The Writ Petition raises an interesting question as to whether plantain is a tree or act. This question arises against the background of the following facts. The petitioner-Devasthanam leased an extent of 6 acres 17 cents of dry land in Narasingampettal village in Thanjavur District in favour of the first respondent herein under a lease deed dated 23rd January, 1958. The first respondent owns mere than five standard acres in the same village. It is on the basis of this, the petitioner contended that the lands leased by the Devasthanam to the first respondent should revert to the Devasthanam from the notified date, under the provisions of S. 7 of the Madras Public Trusts (Regulation of Administration of Agricultural leads) Act, 1961 (Madras Act 57 of 1961), hereinafter referred to as the Act. For this purpose, the petitioner filed a petition before the Authorised Officer, Land Reforms, Thajavur-1. The case of the first respondent was that the leased lands were cultivated with plantains and to the said lands the provisions of the Act did not apply, by virtue of 8. 51 of the Act. The authorised Officer, by his order dated 19th December 1966, rejected the case of the first respondent and held that the plantains in question did not constitute orchards to come within the scope of S. 51 of the Act and therefore ordered the first respondent to surrender the leased lands to the petitioner herein. Against this order, the first respondent preferred an appeal to the District Revenue Officer, Thanjavur, who, by his order dated 28th March 1967, reversed the order of the Authorised Officer and allowed the Appeal. According to the District Revenue Officer, the leased lands came within the scope of S. 51 of the Act and therefore the provisions of the Act did not apply, with the result the first respondent was under no obligation to surrender the leased lands to the petitioner herein. It is to quash this order of the District Revenue Officer, the Devasthanam has filed the present writ petition under Art. 226 of the Constitution of India.

Before I proceed to deal with the arguments advanced before, me. It is necessary to refer to the Statutory provisions on the basis of which the Authorised Officer as well as the District Revenue Officer came to contrary conclusions in regard to the nature of the leased lands. The Act was enacted with the the object of providing for regulating the administration, either by personal cultivation or by lease, or agricultural lands held by public trusts and their cultivating tenants in the State of Madras, since such regulation will subserve the common good and increased agricultural production. S. 2(1) of the Act defines the expression “Agriculture” as inclusive of:

(i) horticulture;

(ii) the raising of crops, grass or garden produce;

(iii) the use by an agriculturist of land held by him or part thereof for grazing;

(iv) The use of any land for the purpose of raising manure crops;

(v) dairy farming;

(vi) poultry farming;

(vii) Livestock breeding; and

(viii) growing of trees.

S. 2(9) defines the word “forest” in an inclusive form and states “Forest” includes any wasteland containing trees or shrubs”. S. 2(18) defines the expression “orchard” in the following terms;

“Orchard” means an enclosure or assemblage of fruit or nut-bearing trees, constituting she main crop therein, whether of spontaneous or artificial growth and includes nandavanams, but does not include trees in seen bands as are act within or adjunct to such enclosure or assemblage.”. S. 2(29) defines the expression ‘tope’ to the following effect:

“‘Tope’ means any land containing groups of fruit or nut-beating trees including palmyrah trees, constituting the main crop in such land, whether of spontaneous or artificial growth and includes orchards, but does not include trees on such bunds as are not within or adjunct to such groups of trees”.

It is Sub-S. (1) of S. 7 of the Act which provides that where, on the notified date, any cultivating tenant under any public trust is, in possession of land in excess of the cultivating tenant's celling area, the possession of the land which is held by the public trust and which is in excess of the cultivating tenant's celling area shall, with effect from the date aforesaid, revert to the public trust subject to such rules as may be made in this behalf. S. 51 of the Act on which alone reliance has been placed, so far as is relevant for the purpose of this case, provides;

S. 51(iv). Nothing contained in this Act shall apply to lands converted late orchards or topes or arecanut gardens, whether or act such lands are contiguous or scattered.

Provided that each lands shall be exempt only so long as they continue to be orchards, tapes, or arecanut gardens”.

It is also necessary to refer to one other Section in the Act. Chapter IV of the Act deals with fair rent and S. 31 occurring therein provides:

“Nothing in this Chapter shall apply to any land during the period when such land is used for raising as main crop, sugarcane, plantain or betel vines or any crop which does not give any yield for a continuous period of two years or mere from the time of cultivation or to any contact merely for the collection or harvesting of the crop of any kind.”

It is agreed between the parties that if the plantain is considered to be a tree, it will come within the scope of the definition of ‘orchards’ and therefore S. 51 of the Act to the extent to which I have extracted will cover the case and the leased lands will be outside the scope of Act. On the ether hand, if the plantain is not considered to be a tree, the leased lands will not fall within the definition of ‘orchards’ as defined in S. 2(18) of the Act and S. 51 of the Act will act cover the case and consequently the first respondent will have to surrender the leased lands to the petitioner devasthanam, pursuant to S. 7(1), of the Act.

Before the Authorised Officer as well as the District Revenue Officer, the parties proceeded to pat forward their respective contentions on the basis of dictionary meaning of the word ‘tree’ as well as the word ‘plantain’. It is only in this context this Authorised Officer pointed out:

“Plantains have act been defined in the Act. The Act contemplated exemption of lands converted late orchards or topes. Orchard has been defined as an enclosure or assemblage of fruit or nut-bearing trees constituting the main crop therein. The plantain trees are not trees with woody trunk but are only plants. The concise Oxford Dictionary (1954 Edition) gives the meaning of plantains as kind of plant long herb with bread fiat leaves spread out, close to ground—tree like tropical herbaceous plant allied to banana and bearing similar fruit.

I, therefore, held that plantains are act orchards to be exempted under S. 51 of Act 57/61 but are only agricultural produce”.

As against this, before the District Revenue Officer, obviously instead of concise Oxford Dictionary, the Shorter Oxford English Dictionary appears to have been relied en and the District Revenue Officer has observed.

“But the only point to be determined is whether the schedule lands would be exempt from the previsions of Act 57/61 as per S. 51 of the Act. According to this section nothing contained in Act 57/61 shall apply to lands converted into orchards or topes or arecanut gardens whether or not such lands are contiguous scattered provided that such lands shall be exempt only so long as they continue to be orchards topes, or arecanut gardens. An orchard would even refer to an perennial for the cultivation of fruit trees according to the Oxford English Dictionary. Similarly according to the same dictionary even some perennial herbaceous plant grow to a great height as the plantain would be tree. Hence a plantain is a fruit tree and according to the dictionary meaning. It being a tropical fruit bearing tree has to be considered as earning within the meaning of an orchard. Of course, the plantain tree lasts for about two years and from each tree offshoots spring up and grow in the place of the parent tree. There is thus a natural replacement of the plantain Garden. Though the raising of plantains is an agricultural purpose still in view of their very nature the plantain garden can in my opinion be considered as an orchard. Farther in this case it is seen from the evidence that the lands are raised with plantain of perennial variety for more than 12 years. So I consider that so long as the lands continue to he cultivated with plantains obviously due to the nature and situation of the land they should be treated as orchards coming within the exemption of S. 61(iv)-a mistake for S. 51(iv) of Act 57/61.”

However, before, me much more materials were placed and the arguments proceeded an the basis of act only the meaning of the words contained in the dictionaries but also wish regard to the botanical concept of tree and plantain as well as the meaning of the expression “Plantain” as understood in ordinary common parlance. In view of the materials placed before me and the arguments advanced before me, I proceed to consider the point in controversy both with reference to the botanical concept of free and plantain as well as the dictionary meaning and the intrinsic evidence that is available in the Act as to what the legislature itself contemplated with regard to the plantain—whether as a tree or not?

As far as the dictionary meaning is concerned the word ‘tree’ has been defined in the Shorter Oxford English Dictionary at page 2239 as follows:

“A perennial plant having a self-support-lag woody main stem or trunk (which usually develops woody branches at some distance from the ground), and growing to s considerable height and size, (b) Extended to bushes or shrubs or erect growth and having a single stem; and even some perennial herbaceous plants which grow to a great Might, as the banana and plantain.”

The same dictionary defines the expression ‘plantain’ at page 1517 as follows:

“A tree-like tropical herbaceous plant (Musa paradistaca) closely allied to the Banana (M. Spientum) having immease un-divided oblong leaves, and bearing its fruit in long densely clustered spikes”.

Thus, it will be seen that the expression ‘plantain’ is defined as a trees like plant, while the meaning of ‘tree’ in extended sense is said to cover even some perennial herbaceous plants which grow to a great height as the banana and plantain. It is settled that the botanical name for this type of plant in Musa, derived from the Arabic expression ‘Moaz’.

“East Indian Plantains and West Indian Bananas are mere varieties of the same plants, the banana tree is marked with purple spots, fruit shorter and rounder, softer pulp, more delicate taste.” (Vide—Page 688 of the Manual of the Administration of the Madras Presidency - Vol. III, (Glossary).

The history of this plant as contained in the origins of cultivated plants, published by Kogan Paul, Trench, Trubner and Co., Ltd., London, 1009, extracted in the Encyclopaedia Britannlen, Vol. 3 at Page 18 is as follows:

“The antiquity and wild character of the banana in Asia are incontestable facts. There are several Sanskrit Barnes. The Greeks Latins and Arabs have mentioned it as a remarkable fruit tree. Pliny speaks of it distinctly. He says, the Greeks of the expedition of Alexander saw it in India and he quotes the name pala which still persists in Malabar. Sages reposed beneath its shade and ate of its fruit. Hence the botanical name Musa sepientum’ Mouz is from the Arabic Mouz or Mawoz, which we find as early as the 12th century in Eba Baithar……There is an immense number of varieties of the Banana in the south of Asia, both on the islands and on the continent; the cultivation of these verities dates in India, in China, and in the Archipelago from an epoch impossible to realise; it even spread formerly into the islands of the Pacific and to the west coast of Africa; lastly, the varieties bore distinct names in the most separate Asiatic Languages, such as Chinese, Sanskrit and Malay. All this indicates great antiquity of culture consequently a primitive existence in Asia, and a diffusion j with or even anterior to that of the human race.”

The same Volume of the Encyclopaedia Britanniea refers to banana in the following term: at page 18).

“The plant is a gigantic herb, springing from an underground stem or rhizome to form a false trunk. 10 to 20 feet high, composed of the leaf sheaths and crowned with a rosette of 10 to 20 oblong to elliptic leaves which sometime attain a length of 10 to 12 ft. and a breads of 2 ft. The large flower spike, carrying numberous yellowish flowers in half-whorl-like clusters, emerges at the top of the false trunk and heeds downward to become the bench of 50 to 150 individual fruits or ‘fingers’ which are grouped in clusters or ‘Bands’ or 20 to 20. Once the plants have fruited they die, and are replaced by others (‘sackers’) which arise from the underground stem. The life of one stool or clamp thus continues for years.

Bananas belong to the genus Musa, of the family Musaceac, but the botany of the cultivated forms is confused. Tall growing varieties of which the fruit is eaten uncooked are commonly listed as forms of Musa saptennins; the dwarf or Cavendish variety as Musa cavendish; and the plantains or forms eaten only when cooked as Musa paradisiacal.”

To the same effect is the following description of the nature of the plantain in the Chamber's Encyclopaedia, New Edition, Vol. 2 at page 90:

“The plant consists of a condensed underground starchy rhizome of which the many bunds in succession grow up into erect trunks bearing a terminal cluster of large feathery leaves. The trunk is really a false stem composed of numeroas overlapping leaf-bases. The shoot, originally at ground level, bears distaily the embryonic inflorescence which after the leafy ‘tree’ is fully developed, pushes up through the centre of the ‘trunk’ and emerges at the crown of the plant. The flowers, borne in clusters or ‘hands’ in the axils of bracts, are of two kinds; the distal flowers, which soon fall, are male (staminate) and the proximal ones female”.

The Dictionary of the flowering Plants and Ferns by J.C Willis, Sixth Edition, published at the Cambridge University Press, defines the expression ‘Musa’ as follows(at page 435):

“Large herbs (to 10 ft.) with rhizome and ‘false’ aerial stems. The inflorescence springs from rhizome and emerges at the top of the aerial ‘stem’.

Strasburger's text book of Botany-New English Edition, 1964, Published by Longmans, states at page 738 as follows:

“Musa paradisiaca ssq. saplentum, the banana, a native of south-east Asia, is an important tropical fruit, and tts starchy form (Plantain, ssp, Paradisiaca) a staple food. It has a false stem formed from the leaf sheaths tightly rolled around each other, the true stem is a short rhizome. From the centre of this false stem arises the pendulous it florescence borne on a long, relatively weak axis, the infructescne bears the berry like fruits in double transverse rows”.

Complete Gardening in India, Revised Edition, by K.S Gopalaswamieagar, at page 598 states:

“Botanically, the Banana is an interesting plant. The tree stem is the thick underground rhizome which sends out one set of roots spreading horizontally in the top layers of the soil and another set down to a depth of about 6 feet. Buds in the rhizomes develop and push out of the soil is suckers, which are pseudo-stems and grow from 6 to 30 feet high into large herbaceous plants. The pseudo-stems are made up of sheathing bases of leaves. The flowers are produced in a prolonged spike which bends over from the centre of the pseudo-stem. They are arranged in clusters alternating with succulent reddish scales which drop off when the fruit stalks develop, that is, when ‘hands’ are formed out of the clusters of flowers. The top clusters bear pistillate flowers and it is only these that form fruits. The staminate and the neutral flowers (in which neither the pistils nor stamens are well developed) are towards the end of the spike. The cultivated varieties of Banana are seedless.”

Webster's Third New International Dictionary at page 1732 refers to the plantain merely as “a banana plant (Musa paradisiaca)”.

It is with reference to these statements contained in the various text books, the contention of the learned counsel far the petitioner is that the plantain is not a tree but only a herb or a plant. It is, in this context, necessary to refer to the meaning of the word ‘tree as contained in the Shorter Oxford English Dictionary. The Webster'a Third New International Dictionary defines the expression “tree” at page 2435 as follows:—

“a woody perennial plant having a simple main stem that may be short but is usually considerably elongated, has generally few or not branches, on its lower part, and is crowned with a head of branches and foliage or (as in palms) of foliage only a shrub or herb that grows naturally in or is trained into an abborescent from (old rose trees) (a sturdy banana tree) some plants that are tall trees under favourable conditions are mere shrubs at the extremes of their range)”.

The Dictionary of the flowering plants and Ferns already referred to defines the word ‘tree’ at page 656 as follows:

“a woody plant usually with only one stem at base and more than 20 ft. high”.

The same Dictionary defines the word ‘herb’ at page 322 as fallows”:

“a plant with no woody part above ground”.

The Chamber's Encyclopeadia, New Edition, Vol. 13 already referred to defines ‘tree’ thus:(at page 756.).

“A tree is defined as a woody perennial which rises on a single main trunk, a shrub as one in which several stems spring from ground level”.

Similarly, the Encyclopaedia Britannica, Vol. 22 defines the expression ‘tree’ at page 444 as follows:

“A woody, perennial, seed-bearing plant which at maturity is at least 20 ft. tall and which is characterised by a single trunk that terminates in a well defined crown. Several ferns indigenous to lash, tropical rain forests attain the stature of trees, but they are not usually regarded as such since reproduction of plants of this category is accomplished by means of spores”.

Thus, it will be seen that botanically, as contained in the text books and encyclopaedias and according to the meanings given in the various dictionaries, a plantain is not a tree and strictly speaking it is only a large herb and not a tree at all and is a tree, if at all, only in a loose sense. Mr. T.R Srinivasan, learned Counsel for the first respondent, sought to rely upon certain statements contained in The Manual of the Administration of the Madras Presidency Vol. III relating to Glossary at page 687, where the word ‘plantain’ and its different names in different languages. In India and the origin of the names in these languages are considered. Here again, the expression ‘tree’ is used only loosely. But the same volume states with regard to ‘plantain’ as follow:

“Botanically Musa Paradisiaca, linn., Musacese (Vricsham, 142). Alias Musa cliffortlans, mensarla, sapientum, Musa from Arabic, meaning taste. Herbaceouse, stem simple, thickly clothed with the sheathing petioles of the leaves; leaves forming a tuft en the apes of the stem; spike of flowers compound rising from the apex of the stem each division enclosed in a large spathe with male flowers at the base, female, or hermaphrodite ones at the upper end; perianth with sis superior divisions, five of which are grown together into a tube, slit at the back, the sixth is small and concave; style short; fruit oblong, fleshy, obscurely three to five concerned, with numerous seed berried in culp; flowers yellowish whitish. The long, vertical, sheathing leaf-stalks overlap one another, forming soft stems, 4-15 or more feet high; from the top of the sheath broad leaves expand 6.10 feet in length; fruit is produced in a large beach from the top of the sheathing stem; a bench of plantains may contain as many as hundred fruits, each bunch from 4-9 inches long and 3-5 inches in circumference; fruit itself is about six inches long, ripens of a pale straw colour, and is act fit to be eaten till it can be removed from the bunch without the slightest effort; and the fruit gives 37 percent of dry matter”.

From the above, it will be seen that the meaning of the expression ‘tree’ according to these works will not take in ‘plantain’.

Apart from this, the general tenor and the provisions of the Act will clearly indicate that the Act is intended to cover and apply only to these plants which yield periodically like what are known as wet and dry crops in the State of Madras and is act intended to cover and apply to perennial trees. It is only for this purpose, exemption is provided under S. 51 of the Act for orchards. Ordinarily a tree is a perennial plant yielding periodically and it does not the with the yield, while in the case of a plantain, it is not a perennial plant like a tree and it dies when case it has yielded the crop, though there is a natural replenishment by seekers.

However, I am fully conscious of the fact that when the Legislature enacted the Act, the Act was intended to apply to the lands in this State and to the people who are familiar with the lands and the crops there in. Consequently, the more reliable test will be to fined out whether, according to the common usage in this area, the plantain is considered to be a tree or not. Generally speaking, in this State the plantain in Tamil is referred to only as a tree. But in view of one consideration to which I shall make immediate reference, I am unable to hold that tho expression ‘tree’ occuring in the definition of the word ‘orchard’ in S. 2(18) of the Act has to be understood in this sense. From the definition of the term ‘forest’ contained in S. 2(9) of the Act, it is clear that the legislature was fully conscious of the difference between a tree and a shrub. So also it must be presumed that the Legislature was fully conscious of the distinction between a tree and a herb. If so, I am unable to bold that the Legislature, when it used the word ‘tree’ in Section it intended to being within that term the plantain, This conclusion of mine is supported by one other provision in the Act, namely, S. 31, to which I have already made reference, and, in my opinion, that Section is clinching in this context. It will be seen that the Section uses the expression ‘plantain along with the expression ‘sugarcane’, and ‘betel vines’ and from the very nature of it, ‘plantain’ has to take its colour from the context in which it has been used along with the other expressions ‘sugarcane’ and ‘Betel vines. It is admitted before me by the Counsel on bath sides that sugarcane and betel vines can, by no stretch of imagination, be called trees. If, so, I am of the view, that the expression ‘plantain’ has also been used in that Section, in the lease in which the expression ‘sugarcane’ has been used, and therefore plantain cannot be considered to be tree any more than sugarcane can be considered to be a tree.

There is one other circumstance which is significant with reference to the scope of S. 31 of the Act. That section exempts the lands during the period whoa they are used far raising, as the main crop, augareane, plantain or betel vines or any crop which does act give any yield for a continuous period of two years or mere, from the time of cultivation, from the operation of Chapter IV alone dealing with fair rent. The fact that each a land has been exempted from the operation of Chapter IV, by implication, will show that such a land is within the scope of the Act. If such a land is not within the scope of the Act at all, by virtue of S. 51 of the Act, it will be totally otiose and pointless for the Legislature to provide for exemption of such land from the operation of Chapter IV, alone. It has to be noted that both S. 51 and 31 of the Act, exempt the lands only so long as they are used for raising the crops mentioned therein. Ones the land ceases to be used for raising such crops, then automatically the Act and, afortieri Chapter IV, will apply to sack a ease. One circumstance that has to be taken notes of with regard to S. 51 of the Act is that the extracted portion of that Section uses the expression ‘lands converted into orchards’. That means the Act applies to lands, but if they are converted into orchards and so long as the converted state continues, the Act has no application. The significance of conversion contemplated by the section cannot be last sight of.

In this content, it is pertinent to note the previsions contained in Sec. 73(vii) of the Madras Land Reforms (Fixation) of Ceiling on Land) Act, 1961 (Madras Act 58 of 1961) which is another enactment passed along with the Act for the purpose of carrying eat the same scheme. That Act also defines the expression ‘orchards’ as wall as ‘Tope’ in the same terms in which they have bees defined in the Act. S. 73(vii) of that Act states:

“73(vii). Except as otherwise provided in Sub-Sections (2) and (3) of Section 5 and Section 6, Nothing contained in this Act shall apply to lands converted on or before the 1st day of July, 1959, into orchards or topes or arecanut gardens, whether or act such lands are contiguous or scattered:

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

The only difference between that section and section 51 of the Act is that with regard to the time of conversion, nothing is mentioned in Section 51 of the Act, while in Sec. 73(vii) of the Madras Act 58 of 1961, only the lands converted late orchards or topes or areacanut gardens on before the 1st day of July 1959, are exempt. The reason for this difference is obvious. Under Madras Act 58 of 1961, celling is fixed and the lands in excess of the celling are acquired by the State and therefore there was need for fixing a particular point of time with reference to which lands may be exempt. Though for the parents of construing the provisions of the Act, the expression used in another enactment may not throw much light, still in the context of the fact that both the Acts were enacted by the Madras Legislature as part of and for the purposes of giving effect to the same scheme. I have referred to that provision, sad the point for which I have made the reference is, with regard to the necessity far conversion of the lands into orchards or topes, etc., for the purpose of attracting the section dealing with the exemption.

I have already referred to the order of the Authorised Officer as well as that of the District Revenue Officer and though both of them have referred to the word, ‘conversion” used in S. 51 of the Act, still they did act feces their attention to that aspect with reference to the facts of this case. However, it is act necessary to say anything with regard to the same, since I have come to the conclusion that the Legislature, while enacting the Act, had act contemplated ‘plantain’ as a tree, so as to make it fall within the scope of the expression used in the definition of the word ‘orchard’ in S. 2(18) of the Act, attracting the applicability of S. 51(iv)of the Act.

For these reasons, I am of the opinion that plantain is not a tree and therefore the leased lands do not come within the scope of ‘orchard’ defined in S. 2(18) of the Act and consequently they are not exempt under S. 51 of the Act, the result of this will be, the order of the District Revenue officer revising the order or the Authorised Officer is not correct and a writ of certiorari will issue quashing the impugned order of the District Revenue Officer. The writ petition is allowed.

Mr. T.R Srinivasan, learned counsel for the first respondent, requested that the first respondent may be given one year's time to surrender the lands to the Devasthanam, since there are plantain plants on the lands in question. However, I think time till 30th June, 1970 will be more than ample to meet the requirements of the situation and the first respondent will have time till 30th lane 1970 to surrender the lands to the Devasthanam.

There will be no order as to costs.

V.C.S