TMI Blog1972 (4) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 226 of the Constitution of India were filed in the Madras High Court challenging the vires of the Act on the ground that it was violative of articles 14, 19 and 31 of the Constitution. The case of the petitioners was that their lands in the Gudalur taluk were previously janmam estates but subsequently became ryotwari estates, especially after the resettlement of 1926 and, as such, the provisions of the Act were not applicable to those lands. The Act, it was stated, did not get the protection of article 31A of the Constitution. One of the above petitions was filed by O'Valley Estate Ltd. This petitioner had taken on lease an estate comprising about 2,000 acres of land in the 19th century from the Nilambur Kovilakam who was the proprietor of that land besides some other land. The Company (O'Valley Estate Ltd.) has a plantation on the estate and is engaged in cultivation and manufacturing of tea and other plantation products. The Nilambur Kovilakam was the petitioner in another petition. The nine petitions were resisted by the State of Tamil Nadu on the ground that the lands in question were janmam estates and had retained that character till the passing of the Act. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute. Before dealing with this aspect of the matter, it would be pertinent to refer to the different provisions of the Act. Section 2 of the Act contains the various definitions. Relevant clauses of that section read as under : S. 2. In this Act, unless the context otherwise requires,- (1) all expressions defined in the Malabar Tenancy Act shall have the same,respective meanings as in that Act with the modifications, if any, made by this Act; (2) appointed day means the date appointed by the Government under subsection (4) of section 1; (4) forest includes waste or arable land containing trees, shrubs or reeds. Explanation.-A forest shall not cease to be such by reason only of the fact that, in a portion thereof, trees, shrubs or reeds are felled, or lands are cultivated, or rocks, roads, tanks, rivers or the like exist; (6) jarmiam estate means any parcel or parcels of land included in the holding of janmi; (7) janmi means a person entitled to the absolute proprietorship of land and includes a trustee in respect thereof; (9) plantation crop means tea, coffee, rubber, cinchona or cardamom; (11) tenant means a verumpattamdar as defined in sub-claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act; (f) the relationship of janmi and tenant, shall as between them, be extinguished; and (g) any rights and privileges which may have accrued in the janmam estate to any person before the appointed day against the janmi shall cease and determine and shall not be enforceable against the Government or against the janmi and every such person shall be entitled only to such rights and privileges as are recognised or conferred on him by or under this Act. According to section 8, the janmi shall with effect on and from the appointed day be entitled to a ryotwari patta in respect of all lands proved to have been cultivated by the janmi himself, or by the members of his tarwad, tavazhi, illom or family or by his own servants or by hired labour with his own or hired stock in the ordinary course of husbandry for a continuous period of three agricultural years immediately before the 1st day of June 1969. Explanation I to that section defines the word cultivate to include the planting and rearing of topes, gardens, orchards and plantation crops. According to Explanation 11, where any land is cultivated with plantation crops, any land occupied by any building for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same shall vest in the person who Owned it immediately before that day, subject to the conditions mentioned in that section. Section 15 deals with rights of sons admitted into possession of any land in a janmam estate by any janmi for a non-Agricultural purpose while section 16 makes provision for directions to be issued by the Government in respect of a person admitted by a janmi into possession of any land of the 2 65 description specified in section II. Section 17 relates to the rights of lessees of plantations and reads as under : S. 17. Rights of lessees of plantations.- (1)(a) Where, at any time before the appointed day the janmi has created by way of lease, rights in any lands for purposes of cultivation of plantation crops, the Govern- ment may, if in their opinion, it is in the public interest to do so, by notice given to the person concerned terminate the right with effect from such date as may be specified in the notice, not being earlier than three months from the date thereof. (b) The person whose right has been so terminated shall be entitled to compensation from the Government which shall be determined by the Board of Revenue in such manner as may be pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the soil in Malabar is denoted by the term jenmam which means birthright and the holder thereof is known as jenmi, jenmakaran or mutalalan. Until the conquest of Malabar by the Mahomedan princes of Mysore, the jenmis appear to have held their lands free from any liability to make any payment, either in money or in produce, to government and therefore until that period, such an absolute property was vested in them as was not found in any other part of the Presidency. Sir Charles Turner after noticing the various forms of transactions prevalent in Malabar stated that they pointed to an ownership of the soil as complete as was enjoyed by a freeholder in England. Subba Rao J. (as he then was), speaking for the Court, in the case of Kavalappara Kottarathil Kochuni and Others v. The State of Madras and Others(1) [1960] 3 S.C.R. 887.observed : A janmam right is the freehold interest in a property situated in Kerala. Moor in his Malabar Law and Custom describes it as a hereditary proprietorship. A janmam interest may, therefore, be described as proprietary interest of a landlord in lands , And such a janmam right is described as estate in the Constitution. It was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nure in the Madras Presidency, Second Edition, by Sundararaja Iyengar). According to Land System of British India by Baden-Powell, the holders of ryotwari pattas used to hold lands on lease from Government. The basic idea of ryotwari settlement is that every bit of land is assessed to a certain revenue and assigned a survev number for a period of years, which is usually thirty, and each occupant of such land holds it subject to his paying the land-revenue fixed on that land. But it is open to the occupant to relinquish his land or to take new land which has been relinquished by some other occupant or become otherwise available on payment of assessment. The above observations were referred to by this Court in the case of Karimbil Kunhikoman v. State of Kerala(1) [1962] 1 Supp. S.C.R. 847.lm15 and it was said : The ryot is generally called a tenant of Government but he is not a tenant from year to year and cannot be ---,ousted as long as he pays the land-revenue assessed. He has also the right to sell or mortgage or gift the land or lease it and the transferee becomes liable in his place for the revenue. Further, the lessee of a ryotwari pattadar has no rights except those con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 1885 for arrears of revenue under the Revenue Recovery Act and sold to defendant No. 3. The plaintiff. who was the janmi of the (Khanna, J.) land, had no notice of the grant of either the cowle or the patta. He asserted his right to janmabhogam in a petition presented to the Collector at the time of the sale, but the sale proceeded without reference to his claim. Suit was thereafter brought by the plaintiff to set aside the sale. It was held that the interest of the janmi did not pass by the sale. Parker, J. in the above context observed : The evidence shows that the janmis or the proprietors of the soil in Malabar have long been in the habit of leasing out the greater portion of their estates to kanomdars who are thus in the immediate occupancy of the greater part of the soil. This was the state of things at the time of Hyder's conquest (exhibit XIV), and the British Government is stated to have continued the practice of the Mysore Government in settling the assessment with these kanomdars. At the annexation of Malabar in 1799 the Government disclaimed any desire to act as the proprietor of the soil, and directed that rent should be collected from the immediate culti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These two classes of land will hereafter be referred to as 'New Holdings' and 'Old Holdings'. The Special Settlement Officer proposed- (1) to raise the existing rate of janmabhogam of 8 annas an acre on all so- called Government janmam land in estates to Re. 1 an acre for highly developed estate crops; (2) to retain the existing rate on lands cultivated with non-estate crops; and (3) to reduce it to 4 annas an acre on undeveloped lands. The Board supported the proposals (1) and (3) but recommended an increase to Re. 1 in the case of proposal (2). The Government have decided to apply the 18-3/4 per cent limit imposed in G.O. No. 924, Revenue, dated 18th June, 1924, to janmabhogam. After careful consideration the Government have decided to accept the Board's proposal to amalgamate the two items of land revenue, i.e., taram assessment and so called 'Janinabhogam' which are being collected on all so called Government janmam lands, i.e., on new holdings, and in future to collect assessment on these lands at a (Khanna, J.) consolidated rate based upon the total of the rates at which these two items of the land revenue are now being levied. In all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered and the Board in its proceedings dated June 13, 1916 expressed the opinion that the existing rule relating to relinquishment of private lands was anomalous and proposed that no relinquishment of such lands should be permitted unless the janmi surrendered also his janmam right and that until he relinquished such right, he should be res- ponsible to the Government for the payment of the assessment due on such lands. This proposal was accepted by the Government in 1917 and reiterated in 1919. It would thus appear that the relinquishment permissible in the case of janmi was of a somewhat peculiar nature inasmuch as there could be no relinquishment of janmam lands unless the janmi surrendered also his janam rights. The above right of relinquishment, in our opinion, did not have the effect of converting the janmam rights in-the lands in dispute into ryotwari estate. It is not disputed that apart from the lands in question, there are no other janmam estates in the State of Tamil Nadu (Madras). If the janmam estates in question had been converted into ryotwari estates as a result of the resettlement of 1926, there would have arisen no necessity to mention the janmam right in the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or muafi or other similar grant and in the States of Madras and Kerala, any janmam right; (ii) any land held under ryotwari settlement; (iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans; Janmam lands are covered by clause (2) (a) (i) of article 31 A. Forest area, which is part of such janmam land would like the remaining janmam lands, constitute an estate, and it would not be necessary in such a case to show that the forest land is held or let for purposes of agriculture or for purposes ancillary thereto. All lands which are part of a janmam estate of a janmi in the States of Madras and Kerala would constitute estate as mentioned in clause (2) (a) (i) of article 31A of the Constitution. As janmam lands fall under clause (2) (a) (i), it is not essential to show that the requirements of clause (2) (a) (iii) too are satisfied for such lands and it would make no difference whether forests are a part of the janmam lands. The next question which arises for consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e forests is not in furtherance of the objective of agrarian reform, and as such, is not protected by article 31A. This submission, in our opinion, is well founded. According to section 1 1 of the Act, no ryotwari patta would be issued in respect of forests in janmam estates after those estates stand transferred to the Government. There is nothing in the Act to indicate as to what would be purPose for which the said forests would be used after the transfer of janman land containing forests to the Government. All that section 16 states is that, except where the Government otherwise directs, no person admitted by a janmi into possession of any such forest shall be entitled to any rights in or remain in possession of such land. Sub-section (2) of that section specifies the directions which the Government may issue while allowing any person to remain in possession of any such land. In the absence of anything in the Act to show the purpose for which the forests are to be used by the Government, it cannot be said that the acquisition of the forests in janmam land would be for a purpose related to agrarian reform. The mere fact that the ownership of forests would stand transferred to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates in question are violative of the Constitution. As such, we strike down those provisions to that extent. Invalidity of the provisions relating to the transfer of forests would not, however, affect the validity of the other provisions of the Act as the two are distinct and severable. The last submission which has been made on behalf of the petitioner-appellants relates to section 17 of the Act regarding the rights of plantation lessees. It is stated that it would be open to the Government under the above provision to terminate by notice the right of the lessees. Such a termination of the lessee rights under the above provision, according to the submission made on ,behalf of the petitioner-appellants, would be violative of their rights under articles 14, 19 and 31 of the Constitution. It is, in our opinion not necessary to deal with this aspect of the matter. It is admitted that no notice about the termination of the lessee rights has been issued under section 17 of the Act to any of the petitioner-appellants. Indeed, the question of issuing such a notice can only arise after the Act comes into force. Even after the Act comes into force, the Government would have to apply its min ..... X X X X Extracts X X X X X X X X Extracts X X X X
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