Full Judgment Text
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PETITIONER:
STATE OF KERALA AND ANR.
Vs.
RESPONDENT:
THE GWALIOR RAYON SILK MANUFACTURING (WVG.) CO. LTD. ETC.
DATE OF JUDGMENT18/09/1973
BENCH:
PALEKAR, D.G.
BENCH:
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
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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 sub-
clauses, that since private forests were held in janman
right they would be an ’estate’ within the meaning of sub-
clause (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 3-
392SCI/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 im-
pugned 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 sub-
clause (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.
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(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 re-
structuring 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 socialis-
tic 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
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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.
JUDGMENT:
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,,
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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 Re-
organization 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
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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 sub-
section(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 purposeancillary 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
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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 sub-
sections (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 forests-
All private forests vested in the Government under sub-
section (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. Sub-
section (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."
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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 persons 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.
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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 may- be 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 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 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 :
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"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
lands- in the State are agricultural lands in the sense that
they can be prudently and profitably exploited for
agriculturing 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
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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
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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 terrain-
now 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 therefrom were read out at
the time of the. argument. They seem to support what a
bench of the Kerala- High 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 well-
known that year. after year large areas of, forest lands in
this State are being cleared and converted into valuable
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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, under-
proprietor, tenure-holder, (raiyat, under-
raiyat) 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
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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 sub-
clause (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 bene-
ficiaries 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
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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
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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,
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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 com-
munity 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
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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.- Sub-
article (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 stay- Forensic 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 con-
cerned 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
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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, ware- houses 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 apposite 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
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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
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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 Act- A 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 pro-
gramme 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
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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 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 Govern-
ment 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
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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 non-
agrarian 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 two-
year 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 non-
implementation 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
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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.
697