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TMI Blog1973 (9) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... erred 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 envisaged by the impugned Act is not real or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." Clause (f) defines "private forest". Private forest means,(1)in relation to the Malabar district referred to in subsection(2) of section 5 of the States Re organisation Act, 1956 (Central Act 37 of 1956), (i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding(A)lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964); (B) lands which are used principally for the cultivation of tea, coffee,cocoa, rubber, cardamom or cinnamon and lands used for any purposeancillary to the cultivation of such crops or for the preparation of the same for the market. (C) lands which are principally cultivated wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, may apply to the Tribunal for decision of the dispute. Subsection (3) provides that "if the Tribunal decides that any land is not a private forest or that a private forest or portion thereof has not vested in the Government, the custodian shall, as soon as may be, restore possession of such land or private forest or portion, as the case may be, to the person in possession thereof immediately before the appointed day." Section 9 provides that "No compensation shall be payable for the vesting in the Government of any private forest or for the extinguishment of the right, tide and interest of the owner or any other person in any private forest under sub section(1) of section 3." Having thus provided for acquisition of private forest lands without the necessity to pay compensation the Act now proceeds to provide for a scheme of agrarian reform. Section 10 Assignment of Private forests. (1) The Government shall, after reserving such extent of the private forests vested in the Government under sub section (1) of section 3 or of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed." "(2) The Fund referred to in sub section (1) shall consist of grants or loans by or from the Government and monies received by the Government by the,sale of trees standing in such portion of the private forests as are or may be assigned under section 10". Section 17 provides for the rules making power of the Government. By the repealing section 18 several Acts have been repealed including the Kerala Private Forests (Vesting and Assignment) Ordinance. 1971 which had been promulgated prior to this Act. In short the Act purports to acquire forest lands without payment of compensation for implementing a scheme of agrarian reform by assigning lands on registry or by way of lease to the poorer sections of the rural agricultural population. This is done after reserving portions of the forests as maybe necessary for purposes "directed towards the promotion of agriculture or the welfare of the agricultural population or for purposes ancillary thereto." This scheme of agrarian reform is intended to be completed within two years. Mr. Chagla, who addressed us the principal argument in this case on behalf of the owners, contended that private forests cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the uses to which these forest lands have been put over generations. In his submission forest lands in Kerala are agricultural lands in, the sense that they are capable of being used for raising food crops.. cash crops, plants or trees and other purposes of husbandry. The statement of objects and reasons in the Act contains the following : "There are vast extents of private forests in the State particularly in the Malabar area where such forests are owned by Janmies. These private forests are agricultural lands. In the Judgment reported in 1969 K.L.T. 320 (V. Venugopala Varma Rajaa v. Controller of Estate Duty, Kerala) a division bench of the High Court has held that in the absence of exceptional circumstances such as the land being. entirely rocky and barren for other reasons, all forests landsin the State are agricultural lands in the sense that they can be prudently and profitably exploited for 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 "Approx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coffee, pepper and rubber plantations have been successful in the forest lands in Wynad (Malabar District)". A fact to which attention must be drawn is that whereas a large proportion of the forests in the former Travancore Cochin State belonged to the Government and only a small proportion to private owners or janmies, the position in the Malabar District was just the ,opposite. Forest lands in that District belonged predominantly to 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s : "The present attempt is to find out suitable cultivable lands in the reserve area and to give the land on a systematic basis. With this view in mind I have tried to find out suitable areas preferably in large blocks. This will help the formation of fairly large sized colonies or villages so that the allottees can have a social life and in course of time all the facilities for communal living can be provided to them. If a large block is taken, normally because of the nature of land in our State a few steep hills cannot be excluded. The colony can be formed on the base of these hills in fairly elevated places and it can be so arranged that the individual families will have their residences at convenient places (within two or three miles) in relation to the area he is given for cultivation. Some of the blocks I have pointed out are fairly large areas where even small townships can be formed. This will aid the formation of cooperative societies to help the allottees in both their cultivation and in constructing suitable building for 'them." This shows how the Special Officer felt the need of settling chunks of the agricultural population in blocks of reserve forests a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment. "It is well known that the extensive areas of different varieties of plantations that we have got in this State were once forest lands; and it is also equally wellknown that year. after year large areas of, forest lands in this State are being cleared and converted into valuable plantations. In the absence of exceptional circumstances such as the land being entirely rocky , or barren for other reasons, all forest lands in this State are agricultural lands in the sense that they can be prudently and profitably exploited for agricultural purposes." This judicial opinion as we have already seen has been referred to in the Statement of Objects and Reasons of the Act. It is, therefore, manifest that when the legislature stated in the Preamble that the private forests are agricultural land, they merely wanted to convey that they are lands which by and large could be prudently and profitably exploited for agricultural purposes. Having appreciated the true nature and character of these private forests we have to see whether they can be regarded as 'estate' within 'the contemplation of Article 31A (2) of the Constitution. That Article is as follows : &q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore they would attract the protection of Article 31A(1). It would not be, in such a case, necessary to further examine if the lands so vested in the Government are agricultural lands falling within subclause (iii). This is explained in some detail by this Court in Balmadies Plantations Ltd. v. State of Tamil Nadu ([1972] 2 S.C. C. 133.) 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 agricultur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al to the interests of the agricultural community in the long run' it is undoubtedly true that rackless deforestation might lead to very unhappy results. But we have no material before us for expressing opinion on such a matter. It is for the legislature to balance the comparative advantages of a scheme like the one envisaged in the Act against the possible disadvantages of resulting deforestation. There are many imponderables to which we have no safe guides. It is presumed that the legislature knows the needs of its people and will balance the present advantages against possible future disadvantages. If there is pressure on land and the legislature feels that forest lands in some, areas can be conveniently and, without much damage to the community as a whole, utilized for settling a large proportion of the agricultural population, it is perfectly open, under the constitutional Powers vested in the legislature, to make a suitable law; and if the law is constitutionally Valid this Court can hardly strike it down on the ground that in the long run the legislation instead of turning out to be a boon will turn out to be a curse. Mr. Menon who appeared for the respondent in Civil A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttlest 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. 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 not with standing. Subarticle (2) explains the concept of 'estate' and includes therein janmam rights. Although art. 31A is worded widely enough to rope in acquisition of any estate by the State regardless of purpose, the Supreme Court has cut back on this amplitude by limiting entitlement to constitutional protection to agrarian reform legislation only. Subba Rao, J., in Kochuni's(1) case, speaking for the Court, reviewed the earlier decisions under art. 31A and interpreted the provision against the back drop of the objects of the Constitution (Forth Amendment) Act, 1955 and the earlier Constitution (First Amendment) Act, 1951, to arrive at the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsifying and increasing agricultural production, providing readily available means of communication and transportation, to facilitate proper marketing of the village produce, putting up of silos, warehouses etc. to the extent necessary for preserving produce and handling it so as to bring it conveniently within the reach of the consumers when they need it, training of village youth in modern agricultural practices with a view to maximising production and help solve social problems that are found in relation to the life of the agricultural community.The village man, his welfare, is the target. Moving the first constitution Amendment Bill, the then Prime Minister, who was in a large sense the protagonist of constitution framing for the country, observed : "Now apart from our commitment, a survey of the world today, a survey of Asia today will lead any intelligent person to see that the basic and the primary problem is the land problem today in Asia, as in India. And every day of delay adds to the. difficulties and dangers, apart from being an injustice in itself." "..... But inevitably, in big social changes some people have to suffer. We have too think in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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([1965] 1 S. C. R. 82, 94.) 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,( [1959] Supp. 1 S. C. R. 489.) 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 nationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as sufficient to impart to the statute invulnerability under art. 31A. Notwithstanding the attempt of counsel for the forest owners, to distinguish between the Kannan Devan provisions and section 10 the distinction is without a difference. Once we accept the thesis that developmental orientation and distributive justice are part of and inspire activist agrarian reform, its sweep and reach must extend to cover the needs of the village community as well. What programme of agrarian reform should be initiated to satisfy the requirement of rural uplift in a particular community under the prevailing circumstances is a matter for legislative judgment. Here, in this field the legislature is the policy maker and the court cannot assume the role of an. economic adviser or censor competent to pronounce whether a particular programme of agrarian reform is good or bad from the point of view of the needs of the community. The sole 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ,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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed those powers,the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise." The Forest Act survives the attack on the score of colorable legislation. Considered in this light it is not possible to hold that S. 10 has no nexus with agrarian settlement. Of course, the programme held out in the provision, if not implemented within a reasonable time or otherwise peverted to nonagrarian purposes, may give rise to judicial scepticism about the Government's bona fides and induce consequent remedial action. As we see it, the Forest Act is calculated to bring benefit to landless laborers, tribals and other proletarian groups in the over populated state of Kerala. The fear that the executive win dawdle and delay unreasonably or act obliquely to defeat the agrarian welfare content of the measure may gain credibility when the scheme is not legislatively time bound. In the present case a twoyear period for reserving foresters and distributing the rest is written int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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