Full Judgment Text
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PETITIONER:
SRI BAGAWATI TEA ESTATES LTD. & ANR ETC.
Vs.
RESPONDENT:
GOVERNMENT OF INDIA & ORS.
DATE OF JUDGMENT03/02/1995
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
SEN, S.C. (J)
CITATION:
1996 AIR 209 1995 SCC (2) 452
JT 1995 (2) 274 1995 SCALE (1)429
ACT:
HEADNOTE:
JUDGMENT:
1. The Kerala Private Forests (Vesting and Assignment)
Act, (Act 26 of 197 1 ) was enacted by the Kerala
Legislature to acquire forest lands held on janmam right as
a measure of agrarian reform. The Act did not provide for
any compensation being paid to the owners of these private
forests. The forest lands so vesting in government were
intended to be assigned to landless agriculturists and
agricultural labourers for cultivation. Sub-section (1) of
Section 10 says that the government shall first reserve such
extent of the private forests vesting in the government un-
der the Act as may be necessary for purposes directed
towards the promotion of agriculture or the welfare of the
agricultural population or for purposes ancillary thereto.
Balance extent of the vested private forests were to be
assigned on registry or lease to agriculturists,
agricultural labourers, members of Scheduled Castes and
Scheduled Tribes who are willing to take up agriculture as
means of their livelihood and other categories of persons
mentioned therein. Section 11 expected that such assignment
"shall, as far as may, be completed within two years from
the date of publication of this Act in the Gazette"
2. Soon after the Act was made, which had the effect of
vesting the ownership and possession of private forests
in the government, the affected owners filed writ petitions
in the Kerala High Court challenging the constitutional
validity of the enactment. A Full Bench of the Kerala High
Court struck down the Act holding it to be outside the
protective umbrella of Article 3 1 A of the Constitution,
which decision is reported in A.I.R. 1973 Kerala 63. He
State of Kerala questioned the said judgment in this court
which, by its judgment and order dated September 18, 1973,
allowed the appeals, set aside the judgment of the Kerala
High Court and upheld the validity of the enactment. The
decision of this court is reported in State of Kerala and
Another v. Gwalior Rayons Silk Manufacturing Company (1974
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(1) S.C.R.671). The main judgment of the Constitution Bench
was delivered by Palekar,J., while V.R.Krishna Iyer,j. de-
livered a separate concurring judgment.
3. After the judgment of this court, the Government of
Kerala constituted a committee comprising certain high
officials to study the forest areas and to formulate
guidelines for the assignment of the vested forests. After
receiving the report of the said committee, the government
says, it started the process of assignment. It is
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stated in the counter-affidavit that out of a total area of
2,26,975 hectares vesting in the government under the Act,
4000 hectares has been given to tribals, cooperatives and
agricultural reforms and an additional area of 6,878
hectares has been handed over to the revenue department for
being distributed. An extent of 8000 hectares is said to be
under the possession of encroachers.
4. While so, the Parliament enacted the Forest
(Conservation) Act, 1980 by virtue of Entry 17A of List-III
of the Seventh Schedule to the Constitution. It may be
recalled that the subject-matter of forests was originally
in List-II but by virtue of the 42nd (Amendment) Act to the
Constitution, it was deleted from List-II and inserted in
List-III. Section 2 of the Forest (Conservation) Act
provides that "(N)otwithstanding anything contained in any
other law for the time being in force in a State, no State
Government or other authority shall make, except with the
prior approval of the Central Government, any order
directing (i) that any reserved forest (within the meaning
of the expression "reserved forest’ in any law for the time
being in force in that State) or any portion thereof, shall
cease to be reserved; (ii) that any forest land or any
portion thereof may be used for any non-forest purpose".
The explanation to Section 2 says that for the purpose of
Section 2 ’non -forest purposes’ means breaking up or
clearing of any forest land or portion thereof for any
purpose other than reafforestation. The enactment of the
Conservation Act certainly placed an hurdle in the way of
the implementation of the objectives of the Kerala Act
inasmuch as one of the main objectives was assignment of
said forest land for cultivation and cultivation meant
clearance’ of forest growth - and no such clearance was
possible without the prior approval of the Central
Government. No doubt, the forest land could probably be
assigned as such, i.e., with the forest growth but this was
not done. In the year 1988, the Parliament amended the
Forest (Conservation) Act prohibiting the leasing of forest
land or any portion thereof to any private person or to any
authority, corporation, agency or any other Organisation not
owned, managed or controlled by the government. The
explanation to Section 2 was also substituted which says
inter alia that ’non-forest purpose’ means any purpose other
than reafforestation. Be that as it may,, the fact remains
that the private forests acquired under the Kerala Act could
not be reserved or assigned so far, as contemplated by Sec-
tion IO of the Act, except assignment of a small portion
mentioned above.
5. Having failed to challenge successfully the validity of
the Act, some of the affected owners applied for exemption
of certain portions of the private forests under Section 3.
Their applications were rejected against which they filed
appeals which too were dismissed. Some of them approached
this court by way of Special Leave Petitions which were
dismissed. It is then that some of them have come. forward
with these writ petitions.
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6. The relief sought for by the petitioners in these writ
petitions is for a declaration that the Kerala Act is
unconstitutional and for a direction restraining the State
of Kerala and its officers from enforcing the provisions of
the said Act with respect to the private forests owned by
them prior to their vesting in the government. It is also
prayed that the possession of the private forests be
restored to the
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erstwhile owners. The main ground urged in support of these
writ petitions is this: the Act is a measure of agrarian
reform; because it was supposed to be a measure of agrarian
reform, it was held protected by Article 3 1 A of the
Constitution though it provided no compensation whatsoever
to the deprived owners. The Act contemplates distribution
of the forest lands so acquired to specified categories of
persons for the purposes of cultivation. Though a period of
more than twenty years has elapsed since the said Act was
enforced, the forest lands have not been assigned as
contemplated by Section 10, except perhaps a minor portion.
The government is deriving income from the forest wealth
just as the owners were doing prior to their vesting in the
government. In other words, the government is using the
said forest lands for augmenting its income. It is not
really interested in distribution/assignment of the land.
Moreover, with the enactment of the Forest (Conservation)
Act, 1980, the assignment of the forest land has become
impossible. It is idle to presume that that Central
Government would permit the clearance of such vast tracts of
forests. Since clearance of forest growth from such a large
extent of land would affect the ecology and environment of
the State, the Central Government would never agree to it,
which means that the object of the enactment has become
impossible to achieve. Since the main objective of the Act
has failed, the entire Act falls and the private forests
must be restored to their erstwhile owners. The inclusion
of the Act in the Ninth Schedule to the Constitution (at
Sl.No.146) by Constitution 40th (Amendment) Act, does in no
manner stand in the way of the above submission. Not only
has it been included in the Ninth schedule by a post-Bharati
Amendment Act, the protection afforded by Article 3 1 B is
no answer to the submission of the petitioners. The counsel
for the petitions submitted further that the Kerala Act and
the Forest (Conservation) Act are repugnant to each other
and that in any event until the prior approval of the
Central Government is granted, the inconsistency remains.
7. Section 3 of the Kerala Act vests all the private
forests in the State in the government on the appointed day.
"Appointed day" means 10th day of May, 1971 as per clause
(a) of Section 2. The constitutional validity of the
enactment was questioned by the affected owners but they
failed ultimately as stated hereinbefore. The decision of
this court upholding the validity of the Act was rendered in
September 1973. Having waited for about sixteen years, some
of the owners have come forward with the present writ peti-
tions again impugning the constitutional validity of the
said enactment, no doubt on a different ground. The main
ground now urged, in substance, is that inasmuch as the
acquired forest lands have not been assigned as contemplated
by Section 10 of the Act inspite of more than twenty years
having elapsed, the main objective of the Act has failed.
It is submitted that the, enactment of Forest (Conservation)
Act by the Parliament in the year, 1980 and its subsequent
amendment in 1988 has made the achievement of the objective
of the Act impossible. In other words, they say, the Act
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has failed as a measure of agrarian reform. It has turned
out to be a mere and sheer measure of expropriation of
private property. The Act incorporates a composite scheme;
if one part falls, the whole scheme/enactment fails, it is
submitted. It does not even appear, say the counsel for
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the petitioners, that the Government of Kerala had ever
applied for the prior approval of the Central Government
under Section 2 of the Forest (Conservation) Act, 1980 which
fact according to them establishes that the government is
never minded to enforce the Act. Since it is sitting pretty
upon the forest wealth and deriving income therefrom, it has
no inclination to distribute the land, they say. Strong
reliance is placed upon the following observations in the
opinion of Krishna Iyer,J. in Gwalior Rayons:
"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 is 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 subject-matter 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
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on purposes of promotion of agriculture or the
welfare of the agricultural population. But
here it is clear on a reading of s. IO that
the forests and not merely the income are to
be devoted to or directed towards 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 statute
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 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
agrarian reform which is intended to be
carried out.
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Counsel for the forest owners has expressed an
apprehension before us that the State
Government may keep the forests as they arc
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. 3lA
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 Govern-
ment 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. IO 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. IO and if the forests are diverted
for uses outside the scope of s.10 the court
could restrain the State from such illegiti-
mate adventures."
8. We are unable to agree with the learned counsel for the
petitioners. While we see the force of the argument that
the Government of Kerala has, to a large extent, failed. in
carrying out the objectives of the enactment as contemplated
by Section 10, we see no ground for holding that such
failure of the government renders the enactment void. It
has never been held by any court that failure to fully carry
out the objectives of an enactment renders the enactment
void or unconstitutional. There is no such principle known
to law. We are equally unable to agree that the Forest
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(Conservation) Act has made the Kerala Act unworkable. The
Conservation Act does not prohibit the clearance of forests
altogether. All that it says is that no such clearance
shall take place without the prior approval of the Central
Government. The bar is not absolute one but qualified.
Even the 1988 Amendment to Forest (Conservation) Act does
not make the implementation of the State Act impossible. It
may be remembered that Section 10 does not contemplate
assignment or distribution of entire private forest lands
(vesting in the government under the Act) but only a portion
of it. First, it requires the government to reserve an
appropriate portion of the acquired forests for purposes
directed towards the promotion of agriculture and other
matters mentioned therein. The remaining land has to be
given out on lease or registry to individuals or
cooperatives. All this can still be done without violating
the provisions of the Act. It is also not possible to agree
with the submission Of the learned counsel for the
petitioners that the Central Government is bound to decline
prior approval under Section 2 of the Forest (Conservation)
Act. We cannot decide for the Central Government nor can we
presume so and invalidate the Act on that ground.
9. Indeed, the very observations in the opinion of Krishna
Iyer,J. in Gwalior Rayons, quoted hereinbefore, militate
against the contention of the petitioners. The learned
Judge observed that if the State Government fails in
carrying out the provisions of Section 10 within a
reasonable period, 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 Section
10". The petitioners cannot be treated as aggrieved parties
contemplated by the learned Judge. In the context, the
expression means those persons who stand to
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gain if the forest land is reserved or assigned as
contemplated by Section IO. The learned Judge had also
observed that "if the forests are diverted for uses outside
the scope of Section 10, the court could restrain the State
from such illegitimate adventures" All that can be done, if
a proper party comes to court, will be to direct the
Government of Kerala to make good the statutory promise by
acting in terms of Section 10.
10.We must also mention that the counsel for the petitioners
could not bring to our notice any decision of this Court or
of any other Court where such acquisition was invalidated on
the ground that the objects of acquisition were not achieved
within a reasonable period or that permission/approval of
some other authority has to be obtained before taking steps
for implementation of its objectives.
11.Learned counsel for the petitioners relied upon certain
observations in Bhim Singhji v. Union of India (1985
Suppl.S.C.R.862) to say that inclusion in the Ninth Schedule
does not save an Act if it damages the basic structure of
the Constitution. We see no relevance of those observations
herein, in view of what we have said hereinabove.
12.For the above reasons, the writ petitions fall and are
dismissed. No costs.
CIVIL APPEAL NO. 120 OF 1986:
13.This appeal is preferred against the judgment of the
Kerala High Court allowing a review petition filed by the
State and setting aside its earlier judgment dated August 3,
1983.
14. The appellant states that he entered into an agreement
on August 7, 1963 with the karta and the senior members of
the Venkunadu Kovilkam to take on lease 550 acres of land
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belonging to the said Kovilkam in janmam, situated in
Neelamala Palghat district. He says that he, was put in
possession of the entire extent and that he raised coffee on
215 acres and Cardamom on 225 acres before May 10, 1971, the
date on which the Kerala Forests (Vesting and Assignment)
Act, 1971 came into force, The appellant further says that
he has been paying land tax and basic tax for the said
plantation from 1974 onwards, i.e., after the plantation
started yielding. Contending that the said extent had
vested in the government under Section 2 of the Act, he
says, the authorities encroached upon the said extent where-
upon he instituted O.A.139 of 1977 under Section 8 of the
Act before the appropriate Tribunal. His contention before
the Tribunal was that the said land did not vest in the
government under Section 3 for the reason that well before
the date of coming into force of the Act it had ceased to
be a private forest within the meaning of Section 2(f). By
its order dated May 25, 1981, the Forest Tribunal upheld the
appellant’s claim against which the State of Kerala filed an
appeal, M.F.A.No.1 of 1982 before the High Court. The
Division Bench which heard the appeal dismissed the same on
August 3, 1983 affirming the findings of the Tribunal. One
of the contentions urged by the State before the Division
Bench was that the said agreement of lease having been
entered into without obtaining previous sanction of the
Collector, as required by the Madras Preservation of Private
Forests Act, the lease is not only void but the said fact
also establishes that the alleged agreement of lease and
delivery of possession pleaded by the
282
appellant is not true. This argument was rejected by the
Division Bench relying upon A-20, the report of the receiver
appointed in O.S.1/64 on the file of the learned District
Judge, Palghat and upon the recitals in the formal lease
deed Exh.A21 executed pursuant to the agreement of lease in
the year 1973. In addition to the above, the Division Bench
also relied upon Exh.A-8, the rent receipt dated November 9,
1963 issued by the Kariastha of the Kovilkam to the
appellant. He Bench held that the appellant had indeed come
into possession of the said land on August 7, 1963 and had
also converted the said extent into plantation prior to May
10, 1971. This order became final, not having been
questioned by the State in this Court or otherwise.
15.On November 18, 1983, the Governor of Kerala issued an
ordinance being Ordinance No.39 of 1983 amending Section 8
of the Act and inserting new Sections 8-B, 8-C and 8-D after
Section 8-A in the Principal Act. Section 8-B extended the
period of limitation for the State to apply for review of a
judgment rendered by the Tribunal on the grounds specified
therein. Section 8-C(3), which is relevant for our
purposes, extended the period of limitation for the State to
apply for review of judgment delivered by the High Court on
the grounds specified therein. For the purpose of this
case, it is enough to notice sub-section (3) of Section 8-C.
It reads as follows:
"(3) Notwithstanding anything contained in
this Act or in the Limitation Act, 1963
(Central Act 36 of 1963), or in any other law
for the time being in force, or in any
judgment, decree or order of any Court or
other authority, the Government, if they are
satisfied that any judgment or order other
than an order referred to in subsection (2)
passed by the High Court in any proceeding,
relates to any land which is a private forest
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and that such judgment or order has been
passed due to suppression or misrepresentation
of facts or due to the failure to produce
relevant data or other particulars or that an
appeal against such judgment or order could
not be filed by reason of the delay in
applying for and, obtaining an certified copy
of such judgment or order, may, within six
months from the commencement of the Kerala
Private Forests (Vesting and Assignment)
Amendment Ordinance, 1983, make an application
to the High Court for review of such judgment
or order."
(Quoted from the Paper Book)
16. It is brought to our notice that after the lapse of
the original ordinance, successive ordinances were issued
from time to time. Be that as it may, taking advantage, of
Section 8-C(3), the State of Kerala filed a petition for
reviewing the judgment of the High Court dated August 3,
1983. It was posted before Thommen,J., who was one of the
two members of the Division Bench which had dismissed the
appeal on August 3, 1983. The learned Judge allowed the
review petition and restored the appeal to file under the
impugned order dated September 17, 1985.
17.A reading of Section 8-C(3) shows that the High Court can
review its order on any of the following three grounds:
(1) that such judgment or order has been passed due to
suppression or misrepresentation of facts;
(2)that such judgment or order has been passed due to the
failure to produce relevant data or other particulars; or
(3) that an appeal against such judg-
283
ment or order could not be filed by reason of the delay in
applying for or obtaining a certified copy of such judgment
or order.
18. The review petition filed by the State was based upon
the second ground, viz., failure of the State to produce
relevant data or other particulars, a fact specifically
noted in the very first paragraph of the impugned order.
The contention urged on behalf of the Government Pleader
before the learned Judge was that it was not brought to the
notice of the High Court that prior to the execution of
Exh.A-5 in 1963. the sanction of the District Collector as
required under Section 3 of the Madras Preservation of
Private Forests Act had not been obtained. The learned
Judge took note of the fact that this contention was urged
before the Division Bench when it heard the appeal and had
rejected it. Even so the learned Judge observed, after
noticing Section 3 of the Madras Act, that according to the
said provision any alienation without the previous sanction
of the District Collector is null and void and that the said
circumstance raises several questions for consideration,
viz., whether the agreement-of lease amounts to alienation
within the meaning of Section 3 of the Madras Act and if so
whether it was entered into with the previous sanction of
the Collector and further whether such alienation without
such previous permisSion can constitute a foundation for ex-
cluding the land from the purview of the Kerala Act and
certain other questions. What is of relevance is that the
learned Judge did not say or find that the order of the High
Court was made, or vitiated, due to the failure to produce
relevant data or other particulars. Indeed, no such data or
particulars were placed before the Court by the State in the
review petition. On the same material, which was on record
in the appeal, the impugned order has been made. We are of
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the opinion that the words "due to failure to produce
relevant data or other particulars" mean what they say. It
must be a failure to produce relevant data or particulars;
it cannot mean a mere change of opinion on the same material
or on the same evidence. We are, therefore, of the opinion
that the ground on which the review petition was filed was
not made out and hence the order dated August 3, 1983 could
not have been reviewed and set aside. It is true that under
the impugned order the learned Judge has merely restored the
appeal to file after setting aside the order dated August 3,
1983, which meant that appeal is yet to be heard, but, in
our opinion, the very setting aside of the order dated
August 3, 1983 was not called for until and unless one or
the other ground specified by statute is made out.
19. In view of the above, it is not necessary to consider
the other question raised in this appeal, viz., the validity
of the successive ordinances inserting the aforesaid
sections in the Kerala Act.
20. Accordingly, we allow the appeal and set aside the
impugned judgment and restore the judgment of the Division
Bench dated August 3, 1983. It is made clear that if
pursuant to the order impugned herein, any orders are passed
in the appeal, whether interim or final, they shall equally
stand set aside. No costs.
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