Full Judgment Text
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PETITIONER:
BALMADIES PLANTATIONS LTD. & ANR.
Vs.
RESPONDENT:
STATE OF TAMIL NADU
DATE OF JUDGMENT19/04/1972
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
SIKRI, S.M. (CJ)
SHELAT, J.M.
RAY, A.N.
DUA, I.D.
CITATION:
1972 AIR 2240 1973 SCR (1) 258
1972 SCC (2) 133
CITATOR INFO :
RF 1973 SC1461 (1201)
R 1973 SC2734 (17,33)
RF 1975 SC1193 (24)
E 1990 SC1771 (9)
ACT:
Constitution of India, 1950-Article 31A 2(a)(i) and (iii)-
Estate-Forests in Janmam Lands-Requirement of cl. (iii) also
need not be satisfied-Agrarian Reform-Acquisition of forests
in Janmam lands-Mere transfer of ownership or augmentation
of resources of the State not sufficient to show object of
agrarian reform.
Gudalur Janmam Estates (Abolition and Conversion into
Ryotwari) Act, 1969 (Act 24 of 1969)-Constitutionality-
Resettlement of 1926-If has the effect of conversion into
ryotwari lands.
HEADNOTE:
The appellants and the petitioners challenged the vires of
the Gudalur Janmam Estates (Abolition and Conversion into
Ryotwari) Act, 1969, on the ground that it was violative of
articles 14, 19, and 31 of the Constitution. Their case was
that their lands in the Gudalur Taluk, in the State of Tamil
Nadu, were previously Janmam estates, but, subsequently
became ryotwari estates, especially after the Resettlement
of 1926,and as such, the provisions of the Act were not
applicable to these lands; that so far as the forest areas
in the Janmam lands in question were concerned they did not
constitute "estate"; and that the acquisition of the lands
was not for implementing agrarian reforms and, therefore,
did not get the protection of article 31A.
HELD : that the provisions of s. 3 of the Act in so far as
they related to the transfer of forests ’in Janmam estates
to the government were not protected by article 31A, and,
being violative of the Constitution had to be struck down;
and that the vires of the Act in other respects had to be
upheld.
(i) The effect of the Resettlement of 1926 was to retain
the Janmam estates and not to abolish the same or to convert
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them into ryotwari estates. There was merely a change of
nomenclature. Government Janmam lands, were called the new
holdings while private Janmam lands were called the old
holdings. In respect of Janmabhogam (Janmi’s share)
relating to government Janmam lands, the order further
directed that the amount to be paid to the government should
include both the taram assessment and Janmabhogam. It is
difficult to infer from these that Janmam rights in the,
lands in question were extinguished and converted into
ryotwari estates. The use of the word Janmabhogam, on the
contrary, indicates that the rights of Jenmis were kept in
tact. [271B]
Kottarathil Kochuni and Others v. The State of Madras and
Others, [1960] 3 S.C.R. 887, Karimbil Kunhilkoman v. State
of Kerala, [1962] 1 Supp. S.C.R. 847 and Secretary of State
v. Ashtamurthi, I.L.R. 13 Madras 89, referred to.
The grant of a right of relinquishment to a Janmi would not
by itself convert janmam rights in the lands into ryotwari
estate. [272A-B]
259
(Khanna, J.)
Further, apart from the lands in question, there are no
janmam estates in the State of Tamil Nadu (Madras). To hold
that the Janmam rights in the lands ceased to exist after
the Resettlement of 1926 would have the effect of rendering
the words, in clause (2)(a)(i) of article 31A, wherein there
is a reference to Janmam rights in the State of Madras
meaningless and without any purpose. [272-D]
(ii)As Janmam lands fall under clause (2) (a) (i) of
article 31A it is not essential to show that the
requirements of clause (2)(a)(iii) too are satisfied for
such lands and it would make no difference whether forests
are a part of the Janmam lands. All lands which are part of
a Janmam estate of a Janmi in the State of Madras and Kerala
would constitute "estate" as mentioned in Clause (2) (a) (i)
of Article 31A. [273-E]
(iii)The object and general scheme of the Act is to
abolish intermediaries between the state and the cultivator
and to help the actual cultivator by giving him the status
of directs relationship between himself and the State. The
Act, as such, in its broad outlines,, should be held to be a
measure of agrarian reform and would consequently be
protected by article 31A of the Constitution. Therefore, it
is immune from attack on the ground of being violative of
articles 14, 19 or 31. [274-A]
Vajrayelu Madaliar v. Special Deputy Collector, Madras &
Anr. [1965] 1 S.C.R. 614, referred to.
(iv)But, the acquisition of forests in Janmam estates is
not in furtherance of the objective of agrarian reform, and,
as such, is not protected by Art. 31A. In the absence of
anything in the Act to show the purpose for which the
forests are to be used by the Government, it cannot be said
that the acquisition of the forests in Janmam land would be
for a purpose related to agrarian reform. The mere fact
that the ownership of forests would stand transferred, to
the State would not show that the object of the transfer is
to bring about agrarian reform. Augmenting the resources of
the State by itself, and in the absence of anything more re-
garding the purpose or utilisation of those resources cannot
be held to be a measure. of agrarian reform. There is no
material on the record to indicate that the transfer of
forests from the Janmi to the Government is linked in any
way with a scheme of agrarian reform or betterment of
village ceremony. [274-H]
State of Uttar Pradesh v. Raja Anand Brahma, [1967] 1 S.C.R.
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362, held inapplicable.
JUDGMENT:
ORIGINAL/CIVIL APPELLATE JURISDICTION: Writ Petition No. 373
of 1970.
Under Article 32 of the Constitution of India for
enforcement of the Fundamental Rights with Civil Appeals
Nos. 2211 and 2212 of 1970 and 85 to 91 of 1971.
Appeals from the judgment and decree dated October 26, 1970
of the Madras High Court in Writ Petitions Nos. 64, 117,
118, 119, 120, 121, 185, 186 and 220 of 1970 respectively.
M.C. Chagla and K. Jayaram, for the petitioners (in W.P.
No. 373 of 1970).
M.Natesan, Sardar Bahadur Saharya, K. Jayaram and Yougin-
dra Khushalani, for the appellant (in C.A. No. 2211 of
1970).
260
M.C. Setalvad and K. Jayaram, for the appellant (in C.A. No.
2212 of 1970).
K. Jayaram, for the appellants (in C.As. Nos. 85 to 91 of
1971).
S. Govind Swaminathan, Advocate-General for the State of
Tamil Nadu, S. Mohan, A. V. Rangam, A. Subhashini and N.
S. Sivan, for the respondent (in all the matters).
The Judgment of the Court was delivered by
Khanna, J. The Gudalur Janmam Estates Abolition and
Conversion into Ryotwari) Act, 1969 (Act No. 24 of 1969),
hereinafter referred to as the Act, received the assent of
the President on December 6, 1969, after it had been enacted
by the legislature of the State of Tamil Nadu. It was
thereafter published in the gazette on December 17, 1969.
The Act extends to the Gudalur taluk of the Nilgiris
district and applies to all janmam estates. It is to come
into force on such date as the State Government may, by
notification, appoint. This Court stayed the issue of the
notification and, as such, no notification has so far been
issued.
Nine petitions under article 226 of the Constitution of
India were filed in the Madras High Court challenging the
vires of the Act on the ground that it was violative of
articles 14, 19 and 31 of the Constitution. The case of the
petitioners was that their lands in the Gudalur taluk were
previously janmam estates but subsequently became ryotwari
estates, especially after the resettlement of 1926 and, as
such, the provisions of the Act were not applicable to those
lands. The Act, it was stated, did not get the protection
of article 31A of the Constitution. One of the above
petitions was filed by O’Valley Estate Ltd. This petitioner
had taken on lease an estate comprising about 2,000 acres of
land in the 19th century from the Nilambur Kovilakam who was
the proprietor of that land besides some other land. The
Company (O’Valley Estate Ltd.) has a plantation on the
estate and is engaged in cultivation and manufacturing of
tea and other plantation products. The Nilambur Kovilakam
was the petitioner in another petition.
The nine petitions were resisted by the State of Tamil Nadu
on the ground that the lands in question were janmam estates
and had retained that character till the passing of the Act.
The State of Tamil Nadu also invoked the protection of
article 31A of the Constitution. The nine petitions were
dismissed by the Madras High Court by a common judgment
given in the petition filed by O’Valley Estate Ltd. It was
held that the lands were janmam estates and had not lost
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that character. The Act was held to be
261
(Khanna, J.)
protected, by article 3 1 A of the Constitution. Civil
appeals Nos. 2211 and 2212 of 1970 and Nos. 85 to 91 of 1971
have been filed against the above judgment of the High
Court.
Writ petition No. 373 of 1970 has been filed under article
32 of the Constitution. by Balmadies Plantations Ltd. and
its share holder Dayanand Bansilal Saxena challenging the
vires of the Act or. the ground that it is violative of
articles 14, 19 and 31 of the Constitution and is not
protected by article 31A. According to the petitioner, the
janmam estates which are now intended to be abolished by the
Act had been converted into ryotwari estates. The purpose
of the Act, it is further stated, is not to bring about
agrarian reform. The petitioner company in this case had
taken on lease 170.78 hectares from the Nilambur Kovilakam,
the appellant in civil appeal No. 2211 of 1970, in the 19th
century. Out of the above area, 143.22 hectares is under
coffee plantation, while the rest of the land consists of
forests and waste land.
The writ petition has been resisted by the State of Tamil
Nadu and the affidavit of Shri A. S. Venkataraman,
Additional Secretary has been filed in opposition to the
petition. The respondent has controverted the different
grounds taken by the petitioner.
Gudalur taluk, it may be stated, comprises 12 villages. The
said taluk was originally part of Malabar district which now
forms part of Kerala State. O’Valley village was
transferred to the Nilgiris in 1873 and the other eleven
villages were transferred in 1877. Originally the janmis in
Malabar were absolute proprietors of the land and did not
pay land revenue. After Malabar was annexed by the British
in the beginning of the 19th century, the janmis conceded
the liability to pay land revenue. According to the case
set up by the petitioner-appellants, there was a gradual
orision of the rights of janmis in the lands in question and
the janmam estates became ryotwari estates after the
resettlement of 1926. As such, the Act, it is submitted,
does not apply to the lands in dispute. Before dealing with
this aspect of the matter, it would be pertinent to refer to
the different provisions of the Act. Section 2 of the Act
contains the various definitions. Relevant clauses of that
section read as under :
"S. 2. In this Act, unless the context
otherwise requires,-
(1) all expressions defined in the Malabar
Tenancy Act shall have the same,respective
meanings as in that Act with the
modifications, if any, made by this Act;
(2)"appointed day" means the date appointed by
the Government under subsection (4) of section
1;
(4) "forest" includes waste or arable land
containing trees, shrubs or reeds.
262
Explanation.-A forest shall not cease to be
such by reason only of the fact that, in a
portion thereof, trees, shrubs or reeds are
felled, or lands are cultivated, or rocks,
roads, tanks, rivers or the like exist;
(6) "jarmiam estate" means any parcel or
parcels of land included in the holding of
janmi;
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(7) "janmi" means a person entitled to the
absolute proprietorship of land and includes a
trustee in respect thereof;
(9) "plantation crop" means tea, coffee,
rubber, cinchona or cardamom;
(11) "tenant" means a verumpattamdar as
defined in sub-clause (a) of clause (29) of
section 3 of the Malabar Tenancy Act;"
Section 3 of the Act deals with the vesting of janmam
estates in Government, and reads as under :
"3. Vesting of janmam estates, etc., in Government.-With
effect on and from the appointed day and save as otherwise
expressly provided in this Act-
(a) the Malabar Tenancy Act, the, Malabar Land Registration
Act, 1895 (Tamil Nadu Act III of 1896), the Gudalur
Compensation for Tenants Improvements Act, 1931 (Tamil Nadu
Act XIII of 1931) and all other enactments applicable to
janmam estates as such, shall be deemed to have been
repealed in their application to janmam estates;
(b) every janmam estate including all communal lands and
porambokes, waste lands, pasture lands, forests, mines and
minerals, quarries, rivers and streams, tanks and irrigation
works, fisheries, and ferries situated within the boundaries
thereof shall stand transferred to the Government and vest
in them free of all incumbrances, and the Tamil Nadu Revenue
Recovery Act, 1864 (Tamil Nadu Act 11 of 1864), the Tamil
Nadu Irrigation Cess Act, 1865 (Tamil Nadu Act VII of 1865),
the Tamil Nadu Cultivating Tenants Protection Act, 1955
(Tamil Nadu Act XXV of 1955), the Tamil Nadu Cultivating
Tenants (Payment of Fair Rent) Act, 1956 (Tamil Nadu Act
XXIV of 1956) and, all other enactments applicable to
ryotwari lands shall apply to the janmam estate;
263
(Khanna, J.)
(c) all rights and interests created by the
janmi in or over his jamnam estate before the
appointed day shall as against the Government
cease and determine;
(d) the Government may, after removing any
obstruction that may be offered, forthwith
take possession of the janmam estate and all
accounts, registers, pattas, muchilikas, maps,
plans and other documents relating to the
janmam estate which the Government may require
for the administration thereof;
Provided that the Government shall not
dispossess any person of any land in the
janmam estate in respect of which they
consider that he is prima facie entitled to a
ryotwari patta pending the decision of the
appropriate authority under this Act as to
whether such person is entitled to such patta;
(e) the janmi and any other person whose
rights stand transferred under clause (b) or
cease and determine under clause (c) shall be
entitled only to such rights and privileges as
are recognised or conferred on him by or under
this Act;
(f) the relationship of janmi and tenant,
shall as between them, be extinguished;
and
(g) any rights and privileges which may have
accrued in the janmam estate to any person
before the appointed day against the janmi
shall cease and determine and shall not be
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enforceable against the Government or against
the janmi and every such person shall be
entitled only to such rights and privileges as
are recognised or conferred on him by or under
this Act."
According to section 8, the janmi shall with effect on and
from the appointed day be entitled to a ryotwari patta in
respect of all lands proved to have been cultivated by the
janmi himself, or by the members of his tarwad, tavazhi,
illom or family or by his own servants or by hired labour
with his own or hired stock in the ordinary course of
husbandry for a continuous period of three agricultural
years immediately before the 1st day of June 1969.
Explanation I to that section defines the word "cultivate"
to include the planting and rearing of topes, gardens,
orchards and plantation crops. According to Explanation 11,
where any land is cultivated with plantation crops, any land
occupied by any building for the purpose of or ancillary to
the cultivation of such crops or the preparation of the same
for the market and any waste land lying interspersed among
or contiguous to the planted area
264
upto a maximum of twenty-five per centum of the planted area
shall be constituted to be land cultivated by the janmi.
Section 9 deals with lands in’ respect of which a
’tenant is entitled to ryotwari patta. According to the
section, every tenant shall, with effect on and from the
appointed day, be entitled to a ryotwari patta in respect of
the lands in his occupation. The right of the tenant to the
ryotwari patta is subject to the conditions regarding
cultivation mentioned in the Provisos to that section.
Section 10 provides that where no person is entitled to a
ryotwari patta in respect of a land in a janmam estate under
section 8 or section 9 and the land vests in the Government,
a person who had been’ personally cultivating such land for
a continuous period of three agricultural years immediately
before the 1st day of June 1969, shall be entitled to a
ryotwari patta in respect of that land. This right too is
subject to conditions mentioned in that section. According
to section 11, no ryotwari patta shall be granted with
respect. to the following categories situated within the
limits of a janmam estate
(a) forests;
(b) beds and bunds of tanks and of supply,
drainage, surplus or irrigation, channels;
(c) threshing floor, cattle stands, village
sites, carttracks, roads, temple sites and
such other lands situated in any janmam
estate, as are set apart for the common use of
the villagers;
(d) rivers, streams and other porambokes.
Section 12 empowers the Settlement Officer to inquire into
the claims of any person for a ryotwari patta under the Act
in respect of any land in a janmam estate and decide in
respect of which land the claim should be allowed. A right
of appeal against the decision of the Settlement Officer to
the ’Tribunal appointed under the Act is given by sub-
Section (3) of section 12. The Tribunal, according to
section 7, shall consist of one Person only who shall be a
Judicial Officer not below the rank of Subordinate Judge.
Section 13 fastens liability to Pay land revenue to
Government on the person Who becomes entitled to a ryotwari
patta under the Act. As regards a building, section 14
Provides that with effect on and from the appointed day, the
same shall vest in the person who Owned it immediately
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before that day, subject to the conditions mentioned in that
section. Section 15 deals with rights of sons admitted into
possession of any land in a janmam estate by any janmi for a
non-Agricultural purpose while section 16 makes provision
for directions to be issued by the Government in respect of
a person admitted by a janmi into possession of any land of
the
2 65
(Khanna, J.)
description specified in section II. Section 17 relates to
the rights of lessees of plantations and reads as under :
"S. 17. Rights of lessees of plantations.-
(1)(a) Where, at any time before the appointed
day the janmi has created by way of lease,
rights in any lands for purposes of
cultivation of plantation crops, the Govern-
ment may, if in their opinion, it is in the
public interest to do so, by notice given to
the person concerned terminate the right with
effect from such date as may be specified in
the notice, not being earlier than three
months from the date thereof.
(b) The person whose right has been so
terminated shall be entitled to compensation
from the Government which shall be determined
by the Board of Revenue in such manner as may
be prescribed, having regard to the value of
the right and the period for which the right
was created.
(c) Where any such right is not determined
under this sub-section, the transaction
whereby such right was created shall be deemed
to, be valid and all rights and obligations
arising thereunder, on or after the appointed
day, shall be enforceable by or against the
Government
Provided that the transaction was not void or
illegal under any law in force at the time.
(2) The Government may, if in their opinion,
it is in the public interest to do so, impose
reasonable restrictions on the exercise of any
right continued, under this section.
Explanation.-Any rights granted in perpetuity
shall cease and determine and be dealt with
under section (3) (e) and not under this
section."
Section 18 deals with the rights of certain other lessees.
Chapter TV of the Act, which contains sections 19 and 20,
deals with survey and settlement of janmam estates. Chapter
V, which contains sections 21 to 30, makes provision for
determination and payment of compensation. As regards the
Nilambur Kovilagam, one of the appellants before us, the
explanation to section 22 reads as under
"Explanation.-For the purposes of this
section, the janmam estate owned by the
Nilambur Kovilagam which is partly divided and
partly held in common by the several tavazhis
shall be construed as a single janmam estate."
8-1208SupCI/72
266
Amount of compensation is the subject of section 28, while
section 29 relates to the determination of basic annual sum
and compensation. The subject deal with by chapter VI,
containing sections 31 to 46, is "Deposit and Apportionment
of Compensation. Sections 47 to 50 contained in chapter VII
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make provision for recovery of contribution from pattadars.
Chapter VIII contains the miscellaneous provisions. Section
58 makes final the orders passed by the various authorities
under the Act, while section 60 confers powers on the
Government to, make rules for carrying out the purposes of
the Act. The rules are required to be published in the
gazette and to be placed on the table, of both Houses of
Legislature, so that the Houses may, if they so deem proper,
make modification in any such rule.
We may at this stage advert to janmam estate. According to
Land Tenures in the Madras Presidency by S. Sundararaja
Iyengar, Second Edition (p. 49), the exclusive right to, and
hereditary possession of the soil in Malabar is denoted by
the term jenmam which means birthright and the holder
thereof is known as jenmi, jenmakaran or mutalalan. Until
the conquest of Malabar by the Mahomedan princes of Mysore,
the jenmis appear to have held their lands free from any
liability to make any payment, either in money or in
produce, to government and therefore until that period, such
an absolute property was vested in them as was not found in
any other part of the Presidency. Sir Charles Turner after
noticing the various forms of transactions prevalent in
Malabar stated that they pointed to an ownership of the soil
as complete as was enjoyed by a freeholder in England.
Subba Rao J. (as he then was), speaking for the Court, in
the case of Kavalappara Kottarathil Kochuni and Others v.
The State of Madras and Others(1) observed :
"A janmam right is the freehold interest in a
property situated in Kerala. Moor in his
"Malabar Law and Custom" describes it as a
hereditary proprietorship. A janmam interest
may, therefore, be described as "proprietary
interest of a landlord in lands", And such a
janmam right is described as "estate" in the
Constitution."
It was held that the proprietor called janmi could create
many subordinate interests or tenures like lease or mortgage
in a janmam estate. It is not, however, necessary to dilate
upon the matter as janmam estate has been defined in clause
(6) of section 2 of the Act to mean any parcel or parcels of
land included in the holding of a janmi. Janmi, according
to clause (7) of the said section, means a person entitled
to the absolute proprietorship of land and includes a
trustee in respect thereof.
(1) [1960] 3 S.C.R. 887.
267
(Khanna, J.)
Ryotwari or kulwar system was first introduced into the
British possessions by Col. Read in 1792. When the
Baramahal and Saleem were ceded to the British by Tippu,
Lord Cornwall is specially deputed Col. Read for their
settlement. The prevailing system of land revenue
settlement at the time was the permanent settlement. Col.
Read, however, deemed it prudent to enter into temporary
settlements with the actual cultivators and this gave rise
to a new system since designated ryotwari or kulwar system.
The system introduced by Col. Read embraced the survey of
every holding in the district and a field assessment based
on the productive powers of the soil. The ryot was not
regarded as the proprietor of the soil but only as a
cultivating tenant from whom was to be exacted by government
all that the he could afford. Certain objectionable
features of the ryotwari system were then noticed, and an
effort was made to eliminate those objectionable features.
The ryotwari system in force at present means the division
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of all arable land, whether cultivated or waste, into
blocks, the assessment of each block at a fixed rate for a
term of years and the exaction of revenue from each occupant
according to the area of land thus assessed. That area may
remain either constant or may be varied from year to year at
the occupant’s pleasure by the relinquishment of old blocks
or the occupation of new ones. This distinguishing feature
of this system is that the state is brought into direct
contact with the occupant of land and collects its revenue
through its own servants without the intervention of an
intermediate agent such as the Zemindar. All the income
derived from extended cultivation goes to the state.
Ryotwari lands are known as taraf lands in the Tanjore
District, and as ayan, sirkar. koru, or government lands in
the other parts of the Presidency (see pages 152 and 153 of
Land Tenure in the Madras Presidency, Second Edition, by
Sundararaja Iyengar).
According to Land System of British India by Baden-Powell,
the holders of ryotwari pattas used to hold lands on lease
from Government. The basic idea of ryotwari settlement is
that every bit of land is assessed to a certain revenue and
assigned a survev number for a period of years, which is
usually thirty, and each occupant of such land holds it
subject to his paying the land-revenue fixed on that land.
But it is open to the occupant to relinquish his land or to
take new land which has been relinquished by some other
occupant or become otherwise available on payment of
assessment. The above observations were referred to by this
Court in the case of Karimbil Kunhikoman v. State of
Kerala(1) and it was said :
"The ryot is generally called a tenant of
Government but he is not a tenant from year to
year and cannot be ---,ousted as long as he
pays the land-revenue assessed. He
(1) [1962] 1 Supp. S.C.R. 847.
268
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has also the right to sell or mortgage or gift the land or
lease it and the transferee becomes liable in his place for
the revenue. Further, the lessee of a ryotwari pattadar has
no rights except those conferred under the lease and is
generally a sub-tenant at-will liable to ejectment at the
end of each year. In the Manual of Administration as quoted
by Baden-Powell, in Vol. III of Land Systems of British
India at p. 129, the ryotwari tenure is summarised as that
"of a tenant of the State enjoying a tenant-right which can
be inherited, sold, or burdened for debt in precisely the
same manner as a proprietary right subject always to the
payment of the revenue due to the State". Though therefore
the ryotwari pattadar is virtually like a proprietor and has
many of the advantages of such a proprietor, he could still
relinquish or abandon his, land in favour of the government.
It is because of this position that the ryotwari pattadar
was never considered a proprietor of the land under his
patta, though he had many of the advantages of a pro-
prietor."
This Court held in the above case that the land held by
ryotwari pattadars in the area which came to the State of
Kerala by virtue of the States Reorganization Act from the
State of Madras were not ’estates’ within the meaning of
article 3 1 A (2) of the Constitution. Subsequent to that
decision, clause (2) of article 31A was amended by the
Constitution (Seventeenth Amendment) Act, 1964. As a result
of that amendment, ’estate’ would also include any land held
under ryotwari settlement.
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Let us now go into the question as to whether the janmam
rights in the lands in question have been converted into
ryotwari estate. We are concerned in the present case with
the settlement of 1886 and resettlement of 1926. In
connection with the settlement of 1886, G.O. 741 Revenue
dated August 27, 1886 was issued and its main purpose was to
settle the lands which had been escheated to the Government
and to collect revenue for the State An attempt was then
made to have direct dealing with the cultivators without
notice to the janmi. This act of the State was held to be
against law by a Division Bench of the Madras High Court in
the case of Secretary of State v. Ashtamurthi(1). In that
case the Collector of Malabar let defendant No. 2 into
possession of certain waste land in 1869 under a cowle, and
in 1872 granted to him a patta for it. The cowledar then
brought the land under cultivation but subsequently left it
uncultivated and failed to pay the assessed revenue. The
land was consequently attached in 1885 for arrears of
revenue under the Revenue Recovery Act and sold to defendant
No. 3. The plaintiff. who was the janmi of the
(1) I.L.R. 13 Madras 89.
269
(Khanna, J.)
land, had no notice of the grant of either the cowle or the
patta. He asserted his right to janmabhogam in a petition
presented to the Collector at the time of the sale, but the
sale proceeded without reference to his claim. Suit was
thereafter brought by the plaintiff to set aside the sale.
It was held that the interest of the janmi did not pass by
the sale. Parker, J. in the above context observed :
"The evidence shows that the janmis or the
proprietors of the soil in Malabar have long
been in the habit of leasing out the greater
portion of their estates to kanomdars who are
thus in the immediate occupancy of the greater
part of the soil. This was the state of
things at the time of Hyder’s conquest
(exhibit XIV), and the British Government is
stated to have continued the practice of the
Mysore Government in settling the assessment
with these kanomdars. At the annexation of
Malabar in 1799 the Government disclaimed any
desire to act as the proprietor of the soil,
and directed that rent should be collected
from the immediate cultivators, Trimbak Ranu
v. Naina Bhavani(1) and Secretary of State v.
Vira Rayan (2) thus limiting its claim to
revenue. Further, in their despatch of 17th
December 1813 relating to the settlement of
Malabar the Directors observed that in Malabar
they had no property in the land to confer,
with the exception of some forfeited estates.
This may be regarded as an absolute disclaimer
by the Government of the day of any
proprietary right in the janmis’ estate, and
is hardly consistent with the right of letting
in a tenant which is certainly an exercise of
proprietary right."
On account of the above decision, the Madras Government
reconsidered the matter and in 1896 the Malabar Land
Registration Act (Act 3 of 1896) was enacted. The object of
that Act would be clear from its preamble which reads :
"WHEREAS Regulation XXVI of 1802 provides that
landed property paying revenue to Government
shall he registered by the Collector; and
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whereas such landed property in certain areas
in the Nilgiri district has in many cases not
been registered in the names of the
proprietors thereof; and whereas it is
desirable for the security of the public
revenue to provide a summary means whereby the
Collector may ascertain such proprietors; It
is hereby enacted as follows."
According to section 13 of the above Act, every person
registered ,is proprietor of an estate shall be deemed to be
the landholder in
(1) 12 Bom. H.C.R. 144
(2) I.L.R. 9 Mad. 175.
270
respect of such estate within the meaning and for the
purposes of the Madras Revenue Recovery Act II of 1864. The
janmam rights in the lands in dispute thus remained intact.
The stand taken on behalf of the petitioner-appellant, as
mentioned earlier, is that the janmam rights in the lands in
dispute were converted into ryotwari estate as a result of
resettlement of 1926. Government order No. 1902 Revenue
dated November 1, 1926 was issued in this connection. Para
3 of that order deals with the janmam estates and reads as
under :
"3. JANMABHOGAM:-Paragraph 11 of the Board’s
Proceedings-Lands have hitherto been described
as-
(a) Government Janmam, i.e. lands which are
held directly from the Government and on which
taram assessment and janmabhogam are Paid to
the Government and
(b) private janmam, i.e. lands which are
held directly from the Government and on which
taram assessment but not janmabhogam is paid
to the Government.
These two classes of land will hereafter be
referred to as ’New Holdings’ and ’Old
Holdings’.
The Special Settlement Officer proposed-
(1) to raise the existing rate of
janmabhogam of 8 annas an acre on all so-
called Government janmam land in estates to
Re. 1 an acre for highly developed estate
crops;
(2) to retain the existing rate on lands
cultivated with non-estate crops; and
(3) to reduce it to 4 annas an acre on
undeveloped lands.
The Board supported the proposals (1) and (3)
but recommended an increase to Re. 1 in
the case of proposal (2). The Government have
decided to apply the 18-3/4 per cent limit
imposed in G.O. No. 924, Revenue, dated 18th
June, 1924, to janmabhogam. After careful
consideration the Government have decided to
accept the Board’s proposal to amalgamate the
two items of land revenue, i.e., taram
assessment and so called ’Janinabhogam’ which
are being collected on all so called
Government janmam lands, i.e., on new
holdings, and in future to collect assessment
on these lands at a
271
(Khanna, J.)
consolidated rate based upon the total of the
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rates at which these two items of the land
revenue are now being levied. In all the
figures quoted in the Appendix to this order
concerning these lands the revised rate given
is this consolidated rate."
It would appear from the above that the effect of the
resettlement of 1926 was to retain the janmam estates and
not to abolish the same or to convert them into ryotwari
estates. There was merely a change of nomenclature.
Government janmam lands were called the new holdings, while
private janmam lands were called the old holdings. In
respect of janmabhogam (Janmi’s share) relating to
Government janmam lands, the order further directed that the
amount to be paid to the Government should include both the
taram assessment and janmabhogam. It is difficult, in our
opinion, to infer from the above that janmam rights in the
lands in question were extinguished and converted into
ryotwari estates. The use of the word ’janmabhogam’ on the
contrary indicates that the rights of janmis were kept
intact.
It has been argued on behalf of the petitioner-appellants
that the grant of a right of relinquishment to janmis had
the effect of obliterating the distinction between janmam
estate and ryotwari estate. The janmam rights, according to
the submission, were thus converted into ryotwari estate.
In this connection we find that the Government order No.
1902 dated November 1, 1926 shows that question was raised
as to, whether a janmi of private janmam land could claim
exemption from assessment by leaving cultivable lands waste.
The Board of Revenue recommended that exemption should not
be granted unless the janmi pattadar relinquished his whole
right, title and interest. The Government, however,
considered that having regard to the practice of exempting
unoccupied janmam lands from assessment the janmi should not
be required to pay assessment on lands the cultivation of
which was to cease. In 1896 a system was introduced,
according to which a janmi could give notice of
relinquishment without giving up his janmam rights over the
land and claim remission of assessment on the relinquished
land if it was not taken up for cultivation in the following
year. ’.he Board of Revenue in proceedings dated October
16, 1897 pointed out that this was in effect a reversion to
the old system of charging all cultivation with all its
attendant evils of corruption, loss of revenue and
unnecessary labour in inspection. The matter was thereafter
further considered and the Board in its proceedings dated
June 13, 1916 expressed the opinion that the existing rule
relating to relinquishment of private lands was anomalous
and proposed that no relinquishment of such lands should be
permitted unless the janmi surrendered also his janmam right
and that until he relinquished such right, he should be res-
ponsible to the Government for the payment of the assessment
due
272
on such lands. This proposal was accepted by the Government
in 1917 and reiterated in 1919. It would thus appear that
the relinquishment permissible in the case of janmi was of a
somewhat peculiar nature inasmuch as there could be no
relinquishment of janmam lands unless the janmi surrendered
also his janam rights. The above right of relinquishment,
in our opinion, did not have the effect of converting the
janmam rights in-the lands in dispute into ryotwari estate.
It is not disputed that apart from the lands in question,
there are no other janmam estates in the State of Tamil Nadu
(Madras). If the janmam estates in question had been
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converted into ryotwari estates as a result of the
resettlement of 1926, there would have arisen no necessity
to mention the janmam right in the State of Madras in clause
(2) (a) (i) of article 3 1 A of the Constitution. The fact
that in addition to the janmam right in the State of Kerala,
the janmam right in the State of Madras was also mentioned
in clause (2) (a) (i) of article 31 A as a result of amend-
ment, shows that the janmam rights in the lands in question
were assumed by the legislature to be in existence. To hold
that the janmam rights in the lands in question ceased to
exist after the resettlement of 1926 would have the effect
of rendering the, words, wherein there is a reference to
janmam right in the State of Madras in clause (2) (a) (i) of
article 3 1 A, to be meaningless and without any purpose.
Reference has been made, on behalf of the petitioner-
appellants to the Full Bench case of Sukapuram Sabhayogam v.
State of Kerala(1) wherein it was held that a person would
cease to be Proprietor of a soil if he gets a right or is
under an obligation to relinquish or abandon the land. The,
above case related to the plains of Malabar, while we are
concerned with the hilly tracts of Gudalur taluk. In the
cited case pattas and Adangal registers were Produced in the
court and the State accepted the authenticity of those
documents. In the cases before us, no patta was produced by
the petitioner-appellants either in the High Court or in
this Court. In view of the above, we are of the opinion
that the facts of the Full Bench case are distinguishable.
In any case, we are unable to subscribe to the proposition
that the right of relinquishment of janmam rights of a janmi
would by itself convert janmam rights into ryotwari estate.
Argument has also been advanced on behalf of the petitioner
appellants that so far as the forest areas in the janmam
lands in question are concerned, they do not constitute
estate unless they are held or let for purposes of
agriculture or for purposes ancillary thereto, as
contemplated by clause (2) (a) (iii) of article 31 A of the
Constitution. This contention, in our opinion, is devoid of
1963 Kerala 101.
(1) A.I.R 1663 Kerala 101
273
(Khanna, J.)
force. Sub-clause (a) of clause, (2) of article 31A reads-
as under
"(2) In this article,-
(a) the expression "estate" shall, in
relation to any local area, have the same
meaning as that expression or its equivalent
has in the existing law relating to land
tenures in force in that area and shall also
include-
(i) any jagir, inam or muafi or other
similar grant and in the States of Madras and
Kerala, any janmam 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, land for
pasture or sites of buildings and other
structures occupied by cultivators of land,
agricultural labourers and village
artisans;"
Janmam lands are covered by clause (2) (a) (i) of article 31
A. Forest area, which is part of such janmam land would like
the remaining janmam lands, constitute an estate, and it
would not be necessary in such a case to show that the
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forest land is held or let for purposes of agriculture or
for purposes ancillary thereto. All lands which are part of
a janmam estate of a janmi in the States of Madras and
Kerala would constitute estate as mentioned in clause (2)
(a) (i) of article 31A of the Constitution. As janmam lands
fall under clause (2) (a) (i), it is not essential to show
that the requirements of clause (2) (a) (iii) too are
satisfied for such lands and it would make no difference
whether forests are a part of the janmam lands.
The next question which arises for consideration is whether
the acquisition of the lands in question is for agrarian
reform. It is well established that in order to invoke the
protection of article 3 1 A, it has to be shown that the
acquisition of the estate was with a view to implement
agrarian reform. The said article is confined only to
agrarian reform and its provisions would apply only to a law
made for the acquisition by the, State of any rights therein
or for extinguishment or modification of such rights if such
acquisition, extinguishment or modification is connected
with agrarian reform [see P. Vajravelu Mudaliar v. Special
Deputy Collector,, Madras & Anr.(1)].
(1) [1965] 1 S.C.R. 614 at p. 622.
274
We have referred in the earlier part of this judgment to the
various provisions of the Act, and it is manifest from their
perusal that the object and general scheme of the Act is to
abolish intermediaries between the State and the cultivator
and to help the actual cultivator by giving him the status
of direct relationship between himself and the State. The
Act, as such, in its broad outlines should be held to be a
measure of agrarian reform and would consequently be
protected by article 31A of the Constitution. The said
article provides that notwithstanding anything contained in
article 13, no law providing for the acquisition by the
State of any estate or of any rights therein or the
extinguishment or modification of any such right shall be
deemed to be void on the ground that it is inconsistent
with, or takes away or abridges any of the rights conferred
by article 14, article 19 or article 31, provided that where
such law is a law made by the Legislature of a State, the
provisions of article 31A shall not apply thereto, unless
such law, having been reserved for the consideration of the
President, has received his assent. The impugned Act, as
stated earlier, received the assent of this President on
December 6, 1969. As the Act is protected by article 31A of
the Constitution, it is immune from attack on the ground of
being violative of article 14, article 19 or article 31.
This fact would not, however, stand in the way of the court
examining the constitutional validity of any particular
provision of the Act
It has been submitted on behalf of the appellants that
whatever might be the position in respect of other janmam
lands, so far as forests in janmam estates are concerned,
the acquisition of those forests is not in furtherance of
the objective of agrarian reform, and as such, is not
protected by article 31A. This submission, in our opinion,
is well founded. According to section 1 1 of the Act, no
ryotwari patta would be issued in respect of forests in
janmam estates after those estates stand transferred to the
Government. There is nothing in the Act to indicate as to
what would be purPose for which the said forests would be
used after the transfer of janman land containing forests to
the Government. All that section 16 states is that, except
where the Government otherwise directs, no person admitted
by a janmi into possession of any such forest shall be
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entitled to any rights in or remain in possession of such
land. Sub-section (2) of that section specifies the
directions which the Government may issue while allowing
any person to remain in possession of any such land. In
the absence of anything in the Act to show the purpose for
which the forests are to be used by the Government, it
cannot be said that the acquisition of the forests in janmam
land would be for a purpose related to agrarian reform. The
mere fact that the ownership of forests would stand
transferred to the State would not show that the object of
the transfer is to bring about agrarian reform. Augmenting
the
275
(Khanna,j.)
resources of the State by itself and in the absence of
anything more regarding the purpose of utilisation of those
resources, cannot be held to be a measure of agrarian
reform. There is no material on the record to indicate that
the transfer of forests from the janmi to the Government is
linked in any way with a scheme of agrarian reform or
betterment of village economy.
Learned Advocate General has referred to the case of State
of Uttar Pradesh v. Raja Anand Brahma Shah(1). In that case
all the estates in a Pargana, including the forests, were
acquired by the State of Uttar Pradesh under the U.P.
Zamindari Abolition and Land Reforms Act. Objection was
taken to the acquisition of forests on the ground that it
was not for the purpose of agrarian reform. Repelling the
objection, this Court observed :
"Mr. A. K. Sen further urges that the
acquisition of the estate was not for the
purposes of agrarian reforms because hundreds
of square miles of forest are sought to be
acquired. But as we, have held that the area
in dispute is a grant in the nature of Jagir
or inam, its acquisition like the acquisition
of all Jagirs, inams, or similar grants, was a
necessary step in the implementation of the
agrarian reforms and was clearly contemplated
in article 31A."
It would appear from the above that the Court in that case
was dealing with the acquisition of an estate which was in
the nature of a Jagir, inam or similar grant, and it was
found that the said acquisition was a necessary ’Step in the
implementation of agrarian reform. We are, in the cases
before us, not concerned with Jagir, inam or other grant,
and so far as the forests in question are concerned, it has
already been observed that the acquisition is not in any way
related to agrarian reform. As such, the respondent State,
in our view, cannot get much assistance from the cited case.
We, therefore, hold that the acquisition of the forests on
the janmam land is not protected by article 31A. It has not
been shown to us that if the protection of article 3 1 A is
taken off, the acquisition of forests can otherwise be
justified. We, therefore, are of the view that the
provisions of section 3 of the Act in so far as they relate
to the transfer of forests in the janmam estates in question
are violative of the Constitution. As such, we strike down
those provisions to that extent. Invalidity of the
provisions relating to the transfer of forests would not,
however, affect the validity of the other provisions of the
Act as the two are distinct and severable.
(1) [1967] 1 S.C. R. 3 62.
276
The last submission which has been made on behalf of the
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petitioner-appellants relates to section 17 of the Act
regarding the rights of plantation lessees. It is stated
that it would be open to the Government under the above
provision to terminate by notice the right of the lessees.
Such a termination of the lessee rights under the above
provision, according to the submission made on ,behalf of
the petitioner-appellants, would be violative of their
rights under articles 14, 19 and 31 of the Constitution. It
is, in our opinion not necessary to deal with this aspect of
the matter. It is admitted that no notice about the
termination of the lessee rights has been issued under
section 17 of the Act to any of the petitioner-appellants.
Indeed, the question of issuing such a notice can only arise
after the Act comes into force. Even after the Act comes
into force, the Government would have to apply its mind to
the question as to whether in its opinion it is in public
interest to terminate the rights of the plantation lessees.
Till such time as such a notice is given, the matter is
purely of an academic nature. In case the Government
decides not to terminate the lease of the plantation
lessees, any discussion in the matter would be an exercise
in futility. If, on the contrary, action is taken by the
Government under section 17 in respect of any lease of land
for purposes of the cultivation of plantation crop, the
aggrieved party can approach the court for appropriate
relief.
As a result of the above, we uphold the vires of the Act,
except in one respect. The provisions of section 3 in so
far as they relate to the transfer of forests in janmam
estates to the Government are not protected by article 31A
and being violative ,of the Constitution are struck down.
The appeals and writ petition are disposed of accordingly.
The parties, in the circumstances, are left to bear their
own costs throughout.
K.B.N. Appeals and petition allowed in part
277