Malankara Rubber and Produce Co.,
& Ors Vs. State of Kerala & Ors  INSC 127 (28 April 1972)
SIKRI, S.M. (CJ) SHELAT, J.M.
KHANNA, HANS RAJ
CITATION: 1972 AIR 2027 1973 SCR (1) 399 1972
SCC (2) 492
R 1981 SC 522 (29,30) R 1988 SC 59 (5) D 1990
Kerala Land Reforms Act 1964 as amended in
1969 and 1971Validity of sub-section (1A) of s. 96-Public purpose in subsection
(1A) whether can be read down as public purpose connected with agrarian
reform-Provisions relating to kudikidippukars whether covered by expression
'agrarian reform'-Reduction of ceiling by amending Act without payment of
compensation at market value-Validity-Act whether discriminatory is not
granting exemption to pepper and areca plantations and cashew nut and cocoanut
gardens-Whether offends Art. 14 of Constitution of India-Validity of provisions
relating to Rubber plantations-Forests, dairy farms, lands under teak and
eucalyptus trees whether exempted under Act.
The Kerala Land Reforms Act 1 of 1964 was
included in the Ninth Schedule and was protected by Art. 31-B of the
Constitution. The Act was amended by the Kerala Land Reforms (Amendment) Act,
1969. The amending Act was not included in the Ninth Schedule and therefore it
could claim protection only under Art. 31A. The validity of the amended Act was
considered by the Kerala High Court in Narayan Nair v. State, (A.I.R., 1971
Kerala 98). The High Court, inter alia, held that the lands in question were
'estates' within the meaning of Art. 31A, and that the reference in s. 96 to
reservation of acquired land for 'public purpose' must be read down to mean
public purpose connected with agrarian reform, and so read the Act. as a whole
was Protected by Art. 31A though portions failed for want of that protection.
After this judgment the Kerala legislature by
a further amendment added sub-s. (IA) to s. 96 and provided therein that
"Notwithstanding anything contained in sub-s. (1) the Land Board may, if
it considered that any land vested in the Government under section 86 and
section 87 is required for any public purpose, reserve such land for such
The present petitions challenging various
provisions of the Act as amended were filed under Art. 32 of the Constitution.
HELD : (i) It was for the petitioners to
establish that the lands held by them and mentioned in the petitions were not
"estates' so that they could be out of the purview of the Act. it was all
the more necessary for them to do so in view of the categorical findings of the
Full Bench of the Kerala High Court in Paragraph 5 and 99 of the judgment is
Narayan Nair's case. In the absence of material in the petitions to show Prima
facie that the lands of the petitioners were not estates it could not be held
that the petitioners were not affected by the Kerala Land Reforms Act of 1964
as amended in 1969. In any event, so far as the provisions of the 1964 Act are
concerned the same could not be challenged under Art. 31 by reason of its
inclusion in the Ninth Schedule to the Constitution. [426E-F] (ii) The
reduction of the Ceiling limit by the Amending Act of 1969 does not attract the
operation of the second proviso to Art. 31 A(1) [426G] The contention that
reduction in the ceiling area fixed by the 1964 Act had to be compensated for
by Payment of market value of the difference between the ceiling areas fixed by
the two Acts could not be 400 accepted inasmuch, as the "ceiling limit
applicable to him under any law for the time being in force in Art. 31 A' can refer
only to the limit imposed by the law which fixes it and not any earlier law
which is amended and repealed..
[413G] It was open to the legislature to
prescribe a ceiling for all I landholders whether they are incorporated or not,
and merely because the 1964 Act did not touch these incorporated bodies, no
objection can be taken to their being brought within. the fold by the Amending
Act,. [413H-414B] (iii) Section 96(1A) is no doubt couched is too general and
wide a language of including public purpose which would not be those failing
within the 'expression 'agrarian reform'. The fact however that the legislature
has once again used the same general language in spite of the interpretation
given by the High Court in Narayan Nair's case need not lead us to strike down
wholly the sub-section.
In accordance with the well recognised canon
of construction adopted in a number of cases decided by this Court the subsection
must be read down to mean only reservation of the land for such public purposes
as would bring about agrarian reform inasmuch as any acquisition under Art.
31-A for any public purpose other than that falling under the expression
"agrarian reform" cannot be considered as having the protection of
that Article, [415H-416D] Ranjit Singh v. State of Punjab,  1 S.C.R. 82,
The provision for settlement of tenants of
kudikidippukars in small holdings would be covered by agrarian reform or
purposes ancillary thereto. The problem of the kudkidppukars has always been
intimately connected with agricultural 1-and and can Legitimately come within
"agrarian reform". Historically they were allowed to come on to the
land because of the needs of an agricultural population and any scheme which
envisages the improvement of their lot and grant of permanent rights to them
would not transgress the limits of agrarian reform. This principle however only
relates to lands inpanchayat areas and kudikidappukars etc. on them. The
provisions for purchase contained in s. 80A of the Act by kudikidappukaran of their
kudikidappus for consideration less than the mark' value of the land when the
same was below the ceiling area fixed tinder the Act and within the area of the
personal cultivation of the landlord would be hit by the second proviso to Art.
31-A of. the Constitution. [421H-422C] Armupha Konar v. Sanku Muthammal, A.I.R.
1950 Madras 487, Saimva Umma v. Kunhammad. I.L.R.  Kerala 815 and Mariant
& Ors. v. Ouseph Xavier, 1971 K.L.T. 707, referred to.
(iv) Lands which are interspersed between
sites of commercial under takings and house-sites in municipalities with land-,
surrounding them are not agricultural lands fit for acquisition under the Act.
[427D] (v) The provisions of the Act withdrawing protecton to pepper and area
plantation could not be challenged under Art. 14 if the lands were estates
within the meaning of Art.
3 IA(2) (a). [426H] (vi) The Act was not
discriminatory with regard to cashew and cocoanut gardens.. [426H] (vii) The
withdrawal of exemption from lands continuous to rubber plantations by the
Amending Act of 1964 could not be challenged. [427A] However important it may
be for the owner of the rubber plantation to have or hold lands in the
immediate vicinity of the plantation for its 401 expansion it. cannot be said
that the Rubber, Act gave the Union Legislature any power to direct a rubber
manufacturer to increase his production by bringing any additional land under
rubber plants. All that s. 17 of the Act aims at is to make it obligatory on
the owner of an estate to secure a licence if he wants to plant rubber on land
which does not bear it or replant rubber in the portions of the land which are
under it. Further although it was the function of the Rubber Board under s. 8
to take measures for the development of the rubber industry, it did not appear
that the expansion of a rubber plantation or guidance in that direction by the
Board was contemplated under the section. [424 G-425 Al Tika Ramii & Ors.
etc. v. The State of Uttar Pradesh and Ors.,  S.C.R. 393 and State of
Patilchand,  3 S.C.R. 712, referred to.
(vii) Forest lands and jungles would be
exempt from the operation of the Act. A jungle unless it is included within an
estate consisting inter alia of lands held for agricultural purposes cannot be
acquired so as to have the protection of Art. 31A : if the holding or tenure in
which the jungle lies consists oily of jungle it cannot be so acquired. The
same private forests are specially exempted from acquisition under the
Act.[426B-C] (ix) Lands under eucalyptus or teak which are the result of
agricultural operations normally would be agricultural 'lands and therefore
would be exempt under the provisions of the Act. However lands which are
covered by eucalyptus or teak growing spontaneously as in a jungle or a forest
would be outside the purview of acquisition [426 D]
ORIGINAL JURISDICTION : Writ Petitions Nos.
117, 132 to 134, 149, 167, 168, 209 and 516 of 1970.
Under article 32 of the Constitution of India
for enforcement of the Fundamental Rights.
M. C. Chagla, Joy Joseph, B. Datta, J. B.
Dadachanji, O.C. Mafhur and Ravinder Narain, for the petitioner (in W.P. No.
117 of 1970).
K. T. Hzrindranath, B. Datta, J. B.
Dadachanji, O. C.Mathur and Ravinder Narain, for the petitioner (in W.Ps. Nos.
132 and 133 of 1970).
M. C. Setalvad K. T. Harindranath, K. R.
Nambiar, B.Datta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the
petitioner (in W.P. No. 134 of 1970).
M. Natesan, Fazee Mahmood, P. C. Chindi, A.
T. M. Sampath and E. C. Agrawala, for the petitioner (in W.P. No. 149 of 1970).
M. C. Chagla, B. Datta, J. B. Dadachanji. O.
C Mathur and Ravinder Narain, for the petitioners (in W.P. No. 167 of 1970).
J. B. Dadachanji, O. C. Mathur and Ravinder
Narain and S. Swarup, for the petitioner (in W.P. No. 168 of 1970).
A. V. V. Nair, for the petitioner (in W.P.
N,). 516 of 1970).
K. T. Harindranath and A. Sreedharan Nambiar,
for the petitioner (in W.P. No. 516 of 1970).
402 M. M. Abdul ,Khader, Advocate, General
for the, State of Kerala, M. M. K. Nair and Varghese Kaliath, for-the,
respondent (State of Kerala) (in all the Petitions) B. Sen and R. N. Sachthev,
for respondent no.2 (in w.p. no 117 of 1970).
R. N. Sachthey, for respondent No. 2 (in
W.Ps. Nos. 132 to 134 and 149 of 1970).
K. N. Bhat and K. L. Hathi, for respondents
Nos, 3 to 6 (in W.P. No. 133 of 1970).
The Judgment of the Court was delivered by
Mitter, J.-This is a group of nine writ petitions challenging the vires of the
Kerala Land Refroms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land
Reforms (Amendment) Act, 1969 (Act 35 of 1969) with the object of preventing
the, State, from acquiring lands in the possession of the petitioners in excess
of the ceilings imposed thereunder.
The details of the holdings of the
petitioners are briefly as follows :Writ Petition No. 117/1970 Petitioner
company owns a block of land AC. 2313-00 in extent out of which AC. 1818-00
were planted with rubber trees, AC. 30-00 with pepper, AC. 5-50 with are canut,
260-00 under cocoanut, AC. 12-50 under paddy,
AC. 25-00 under nutmeg and fruit trees, the rest being jungle and waste.
Writ Petition No. 132/70 Petitioner, a,
citizen, owns land in Kesargod taluk consisting of AC. 21-00 under cocoanut,
AC. 6-00 paddy land and AC. 34-00 dry land. He also leased out AC. 91-00 of
land to tenants. He owns jointly with his brother an arecanut garden of AC.
5-50, cocoanut plantation of AC. 4900 and cashew plantation of AC. 25-00.
Writ Petition No. 133/1970 Petitioner owned
lands in Kasargod taluk AC. 9-94 in extent which has been usufructuarily
mortgaged for a long time.
Writ Petition No. 134/1970 Petitioner is a
ryotwari pattadar holding pepper garden AC.
30-00, arecanut AC. 45-00, rubber estate AC.
445-00 cashew plantation AC. 25-00, cocoanut garden AC. 44-00 and paddy lands
of AC. 2-00, all under personal cultivation. He has also leased out AC. 673-00
of dry land to tenants. Besides the above he cultivates as lessee AC. 56-00 of
pepper garden and owns 403 with his brother Ac. 22-00 of pepper garden and
arecanut garden etc. He also owns with other members of his family Ac. 19--00
of land set apart and used as dairy farm.
Writ Petition No. 137/1970 Petitioner is a
matadhipati in Kasargod taluk : extent of lands Ac. 348-00 of paddy, Ac.
114-00, of garden land under coconut and arecanut, Ac. 69-00 leased' out to
tenants and Ac. 219-00 of dry land bearing cashew etc. are also leased out.
Writ Petition No. 149/1970 The two
petitioners owned Ac. 95-00 of land in District of Trichur. They also owned Ac.
58-00 in village Azhikode and Ac. 154-00 in village Kadappuram and all the
lands are used for coconut plantation. It is stated in paragraph 2 of the
petition that the petitioners have employed a large number of
kudikiddappukarans either as watchmen or workers to look after the lands.
Writ Petition No. 167/1970 Petitioner is a
Private Limited Company and petitioner No. 2 is a director and shareholder.
Petitioner owns rubber plantations of Ac. 22-00, cashew Ac. 65-00, pepper Ac.
1600, arecanut Ac. 58-00, cocoanut Ac. 13-00, paddy land Ac.
5-50, cardamom Ac. 305-00. cocoanut Ac. 5-50,
36--00, eucalyptus Ac. 530-00.
Writ Petition No. 168,/1970 Petitioner owns
Ac. 3888-00 of which Ac. 3000-00 are private forest and Ac. 400-00 under
rubber. There are also cocoanut gardens, arecanut gardens, teak and eucalyptus
Writ Petition No. 207/1970 Petitioner owns
lands in Kasargod taluk in excess of the ceiling area.
Writ.Petition No. 516/1970 The petitioner
owns Ac. 2-69 of land out of which Ac. 1-21 is his residential compound containing
several buildings He also owns Ac. 1-84 of paddy land in his direct possession
besides a few tenants holding Property under him. In the said land of Ac. 2-69
there are nine kudikidippukars (respondents 3 to 11) to each of whom he will
have to, transfer 10 cents of land if s. 80-A of the Act is enforced.
The buildings occupied by these respondents
do not lie close to one another but are spread all over the property and
parcelling out to cents of land to each of them 404 in terms of the provisions
of the Act with valuable cocoanut trees, will destroy the utility of the
petitioner's property Permanently. According to the-petition the Act in so far
as it makes provision for the compulsory transfer of lands under the
petitioner's personal cultivation to kudikidippukar is Rot a law of acquisition
within the meaning of Art. 3 1 A and as such is not entitled to protection
under that Article. The petition however shows that the lands are situate in a
Most of the petitioners do not I give any
indication of their title to the lands which are the subject matter of the
petitions. They all, apprehend that the Act as it stands will affect their
holdings. In the counter affidavit of the State there is a bald statement that
the lands owned or held by the petitioners come within the meaning of the
expression 'estate' as defined in Art. 31-A(2).
In Writ Petition 167 of 1970 there is an
admission that the properties stand in the names of the petitioners as ryotwari
In substance the complaint of the petitioners
is that the ceilings fixed are arbitrary, that plantations of cashew, areca and
pepper and even gardens of cocoanut cannot be acquired. The further complaint
is that the Act is a composite Act intended to affect all the lands whether
agricultural or not and to be used for purposes, some of which would not come
under agrarian reform.
As regards the nature of the title to the
lands i.e. whether they constitute estates or not within the meaning of Art.
31-A(2), it would be difficult to come to any
conclusion with regard to lands of some of the petitioners. In the normal
course of things we would expect petitioners who were faced with acquisition of
their lands under statutes seemingly under the protection of Art. 31-A to state
clearly why their holdings were not estates so as to be without the State's
power of acquisition for the purpose of agrarian reform. This series of
petitions was heard after the disposal of various applications under Art. 226
of the Constitution disposed of by a Full Bench of the Kerala High Court. It is
worthy of note that in paragraph 5 of that judgment of the Chief Justice
concurred in by another learned Judge, the opening sentence runs.
"The lands held by the several
petitioners are undisputable estates within the meaning of Art. 31-A of the
Constitution." The third learned Judge who delivered a separate judgment
stated in paragraph 99 that "the lands involved in these petitions are
estates within the meaning of Art. 31 A has been practically admitted by
counsel appearing in these cases." 405 We may also :note that in
Purushothaman Nambudri v. The State, 'of Kerala(1) this Court came to the
conclusion that Pandaravaka Verumpattomdars and Puravaka tenures, which were
originally situate within the erstwhile State of Cochin but came to form part
of the Kerala State were estates within the meaning of the expression used in
Lands which-are held or let for the purpose
of agriculture as undoubtedly most of these lands are, being covered with
rubber, coffee etc., if held under a single tenure which could be said to, be
equivalent to an estate-would come under Art. 31-A(2)(iii), but waste lands,
forest lands, land for pastures or sites of buildings; and other structures
occupied by cultivators of land etc. would only be out of the purview of Art.
31 A (2) if they are held on independent tenures and are not parts of land held
or let for purposes of-agriculture or for purposes ancillary thereto.
This is the result of the decision of this
Court in U.P. State v. Raja Anand(2). In that case it was held that in the case
of a gran of the nature of a jagir or inam its acquisition for the purpose of
agrarian reform would be protected under Art. 3 1 A in spite of the fact that
hundreds of square miles of forest land were comprised therein.
The Court also held that forest lands, or
waste lands etc.
would not be deemed to be estates within cl.
(iii) (2) of Art. 3 1 A unless the same were held or let for purposes ancillary
The impugned Acts are not the first enactments
of the State to divert lands from the hands of large owners for distribution
among less favoured people. The density of population a substantial portion
whereof is landless, coupled with the high rate of unemployment, have always
been a headache to the State of Kerala. To relieve the latter evil at least
partially, 'he State embarked upon legislation very soon after the
Reorganisation of States in 1956. The Kerala Agrarian Relations Bill was
introduced in the Kerala Legislative Assembly in December 1957 and was passed
by it in June 1969. Ultimately, after some modification, it received the assent
of the President in January 1961 and was intituled the Kerala Agrarian
Relations Act, 1960. Its object was to provide for acquisition of certain types
of agricultural I lands in the State beyond the specific, maximum extents laid
down in the statute. It was attacked on various grounds in this Court by two
groups of writ petitions filed in 1961. The Act was sruck down by this Court in
the second group of petitions reported in Karimbil Kunhikoman v. State of
Kerala (3). The ground urged relevant for our present purpose was that the Act
exempted plantations of tea,. coffee, rubber and cardamom from certain ceiling
Provisions but no such exemption was provided for in the case of plantations of
areca, and pepper and as such was violative of Art. 14. The basis of this
decision was that the-lands held by rycytwari patadars (1) Supp. (1)
S.C.R. 753 at 817. (2) -1 S.C.R. 362.
(3) -Supp. (1) S.C.R. 829.
406 Which came to the State of Kerala by
virtue of the States Reorganisation Act from the State of Madras were not
estates within the meaning of Art. 3 1 A(2(a) of the Constitution and therefore
the Act was not protected by Art.31A in.respect thereof. It may however be
noted that on the same date on which the above judgment was rendered the same
Bench held in Purushottam Nambudiri v. The State of Kerala (supra) that the
validity of the Act could not be, questioned by persons holding land on
Puravaka tenure or Pandaravaka Veruvupattam tenure which satisfied the test as
to what constituted art estate under Art. 31-A(2) (a) of the Constitution.
Chapter II of the 1960 Act provided for the
carrying out of the purposes of the Act in two stages : in the first stage, the
property ,of the land-owner was vested in the State and thereafter the tenant
was given the right to acquire the property from the State. The .scheme of
Chapter III was to provide for a ceiling and any land in excess of the ceiling
was to vest in the Government. The land so vested could be assigned to persons
who did not possess any land ,or possessed land less than Ac. 5-00 of certain
It was held by this Court in Karimbil
Kunhikoman's case that the main purpose of the Act was to do away with the intermediaries
;and to fix a ceiling and give the excess lands, if any, to the landless or
those who had land much below the ceiling. The Court held that the lands held
by a ryotwari pattadar who had come to the State of Kerala by virtue of the
States Reorganisation Act from the State of Madras were not estates within the
meaning of .Art, 31A(2)(a) of the Constitution and the Act was not protected
under Art. 31-A(1) from attack under Arts. 14, 19 and 31 of the Constitution.
With regard to the contention on behalf of the, petitioners that there was no
reason to exclude plantations of areca and pepper from exemption granted to
other plantations like those ,,of tea, coffee, rubber etc.
the Court noted that "The objective of
land reform including the imposition of ceilings on land holdings is to remove
all impediments which arise from the agrarian structure inherited from the past
in order to increase agricultural production, and to create conditions for
evolving as speedily as possible in agrarian economy with a high level of
efficiency and productivity (see D. 178 of the Second Five Year Plan) Even So,
it is recognised that some exemptions will have to be granted from the ceiling
in order that production may not suffer." The main factors to be taken
into account to decide exemptions from the ceiling in the Second Five Year Plan
at p. 196 as noted by this Court were:
407 (1) integrated nature of operations
especially where industrial and agricultural work are undertaken as a composite
enterprise, (2) specialized character of operations, and (3) consideration from
the aspect of agricultural production the need to ensure, that efficiently
managed farms which fulfil certain conditions are not broken up.
According to the judgment it was in pursuance
of this that the Second Five Year Plan recommended exemptions from operation of
ceilings of plantations like tea, coffee, and rubber, where they constitute
reasonably compact areas;
specialised farms engaged in catle bleeding,
dairying, wool raising etc; sugarcans farms operated by sugar factories;
and efficiently managed farms which consist
of compact blocks on which heavy investment or permanent structural
improvements have been made and whose break-. up is likely to lead to a fall in
production. The same view was reiterated in Chapter XIV of the Third Five Year
Plan dealing with Land Reform ceiling on agricultural holdings.
Referring to Farm Bulletin No. 55 relating to
pepper cultivation in India issued by the Farm Information Unit, Directorate of
Extension, Ministry of Food and Agriculture, in September 1959 the Court
observed that "the most important pepper producing State in, India was
Kerala where the cultivation was on an organised plantation over fairly
extensivee areas.." The Court also observed that the initial expenditure
on laying out a pepper plantation could be recovered only after several years.
A similar reference was made to Farm Bulletin No. 14 with regard to arecanut.
On-the material before, the Court it took the view that fixation of ceiling on
arecanut garden would hamper production detrimental to national economy.
Although areca and pepper plantations were not as widespread as tea, coffee and
rubber plantations, the Court found no reason for treating them differently
from tea, coffee etc. Accordingly the Court was of opinion that the provisions
relating to plantations were violative of Art. 14 of the Constitution.
Addressing itself to the question whether the provisions were severable it took
the view that (see P. 861):"the legislature did not intend that the
provisions relating to acquisition by tenants and ceilings should apply to
plantations as defined in the Act, so that they may have to be broken-up with
consequent loss of production and detriment to national economy. It seems that
the legislature could not have intended in order to 408 carry out the purpose
of the legislation to do so even after breaking-up all the plantations which
existed in the Sale.
It follows therefore that the legislature
could no, have passed the rest of the Act without the provisions relating to
plantations. As these provisions affect the entire working out of Chapters II
and III of the Act which are the main provisions thereof, it follows that these
provisions relating to plantations cannot be severed from the Act and struck
down only by themselves. Therefore, the whole Act must struck down as violative
of Art.14 of the Constitution so far as it applies to ryotwari lands in those
areas of the State which were transferred to it from the State of Madras.
The Act was also held to be violative of Art.
14 on account of the manner in which the celling had been fixed under S.
58. It was further held to be objectionable
on the same ground because of the progressive cuts imposed on the purchase
price under s. 52 and the market value under S. 64 in order to determine the
compensation payable to land owners or intermediaries in one case and to
persons from whom excess land was taken in another. In the result the Act was
struck down in relation to its application' to ryotwari lands which had come to
the State of Kerala from the State of Madras.
However, the Legislature of Kerala passed a
new Act known as the Kerala Land Reforms Act, 1963 which became Act 1 of 1964
and amended. it further by Act 35 of 1969 which became effective from 1st Judy,
1970 Act 1 of 1964 was included in the Ninth Schedule of the Constitution
receiving the protection of Art. 31-B. Such an immunity however did not attach
to the Amending Act of 1969. The Act as amended was challenged by numerous writ
petitions filed in the Kerala High Court. These were all decided by a judgment
reported in Narayan Nair v. State(1). The conclusions of the High Court may be
summarised as follows :1. The Act as a whole, was a measure of agrarian reform.
It had to be read as applicable to
agricultural land alone by the doctrine of severable application. It got
protection of Art. 31-A though portions failed for want of that protection and
could be challenged under Arts. 14, 19 and 31 of the Constitution.
2. According to the learned Chief Justice of
the High Court and one of his colleagues agrarian reform may be wide enough to
include ameliorative measures for agriculturists unrelated to rights in the
lands but in (1) A.I.R. 1971 Kerala 98.
409 the context of Art. 31-A it could only
cover measures affecting rights in estates. According to the third learned
Judge the scope of agrarian reform was much wider and the objective of such
reform justified the enactment and protected it under Art. 3 1 A.
The net result of the provisions relating :to
compensation payable under S.72-A was that it was not likely to exceed a third
of the market value of the property and even this low compensation was not
payable within a reasonable time. Even so the provisions under consideration
being those for the acquisition by the State of rights in an estate for the
purpose of agrarian reform they were immune from attack under Arts. 14, 19 and
In this judgment we, shall only refer to such
provisions of the Act as call for special attention for the disposal of the writ
petitions while others are the subject matter of the group of appeals filed in
this Court from the said judgment of the High Court. Such of the petitioners as
hold private forests and plantations of rubber, coffee, cardamom or cinnamon
can have even now no grievance with regard to the tracts of land actually
occupied by the said plantations etc. The definition of 'Plantation' in the Act
of 1964 suffered a change by the Amendment Act of 1969. Under s.2(44) of the
Act of 1964 'plantation' meant any land used principally for the cultivation of
tea, coffee, cocoa, rubber, cardamom or cinnamon, (known as plantation crops)
and included.(a) land used for any purpose ancillary to the cultivation of
plantation crops or for the preparation of the same for the market;
(b) land contiguous to, or in the vicinity
of, or within the boundaries of, the areas cultivated with plantation crops,
not exceeding 20 Per cent of the area so cultivated and reserved by the said
person and fit for the expansion of such cultivation;
(c) Agricultural lands interspersed within
the boundaries of the area cultivated by the said person with plantation crops,
not exceeding, such extent as may be determined by the Land Board as necessary
for the protection and efficient management of such cultivation. Although not
within the definition of 'plantations' cashew estates having a contiguous
extent of Ac. 10-00 or more, pure pepper gardens and pure are canut gardens
having a like extent of Ac. 5-00 or more were exempted 410 from the operation
of the 1964 Act under s. 81. By the amendment in 1969 the said exemptions have
been deleted from s. 8 1. Cocoanut gardens were never made the subject matter
of any exemption.
The main arguments in this series of writ
petitions were advanced by Mr. Chagla in Writ Petitions Nos. 117 and 167 of
1970 and Mr. Setalvad in Writ Petition No. 134 of 1970.
Counsel appearing for other writ petitioners
adopted the arguments advanced by Messrs Chagla and Setalvad with some
Both Mr. Chagla and Mr. Setalvad pursued the
same line of attack against the vires of the Act. Their submissions were as
follows :(a) Chapter II of the Act was not aimed exclusively at agrarian reform
and as such was not saved by Art. 31-A., In particular, even if the Act of 1964
got the protection of Art. 31-B by inclusion in the Ninth Schedule, the
amendments in the 1969 Act are not similarly protected and can only be upheld
if they are covered by, Art. 3 1 A.
(b) By the deletion of cls. (f ) and (g) of,
s. 8 1 (I) by the amendment of 1969 and taking away the exemption given by the
1964 Act to cashewe states of AC. 10-00 or more and pure pepper gardens and
pure areca gardens of AC. 5-00 or more, the enactment has become violative of
Art. 14 as was, pointed out in Karimbil Kunhikoman's ease (supra) as should be
struck down. It was further said that these plantations i.e. of cashew, pepper
and areca, are of as much importance to the national economy as tea, coffee
etc. which have received protection under the Act as plantations and the scheme
of the Act whereby most of these plantations will be decimated to support
landless or near landless persons cannot be upheld on the ground of agrarian
reform. It was argued that the State of Kerala taxes all plantations alike
under Act 17 of 1960. Further, Plantations Labour Act 69 of 1951 treats all
plantations as industries. Sub-division of plantations into two groups one of
which is exempted under the Act and the other is not, savours of discrimination
and violates Art. 14.
(c) So far as rubber estates are concerned
lands which are not at present under rubber but have been set apart for
expansio of plantations or are likely to be taken up for expanson in the future
cannot be acquired and diverted to other purposes inasmuch as the Rubber 411
Act of 1947 has declared the rubber industry to be an industry of national
importance. The Parliamentary legislation under Entry 52 of List I must have
supremacy over State, Legislation encroaching thereupon.
Mr. Natesan learned counsel appearing for the
petitioner in W.P. No. 149 of 1970 adopted the above arguments, and raised an
additional plea for cocoanut gardens being regarded as plantations in the same
way as tea, coffee etc. and urged that denial of protection to cocoanut gardens
is discriminatory and violative of Art. 14 on the same grounds as impelled this
Court to take this view in Karimbil Kunhikoman's (1) case.
Mr. Harindranath who appeared in Writ
Petitions 132 and 133 of 1970 adopted the arguments of Messrs Chagla And
Setalvad and so far as writ petitions 132 and 133 were concerned, he did not
press the point as to the invalidity of s.4-A which had been struck down by the
Kerala High Court in its judgment in Narayanan Damodaran v. Narayana Pancicker
(d) Mr. Chagla appearing in Writ Petition
167/1970 raised additional Arguments with regard to the area of Ac. 530-00
planted with eucalyptus and Ac. 5-50 planted with teak. He contended that the
timber from eucalyptus plantation was used in rayon pulp, manufacture and as
such the p lants were grown for an industrial purpose.
Mr. J. B. Dadachanji contended that in
considering Central and State Legislation on the same subject the, pith and
substance of the legislation was to be looked into. He submitted that the aim
of the Rubber Act was to secure raw material for the, industry and the raw
matterial was integrally connected with the end product and that if the latter
was the subject matter of legislation by the Union any legislation by the,.
State which might adversely affect the production of the raw material would
encroach upon the, field of Union Legislature. He also submitted that plantation
was a concept which was well recognised in law and the legal history with
regard to plantation had to be taken note of. He, drew our attention to a
number of measures passed by the Central Legislature to control various
industries, namely, the Tea Act of 1953, the, Rubber Act, 1947, The Cardamom
Act, 1955,_the Coffee Act of 1942 and the coir Act of 1963. The measures in
all., these, Acts, according to counsel,, though designed mainly to, regulate
the industry in the finished products would be adversely affected if the
production of the raw material was in any way stalled, or affected by the State
We may note the main provisions of Chapter
III of the Apt as enacted in 1964 and consider the effect of the amendments (1]
 Supp. 1 S.C.R. 829 (2) 1971 Kerala Law Journal 461 1286SupCI/72 412
introduced by the 1969 Act. The broad scheme of Chapter III of the Act of 1964
is epitomised by its heading "restriction on ownership and possession of
land in excess of the ceiling area and disposal of excess lands". By s. 81
various exemptions were granted. Those which concern us in this batch of writ petitions
are sub clauses (f), (g) and (n).
Sub-cls. (f) and (g), relate to cashew
estates, pure pepper gardens and pure are canut gardens and (n) refers to
uncultivable waste lands. This last class of lands is not agricultural land and
acquisition thereof can only be justified under Art. 3 1 A if it is included in
a tenure which can be equated with an 'estate'.
So far clauses (f) and (g) are concerned it
was argued on behalf of the petitioners that the decision of this Court in
Karimbil Kunhikoman's case (supra) would still hold and unless provision for
exemption of plantations of pepper and arecanut were provided for the Act would
suffer from the same defect as was pointed out in the judgment of this Court.
In the counter affidavit of the State it is
asserted that pepper, arecanut, cashew and cocoanut are not cultivated in the
same manner as tea, coffee, or rubber and these are essentially "homestead
garden crops". The State does not admit that in Kerala pepper cultivation
has reached the plantation stage or that arecanut is generally grown on a
plantation scale and asserts that the cultivation of pepper, areca, cashew and
cocoanut is in the main on holdings of less than Ac. 5-00. It appears to us
that in giving exemption to. pure pepper gardens and pure arecanut gardensthe,
word "pure" being used to show that the lands were being utilised
substantially if not exclusively for training pepper vines and growing arecanut
trees-the State recognised that these called for some protection but now the
State asserts that pepper and areca are "'essentially homestead garden
crops" or that "these have not reached the plantation stage."
After all the State is best qualified to consider are overall aspect of the
matter in relation to its economy and on the materials before us we cannot hold
that the State's viewpoint is not corect.
With regard to cocoanut gardens, it was
argued by Mr. Natesan that there was no reason to make a discrimination thereof
from plantations like tea, coffee etc. He referred us to the definition of 'plantation'
in s.2(6) of the Kerala Plantations (Additional Tax) Act of, 1960 under which
plantation meant land used for growing one or more of the following, namely,,
cocoanut trees, arecanut trees, rubber plants, coffee plants, tea plants,
cardamom plants and pepper vines, and submitted, that the State of Kerala
having placed cocoanut gardens in the definition of plantations in the above,mentioned
Act should not have excluded them from 413 exemption under the Act of 1964 and
1969 and this discrimination should have the same result as the discrimination
against pepper and areca had in Karimbil Kunhikoman's case. He submitted that
cocoanut and its products could be of considerable importanceto the national
economy if properattention was directed towards it. He made extensive reference
to a monograph called the Cocoanut Palm by Menon and Pandalai to show that coir
mats, rugs, mattings and carpets were being exported from India to various
countries and to augment the production of coir it was necessary to stimulate
the production of cocoanut not in small gardens but in plantations. He referred
to the said monograph to show that mechanisation in cocoanut gardens was only
possible where the area was not small and such mechanisation would greatly
increase efficiency and "any attention paid to the cocoanut Palm will be
adequately rewarded as has been the experience of cocoanut growers in all parts
of the cocoanut growing countries". (see the monograph at p.357-). He also
referred to the fact that realising the importance of the coir industry
Parliament passed an Act known as the Coir Industry Act 45 of 1953 and by s. 2
thereof declared that it was expedient in the public interest that the Union
should take under its control the coir industry. According to Mr. Natesan coir
industry could only thrive by encouragement of the growth of cocoanut in
"Ceiling area" is covered by s.82.
Such area with regard to unmarried persons and families fixed by the 1964 Act
was cut down ,considerably by the Amending Act of 1969. It was argued both by
Mr. Chagla and Mr. Setalvad that this was hit by the second proviso to Art. 3 1
A ( 1 ) inasmuch as the ceiling having once been fixed by the 1964 Act any
diminution in the extent thereof would only be justified if compensation at a
rate not less than the market value thereof was provided which undoubtedly is
not the case here.
S.82 of the Act of 1964 was aimed at imposing
ceiling area on families and adult unmarried persons and did not touch
companies. The amending. Act of 1969 makes a complete departure from the above
provision and imposes a ceiling limit on all persons inclusive of companies or
incorporated bodies.The contention that reduction in the ceiling area fixed by
the 1964 Act had to be compensated for by payment of market value of the
difference between the ceiling areas fixed by the two Acts cannot be accepted
inasmuch as the " ceiling limit applicable to him under any law for the
time being in force in Art. 31-A" can refer only to the limit imposed by the
law which fixes it and not any earlier law which is amended or repealed.
Further there is no substance in the
contention put forward on behalf of the companies because it was open to the
legislature 414 to prescribe a ceiling for all landholders whether they were incorporated
or not and merely because the 1964 Act did not touch these incorporated bodies,
no objection can be taken to their being brought within the fold by the
S. 83 as amended in the Act of 1969 imposes a
ceiling area on incorporate bodies as well. S. 85 provides for the
determination of lands in excess of the ceiling in certain cases and the
surrender of all excess 'lands. S. 86 provides for the vesting of excess lands
in Government which are to be surrendered under s. 85. It empowers the Land
Board to call upon persons affected by the ceiling provisions 'to surrender the
excess lands and in default of compliance 'to take possession thereof in manner
Upon surrender all lands are to vest in the
Government free from all encumbrances. Under s. 96 as enacted in 1964 the Land
Board was to reserve in each village lands necessary for public purposes and
then assign on registry the remaining lands vested in the Government under, ss.
86 and 87 as' specified therein, namely (i) to assign ,the holdings in which
there were kudikida ppukars to these persons, as far as possible and (ii) out
of the remaining area available for assignment to assign (a) 50% (later raised
to 87-1/2%) to landless agricultural labourers of which again one half was to
be given to the landless agricultural labourers belonging to the Scheduled
Castes, (b) 25% (later reduced to 12-1/2% ) to small holders and other
landlords not entitled to resume any land and (c) the rema 25% to cultivators
who did not possess more than Ac. 5-00 of land in extent.. Under sub-s. (2) of
the section, the Land Board 'was not to assign more, than Ac. 5-00 (later
reduced to one acre) in extent of land to any person and where a person
Possessed any land only so, much land as would make the extent thereof in his
possession five acres was to be assigned. By the Amending Act of 1969 s. 91(1)
was completely recast to provide 'as follows:"(1) The Land Board shall
assign on registry, subject to such conditions and restrictions as may be
Prescribed, the lands vested in the Government under section 86 or 'Section 87,
as specified below:
(i) the lands in which there are,
kudikidappukars shall be assigned to such kudkidappukars;
(ii) the remaining lands shall be assigned to(a)
landless agricultural labourers; and (b) small holders and other land lords who
are not entitled to resume any land Provided that eighty-seven and half per
cent of the area of the lands referred to in clause (ii) available for
assignment in a taluk shall be assigned to landless 415 agricultural labourers
of which one-half shall be assigned to landless agricultural labourers
belonging to the Scheduled Caste or the Scheduled Tribes.
Explanation.-For the purposes of this section(b)
a kudikidappukaran or the tenant of a kudiyiruppu shall be deemed to be a
landless agricultural labourer if he does not possess any other land; and (c)
"Scheduled Castes" and "Scheduled Tribes" shall include
converts to Christianity from such Castes and Tribes." As a result of the
amendment assignment of land is to be made not only to kudikidappukars and
landless agricultural labourers but also to tenants of a kudiyiruppu who were
to be deemed landless agricultural labourers if they did not possess any other
land. A new sub-s. (lA) was added reading :
"Notwithstanding anything contained in
sub-s. (1) the Land Board may, if it considers that any land vested in the
Government under section 86 or section 87 Is required for any public purpose
reserve such land for such purpose." Sub-ss. (2) and (3) were modified by
limiting the extent of assignment of land from Ac. 5-00 to Ac. 1-00 in all
Subs. (lA), it may be noted, was inserted in
the Act of 1971 after the decision of the Full Bench of the Kerala High Court.
It was argued that although the Kerala High
Court in Narayan Nair's case turned down the contention that under the wide
language of s. 96(1) "the reservation for public purpose could be for any
purpose whatever including, one entirely unconnected with agriculture such as
for example, an "industrial undertaking" on the ground that
"having regard to the context in which it appears the reservation for
public purposes under that sub-section can only be for public purposes relating
to agriculture, such as the provisions for threshing floors or the construction
of irrigation or drainage channels or the construction of houses for
agricultural labourers", the new sub-s. (1A) shows that the State did not
intend to be bound by the construction placed upon s. 96 by the High Court and
made it clear that the section was not to be so read down thereby keeping, in
its hand the matter of reservation of land for public purpose of any kind not
limited to agrarian reform.
The agreement though forcefully put cannot be
accepted. The object of both the 1964 Act and the present Act was to effect
agrarian reform, which only can give to the statute the protection 416 of
Art.31-A. This was made clear by the High Court in its judgment and in our view
rightly, by reading down the said provision as to reservation for public
purposes to reservation for purposes falling within the expression
"agrarian reform". By enacting sub-s.(lA) despite the said
construction by the High Court it appears that the intention of the State
Legislature was to overrule legislatively the view expressed by the High Court
and not to be bound by the interpretation placed by the High Court. By so doing
the new sub-section has once again been made prone to the same constitutional
challenge. We have no doubt that the subsection is couched in too general and
wide a language capable of including public purposes which would not be those
falling within the expression 'agrarian reform'. There was therefore
considerable force in the contention of counsel for the petitioners The fact
however that the Legislature has once again used the same general language in
spite of the aforesaid interpretation given by the High Court need not I,--ad
us to strike down wholly the sub-section. In accordance with the well
recognised canon of construction adopted in a number of cases decided by this
Court we read the sub-section to mean only reservation of the J and for such
public purposes as would bring about agrarian reform inasmuch as any
acquisition under Art. 31-A for any public purpose other then that falling
under the expression "agrarian reform" cannot be considered as having
the protection of that Article.
It was argued that the section suffers from
other deficiencies. It-was said that in order to secure protection of Ail. 31-A
it must be shown that the surplus lands were meant to be utilised only for
agrarian reform which, broadly speaking, would include distribution of land
among landless or near landless people to advance the cause of agriculture and
other equitable distribution of land to diminish imbalance in society and prevent
concentration of land in the hands of a few to raise 'the economic standards
and better rural health and social conditions as was laid down in Ranjit Singh
v. State of Punjab(1). Some examples cited in that case were provision for the
assignment of lands to village panchayats for the use of the general community
or for hospitals, schools, manure pits, tanning grounds, the settling of a body
of agricultural artisans such as village carpenters, village blacksmiths etc.
A fair amount of argument was advanced to
challenge the provisions in the Act relating to kudikidappukaran, kudikidippu
and kudiyiruppu. It was said that settling landless people on land by itself
would not constitute agrarian reform. It was also 417 said that such landless
people unless they are associated with agriculture would not help the cause or
advance such reformfurther a tenant of a kudikidappukar would not necessarily
be an agricultural labourer and a kudiyirippu might be occupied by people
unconnected with agricultural pursuits.
The important statutory provisions may be
noted in this connection. Under s.2(25) of the Act "kudikidappukaran"
means a person who has neither a homestead nor any land exceeding in extent
three cents in any city or major municipality or five cents in any other
municipality or ten cents in any panchayat area or township in possession
either as owner or as tenant on which he could erect a homestead and (a) who
has been permitted with or without an obligation to pay rent by a person in
lawful possession of any land to have The use and occupation of a portion of
such land for the purpose of erecting, a homestead; or (b) who has been
permitted by a person in lawful possession of any land to occupy, with or
without an obligation to pay rent, a but belonging to such person and situate
in the said land; and kudikidappu' means the land and the homestead or the hut
so permitted to be erected or occupied together with the easements attached
Provided that a person who, on the 16th
August, 1968, was in occupation of any land and the homestead thereon, or in
occupation of a hut belonging to any other person, and who continued lo be in
such occupation at the commencement of the Kerala Land Reforms (Amendment) Act,
.1969, shall be deemed to be in occupation of such land and homestead, or hut,
as the case may be, with permission as required under this clause.
Under's.2(26) "kudiyiruppu" means a
holding or part of a holding consisting of the site of any residential
building, the site or sites or other buildings appurtenant thereto, such other
lands as ate necessary for the convenient enjoyment of such residential
building and easements attached thereto but does not include a kudikidappu.
Under s.75(1) no kudikidappukaran was liable to be evicted from his kudikidappu
except on the grounds mentioned. Under s. 80-A kudikidappukaran was to have
subject to the provisions of the section the right to purchase the kudikidappu
occupied by him and lands adjoining thereto. Under subs.(3) the extent of the
land which the kudikidappukaran was entitled to purchase under the section was
to be three cents in a city or major municipality or five cents in any other
municipality or ten cents in a panchayat or Sections go B and laid down the
procedure for the purchase, of kudikidappukaran and the deposit of purchase
price and the issue of a certificate of 418 purchase. Under s.95 of the Act
before its amendment in 1971 the Land Board constituted under the Act had,
after reserving in each village the lands necessary for public purposes, to assign
inter alia the holdings in which there were kudikidappukars to such
kudikidappukars. There was an Explanation to the section by which a
kudikidappukaran or a tenant of a kudiyiruppu was to be deemed to be a landless
agricultural labourer if he did not possess any other land.
The section has been amended in 1971 but the
main provisions thereof including the Explanation are also in the amended Act.
The objections raised by the petitioner in
Writ Petition No.516 of 1970 were sought to be met in the, counter affidavit of
the State as follows :"(a) Kudikidappukars as a class were permitted by
the land owners to reside in their land in return for their services as
watchmen of the parambas and cocoanut gardens and as agricultural labourers.
Kudikidappukars work for the owner of the property in which the kudikidappu is
situated. The wages paid to the kudikidappukars by the owners of the land are
generally lower than That paid to the labourers.
Kudikidappukars work for the owners of the
land at the time of pluckin of cocoanuts and at times of conducting
agricultural operations in the land. Besides this, the kudikidappukars work in
the paddy lands of the owners of land during the cultivation season. They are
therefore agricultural labourers. In rural life many individuals, whether
farmers or labourers or artisans, have to eke out their existence by doing work
of more than one kind and a person may be both an artisan and a labourer, doing
what work comes his way at a given time in the year. Thus they had all connections
with the lands as persons living in the huts or homesteads and also labourers
employed in the cultivation of lands.
(b) The granting of relief to kudikidappukars
and conferment of benefits on them have always been treated as part of measures
of agrarian legislation in Kerala. By Proclamation XVIII of 1122, the
Government of Cochin recognised the need to prevent the eviction of
kudikidappukars. In Travancore, permanent right of occupancy in respect of
their kudikidappu was conferred on kudikidapukkars by the Travancore Prevention
of Eviction Act XXII of 1124. Under this Act, the rights of kudikidappukars
were made heritable.
419 Further this Act gave every
kudikidapukkaran a permanent right to occupy in his kudikidappu, subject to the
provisions of the Act. Section 7 of the Act provides specific grounds in which
kudikidapukkars might be evicted.
The Malabar Tenancy (Amendment) Act, 1951
gave protection to holders 'ulkudies' or 'kudikidappus' by granting them right
of permanent occupation subject to payment of fair rent.
(c) Protection of kudikidappukars always
formed an important part of legislation which has the objective of tenancy
reform. The Kerala Agrarian Relations Act (4 of 1961) took within its compass
certain provisions intended for the protection of kudikidappukars as an
integral part of a scheme of agrarian reform embodied in the Act. Under the
provisions of that Act, as well as under the Principal Act kudikidappukarans
were entitled to 90% of the compensation in case of acquisition of land
occupied by his homestead or hut.
(d) The report of the Agrarian Problems
Enquiry Committee, 1949 (published by the Government of Cochin) the report of
the Land Policy Committee, 1950 (published by the Government of Travancore
Cochin) and the report of the Special Officer for the investigation of, Land
Tenures on he recommendations of the Malabar Tenancy Committee, May 1947
(published by the Madras Government) recommended measures for the protection of
kudikidappukars as part and parcel of tenancy legislations. The report of the
Land Policy Committee considered the question of conferment of purchase rights
on kudikidappukars. Who report also went to show ,hat the kudikidappukars were
originally inducted as agricultural labourers and watchmen.
(e) The Kerala Land Reforms Act, 1963 (Act 1
of 1964) took within its compass certain provisions 'intended for the
protection of the kudikidappukars as an integral part of the scheme of agrarian
reforms embodied in the Act. The provisions in the Kerala Act 35 of 1969 were
in continuation and enlargement of the rights conferred on kudikidappukars from
time to time as an integral part of he agrarian reforms and those provisions
were intended to make them the owners of huts and homesteads and the lands
Kudikidappukars, landless or near landless
labourers were at the very base of rural economy. They were connected with land
as agricultural labourers. They 420 have interest in the land as persons living
and working on them. Statutory provisions dealing with their rights would,
therefore, be a part of any comprehensive law of agrarian reforms." So far
as kudikidappukarans or those who are deemed to be such under the Explanation
to s. 96 on estates are concerned, the direction for compulsory purchase in
their favour cannot be questioned under Art. 31-A. Substantially these
provisions were contained in the Act of 1964 which received protection under
Art. 31B by inclusion in the Ninth Schedule. The land reforms legislations in
most of the States in India have conferred such rights on tenants and it is too
late in the day to challenge such legislation on the ground of hardship or of
inconvenience. The affidavit affirmed on behalf of the State goes to show that
kudikidappukars have for very many years past been residing in the lands in
return for services which may be seasonal and they were by and large
agricultural labourers. The rights conferred on them in respect of kudikidappu
cannot therefore be said to have trangressed a scheme of agrarian reform. With
regard to the Explanation to s. 96 that a kudikidappukaran or a tenant of a
kudikidappukaran would be deemed to be a landless agricultural labourer if he
did not possess any other land is beyond challenge inasmuch as it was contained
in the Act of 1964 which had the protection of Art. 3 1 B read with the Ninth
Schedule to the Constitution.
The problem posed by the presence of hordes
of kudikidapukarans and the tenants of kudiyiruppus and the pressure on the
land thus caused have engaged the attention of the legislature for many years
past as mentioned in the counter affidavit of the State, and it is also
apparent from a number of decisions of the Madras and Kerala High Courts.
We may mention the case of Armugha Konar v.
Sanku Muthammal(1) where a tenant claimed to be entitled to purchase the
landlord's right in kudiyiruppu under s. 33 of the Malabar Tenancy Act (Act XIV
of 1930). A similar question fell for consideration in Saimva Umma v. Kunhammad(2).
In that case it was held that a vacant site not attached to a building will not
become kudiyirappu. The construction of any kind of a building on such a site
will not also make it a kudiyiruppa. Reference was made to the observations oil
the Kerala High Court in Mariain & others v. Ouseph Xavier(3) wherein referring
to the provisions for kudikidappukaran etc. it was said :
"The legislative perspective of this
provision (s 2(25) ) will throw light on its scope and sweep. In a community.
essentially agrarian, with large chunks of
the (1) A.I.R. 1960 Madras 487. (2) I.L.R. 1957 Kerala 815.
(3) 1971 Kerala Law Times 707 at 710-1 1.
421 population engaged in agricultural labour
and accommodated by, or with the leave and licence of, the, .owners in tiny
tenements dotting the farms and the fields where or near where they work,
feudal fashion, a certain special equilibrium is maintained. But the pressure
of population and consequent increase in the number of shacks or kudis on the
one hand and the tempting rise in the price of produce and of lands appetising
the landlords to vacate the occupiers of homesteads who sometimes and on the,
sly, may help themselves to the income from the land on the other gave rise to
a social phenomenon of many evictions of these homeless in the world..... The
play of these social forces explains the legislative insulation of
kudikidappus, punctuated by further ameliorative changes in the law calculated
to plug the loopholes exploited by the land owners and brought to light by
judicial decisions ....
When the legislature conferred immunity from
eviction on occupiers of huts brought in by the permission of the land owner-by
and large, they were landless families working on the farms-the tendency to
evict them through court became noticeable for reasons I have already stated.
Since a permission to occupy was an essential ingredient of a kudikappu, by
definition, this Court held that where consent was not extant, in the sense of
its having been withdrawn or not renewed, the right of kudikidappu also ceased
Landlords could easily stultify the kudikidappu
protection clause by unilaterally withdrawing permission to remain On the
homestead and the flood-gates of eviction would be thrown open. The legislature
naturally re-explanation, that any person in occupation of a kudikidappu on
11th April 1957 and continued on the hutment would be deemed to be there with
permission required as under the clause. The, obvious intendment of this
Explanation (Explanation to s. 2(25) ) was to protect those who had come in by
permission of the owner but who were sought to be removed by with drawal of
permission by the land owner.
Once a person came to occupy a hut by
permission he became a kudikidappukaran and acquired the right to fixity."
The above is sufficient to show that the problem of kudikidappukaran has always
been intimately connected with agricultural land and can legitimately come
within "agrarian reform". Historically they were allowed to come on
to the land because of the 422 needs of an agricultural population and any
scheme which envisages the improvement of their lot and grant of permanent
rights to Them would not transgress the limits of agrarian reform.
It may however be noted that our judgment
only relates to lands in panchayat areas and kudikidappukars etc. on them.
We are not dealing with a similar problem in
respect of lands in municipal areas. Although no specific argument was advanced
,on the point it appears to us that the provisions for purchase contained in s.
80-A of the Act by kudikidappukaran of their kudikidappus for consideration less
than the market value of the land when the same was below the ceiling area
fixed under the Act and within the area in the personal cultivation of the
landlord would be hit by the second proviso to Art. 31-A of the Constitution.
Argument was also raised that s. 83 which
forbade every person from owning or holding or possessing land under mortgaged
in the aggregate in excess of the ceiling area was bad inasmuch as the
provision made no distinction between agricultural land and other lands. This
was sought to be fortified by reference to s. 81 some sub-clause of which, it
was argued, could possibly have no bearing. on agricultural land. For
insurance, sub-cl. (k) of s. 81 (1) only exempts "land belonging to or
held by an industrial or commercial undertaking And se,, apart for use for
similar purpose." That all lands belonging to or held by such an
undertaking (lid not qualify for exemption is made clear by the proviso to the
clause under which Any land not actually used for the purpose for which it had
been set apart could only be considered for exemption if the setting apart has
been made within a time fixed by the District Collector by notice to the
undertaking concerned. Similarly cl. (m) it was said.
aimed at giving a very restricted exemption
even with regard to lands appurtenant to dwelling houses, tanks, wells or other
structures inasmuch as such lands could only be exempted if found necessary for
convenient enjoyment of the house sites, structures etc. The adjudication of
,,he question as to whether any land was to be exempted or not was left to be
decided by the Land Board constituted under s. 100 by virtue of the provision
in s. 101(4) and the decision of the Land Board was to be final. It was said
that even within municipal areas lands appertaining to dwelling houses or
belonging to or held by industrial or commercial undertakings which could serve
no agricultural purposes were within the fold of the Act. The intention of the
legislature, it was urged. was clear in hit the legislation was not meant to make
any distinction between agricultural and non-agricultural land but was a
composite Act which affected every bit and parcel of land in the State of
Kerala. Such a comprehensive legislation, it was contended, could rot possibly
be upheld under Art. 31-A.
423 No doubt in its counter affidavit the
State has made a case that "in Kerala within cities and municipalities
there are tracts of cultivated lands" and merely because the Act was
applied to the lands situate within cities and municipalities it did not
de-tract from its essential character as a measure of agrarian reform. It was
also submitted in the said affidavit:
"Lands are agricultural lands unless
they are put to nonagricultural uses like the construction of buildings which
alters the physical character of the land, rendering it unfit for agricultural
purposes. Neither the principal Act nor the Amendment Act concerns themselves
with commerce, trade or industries or buildings." We find ourselves unable
to accept the. above submission.
Whether lands are agricultural or not may
depend also on their physical properties and situation. There may be rocky
lands, sandy lands, hill sites, un cultural lands, forests etc. which by their
very natural are not agricultural lands. So also lands comprised within a municipality
specially in, towns and. cities cannot be styled agricultural lands because
agricultural operations can be carried on there. Further the statements in the
counter affidavit do not follow the provision of sub-ss. (k)to (m) of s.
81(1). To take, an example, if an industrial
or commercial undertaking owns several blocks of buildings situate close to
each other with some land interspersed between them, it cannot be said that
these, lands, are agricultural lands and can only. qualify for exemption only
if they are notified to the, District Collector and set apart for the
industrial or commercial purpose of the undertaking. Similarly, a person owning
a house with lands surrounding it covered by a garden or an orchard within a
municipality should not be left to the mercy, of the land Board to decide the
extent of land necessary for the convenient enjoyment of the house and have the
rest taken away from him. However laudable may be the, object of' the
legislature in attempting to settle landless persons on land, obtained by the
Land Reforms Act, the taking away of such lands in the circumstances mentioned
above either from industrial or commercial undertakings or from the owner of
house sites within a municipality for distribution among the landless cannot be
said to effect agrarian reform. The Act in so far as it purports to acquire
these Lands cannot be upheld.
Mr. Chagla contended that even if the Court
were to hold that the acquisition of lands under the Act as amended in 1969 was
for agrarian reform, certain provisions of it ought to be struck down. in,
particular he contended that so far as rubber. estates were concerned, lands
contiguous thereto, or set apart for development of rubber estates could not
acquired. He drew our attention to certain
provisions. of the. Rubber Act of1947 under's. 2 of which there was a
declaration that it was expedient 424 in the public interest that the Union
should take under, its control the rubber industry which was said to be in
terms of. item 52 of List I of the Seventh Schedule to the Constitution. Under
s. 17 of this Act no one can plant or replant rubber except under and in
accordance with the 'conditions of a special licence issued by the Rubber Board
and a licence issued under this section was to specify the area in which the
rubber may be planted or replanted and the period for which the, licence was
to, be valid. He also drew ,our attention to clauses (c), (e) and (h) of the
definitions in s.3 of the Rubber Act. Under cl. (c) 'estate' means any area
administered as one unit which contains land planted with rubber plants. Under
cl. (e) 'manufacturer' means any person engaged in the manufacture of any
article in the making of which rubber is used and under cl. (h) 'rubber'
includes not only crude rubber, that is, that prepared from the leaves, bark or
latex of any rubber plant but include scrap rubber, sheet rubber etc.
leaving out rubber contained in any
Under s. 8(1) it was to be the duty of the
Rubber Board to permit such measures as was thought fit for the development of
rubber industry. All this according to Mr. Chagla went to show that the rubber industry
including rubber plantation was put under the special charge of the Union
Legislature and it was not competent to any State to enact any provision which
would affect the supremacy of the Union legislation or run counter thereto. It
was said that it was only the Rubber Board which could sanction the planting of
additional areas with rubber but if the State of Kerala was to take away lands
which were not actually planted with rubber plants but set apart for
development of the plantation in future, there would be usurpation of the
powers of the Union Legislature. it was also argued that the activities of a
company engaged in the manufacture of rubber would not be purely agricultural
but that there was an industrial side to it and any taking away of lands from
the rubber manufacturer would affect his industry and so contravened the
provisions. of the Rubber Act.
We find ourselves unable to accept this broad
However important it may be for the owner of
a rubber plantation to have or held lands in the immediate vicinity of the
plantation for its expansion it cannot be said that the Rubber Act gave the
Union Legislature any power to direct a rubber manufacturer to increase his
production by bringing any additional land under )rubber plants. All that s. 17
of the Act aims at is to make it obligatory on the owner of an estate to secure
a licence if he wants to plant rubber on land which does not bear it or replant
rubber in portions of the land which are under it. Further although it was the
function of the Rubber Board under s. 8 to take ,measures for the development
of the rubber industry, it does not 425 appear that the expansion of a rubber
plantation or guidance in that direction by the Board was contemplated under
the said section.
The learned Advocate-General of Kerala
submitted that by the Rubber Act all that the Union Legislature sought to
achieve was to control the industry i.e. the manufacture of rubber and did not
mean to control the production of raw material i.e. the latex etc. from which
rubber was produced. In support of his contention he drew our attention to a
judgment of this Court in Ch. Tika Ramji & others etc. The State of Uttar
Pradesh and others (1) where this Court upheld 'the validity of the legislation
of the U.P. State regulating the supply and purchase of sugarcane. It was there
contended inter alia that (the State of U.P. had no power to enact the impugned
Act as it was with respect. to the subject of industries the control of which
by the Union was declared by law to be expedient in the public interest within
the meaning of Entry 52 in List I. Referring to the various legislations in
force the Court observed (see at p.
"The Provincial Legislatures as well as
the Central Legislature would be competent to enact such pieces of legislation
and no question of legislative competence would arise. It also follows as a
necessary corollary ,that, even though sugar industry was a controlled
industry, none of these Acts enacted by the Centre was in exercise of its
jurisdiction under Entry 52 of List I.
Industry in the wide sense of the term would
be capable of comprising three different aspects-: (1) raw materials which are
an integral part of the industrial process, (2) the process of manufacture or
production, and (3) the distribution of the products which would be comprised
in Entry 27 of List II.
The process of manufacture or production
would be comprised in Entry 24 of List II except where the industry was a
controlled industry when it would fall within Entry 52 of List I and the
products of the industry would also be comprised in Entry 27 of List II except
where they were the products of the controlled industries when they would fall
within Entry 3 3 of List III. This being the position, it cannot be said that
the legislation which was enacted by the Centre in regard to sugar and
sugarcane could fall within Entry 52 of List I." Reference was also made
to the decision in State of Maharashtra v. Patilchand ( 2 ) in this connection
and it was submitted that (1)  S.C.R. 393. (2)  3 S.C.R. 712.
426 taking away surplus lands which were not
under cultivation of rubber did not entrench upon the field of operation of the
Rubber Act of 1947.
Mr. Chagla also contended, apart from his
submission on pepper and areca gardens which have already been noted, that a
jungle was not held for agricultural purposes and could not be acquired under'
Art. 31-A(2). A jungle unless it is included within an estate consisting inter
alia of lands held for agricultural purposes cannot be acquired, so as to have
the protection of Art. 3 1 A : if the holding or tenure in which the jungle
consists only of jungle it cannot be so acquired,. 'The, same would hold good
of dairy farms pastures etc.
Lands under eucalyptus or teak which are the
result of agricultural operations normally would be agricultural lands.
They would certainly not be forests but the
statements in the petitions seem to suggest that operations were carried,
hereon for the express purpose of growing these plants and trees. However,
lands which are covered by eucalyptus or teak growing spontaneously as in a
jungle or a forest, would be outside the purview of acquisition.
Our conclusions therefore are as follows:-
1. It was for the petitioners to establish
that the lands held by them and mentioned in the petitions were, not 'estates'
so that they could be out of the purview of the Act. It was all the more
necessary for them to do, so in view of the categorical findings of the Full
Bench of the Kerala High, Court in paragraphs 5 and 99 of the judgment in
Narayanan Nair's case (supra). In the absence of material in the petitions to
show prima facie that the lands of the petitions were not estates we cannot
hold that the petitioners are not affected, by the, Kerala Land Reforms Act of
1964 a amended in 1969. In any event, so far as the provisions of the 1964 Act
are concerned the same could not be challenged under Art. 31 by reason of its
inclusion in the Ninth Schedule to the Constitution.
2. The reduction of the ceiling limit by the
Amending Act of 1969 does not attract the operation of the second proviso to
3. The provisions of the Act withdrawing
protection to pepper and areca plantations cannot be challenged under Art.
14 if the Ian s were estates within the
meaning of Ar. 31 A (2) (a).
4. The act is not discriminatory with regard
16 cashew and cocoanut gardens.
5. The withdrawal of exemption from lands
contiguous to rubber plantations by the Amending Act of 1969 cannot be
6. Forest lands and jungles would be exempt
from the operation of the Act only as already indicated, Private forests are
however specially exempted from acquisition under the Act.
7. Dairy farms if they are parts of estates
are not exempt.
8. Lands planted with eucalyptus or 'teak are
agricultural lands and so arc not exempt.
9. The provision for settlement of tenants of
kudiyiruppus or kidikidippukars in small holdings would be covered by agrarian
reform or purposes ancillary thereto.
10. Lands which are interspersed between
sites of commercial undertakings and house sites in municipalities with lands
surrounding them are not agricultural lands fit for acquisition under the Act.
In the result, we hold that save that the
provisions of the Act making discrimination against pepper and areca
plantations are bad only if the lands are not estates and that the lands
interspersed between sites of commercial undertakings and house sites in
municipalities with lands surrounding them cannot be acquired as the same are
not agricultural lands. Except as above the, provisions of the Kerala Land
Reforms Act are beyond challenge. The parties will pay and bear their own