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IN THE SUPREME COURT OF INDIA
P. SATHASIVAM & Dr. B.S. CHAUHAN, JJ.
Malayalam Plantations Ltd. .... Appellant (s)
Versus
State of Kerala & Anr. .... Respondent(s)
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 309 OF 2003
CIVIL APPEAL NO. 310 OF 2003
Decided on : NOVEMBER 9, 2010
(1992) 4 SCC 175 – Relied upon
(1999) 6 SCC 92 – Distinguished
(b) Code of Civil procedure, 1908 – Order XLI, rule 27 – When an application for reception of additional evidence is filed – High Court is duty bound to deal with the same on merits. (Para 10 to 13)
AIR 2009 SC 354; (2010) 2 SCC 316 – Relied upon
Facts of the case:
On coming into force of the Kerala Private Forests (Vesting and Assignment) Act, 1971 an area of 5131 hectares of land which was in the possession of the appellant’s Wayanad Estates in Wayanad District of Kerala State was deemed to be vested under the said Act.
After prolonged litigation, a Division Bench of the High Court of Kerala, exempted 730.58 hectares of eucalyptus lands from vesting but held that no forest areas could be exempted for the purpose of firewood.
Finding of the Court:
Private forest land can be exempted from vesting for growing firewood only where firewood is not adequately available.
When an application for reception of additional evidence is filed, High Court is duty bound to deal with the same on merits.
Result:
Appeals partly allowed.
Key Points: - The judgment interprets Section 2(f)(1)(i)(B) to grant exemption to lands necessary for growing firewood for steady supply to employees and for fuel in factories/smoke-houses, unless firewood is adequately available in the market (!) . - The Tribunal should determine the minimum reasonable area required for growing firewood for such purposes and exclude it from vesting; exact area is a question of fact to be assessed with factors noted (e.g., yield, consumption) (!) (!) (!) . - Higher Courts set aside Kerala High Court judgments and remanded to Forest Tribunals to determine the extent of lands required for firewood and employee use, as per remand directions (!) . - The High Court is required to consider additional evidence under Order 41 Rule 27 CPC on merits and cannot ignore admissible additional evidence; the appellate court may admit such evidence only under specific conditions (due diligence, necessity) and must record the reason for admission (!) (!) (!) (!) (!) . - Additional evidence should not be used to fill lacunae or patch up weak points; its adduction is to serve justice, particularly for events or circumstances relevant to disposal of the appeal, not as fresh allegations (!) (!) . - The judgment emphasizes that the burden is on appellants to show firewood exclusion is justified by practice of supplying firewood to employees, and references Pioneer Rubber Plantation and Pullengode Rubber decisions in contextual framework (!) (!) (!) .
JUDGMENT
P. Sathasivam, J.
1) These appeals are directed against the judgment and decree dated 31.05.2002 passed by the High Court of Kerala at Ernakulam in MFA No. 537 of 1995 and Cross Appeal whereby the High Court modified the order dated 13.03.1979 of the Forest Tribunal, Kozhikode. Malayalam Plantations Ltd. has filed C.A. No. 309 of 2003 and the State of Kerala preferred C.A. No. 310 of 2003. Since both the appeals arise from the common order of the High Court, they are being disposed of by this common judgment. For convenience, we shall refer Malayalam Plantations Ltd. as appellant and the State of Kerala as Respondent. Brief facts:
2) (a) The appellant is a Limited Company, which owns 5 estates in South Wayanad Taluk in Kerala. It engaged principally in the cultivation of Tea, Coffee, Cocoa, Rubber, Cardamom and Cinnamon. The Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as `the Act') came into force with 10.05.1971 as the appointed day providing for vesting of all private forests in the State of Kerala. An area of 5131 hectares of land which was in the possession of the appellant's Wayanad Estates in Wayanad District of Kerala State was deemed to be vested under the said Act.
(b) The appellant filed five applications being OA Nos. 3, 4, 5, 6 and 26 of 1975 before the Forest Tribunal, Kozhikode in respect of its 5 Wayanad Estates challenging the vesting of 2588 hectares out of the 5131 hectares which were either planted with eucalyptus by the appellant prior to the vesting or were utilized for the purpose of fuel requirement for its factory and for the use of its employees. No application was filed for the balance 2543 hectares as it formed part of the forest and finally vested with the Government.
(c) By a common order dated 13.03.1979, the Forest Tribunal, Kozhikode exempted the entire 2588 hectares from the vesting provisions of the Act.
(d) Aggrieved by the order of the Forest Tribunal, the State of Kerala filed appeals being MFA Nos. 264-268 of 1979 before the High Court of Kerala. The appellant also filed appeals being MFA Nos. 209-214 of 1979 claiming that exemption was granted only on the ground of estoppel on account of collection of land tax for the areas involved even after the vesting and other grounds urged was not accepted by the Tribunal.
(e) A Full Bench of the High Court, by its judgment dated 29.09.1980, while allowing the appeals filed by the Government thereby reversing the order passed by the Tribunal upheld the exemption for the roads and buildings.
(f) Challenging the order of the Full Bench, the appellant filed 5 Appeals being C.A. Nos. 557-561 of 1981 before this Court. The State Government also preferred appeals being Civil Appeal Nos. 1214-1218 of 1981. By a judgment dated 24.08.1992, this Court set aside the judgment of the Kerala High Court and remanded the O.A. Nos. 3, 4, 5, 6 and 26 of 1975 to the Forest Tribunal, Kozhikode with a direction to determine and exempt the extent of land required by the appellant for the purpose of growing trees for fuel requirement i.e. firewood purposes for its factory as well as for the employees working in the estates.
(g) The Tribunal, after hearing both the parties, by a common judgment dated 15.12.1994, exempted and excluded 1400 hectares of land from the vesting provisions of the Act as areas required for firewood purposes.
(h) When the appellant was pursuing with the authorities for implementing the order of the Tribunal, the State of Kerala filed MFA No. 537 of 1995 before the High Court, challenging the judgment dated 15.12.1994 passed by the Forest Tribunal, Kozhikode. On 02.07.1995, a Cross Appeal was filed by the appellant in the above said appeal of the Government.
(i) A Division Bench of the High Court of Kerala, by its impugned judgment dated 31.05.2002 exempted 730.58 hectares of eucalyptus lands from vesting but held that no forest areas could be exempted for the purpose of firewood in view of the decision
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