State of Kerala & ANR Vs. The
Gwalior Rayon Silk Manufacturing Wvg. Co. Ltd. [1973] INSC 167 (18 September
1973)
PALEKAR, D.G.
PALEKAR, D.G.
SIKRI, S.M. (CJ) CHANDRACHUD, Y.V.
BHAGWATI, P.N.
KRISHNAIYER, V.R.
CITATION: 1973 AIR 2734 1974 SCR (1) 671 1973
SCC (2) 713
CITATOR INFO:
F 1974 SC1522 (3) RF 1975 SC1193 (20) RF 1976
SC2237 (21) D 1977 SC 121 (10,11) RF 1977 SC 915 (36) R 1978 SC 803 (33) R 1979
SC 621 (28,29) F 1980 SC1285 (12,27,31,44,45) RF 1980 SC1762 (5,6) E 1981 SC
234 (100) RF 1989 SC1485 (12) D 1990 SC 123 (37) E 1990 SC1747 (11) RF 1992 SC
248 (52)
ACT:
Constitution of India, 1950-Article 31A-The
Kerala Private Forests (Vesting and Assignment) Act, 1971-Act if entitled to
the protection of article 31A-Private forest held in Janman right-If necessary
to show they are agricultural lands within sub. clause (iii) of article
31A-Agrarian Reform, meaning.
HEADNOTE:
The Kerala Private Forests (Vesting &
Assignment) Act (Act 26 of 1971) purported to acquire forest lands held on
Janman right, without payment of compensation, for implementing a scheme of
agrarian reform by assigning lands on registry or by way of lease to the poorer
sections of the rural agricultural population. A full bench of the Kerala High
Court (Reported in A.I.R. 1973, Kerala 63) held that the provisions of the Act
were not protected by article 31-A of the Constitution and accordingly declared
the Act unconstitutional and void. The High Court concluded that forest lands
in the State of Kerala could not generally be regarded as agricultural lands
and, therefore, could not be the subject of agrarian reform and that the scheme
of agrarian reform envisaged by the Act was not real or genuine but only
illusory. The appeals and the petitions concerned the question whether the Act
could qualify for the protection of article 31A(1) of the Constitution. It was
contended on behalf of the State of Kerala that what is included in the
expression 'estate' is specified in sub.
clauses (i), (ii) and (iii) of clause (2) of
article 31A and, since the sub-clauses are disjunctive it would be enough for
the State to show that the law related to land covered by an "
estate" falling in at least one of the subclauses, that since private
forests were held in janman right they would be an 'estate' within the meaning
of subclause (i) and that if the law envisaged a measure of agrarian reform it
was not necessary for the State to establish additionally that forest lands
were similar lands described in sub-clause (iii), that is to say, lands held
for purposes of agriculture or for purposes ancillary thereto.
The petitioners contended that private
forests could not be converted into agricultural lands by a mere legislative
flat contained in the Preamble of the Act, because, forest lands are lands in
which forests grow spontaneously and naturally without human effort or skill
and are quite distinct from agricultural lands which, however defined, must
contain the element of tilling the soil for sowing and planting. It was pointed
out that in sub-clause (iii) of Article 31A (2) (a) a forest land may be
regarded as an agricultural land only when that land is held or let for
purposes of agriculture or for purposes ancillary thereto. Assuming that forest
lands were 'estate' within the definition, it was further contended that their
acquisition was not for implementing any scheme of agrarian reform, but for a
collateral purpose' namely, to increase the revenue of the State by exploiting
the forest wealth.
Allowing the appeals and dismissing the
petitions,
HELD : that the Act was protected by Article
31A(1) of the Constitution.
(1)The forest lands in the State of Kerala
have attained a peculiar character owing to their geography and climate and the
evidence available shows that vast areas of these forests are still capable of
supporting a large agricultural population. They are agricultural lands in the
sense that they can be prudently and profitably exploited for nature stated in
the Preamble that the private merely wanted to convey that they are prudently
and profitably exploited 3392SCI/74 agricultural lands in the senses. It is
manifest that when the legislature are agricultural land, they lands which by
and large could be prudently and profitably for agricultural purposes. [682H,
683C] 672 V.Venugopala Varma Rajaa v. Controller of Estate Duty, Kerala [1969]
K.L.T. 320, relied on.
(ii)The private forests being held in Janmam
right, and Janman right being an 'estate"are liable to be acquired by the
State under article 31A(1)(a) as a necessary step in the implementation of
agrarian reform. Section 3 of the impugned Act vests the ownership and
possession of all private forests in the State. Therefore, they would attract
the protection of article 31A(1). It would not be, in such a case, necessary to
further examine if the lands so vested in the government are agricultural lands
failing within subclause (iii). [684C] Kavalappara Kottarathil Kochuni and
others v. The State of Madras and others, [1960] 3 S.C.R. 887, State of U.P. v.
Raja Anand Brahma Shah, [1967] 1 S.C.R. 362 and Balmadies Plantations Ltd. v.
State of Tamil Nadu, [1972] 2 S.C.C.
133, referred to.
(iii)The Act envisages a scheme of agrarian
reform. In statutes of this nature provision can only be generally made to
indicate the broad details of the scheme for agrarian reform and that is what
is done in the Act. The High Court, has not given any substantial reasons for
coming to the conclusion that the scheme of agrarian reform is a "teasing
illusion and a promise in unreality". [684F, 685C] Balmadies Plantations
Ltd. v. State of Tamil Nadu, [1972] 2 S.C.C. 133 distinguished.
Kannan Devan Hills Produce v. The State of
Kerala and another, [1972] 2 S.C.C. 218, applied.
(iv)The Act cannot be impugned as a piece of
colorable legislation. The question really is, in the first place, of the
competence of the legislature to pass the impugned Act and, in the second,
whether the Act is constitutional in the sense that it is protected by article
31A(1). [687D] (v)It is presumed that the legislature knows the needs of its people
and will balance the present advantages against possible future disadvantages.
If there is pressure on land and the legislature feels that forest lands in
some areas can be conveniently, and without much damage to the community as a
whole, utilized for settling a large proportion of the agricultural population,
it is perfectly open, under the constitutional powers vested in the
legislature, to make a suitable law; and if the law is constitutionally valid
this Court can hardly strike it down on the ground that in the long run the
legislation instead of turning out to be a boon will turn out to be a curse.
[687G] (vi)An agreement of the Government
cannot preclude legislation on the subject. The High Court has rightly pointed
out that surrender by the Government of its legislative powers to be used for
public good cannot avail the company or operate against the Government as
equitable estoppel. [688C] Per Bhagwati & Krishna Iyer JJ : (Concurring) :
The technology of agrarian reform for a developing country which traditionally
lives in its villages envisages the national programmes of transmuting rural
life from feudal medivealism into equal, affluent modernism a wide canvas
overflowing mere improvement of agriculture and reform of the land system.
Article 31A(2)(iii) itself, by referring to land for pasture and sites of
buildings and other structures occupied by cultivators, agricultural labourers
and village artisans, gives clear hints of agrarian wellbeing being pivotal to
land reform in its larger legitimate connotation.
Agrarian reform is more humanist than mere
land reform and, scientifically viewed, covers not merely abolition of
intermediary tenures, zamindaris and the like but restructuring of village life
itself taking in its broad embrace the socio-economic regeneration of the rural
population. The Indian Constitution is a social instrument with an economic
mission and the sense and sweep of its provisions must be, gathered by judicial
statesmen on that seminal footing. Also, 'it is arguable that the elimiantion
of ancient janamam may per se be regarded as possessing the attribute of
agrarian reform, because, to wipe out feudal vestiges from our countryside and
to streamline land ownership are preliminaries to the projection of a socialistic
order which Part IV and art. 31A of the Constitution strive to create. However,
this Court has held that a scheme of agrarian reform is essential, apart from
673 taking over of fanmam rights to, make the law valid. In the present case a
concrete agrarian project is presented by section 10 of the Forest Act. Once it
is accepted that developmental orientation and distributive justice are part of
and inspire activist by agrarian reform, its sweep and reach must extend to
cover the needs of the village community as well. What programme of agrarian
reform should be initiated to satisfy the requirement of rural uplift in a
particular community under the prevailing circumstances is a matter for
legislative judgment. The sole issue for the Court is whether it is in fact a
scheme of agrarian reform, and if it is, the prudence or folly thereof falls
outside the orbit of judicial review. In ascertaining whether the impugned
enactment outlines a blue-print for agrarian reform the Court will look to the
substance of the statutory proposal and not its mere outward form. The. Court
should not be too gullible to accept a scheme of agrarian reform when it is
nothing but a verbal subterfuge, but at the same time the Court should not be
too astute to reject such a scheme because it is not satisfied with the wisdom
of the scheme or its technical soundness. It would not be enough merely to say
that the income of the property acquired is to be utilised for purpose of
agrarian reform. The property itself must be acquired for carrying out such a
reform.
This requirement is satisfied in the present
case. If the State, for ulterior ends, prevaricates or betrays the scheme by
non-implementation or mis-implementation, an aggrieved party may seek releif
through a judicial post audit. [692 G, 693 C, E] Once it is found that the
legislative area is barricaded by Art. 31A it cannot be breached by Arts. 14,
19 and 31 and judicial break-in is constitutionally interdicted. But, at the
same time, Art. 31A is no charter of legislative freedom to refuse compensation
altogether in every case. The Court may not strike down a statute for
non-payment of compensation but the legislature is expected, except in
exceptional socio-historical setting to provide just payment for the deprived
persons. To exclude judicial review is not to black out the beneficient
provisions of Arts. 14, 19 and
31. May be the present legislation dealing
with extensive antiquated janmam rights relates to the exceptional category.
However this is an area where not the court but the elector is the proper
corrective instrument. [695G] Kochuni's case, [1960].3 S.C.R. 887, Ranjit
Singh's case, [1965] 1 S.C.R. 82; 94, Ram Narain Medhi v. State of Bombay,
[1959] Supp. 1 S.C.R. 489, Raja Anand's case, [1967] 1 S.C.R. 362, Balmadies
Plantations Ltd. v. State of Tamil Nadu, [1972] 2 S.C.C. 133, Kanan Devan Hills
Produce v. The State of Kerala and another, [1972] 2 S.C.C. 218, Gajapathi
Narayan Deo v. State of Orissa, [1954] S.C.R. 1, 10-11, and Wakf Estates v.
State of Madras, [1971] 2 S.C.R. 790, referred to.
CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil
Appeal No.
1938 of 1972.
Appeal from the judgment and order dated the
21st June, 1972, ,,if the Kerala High Court at Emakulam in O.P. No. 3771 of
1971.
Civil Appeal No. 1416 of 1972.
Appeal from the judgment and order dated the
21st June, 1972 of the Kerala High Court at Ernakulam in O.P. No. 3858 of 1971.
Civil Appeal No. 1417 of 1972 Appeal from the
judgment and order dated the 21st June,, 1972 of the Kerala High Court at
Ernakulam in O.P. No. 4036 of 1971 and Writ Petition Nos. 151, 152, 153, 176,
177, 178.
179, 180, 181, 182, 186, 187, 188, 189, &
198 of 1971.
Under Art. 32 of the constitution of India
for the enforcement of fundamental rights.
674 M.M. Abdul Kader, V. A. Seyid Muhammad
and P. C. Chandi, for the appellants, (in all appeals).
V.K. Krishnan Menon, B. Mohan and O.P.
Khaitan for respondent (in C.A. No. 1398/72).
M.C. Chagla, (in C.A. 1417 only) T. K. M.
Unnithan and A. S.Nambiar, for respondents (in C.A. Nos. 1416-1417).
B.Dutta and J. B. Dadachani, for petitioners
(in all W.Ps. except W.P. 186/71).N. Sudhakaran and P. K. Pillai, for
petitioner (in W.P.186/71).
M. M. Abdul Kader, Sukumaran and K. M. K.
Nair, for respondent No. 1 (in all the W.Ps).
R.N. Sachthey, for respondent No. 2 (in all
W.Ps except W.P. 186/71).
The Judgment of A. N. RAY C.J. D. G. PALEKAR
and Y. V.CHANDRACHUD, JJ. was delivered by PALEKAR, J. KRISHNA IYER, J. gave a
separate Opinion on behalf of himself and P. N.BHAGWATI, J.
PALEKAR,J All the above cases involve a
challenged to the Kerala Private Forests (Vesting and Assignment) Act 26 of
1971 (hereinafter called the Act) on the ground that the Act as a whole was
violative of Articles 14, 19(1) (f) (g) and 31 of the Constitution.
The lands involved are private forest lands
situated in the former Malabar District which, after the States Reorganization
Act, 1956, stood transferred from the old State of Madras to the new State of
Kerala. As a result of the Act referred to above, these forest lands vest in
the State, allegedly, as a measure of agrarian reform.
The Writ Petitions are filed in this Court
under Article 32 of the Constitution by several Owners and/or lessees of large
tracts of forest lands. The Civil, Appeals are filed by the State, of Kerala
from the judgment and order of a full bench of the Kerala High Court (Reported
in A.I.R.
1973, Kerala 36) in petitions filed in that
court challenging the Act. The High Court held that the provisions of the Act
are not protected by Article 31A of the Constitution and accordingly declared
the Act as constitutional and void. Thus in all the proceedings now before us,
which were argued together, the question involved is the validity of the Act.
That will depend entirely the' question whether the Act is protected by Article
31A(1) of the Constitution.
The conclusion of the High Court was
expressed in the following words:
"Having regard to our conclusions that
forest lands in the State of Kerala, cannot generally be regarded as
agricultural lands and, therefore, cannot be the subject of agrarian reform and
that the scheme of agrarian reform 675 envisaged by the impugned Act is not
real or genuine but only illusory, we are of the opinion that the provisions of
the Act are not protected by Article 31A of the Constitution.
We therefore declare the Kerala Private
Forests (Vesting and Assignment) Act 26 of 1971 unconstitutional and
void." It is contended on behalf of the State of Kerala that in order to
get the protection of Article, 3 1A(1) (a) of the Constitution that the law must
fulfill two conditions-(1) that it must relate to an estate as defined in
Article 31A(2) (a) and (2) that the law-must be one of agrarian reform. What is
included in the expression "estate" is specified in sub-clauses (i),
(ii) and (iii) of clause (2) of Article 31A and, since the sub-clauses are
disjunctive, it will be enough for the State to show that the law relates to
land covered by an "estate" falling in at least one of the
sub-clauses. It was submitted that the private forests in Malabar are held in
janman right and hence they are an ,estate within the meaning of sub-clause
(i). If the State further shows, he contended, that the law envisages a measure
of agrarian reform it was not necessary for the State to establish
additionally, that forest lands are similar to lands described in sub-clause
(iii), that is to say, lands held or let for purposes of agriculture or for
purposes ancillary thereto. In short, in the submission on behalf of the State,
the forest lands with which we are concerned are an 'estate' within the meaning
of Article 3 1 A (2) (a) (i) of the Constitution and since section 10 of the
impugned Act, inter alia, embodies a scheme of agrarian reform, the Act is
valid.
This will be the proper place to refer to the
provisions of the Act. The Act is described as one to provide for the vesting
in the Government of private forests in the State of Kerala and for the
assignment thereof to agriculturists and agricultural laborers for cultivation.
The preamble is as follows:
"WHEREAS the private forests in the
State of Kerala are agricultural lands;
AND WHEREAS Government consider that such
agricultural lands should be so utilised as to increase, the agricultural
production in the State and to promote the welfare of the agricultural
population in the State;
AND WHEREAS Government also consider that to
give effect to the above objectives it is necessary that the private forests
should vest in the Government;
BE it enacted etc.
By Section 1 the Act is made to extend to the
whole of the State of Kerala and is deemed to have come into force on the 10th
day of May, 1971. Section 2 gives some definitions.
We are not concerned with all of them. Clause
(e) defines an owner as follows :
"(c) "owner", in relation to a
private forest, includes a mortgagee, lessee or other person having right to
possession and enjoyment of the private forest." 676 Clause (f) defines
"private forest". Private forest means,(1)in relation to the Malabar
district referred to in subsection(2) of section 5 of the States Re-organisation
Act, 1956 (Central Act 37 of 1956),(i) any land to which the Madras
Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied
immediately before the appointed day excluding(A)lands which are gardens or
nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964);
(B) lands which are used principally for the
cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used
for any purpose ancillary to the cultivation of such crops or for the
preparation of the same for the market.
(C) lands which are principally cultivated
with cashew or other fruit-bearing trees or are principally cultivated with any
other agricultural crop; and (D)sites of buildings and lands appurtenant to,
and necessary for the convenient enjoyment or use of, such buildings;
(ii)any forest not owned by the Government,
to which the Madras Preservation of Private Forests Act, 1949, did not apply,,
including waste lands which are enclaves within wooded areas;
(2)in relation to the remaining areas in the
State of Kerala, any forest not owned by the Government, including waste lands
which are enclaves within wooded areas." Section 3 is important.
"Private forests to vest in Government(1) Notwithstanding anything
contained in any other law for the time being in force, or in any contract or
other document, but subject to the provisions of subsections (2) and (3), with
effect on and from the appointed day, the ownership and possession of all
private forests in the State of Kerala shall, by virtue of this Act, stand
transferred to and vested in the Government free from all encumbrances, and the
right, title and interest of the owner or any other person in any, private
forest shall stand extinguished." The appointed day means the 10th day of
May, 1971. Sub-sections (2) to (4) of section 3 are not relevant for our
present enquiry. Since some time lag between vesting and distribution under
section 10 was inevitable, section 4 provided as follows :
"4. Private forests to be deemed to be
reserved forestsAll private forests vested in the Government under subsection
(1) of section 3 shall, so long as they remain vested in the Government, be
deemed to be reserved forests constituted under the Kerala Forest Act, 1961 (4
of 1962) and the provisions of that Act shall, so far as may be, apply to such
private forests." 677 Section 5 provides for eviction of persons in
unauthorised occupation and section 6 for the demarcation of boundaries of the
private forests.
Section 7 provides for the constitution of
Tribunals, their powers and functions. Sub-clause (2) of that section provides
that "the Tribunal shall consist of a single person who is, or has been,
or is qualified to be appointed as, a District Judge." Section 8 provides
that "Where any, dispute arises as to whether-(a)' any land is a private
forest or not; or (b) any private forest or portion thereof has been vested in
the Government or not, the person who claims that the land is not a private
forest or that the private forest has not vested in the Government, may apply
to the Tribunal for decision of the dispute. Subsection (3) provides that
"if the Tribunal decides that any land is not a private forest or that a
private forest or portion thereof has not vested in the Government, the
custodian shall, as soon as may be, restore possession of such land or private
forest or portion, as the case may be, to the person in possession thereof
immediately before the appointed day." Section 9 provides that "No
compensation shall be payable for the vesting in the Government of any private
forest or for the extinguishment of the right, tide and interest of the owner
or any other person in any private forest under sub-section(1) of section
3." Having thus provided for acquisition of private forest lands without
the necessity to pay compensation the Act now proceeds to provide for a scheme
of agrarian reform.
Section 10 Assignment of Private forests.-(1)
The Government shall, after reserving such extent of the private forests vested
in the Government under sub-section (1) of section 3 or of the lands comprised
in such private forests as may be necessary for purposes directed towards the
promotion of agriculture or the welfare 'of the agricultural population or for
purposes ancillary thereto, assign on registry or lease to(a) agriculturists;
(b) agricultural laborers;
(c) Members of Scheduled Castes and Scheduled
Tribes who are willing to take up agriculture as means of their livelihood;
(d) unemployed young person’s belonging to
families of agriculturists and agricultural laborers, who have no sufficient
means of livelihood and who are willing to take up agriculture as means of
their livelihood;
678 (e) laborers belonging to families of
agriculturists and agricultural laborers, whose principal means of livelihood
before the appointed day was the income they obtained as wages for work in
collection with or relate to private forests and who are willing to take up
agriculture as means of their liveliho od.
the remaining private forests or the lands
comprised in the private forests on such terms and subject to such conditions.
and restrictions as may be prescribed." "(2) The Government may, by
notification in the Gazette, delegate their power under sub-section (1) to any
officer of the Government or any class of officers of Government, subject to
such restrictions and control as may be specified in the notification."
(3)The extent of private forests or lands comprised in private forests which
may be, assigned to each of the categories of persons specified in
sub-section(1) and the order of preference in which assignment may, be made
shall be such as may be prescribed." Section 11 is important. It reads :
"Assignment to be made within two years.-Assignment of the private forests
or the lands comprised therein under section 10 shall, as far as may be,
completed within two years from the date of publication of this Act in the
Gazette." Section 12 deals with the powers of the Tribunals and the
custodian and Section. 13 bars the jurisdiction of civil courts.
Section 15 reads : "Constitution of
Agriculturists Welfare Fund.(1) A fund called the Agriculturists Welfare Fund
shall be constituted by the Government to be utilised for the settlement and
welfare of persons to whom private forests or lands comprised in private
forests, have been assigned under section 10 and shall be administered in such
manner as way be prescribed." "(2) The Fund referred to in
sub-section (1) shall consist of grants or loans by or from the Government and
monies received by the Government by the sale of trees standing in such portion
of the private forests as are or may be assigned under section 10".
Section 17 provides for the rules making
power of the Government.
By the repealing section 18 several Acts have
been repealed including the Kerala Private Forests (Vesting and Assignment)
Ordinance. 1971 which had been promulgated prior to this Act.
In short the Act purports to acquire forest
lands without payment of compensation for implementing a scheme of agrarian
reform by assigning lands on registry or by way of lease to the poorer sections
of the rural agricultural population. This is done after reserving portions of
the forests as maybe necessary for purposes "directed towards the
promotion of agriculture or the welfare of the agricultural population or for
purposes ancillary thereto." This scheme of agrarian reform is intended to
be completed within two years.
679 Mr. Chagla, who addressed us the
principal argument in this case on behalf of the owners, contended that private
forests could not be converted into agricultural lands by a mere legislative
flat contained in the Preamble of the Act, because forest lands are lands in
which forests grow spontaneously and naturally without human effort or skill
and are quite distinct from. agricultural lands which, however defined, must
contain the element of tilling the soil for sowing and planting. He pointed out
that in subclause (iii) of Article 31A (2) (a) a forest land may be regarded as
an agricultural land only when that land is held or let for purposes of
agriculture or for purposes ancillary thereto in which case a forest land may
be included in the, definition of the word 'estate'. It was not shown that vast
areas of private forests which are now in the possession of the owners and the
lessees thereof were held or let for purposes of agriculture and hence they
cannot be regarded:
as an 'estate' within the definition. That
alone according to Mr. Chagla deprived the Act of the protection under Article
31A(1). Secondly, assuming that forest lands are 'estate" within the
definition, he further contended that their acquisition was not for
implementing any, scheme of agrarian reform but for a collateral purpose,
namely, to increase the revenues of the State by exploiting the forest wealth
of the lands by selling valuable timber naturally growing in them.
Since the Preamble to the impugned Act
forests in the State of Kerala are 'agricultural lands' and there is no
definition of what is meant by 'agricultural lands' in the Act itself, we shall
have to consider in what sense the expression 'agricultural lands' has been
used in the Act.
It is conceded by the learned Advocate
General for the State of Kerala that a mere recital in the Preamble, although
admissible, will not be conclusive of the facts. But he submits that courts should
show decent respect to such an affirmation of fact because the legislature of a
State is presumed to know the character of the lands situated in the State, the
tenure under which they are' held, the use and abuse to which they are put and
the manner in which such natural resources of the State are best .utilized for
the benefit of the community. He submits that this affirmation in the Preamble
is not irresponsibly, made and that the expression 'agricultural lands' has
been used in a special sense having regard to the uses to which these forest
lands have been put over generations. In his submission forest lands in Kerala
are agricultural lands in, the sense that they are capable of being used for
raising food crops.. cash crops, plants or trees and other purposes of
husbandry.
The statement of objects and reasons in the
Act contains the following :
"There are vast extents of private
forests in the State particularly in the Malabar area where such forests are
owned by Janmies. These private forests are agricultural lands. In the Judgment
reported in 1969 K.L.T. 320 (V.
Venugopala Varma Rajaa v. Controller of
Estate Duty, Kerala) a division bench of the High Court has held that in the
absence of exceptional circumstances such as the land being.
680 entirely rocky and barren for other
reasons, all forests landsin the State are agricultural lands in the sense that
they can be prudently and profitably exploited for agriculture purposes."
Reference may also be made in this connection to some of the passages in the
affidavit filed by Shri K. Viswanathan Nair, Joint Secretary to Government of
Kerala, Law Department, in this connection. In para 4 of his affidavit he says
"Approximately 28 per cent of the total land area in the Kerala State
constitutes forest lands. Generally forest lands comprised in the erstwhile
native States of Travancore and Cochin area are owned by Government, whereas
that of the erstwhile Malabar District of Madras Presidency belonged partly to
private individuals and partly, to the State Government. It was estimated that
the total extent of private forests in Malabar area would come to about 1,200
sq. miles, i.e. about 7.5 lakh acres...... As per the Survey conducted by the
Madras Government in the year 1945, private forest lands in Malabar area, the
extent of which was found to be 1,200 sq. miles then, belonged to 116 private
individuals, the extent owned by them varying from 100 acres to 1,0,0,000
acres." Then he proceeds to say', "the forest lands in Kerala are
agricultural lands and can be put to cultivation of various food and cash
crops. Cultivation of forest lands will increase the agricultural production in
the State and will also provide means of livelihood to landless agricultural
laborers. The Government considered such lands should be distributed to those
persons for purposes of agriculture and that to ensure effective and proper
distribution of such lands, the private forests should be vested in the
Government." Then at para 19 he states as follows :
"It is also pertinent to, place before
this Hon'ble Court the fact that in large tracts of areas which had been
already clear-felled by the owners of the private forests or their contractors,
food-crops like coffee, coconut. pepper, etc.. have been raised converting them
into such food crop plantations. Even planting teak and other plantation crops
is agricultural operation and the lands on which these are planted are
agricultural lands. After assignment of private forests from the jenmies or
after trespassing into the private forests, large numbers of settlers of the
poor classes have clear-felled the forests including dense forest areas and
have cultivated food crops therein. Plantations like tea, coffee, rubber, 'teak
and cardamom have been raised in the private forests by the rich planters. In
other places after clear-felling the forests, cocoanut, areca, tapioca and
other cultivations have been raised, the yield of which is found to be
considerably high when compared to the other areas of the State. Similarly,
coffee, pepper and rubber plantations have been successful in the forest lands
in Wynad (Malabar District)".
A fact to which attention must be drawn is
that whereas a large proportion of the forests in the former Travancore Cochin
State belonged to the Government and only a small proportion to private owners
or janmies, the position in the Malabar District was just the ,opposite. Forest
lands in that District belonged predominantly to 681 private owners or janmies
Many of these private owners were heads of Hindu Religious Endowments., A
committee known as the Kutti Krishna Menon Committee had been appointed for
recommending the unification of laws relating to Hindu Religious Endowments in
the Madras State and that Committee, in one place of its report, suggested-and
this is referred to in the affidavit-as follows :
"74. We would suggest that the large
areas of virgin forest lands available within some of the Devaswoms may be
utilized for plantation of cocoanut,. arecanut, pepper, cashew, rubber,
etc." The Malabar Tenancy Act, 1929 as ,mended in 1951, contained the
following provision :
"52.(1) The State Government or such
officer as they may authorise in this behalf may by order require the landlord
of any waste or forest land to lease it for agricultural purposes to such
person for such term subject to such conditions and within such times as may be
specified in the order." By reason of the increasing population of the
area, and consequent pressure on land, there was widespread squatting by
agriculturists in forest areas where trees 'were cut and large blocks , were
brought under the plough. The former State of Travancore and Cochin bowed to
the inevitable by regularising the occupation by unauthorised settlers and
issued orders for settling agriculturists on land in the forests which could be
put to agricultural use. In this connection the affidavit says:
"Forest lands in the Travancore-Cochin
area of the State, which are Government Reserve Forests have been widely used
since long past for agriculture and purposes ancillary thereto by persons to
whom these lands were assigned by the State and by large numbers of
encroachers. Use of these lands for agricultural purposes on a large scale has
been adverted to, in the Report of the Sub-Committee on the eviction of
encroachers from the forest lands in the State of Kerala, to which also this
respondent craves leave to refer in detail at the hearing. The Government is
currently distributing 3 lakh acres of forest lands for settlement of
agriculturists." Reference was also made to the report of the Special
Officer Shri K. Anantan Pillai who was asked to prepare a list of arable lands
in the reserve forests-of the former Travancore and Cochin suitable for
cultivation. That report was made in 1969. The extracts from his report are
given in the affidavit and they show to what extent lands in the Government
reserve forests were made available to , hungry agriculturists for food
production. The officer says "Now that the position of food supplies is
far more serious and the scope for finding employment for a very large number
of people is getting more and more limited, one of the possible alternate
solutions will be to take a fairly big slice of cultivable land from the
Government forests for assignment to these people. With this object in view, I
have inspected 682 these lands in all these divisions and I have prepared a
list of areas considered suitable for cultivation, details of which are
furnished." After furnishing the details the Officer says : "The
present attempt is to find out suitable cultivable lands in the reserve area
and to give the land on a systematic basis. With this view in mind I have tried
to find out suitable areas preferably in large blocks. This will help the
formation of fairly large sized colonies or villages so that the allottees can
have a social life and in course of time all the facilities for communal living
can be provided to them. If a large block is taken, normally because of the
nature of land in our State a few steep hills cannot be excluded. The colony
can be formed on the base of these hills in fairly elevated places and it can
be-so arranged that the individual families will have their residences at
convenient places (within two or three miles) in relation to the area he is
given for cultivation. Some of the blocks I have pointed out are fairly large
areas where even small townships can be formed. This will aid the formation of
cooperative societies to help the allottees in both their cultivation and in
constructing suitable building for 'them." This shows how the Special
Officer felt the need of settling chunks of the agricultural population in
blocks of reserve forests and envisaged the formation of large blocks in the
forest area so that in the neighborhood and on the slopes of the hills villages
and even small townships could be built. The Officer was chiefly concerned with
the reserve forests in the Kerala State. But in his report he also referred to
the private forests in the Malabar District. In that connection he says
"Apart from this I understand that extensive areas of private forests are
available in the Malabar Districts. They can also be acquired and
distributed." It must be remembered that what is stated generally about
the nature of the reserve forest lands in the old State of Travancore Cochin
applies equally to the private forest lands of Malabar District because all
these forests are contiguous and form one long belt of a mountainous terrainnow
forming part of the State of Kerala. It will be thus seen that all forest
lands, whether reserve or private, have been applied for generations for the
settlement of agriculturists whether such settlements were authorised for
unauthorised. Vast areas-in the forests were clear-felled, as the expression
goes, for bringing patches and blocks of lands under agriculture. Several types
of produce were obtained by agriculture and a large population lives on the
same. Plantations of, coffee, tea, rubber, cardamom and the like were grown on
an extensive scale in these forests. In recent years Industrialists have taken
leases of vast areas of these forests from their owners and a fraction of the
same has been brought under cultivation by planting eucalyptus and other types
of trees useful for paper and other industries. Large areas in these forests
seem to be even now in their pristine form but are capable of being utilized by
absorbing a large proportion of the population by settling them on the land.
These forests, therefore, have attained a peculiar character owing to their
geography and climate and the evidence available to us shows that vast areas of
these forests are still capable of supporting a large agricultural population.
The several authoritative reports 683 to which reference was made in the,
affidavit were made available to us and the extracts there from were read out
at the time of the. argument. They seem to support what a bench of the KeralaHigh
Court said in V. Venugopala Varma Rajaa v. Controller of Estate Duty, Kerala(1)
in para 6 of the judgment. "It is well-known that the extensive areas of
different varieties of plantations that we have got in this State were once
forest lands; and it is also equally wellknown that year. after year large
areas of, forest lands in this State are being cleared and converted into
valuable plantations. In the absence of exceptional circumstances such as the
land being entirely rocky , or barren for other reasons, all forest lands in
this State are agricultural lands in the sense that they can be prudently and
profitably exploited for agricultural purposes." This judicial opinion as
we have already seen has been referred to in the Statement of Objects and
Reasons of the Act. It is, therefore, manifest that when the legislature stated
in the Preamble that the private forests are agricultural land, they merely
wanted to convey that they are lands which by and large could be prudently and
profitably exploited for agricultural purposes.
Having appreciated the true nature and
character of these private forests we have to see whether they can be regarded
as 'estate' within 'the contemplation of Article 31A (2) of the Constitution.
That Article is as follows :
"31A. (a) the expression
"estate" shall, in relation to any local areas, have the same meaning
as that expression or its local equivalent has in the existing law relating to
land tenures in force in that area and shall also include(i) any jagir, inam or
maufi or other similar grant and in the States of Madras and Kerala, any jamman
right;
(ii)any land held under ryotwari settlement;
(iii)any land held or let for purposes of
agriculture or for purposes ancillary thereto.
including waste land, forest land, for
pasture or sites of buildings and other structures occupied by cultivators of
land, agricultural laborers and village artisans;
(b) The expression "rights?', in
relation to an estate, shall include any rights vesting in a proprietor,
sub-proprietor, underproprietor, tenure-holder, (raiyat, underraiyat) or other
intermediary and any rights or privileges in respect of land revenue." The
definition of 'estate' is an inclusive definition. In subclauses (i), (ii) and
(iii) certain categories of rights and lands are included in the definition of
the word 'estate'. It is the contention on behalf of the Kerala State that
these forest lands which are held in janmam right fall squarely under
sub-clause (i). Since janmam tight to these lands is in an 'estate' it could be
acquired by the State (1) [1969] K. L. T. 230.
684 under Article 31A(a)(1)(a). There is
force in this contention. Janman rights in the States of Madras and Kerala are,
as explained by Subba Rao, J. in Kavalappara Kottarathil Kochuni and others v.
The State of Madras and others(1) rights of hereditary proprietorship in land.
These rights, like the rights created by
grant of jagir or inam relating to land, which included agricultural lands or
waste lands or forests and hills (See: State of U.P. v. Raja Anand Brahma Shah)
(2), are brought within the definition of the word 'estate', and are,
therefore, liable to be acquired by the State under Article 31A(1)(a).
It is not disputed that all the private
forests. with which we are now concerned are held in Janmam right. Janmam
rights being an ,estate' are liable to be acquired by the State under Article
31A(1) (a) as a necessary step to the implementation of agrarian reform. Section
3 of the impugned Act vests the ownership and possession of all private forests
in the State. Therefore they would attract the protection of Article 31A(1). It
would not be, in such a case, necessary to further examine if the lands so
vested in the Government are agricultural lands falling within subclause (iii).
This is explained in some detail by this Court in Balmadies Plantations Ltd. v.
State of Tamil Nadu (3) in para 15 at page 147.
Indeed this does not mean that the State is
absolved from showing that the acquisition is for the purpose of agrarian
reform. In fact in Balmadies case, referred to above, the acquisition of
forests owned by janmies was set aside on the sole ground that the impugned law
or the material on record did not indicate that the transfer of forests from
the janmies to the Government was linked in any way with a scheme of agrarian
reform or betterment of village economy.
What then is the scheme of agrarian reform
envisaged in the impugned Act? The title of the Act shows that it is an act to
provide for the vesting in the Government of private forests for the assignment
thereof to agriculturists and agricultural laborers for cultivation. The
Preamble shows that such private forests which the legislature thought to be
agricultural lands in the sense, already explained, should be so utilised as to
increase their agricultural production in the State and to promote, the welfare
of the agricultural population in the State. It is further stated in the
Preamble that in order to give effect to the above objects it was necessary
that the private forests should vest in the Government. The objectives of
increasing the agricultural production and the promotion of the welfare of the
agricultural population are clearly a predominant element in agrarian reform.
How these objectives are to be implemented are generally stated in sections 10
and 11. All the private forests, after certain reservations, are to be assigned
to agriculturists or agricultural laborers and to the poorer classes of the
rural population desiring bona fide to take up agriculture as a means of their
livelihood.
The reservation in respect of certain
portions of the forests is also made (1)[1960] 3 S. C. R. 887. (2) [1967] 1 S.
C. R. 362.
(3)[1972] 2 S.C. C. 133.
685 in the interest of the agricultural
population because the section says that the reservations will be such-as may
be necessary for purposes directed towards the promotion of agriculture or
welfare of the agricultural population or for purposes ancillary thereto. Section
11 further provides that after making the necessary' reservations the scheme
for the assignment of the private forests to the various beneficiaries
described in section 10 shall, as far as may be completed within two years from
the date of the publication of the Act. The conditions and restrictions under
which the assignments are to take place have to be prescribed by rules. We
understand that in view of the stay granted by the courts, the rules have not
been framed. But it is clear that the rules will have to be framed forthwith
because of the urgency of the matter as seen in section '11 and these rules
will undoubtedly unfold the details of the scheme generally envisaged in
section 10. It would not be necessary to emphasize that the rules will have to
be consistent with the purposes of the Act. In statutes of this nature,
provision can only be generally made to indicate the broad details of the
scheme for agrarian reform and that is what is done in the Act. In Balmadies
case referred to above no such scheme had been envisaged. But in another case
namely the Kannan Devan Hills Produce v. The State of Kerala and another(1) the
Statute viz. The Kannan Devan Hills (Resumption of Lands) Act 5 of 1971
disclosed a scheme in section 9 which is very similar to our own section 10 of
the impugned Act. Section 9 of that Act was as follows "9. Assignment of
lands.-(1) The Government shall, after reserving such extent of the lands, the
possession of which has vested in the Government under sub-clause (1) of section
3 ... ........... as may be necessary for purposes directed towards the
promotion of agriculture or the welfare of the agricultural population to be
settled on. such lands, assign on registry the remaining lands to
agriculturists and agricultural laborers in such manner, on such terms and
subject to such conditions and restrictions, as may be prescribed." That
scheme as envisaged in this section was upheld by this Court as a scheme for
agrarian reform and we do not see any good reason why we should take a different
view with regard to the scheme envisaged in section 10 'of the impugned Act.
The High Court thought that the scheme was
not real or genuine but illusory and has given some reasons in para 12 of the
judgment why it took that view. The reasons given do not stand scrutiny. One
reason was that whereas in the Kannan Devan Hills (Resumption of Lands) Act,
1971 Section 9 provided for' only assignment on registry of the lands, in
section 10 of the impugned Act the forest lands are intended to be assigned both
on registry and by way of lease.
Exception is taken to assignments by way' of
lease on the ground that the lessee does not get any fixing of tenure.
Rules are to (1) [1972] 2 S. C. C. 218.
686 be still framed and it would be too early
now to say what conditions and restrictions will be imposed, in the leases.
Moreover, assuming that there is no fixity of
tenure, that would not mean that leases in favour of , agriculturists or
agricultural laborers are not part of agrarian reform. The point is that forest
lands, overgrown by shrubs and jungle growth, will have to be cleared in the
first instance before the land is made cultivable; and after the land is made
cultivable agricultural produce will be grown there by some lessee or the
other. Assuming any particular lessee's tenure is not fixed, that would not
mean that the land will remain fallow. Other agriculturists will step into the
shoes of the lessee and the process of growing agricultural produce will
continue in the interest of the grower and the agricultural community as a
whole. The other reason given is that there is no provision with regard to
trees in the forest reserve under section 10 and a suspicion is expressed that
the Government may appropriate to itself the value of the trees. Mention is
made that even a single log of rose wood fetches a price of Rs. 40,000/-. It
seems, however, to have escaped the notice of the High Court that the reserve
portions of the forests under, section 10 are clearly earmarked in the section
itself for purposes directed towards the promotion of agriculture or the
welfare of the agricultural population or for purposes ancillary thereto.
There is, therefore, no foundation for the
suspicion that valuable trees which form part of the reserve private forests
are liable to be appropriated for purposes other than those specifically
mentioned in that section 15 provides for the constitution of the
Agriculturists Welfare Fund and this relates to the price of trees standing in
the lands assigned on registry or given on lease. That fund, according to
sub-clause (2) shall consist of grants and loans by or from the Government and
monies received by the Government by the sale of trees standing in such
portions of the private forests as are or may be assigned under section
10. No such fund is created for the purpose
of the trees standing in the reserve area. But that does not mean that the
value of the trees in the reserve area can be utilized for purposes other than
those specifically mentioned in section 10. That will be part of the scheme and
Government will have to take adequate provision as to how the value of the
trees can be utilized for purposes directed towards the promotion of
agriculture or welfare of the agricultural population or for purposes ancillary
thereto.
Another objection was that assignment of land
without demarcation and survey was unpracticable and productive of strife. We
do not see why assignment of land is impracticable in the absence of survey.
Even before the introduction of the, survey, lands had been assigned and
cultivated by agriculturists. The process of assignment must involve
demarcation of the land assigned. Sub-section (3) of section 10 says "the
extent of private forests or lands comprised in private forests which may be
assigned to each of the categories of persons specified in sub-section (1) and
the order of preference in which assignment may be made shall be such as may be
prescribed." After determining the extent of the land to be assigned, the
land, 687 when assigned,, will have to be inevitably demarcated by the officers
who make the assignment. That is not an insuperable difficulty. As a matter of
fact we know from the affidavit on behalf of the Government that about 3 lakh
acres of forests land have been already distributed. Indeed steps should be taken
for an early survey in the interests of law and order. But survey is not the
sine-qua-non of any genuine scheme for distribution of land. We do not think
that the High Court has given any substantial reasons for coming to the.
conclusion that the scheme of agrarian reform is a"teasing illusion and a
promise in unreality." in an attempt to show that the impugned Act was a
piece of colorable legislation, reference was made to the Kerala Private
Forests Acquisition Bill, 1968 L.A. Bill No. 33 of 1968 which provided for the
acquisition of private forests on payment of compensation for the acquisition.
'Nat Bill, it is contended, was allowed to lapse and the present Act was
enacted with the obvious intention of expropriating vast forest lands without
paying compensation. We can hardly countenance such an argument. The question
really is, in the first place, of the competence of the legislature to pass the
impugned Act and, in the second, whether the Act is constitutional in the sense
that it is protected by section 31A(1). So far as the competence of the
legislature is concerned, no objection is made before us. As to its
constitutionality we have shown that the Act purports to vest the janmam rights
to the forests in the Government as a step in the implementation of agrarian
reform. If this could be constitutionally done by the legislature, the fact
that at an earlier stage the Government was toying with the idea of paying
compensation to owners of private forests is of little consequence. The
dominant purpose of the impugned Act, as already pointed out, is to distribute
forest lands for agricultural purposes after making reservations 'of portions
of the forests for the benefit of the agricultural community. The fear is
expressed that such a course if, genuinely implemented, may lead to
deforestation on a large scale leading to soil erosion and silting of rivers
and streams and will actually turn out to be detrimental to the interests of
the agricultural community in the long run' it is undoubtedly true that rackless
deforestation might lead to very unhappy results. But we have no material
before us for expressing opinion on such a matter. It is for the legislature to
balance the comparative advantages of a scheme like the one envisaged in the
Act against the possible disadvantages of resulting deforestation. There are
many imponderables to which we have no safe guides. It is presumed that the
legislature knows the needs of its people and will balance the present
advantages against possible future disadvantages. If there is pressure on land
and the legislature feels that forest lands in some, areas can be conveniently
and, without much damage to the community as a whole, utilized for settling a
large proportion of the agricultural population, it is perfectly open, under
the constitutional Powers vested in the legislature, to make a suitable law;
and if the law is constitutionally Valid this Court can hardly strike it down
on the ground that in the long run the legislation instead of turning out to be
a boon will turn out to be a curse.
392SupCI/74 688 Mr. Menon who appeared for
the respondent in Civil Appeal No. 1398/72 put forward a plea of equitable
estoppel peculiar to his client company. It appears that the Company
established itself in Kerala for the production of rayon cloth pulp on an
understanding that the Government would bind itself to supply the raw-meterial.
Later Government was unable to supply the material and by an agreement
undertook not to legislate for the acquisition of private forests for a period
of 60 years if the Company purchased forest lands for the purpose of its supply
of raw-materials.
Accordingly, the Company purchased 30,000
acres of private forests from the Nilabhuri KovilaKannan estate. for Rs.
75/lakhs and, therefore, it was argued that,
so far as the company is concerned, the-agreement not to legislate should
operate as equitable estoppel against the State. We do not see how an agreement
of the Government can preclude legislation on the subject. The High Court has
rightly pointed out that the surrender by the, Government of its legislative
powers to be used for pubic good cannot avail the company or operate against
the Government as equitable estoppel.
In the result the appeals are allowed and the
Writ Petitions dismissed. It is declared that the Kerala Private Forests
(Vesting and Assignment) Act, 1971 is constitutionally valid. There shall be no
order as to costs.
KRIsHNA IYER, J. The holding and the reasons
expressed in the leading opinion happily coincide with ours.
Nevertheless, the problems raised and the
points debated bear upon such seminal Issues that some supplementary
observations from us may not be supererogatory.
Certain Owners of vast extents of private,
forests aggrieved by the deprivation, without compensation, of their ownership
under the Kerala Private Forests (Vesting & Assignment) Act, 1971 (Act 26
of 1971) (hereinafter called, for short, the Forest Act) challenged its vires
under art. 226 of the Constitution on the score that it violated their
fundamental rights under arts. 14, 19 and 31 and was not immunised by art. 31A
from the lethal sting of art. 13. The High Court upheld the attack and voided
the statute. The defeated State has sought in appeal to sustain the
constitutionality of the law while others who have suffered by the operation of
the statute have come up directly to this Court under art. 32. The impugned Act
vests in the State lands of these latifundists, flatly refusing any the
littlest compensation, and the issue is whether the wings of art. 31A are wide
enough and the provisions of the Forest Act fair enough for the Court to grant
constitutional shelter.
The State wields the shield of art. 31A to
ward off the private owners' sword thrust of art. 13 read with arts. 14, 19 and
31 We must examine the application of art. 31A to the Forest Act.
689 Any law providing for the acquisition by
the State of an 'estate' is saved by art. 31A subject to certain conditions,
violation of arts. 14, 19 and 31 notwithstanding.Subarticle (2) explains the
concept of 'estate' and includes therein janmam rights. Although art. 31A is
worded widely enough to rope in acquisition of any estate by the State
regardless of purpose, the Supreme Court has cut back on this amplitude by
limiting entitlement to constitutional protection to agrarian reform
legislation only. Subba Rao, J., in Kochuni's(1) case, speaking for the Court,
reviewed the earlier decisions under art. 31A and interpreted the provision
against the back-drop of the objects of the Constitution (Forth Amendment) Act,
1955 and the earlier Constitution (First Amendment) Act, 1951, to arrive at the
conclusion that art. 31A was meant "to facilitate agrarian reforms".
This Court in the aforesaid decision struck down the Madras Marumakkathayam
(Removal of Doubts) Act, 1955, because "the impugned Act does not
effectuate any agrarian reforms and regulate the rights inter-se between
landlords and tenants." Art. 31A deprives citizens of their fundamental
rights and such an article cannot be extended, by interpretation, to overreach
the object implicit in the article, observed Subba Rao, J., and this judicial
gloss has come to stayForensic debate has since centered round what is agrarian
reform, and counsel here have joined issue on the claim of the Forest Act to
wear this protective mantle.
Article 31A having been read down to relate
to agrarian reform, rightly, if we may say so-in the feudal context of the
country and the founding faith in modernisation of agriculture informed by
distributive justice, the controversy in the present case demands a study of
the anatomy and cardiology of the statute, not its formal structure but it-,
heart beats.
What do we mean by agrarian reform? The
genesis of the concerned constitutional amendments, and the current economic
thinking must legitimately illumine the meaning, along with lexicographic aids
and judicial precedents. "We must never forget it is a Constitution we are
expounding." The seventies of our century pour new life into old concepts
and judges must have the feel of it. So viewed, the technology of agrarian
reform for a developing country which traditionally lives in its villages
envisages the national programmes of transmuting rural life from feudal
medievalism into equal, affluent modernism-a wide canvass overflowing mere
improvement of agriculture and reform of the land system.
(1)[1960] 3 S. C.R. 887 690 The concept of
agrarian reform is a complex and dynamic one promoting wider interests than
conventional reorganisation of the land system or distribution of land. It is
intended to realise the social function of the land and includes we are merely
giving, by way of illustration, a few familiar proposals of agrarian
reform-creation of economic units of rural production, establishment of
adequate credit system, implementation of modern production techniques,
construction of irrigation systems and adequate drainage, making available
fertilizers, fungicides and other methods of intensifying and increasing
agricultural production, providing readily available means of communication and
transportation, to facilitate proper marketing of the village produce, putting
up of silos, warehouses etc. to the extent necessary for preserving produce and
handling it so as to bring it conveniently within the reach of the consumers
when they need it, training of village youth in modern agricultural practices
with a view to maximising production and help solve social problems that are
found in relation to the life of the agricultural community.The village man,
his welfare, is the target.
Moving the first constitution Amendment Bill,
the then Prime Minister, who was in a large sense the protagonist of
constitution framing for the country, observed :
"Now apart from our commitment, a survey
of the world today, a survey of Asia today will lead any intelligent person to
see that the basic and the primary problem is the land problem today in Asia,
as in India. And every day of delay adds to the. difficulties and dangers,
apart from being an injustice in itself." "..... But inevitably, in
big social changes some people have to suffer. We have too think in terms of
large schemes of social engineering, not petty reforms but of big schemes like
that." At the end of an extensive debate he again emphasized "May I
remind the House that this question of land reform is most intimately connected
with food production. We talk about food production and grow-more-food and if
there is agrarian trouble and insecurity of land tenure nobody knows what is to
happen. Neither the zamindar nor the tenant can devote his energies to food
production because there is instability." This reference to the opposite
parliamentary debate reveals the special significance and extensive connotation
of 'agrarian reform' in its application to Indian conditions.
Indeed, art. 31A(2)(iii) itself by referring
to land for pasture and sites of buildings and other structures occupied by
cultivators, agricultural laborers and village artisans gives clear hints of
agrarian well-being being pivotal to land reform in its larger legitimate
connotation.
Agricultural economists have focussed
attention on the need of under-developed countries to upgrade the standard of
living of village communities by resort 691 to schemes for increasing food
production and reorganising the land system. The main features of the agrarian
situation in India and in other like countries are the gross inequality in land
ownership, the disincentives to production and the desperate backwardness of
rural life. As one Latin American has stated(1) :
"Agrarian reform ought to be an
inseparable part of an agricultural policy which furthers the advance of that
aspect of economic activity in harmony with overall economic development.
Agrarian reform likewise pursues social and political ends congruent with
economic goals, such as the cultural elevation of the peasants, their
liberation from a vestiges of feudalism, their well-being, their group
solidarity, and their participation in public life through the mechanism of
democracy." It is thus clear to those, who understand developmental dialectic
and rural planning that agrarian reform is more humanist than mere land reform
and, scientifically viewed, covers not merely abolition of intermediary
tenures, zamindaris and the like but restructuring of village life itself
taking in its broad embrace the socioeconomic regeneration of the rural
population. The Indian Constitution is a social instrument with an economic
mission and the sense and sweep of its provisions must be gathered by judicial
statesmen on that seminal footing.
Indeed, the decisions of this Court cited at
the bar adopt this meaningfully latitudinarian approach and we may briefly
refer to them here.
In Ranjit Singh's(2) case, a semantic
liberalism suggestive of a glimpse of the new horizons and a touch of the winds
of change is read into the idea of agrarian reform.
Hidayatullah, J., quoted a significant
passage from Ram Narain Medhi v. State of Bombay,(3) which runs thus :
"With a view to achieve the objective of
establishing a socialistic pattern of society in the State within the meaning of
Articles 38 and 39 of the Constitution, a further measure of agrarian reform
was enacted by the State Legislature, being the impugned Act, hereinafter
referred to, which was designed to bring about such distribution of ownership
and control of agricultural lands as best to subserve the common good thus
eliminating concentration of wealth, and means of production to the common
detriment." Indeed. the learned Judge struck the true national note, if we
may say so, with great respect, when he observed(2) :
"The scheme of rural development today
envisages not only equitable distribution of land so that there is no undue
imbalance in society resulting in a landless class on (1) 1964-65 (Vol. 50)
IOWA Law Review, 529.
(2) [1965] 1 S. C. R. 82, 94.
(3) [1959] Supp. 1 S. C. R. 489.
692 the, one had and a concentration of land
in the hands of a few on the other, but envisages also the raising of economic
standards and bettering rural health and social conditions.
Provisions for the assignment of lands to
village punchayat for the use of the general community, or for hospitals
schools, manure pits, tanning grounds etc. enure for the benefit of rural
population must be considered to be an essential part of the redistribution of
holdings and open lands to which no objection is apparently taken. If agrarian
reforms are to succeed, mere distribution of land to the landless is not
enough. There must be a proper planning of rural economy and conditions and a
body like the village panchayat is best designed to promote. rural welfare.
than individual owners of small portions of lands." In Rajo Anand's(1)
case, Sikri J., after holding the forests and waste lands in that case fell
within the definition of 'estate' proceeded to take the view that acquiring the
many square miles of forests in that case being in the, nature of a necessary
step in the implementation of agrarian reforms was impregnably insulated by
article 31A. The sheer extinguishment of certain types of land grants and
hereditary holdings may, in given circumstances, without more, constitute steps
in aid of agrarian reform. it is arguable that the elimination of ancient
janmam may per se be regarded as possessing the attribute of agrarian reform
because to wipe out feudal vestiges from our countryside and to streamline land
ownership are preliminaries to the projection of a socialistic order which part
IV and art. 31A of the Constitution strive to create. However, this Court has
ruled in Balmadies Plantations Ltd. v. State of Tamil Nadu(2) and that decision
binds us that a scheme of agrarian reform is essential, apart from taking over
of jamman rights, to make the law valid. In the present case a concrete
agrarian project is presented by section 10 of the Forest ActA substantially
similar programme was considered by this Court in Kannan Devan's(3) case and
approved as sufficient to impart to the statute invulnerability under art. 31A.
Notwithstanding the attempt of counsel for the forest owners, to distinguish
between the Kannan Devan provisions and section 10 the distinction is without a
difference. Once we accept the thesis that developmental orientation and
distributive justice are part of and inspire activist agrarian reform, its
sweep and reach must extend to cover the needs of the village community as
well. What programme of agrarian reform should be initiated to satisfy the
requirement of rural uplift in a particular community under the prevailing
circumstances is a matter for legislative judgment. Here, in this field the
legislature is the policy maker and the court cannot assume the role of an.
economic adviser or censor competent to pronounce whether a particular
programme of agrarian reform is good or bad from the point of view of the needs
of the community. The sole (1) [1967] 1 S. C. R. 362. (2) [1972] 2 S. C. C.
133.
(3) [1972] 2 S. C. C. 218.
693 issue for the Court is whether it is in
fact a scheme of agrarian reform, and if it is, the prudence or folly thereof
falls outside the orbit of judicial review being a blend of policy, politics
and , economics ordinarily beyond the expertise and proper function of the
court.
I We may, however, point out here that in
ascertaining whether the, impugned enactment outlines a blueprint for agrarian
reform the Court will look to the substance of the statutory proposal and .not
its mere outward form. The Court will closely study to see if the legislation
merely wears the mask of agrarian reform or it in reality such. A label cannot
salvage a statute from the clutches of constitutional limitations if the
agrarian reform envisaged by it is "a teasing illusion or promise of
unreality." The Court should .not be too gullible to accept a scheme of
agrarian reform when it is nothing but a verbal subterfuge, but at the same
time the Court should not be too astute to reject such a scheme because it is
not satisfied with the wisdom of the scheme or its technical soundness. Can the
State take over an industrial unit or a business undertaking without payment of
compensation and claim the protection of art. 31A by stating that the profit
arising from such industrial unit or business undertaking would be utilised for
purposes directed to agriculture or welfare of the rural population? Such an
acquisition would obviously not be an acquisition for carrying out a scheme of
agrarian reform because there will be no direct 'nexus between the, subjectmatter
acquired and its utilisation for agrarian reform. It would not be enough merely
to say that the income of the property acquired is to be utilised for purposes
of agrarian reform. The property itself must be acquired for carrying out such
a reform. This requirement is satisfied in the, present case because forest
lands reserved under s. 10 are to be utilised "for purposes directed to
the, promotion of agriculture or for the welfare of the agricultural population
or for purposes ancillary thereto." We do not think it would have been
sufficient merely to provide that the income from the produce of the forests
shall be utilised for promotion of agriculture or the welfare of the
agricultural population, but the forest lands need not be so utilised. That
would have been merely a devise for augmenting the revenues of the State though
with a direction that such addition to the revenue shall be expended only on'
purposes of promotion of agriculture or the welfare of the agricultural
population. But here it is clear on a reading of s. 10 that the forestsand not
merely the income are to be devoted to or directed toward-, the promotion of
agriculture or the welfare of the agricultural population or for ancillary uses
closely related to agrarian reform. The details of the scheme of agrarian
reform to which the acquired forests would be subjected cannot obviously be
embodied in the statue and they are left to be provided by rules which are to
be made under s. 17 for the purpose of carrying out the Provisions of the
statute. No rules could so far be made by the State Government. it is said,
because there was a stay against the implementation of the Act when the
petition was pending in the Kerala High Court and thereafter the Act was
declared to be ultra vires and void by the judgment of the Kerala High Court
which is under appeal before 694 ,us. Now that the Act is being declared by us
as constitutionally valid, the State Government will have to make rules setting
out the precise programme of agraian reform which is intended to be carried
,out. Counsel for the forest owners has expressed an apprehension before us
that the State Government may keep the forests as they are for a long number of
years and namely go on augmenting the revenues of the state by cutting and
selling timber growing on them and thereby defeat the rationale of art. 31A
itself.
But there is no basis or justification for
this apprehension because we are of the view that the agrarian project would
have to be spelt out concretely by the, State Government within the prescribed
period of two years or at any rate within a reasonable time thereafter. If the
State Government merely goes on making money by cutting and selling the timber
grown on the forests without implementing the definite proposals of agrarian
reform contemplated in s. 10 within a reasonable period of time, it would be a
subversion of the statute and in such a case it would be competent to the
aggrieved parties to take legal action compelling the State to make good the
statutory promise and to act In terms of s. 10, and if the forests are diverted
for uses outside the scope of s.10 the court could restrain the State from such
illegitimate adventures.
While a straight case of mala fides vitiating
the legislation has not been set up, an article in the Malayam Dress by the
Chief Minister has been relied on to make out that agrarian reform was more a
cloak than the real intent The Chief Ministff's literary contribution cannot
necessarily bind the State, although his statement may help build a case of
colorable legislation. which has not been urged here. Moreover, the article
doe-, not advance the case of the petitioners for it envisages a real project
for rural regeneration and better production. It is good to remind ourselves
what colorable legislation means in constitutional law. Reference may be made
to the decision of this Court in Gajapathi Narayan De,) v. State of Orissa(1)
where this doctrine was discussed. Mukherjee, J., clarified the law thus :
"It may be made clear at the outset that
the dectrine of courable legislation does not involve any question of bona
fides or mala fides on the part of the legislature. The whole doctrine resolves
itself into the question of competency of a particular legislature to enact a
particular law. If the legislature is competent to pass a particular law, the
motives which impelled it to act are really irrelevant. On the other hand if
the legislature lacks competency. the question of motives does not arise at
all. Whether" a statute is constitutional or not is thus always a question
of power... The idea conveyed by the expression is that although apparently a
legislature in passing a statute purported to act within the (1) [1954] S. C.
R. 1, 10-11, 695 limits of its powers, yet in substance and in reality it
transgressed those powers, the transgression being veiled by what appears, on
proper examination, to be a mere pretence or disguise." The Forest Act
survives the attack on the score of colorable legislation.
Considered in this light it is not possible
to hold that S. 10 has no nexus with agrarian settlement. Of course, the
programme held out in the provision, if not implemented within a reasonable
time or otherwise peverted to nonagrarian purposes, may give rise to judicial
scepticism about the Government's bona fides and induce consequent remedial
action. As we see it, the Forest Act is calculated to bring benefit to landless
laborers, tribals and other proletarian groups in the over-populated state of
Kerala.
The fear that the executive win dawdle and
delay unreasonably or act obliquely to defeat the agrarian welfare content of
the measure may gain credibility when the scheme is not legislatively
time-bound. In the present case a twoyear period for reserving foresters and
distributing the rest is written into the statute itself. If the State, for
ulterior ends, prevaricates or betrays the scheme by nonimplementation or
mis-implementation an aggrieved party may seek relief through a judicial
post-audit. The Court is not altogether powerless in such a case, in the light
of the observations made by Sikri, C.J, in Kannan Devan's(1) case that:
"If the State were to use lands for
purposes which have no direct connection with the promotion of agriculture or
welfare of agricultural population the State could be restrained from using the
lands for those purposes. Any fanciful connection with these purposes would not
be enough." Moreover, the executive is not wholly unaccountable to the
nation merely because the law has been judicially cleared once.
A grievance has been made by the writ
petitioners that their extensive forest lands are being confiscated without a
paisa of compensation while the timber itself will be worth crores. In
Khajamian Wakf Estates v. State of Madras,(2), Hegde, J., was pressed with the
contention that art. 31A does not protect a legislation where no compensation
whatsoever has been provided when taking the estate. The Court, however, did
not decide the question. We, on our part, do not think there is any merit in
it. Once we find the legislative area is barricaded by art. 31A, it cannot be
breached by arts. 14, 19 and 31 and judicial break-in is constitutionally
interdicted. But, at the same time, we must hasten to point out that art. 31A is
no charter of legislative freedom to refuse compensation altogether in every
case. The Court may not strike down a statute for non-payment of compensation
but the legislature is expected, except in exceptional socio-historical
setting, to provide just payment for the deprived persons. To exclude judicial
review is not to black out the beneficent provisions of (1) [1972] 2 S.C. C.
218.
(2) [1971] 2 S. C. R. 890.
696 arts. 14, 19 and 31. May be the present
legislation dealing with extensive antiquated janmam rights relates to the
exceptional category. All that we can say is that this is an area where not the
court but the elector is the proper corrective instrument.
For these and other reasons already mentioned
in the leading judgment of our learned brother, Mr. Justice Palekar, we agree
that the appeals be allowed and the writ petitions be dismissed with no order
as to costs.
K.B.N. Appeals allowed. writ petitions
dismissed.
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