Judgment

SABYASACHI MUKHARJI, J. :- This is an application for leave to appeal under Art. 136 of the Constitution from the judgment and order of the High Court of Kerala dt. 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. The High Court affirmed that finding. The propriety and validity of that decision are sought to be challenged by this application under Art. 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 S. 2(f) provides, inter alia, as follows

"(f) "private forest" means

(1) in relation to the Malabar district referred to in sub-s. (2) of S. 5, States Reorganisation Act, 1956 (Central Act 37 of 1956)

(i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding

(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964) :

(B) 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 of such crops or for the preparation of the same for the market.

Explanation - Lands 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;

(C) 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;

(ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.

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

Explanation - for the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;"

2. The 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 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. I has stated that the disputed land in 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."

3. The Tribunal went on to record as follows :

"But, the respondents have conceded that those trees are not of natural growth but they have been grown there with human skill, expenses and labour. That these trees are planted for purposes of fuel necessary for the manufacture of tea also admits of no doubt."

4. 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. It 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