The State of Madras vs K.G. Ramani Iyer and Others

Natarajan, J.—The respondents'' case that their lands in R. S. Nos, 41/4, 82/5 and 82/6 are exempt from the operation of the Madras Land

Reforms (Fixation of Ceiling on Land) Act, 1961, hereinafter referred to as the Act, on the ground that they are orchards, was not accepted by the

Authorised Officer, Land Reforms, Mayuram. But, on appeal, the Land Tribunal (The Subordinate Judge of Mayuram) accepted the contention of

the respondents and allowed their appeal. It is to canvass the correctness of the judgment of the Tribunal that the State of Madras represented by

the Collector of Thanjavur has preferred this revision petition.

The learned Additional Government Pleader raises two contentions in support of the petitioner''s case that the order of the Tribunal is wrong and

erroneous. It is firstly argued that the respondents have not adduced proof to show that the lands in question continued to be orchards from the

date of their conversion as orchards on or before 1st day of July, 1959, which is the stipulated date u/s 73 (vii) of the Act and that, without such

proof being adduced, the respondents are not entitled to claim exemption from the operation of the Act. The second ground that is urged is that the

growing of plantains will not constitute an orchard as defined in Section 3(32) of the Act,

In support of the first contention it is pointed out that, though the Adangal extract for fasli 1368 makes reference to plantain cultivation in R. S.

No. 41/4, the respondents have not produced the adangal extract for the subsequent faslis and that the adangal extract produced for fasli 1376

evidencing plantain cultivation in all the three survey numbers cannot be taken to mean that in between 1368 end fasli 1376 plantain cultivation had

been done in all the three survey numbers without break. The learned counsel for the respondents refutes the contention of the learned Additional

Government Pleader in this behalf and points out that according to the evidence of P.W. 1, the karnam, the respondents had been raisins plantain

crops in the three survey numbers for the last 20 years. Apart from that, the further contention of the learned counsel for the respondents is that the

proviso to Section 73 (vii) does not stipulate that the land-owner claiming exemption under that section should give proof that there has been

continuous planting of plantains in the land for which exemption is sought for, from a period prior to 1-7-1959 to such period when the Act came

into force. Prima facie, the contention of the learned counsel for the respondents in this behalf does not appear to be sound.

Section 73(vii) and the proviso read

as follows:

Except as otherwise provided in Sub-sections (2) and (3) of Section 5 and in Section 6, nothing contained in this Act shall apply to (vii) lands

converted on or before the 1st day of July. 1959, into orchards or topes or arecanut gardens, whether or not such lands are continuous or

scattered:

Provided that such lands shall be exempt only so long as they continue to be orchards, topes or arecanut gardens.

A reading of the section and the proviso lend support to the contentions of the learned Additional Government Pleader that in order to derive the

benefit conferred by Section 73 (vii), the applicant must not only prove that the land in respect of which exemption is sought for was converted on

or before 1st day of July, 1959 into an orchard or tope or arecanut garden, but that he must further show that from the date of conversion, the said

land had continued to be maintained as an orchard, tope or arecanut garden till such tune the exemption is asked for. The oral evidence of the

karnam, without documentary evidence in the shape of adangal extracts, cannot establish the case of the respondents that the three items of lands

continued to be orchards ever since the date of their conversion till the date of the application for exemption of the lands u/s 73(vii). This

controversy need not however be gone into in great detail in this case on account of the fact that on another aspect of the matter, the petitioner''s

contentions clearly deserve to be accepted.

As I have already stated above, the second contention of the learned Additional Government Pleader that the raising of plantain crops will not

render the lands where such crops are raised orchards and that unless the said lands could be classified either as orchards, or topes or arecanut

gardens, the respondents will not be entitled to claim the benefit of the exemption provided u/s 73(vii). In order to appreciate the contention of the

learned Additional Government Pleader, it is necessary to make reference to the definition of an orchard occurring in Section 3(32) of the Act. The

definition is as follows--

Orchard means an enclosure or assemblage of fruit or nut-bearing trees, constituting the main crop therein, whether of spontaneous or artificial

growth, but does not include trees on such bunds as are not within or adjunct to such enclosure or assemblage.

The question as to whether plantain is a tree or not arose for consideration in Akshavanathaswami Devastanam v. Ramaswami Reddiar, (1971) 84

Mad LW 335. Ismail, J. after an elaborate consideration of the matter has held that plantain is not a tree and that botanically. as contained in the

text books and encyclopaedias, and according to the meaning given in the various dictionaries, a plantain is not a tree and that strictly speaking, it is

only a large herb and not a tree at all and is a tree, if it all, only in a loose sense. It is no doubt true that the case which arose for consideration in

the above decision was one under the Madras Public Trusts (Regulation of Administration of Agricultural Lands) Act. 57 of 1961. But that does

not make any difference in the matter. The definition of ''orchard'' in the said Act is identically the same as that found in Section 3 (32) of the Act

concerned in this revision except for the small difference that in Act 57 of 1961, the additional words ''and includes nandavanams'' find place in the

definition of ''orchard''. The decision of Ismail J. has been followed by Sadasivam J. in Govindasami Padayachi v. Suryanarayanaswami, (1971) 84

MLW 369, which was also a case under Act 57 of 1901. Sadasivam J. has held that plantains are not trees and hence the exemption u/s 51(iv) of

that Act could not be invoked on the ground that the land under cultivation of plantains will constitute orchards. He has further held that on the

same reasoning it is not possible to hold that lands in which plantain crops are raised are topes.

I am in respectful agreement with the view expressed in these two decisions, viz., that plantain is not a fruit-bearing tree as contemplated in Section

3(32) of the Act. Once it is held that plantain is net a fruit-bearing tree it necessarily follows that the enclosure wherein the crop is raised will not be

an orchard and once it is not held to be an orchard, the respondents are not entitled to claim exemption from the provisions of the Act under the

cover of Section 73(vii) .

The Tribunal has not gone into this aspect of the matter. On the other hand, it has taken it for granted that plants which yield plantain fruits are

undoubtedly plantain trees and, on that wrong surmise, has upheld the contention of the respondents that the three survey numbers in respect of

which exemption was sought for from the provisions of the Act are orchards.

The revision therefore succeeds and is allowed. The order of the Tribunal will stand set aside and the order of the Authorised Officer will stand

restored. There will be no order as to costs.