of Kerala & ANR Vs. Nilgiri Tea Estates Ltd.  INSC 281 (12 October
SABYASACHI (J) MUKHARJI, SABYASACHI (J) DUTT, M.M. (J)
1988 AIR 59 1988 SCR (1) 444 1988 SCC Supl. 79 JT 1987 (4) 119 1987 SCALE
Private Forests (Vesting and Assignment) Act, 1971: Section 2(f)-Eucalyptus
trees planted in tea estate for fuel purposes for manufacture of tea-Whether
area forms part of 'private forest' and vests in Government.
Forest Tribunal, Palghat, found that Eucalyptus trees raised by the respondent
in the lands in dispute were not for raising a forest, but for supply of fuel
necessary for the manufacture of tea. It held that the question whether
Eucalyptus plantations raised in a tea estate would be forest or not, had no
bearing to the extent of the cultivation, that the area planted with the
Eucalyptus trees in a tea estate did not form part of a vested forest or
private forest and was, therefore, excluded from the purview of the Kerala Private
Forests (Vesting and Assignment) Act, 1971 (Act 26 of 1971) and that the
Eucalyptus plantations in question were not private forest and did not vest in
the Government under the Act. Relying on an earlier Division Bench decision
that in the context in which the term 'private forest' had been used in the
Act, it applied to lands other than those on which human skill, labour and
resources had been spent for agricultural operations, the High Court held that
the State had not succeeded in establishing that the land in which Eucalyptus
had been planted could be said to be forest land and agreed with the decision
of the Tribunal.
the question whether land planted with Eucalyptus in tea estate in the
Travancore area of Kerala was a 'private forest' or not in terms of section
2(f) of the Kerala Private Forests (Vesting and Assignment) Act, 1971.
the Special Leave Petition, ^
The Eucalyptus trees in the area concerned under dispute were raised not for
forest but for supply of fuel necessary for the manufacture of tea which is the
industry carried on by the respondent Company. The High Court was, therefore,
right in the facts and 445 circumstances of the instant case, in holding that
the land in question was outside the purview of the vesting provisions
contained in the Kerala Private Forests (Vesting and Assignment) Act, 1971.
[449B-C] Malankara Rubber and Product Co. & ors etc. v. State of Kerala
& Ors. etc.,  1 SCR 399, referred to.
Appellate Jurisdiction: Special Leave Petition (Civil) No. 16085 of 1986.
the Judgment and order dated 28.7.1986 of the Kerala High Court in M.F.A. No.
482 of 1981.
Vishwanatha Iyer and P.K. Pillai for the Petitioners. Soli J. Sorabjee, M.N.
Jha and K.L. John for the Respondent.
Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an
application for leave to appeal under article 136 of the Constitution from the
judgment and order of the High Court of Kerala dated 28th July, 1986. The
question involved in this case is whether where Eucalyptus is planted in the
Travancore area of Kerala is a private forest or not. Act 26 being Kerala
Private Forests (Vesting and Assignment) Act, 1971 came into operation in 1971.
On 24th June, 1981 by a common order, the Forest Tribunal, Palghat held in
favour of the respondent company, the Nilgiri Estate Ltd. that certain areas of
forest did not vest in the government under the said Act.
High Court affirmed that finding. The propriety and validity of that decision
are sought to be challenged by this application under article 136 of the
Constitution. The factual parameters have to be borne in mind in the background
of the relevant provisions of the Act. The said Act 26 by section 2(f)
provides, inter alia, as follows:
"private forest" means- (1) in relation to the Malabar district
referred to in subsection (2) of section 5 of the States Re-organisation 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 446 immediately
before the appointed day excluding- (A) lands which are gardens or nilams as
defined in the Kerala Land Reforms Act, 1963 (1 of 1964):
lands which are used principally for the cultivation of tea, coffee, cocoa,
rubber, cardamom or cinnamom and lands used for any purpose ancillary to the
cultivation such crops or for the preparation of the same for the market.
used for the construction of office buildings, godowns, factories, quarters for
workmen, hospitals, schools and playgrounds shall be deemed to be lands used
for purposes ancillary to the cultivation of such crops;
lands which are principally cultivated with cashew or other fruit bearing trees
or are principally cultivated with any other agricultural crop and (D) sites of
buildings and lands appurtenant to and necessary for the convenient enjoyment
or use of, such buildings;
any forest nor owned by the Government, to which the Madras Preservation of
Private Forests Act, 1949 did not apply, including waste lands which are
enclaves within wooded areas.
in relation to the remaining areas in the State of Kerala any forest not owned
by the Government including waste lands which are enclaves within wooded areas:
the purposes of this clause, a land shall be deemed to be a waste land
notwithstanding the existence thereon of scattered trees or shrubs;
Forest Tribunal in this case held, inter alia, in its order as follows:-
"The entire property in O.A. 39/79 (26.90 hectares corresponding to 66.50
acres) admittedly contains eucalyptus 447 trees raised by the petitioner as
also cardamom plants here and there. The Superintendent in charge of the
petitioner estate had deposed to that effect. The Range officer examined as
R.W. 1 has stated that the disputed land on O.A. 39/79 lie in two bits and in
both the bits there are eucalyptus trees raised by the petitioner, that they
are aged between 12 to 15 years and are having a height of about 30 ft. It is
also stated by him that at present there are cardamom plants but they are
raised after 1971." The Tribunal went on to record as follows:
the respondents have conceded that those trees are not of natural growth but
they have been grown there with human skill, expenses and labour.
these trees are planted for purposes of fuel necessary for the manufacture of
tea also admits of no doubt." The tribunal concluded by stating:-
"The question whether eucalyptus plantations raised in a tea estate would
be a forest or not has no bearing to the extent of the cultivation.
should be remembered that eucalyptus trees were raised in the instant case not
for raising a forest but for supply of fuel necessary for the manufacture of
tea. Hence I have no hesitation to come to the conclusion that the areas
planted with eucalyptus trees in a tea estate do not form part of a vested
forest or a private forest and therefore it is excluded from the purview of Act
26/71. In other words, the entire lands involved in O.A. 39/79 and 20 acres out
of the property shown as item 1 in O.A. 146/78 which are eucalyptus plantations
are not private forest and they have not vested in the Government." On
this basis, the High Court came to conclusion that the Tribunal was right. The
High Court in its order observed:- "The question whether forest lands
planted with eucalyptus by employing agricultural operations would be forest
was considered by this court in the decision of a Division Bench reported in
State of Kerala v. Anglo American Direct Tea Trading Co. Ltd.,  KLT 215.
The same question was considered over again by a Full Bench 448 of this Court
in the decision reported in State of Kerala.v. A Moosa Haji,  KLT 494. In
the former decision, it was held:- "As we have indicated in the absence of
a definition of the term 'forest' in Act 26 of 1971 we should take notice of
the general meaning of the term as used in common parlance. Whether one would
understand a eucalyptus plantation within a Tea estate or adjoining a Tea
estate as forest in common parlance would necessarily be the test.
calls for consideration of the scope of the term 'forest" In the contest
in which the term "Private forests" has been used in Act 26 of 1971,
it is evident that it ap plies to lands other than those on which human skill, labour
and resources have been spent for agricultural operations.
the light of what we have adverted to we do not think that the State has
succeeded in establishing that the land in which eucalyptus has been planted in
the Tea plantations could be said to be forest land and if so we should agree
with the decision of the Forest Tribunal that it would be outside the purview
of the vesting provisions in Act 26 of 197 1. " We are of the opinion that
in view of the Finding recorded by the Tribunal, the decision and judgment of
the High Court cannot be impugned. It is instructive that in respect of
proceedings initiated under the Land Reforms Act, this Court in Malankara
Rubber and Product Co. & Ors. etc. vs. State of Kerala & Ors. etc.,
 1 SCR 399 observed at page 426 as follows:- "Lands under eucalyptus
or teak which are the result of agricultural operations normally would be
agricultural lands. They would certainly not be forests but the statements in
the petitions seem to suggest that operations were carried hereon for the
express purpose of growing these plants and trees. However, lands which are
covered by eucalyptus or teak growing spontaneously as in a jungle or a forest,
would be outside the purview of acquisition." 449 It is true as noted above
that this observation was made in the context A of Land Reforms Act but it was
held that lands on which eucalyptus or teak are planted would be agricultural
lands. In this case it has been found as noted before that eucalyptus trees in
the area concerned under dispute were raised in the instant case not for a
forest but for supply of fuel necessary for the manufacture of tea, which is
the industry carried on by the respondent company.
view of the aforesaid facts and in the light of provisions of the Act 26 of
1971, we are of the opinion that the view of the High Court is right in the
facts and circumstances of this case and as such calls for no interference. The
application is accordingly dismissed with no order as to costs.
had in this matter advantage of the assistance of Shri Vishwanath Iyer, counsel
for the petitioners and Shri Soli Sorabji, counsel for the respondent.