was placed on record that he was prosecuted for anoffence, nor were departmental proceedings initiated, formisconduct. [Para 39][569-E]

H

1.7 The other materials on record-the auditor’s balancesheets, the evidence of the auditor (PW-4), the deposition of themanager of the respondent (PW-5), who had worked since 1969onwards reinforce the respondent’s contentions that the largestpart of the area was cultivation for plantation crops. The tribunalunreasonably discarded these materials. The other documents,Settlement arrived at between the respondents and its workersafter closure on 25.6.1982 reveal that it had 80 permanent workersand 29 temporary workers on its rolls. Likewise, copies of incometax returns for various dates showed that income from theseestates was consistently reported, along with expenditure. Forthe year ending on 31.3.1968 income was reported as ` 81,319;for the year ending 31.3.1969 it was ` 95,707/-; the year ending31.3.1970 it was ` 1,12,524; and for the year ending 31.3.1971 itwas ` 1,38,918. The respondent was apparently depositingagricultural income tax and employees provident fund. It hadproduced correspondence with these statutory authorities, as wellas sales tax returns. [Para 40, 41][569-F-H; 570-A-B]

1.8 The title deeds of the predecessor-in-interest of thepartners of the respondents who had acquired the lands in 1963,show that large areas were shown as cardamon plantation. Therespondents had filed agricultural income returns and even in1970, it was producing coffee, rubber and cardamom. The factthat it had some labour trouble also supported its contention thatthe respondents’ plantation activities were on in full scale. Allthese materials, support the conclusions of the High Court, whichare based on plausible (and not an unreasonable) inference ofthe overall analysis of the evidence on the record. This court hascarefully considered the findings of the High Court while settingaside the order of the tribunal. The reasons which led the HighCourt to conclude that the tribunal’s findings called forinterference are merited and in accord with the material evidenceon record. This Court is therefore of the opinion that nointerference with the impugned judgment of the High Court iscalled for. [Para 42, 45][570-C-D; 572-A]

1.9 Where two plausible views on the conclusions that canbe drawn from facts on the record exist, this Court, in exercise AB

C

D

E

F

G

H

Aof its discretionary jurisdiction under Article 136 of theConstitution would not interfere with the findings of the HighCourt. [Para 43][570-E]

Pritam Singh v. The State 1950 SCR 453; Tirupati BalajiDevelopers Pvt. Ltd. v. State of Bihar (2004) 5 SCC 1 :B[2004] 1 Suppl. SCR 494; Jamshed Hormusji Wadia v.Board of Trustees, Port of Mumbai (2004) 3 SCC 214 :[2004] 1 SCR 483; Union of India v. GangadharNarsingdas Agarwal & Anr (1997) 10 SCC 305; JaiMangal Oraon v. Mira Nayak (Smt) & Ors (2000) 5SCC 141 : [2000] 3 SCR 1128; Taherakhatoon (D) ByCLrs. v. Salambin Mohammad (1992) 2 SCC 635;Popular Plantation v. State of Kerala 1991 Supp (2)SCC 720; State of Kerala v ACK Rajah 1994 Supp. (3)SCC 250 – referred to.

H

CIVIL APPELLATE JURISDICTION: Civil Appeal No.903 of2011.

From the Judgment and Order dated 05.12.2008 of the High Courtof Kerala at Ernakulam in M.F.A. No.108 of 2006 (B).

Pallav Sishodia, Sr. Adv., G. Prakash, Jishnu M. L., Mrs. PriyankaPrakash, Mrs. Beena Prakash, Advs. for the Appellants.

K. V. Vishwanathan, Sr. Adv., Raghanth Basant, Ms. Liz Mathew,Raghav Mehrotra, Apoorv Singhal, Advs. for the Respondents.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. This appeal by special leave challenges a judgment of the KeralaHigh Court[1], which allowed an appeal preferred by the respondent(hereafter called “Popular Estates”) and held that an area of slightlyover 402 acres (i.e., 100 hectares and 155.90 acres) vested in the Stateof Kerala (hereafter “the state”), and the rest of the land (of a total1534.40 acres) had to be treated as plantation, and thus, belonged to thesaid respondent.

2. Popular Estates became owners of 1534.40 acres of land. Thoselands were acquired by sale, by M/s Popular Automobiles, a registeredfirm, through four registered deeds executed in 1963. These lands fell toPopular Estate’s share upon partition of the firm’s assets. The KeralaPrivate Forests (Vesting and Assignment) Act, 1971 (hereafter “theVesting Act”) came into force with effect from 10.5.1971. Under Section3 of the Vesting Act, all private forests vested in the State Government.The Act was challenged before the Kerala High Court, which struck itdown, by a judgment, in 1972. That judgment was reversed by this Court’sruling in 1973[2].

3. The forest authorities attempted to take possession of largeareas of land occupied by Popular Estates, arguing that they were privateforests and had vested in the state, under the Act. Popular Estates movedtwo Original Applications[3] before the Forest Tribunal (“tribunal”hereafter) under Section 8 of the Act claiming a declaration that no part 1 In MFA 108/2006 decided on 05.12.2008

2 State of Kerala v Gwalior Rayon Silk Manufacturing and Weaving Co.1974 (1) SCR671

3 O.P Nos. Nos. 242 & 243/ 1974

A

B

C

DEF

G

H

Aof the estate consisting 1534.40 acres was liable to vest in the state.Since it was being cultivated and hence, it was exempt under the provisionsof the Vesting Act. The state opposed those applications. The tribunalappointed a commissioner to inspect the entire area and report about itsstate to it. The commissioner after a preliminary inspection was of theview that a detailed survey of the land was necessary as most of theBland was situated on hills, and therefore, inaccessible. Private surveyors,appointed to survey the land were unable to complete the work. Thetribunal directed Forest Department Survey Officers to survey the lands.The tribunal, thereafter dismissed the Original Applications[4]. It madecritical comments about the manner in which the surveyors had madeCthe report and recorded that:

“This exclusion by the forest officials, may be due to the factthat the magic money lulled them to sleep over the rights ofthe Government or may be due to the fact that the claimoriginally put forward by the forest officials was false. NeitherDway it is not very complimentary to the respondents here or tothose officials concerned. It is for the Government to makenecessary immediate enquiry in this matter through someofficial, other than Forest Department official, if theGovernment so think and ascertain whether any area whichlegitimately come under the classification of private forestEand which had vested in the Government besides bits 1 to 7have been excluded by the forest officials or by the forestsurvey officials. On the basis of the Commissioner’s reportand the facts mentioned by him, I am inclined to think thatprima facie it appears that areas which should really be vestedFforest have been excluded, when the claim was confined to100 hectares.”

After orders of the tribunal, forest authorities attempted to takepossession of the land. In the meanwhile, the state also issued notificationno. 4713/1977 notifying 100 hectares of the respondent estate as privateGforest, based on survey undertaken by the forest department. PopularEstates filed two appeals[5] impugning the tribunal’s orders, before theHigh Court. These were dismissed; the special leave petition againstthose orders too, were dismissed. Popular Estates then filed civil suits[6]

4 By order dated 15.02.19785 MFA 230 & 231/1978H6 Suit Nos. 69 & 71/ 1987 before the civil court Munsif’s Court, Hosdurg 6 Suit Nos. 69 & 71/ 1987 before the civil court Munsif’s Court, Hosdurg claiming that the state be permanently injuncted from taking possession.Initially, the civil court refused to register the plaint on grounds ofmaintainability, later, the suits were entertained on the intervention of theHigh Court in civil revision.

4. On 22.7.1987, the Custodian and Conservator of Vested Forestsissued a notification (Ex. A-27) under Section 6 of the Act demarcating324 hectares of land belonging to Popular Plantation as vested forestsunder the Act. This notification was challenged in writ proceedings[7].Popular Plantation also withdrew the two suits. Their writ petitions weredismissed on the ground that the respondents had alternate remedyavailable before the tribunal. In these circumstances, Popular Estatesfiled applications[8] before the tribunal under Section 8 of the Vesting Actchallenging the notification dated 22.07.1987 and seeking a declarationthat the property covered by the applications was not private forest andhad not vested in the state government. Simultaneously, they also filed awrit appeal[9] against the order dismissing their writ petition. The writappeal was admitted subject to the condition that Popular Plantationwithdraw its original applications pending before the tribunal, and uponcomplying with the same, they approached the tribunal as directed, byfiling original applications in 1990[10] challenging the state’s jurisdiction toissue the notification after a long lapse of time. Popular Plantation alsofiled an appeal before this court, which was disposed of[11]. This courtobserved that Popular Plantation had the liberty of appearing and pursuingtheir application before the tribunal, confining the challenge to the validityof the notification “on the grounds set out in the writ petition filed inthe High Court”. In the event the tribunal held it had no jurisdiction,liberty was given to file an appeal and/or a writ petition before the HighCourt to challenge the notification “but only on the said grounds”.

5. Popular Estates amended its original applications pending beforethe tribunal (OA Nos. 166 & 167/1990) and also filed a writ petitionbefore the High Court[12] challenging the validity of the notification dated 7 Before the Kerala High Court in OP No. 7498/ 1987

8 Original Applications Nos. 28 & 29/ 1988

9 Before the Kerala High court in WA No. 165/1989.

10 Original Applications Nos. 166 & 167/ 1990

11 Civil Appeal No. 200/ 1991 disposed by order dated 11.1.1991 [reported in PopularPlantation v. State of Kerala, 1991 Supp (2) SCC 720]

12 OP No. 4751/ 1993

A

BC

D

EF

G

H

A22.7.1987. The tribunal dismissed[13] the two original applications holdingthat in its earlier order it had only dealt with the status of 100 hectares ofthe land and, therefore, with regard to rest of the land the State wasempowered to issue a fresh notification. This order was challenged inan appeal before the High Court[14]. By a common judgment[15] the HighCourt allowed the appeal and writ petition, holding the notification to beBvalid only in respect of the 100 hectares of vested forest. It was heldthat there was no vesting so far as the rest of the land was concerned.The High Court also directed the Custodian of Vested Forests todemarcate the boundaries of the certain extent under Section 6 of theAct and restore possession of the remaining extent of the properties toCPopular Plantation.

6. The state appealed to this court, by special leave. The appeal[16]was decided by a judgment[17] dated 04.11.2004 (hereafter referred to as“Popular-II”). This court, in Popular-II noticed that the High Courthad proceeded on the basis that the order made by the Taluk Land BoardDin a land ceiling case pertaining to Popular Plantation would amountto res judicata. A draft statement under the provisions of the KeralaLand Reforms Act, 1963 (hereafter, “KLR Act”) was filed. Section 81of the KLR Act exempted private forests and plantations. Rule 10 ofthe Kerala Land Reforms (Ceiling) Rules, 1970 prescribed that TalukLand Boards were to prepare a draft statement of lands to be surrenderedEand serve copies of such drafts on persons interested in the lands. In thedraft statement prepared by the Taluk Land Board (hereafter, “theBoard”), Popular Estates was shown to hold an extent of 1576-73-257acres of land, of which 1537-25-645 acres fell under the exemptedcategory, and that Popular Estates was eligible to retain the balanceFextent within the ceiling area. The Board concluded[18] that there was nosurplus land to be surrendered to the state. The state government did notchallenge the declaration made by the Board but sought to initiateproceedings under Section 85(9-A) of the KLR Act, by issuing noticedated 18.05.1992 for reopening the final order of the Taluk Land Board.That notice had been challenged by Popular Estates by their civil revisionG13 By order dated 30.10.199214 MFA No. 72/ 1993

15 Dated 07.04.1994 the High Court allowed MFA No. 72/1993 and writ petition OPNo. 4751/1993

16 C.A 7111/199917 State of Kerala v. Popular Estates, (2004) 12 SCC 434H18 Order of Taluk Land Board dated 04.11.1980.

petition[19] before the Kerala High Court by which further proceedingswere stayed. Based on a previous judgment rendered in KunjanamAntony v. State of Kerala[20 ]this court held that the Board’s determinationcould not operate as res judicata, but would be a piece of evidence. Thiscourt remanded the matter back to the tribunal.

7. The tribunal re-appreciated the evidence on the record asrequired by this court and rejected Popular Estates’ appeal[21]. Noticingthat the burden was upon Popular Estates to establish that the disputedproperties were not private forests but were cultivated as plantations,the tribunal observed that in terms of the Vesting Act, especially Section2(f) and its various components, the first requirement was to considerwhether the lands or any part of the lands fell within the purview ofthe Madras Preservation of Private Forests Act, 1949 (hereafter, “theMadras Act”) which was immediately in force before the Vesting Actwas enacted. It was noticed that the Madras Act applied to all privateforests in Malabar and south Kanara having a contiguous area of 100acres. The disputed properties were situated at a place withinerstwhile Malabar district and the tribunal took note of the Range Officer’sevidence (RW-1) which suggested that the Madras Act applied to thedisputed property. The tribunal’s order also took into account Ex. A-37,one of the title deeds which referred to the permission granted by theDistrict Collector to sell the property and held that such permission wasnecessary having regard to the provisions of the Madras Act. Relyingon Section 2(f)(1)(i)(B) of the Vesting Act, the tribunal stated that thisprovision takes lands which were principally used for the cultivation oftea, coffee, cocoa, rubber, cardamom or cinnamon and lands used forany purpose ancillary to such cultivation, out of its coverage. In thisregard Popular Estates had examined PW-5 and relied on a fewdocuments to establish that the properties were cultivated with rubber,coffee and cardamom. PW-5 was the manager of the plantation: hisservices began in 1969 as Office Assistant. He stated, in his evidencethat at that stage (in 1969), 1130 acres of the estate was plantation andthat 160 acres were also planted before commencement of the Act. Thetribunal brushed aside this evidence, concluding that nothing tangibleemerged from it and that Popular Estates necessarily had to prove thatthe disputed properties were principally cultivated with rubber, coffee or 19 CRP No. 1409/ 1992

20 (2003) 3 SCC 221

21 By its order dated 25.05.2005

A

B

C

D

E

F

G

H

Acardamom. The tribunal faulted PW-5’s evidence as not being precisewith respect to the extent of properties which had been planted with thedifferent crops. It also faulted his evidence on the ground that he hadlimited knowledge since he had to deal only with the estate when hebecame an Estate Supervisor in 1974-75; it was concluded that he didnot have any direct knowledge with respect to the nature or extent ofBcultivation. The tribunal considered Ex. A37-A41 holding that they weretitle deeds. It was noted that Ex. A41 was executed in 1972, i.e. afterthe appointment date; and being a photocopy - was in any caseinadmissible. The other documents had come into existencebefore the appointed day, however, their recitals did not disclose expresslyCthat before the appointed date, the properties were cultivated with rubber,coffee and cardamon. The tribunal noted that the schedules in two ofthe documents - Ex. A-37 and 38 - showed that the properties werecultivated with cardamom. These were to the extent of 72.762 hectaresand 89.92 acres, but were not proved to be land within the disputedproperties.D

8. The tribunal noted that this court’s holding was that the Board’sorders were not binding on the authorities under the Vesting Act. Itproceeded to analyse Ex. A-50 & 51 which was the draft statement oflands surrendered to the government under the KLR Act and the certifiedcopy of the order of the Taluk Land Board, respectively. In this context,Ethe tribunal considered Objection no.7, that Popular Automobiles owned1530.4 acres in Maloth village and that out of this, the private forestcoming within the purview of the Madras Act - an extent of 1127.50acres - had been converted into plantation. The tribunal discarded theBoard’s findings as inconclusive.F9. The tribunal further rejected the evidence of PW-1, the Range F9. The tribunal further rejected the evidence of PW-1, the RangeForest Officer, who had deposed before the earlier tribunal proceedingsin O.A. 242 & 243/1974 to say that the dispute was confined to 100hectares. In this regard, the tribunal relied firstly, upon certainobservations of this court in Popular-II and secondly, that PW-1 hadGno authority to admit any fact to the detriment of the state. Likewise, thetribunal rejected other documentary evidence in the form of Ex. A-11and A-14 as well as Ex. A-6 and A-7 as insufficient to prove that thedisputed properties were principally planted with rubber, coffee orcardamom. In the final analysis, the tribunal went by the fact that thedisputed properties were covered by the Madras Act immediately beforeHthe appointed date. It consequently held that Popular Estates failed to bring their case under any of the clauses to Section 2(f)(1)(i) of theVesting Act (i.e. the exclusionary part), and therefore, failed to provethat any part of such properties were Estates meant for the cultivationof coffee, rubber, cardamom etc.

10. Aggrieved by the tribunal’s order, Popular Estates preferredan appeal. The High Court in the impugned judgment recounted theentire proceedings particularly the judgement of this court in Popular-IIand the decision in Kunjanum Anthony (Supra). It gave certain weightand credence to the observations and findings of the Board and heldthat the land ceiling proceedings were not res judicata in theproceedings under the Vesting Act but constituted a valid piece ofevidence. The impugned judgement relied upon the judgmentin Kunjanum Antony’s case (supra) that until a contrary state of affairsis shown to exist, the order of the Board would have to be given dueweight. The High Court observed that the excess land automaticallyvests with the state like in the private forests vesting under Section 3 (1)of the Vesting Act. The purpose of or intent of both enactments is todistribute excess lands to landless agricultural labourers. The High Courtwas of the view that the state never alleged that the Board’s order wasobtained under fraud but rather that it was passed after considering allstatutory formalities. The Board, noted the High Court, rendered findingswith respect to the nature of the land as on the appointed date of theKLR Act, i.e., 01.01.1970. The appointed date for the Vesting Actwas 10.05.1971. The High Court held that there is not much differencebetween the two dates in point of time and that there was nothing onrecord to suggest that the land usage had changed in between.Proceeding with its analysis on the evidence on record, the Court tooknote of the title deeds (Ex. A-37 to A-40) and the balance sheets andprofit and loss account (Ex. A-59 to A-64) to show that Popular Estateswas earning agricultural income from the land before the appointed date,and that it maintained regular balance sheet, and profit and loss account.The High Court was of the opinion that the notification issued on08.07.1977 ultimately led to the state establishing that only 100 hectareswere private forest. It was also stated that Ex. A-27, i.e., the notificationdated 22.07.1987, was issued after demarcating the land under Section6 and taking those 100 hectares as included in the 1534.40 acres purchasedby the firm after nine years when legal proceedings were pending. Ex.A-65 is the accounts ledger for 1970-71 which showed that there wascultivation in the relevant accounting year. There were other letters in A

B

C

D

E

F

G

H

Athe form of exhibits, i.e., Ex. A-66, A-69 and A-70 which showed thatLabour authorities such as the Labour Commissioner and Provident Fundauthorities were involved with respect to labour unrest in the estate. ExhibitA-67 and A-68 were addressed to the Agricultural Income Tax Officerand Ex. A-71 and A-72 were letters addressed to the Sales Tax Officer.These also showed that some labour disputes in the estate starting fromB1983 existed and that production had slowed down. It was only afterthese that Ex. A-27, notification dated 22.08.1987 was issued.

11. The High Court was of the opinion that all these documentsclearly showed that the entire area other than the 100 hectares of landearlier notified by notification dated 08.07.1977 were not private forestsCon the appointed date but exempted in view of the definition of privateforest. The court also noted the location sketch given by PW-3 theCommissioner, a copy of the memorandum submitted before the AdvocateCommissioner by forest officials (Ex. A-4), and the reports of theCommissioner (Ex. A-6 and A-7), all of which revealed that only 100Dhectares in the entire lands were private forest on the appointed date.The final report Ex. A-7, Ex A-8 and A-9 (location sketches) also showedthe details of the survey by the forest officials. All these were producedby the Commissioner. Also, the demarcated areas by the officialsurvey ascertained the extent by actual theodolite survey. The High Courtobserved that all these showed only the disputed area marked as Bits 1-E7; the plan was also exhibited as Ex. C-3. The High Court took intoaccount the evidence of the then Range Officer (PW-1), theCommissioner (PW-3), PW-4 & PW-5 – all of which pointed that thedisputed area covered by Ex. A-7 was plantation on the date when theact came into force. F

12. The High Court then relied on the full bench decision of theKerala High Court in Parameswara Sastrigal K.S. v. State of Kerala& Ors.[22]. That judgment observed that if the land vested in thegovernment as a private forest on the appointed date, the owner cannotthereafter alienate or transfer or assign the land for certain. However, ifGit is not a private forest vested in the government there is no impedimentfor the title holder to transfer the land. The Court also took note of thejudgment of this court in Bhawani Tea & Produce Co. Ltd. v. State ofKerala & Ors.[23]where it was observed that:

22 2008 2 ILR 371H23 1991 (2) SCC 463

“The reverse question is involved in this case, namely if theland was not private forest but plantation under the M.P.P.F.Act and was similarly not private forest but plantation on10.5.1971, it could not, without anything more, become privateforest thereafter even though it was not under the sameefficient or successful plantation as it was earlier. Whetherthe plantation yielded any crop or not was for the owners todecide and not by the authorities under the Vesting Act, unlessit did make specific provisions to cover such a situation.”

13. Taking note of these circumstances the court concluded thaton the appointed date, except the area of 155.9 acres of land, the rest ofthe lands covered by Ex. A-27 were not private forest but plantationsfalling within the exclusions under Section 2(f)(1)(i)(A) to (D) of theVesting Act. The High Court finally held that 1127.50 acres of land wereplantation and 100 hectares, i.e. 247 acres were private forest. Sincethere was no claim with respect to 155.90 acres of land nor any proofthat it was converted into plantation on the appointed date, that extentwas also held to vest in the state. However with respect to the rest, i.e.1127.50 acres minus 155.90 acres of land, the appeal wasallowed and Ex.A-27 notification to that extent was set aside.

Submission of parties

Submission of parties

14. Mr. Pallav Sisodia, learned senior counsel argued on behalf ofthe state that the impugned judgement requires interference as it is basedon a misappreciation of the facts on record. Learned counsel urged thatthe primary onus to establish that the extent of land notified by the statewas not a private forest covered by the Vesting Act lies upon the partyor individual asserting it to be so. Thus, the burden lay uponthe appellant before the High Court, i.e. Popular Estates to provethat the entire extent of 1534.40 acres of land were in fact undercultivation as plantation. Mr. Sisodia submitted that before 10.05.1971,Popular Estates was not the owner of the forest land; two partnershipshad formed since the earlier partnership was dissolved by deed dated07.01.1972 produced as Ex. A-41. In these circumstances PopularEstates was not entitled to maintain the original application sincethe vesting took place on 10.05.1971 and therefore, as the subsequentpurchaser could not agitate with respect to the vesting. It was allegedthat the High Court principally relied on Ex A-50 and A-51proceedings under the KLR Act or the determination of the Land Board AB

C

D

EF

G

H

Ato allow the appeal. In this regard, learned counsel stressed that thedecision of this court in Popular-II was clear that such determinationsby the Board for an entirely different purpose could not constitute resjudicata by giving undue weight to that piece of evidence and ignoringthat the other evidence led before the tribunal was utterly inadequate;the appellant state urged that the High Court fell into error.B

15. The State argued that the High Court erred in holding that Ex.A-6 and A-7 showed that only 100 hectares were private forest. In thisrespect, learned counsel highlighted the observations of the tribunal thatthe said two documents do not prove the fact that the rest of the landswere in fact cultivated with plantation crops. He also relied upon theCdeposition of PW-3 (Commissioner) who had stated that he could notascertain the planted areas, the number of plants or the age of suchplants in his first inspection and that he had confined his second inspectionto Plot numbers 1 to 7. Learned counsel emphasised that by Ex. A-6 andA-7 the Commissioner had reported that a thick forest existed and hadDhighlighted the need to conduct a detailed survey. It was urged that theCommissioner had visited the area in December 1975, long after thedate of vesting, i.e. 10.05.1971 and therefore, the report was notdeterminative. It was further argued that the High Court completelyignored examining whether the plantations were registered under theCoffee Act, the Rubber Act or the Cardamom Act which now fall withinEthe purview of the Spices Board under the Spices Board Act, 1986 orwhether they had any valid registration in law. In these circumstancesthere could have been no conclusive finding that plantations existed, aswas asserted by Popular Estates.

16. Learned counsel relied upon the pleadings made by PopularFEstates in the earlier rounds of litigation, especially in the first writ petitionwhich had challenged the enactment of the Vesting Act, in which anassertion was made that more than 1000 acres was forest area. He alsosubmitted that a comparison of the respondent’s pleadings clearlyshowed that there were glaring inconsistencies in this regard. It wassubmitted that in the writ petition filed at the earliest point of time inG1971, the total plantation area mentioned was 923 acres and that 682.47acres grasslands were leased for dairy purposes. According to that writpetition, the total extent of land was 1589.47 acres. In another writ petitionfiled subsequently, another version that the plantation area was only228.55 acres was asserted, in relation to one block; 780.34 acres wasHleased out for dairy purposes. A total of 573.69 acres of balance land

were mentioned out of which 194.44 acres were plantation in one area,and the entire plantation area in both parcels of land put together in thiswrit petition did not exceed 425 acres. It was highlighted that if one tookinto account these pleadings, a conflicting picture emerged. On an overallanalysis of the pleadings, the nature of oral testimony, over reliance onthe suspect testimony and the deposition of PW-1, a Forest range officerwho had no business to depose against the state and PW-5, whoseevidence did not inspire confidence with respect to the specifics regardingthe area of cultivation, could not have led the High Court to reasonablyconclude that 1127 acres were in fact cultivated, based upon on almostsimilar finding of the land board. It was also urged that the High Courtfailed to see that the burden of proving that the lands claimed by PopularEstates as not covered by forest, remained unproved and undischarged.Consequently, the High Court, even on an independent analysis of theevidence could not have allowed the appeal.

17. Mr Sisodia concluded his arguments by saying that the primaryobjective of the Vesting Act is to ensure that large chunks of privateforests held by a few individuals or entities, but which constituted valuableeconomic resource which required redistribution in terms of DirectivePrinciples of State Policy, were made over to those sections of societywho did not own any land. The impugned judgement therefore failed innoticing the salutary purposes of the Act by holding that Ex. A- 27 couldbe upheld only to the extent of 155.90 acres and in setting aside therest.

18. It was argued on behalf of the respondent, Popular Estates,that the order of the High Court impugned in this case, should not beinterfered with. Mr K.V. Viswanathan, learned senior counsel appearingon behalf of Popular Estates, argued that the judgement in Popular-IIdeclared that even though the determinations of Boards could not betreated as res judicata in proceedings under the Vesting Act,nevertheless, they had to be given due weight. They carried credibilityas long as the basis of such decision indicated factual investigation andthe order was not under a cloud. In the present case too, there was noreason for the tribunal to doubt or question the Board’s findings.Reiterating the nature of the KLR Act and the objectives of the VestingAct, it was submitted that both enactments observed common publicgood, namely determination of either excess lands or uncultivated forestlands, but not plantation; and ensuring redistribution to deservingcategories of persons.

A

B

C

D

E

F

G

H

A19. Referring to the record, Mr. Vishwanathan argued that theHigh Court took all evidence: oral and documentary, into consideration.He stressed that not only the survey by the Commissioner, but also surveyconducted by Forest range officers and the report of such officialsconfirmed that the entire area was inspected, and only those portions -covered in Bits 1 to 7 - were found to be forest lands, and consequentlyBdemarcated. There was general agreement that the rest of the landswere not forest land, but were cultivated for rubber, coffee and cardamom.Learned counsel relied on Ex A-7, Ex A-8 and Ex. A-9 (location sketch)and the commissioner’s sketch as well. The senior counsel further arguedthat Ex. A-59 to A-64 proved that Popular Estates was earning agriculturalCincome from the lands, much prior to the appointed date. Thesedocuments also established that it maintained regular balance sheet, andprofit and loss accounts.

20. Popular Estates relied on the depositions of PW-1 and PW-5.Commenting on the statement of PW-5, learned senior counsel urgedthat the tribunal wrongly rejected his testimony. It was argued that heDwas an employee, though not working as a Superintendent when hejoined in 1969, that alone could not have been a ground to reject hisevidence.

21. It was argued next that under Section 8A of the Vesting Act,an appeal lay, as a matter of right, to the High Court against the order ofEthe tribunal. In terms of Section 8A (3), the High Court could confirmcancel, or set aside the decision of the tribunal appealed against, remandthe matter, or pass such orders as it deemed fit. In these circumstances,the High Court had opportunity to undertake a full margin of appreciationof the entire evidence and arrive at its own conclusions. In support ofthis, learned counsel relied upon the judgment of this Court in State ofFKerala v ACK Rajah[24] in which the Court had observed that in decidingthe appeal under Section 8A, the High Court has very wide powerswhich are not hedged by any limitation. The High Court could, in anygiven matter consider the correctness and propriety of the tribunal’sview under appeal, which arose for its consideration; it could independentlyGconsider the evidence and satisfy itself whether the findings of the tribunaland its conclusions were proper. It was contended that in thesecircumstances, the view of the High Court based upon its overallappreciation of the circumstances was sound and just and did not callfor interference.H24 1994 Supp. (3) SCC 250

22. It was reiterated by the learned counsel that the decision inKunjanom Antony (supra) and Popular Estates-II are binding on thequestion of law that though the decision of the Land Board under theKLR Act cannot be conclusive as res judicata, nevertheless it hasconsiderable evidentiary weight and that unless the contrary state ofaffairs is shown, the Board’s order would have to be given due weight.Therefore, since the Board’s order was not under cloud or under appeal,prima facie, due weight had to be given. Unfortunately, the tribunal entirelydiscarded the Board’s determination which was based on the appreciationof the objective facts. Counsel highlighted that in the present case, theinspection undertaken was in the context of assertions made in the mid-1970s. The determination of the Board was decisive. Therefore, it hadconsiderable evidentiary weight and could not be brushed aside as amere piece of paper.

23. It was urged that the preliminary and final report of theCommissioner in the earlier proceedings instituted by Popular Estates in1974 through its two applications were also earliest in point of time. Thepreliminary report, Ex. A-6 which was filed on 15.01.1976 shows thatthere was extensive cultivation of coffee, cardamom, rubber, areca nut,etc. Learned counsel invited the attention of this court to the concerneddocuments. He submitted that the final report, Ex. A-7 furnished by theCommissioner on 12.09.1977 recorded what was observed by the ForestRange Officer, i.e. only that disputed portions in Bit Nos. 1 to 7 had beendemarcated and that the other areas were cultivated. The counselunderlined that these reflected the true ground reality. Coupled with theRange Officer’s memorandum (Ex.A-4) which was furnished beforethe Commissioner on 01.09.1977, it was clear that the areas wereinspected in detail and that only those areas that vested with thegovernment were demarcated by the survey party attached with theSuperintendent, Land Records.

24. It was urged that what was demarcated was only 100 hectaresand the other areas were not demarcated since they were cultivated.This was endorsed in the final report, Ex. A-7. It was submitted that thepossession with respect to 100 hectares of uncultivated forest lands wasalso covered by draft statement of land dated 24.01.1979, Ex. A-50which was furnished to the Board in proceedings under the KLR Act.This document, Ex. A-50 was the basis for the Board’s order dated04.11.1980 (Ex. A-51). These two confirmed that only 100 hectares AB

C

DE

F

G

H

Awas vested forest. Furthermore, learned counsel submitted that an extentof 533 acres was under cardamom cultivation; 120 acres under rubberplantations; 257 acres under coffee plantation; 155.9 acres was forestland; and 17.5 acres of roads and buildings. Given these circumstances,the reliance by the High Court on these materials to conclude that only100 hectares and 155.90 acres was forest land that vested with the stateBand that the rest was under cultivation, is unexceptionable.

25. Learned counsel submitted that the tribunal fell into error inrejecting the evidence of PW-1 - the Forest Range Officer, who gavememorandum to the Commissioner on 01.09.1977. Somehow, theproceedings in the tribunal and the evidence of this officer were alwaysCviewed in a coloured manner as was evident from the oft repeated phraseof “magic money”, insinuating that PW-1 had been bribed. It wassubmitted that there was no such suggestion to him nor was any materialplaced on record that he was criminally prosecuted or proceeded withdepartmentally. Learned counsel likewise submitted that the tribunal erredDin overlooking and rejecting the evidence on record such as the auditor’sbalance sheets (Ex. A-57 to A-64) as well as the auditor’s deposition asPW-4, and the deposition of the manager of Popular Estates (PW-5 -who had worked since 1969, though not a Superintendent but later havingregard to these accounts). It was also highlighted that the title deeds ofthe predecessor-in-interest of the partners of the Popular Estates whoEhad acquired the lands in 1963 clearly showed that considerable areaswere shown as cardamon plantation. The Popular Estates had filedagricultural income returns and even as on 1970, it was producing coffee,rubber and cardamom. The fact that it had some labour trouble alsosupported its contention that Popular Estates’ plantation activities wereFon in full scale.

Relevant provisions of law

26. Before proceeding with the discussion of merits of this case,it would be necessary to extract the relevant provisions of law, whichthe High Court took into consideration, and which the parties relied on.GThe first enactment relevant in this regard, is the Madras Act, of 1949.It applied[25], to private forests in the districts of Malabar and South Kanara(now Dakshina Kannada district of Karnataka) having a contiguous areaof 100 acres or more. The Act also applied[26]to forests in estates, falling 25 Section 1 (2) (i)H26 Section 1 (2) (ii).

under the Madras Estates Land Act, 1908. “Forest” was defined asincluding “waste or communal land containing trees and shrubs,pasture land and any other class of land declared by the StateGovernment to be a forest by notification”[27]. By virtue of Section 3(1), no owner of any forest could, without previous sanction of the DistrictCollector, sell, mortgage lease or “otherwise alienate the whole orany portion of the forest.”

27. The second enactment in question, is the KLR Act. It defined[28]private forests as meaning:

“a forest which is not owned by the Government, but doesnot include-

(i) areas which are waste and are not enclaves within woodedareas;

(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, areca nut,coconut, cashew or other fruit-bearing trees or are cultivatedwith any other agricultural crop;

Section 81 provided for exceptions, and enacted inter alia thatprovisions of the chapter relating to vesting of excess did not apply toprivate forests. The relevant parts of Section 81 are extracted below:

“81. Exemptions. - (1) The provisions of this Chapter shallnot apply to - (a) lands owned or held by the Government of Kerala or theGovernment of any other State in India or the Government ofIndia or a local authority or the Cochin Port Trust or anyother authority which the Government may, in public interest,exempt, by notification in the Gazette, from the provisions ofthis Chapter.

**********************

*********

27 Section 2 (a)

28 By Section 2 (47)

A

B

C

D

E

F

G

H

A(b) lands taken under the management of the Court of Wards:Provided that the exemption under this clause shall cease toapply at the end of three years from the commencement ofthis Act;

(c) lands comprised in mills, factories or workshops and whichBare necessary for the use of such mills, factories or workshops; (d) private forests; (e) plantations; (f) cashew estate CExplanation. - For the purpose of this clause “cashew estate”shall mean dry land principally cultivated with not less than150 cashew trees per hectare.]

(g) ****************

*******”

D28. By Section 2 (a) of the Vesting Act, 10.05.1971 was deemedas the “appointed date.” Section 2(f) of the Vesting Act defined“private forest” in the following terms:

“(f) “private forest” means-

(1) in relation to the Malabar district referred to in subsectionE(2) of Section 5 of the States Reorganisation Act, 1956 (CentralAct 37 of 1956)-

(i) any land to which the Madras Preservation of PrivateForest Act, 1949 (Madras Act XXVII of 1949), appliedimmediately before the appointed day excluding- F(A) lands which are gardens or nilams as defined in the KeralaLand Reforms Act, 1963 (1 of 1964); (B) lands which are used principally for the cultivation oftea, coffee, cocoa, rubber, cardamom or cinnamon and landsused for any purpose ancillary to the cultivation of such cropsGor for the preparation of the same for the market.

Explanation.-Lands used for the construction of officebuildings, godowns, factories, quarters for workmen,hospitals, schools and playgrounds shall be deemed to belands used for purposes ancillary to the cultivation of suchHcrops;

(C) lands which are principally cultivated with cashew orother fruit bearing trees or are principally cultivated withany other agricultural crop and (D) sites of buildings and lands appurtenant to and necessaryfor the convenient enjoyment or use of, such buildings;

(ii) any forest not owned by the Government, to which theMadras Preservation of Private Forest Act, 1949 did notapply, including waste lands which are enclaves withinwooded areas.

(2) in relation to the remaining areas in the State of Kerala,any forest not owned by the Government, including wastelands which are enclaves within wooded areas.

Explanation.- For the purposes of this clause, a land shall bedeemed to be a waste land notwithstanding the existencethereon of scattered trees or shrubs.”

29. Section 2 (1) (f) of the Vesting Act defines “private forest”, inrelation to Malabar District. Section 2(f)(1)(i) says that “private forest”means any land to which the Madras Act applied immediately beforethe appointed day, viz., 10.05.1971. It thereafter, enacts that certain landsare excluded from the definition of “private forest” falling under sub-clauses (A) to (D). Lands, which are gardens or nilams (defined in theKLR Act, 1963), are excluded from the definition of “private forest”under the Vesting Act under sub-clause (A). Likewise, lands usedprincipally for the cultivation of tea, coffee, cocoa, rubber, cardamom orcinnamon and lands used for any purpose ancillary to the cultivation ofsuch crops or for the preparation of the same for the market are excludedfrom the definition of “private forest” by reason of sub-clause (B).Explanation to Section 2 (1) (i) (B) further showed that lands used forthe purpose of construction of office buildings, go-downs, factories,quarters for workmen, hospitals, schools and playgrounds were deemedto be lands used for purposes ancillary to the cultivation of such crops.Therefore, Section 2 (1) (i) (B) evidences that lands used principally forcultivation of certain crops and lands used for construction of buildingsfor the purpose of running and maintaining a plantation are excludedfrom the definition of “private forest”. Section 3 of the Vesting Act underwhich private forests were to vest in the Government said:

A

B

C

D

E

F

G

H

A“3. Private forests to vest in Government. -(1) Notwithstandingany thing contained in any other law for the time being inforce, or in any contract or other document, but subject tothe provisions of sub-section (2) and (3), with effect on andfrom the appointed day, the ownership and possession of allprivate forests in the State of Kerala shall by virtue of thisBAct, stand transferred to and vested in the Government freefrom all encumbrances, and the right, title and interest of theowner or any other person in any private forest shall standextinguished.

A

(2) Nothing contained in sub-section (1) shall apply in respectCof so much extent of land comprised in private forests held byan owner under his personal cultivation as is within the ceilinglimit applicable to him under the Kerala Land Reforms Act,1963 [1 of 1964] or any building or structure standingthereon or appurtenant thereto. Explanation. For theDpurposes of this sub-section, ‘cultivation’ includes cultivationof trees or plants of any species.

(3) Nothing contained in sub-section 1 shall apply in respectof so much extent of private forests held by an owner under avalid registered document of title executed before the appointedEday and intended for cultivation by him, which together withother lands held by him to which Chapter III of the KeralaLand Reforms Act, 1963, is applicable, does not exceed theextent of the ceiling area applicable to him under section 82 ofthe said Act.

F(4) Notwithstanding anything contained in the Kerala LandReforms Act, 1963, private forests shall, for the purposes ofsub-section (2) or sub- section (3), be deemed to be lands towhich chapter III of the said Act is applicable and for thepurposes of calculating the ceiling limit applicable to anowner, private forests shall be deemed to be ‘other dry lands’Gspecified in Schedule II to the said Act.”

30. Section 4 of the Vesting Act provided that private forests afterbeing vested in the state were to be deemed to be reserved forests, andSection 5 provided for eviction of persons in unauthorised occupation ofany such private forest. Section 6 provided for demarcation of boundariesHof the private forests vested in the government by the Custodian.

Analysis and Conclusions

31. The definition of private forest given in Section 2(f) of theVesting Act and Section 2(47) of the KLR Act were considered by thiscourt in Gwalior Rayons Silk Mfg. (Wvg.) Ltd v. The Custodian ofVested Forests, Palghat & Anr[29]. The lands involved in that case wereforests as defined in the Madras Act and continued to be so when theVesting Act came into force in 1971. It was observed that the definitionof private forests applicable to the Malabar district was not general interms but limited to the area and lands to which the Madras Act applied,and exempted therefrom land described under sub-clause (A) to (D). Itwas held that the previous decision of this court in Malankara Rubber& Produce Co. v. State of Kerala & Ors.[30 ]and the earlier decision inState of Kerala v. Gwalior Rayons Silk Mfg. (Wvg.) Ltd[31] (supra)wasa “ a judicial recognition of the distinction between privateforest in Travancore-Cochin area in Kerala State and theprivate forest in Malabar district. This distinction by itself issufficient to dispel the anomalies suggested by counsel forthe appellant. Look at the definition. Sub-clause (A) refers togardens or nilams as defined in the KLR Act. ‘Garden’ meanslands used principally for growing coconut trees, arecanuttrees or pepper vines or any two or more of the same. ‘Nilam’means lands adapted for the cultivation of paddy. Sub-clause(B) deals with what may be called plantation crops, cultivationof which in the general sense would be cultivation ofagricultural crops. Such agricultural crops are by namespecified. Lands used for any purpose ancillary to suchcultivation or for preparation of the same for the market arealso included thereunder. Next follows sub-clause (C). It firstrefers to lands which are principally cultivated with cashewor other fruit-bearing trees. It thus refers to only the fruitbeating trees. It next refers to ‘lands which are principallycultivated with any other agricultural crop. If the legislaturehad intended to use the term ‘agricultural crop’ in a widesense so as to take within its fold all species of trees fruit-beating or otherwise, it would be unnecessary to have the 29 1990 (Supp) SCC 785

30 [1973] 1 SCR 399

31 [1974] 1 SCR 67 1

A

B

C

D

E

F

G

H

Afirst limb denoting only the cashew or other fruit-beating trees.It may be significant to note that the Legislature in each sub-clause (A) to (C) has used the words to identify the differentcategories of crops or trees. The words used in every sub-clause too have “associations, echoes and overtones”.

B32. In Bhavani Tea & Produce Co. Ltd (supra) this court had toconsider the correct method of determining what is a private forest,under the Vesting Act; the determination made was in connection withthe interplay of provisions of the other enactments, i.e. the KLR Act,and the Madras Act. It was held as follows:

“Division into plots was done by the Commissioner as heCfound these plots to have been different and the demarcationwas of compact areas with few isolated areas, and such ademarcation was contemplated under the Act. It was pointedout that the company also contested the case on plot-by-plotbasis. The Tribunal as well as the High Court also proceededDon that basis. It is pointed out the company objected to theprinciple of division before the High Court but did notquestion the correctness of the actual division made and hencethe High Court could decide only on plot-by-plot basis. Wehave no difficulty in holding that the forest area is generallydescribed or notified with reference to land in forest laws.EBut that does not mean that what stood on the land has to beignored, particularly in case of plantations which wereexempted under the M.P.P.F.Act.

While we are not inclined to agree that the entire estate of thecompany was required to be taken as one whole, we find itFdifficult to agree that wherever some forest was found insidethe company’s estate the Vesting Act would apply. We findthat the M.P.P.F. Act, the Kerala Forest Act, the Kerala LandReform Acts considered the plantations as units by providingthat they would include the land used for ancillary purposesas well. Therefore, while applying the Vesting Act to suchGplantations the same principle would be applicable.”33. The correct manner of interpreting the interplay between theMadras Act and the Vesting Act, was explained lucidly in the judgmentof this court in State of Kerala v. Pullangode Rubber & Produce Co.Ltd[32]. This court observed that:H32 (1999) 6 SCC 92

“8. It is necessary first, we think, to construe the definitionof “private forest” in the said Act. It means, as aforestated, inrelation to the erstwhile Malabar District of the State ofMadras, land to which the Madras Preservation of PrivateForests Act applied immediately before 10-5-1971, being theappointed day under the said Act, but excluding, inter alia, “lands which are used principally for the cultivation of tea,coffee, cocoa, rubber, cardamom or cinnamon and lands usedfor any purpose ancillary to the cultivation of such crops orfor the preparation of the same for the market”.

Such lands so used are, therefore, not private forests withinthe meaning of the said Act. Now what this means is that thelands in Malabar District aforementioned which are used (a)principally for the cultivation of tea, coffee, cocoa, rubber,cardamom or cinnamon, (b) for any purpose ancillary to thecultivation of such crops, and (c) for the preparation of suchcrops for the market are not private forests under the saidAct. The use of the words “are used” in this context necessarilyrefers to such use as on the appointed date under the saidAct, namely, 10-5-1971. It is not possible to give any othermeaning to the words “are used”. They must relate to use onthat particular day for it is on that day that land is or is not aprivate forest within the meaning of the said Act.”

34. The state’s contention that as Popular Estates had mentionedin its petition that a certain area was forest (since it was so, by virtue ofprovisions of the Madras Act) therefore, does not preclude the latter’scontention that no vesting could take place; whether the lands were“forest” or cultivated plantations or estates, for the purposes of Section2(f)(1)(i)(B) of the Vesting Act, especially whether they stood excludedfrom operation of that Act, had to be considered independently.

35. The judgment in Kunjanam Antony (supra) enunciated therule that where the Land Board arrives at a determination about thecharacter of lands, under the KLR Act, that becomes a piece of evidencefor the purposes of the Vesting Act. It was observed that:

“There can be no doubt that the order of the Thaluka LandBoard, a statutory authority, is binding on the authoritiesunder the Land Reforms Act. So far as the proceedings under AB

CD

E

F

G

H

Athe Forest Act are concerned, the order of the Thaluka LandBoard would be a piece of evidence but it cannot be treatedas a binding on the authorities under the Forest Act. Unlessa contrary state of affairs is shown to exist, the order of theThaluka Land Board would have to be given due weight. Fromthe material placed before the High Court and also beforeBus, it appears that there is no evidence in regard to thedestruction of the rubber plantation due to fire. There is,however, material to show that the appellant has beencultivating tapioca. Further, the High Court recorded a findingthat there was no evidence indicating that the appellant hadCintention to cultivate the land which only meant cultivation ofrubber plantation. There is also nothing on record to showthat absence of rubber plantation was for short period andthat the land was in the process of rubber plantation.”

36. Apart from this court’s judgment in Popular II, another recentDjudgment, in State of Kerala v. Mohammed Basheer[33 ] has also followedthe rule in Kunjanam Antony. Therefore, it is no longer open for thestate to argue that the Board’s determination or order, had little or noevidentiary value. In view of the judgments of this court, including PopularII, the enunciation of the principle that “unless a contrary state ofaffairs” were shown to exist, the Board’s order “would have to beEgiven due weight” had to apply, and was correctly invoked by the HighCourt.

37. Coming to the facts of this case, what can be seen is that thetwo reports: preliminary and final, filed by the Commissioner, in the firstproceeding (instituted by Popular Estates in 1974 by two applications)Fwere the nearest in point of time, to the appointed date. The preliminaryreport, Ex. A-6 (filed on 15.01.1976) discloses widespread cultivation ofcoffee, cardamom, rubber, areca nut, etc. The two reports are part ofthe record. Ex. A-7 by the Commissioner, i.e. the final report dated12.09.1977 recorded that the Forest Range Officer, after inspection statedGthat “only disputed portions in Bit Nos. 1 to 7 had been demarcatedand that the other areas were cultivated”. The respondents contentionwas that this reflected the true factual position, coupled with the RangeOfficer’s memorandum (Ex. A-4) filed before the Commissioner on01.09.1977.

38. A combined reading of these materials, leads one to infer thata detailed inspection of the area took place. Only those areas that vestedwith the government were demarcated by the survey party, attachedwith the Superintendent, Land Records. It was in these circumstancesthat the respondent successfully urged before the High Court that whatwas demarcated was only 100 hectares and the others were notdemarcated since they were cultivated. This was borne out by Ex. A-7,the final report. The possession with respect to 100 hectares ofuncultivated forest lands was also covered by draft statement of land(Ex. A-50, dated 24.01.1979) furnished to the Board in proceedings underthe KLR Act. Ex. A-50 was the foundation for the Board’s order dated04.11.1980 (Ex. A-51). Both these documents confirmed that 100 hectareswas vested forest. Popular Estates had submitted that 533 acres wasunder cardamom cultivation; 120 acres under rubber plantation; 257 acresunder coffee plantation and that 155.9 acres was forest land; and 17.5acres of were comprised of roads and buildings. These arguments foundfavour with the High Court. In our considered opinion, there is no glaringerror in the impugned judgment, having regard to these circumstances.

39. The tribunal entirely rejected the evidence of PW-1, the ForestRange Officer, who gave the memorandum to the Commissioner on01.09.1977. The tribunal wholly discredited and brushed aside theevidence of this officer and viewed it with suspicion. This is clear fromthe repeated use of the phrase “magic money” suggesting that PW-1was devious and had been bribed. A reading of his deposition shows nosuch suggestion to him; no material was placed on record that he wasprosecuted for an offence, nor were departmental proceedings initiated,for misconduct.

40. The other materials on record (the auditor’s balance sheets,Ex. A-57 to A-64) the evidence of the auditor (PW-4), the deposition ofthe manager of the respondent/ Popular Estates, PW-5, who had workedsince 1969 onwards reinforce the respondent’s contentions that the largestpart of the area was cultivation for plantation crops. The tribunal, in thiscourt’s opinion unreasonably discarded these materials.

41. The other documents, i.e. Ex. A-66, Settlement arrived atbetween Popular Estates and its workers after closure on 25.6.1982reveal that it had 80 permanent workers and 29 temporary workers onits rolls. Likewise, copies of income tax returns for various dates showed AB

C

D

E

F

G

H

Athat income from these estates was consistently reported, along withexpenditure. For the year ending on 31.3.1968 income was reported as` 81,319; for the year ending 31.3.1969 it was ` 95,707/-; the year ending31.3.1970 it was ` 1,12,524; and for the year ending 31.3.1971 it was`1,38,918. The respondent Popular Estates was apparently depositingagricultural income tax and employees provident fund (Ex. A-67, A-69Band A-70). It had produced correspondence with these statutoryauthorities, as well as sales tax returns (Ex. A-71).

42. The title deeds of the predecessor-in-interest of the partnersof the Popular Estates who had acquired the lands in 1963, show thatlarge areas were shown as cardamon plantation. Popular Estates hadCfiled agricultural income returns and even in 1970, it was producing coffee,rubber and cardamom. The fact that it had some labour trouble alsosupported its contention that Popular Estates’ plantation activities wereon in full scale. All these materials, in the opinion of the court, supportthe conclusions of the High Court, which are based on plausible (and notDan unreasonable) inference of the overall analysis of the evidence onthe record.

43. There is some authority for the proposition that where twoplausible views on the conclusions that can be drawn from facts on therecord exist, this court, in exercise of its discretionary jurisdiction underEArticle 136 of the Constitution would not interfere with the findings ofthe High Court. It has been observed in Pritam Singh v. The State[34],this Court observed that:

“On a careful examination of Article 136 along with thepreceding article, it seems clear that the wide discretionaryFpower with which this Court is invested under is to be exercisedsparingly and in exceptional cases only, and as far as possiblea more or less uniform standard should be adopted in grantingspecial leave in the wide range of matters which can come upbefore it under this article.”

GSimilar observations were made in Tirupati Balaji DevelopersPvt. Ltd. v. State of Bihar[35]. In Jamshed Hormusji Wadia v. Board ofTrustees, Port of Mumbai[36], this Court observed that- 34 1950 SCR 45335 (2004) 5 SCC 1H36 (2004) 3 SCC 214

“The discretionary power of the Supreme Court is plenary inthe sense that there are no words in Article 136 itself qualifyingthat power. The very conferment of the discretionary powerdefies any attempt at exhaustive definition of such power. Thepower is permitted to be invoked not in a routine fashion butin very exceptional circumstances as when a question of lawof general public importance arises or a decision sought tobe impugned before the Supreme Court shocks the conscience.This overriding and exceptional power has been vested inthe Supreme Court to be exercised sparingly and only infurtherance of the cause of justice in the Supreme Court inexceptional cases only when special circumstances are shownto exist.”

44. Likewise, in Union of India v. Gangadhar NarsingdasAgarwal & Anr[37 ]this court, declining to interfere with the order of theHigh Court in exercise of its power under Article 136 of the Constitution,said that even if two views are possible, the view taken by the HighCourt being a plausible one, it would not call for intervention by thiscourt. A similar view was expressed in Jai Mangal Oraon v. MiraNayak (Smt) & Ors[38], wherein this court held that when there wasnothing illegal and wrong in the reasoning and conclusions arrived at bythe High Court and it appeared to be merited and in accordance with theinterpretation of statutory provisions, this court would not interfere withthe order of the High Court under Article 136 of the Constitution. InTaherakhatoon (D) By Lrs. v. Salambin Mohammad[39], this Court atobserved as follows:

“In view of the above decisions, even though we are nowdealing with the appeal after grant of special leave, we arenot bound to go into merits and even if we do so and declarethe law or point out the error- still we may not interfere if thejustice of the case on facts does not require interference or ifwe feel that the relief could be moulded in a different fashion.”

45. This court has carefully considered the findings of the HighCourt while setting aside the order of the tribunal. The reasons which 37 (1997) 10 SCC 30538 (2000) 5 SCC 14139 (1992) 2 SCC 635

AB

C

D

E

F

G

H

Aled the High Court to conclude that the tribunal’s findings called forinterference are merited and in accord with the material evidence onrecord. This Court is therefore of the opinion that no interference withthe impugned judgment of the High Court is called for. The appeal istherefore, dismissed, without order on costs.

BNidhi Jain

Appeal dismissed.

C

D

E

F

G

H