Kumari
Varma Vs. State of Kerala & Anr [2006] Insc 473 (4 August 2006)
S.B.
Sinha & P.K. Balasubramanyan
(ARISING
OUT OF S.L.P. (C) NO.3341-3342 OF 2005) WITH
CIVIL APPEAL NO.3372 OF 2006 (ARISING OUT OF S.L.P. (C) NO.16872 OF 2005) P.K.
BALASUBRAMANYAN, J.
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Leave granted.
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These are cross
appeals by the applicant before the Forest Tribunal and the respondent therein,
the State of Kerala. The appeals arise from the final
adjudication made in O.A. No.90 of 1979 filed by the applicant therein claiming
exemption from vesting under the Kerala Private Forests (Vesting and
Assignment) Act, 1971 (for short "the Vesting Act") in respect of the
land scheduled to that application.
Going
by the application it will be seen that the applicant claimed that the lands in
RS No.292/1A of Naduvil Village belonging to the applicant, was a cardamom
plantation before the appointed day, namely, 10.05.1971; that the forest
authorities are proceeding as if the entire land had vested in the State under
the Vesting Act and the application scheduled land was liable to be declared as
not having vested in the State, as per the Vesting Act. The application was
resisted by the State and the forest authorities. But, it was stated that a
portion of the land was planted with cardamom. The land was part of what was
called the Koliyat Estate consisting of about 700 acres and a substantial part
of the Estate fell within the State of Karnataka when the reorganisation of states took place with effect from
1.11.1956. According to the applicant the area that fell within the State of Kerala was 348 acres and the whole of it
had been planted with cardamom prior to the appointed day and it was on that
basis that the application was filed under Section 8 of the Vesting Act.
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The application
was made only sometime in September 1979. The application was dismissed by the
Forest Tribunal on the ground that it was barred by limitation, the vesting
having taken place on 10.5.1971. That dismissal was set aside in appeal by the
High Court which remanded the Application O.A. No.90 of 1979 to the tribunal
for an investigation and disposal on merits in accordance with law.
Some
evidence was adduced including the filing of a report by a Commissioner. By
order dated 22.3.1990, the tribunal dismissed the application on a finding that
the land was not put under cultivation prior to the appointed day, namely,
10.5.1971 and that it was a forest to which The Madras Preservation of Private
Forests Act applied and hence it was a forest in terms of the Act and it had
vested in the State under the Vesting Act. This order was again challenged by
the applicant before the High Court in M.F.A. No.658 of 1990.
The
High Court took the view that what was called for was a proper identification
of the land which had been planted with cardamom prior to the appointed day
since it would be seen from the pleadings that some portion of the land was
cultivated with cardamom even going by the objections filed by the State and
the forest officials before the forest tribunal.
After
setting aside the commission report and plan that was marked in evidence, the
High Court directed the Forest Tribunal to issue a fresh commission, to have
the property identified with particular reference to the portions, if any, in
which cardamom was planted prior to the appointed day and to dispose of the
application afresh. Both sides were given opportunity to adduce evidence.
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Pursuant to this
order of remand, a commission was issued and the commissioner after inspection
reported that an extent of 100.05 acres (wrongly added up as 99.05 acres) was
found to be planted with cardamom, the planting having been done about 25 years
prior to the date of his visit.
He
also identified two structures and a platform existing in the property. He
reported that the rest of the property is seen to be forest since it had forest
tree growth. On behalf of the applicant some further evidence was adduced; but
on behalf of the State, nothing much was done before the Tribunal. The Forest
Tribunal made a local inspection with notice to both sides and in their
presence so as to enable it to better appreciate the evidence on both sides. It
prepared a note of inspection and gave copies of the same to both sides.
Thereafter
on an appreciation of the evidence in the case, the Forest Tribunal came to the
conclusion that an extent of 100.05 acres demarcated as plots A, B and C in the
sketch prepared by the Commissioner could be held to be planted with cardamom
prior to the appointed day and hence excluded from vesting in the State under
the Vesting Act. Though the applicant had not made any claim for exemption for
ancillary purposes, the Forest Tribunal, taking note of the two constructions
existing in the property along with the platform which was said to be used for
drying cardamom, excluded an extent of 9.95 acres of land for that purpose.
Thus, the Forest Tribunal passed an order holding that 110 acres of land were
excluded from vesting under the Vesting Act and granted relief to the applicant
on that basis. The Forest Tribunal clearly identified the land that had not
vested, in its order by indicating that the area of 110 acres is comprised in
plots A, B and C as shown in the exhibit C-3 plan and described in Ex. C-4
report. It ordered that Ex. C-3 plan and C-4 report should form part of its order.
Feeling aggrieved, both sides filed appeals before the High Court. The High
Court, on a consideration of the relevant materials, including the minutes of
some meetings of the standing committee under a scheme formulated, relied upon
by the applicant, came to the conclusion that the Forest Tribunal was right in
accepting the case of the applicant only to the extent of 100.05 acres as
demarcated by the commissioner in Exhibits C-3 plan and was justified in
exempting 9.95 acres for ancillary purposes though no such specific claim was
put forward by the applicant in the original application. Thus the order of the
Forest Tribunal was confirmed and the appeals were dismissed. Feeling aggrieved
by this decision of the High Court, both sides have approached this Court with
these appeals by special leave.
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On behalf of the
applicant it was contended that the minutes of the standing committee chaired
by the District Collector to ensure proper utilisation of the loan taken by the
applicant from the Central Bank of India through the Agricultural Refinance
Corporation of India clearly showed that the entire 348 acres of land that fell
within the State of Kerala had been cultivated by the appointed day and in that
situation, the Forest Tribunal and the High Court ought to have excluded or
exempted the entire 348 acres from vesting.
He
submitted that the minutes were more or less official records and of undoubted
authenticity and based on them, supported by the evidence of PW1, the claim
ought to have been upheld in full. On behalf of the State it was contended that
the minutes relied on did not establish the claim, that after the order of
remand passed by the High Court on the second occasion, it was more or less a
case of identifying the extent in which cardamom had been planted by the
applicant prior to the appointed day and the only reliable material available,
namely, the report of the commissioner and the plan prepared by him showed,
that the plantation was confined to plots A, B and C in Exhibit C-3 plan. On
behalf of the State it was contended that even the cardamom plants noticed in
Plots A, B and C were not planted prior to the appointed day but they were of
sporadic growth and the Forest Tribunal was not justified in excluding or
exempting that extent from vesting.
Counsel
also pointed out that there was not even a claim for exclusion of 9.95 acres on
the ground that the land was needed for being used for ancillary purposes and
in this situation, the tribunal clearly erred in excluding that extent and the
High Court was not justified in confirming that part of the order of the
tribunal in any event. He also submitted that the minutes relied on do not
establish that there was actual planting of cardamom in the entire extent
before the appointed day and the Forest Tribunal and the High Court have
rightly not relied on them to uphold the claim of the applicant.
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We have given
our anxious consideration to the arguments raised. The so called minutes of the
standing committee do not enable the applicant to establish that the entire
extent of 348 acres that allegedly fell in the State of Kerala had actually been planted prior to
the appointed day.
In
fact, the applicant could not show what exactly was the extent that fell within
the State of Kerala and in respect of which the
plantation activity was carried on prior to the appointed day. The Forest
Tribunal and the High Court cannot be said to have erred in refusing to uphold
the claim of the applicant based on the minutes. In the second order of remand
by the High Court what was emphasised was that even in the pleadings of the
State and the forest authorities it was stated that some extent had been
planted and the matter was remanded for a fresh consideration mainly to
identify that extent which had been planted. The High Court specifically set
aside the commissioner's plan and report that were available at that stage and
directed the Forest Tribunal to issue a fresh commission for identifying the
area that had been planted with cardamom. After the remand by the High Court, a
commission was taken out and the commissioner clearly reported that the
plantation was confined to plots A, B and C in Ex.C-3 plan. He also indicated
the extent of those plots in the plan he prepared. He gave reasons which led
him to infer that the plantation found in those plots were plantations effected
and could not be considered sporadic growth as sought to be contended by the
forest authorities.
He
also reported that the rest of the area was full of forest tree growth. In
spite of opportunity available, the claimant did not examine the commissioner
to demonstrate that the report about the actual extent in which old plantation
was found, was not correct. There was therefore no justifiable reason for the
Forest Tribunal and the High Court to discard the plan and the report. Though a
decision cannot be based on a local inspection, the Forest Tribunal did make a
local inspection so as to appreciate the evidence better and the Forest
Tribunal found no reason to discard the report of the commissioner or the
identification of the plots made by him. Except the minutes relied on, and some
bills for purchase of seedlings, the applicant could not adduce any evidence to
show that more area was actually cultivated or that the identification made by
the commissioner of the plots which contained cardamom plants aged 20 to 25
years, was in any manner, not correct or that the identification was
unacceptable. It was in this situation that the Forest Tribunal came to the
conclusion that the extent of 100.05 acres was liable to be exempted as
cardamom plantation prior to the appointed day and that an extent of 9.95 acres
was also to be excluded or exempted on the basis that it was required for
purposes ancillary to the plantation. Of course, as rightly contended by counsel
appearing on behalf of the State, there was no specific claim for exemption on
the ground of land needed for purposes ancillary to the purpose of the
plantation, but taking note of the existence of the buildings therein and the
platform referred to, in the report of the commissioner, the tribunal thought
it appropriate to exclude an extent of 9.95 acres also on that ground, even
though there was no specific claim in that regard. But then, the claim of the
applicant was that the entire 348 acres of land was to be excluded. It was in
that situation that the High Court also chose not to interfere with that part
of the order of the tribunal.
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Thus, on the
whole, we are not satisfied that there is any justification in interfering with
the decision of the Forest Tribunal, as confirmed by the High Court. The
property exempted had been clearly identified by the commissioner in the plan
which had been appended to the order of the Forest Tribunal and the extent of
the plots had been specifically given. It is, therefore, seen that the identity
of the excluded lands is also clear and there is no occasion for attempting any
further identification at any later stage. The order now passed thus suffers
from no infirmity and there could be no dispute about the area excluded or
exempted. Hence, no interference is called for on that ground also.
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We, thus,
confirm the decision of the High Court, and dismiss these appeals. In the
circumstances of the case, we direct the parties to suffer their respective
costs.
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