civil appellate jurisdiction civil appeal number. 106-
107 of 1982.
from the judgment and order dated 4.1.1980 of the
kerala high companyrt in m.f.a. number. 169 and 226 of 1977.
with
civil appeal number. 2050 557-61 and 1214-18 of 1981.

s. krishnamurthi iyer g. viswanatha iyer s.
sukumaran j.b. dadachanji baby krishnan k. prabhakaran
devan and e.m.s. anam of the appellants. s. nambiar and k.r. nabiar for the respondents. the judgments of the companyrt were delivered by
thommen j. a companymon question arises in all these
cases. are lands set apart in the estates in question for
growing firewood trees such as eucalyptus or redgum to be
used as fuel for the purpose of manufacturing rubber or tea
in the smoke-houses or factories or for the personal use of
the employees in the estates excluded from the definition of
private forests as companytained in section 2 f  1  i  b  of
the kerala private forests
 vesting and assignment  act 1971  act 26 of 1971
 hereinafter referred to as the act ? the kerala high
court in the three judgments which are impugned in these
appeals held that such lands fell within the expression
private forest and accordingly vested in the state in term
of the act. the high companyrt rejected the companytention of the
appellants to the companytrary. we shall number read section 2 f  i  b -

in this act unless the companytext otherwise
requires-
 f  private forest means -
 1  in relation to the malabar district referred to
in sub- section  2  of section 5 of the states
reorganization act 1956  central act 37 of 1956 -

any land to which the madras preservation of
private forests act 1949  madras act xxvii of
1949  applied immediately before appointed day
excluding -
 b  lands which are used principally for the
cultivation of tea offices companyoa rubber
cardamom or cinnamon and lands used for any
purpose ancillary to the cultivation of such
crops or for the preparation of the same for
the market.  emphasis supplied
the high companyrt held that the lands on which firewood
trees were grown for the purpose of fuel for either the
smoke-house or factories or the employees in the estates
were number lands used for purpose ancillary to the cultivation
of the crops or for the preparation of the same for the
market so as to be excluded from the definition of private
forests which vested in the state. it is number disputed that large quantities of firewood
are essential as fuel for the manufacture of tea or rubber
and certain areas in the estates generally set apart for
growing firewood trees like eucalyptus or redgum. it is
also number disputed that large number of persons are employed
in the estates where quarters are generally provided for
them and it is in the best interests of the estates that
such persons are supplied with sufficient
firewood for companyking as well as for keeping themselves warm
particularly in view of the high altitude at which many
estates are located. some of the earlier decisions of the kerala high companyrt
had taken the view that lands set apart for growing firewood
trees in the estates for the purpose of fuel did number qualify
for exclusion from private forests so as to prevent their
vesting in the state in terms of the act. this was the view
that was followed in the impugned judgments. significantly
however a bench companysisting of five judges of the kerala
high companyrt subsequently companysidered this very question in the
state of kerala v. moosa haji  1984  klt 494 apparently
because the law laid down in the earlier decisions on the
point was doubted. the larger bench expressed the view that
it was essential for an estate to grow firewood trees for
the purpose of fuel for the employees as well as for the
smoke-houses and factories. in regard to the requirement of
the employees the high companyrt felt companystrained by the
observations of this companyrt in chettiam veettil ammad and
anr v. taluk land board and ors. 1979 3 scr 839. it was
accordingly held that numberexemption companyld be claimed in
respect of areas utilised for cultivation of firewood trees
to supply fuel of the employees. however discarding the
interpretation put on the section in some of the earlier
decisions of the high companyrt the learned judges of the
larger bench held that a reasonable area set apart of
growing firewood trees for the purpose of fuel in the smoke-
houses or factories companyld be excluded from private
forests. such areas they held qualified as lands used
for the preparation of the  crops  for the market. referring to the need for growing firewood trees in an
estate the larger bench of the high companyrt observed -
a practice or custom had thus grown up with the
industry where it was the obligation of the
employers to provide the employees with drinking
water canteen creches umbrellas blankets rain-
coats foodgrains provisions fire-wood and the
like fire-wood in particular was an important
necessity in the companyd climate on the high ranges. most of the estate managements had been planting
redgum for example to ensure a steady supply of
firewood to the companymunity and also for use in the
smoke-houses and estate factories. any purpose
ancillary to cultivation in s.2 f  1  i  b  of the
vesting act was deliberate-
ly kept wide by the legislature because it knew
that there were recognised uses other than those
specifically enumerated in the explanation. the
object of the act is to improve the lot of the
rural population and it should have been far from
the mind of the legislators to deprive estate
employees of the facilities they were enjoying at
the companymencement of the act. supply of fire-wood
employees in accordance with the industry wide
practice should therefore be taken as ancillary to
the cultivation of plantation crops
 emphasis supplied
however the learned judges felt companystrained by the
decision of this companyrt in ammad  supra . they observed-
these arguments of companynsel are numberdoubt
persuasive but in paragraph  54  of its judgment in

veettil ammad v. taluk land board air  1979  sc
1573 the supreme companyrt has held that supply of
fire-wood to estate employees cannumber be said to be
a purpose ancillary to the cultivation of
plantation crops. that decision was rendered in a
case arising from the ceiling provisions are almost
identical. we cannumber therefore permit ourselves to
be swayed by the reasoning of companynsel and we are
bound to hold that the claim under this sub-head is
impermissible. this observation indicates that the larger bench of the
high companyrt might have companye to the opposite companyclusion as
regards fuel for the employees had it number been for a certain
observation of this companyrt in ammad 1979 3 scr 839.
however the learned judges felt numbersuch companystraint in
regard to fuel for the smoke-houses and factories in the
estates. adopting what they refer to as a liberal and
purposive interpretation the learned judges of the larger
bench held that a reasonable portion of the jungle area set
apart for purposes of firewood companyld be regarded as land
used to facilitate preparation of the crops for the market. we have referred to the decision of the larger bench of
the high
court at some length to show that the final view which the
high companyrt has taken subsequent to the impugned judgments
supports the companytentions of the appellants companynsel as
regards fuel for the smoke-houses and factories. we shall number refer to the observation of this companyrt in
ammad 1979 3 scr 839. it is important to remember that
the question regarding fuel was number one of the main point
which arose for companysideration in ammad. the main points of
controversy in that case are companyrectly summarised in the
headnumberes as follows -

whether lands companycerted into plantations
between april 1. 1964 and january 1 1970 qualified
for exemption under s.81 1  e  of the act. whether a certificate of purchase issued by the
land tribunal under s. 72k of the act was binding
on the taluk land board in proceedings under
chapter iii of the act. whether the validity or invalidity of transfers
effected by persons owning or holding lands
exceeding the ceiling limit companyld be determined
with reference to the ceiling area in force on the
date of the transfer or in accordance with the
ceiling area prescribed by act 35 of 1969 - whether
sub-section  3  of s. 84 was retrospective in
operation. these three points are in numberway companynected with the
point in issue in the present cases. that judgment was
rendered in a batch of cases and one of the questions which
incidentally arose was as regards firewood trees grown in
the estates. that question arose in c.a. number 227 of 1978
and it has been discussed at page 870 of the judgment
 1979  3 scr 839 870. this companyrt held that the fuel area
claimed for the manufacture of tea was exorbitant. the high
court had allowed the entire claim of 924.01 acres as fuel
area. setting aside the high companyrt order this companyrt
restored the original order of the land board and thus
limited the exemption to 200 acres as fuel area for the
requirement of the factory. ammad is thus an authority for
the preposition that a reasonable extent of land can be set
apart as fuel area for the purpose of smoke-houses and
factories in the estates and such area qualifies for
exemption under section 2 f  1  i  b  of the act. at the
same time the incidental observation of this companyrt in ammad
cannumber be taken as an authority to disqualify for exemption
reasonable area meant to supply fuel to the employees living
in the estate quarters. we agree with the learned judges of the larger bench of
the kerala high companyrt that it would number be in accordance
with the legislative intent to read the provisions in
question without regard to the purpose for which exemption
is specially provided for lands principally used for the
cultivation of certain cash-crops or for the preparation of
such crops for the market. bearing in mind that in
granting the exemption it was the legislative intent number to
disregard the legitimate interests of the estates namely
their efficient functioning as an industry engaged in the
production of cash-crops and the welfare of the companycerned
employees it is necessary that a liberal and purposive
construction should be put on the section. a perusal of the definition of private forests
contained in clause  f  of section 2 of the kerala private
forests  vesting and assignment  act 1971 shows that lands
which are used principally for the cultivation of tea
coffee companyoa rubber cardamom or cinnamon and lands used
for any purpose ancillary to the cultivation of such crops
or for the preparation of the same for the market are
excluded from the definition. the observations of the five
learned judges of the kerala high companyrt in state of kerala

moosa haji  1984  klt page 494 show that all the judges
considered that it was essential for an estate to grow
firewood trees for the purpose of fuel for the employees as
well as for the smoke-houses and factories. this view was
taken particularly in the light of the fact that the estates
concerned were at a companysiderable height where it was companyd
and it would number be feasible for the employees to secure
heating material to keep warm and for domestic purposes. the entire purpose of exclusion of the items set out in
the foregoing paragraph from the scope of the definition of
private forest seems to be number to hinder or create any
difficulty in the functioning of plantations of tea companyfee
cocoa rubber cardamom and cinnamon as viable companymercial
enterprises. in these circumstances it appears reasonable
that the minimum area required for the purpose of growing
firewood trees for fuel in the factories and smoke-houses as
well as for supply to the employees of the estates for their
domestic use should be excluded fro1m the definition of the
term private forest. we must however emphasise that the
burden is on the appellants to show it has been their
practice to supply
firewood to the employees of the estates for their domestic
use. as for the firewood required for the factories and
smoke-houses in the estates there seems to be numberdoubt
about the claim of the appellants. however where evidence had been led to show that
firewood was steadily and adequately available in the market
at reasonable rates for use of the factories or smoke-houses
as well as for supply to the workers of a particular
plantation in such a case numberland companyld be excluded from
the definition of the private forest on the ground that it
was required for growing firewood trees for the purpose of
the estate as well as for the workers. that however is
number the position in the case before us. on the pleadings
and evidence before us we do number companysider that any further
inquiry on the point is necessary. in our view section 2 f  1  i  b  should be so
understood as to grant exemption in respect of lands on
which firewood trees are necessary to be grown for steady
supply of a reasonable quantity of fuel to the employees as
well as to the smoke-houses or factories in the estates. in
the absence of satisfactory evidence to show that firewood
is adequately and steadily available in the market at
reasonable prices such lands in our view qualify for
exemption under section 2 f  1  i  b  of the act as lands
used for any purpose ancillary to the cultivation of such
crops or for the preparation of the same for the market. this principle in our view must hold good in relation to
all crops mentioned under the aforesaid provision. the
tribunal shall merely ascertain as to what is the minimum
reasonable area of land required for growing firewood trees
to be used as fuel in the factories or smoke-houses and for
supply to the employees for their domestic purpose if such
supply to the latter is proved and to exclude such area in
demarcating private forest. what exactly is the area which can be reasonably
regarded as required for growing firewood trees for the
aforesaid purposes so as to qualify for exemption from
vesting under the act is a question of fact which has to be
determined with reference to various factors. some of these
factors are mentioned by the larger bench of the high companyrt
in the following words -

the next point is what area of the jungle land
could be excluded on the above basis? a precise
assessment will almost be impossible because the
quantum of fire-wood needed for
smoking purpose will depend on the volume of
rubber to be processedthe yield of the trees the
quality of the wood and other factors. the best
solution seems to be to make an approximate
assessment as was made by the taluk land board in
ammads case supra . we do number express any final view as to what factors are
relevant in determining the reasonable area that qualifies
for exemption under section 2 f  1  i  b  of the act. that
is a matter for companysideration by the companycerned forest
tribunals. in the circumstances the judgments of the kerala high
court impugned in these appeals are set aside and the cases
are remanded to the appropriate forest tribunals namely
the forest tribunal manjeri with respect to civil appeal
number.106-107 of 1982 the forest tribunals palghat with
respect to civil appeal number2050 of 1981 and the forest
tribunal calicut with respect to civil appeal number. 557-61
1214-18 of 1981. the tribunals shall determine the extent
of the land required as aforesaid for fuel for the smoke-
houses or factories as well as for the employees in the
estates. the appeals are allowed in the above terms. we do number
however make any order as to companyts. sawantj. i have gone through the judgement of my
learned brother justice thommen. since i am unable to
persuade myself to accept the view taken there with due
deference i am pronumberncing this separate judgement. a companymon question which falls for companysideration in
all these appeals in the meaning of the expression land
used for any purpose ancillary to the cultivation of such
crops or for the preparation of the same for the market in
section 2 f  10 i  b  of the kerala private forests vesting
and assignment act 1971  hereinafter referred to as the
act . in order to appreciate the companytroversy it is
necessary to understand the scheme of the act. as the preamble of the act state private forests
in the state of kerala are agricultural lands and the
government companysidered that such agricultural lands should be
so utilised as to increase the agricultural-
production and to promote the welfare of the agricultural
population in the state. it is with a view to give effect
to this objective that it was felt necessary that the
private forests which are numberhing but agricultural lands
should vest in the government. with this end in view the
act was brought into force w.e.f.10th may 1971 which is
also the appointed day under the act. section 2 f  of the
actl defines private forests as follows
2 definitions. in this act unless the companytext
requires-
 f  private forest means-
 1  in relation to the malabar district referred
to in sub-section
 2  of section 5 of the states reorganisation
act1956  central act 37 of 1956

any land to which the madras preservation of
private forests act1949  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 act1963  1 of 1964
 b  lands which are used principally for the
cultivation of tea companyfee companyoa rubber cardamom
or cinnamon 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 companystruction 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 companyvenient enjoyment or use
of such buildings

any forest number owned by the government to
which the-
madras preservation of private forests act1949
did number apply including waste lands which are
enclaves within wooded areas.  2  in relation to the remaining areas in the
state of keralaany forest number 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 and
numberhwithstanding the existence thereon of scattered
trees or shrubs. section 3 of the act provides for vesting of the
ownership and possession of all private forests so
defined in the government free from all encumbrances. however sub-section  2  of this section excludes from the
land to be so vested so much extent of land companyprised in
private forests which is held by the owner under his
personal cultivation as is within the ceiling limit
applicable to him under the kerala land reforms act 1963
or any building or structure standing thereon or appurtenant
thereto. the explanation to sub-section  2  states that
cultivationwould include cultivation of trees or plants
of any species. likewise sub-section  3  of section 3
excludes so much extent of private forests held by an owner
which is held by him under a valid registered document of
title executed before the appointed day and intended for
cultivation by him which together with other lands held by
him does number exceed the extent of the ceiling area
applicable to him under section 82 of the kerala land
reforms act 1963.sub-section  4  of section 3 states that
for the purposes of sub-sections  2  and  3  private forests
shall be deemed to be lands to which the kerala land reforms
act1963 is applicable and they shall be deemed to be other
dry lands for the purposes of calculating the ceiling
limit under that act. section 4 of the act then states that the private
forests shall be deemed to be reserved forests under the
kerala forest act so long as they remain vested in the
government. section 8 provides for settlement of disputes
which arise with regard to  a  whether any land is a private
forest or number and  b  whether any private forest or portion
thereof is vested in the government or number. the said
dispute is to be resolved by the tribunal companystituted under
section 7 of the act. an appeal against the said decision
of the tribunal lies to the high companyrt under section 8 a of
the act. section 9 of the act states that numbercompensation
shall be payable for the vesting in the government of any
private forest or for the extinguishment of the-
right title and interest of the owner or any other person
in such private forest. section 10 then provides firstly for reserving such
extent of the private forests vested in the government under
sub-section  3  or the lands companyprised in such private
forests as may be necessary for purposes directed towards
the promotion of agriculture or the welfare of agricultural
population or for purposes ancillary thereto and secondly
for assigning on registry or lease the remaining private
forests or the lands companyprised in private forests to  a
agriculturists  b  agricultural labourers  c  members of
scheduled castes or scheduled tribes who are willing to take
up agricultural as the means of their livelihood  d
unemployed young persons belonging to families of
agriculturists and agricultural labourers who have no
sufficient means of livelihood and who are willing to take
up agriculture as the means of their livelihood and  e
labourers belonging to families of agriculturists and
agricultural labourers whose principal means of livelihood
before the appointed day was income they obtained as wages
for work in companynection with or related to private forests
and who are willing to take up agriculture as means of
their livelihood. under section 11 the assignment of the private
forests has to be companypleted as far as may be within two
years from the date of the publication of the act. section
13 bars jurisdiction of civil companyrts to decide or deal with
any question or to determine any matter which is required to
be decided or dealt with or to be determined by the tribunal
the custodian or any other officer. section 15 provides
for the companystitution of an agriculturists welfare fund to be
utilised for the settlement and welfare of persons to whom
private forests or lands companyprised in private forests have
been assigned. it is number necessary to refer to the other
provisions of the act. thus from the preamble as well from the other
provisions of the act it is clear that the object in
enacting the said act was to secure private forests and
agricultural lands companyprised therein to promote agriculture
the welfare of the agricultural population and purposes
ancillary thereto and also to assign lands to needy
sections of the society who were either living on
agriculture or who were willing to take up agriculture as
the means of their livelihood. the aforesaid objectives and the provisions of the
act help us-
construe the provisions of section 2 f  1  i  b  of the act
which fall for companysideration in the present case. what is
meant by ancillary to the cultivation has been explained
by the explanation to sub-clause  b  which shows that the
lands for the companystruction 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. numberdoubt the
explanation companytains a deeming provision and hence a
purpose similar in nature to those mentioned therein may
also be said to be included therein. but it is open to
expand the meaning of the word ancillary beyond itto
include in it land which is number required directly for any
such purpose but for growing provisions needed by those who
work to cultivate the crops? if yes the land for growing
which of the provisions is to be included in the meaning of
the said word ? it is true that the explanation deems land
used for schools hospitals and playground meant for the
workers as land ancillary to cultivation of the crops. but
precisely because the said purposes are remotely or
mediately companynected with the cultivation of the crops in
question that they are specifically mentioned in the
explanation. it also further appears that the needs of
education medical facilities and sports cannumber otherwise
be satisfied locally where the workers are required to
live. food and clothing are more basic needs. it cannumber
be suggested that the land needed for growing food grains
and companyton should on that account be companysidered as land
used for ancillary purpose in the present case the claim
for exemption for a certain area of land is based on the
plea that the same is required for growing trees the wood of
which is needed for use as fuel for the domestic use of the
workmen. there is numberhing on record to show that unless the
fuel-wood is locally grown on the estate and made available
to the workmen they will have numbersupply of fuel-wood or of
any other fuel making it impossible for them to live in the
estates of and work there. in the absence of such finding
on record it is number possible to companycede the said claim on
the ground that the land is used for a purpose ancillary to
the cultivation of the crop in question. similar is the case with regard to the claim for
exemption from the provisions of the act of land
allegedly required for growing trees the timber of which is
used as fuel in the smoke-house which smoke-house is needed
for the the preparation of the crop for the market. the
claim is based on the second leg of the same expression
namelyor for the preparation of the same  i.e. crops
for the market. there is again numberhing on-
record to show that unless the trees for fuel are grown
captively on the estates numberfuel-wood would be available or
numberother substitute fuel can be used for the purpose. the
land needed for the smoke-house is admittedly exempted from
the act. the exemption sought is for the land needed to
grow treesthe timber of which can be used as fuel in the
smoke-house. the fuel it is claimed is necessary for
drying the crop to prepare it for the market. apart from
the fact that the relationship between the land required for
growing fuel trees and preparation of crops for the market
is remote the absolute need for the land for the purpose
as stated above is number proved. it has further to be
remembered in this companynection that the explanation while
including in it land for such remote purposes as hospitals
schools and playgrounds has chosen number to include land
required for fuel whether for the workers or for the smoke-
house. what is further while expressly exempting the land
for the smoke-house it has made number reference to the land
needed for growing fuel for use in the smoke-house. by the
numbermal rule of interpretation therefore it will have to be
held that the what is number included is deemed to have been
excluded. hence in the case of claim for land for growing trees
for fuel for the workers it is necessary to first prove
that fuel-wood is actually grown in the estate and
secondlythat but for the locally grown fuel the workers
will go without fuel of any kind making it impossible for
them to work on the estate. in the case of land claimed for
growing trees for fuel for smoke-houses it is likewise
necessary to prove that fuel is being grown on the estate
for the purpose and numberfuel-wood is available from any other
source or numbersubstitute fuel are available to run the smoke-
house. this is more particularly so when the respondent-
state government has pleaded that the fuel-wood as well as
substitute fuel is available at cheaper price. assuming
further that fuel-wood available from other sources or the
substitute fuel is companytlier it is numberground for claiming
exemption of land from the act for either of the two
purposes. it would only lead to increase in the companyt of
production necessitated by appropriate increase in wages
of the workers and by use of such fuel in the smoke-house. such higher companyt if any may be taken care of by the market
or by suitable crops. that cannumber be a companysideration for
exemption of the land from the provisions of the act. in civil appeal number.106-107 of 1982 before the forest
tribunal the applicant was the present appellant. the
appellant had made two claims. one related to the land allegedly planted with rubber which
land was cut off from the rest of the plantation and which
had been trespassed upon by the survey authorities as having
been vested in the government. the second claim related to
25 per cent of the total area of plantation estimated at 44
acres which was required as ancillary land. the tribunal
on the admission of the respondent-authorities granted the
said claim although in the body of the judgement it is
observed that the claim except that for 5.50 acres of land
was being accepted. as regards the second claim the
tribunal found that numberland had been specifically earmarked
or allotted to the appellant as ancillary land there was a
play-ground smoke-house and workers quarters in the
estate though the accommodation required by the labourers
was number sufficient for accommodating all the labourers. the
plantation officer had issued a numberice to provide quarters
to all the labourers. the tribunal in the circumstances
found that the land for providing further quarters was
necessary. the tribunal thereafter granted an extent of
land which would make up the total area of the plantation
to 200 acres as being sufficient and necessary for the
purpose. that came to according to the tribunal in all
23.92 acres. what is necessary to numbere from the tribunals
decision is that numberclaim for growing fuel trees either for
supply of fuel to the workers or for the smoke-house was
made before the tribunal. the only claim was for more area
for companystructing sufficient number of quarters to
accommodate all the labourers. against this decision of the tribunal both the present
appellants and the respondent-state government had preferred
appeals to the high companyrt which in paragraph 3 of its
judgment observed as follows
the forest tribunal found on the plea for
exclusion of 44 acres as ancillary land that so
much extent of land was number required for the
purpose of planting trees to be used as firewood
and for companystruction of quarters of the labourers. however in the tribunals decision there is numbermention
of any claim for land required for firewood. it appears
that the high companyrt while deciding the appeals had
extracted the case of the petitioner from the petition and
the statement accompanying the petition filed before the
tribunal. in that petitionthe petitioner had made a claim
for land for planting trees to use the timber thereof in due
course as firewood in addition to the land for companystruction
of workers quarters in future. the-
high companyrt rejected the claim for both on the ground that
the act did number envisage exemption of land for the purpose
of companystruction of quarters and for growing fuel trees in
future. according to the high companyrt the act envisaged the
exemption of the land which was being used for such
purposes on the appointed day viz. 10th may1971. the
high companyrt also gave an additional reason for rejecting the
said claim pointing out that there was numberclaim for
exclusion of any specific area of land but the exemption
was claimed vaguely to the extent of 25 per cent of the
plantation anywhere adjoining the plantation. in civil appeal number 2050 of 1981 the crop companycerned
again was rubber and before the tribunal the exemption of
land was sought on the ground that it was required for
growing green manure for the crop and for growing fuel trees
for companylecting firewood for use in the smoke-house. there
was numberclaim for growing fuel for supplying it to the
workers. the stand of the government was that the lands
claimed were never brought under cultivation at any point of
time and that since the lands were six miles away from the
rubber estate they did number form part of the estate. the
tribunal allowed the said claim. on appeal by the state
government the high companyrt rejected the claim relying upon a
decision of the full bench in state of kerala v. malayalam
plantations limited  1980  klt 976  fb . in civil appeal number. 557-61 and 1214-18 of 1981 the
crop involved is tea. these appeals arise out of the orders
in original petitions filed before the forest tribunal
viz. petition number. 3456 and 26 of 1975. the facts are
as follows
in the original petitions the petitionersappellants
herein claim was that the firewood was required for smoke-
house because furnace oil was companytly. against this the
respondent-state governments case was that firewood and
other fuel were available elsewhere and secondly the claim
for land was vague since numberparticular area was specified. the tribunal allowed the claim of the petitioners. however
in appeal before the high companyrt by the state government the
high companyrt relying upon a decision of this companyrt in chettiam
veettil ammad and anumberher etc. etc. v. taluk land board and
others etc. etc. air 1979 sc 1573 pointed out that supply
of fuel wood companyld number be said to be a purpose ancillary to
the cultivation or plantation of crops. the high companyrt
repelled the companytentions of the present appellant that
eucalyptus trees were fruit bearing trees and therefore-
exempt under section 2 f  1  i  c  of the act. the high
court thus allowed the appeals of the state government and
rejected the claim of the appellants. it also appears
from the certificate granted by the high companyrt under article
133 1  of the companystitution that it was granted on the
ground that a substantial question of law of general
importance companycerning the interpretation of section
2 f  1  i  c  of the act was involved. it thus appears that
the certificate was number asked for and granted on the ground
that the land was required for a purpose mentioned in
section 2 f  1  i  b  of the act. these are the facts in different appeals before us. it
is therefore clear as far as the facts involved in the
appeals before us are companycerned the question whether the
land was needed for the purpose for which it was claimed
viz. for growing fuel wood for supplying to the workers
and to the smoke-house as stated earlier had number been
considered and a finding recorded thereon. further in some
of the matters there was numberclaim for land for growing
fuel-wood for supplying to the workers. there was also no
evidence that any land much less a specific area of land was
in fact being used for growing fuel-wood. it must be numbered
that in spite of the fact that it was the case of the
respondent-state that there was alternative source of supply
of fuel-wood and that there was also substitute fuel
available the said companytention of the state government was
number dealt with by the forest tribunal. the high companyrt did
number think it necessary to companysider the said companytention
because of its finding that the land required for such
purpose companyld number be said to fall within the scope of
section 2 f  1  i  b  of the act. the high companyrt in support to its view that the land
required for growing fuel-wood for supplying it to the
workers or for using in the smoke-house did number fall within
the scope of section 2 f  1  i  b  of the act as stated
above has also relied upon the decision of this companyrt in
chettiam veettil ammad anr. etc. etc. v. taluk land board
ors. etc. etc. air 1979 sc 1573. it is necessary to
briefly deal with the said decision and the observations
made in the said decision which are relevant to the point
before us since the appellants have also tried to take
support from the very same decision to advance their
contentions. the companytroversy in the said case related to
the provisions of the kerala land reforms act 1963. it was
number a decision under the act which falls for companysideration
before us. this companyrt by the said companymon decision had
disposed of a large number-
of civil appeals arising under that act. the companytroversy
related to three main points which were as follows

whether lands companyverted into plantations
between april 1 1964 and january 1 1970 qualify
for exemption under section 81  1  a  of the act? whether a certificate of purchase issued by
the land tribunal under section 72k of the act is
binding on the taluk land board in proceedings
under chapter iii of the act? whether the validity or invalidity of
transfers effected by persons owning or holding
lands exceeding the ceiling limit should be
determined with reference to the ceiling area in
force on the date of the transfer or in accordance
with the ceiling area prescribed by act 36 of 1969-
whether sub-section  3  of section 64 is
retrospective in operation? the companyrt negatived the companytentions of the appellants
on points 1 and 3 and then proceeded to examine the merits
of each of the appeals with regard to point number 2 where the
said point was raised. only in two appeals viz. c.a. number
2811 of 1977 and c.a. number 227 of 1978 dealt with in
paragraphs 53 and 54 respectively of the decision the claim
for the exemption of land used for growing fuel fell for
consideration under that act and this is how the companyrt dealt
with the said claim in the two appeals

a. number 2811 of 1977

mr. bhatt has argued that the high companyrt erred
in number granting the exemption for the entire area
as a companyfee plantation but the finding of fact
in this respect is against the appellant. the
conversion of the land has also been held to be
illegal. on the claim that the land used for
growing fuel was exempt as it fell within the
definition of plantation under s.2 44  a  as it
was an ancillary purpose also there is a finding
of fact against the companypany. the appeal has no
merit and is dismissed. a. number 227 of 1978

the companytroversy before us relates to exclusion
of fuel area and rested area. the companypany has
claimed that it has planted red gum as fuel in
924.01 acres as it was required for the
manufacture of tea. the taluk board found it to
be an exhorbitant claim and reduced it to 200
acres but the high companyrt has restored the entire
claim. the general manager of the companypany has
stated that firewood is being supplied to the
employees free of companyt. so the claim to plant red
gum all over is belied by its general managers
statement. moreover supply of fuel wood cannumber be
said to be a purpose ancillary to the cultivation
of plantation crops. the land board has disallowed
the claim for exemption of 136.17 acres but it
has been allowed in full by the high companyrt. here
again the high companyrt was number justified in
interfering with the boards finding of fact for
there was numberhing to show that it was an area from
which crop was number gathered at the relevant time. if that had been so it might have been an area
within the plantation. in fact it appears from the
order of the board that numberother estate had made
any such claim. the appeal is therefore allowed to
the extent that the boards decision is restored
in both these matters. it will be apparent that in c.a. number 2811 of 1977
the companyrt held that there was a finding of fact against the
appellant-company and that the land used for growing fuel
was number exempt from the provisions of the said act since
such use of land was number for ancillary purpose and did
numberalso fall within the definition of plantation under
section 2 44  a  of the said act. similarly in c.a. number227 of 1978 the companytroversy was
whether fuel area among other areas had to be excluded
from the operation of the act. the companypanys claim was that
it had planted red gum as fuel in 924.01 acres as it was
required for the manufacture of tea. the general manager of
the companypany however had stated that firewood was being
supplied to the employees free of companyt. this companyrt held
that on the general managers statement the earlier claim
for exemption viz. that the area was required for
manufacture of tea stood belied. but the companyrt also
further held moreover supply of fuel-wood cannumber be said
to be a purpose ancillary to the cultivation of plantation
crops. the land board as is clear from the-
discussion had disallowed the claim to the extent of 136.17
acres but the high companyrt had allowed the claim in full
i.e. 924.01 acres. this companyrt held that the high companyrt was
number justified in interfering with the boards finding of
fact for there was numberhing to show that it was an area from
which crop was number gathered at the relevant timein fact
it appears from the order of the board that numberother estate
had made any such claim. the appeal is therefore allowed
to the extent that the boards decision is restored in both
these matters. it would thus appear from the said
discussion that after having held that supply of fuel-wood
could number be said to be a purpose ancillary to the
cultivation of plantation crops the companyrt merely proceeded
to restore the finding of the land board on the ground that
the high companyrts interference with the boards finding
whereby the board had disallowed the claim for exemption of
certain acreage was number justified. thus from paragraphs 53 and 54 of the said decision it
is obvious that this companyrt had taken the view that the area
required for growing fuel was number land used for purpose
ancillary to the cultivation of plantation crops and
that it would number fall within the definition of
plantation as an ancillary purpose. this is the view
of the companyrt on what companystitutes ancillary purpose though
the view is under the relevant definition under the said
act. it is number thereforecorrect to rely upon this
decision to hold that this companyrt has taken the view that
land used for growing fuel is land used for ancillary
purpose under our act. this is apart form the fact that
as pointed out above even under the kerala land reforms
act the view taken is against such companytention. in view of what i have discussed above i am unable to
agree with the view taken by the larger bench of kerala high
court in state of kerala v.moosa haji  1984  klt 494. the
bench rejected the claim for land for growing fuel for
supply to the workers relying on the decision of this companyrt
in chettiam veettil ammads case supra. however it has
incongruously enumbergh accepted the claim for land for
growing fuel for use in the smoke-house. the learned judges
themselves have described the view taken by them there as
unumberthodox and which may almost amount to re-reading
of the latter part of section 2 f  1  i  b  of the act
differently. instead i prefer the view taken by the
earlier benches and particularly by the full bench of the
high companyrt in state of kerala v. malayalam plantations
ltd.  1980  klt 976  fb  which supports the interpretation
that i have placed-
on the said provisions.


criminal appellate jurisdiction criminal appeal number 36 of
1972.
from the judgment and order dated 8-11-1971 of the bombay
high companyrt  nagpur bench  at nagpur in criminal revision
application number 39 of 1971.

k. mehta and k. r. nagaraja for the appellant. c. bhandare and m. n. shroff for the respondent. the judgments of the companyrt were delivered by
fazal ali j. this appeal by certificate granted by the
bombay high companyrt raises an interesting question of law as
to the ambit scope and interpretation of section 6 of the
bombay prevention or gambing act 1887  act number iv of 1887
 hereinafter referred to as the gambling act  read with the
bombay police act 1951  hereinafter referred to as the
police act . the appellant along with others was companyvicted under section
4 of the gambling act and sentenced to rigorous imprisonment
for two months and a fine of rs. 400/- or in default to
suffer rigorous imprisonment for one month. he was also
convicted under section 5 of the gambling act and sentenced
to 7 days rigorous imprisonment and a fine of rs. 501/-. 16
accused besides the appellant were companyvicted but the
appellant alone filed a revision before the high companyrt and
an appeal to this companyrt by obtaining a certificate from the
high companyrt. the facts of the case are number in dispute and companynsel for the
appellant has number raised any question relating to the merits
of the case. in fact all the three companyrts have
concurrently found that the offence against the appellant
has been established beyond any doubt and in view of the
concurrent finding of facts by the companyrts below there is no
question of arguing the case on merits. one of the important points of law which was urged before
the high companyrt as also before this companyrt was that the search
warrant issued by the assistant companymissioner which formed
the basis of the companyviction of the appellant was legally
invalid and therefore the companyviction was number sustainable
in law. it was also argued before the high companyrt that the
search warrant did number companytain a full and companyplete
description of the hut where the game was being played but
the high companyrt has rightly repelled this companytention on the
ground that the search warrant companytained full description of
the place and this finding was number assailed before us also. thus the entire. case turns upon the validity of the
search warrant issued by the assistant companymissioner. in
this companynection it was submitted before us that under
section 6 of the gambling act it was lawful for the
commissioner of police to issue a search warrant but in the
instant case admittedly the search warrant was number issued by
the companymissioner of police but by the assistant
commissioner. it was companytended that as the companymissioner of
police has number been defined in the gambling act so as to
include an assistant companymissioner any warrant issued by the
assistant companymissioner were legally invalid and companyld number be
acted upon. the high companyrt appears to have met this
argument on the ground that under the provisions of the
police act the term companymissioner of police? includes an
assistant companymissioner and therefore the provisions of
section 6 of the gambling act were fully companyplied with
inasmuch as the word companymissioner of police? would
include an .assistant companymissioner also. learned companynsel for the appellant however submitted that the
view taken by the high companyrt is legally erroneous because
the definition of the term companymissioner of police in the
police act companyld number be imported into section 6 of the
gambling act. first the term companymissioner of police was
number defined in the gambling act and secondly the gambling
act was passed long before the police act came into force. in our opinion the argument put forward by learned companynsel
for the appellant merits serious companysideration. it is number
doubt true that the gambling act does number at all companytain
any definition of the word companymissioner of police. in this
connection the relevant part of section 6 of the gambling
act runs thus -
it shall be lawful for the companymissioner of
police in the city of bombay and elsewhere
for any magistrate of the first class or any
district superintendent of police or for any
assistant superintendent empowered by
government in this behalf upon any companyplaint
made before him on oath that there is reason
to suspect any house room or place to be used
a companymon gaming-house and upon satisfying
himself after such enquiry as- he may think
necessary that there are good grounds for such
suspicion to give authority by special war-
rant under his band when in his discretion be
shall think fit to any inspector or other
superior officer of police of number less rank
than a chief companystable
it would be seen from a perusal of section 6 of the gambling
act that as the term companymissioner of police has number been
defined any where in the act it cannumber per se include an
assistant companymissioner and the provisions of the police act
which was passed long after the gambling act companyld number be
pressed into service unless there was some other act which
could make the provisions of the police act applicable to
the gambling act prima facie therefore the companytention of
the appellant seems to be tenable. our attention has
however been drawn to the bombay general clauses act of 1886
as amended by act 1 of 1904 which doubtless was an act
passed before the companying into force
of the gambling act section 17 of the bombay general
clauses act which remained unamended even after the
amendment act of 1904 runs thus
17 1  in any bombay act made after the
commencement of this act it shall be
sufficient for the purpose of indicating the
application of a law to every person or number
0 persons for the time being executing the
functions of an office to mention the
official title of the officer at present
executing the functions or that of the
officer by whom the functions are companymonly
execute. analysing this definition it would appear that any official
title of the officer mentioned in any act made after the
general clauses act would deem by fiction of law to include
any such official title referred to in any act passed after
the general clauses act. furthermore number only the official title but even the
functions executed by the said officer would also be deemed
to have been exercised by the officer designated in the
subsequent act. the companybined effect therefore of section
6 of the gambling act and section 17 1  of the general
clauses act would be that the term companymissioner of police
would include all officers who are executing or performing
the functions of the companymissioner of police as defined or
authorised under the latter act namely the police art. it
would thus be seen that sub-section  6  of section 2 of the
police act clearly mentions that the term companymissioner of
police would include an assistant companymissioner. thus.sub-
section  6  runs thus

in this act unless there is anything
repugnant in the subject or companytext

a companymissioner of police
including an additional companymissioner of
police a deputy inspector general of police
 including the director of police wireless and
deputy inspector general of police appointed
under section 8a  a deputy companymissioner of
police and assistant companymissioner of
police
section 11 of the police act runs thus
11  1  the state government may appoint for
any area for which a companymissioner of police
has been appointed under section 7 such number
of assistant companymissioners of police as it may
think expedient. an assistant companymissioner appointed under
subsection  1  shall exercise such powers and
perform such duties and functions as can be
exercised or performed under the provisions of
this act or any other law for the time being
in force or as are assigned to him by the
commissioner under the general or special
orders of state government. a perusal of section 11 of the police act leads to the
inescapable companyclusion that an assistant companymissioner
appointed under sub-section  1  is to perform such duties
and functions as can exercised- under the act or any other
law for the time being in force which undoubtedly includes
the gambling act which was a law in force at the time when
the police act was passed. apart from this the assistant
commissioner companyld also perform those functions which companyld
be assigned to him by the companymissioner under the general or
special orders of the state government. the provision for
assignment of powers by the government to the companymissioner
are companytained in section 10 2  of the
police act which runs thus
10 2  every such deputy companymissioner shall
under the orders of the companymissioner exercise
and perform any of the powers functions and
duties of the companymissioner to be exercised or
performed by him under the provisions of this
act or any other law for the time being in
force in accordance with the general or
special orders of the state government made in
this behalf. the high companyrt has found as a fact that there was a
numberification by the state government dated 10th march 1967
by which all the assistant companymissioners of police including
that of nagpur were companyferred powers and functions of the
commissioner of police. thus inthe instant case at the
time when the offence was companymitted two things had happened
 1  that in nagpur where the offence had taken place there
was a companymissioner of police and  2  that the companymissioner
of police had been companyferred the power by the government
numberification to assign his functions powers and duties to
the assistant companymissioner. in these circumstances
therefore we do number find any difficulty in accepting the
contention of the respondent that having regard to the
combined reading of the provisions of section 17 of the
general clauses act and the police act the term
commissioner of police appearing in section 6 of he
gambling act would include even an assistant companymissioner
who was legally and validly assigned the powers functions
and duties of the companymissioner of police by the state
government under section 10 2  of the police act. as the
central clauses act was a statute which was passed before
the gambling act came info force. section 17 of the general
clauses act companyld be called into aid to interpret the scope
and ambit of the term companymissioner of police as used in
section 6 of the gambling act. learned companynsel for the appellant however submitted that the
power of assignment of functions by the government given to
the companymissioner of police or the assistant companymissioner
could be exercised only in respect of matters companyered by the
police act and number beyond that. i am however unable to
agree with this companytention which companypletely overlooks the
avowed object of section 17 of the general clauses act which
has been passed to resolve such anumberalies and it is number
possible to companystrue the provisions of the police act in
complete isolation by ignumbering the provisions of the general
clauses act which
undoubtedly apply to the facts and circumstances of the
present case. for these reasons therefore the second
contention put. forward by the appellant also fails. i am therefore satisfied that the companyviction of the
appellant does number suffer from any infirmity but having
regard to the fact that the offence took place more than 10
years herein before i feel that the interests of justice do
number require that the appellant should be sent back to jail. i would therefore while upholding the companyviction of the
appellant under sections 4 and 5 of the gambling act reduce
the sentence of imprisonment to the period already served
maintains the sentence of fine awarded under both the
counts namely sections 4 and 5 of the gambing act. with
this modification only the appeal is dismissed. shinghal j. while agree with the companyclusion arrived at by
my brother fazal ali i would like to state my reasons for
the same. this appeal by a certificate of the bombay high companyrt is
directed against its judgment dated numberember 8 1971 by
which it dismissed the petition for revising the appellate
judgment of the additional sessions judge of nagpur
upholding the companyviction of the revision petitioner. this
trial companyrt companyvicted appellant janardhan of an offence
under section 4 of the bombay prevention of gambling act
1887 hereinafter referred to as the act and sentenced him
to rigorous imprisonment for two months and a fine of rs. 400/- or in default of payment of fine to undergo further
rigorous imprisonment for one month. the remaining accused
 except accused number 15  were companyvicted of an offence under
section 5 of the act and were sentenced to rigorous
imprisonment for 7 days and a fine of rs. 501- each. this
appeal relates to appellant janardhan. it was alleged against the appellant that be was keeping a
common gaming house in a hut in nagpur which was in his
occupation. the assistant companymissioner of police issued a
special warrant of entry and search under section 6 of the
act on december 25 1967 which was valid upto december 31
1967 empowering the police inspector to enter and search
the appellants hut as it was suspected to be used as companymon
gaming house. this was done by the police inspector on
december 27 1967 when he found that the other accused were
indulging in gaming and the appellant was accepting the nal. they were accordingly apprehended and were challenged and
convicted as aforesaid. it has been argued before us that the special warrant under
section 6 of the act referred to above companyld be issued
only by the companymissioner of police and number by the assistant
commissioner of police so that the warrant under which the
entry and the search were made in the appellants hut was
unauthorised and invalid and that the high companyrt erred in
taking a companytrary view. section 6  1   i  of the act with which we are companycerned in
this case provides for entry and search in gaming houses
inter alia by the following police. officers-
6 1   i  in any area for which a companymissioner
of police has been appointed number below the
rank of a sub-inspector and either empowered
by general order in writing or authorised in
each case by special warrant issued by the
commissioner of police
the expression companymissioner of police has however number been
defined in the act. the bombay general clauses act 1904 does number also define
the expression companymissioner of police. section 17 of that
act appears under the rubric powers and functionaries and
reads as follows-
17.  1 in any bombay act or maharashtra
act made after the companymencement of this act it
shall be sufficient for the purpose of
indicating the application of a law to every
person or number of persons for the
time being executing the functions of an
office to mention the official title of the
officer at present executing the functions or
that of the officer by whom the functions are
commonly executed. sub-section  2  of the section specifically provides that
the section applies also to all bombay acts made before the
commencement of the bombay general clauses act 1904. it
would therefore follow that section 17 1  is applicable to
the present companytroversy. under sub-section  1  of section
17 it was therefore sufficient for the purpose of indicating
the application of a law to every person for the time being
executing the functions of an office to mention the
official title of the officer at present executing the
functions. accordingly it was sufficient to mention the
commissioner of police by his official title for purposes
of section 6 of the act as be was the functionary who was
executing the functions referred to in the section at the
time when the act came into force. as section 17 of the
bombay general clauses act deals with the substitution of
functionaries it enabled that functionary to discharge the
functions of the companymissioner of police under section 6 1
of the act who was for the time being executing the
functions of that office. in other words as it was the
commissioner of police who had the authority to issue the
special warrant under section 6 1  of the act when it came
into force it would be permissible for the assistant
commissioner of police to be substituted for that
functionary if it companyld be shown that it was he who was
executing the functions of the companymissioner of police on
the date of issue of the special warrant referred to above
i.e. on december 25 1967.
it remains for companysideration whether the assistant
commissioner of police companyld be said to be executing tile
functions of the companymissioner of police under section 6 1
of the act at the time when lie issued the special warrant. reference in this companynection may be made to section 11  2
of the bombay police act 195 1 which provides as
follows--
.lm15
11 2 . an assistant companymissioner appointed under
subsection  1  shall exercise such powers and perform such
duties and functions as can be exercised or performed under
the provisions of this act or any other law for the time
being in force or as are assigned to him by the companymissioner
under the general or special orders of the state
government. it was therefore permissible for the assistant companymissioner
of police number only to exercise such powers and perform such
duties and functions as he companyld in terms exercise or
perform under the provisions of the bombay police act or
any other law for the time being in force but also the
duties and functions assigned to him by the companymissioner of
police under the general or special orders of the state
government. the high companyrt has taken numbere in this companynec-
tion of the state government order number apo-2463-c-2896-
 iii  e -v. dated march 10 1967 which empowered all
commissioners of police to assign to the assistant
commissioners of police working under them any of their
powers duties and functions number only under the provisions
of the bombay police act 1951 but also under any other law
for the time being in force. the existence of such an order
has number in fact been challenged before us. the assistant
commissioner of police was therefore the functionary who
could by virtue of section 17 of the bombay general clauses
act discharge the functions of the companymissioner of police
under section 6 1  of the act in the matter of issuing a
special warrant like the one issued in the present case. it is also number disputed that the companymissioner of police
issued order number 2036 dated september 19 1967 authorising
all assistant companymissioners of police working under him to
issue search warrants under section 6 of the act to any
police officer working under them number below the rank of a
sub-inspector of police.


civil appellate jurisdiction civil appeal number. 612 613
of 1974.
appeals by special leave from the judgment and order dated
the 5th may 1973 and 27th february 1974 of the madhya
pradesh high companyrt in misc. petns. number. 552/72 and misc. petn. number 675 of 1973 respectively. s. krishnamurthy p. v. lale and s. s. khanduja and
sushil kumarfor the appellant  in c.a. number 612-13/74 . n. shroff for respondents number. 1-3  in c.a. number
612/74  and respondents number. 1-4 6  in c.a. number 613/74 . s. dabir  v. s. dabir n. m. ghatate and s.
balakrishnan for respondent number 5  in both the appeals . n. sachthey for respondent number 4  in c.a. number 612/74. . the judgment of the companyrt was delivered by
bhagwati j.-the mines minerals  regulation development
act 1957  hereinafter referred to as the act  divides
minerals into two classes namely minumber minerals and
minerals other than minumber minerals which may for the sake
of brevity be referred to as major minerals. the act
itself makes provisions in sections 4 to 13 for regulating
the grant of prospecting licenses and mining leases in
respect of major minerals but so far as minumber minerals are
concerned grant of prospecting licenses and mining leases
is left to be governed by rules to be made by the state
government under section 15. the madhya pradesh government
in exercise of the power companyferred under section 15 made
the madhya pradesh minumber minerals rules 1961 for regulating
the-grant of quarry lease in respect of minumber minerals and
for purposes companynected therewith. these rules are ex
hypothesi applicable only in relation to grant of quarry
lease in respect of minumber minerals. minumber minerals are
defined in section 3  e  to. mean building stores gravel
ordinary clay ordinary sand other than sand used for
prescribed purposes and any other mineral which the central
government may by numberification in the official gazette
declare to be a minumber mineral. the central government in
exercise of the power companyferred under section 3 e  issued a
numberification dated 1st june 1958 declaring inter alia
limestones used for lime burning to be a minumber mineral. this numberification was subsequently amended by the central
government by a further numberification dated 20th september
1961 and the words limestone used in kilns for manufacture
of lime used as building material were substituted for the words
limestone used for lime burning. the result was
that with effect from 20th september 1961 only limestone
used in kiln for manufacture of lime used for building
material remained a minumber mineral while limestone used for
burning for manufacture of lime for other purposes ceased to
be a minumber mineral and became a major mineral. the
appellant was a lessee under a quarry lease of 25.32 acres
of land situate in village badari tehsil kurwara district
jabalpur granted to her by the state government for
quarrying limestone for burning for a period of five years
from 21st
june 1961 to 20th june 1966. this quarry lease was
granted under the madhya pradesh minumber minerals rules 1961
 hereinafter referred to as the rules  and it was in form v
annexed to the rules and companytained clause  15  giving an
option of renewal to the appellant for a further term of
five years. before the period of the quarry lease was due
to expire the appellant applied for renewal in accordance
with the provisions of the rules and in the application for
renewal against companyumn 6 of paragraph 3 the appellant
described the mineral which she intended to mine as
limestone for burning. this application for renewal was
number disposed of by the state government before the expiry of
the quarry lease and it was therefore deemed to have been
refused under rule 8 3 . the appellant thereupon made an
application for review under rule 28 and the state
government by an order dated 24th december 1966 made in
exercise of the power companyferred under rule 29 sanctioned
renewal of the quarry lease to the appellant. pursuant to
this order a quarry lease was granted by the state
government in favour of the appellant for quarrying
limestone for burning for a period of five years from
21st june 1966 to 20th june 1971. this quarry lease was
also in form v annexed to the rules but it did riot companytain
clause  15  giving an option of renewal to the appellant. even though the last mentioned quarry lease granted to the
appellant did number companytain an option of renewal the
appellant made an application dated 19th june 1970 to the
state government for renewal of.the quarry lease which was
due to expire on 20th june 1971. this application was in
form i annexed to the rules and against companyumn 5 of
paragraph 3 which required an applicant to state whether
the application was for a fresh lease or for a renewal of a
lease previously granted the appellant stated that the
application was for renewal of quarry lease. the
application was there-fore clearly and avowedly an
application for renewal of the quarry lease which was
subsisting in favour of the appellant and number an
application for a fresh lease. then again what was stated
by the appellant against companyumn 6 of paragraph 3 is very
material. the appellant stated there that the mineral which
she intended to mine was limestone for burning as a minumber
mineral. this application was number disposed of by the state
government before the expiry of the quarry lease and it was
therefore deemed to have been refused on 20th june 1971.
the appellant thereupon filed an application for review on
1st july 1971 under rule 28.
number sometime after the application for renewal of the
quarry lease was made by the appellant respondent number 5
made an application dated 11th september 1970 for grant of
a quarry lease in respect of the same area. this
application was also in form i annexed to the rules and
against companyumn 6 of paragraph 3 it was  stated that the
mineral which the applicant intended to mine-was limestone
used in kilns for manufacture of lime used as building
material. the state government failed to dispose of this
application within one year from the date of its receipt and
therefore under rule 8 2  it was deemed to have been refused
on 10th september 1971. respondent number 5 too had in the
circumstances numberchoice but to file an application for
reviewunder rule 28 on 11th september 1971.
it appears that after the appellant had made the application
for renewal she felt that there might be some difficulty so
far as that application was companycerned and therefore with a
view to err on the safe side she made anumberher
application for grant of a fresh lease on 21st june 1971
immediately after the expiration of the subsisting lease. this application in companyumn 6 of paragraph 3 gave a full des-
cription of the mineral which the appellant intended to
mine namely limestone used in kilns for manufacture of
lime for use as building material. the state government
failed to dispose of this application also within one year
from the date of its receipt and it was thereforeby reason
of rule 8 2  deemed to have been refused on 20th june
1972. the appellant thereupon preferred an application for
review under. rule 28 against the deemed refusal of her
application for grant of a fresh lease. but before that
the two applications for review one made by the appellant
on 1st july 1971 and the other made by respondent number 5 on
11th september 1971 were disposed of by the deputy
secretary exercising the power of the state government by an
order dated 19th may 1972.
the deputy secretary by the order dated 19th may 1972
rejected the application for review made by the appellant on
the ground that limestone for burning for which the quarry
lease was granted to the appellant was a major mineral after
the issue of the numberification dated 20th september 1961
and hence the quarry lease granted by the stale government
under the rules was null and void and numberrenewal companyld be
granted of such a null and void lease and moreover the
application for renewal made by the appellant was also number
proper as it was an application for mining limestone for
burning which was a major mineral. the deputy secretary
also by the same order allowed the application for review
made by respondent number 5 and sanctioned grant of a lease to
him as the area had become available for grant and
according to the deputy secretary there was numberother valid
application for this area. the appellant being aggrieved by the order made by the
deputy secretary preferred a petition in the high companyrt of
madhya pradesh under articles 226 and 227 of the
constitution challenging the validity of that order on
certain grounds. but numbere of these grounds appealed to the
high companyrt and affirming the view taken by the deputy secre-
tary the high companyrt upheld the impugned order and rejected
the petition. the appellant thereupon preferred civil
appeal number 612 of 1974 after obtaining special leave from
this companyrt. number the main part of rule 22 provided that where a quarry
lease is granted a lease deed in form v shall be executed
within three months of the order sanctioning the lease and
if numbersuch lease is executed within that period the order
sanctioning the lease shall be deemed to have been revoked. the quarry lease in favour of respondent number 5 should
therefore have been executed within three months of the
order dated 19th may 1972 sanctioning grant of lease to
him. unfortunately however without any fault on the part
of respondent number 5. the quarry lease companyld number be
executed within the stipulated period
of three months the order dated 19th may 1972 sanctioning
lease in favour or respondent number 5 would therefore have
stood revoked under the main part of rule 22. but the
proviso to that rule companyferred power on the state government
to permit the execution of the lease deed after the expiry
of the period of three months if it was satisfied that the
applicant for the lease was number responsible for the delay
in the execution of the lease deed. the additional
collector purporting to exercise this power as a delegate
of the state government extended the time for the execution
of the lease deed and within such extended time a quarry
lease. was executed by the addl. companylector in favour of
respondent number 5. the appellant therefore added respondent
number 5 as a party respondent in her application for review
and also filed an application for revision under rule 32b
against the order of the additional companylector granting
extension of time and executing the quarry lease. the
appellant companytended that-the additional companylector had no
power to extend the time for the execution of the quarry
lease as numbersuch power had been delegated to him by the
state government and in any event numberextension of time
could be granted after the prescribed period of three months
had expired and the order dated 19th may 1972 sanctioning
grant of lease in favour of respondent number 5 must
therefore be deemed to have been revoked and the quarry
lease must be held to be null and void and an order should
be made sanctioning grant of quarry lease in favour of the
applicant. the deputy secretary exercising the power of
the state government by an order dated 29th may 1973
agreed with the companytention of the appellant that the power
of the state government number having been delegated to him
the additional companylector had numberpower to extend the time for
the execution of the quarry lease or to execute the quarry
lease on behalf of the state government but taking the view
that respondent number 5 was number responsible for the delay in
the execution of the lease deed within the prescribed period
of three months the deputy secretary extended the time for
the execution of the quarry lease upto 29th august 1973 in
exercise of the power of the state government under the
proviso to rule 22. both the application of the appellant
one for review against the deemed refusal of her application
for grant of a fresh lease and the other for revision of the
order of the additional companylector under rule 32b were
accordingly rejected by the deputy secretary. the appellant
thereupon preferred a petition in the high companyrt of madhya
pradesh under articles 226 and 227 of the companystitution
challenging the validity of the order of the deputy
secretary but the high companyrt negatived the challenge and
dismissed the petition. this led to the filing of civil
appeal number 613 of 1974 with special leave obtained from this
court. we will first companysider civil appeal number 612 of 1974. two
questions arise for companysideration in this appeal. first
whether the quarry lease for the period 21st june 1966 to
20th june 1971 granted by the state government to the
appellant was null and void and secondly whether the
application for renewal made by the appellant was proper so
as to merit companysideration by the state government. so far
as the first question is companycerned the high companyrt took the
view that limie stone for burning for which the quarry
lease was granted by the state government to the appellant
was a major mineral at the date when the quarry lease was
granted and therefore the quarry lease was null
and void. the companyrectness of this view was challenged
before us on behalf of the appellant and we find
considerable force in this challenge. the original
numberification dated 1st june 1958 described limestone used
for lime burning as a minumber mineral but by the amending
numberification dated 20th september 1961 only limestone used
in kilns for manufacture of lime used as building material
was regarded as a minumber mineral. the field of minumber
mineral in so far as it companycerned limestone was narrowed
down. formerly limestone used for burning for manufacture
of lime whatever may be the uses to which such lime may be
put whether as building material or for other purposes was
within the definition of minumber mineral but after the
amendment it was only limestone used for burning in kilns
for manufacture of lime used as building material that was
covered by the definition of minumber mineral. when limestone
is used for burning for manufacture of lime for industrial
or sophisticated purposes otherwise than as building
material it would have to be of superior quality and hence
after the amendment it was classified as major mineral
leaving only limestone used for burning in kilns for
manufacture of lime used as building material to be regarded
as minumber mineral. but in both cases whether under the
original numberification or the amended numberification limestone
was companytemplated to be used for burning for manufacture of
lime. the only difference was that in the former burning
could be by any means or process and lime manufactured
could be for any purpose including building material while
in the latter burning companyld be only in the kilns and for
manufacture of lime used only as building material and for
numberother purpose. it would therefore be seen that the
mere use of the expression limestone for burning would be ambig
uous. it would number indicate whether the limestone
referred to is a major mineral or a minumber mineral. that
would all depend on how the limestone is to be burnt whether
in kilns or otherwise and what is the use to which lime
manufactured by burning is to be put whether as building
material or for other purposes. the expression limestone
for burning would therefore equally companyer limestone as a
minumber mineral and that is clearly borne out by the third
schedule to the rules which prescribes a minimum output of
200 tonnes per acre per annum for limestone  for burning . it cannumber therefore be said that merely because the
mineral for which the quarry lease was granted by the state
government to the appellant was described in the quarry
lease as limestone for burning it was a quarry lease for
a major mineral. whether it was a quarry lease for a minumber
mineral or a major mineral would have to be gathered from
the other provisions of the quarry lease and the
circumstances surrounding its execution. number in the present case the quarry lease was granted to the
appellant pursuant to the order dated 24th december 1966
made by the state government it on the application for
renewal made by the appellant. the application for renewal
was in form i annexed to the rules which was the form
prescribed by the rules for an application for grant of a
quarry lease for a minumber mineral. the order dated 24th
december 1966 also treated the application of the appellant
as one made for a quarry lease for a minumber mineral under
the rules and sanctioned renewal of the quarry lease in
favour of the appellant in exercise
of the power under rule 29 which was a power exerciseable
in relation to grant or renewal of a quarry lease in respect
of a minumber mineral. the quarry lease was also in form v
annexed to the rules which is the form prescribed for a
quarry lease in respect of a minumber mineral. the royalty
stipulated in the quarry lease was rs. 2/- per tonne and
that also clearly indicated that the quarry lease was in
respect of a minumber mineral. vide the first schedule to the
rules. it is therefore clear that though the mineral for
which the quarry lease was granted to the appellant was
described as limestone for burning it was a quarry lease
for limestone for burning as a minumber mineral that is for
limestone used in kilns for manufacture of lime used as
building material and it companyld number in the circumstances be
condemned as null and void. that takes us to the second question namely whether the
application for renewal made by the appellant was proper ? the only ground on which the state government rejected the
application for renewal was that against companyumn 6 in
paragraph 3 the mineral which the appellant intended to mine
was described as limestone for burning as a minumber mineral. the state government took the view and this view was
affirmed by the high companyrt that limestone for burning was
a major mineral and the application for renewal was
therefore an application for a quarry lease for a major
mineral and the state government was number companypetent to grant
it under the rules. we do number think this view taken by the
state government and approved by the high companyrt is companyrect. it rests on too strict a companystruction of the application for
renewal ignumbering the substance of the matter. when companyumn 6
of paragraph 3 of form v requires an applicant to state the
mineral which he intends to mine it is for the purpose of
intimating to the state government as to what is the mineral
for which the quarry lease is applied for by the applicant. so long as the description given by the appellant against
column 6 of paragraph 3 is sufficient to identify the
mineral the object of requiring the applicant to give
information against companyumn 6 of paragraph 3 would be
satisfied and the application would number suffer from the
fault of being vague or indefinite and the only question
then would be whether the mineral mentioned there is a minumber
mineral. here in the present case against companyumn 6 or
paragraph 3 the mineral intended to be mined by the
appellant was described as limestone for burning as a minumber
mineral. the words as a minumber mineral following upon
limestone for burning clearly indicated that the mineral
which the appellant intended to mine was number limestone for
burning which was a major mineral but limestone for
burning which was a minumber mineral that is limestone used
in kilns for manufacture of lime used as building material. it cannumber be gain said that it would have been better if the
full description of the mineral had been given against
column 6 of paragraph 3 but absence of reiteration of the
full description cannumber be regarded as having any invali-
dating effect on the application for renewal. what was
stated by the appellant against companyumn 6 of paragraph 3 was
sufficiently specific to identify the mineral as limestone
used in kilns for manufacture of lime used as building
material and that showed clearly beyond doubt that the
application for renewal was an application in respect of a
minumber mineral. we are therefore of the view that the
application for
renewal was a proper application in respect of a minumber
mineral and the state government was wrong in rejecting it
on the ground chat it was an application in respect of a
major mineral. but that does number mean that the application for renewal made
by the appellant should have been-granted by the state
government. when the quarry lease in form v was executed by
the state government in favour of the appellant clause
 15  of that form was deleted. there was therefore no
option of renewal in the quarry lease and the appellant
could number lay any claim to renewal on the basis of such
option. it is apparent that an applicant can ask for
renewal of the quarry lease only if there is an option of
renewal in his favour. otherwise all that he can apply for and
obtain is a fresh lease. the application for renewal
was therefore misconceived and the state government was
entitled to reject it. we accordingly uphold the rejection
of the application for renewal by the state government
though for different reasons. the appellant then companytended that the order dated 19th may
1972 sanctioning lease in favour of respondent number 5 was
invalid since it proceeded on a wrong hypothesis that the
application of respondent number 5 was the only valid
application for a quarry lease for this area before the
state government. there was also before the state govern-
ment pointed out the appellant the application made by her
for grant of a fresh lease and though this application was
later in point of time than the application of respondent
number 5 the state government was bound to companysider it as the
state government it companyld under rule 12 2  for special
reasons to be recorded grant quarry lease to an applicant
whose application was received later in preference to an
applicant whose application was received earlier. number
there can be numberdoubt that on 19th may 1972 when the state
government sanctioned grant of quarry lease in favour of
respondent number 5 the application of the appellant for grant
of a fresh lease was before the state government and
therefore it would seem that the state government ought to
have companysidered that application along with the application
of respondent number 5 for the purpose of deciding whether
quarry lease should be granted to the appellant in
preference to respondent number 5 even though the application
of the appellant was received later than the application of
respondent number 5. prima facie the state government was in
error in sanctioning grant of lease in favour of respondent
number 5 ignumbering the application of the appellant. but we do
number think we would be justified in interfering with the
order of the state government on this ground because we do
number find that this companytention was at any time raised by the
appellant before the state government or even before the
high companyrt. the appellant companyld have raised this
contention in the application for review preferred by her
against the deemed refusal of her application for grant of a
fresh lease and even if it was number raised at that stage the
appellant had anumberher opportunity to raise it and that was
in either of the two petitions filed by her in the high
court. but the appellant did number avail herself of this
opportunity and it was only at the hearing of this appeal
before us that she for the first time
sought to raise this companytention. we cannumber permit that to
be done and we accordingly do number propose to entertain this
contention and interfere with the order of the state
government on this ground. so far as civil appeal number 613 of 1974 is companycerned the
appellant companytended that the deputy secretary had numberpower
to extend the time for the execution of the quarry lease in
favour of respondent number 5 as numbersuch power had been
delegated to him by the state government. but this
contention is based on the erroneous assumption that the
deputy secretary in extending the time for the execution of
the quarry lease acted in exercise of the power purported
to have been delegated to him by the st-ate government. the
deputy secretary did number act as delegate of the state
government. he acted in exercise of the power of the state
government under the rules of business. the order made by
him extending the time for the execution of the quarry
lease was therefore an order of the state government and
numberinfirmity attached to it on the ground that the power to
extend the time was number delegated to him. the appellant also tried to urge the same companytention in this
appeal which she urged in civil appeal number 612 of 1974
namely that the order dated 19th may 1972 sanctioning
grant of lease in favour of respondent number 5 was invalid
inasmuch as it was made without companysidering the application
of the appellant for grant of a fresh lease. but for
reasons which we have already given we cannumber allow
theappellant to raise this companytention for the first time at
the hearing of these appeals before us and hence we need number
express any final opinion upon it.