# STATE OF KERALA AND ANR v. THE GWALIOR RAYON SILK MANUFACTURING (WVG.) CO. LTD. ETC. September 18, 1973

- **Citation:** [1974] 1 S.C.R. 671
- **Court:** Supreme Court of India
- **Decided:** 1973-09-18
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-kerala-and-anr-v-the-gwalior-rayon-silk-manufacturing-wvg-co-ltd-etc-6019
- **Pages:** 26

## Headnote

671
A
STATE OF KERALA AND ANR.
v.
THE GWALIOR RAYON SILK MANUFACTURING (WVG.) CO.
LTD. ETC.
September 18, 1973.
8
[A. N. llAY, C.J., D. G. PALEKAR, Y.
V.
CHANDRACHUD,
P. N.
c
D
E
G
H
BHAGWATI AND V. R. KRISHNA IYER, JJ.]
Co11!.titu1io11 of India,
1950-Artic!e 31A-The Kera/a Prirate Forests
(Vesting and Assig11111e11t) Act, 1971-Act if entitled to the protection of article
31A-Prirate forest held in Ja11n1an right-If necessary to sliolv they are agricultural lands wirliin Jllb. clause (iii) of article 31A-Agrarian Refonn, nieaning.
The Kerala Private Forests (Vesting & Assignn1ent) Act (1\ct 26 of 1971)
purported to acquire forest lands held on J ann1an right. \Vithout
payment of
compensation, for implementing a schen1e of agrarian reform by assigning lands
On registry or by \\'ay of lease to the poorer sections of thy rural agricultural
population. A full bench of the Kerala High Court (Reporled in A.I.R.
1973,
Kerala 63) held that tbe provisions of the. A.ct 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 schen1e of agrarian reform envisaged by the
Act was not real or genuine but only illusory.
The appeals and the petiti~ns con·
cerned the question whether the Act could qualify for the protection of article
31A(l) 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 sho'v 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 jan1na1n right they \VOuld be an 'estate' within the meaning of sub-clause
(i) and that if the law envisaged a measure of agrarian reform it \Vas not necessary for the- State to establish additionally that forest lands were similar lands des·
cribed 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
i11to
agricultural lands by a mere legislative fiat containetl 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 :.1A (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(I) of the Constitution.
(I) 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 agricultural purposes. It is manifest that when the legislature stated in the Preamble that the private forests are agricultural land, they
merely wanted to convey that they are iands which by and large could be prudently and profitably exploited for agricultural purposes.
[682H, 683C]
3-392SCl/74
672
SllPREMl' COURT REPORTS
[ 1~74] 1

## Text

_Characters 0–39,813 of 79,596. This is a partial read: ask again with offset=39813 for what follows._

671
A
STATE OF KERALA AND ANR.
v.
THE GWALIOR RAYON SILK MANUFACTURING (WVG.) CO.
LTD. ETC.
September 18, 1973.
8
[A. N. llAY, C.J., D. G. PALEKAR, Y.
V.
CHANDRACHUD,
P. N.
c
D
E
G
H
BHAGWATI AND V. R. KRISHNA IYER, JJ.]
Co11!.titu1io11 of India,
1950-Artic!e 31A-The Kera/a Prirate Forests
(Vesting and Assig11111e11t) Act, 1971-Act if entitled to the protection of article
31A-Prirate forest held in Ja11n1an right-If necessary to sliolv they are agricultural lands wirliin Jllb. clause (iii) of article 31A-Agrarian Refonn, nieaning.
The Kerala Private Forests (Vesting & Assignn1ent) Act (1\ct 26 of 1971)
purported to acquire forest lands held on J ann1an right. \Vithout
payment of
compensation, for implementing a schen1e of agrarian reform by assigning lands
On registry or by \\'ay of lease to the poorer sections of thy rural agricultural
population. A full bench of the Kerala High Court (Reporled in A.I.R.
1973,
Kerala 63) held that tbe provisions of the. A.ct 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 schen1e of agrarian reform envisaged by the
Act was not real or genuine but only illusory.
The appeals and the petiti~ns con·
cerned the question whether the Act could qualify for the protection of article
31A(l) 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 sho'v 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 jan1na1n right they \VOuld be an 'estate' within the meaning of sub-clause
(i) and that if the law envisaged a measure of agrarian reform it \Vas not necessary for the- State to establish additionally that forest lands were similar lands des·
cribed 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
i11to
agricultural lands by a mere legislative fiat containetl 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 :.1A (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(I) of the Constitution.
(I) 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 agricultural purposes. It is manifest that when the legislature stated in the Preamble that the private forests are agricultural land, they
merely wanted to convey that they are iands which by and large could be prudently and profitably exploited for agricultural purposes.
[682H, 683C]
3-392SCl/74
672
SllPREMl' COURT REPORTS
[ 1~74] 1 s.c.R.
V. V enugopala Vanna Rajua v. Co11trolJer of f'5/ate Duty,
Kera/a [1969]
K.L.T. 320, relied on.
(ii) The private forests being held in Ja111nan1 right, and Janman right being
ttn ·estate' are 1iable to be acquired by the State under article 31A(l) (a) as a
necessary step in the implementation of agrarian reform.
Section 3 of the im--
pugned A\'.t vests the ownership and possession of all private forests in the State.
fherefore, they would attract the protection of article 31A(l). It would not be,
in :-1uch a case, necessary to further examine if the lands so vested in ti.1e governn1cnt are agricultural lands falling within sub-clause (iii).
[684C]
KaFalappara Kottaraihil Kocliuni a11d otiu'rs v. The St(lte of 'Madra . .,·
and
ot/Jcrs, [1960] 3 S.C.R. 887, State of U.I'. v. Raja Anand Brahma Shah, [1967] 1
S.C.R. 362 and BaftnatUes Plantotivns Ltd. v. State of Tantil Nadu, [1972] 2 S.C.C.
133, referred lo.
A
B
(iii) The Act envisages a scheme of agrarian rcforn1.
In statutes of this
nature provision can only be generally made to indicate the broad details of the
schen1e for rigra1i<1n reforn1 and that is what. is done in the Act. The High Court
C
has not given any substantial reasons for con1ing to-the conclusion that the scheme
of agrarian reform is a "teasing illusion and a promise in unreality". [684F, 68SC]
Balnuulies P!ontatio11.i, Ltd. \'. State of Ta111il 1Vadu, [1972] 2 S.C.C. 133 dis·
tinguished.
Kunnan Derail lfili.5 Produce v. The State of Kr:rala and a11otller, [1972]
2
S.C.C. 218, applied.
(iv) The Act cannot be impugned as a piece of colourable legislation. The
question really is, in the first place, of the competence of ·the legislature to pass
the in1pugned Act and, in the second, whether the Act is constitutional in
the
sense that it is protected by article 31A(l). [687D]
(~) It is presumed that the legislature kno\Ys the needs of its people and will
balance the present advantages (lgainst possible future disadvantages. If there is
pressure on Jahd and the legislature feels that forest lands in some areas can be
conveniently, and vtithout much damage to the community .as a whole, utilized for
settling a large proportion of the agricultural population, it is perle.ctly open, under
the constitutional powers vested in the legislature, to make a suitable law; and if
t-he law is constitutionally valid this Court can hardly strike it down on the ground
that in the long n1n 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
subjecr. 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 com·
pany or operate against the Government as equitable estoppel.
[688C]
Per Bhagwati & Krishna Iyer JJ : (Concurring) : The technology of agiarian
reform for a developing country \Vhich traditionally lives in its villages envisages
rhe national programmes of transmuting rural life from feudal medivealism into
equal, affluent n1odernism-a \Vide canvas OYer.flowing mere in1provement of agri·
culture and reform of the land system.
1\rticle 31~'\\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 well·
being being pivotal to tand reform in its larger legitimate connotation .... Agrarian
reform is more humanist than mere· land reforn1 and, scientifically viewed. covers
not merely abolition of intermediary tenures, zamindaris and the like but re·
structuring of village life itself takiilg in its bfoad. en1bra~ the socio-economic
n:generation of the rural population.
The Indian Constitution is a social instrun1ent with an economic mission and the sense and s\\ .. ~ep of'its Provisions must be
gathered by judicial statesmen on that seminal footing. J\'.'lso, it is arguable that
the elin1iantion of ancient jann1an1 may per .\e be. regardelf as possessing the attJi·
bute of agrarian reform, because. to \Vipe out feudal \ estig'es from our countryside
and to strt!anlline land O\VOership are preJin1inaries to the projection of _a sociali!i·
tic order \Yhich Part IV and art. 31A of the Constitutioh strive to Create. How·
e,·er. this Court has he1d that a scheme of agrarian refor!n is essential. apart from
D
E
F
G
H
A
B
c
D
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F
G
KERALA v. GWALIOR RAYO;-; SILK MFG. co. (Palekar, J, I
67 3
taking over of Jcuu11a11i rights to, make the lay, valid.
ln the present case ;.1 concrete agrarian projec! is presented by seCtion 10 of the Forest .A.ct.
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 comn111ni~y as \Veil.
What progran1n1e of agrarian reform
should be initiated to satisfy the require1nent of rural uplif( in a particul:ir community under the pre\'ailing circumstances is a matter for legislative
judginent.
'fhe sole issue for the Court is \Vhether it is in fact a schen1e of agrarian refonn.
and if it is, the prudence or folly thereof falls outside the- orbit of Judicial revie\v.
In ascertaining whether the in1pugned enactn1ent outlines a blue-print for rigrnrian
reform the Court will look to the substance or the statutory proposal and not its
mere outward form.
The Court should not be too gullible to accept 11 schen1e of
agraQan reform \Vhen it is r.othing but n verbal sub!l!rfug.:-. but al the san1e tinu:
the Lourt should not be too astute to reject such a schen1e
because
it
i"
not
satisfied with the wisdon1 of the schenl.e or its technical soundness.
It would not
be enough nlerely to say that the income of the property acquired is to be utilised
for purpose of agrarian refJrm. The property itself 1nust be acquired for can·~
ing out such a reform.
This requirement is satisfied in the present case.
If the
State, for ulterior ends, prevuri.:ates or b~trays the schen1e by non-implen1entatioa
or mis-irnplementation, an aggrieveJ party may seek releif through a judicial post
audit.
[692 G, 693 C. El
Once it is found that the legislati\'e area is barricaded by Art. 3 L\ it cannot
be breached by Arts. 14. 19 and 31 and judicial break-in is constitutionally inter-1
dieted.
But, at the same time, Art. 31 A is no charter of legislative freedon1 to
refuse cOn1pensation 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 per~
sons.
To exclude judicial review is not to black out the beneficieu.t provisions of
r\rts. 14, 19 and 31.
htay be the present legislation dealing with extensive anti·
quated ianmam rights.relates to the exceptional category. However this is an area
where not the court b?t the elc:ctor is the proper correcti\'e instrument. (695G]
Koc/11a1i'.v
1 case, [1960] 3 S.C.R. 887, Ra11jit Si11g/i'.\· case. [1965] I S.C.R. 82;
94, Ram Narain Medhi y: State of Bombay, [1959] Supp. 1 S.C.R. 489, Roi•
Anand'.v case, [1967] l S.C.R. 362, BaltnadiPs Ph1n1ario11s Ltd. v. State of Tamil
/\.'adu, [!972] 2 S.C.C. 133, Kanan Devan HUTs-Produce '" The State of Kerala
arul another, [197-2] 2 S.C.C. 218, Gttiapathi Narava11 Deo v. Slate of Orissa,
(1954) S.C.R. l, 10-11, and Wakf E.<tate.1· v. Stal<' of Ma<h'f1.1. [19711 2 S.C.R. 790.
referred to.
•
CIVIL APPELLATE/ORIGINAL
JURISDICTION ; Civil
Appeal
No.
1938 of 1972.
·
Appeal from the judgment and order ·dated
the
21st June.
1972, of the Kerala High Court at Ernakula01 in O.P. No. 3771 of
1971.
Civil Appeal No. 1416 of. 1972.
Appeal from the judgment
and
order dr,tcd
the
21st
June.
1972 of the Kerala High Court at Ernakulam in O.P. '"· 3858 of
1971.
Ciril Appeal No. 1417 of 1972
Appeal fro1'1 the judgment
and order dated
the
21st June,
1972 of the Kcrala High Court at Ernakulam in O.P. '"· 4036 0f
1971 and Wri•1 Petitio11 Nos. 151. 151. 153, 176. 177. 17~. 179. I ~O,
H
181. 1~2. 186. 187. 188. 189. & 198 of 1971.
Under Art. 32 of the constitution of Ind':•. for the cnforccmci\l uf
fundamental rights.
674
SUPREME COURT REPORTS
( 197_1] 1 S.C.R.
M. M. Abdul Kader, V. A. Seyid Muhammad and P. C. Chandi,
for the appellants (in all appeals).
V. K. Krish11a11 Menon, B. Mohan and O.P. Khaitan for respondent (in C.A. No. 1398/72).
A
M. C. Chagla, (in C,A.. 1417 only) T. K. M. Vnnithan and A. S.
Nambiar, for respondents (in C.A; Nos. 1416-1417).
a
B. Dutta and J. B. Dadachani, for petitioners (in all W.Ps. except
W.P. 186/7 J).
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. l (in all the W.Ps).
Cl
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. BHAGWAT!, 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.
D
The lands involved are private forest lands situated in the former
Malabar District which, after the States Re-organization Act, 1956,
E
stood transferred from the old. State of Madras to the new State of
Kerala. As a result of the A.ct 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
F
judgment and order of a full bench of the Kerala High Court
(Reported in A.LR. 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 unconstitutional· 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 on the
G
question whether the Act is protected by Articlle 31A(I) 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 sclbeme of agrarian reform
H
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A
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c
D
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G
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KERALA v. GWALIOR RAYON SILK MFG. co. (Pa/ekar, J.)
6 7 5
envisaged by the impugned Act is not real or genuine but
only illuory, we are of the opinion that the provisions of the
Act ar~ not protected by Article 31A of the Constitution. We
therefore declare the Kerala Private Forests (Vesting and
Assignment) Act 26 of 1971 unconstitutional and void.''
It is contended on behalf of the State of Kerala that in order to
get the protection of Article 3 lA ( 1) (a) of the Constitution that the iaw
must fulfil two conditions-( l) that It must relate to an estate as
defined in Article 31A(2) (a) and (2) that the law mnst 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 <:me 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
tliereto. In $hort, in the submission on behalf of the State, the forest
lands with which we are concerned are an 'estate' within the meaning
of Article 31 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 arid for the assignment
thereof to agriculturists and agricultural labourers for cultivation. The
preamble is as follows:
"WFiEREAS the private forests in the State of Kernla 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 agriwltural 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 fu 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 ( c) 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."
15 7 (i
S!!P"~F.~IE COURT REPORTS
[ Dn ) 1 S.C.ll.
Clause (f) defines ... private forest"". Private forest means.-
( I) in relation to the Malabar district referred to in sub-section(2 l
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 nil ams as defined in the Kerala
Land Reforms Aq. 1963 (I of 1964);
(B) lands which arc used principally for the cultivation of tea,
coffee, cocoa. rubber, cardamom or cinnamon and lands used for any
purp:Jse ancillary to the cultivation of rnch crops or for the prcpara·
tlon of the same for the market.
(C) lands which are principally cultivated with cashew or other
fruit-bearing trees or arc principally cultivated with any other agricultural crop; and
(D) sites of buildings and lands appurtenant to, and
necessary
for the convenient enjoyment _or use of, such buildings;
(ii) any forest not owned by the Government,
to which
the
Madras Preservation of Private Forests Act, 1949, did not
apply.
including waste lands which are enclaves within wooded areas;
(2) in relation to the remaining areas in the State of Kerala, any
forest not owned by the Government, including waste lands which are
cnclavCll within woo<Jed areas."
Section 3 is important. "Private forests to vest in Government-
(!) 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 !lOt 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 dee.med
to
be
reserved·
forests--
All private forests vested in the Government under sub-section ( 1)
A
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c
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E
F
G
of section 3 shall, so long as they remain vested in the Government,
H
be deemed to be reserved forests constituted under the Kerala Forest
Act, 1961 (4 of 1962) and the provisions of that Act ~hall, so far as
may be, apply to such private forests."
A
B
c
D
E
KERALA Y.· GWALIOR RAYON SILK MFG. co. (Palekar, /.)
677
Section 5 provides for eviction of persons in u~authorised ~u
pation and section 6 for the demarcation of boundanes . of the pnvat~
forests.
Section 7 provides for the constitution of Tribunals, their powers
and functions. Sub-clause (2) of that section provides that
"t~e
Tribunal shall consist of a single person who is, or has been, or ts
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 privat, forest or portion thereof has
been
vested in the Government or not, the person who
claims that the land is not a private forest o_r that
the private forest has not vested in
the Govern·
ment, 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 righi, title and interest of the owner or any other person
in any private forest under sub-section(l) of swtion 3." .
Having thus provided for ·acquisition of private forest lands without the necessity to pay compensation the. Act now proceeds to provide for a scheme of agrarian reform.
F
Section 10 Assignment of Private forests.-(!) The Govenuucnt
shall, after reserving sucih 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
agr;icultural population or for purposes ancillary thereto,
a~sign on
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.. registry or lease to--
(a) agriculturists;
(b) agridultural labourers; .
..( c) Members of Scheduled Castes and Scheduled Tribes
who -are willing. to take up agriculture as means of
their livelihood;_
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( d) unemployed young persons belonging to families of
agriculturists and agricultural labourers, who have no
sufficient means of livelihood and who are willing to
take up agriculuture as means of their livelihood:
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[ 1974 J 1 s.c.R.
..
.
labourers belonging to families of agriculturists and
agricultural labourers, whose principal means of
livelihood bef6re the appointed day was the income
they obtained as wages for work in conection with
or relate to private forests and who are willing to
take up agriculture as means of their livelihood.
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 notific;ition in the Gazette, delegate their power under sub-section (1) to any officer· of the Governm.ent or any class of officers of GoYernrnent, subject to such restrictions an~ control as may be specified in the notification."
" ( 3) The extent of private forests or lands c:Pmprised in private
forests /hich may be assigned to each of the categories of persons
speeifie in sub-section( 1) and the order of preference in which assign·
ment m~y be made shall be such as may be prescribed."
Secμon 11 is important. It reads : "Assignment to be made within
two years.-Assignment of the private forests or the lands cpmprised
thcrciq under section 10 shall, as far as may be, 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 ,rind 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 ~tilised for the settltement. 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 may be prescribed."
"(2) The Fund referred to in sub-section (1) shall consist of
grants or Joans by or frorn the Government and monies received by
the Government by the 1ale of trees standing in such portion of the
private forests as are or inay be assigned under section 10".
Section 17 provides for the rules making power of tlie
Govern1nent.
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 Aat 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
oi 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.
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KERALA v. GWALIOR RAYON SILK MFG. co. (Palekar, 1.) 679
Mr: Chagla, who addressed us the principal argument in this c_ase
on behalf of the owners, contended that private forests could not be
convened into agricultural lands by a mere legislative fiat 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 sulxlause
(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
lssees thereof were held or let for purposes of agriculture and hence
they cannot be regarded aSt an 'estate' within the definition. That alone
according to Mr. Chagla deprived the Act of the protection under
Article 3 lA (!). 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 affirms that piivate
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 whi~h. the.se forest lands have been put over · genera-
~1ons. In his suC.m1ss1on forest lands in Kerala are agric'ultural lands
m the sense that they are capable of being used for raising food crops.
cash crops, plants or trees and other purposes of husbandry.
The statement of .objects and reasons in ·the Act contains the
following :
.
''There are vast extents of private forests in the State partic.ularly
m. the Malabar area w~ere such forests are owned by J anmies. These
pnvate forests are agricultural lands. In the Judgment reported in
1969 K.L.T. 320 (V. V,e~~gopala Varma
Rajaa v.
Controller of
!'state Duty, Kerala) a d1y1S1on ~nch of the High Court has held that
m the absence of excepuonal circumstances such as the land being
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SUPREME COURT REPORTS
[ H74 J 1 s.c.R.
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 thii connection. In para 4 of his affidavit he says, "Approximately 28 per cent of
the (otal land area in· the Kerala State constitutes forest lands. Generally forest lands comprised in the erstwhile native Stat~ of T ravancore 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 whic)J was found
to he 1,200 sq. miles tnen, belonged to 116 private individuals, the
extent owned by them varying from 100 acres to 1,00,000 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 agricul·
tural labourers. The Government considered snch 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, cocoanut. pepper, etc .. have been raised converting them into
such food crop plantations. Even planting teak and other plantation
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crops is agricultural operation and the lands on which these are
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planted are agricultural It ,ds. After assignment of private forests
from the jenmies or after trespassing into the private forests, large
numbers of settlers of the poor classes have dear-felled the forests
including dense forest areas and have cultivated food crops therein.
Plantatioils 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
G
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 that whereas a
large proportion of the forests in the former Travancore Cochin State
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belonged to the Gove.rnment and only a small proportion to private
owners or janmies, the position in the Malabar District was just the
opposite. Forest lands in that District belonged predominantly to
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KERALA v. GWALIOR RAYON SILK MFG. co. (Paiekar, /.)
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 Committe~, 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 autho·
rise 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
conse·
quent pressure on land, there was widespread squatting by
agrict:lturists 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 agriculturnl use. In this connec·
!ion the· affidavit says :
"Forest lands in the Travancore-Cochin area of the State, which
are Government Reserve Forests have been widely used since
Jong
past for agriculture and purposes ancillary thereto by persons to whom
these lands were a~signed 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
cif
Kerala, to which also this respondent craves leave to refer in detail
at the hearing.
The Government is currently distributing 3 takh
acres of forest lands for settlement of agriculturists."
Reference was also made to the report of the Special Officer Shri
K. Anantan Pillai w~o 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
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[ 1974 J 1 s.c,R.
these lauds in all these divisions and I have prepared a list of areas
considered suitable for cultivation, details of which are furnished."
After furnishing the details the Officer says : "The present attempt is
to find out suitable cultivable lands in the reserve area and to. give
the land on a systematic basis. With this view in mind I have tried
to find out suitable areas preferably in large blocks. This will help
the formation of fairly large sized colonies or villages so that the
allottees can have a social life and in course of time all the facilities
for communal living can be provided to them. If a large block is
taken, normally because of the nature of land in our State a few steep
hills cannot be excluded. The colony can be formed on the base of
these hills in fairly elevated places and it can be-so arranged that the
individual families will have their residences
at convenient places
(within two or three miles) in relation to the area he is given for
cultivation. .Some of the blocks I have pointed out are fairly large
areas where even small townships can· be formed:
This will aid the
formation of cooperative societies to help the a!lottees in bo!h their
cultivation and in constructing suitable/ building for them." This
shows how tha 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 neighbourhood. 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· th.e Malabar District. In that connection he says
"AJ:lart 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 or 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
una)Ithorised.
Vast
areas in the forests were clear.felled, as the expresSion goes, for
bringingl>patches and blocks of lands under agriculture:;, Several types
of produce were obtained by agriculture and a large population liveson 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 owne.rs and a f<action of the same has been brought under
cultivation by planting encalyptus and other types of trees useful for
paper and other industries. Large areas in these forests seem to be
eve.n now in their pristine form but are capable of being utilized by
ablorbing 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 availabfo to
us ·shows that vast areas of these forests are still capable of supporting a large agricultural population. The several authoritative reports
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KERALA v. GWALIOR RAYON SILK MFG. co. (Palekar, J.)
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,
Ker!lla(') 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 plantations.
In the absence of
exceptional circumstances such as the land being entirely rocky or
barre:i 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 Re_asons of
the Act.