TMI Blog1972 (4) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... , owns land in Kesargod taluk consisting of Ac. 21-00 under cocoanut, Ac. 6-00 paddy land and Ac. 34-00 dry land. He also leased out Ac. 91-00 of land to tenants. He owns jointly with his brother an arecanut garden of Ac. 5-50, cocoanut plantation of Ac. 49-00 and cashew plantation of Ac. 25-00. Writ Petition No. 133/1970 Petitioner owned lands in Kasargod taluk Ac. 9-94 in extent which has been usufructuary mortgaged for a long time. Writ Petition No. 134/1970 Petitioner is a ryotwari pattadar holding pepper garden Ac. 30-00, arecanut Ac. 45-00, rubber estate Ac. 445-00 cashew plantation Ac. 25-00, cocoanut garden Ac. 44-00 and paddy lands of Ac. 2-00, all under personal cultivation. He has also leased out Ac. 673-00 of dry land to tenants. Besides the above he cultivates as lessee Ac. 56-00 of pepper garden and owns with his brother Ac. 22-00 of pepper garden and arecanut garden etc. He also owns with other members of his family Ac. 19-00 of land set apart and used as dairy farm. Writ Petition No. 137/1970 Petitioner is a matadhipati in Kasargod taluk : extent of lands : Ac. 348-00 of paddy, Ac. 114-00 of garden land under cocoanut and arecanut, Ac. 69-00 leased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They all apprehend that the Act as it stands will affect their holdings. In the counter affidavit of the State there is a bald statement that the lands owned or held by the petitioners come within the meaning of the expression 'estate' as defined in Article 31A(2). 4. In Writ Petition 167 of 1970 there is an admission that the properties stand in the names of the petitioners' (sic) -; ryotwari pattadars. 5. In substance the complaint of the petitioners is that the ceilings fixed are arbitrary, that plantations of cashew, areca and pepper and even gardens of cocoanut cannot be acquired. The further complaint is that the Act is a composite Act intended to affect all the lands whether agricultural or not and to be used for purposes ,. some of which would not come under agrarian reform. 6. As regards the nature of the title to the lands i.e. whether they constitute estates or not within the meaning of Article 31A(2), it would be difficult to come to any conclusion with regard to lands of some of the petitioners. In the normal course of things we would expect petitioners who were faced with acquisition of their lands under statutes seemingly under the protection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst enactments of the State to divert lands from the hands of large owners for distribution among less favoured people. The density of population a substantial portion whereof is landless, coupled with the high rate of unemployment, have always been a headache to the State of Kerala. To relieve the latter evil at least partially, the State embarked upon-legislation very soon after the Reorganisation of States in 1956. The Kerala Agrarian Relations Bill was introduced in the Kerala Legislative Assembly in December 1957 and was passed by it in June 1969. Ultimately, after some modification, it received the assent of the President in January 1961 and was intituled the Kerala Agrarian Relations Act, 1960. Its object was to provide for acquisition of certain types of agricultural lands in the State beyond the specific maximum extents laid down in the statute. It was attacked on various grounds in this Court by two groups of writ petitions filed in 1961. The Act was struck down by this Court in the second group of petitions reported in Karimbil Kunhikoman v. State of Kerala [1962] Su. (1) S.C.R. 829. The ground urged relevant for our present purpose was that the Act exempted plantations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diments which arise from the agrarian structure inherited from the past in order to increase agricultural production, and to create conditions for evolving as speedily as possible in agrarian economy with a high level of efficiency and productivity (see p. 178 of the Second Five Year Plan). Even So it is recognised that some exemptions will have to be granted from the ceiling in order that production may not suffer. 11. The main factors to be taken into account to decide exemptions from the ceiling in the Second Five Year Plan at p. 196 as noted by this Court were: (1) integrated nature of operations especially where industrial and agricultural work are undertaken as a composite enterprise, (2) specialised character of operations, and (3) consideration from the aspect of agricultural production the need to ensure that efficiently managed farms which fulfil certain conditions are not broken up. 12. According to the judgment it was in pursuance of this that the Second Five Year Plan recommended exemptions from operation of ceilings of plantations like tea, coffee, and rubber, where they constitute reasonably compact areas; specialised farms engaged in (sic)catle ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he whole Act must be struck down as violative of Article 14 of the Constitution so far as it applies to ryotwari lands in those areas of the State which were transferred to it from the State of Madras.... 14. The Act was also held to be violative of Article 14 on account of the manner in which the ceiling had been fixed under Section 58. It was further held to be objectionable on the same ground because of the progressive cuts imposed on the purchase price under Section 52 and the market value under Section 64 in order to determine the compensation payable to land owners or intermediaries in one case and to persons from whom excess land was taken in another. In the result the Act was struck down in relation to its application to ryotwari lands which had come to the State of Kerala from the State of Madras. 15. However, the Legislature of Kerala passed a new Act known as the Kerala Land Reforms Act, 1963 which became Act 1 of 1964 and amended it further by Act 35 of 1969 which became effective from 1st July, 1970. Act 1 of 1964 was included in the Ninth Schedule of the Constitution receiving the protection of Article 31B. Such an immunity however did not attach to the Amending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration of the same for the market; (b) land contiguous to, or in the vicinity of, or within the boundaries of, the areas cultivated with plantation crops, not exceeding 20 per cent of the area so cultivated and reserved by the said person and fit for the expansion of such cultivation; (c) agricultural lands interspersed within the boundaries of the area cultivated by the said person with plantation crops, not exceeding such extent as may be determined by the Land Board as necessary for the protection and efficient management of such cultivation. Although not within the definition of 'plantations' cashew estates having a contiguous extent of Ac. 10-00 or more, pure pepper gardens and pure arecanut gardens having a like extent of Ac. 5-00 or more were exempted from the operation of the 1964 Act under Section 81. By the amendment in 1969 the said exemptions have been deleted from Section 81. Cocoanut gardens were never made the subject matter of any exemption. 18. The main arguments in this series of writ petitions were advanced by Mr. Chagla in Writ Petitions Nos. 117 and 167 of 1970 and Mr. Setalvad in Writ Petition No. 134 of 1970. Counsel appearing for other wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that denial of protection to cocoanut gardens is discriminatory and violative of Article 14 on the same grounds as impelled this Court to take this view in Karimbil Kunhikoman's [1962] Su 1 S.C.R. 829 case. Mr. Harindranath who appeared in Writ Petitions 132 and 133 of 1970 adopted the arguments of Messrs Chagla and Setalvad and so far as writ petitions 132 and 133 were concerned, he did not press the point as to the invalidity of Section 4-A which had been struck down by the Kerala High Court in its judgment in Narayanan Damodaran v. Narayana Pancicker 1971 Ker L J 461. (d) Mr. Chagla appearing in Writ Petition 167/1970 raised additional arguments with regard to the area of Ac. 530-00 planted with eucalyptus and Ac. 5-50 planted with teak. He contended that the timber from eucalyptus plantation was used in rayon pulp manufacture and as such the plants were grown for an industrial purpose. 20. Mr. J.B. Dadachanji contended that in considering Central and State Legislation on the same subject the pith and substance of the legislation was to be looked into. He submitted that the aim of the Rubber Act was to secure raw material for the industry and the raw material was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arecanut is generally, grown on a plantation scale and asserts that the cultivation of pepper, areca, cashew and cocoanut is in the main on holdings of less than Ac. 5-00. It appears to us that in giving exemption to pure pepper gardens and pure arecanut gardens-the word pure being used to show that the lands were being utilised substantially if not exclusively for training pepper vines and growing arecanut trees-the State recognised that these called for some protection but now the State asserts that pepper and areca are essentially homestead garden crops or that these have not reached the plantation stage. After all the State is best qualified to consider are overall aspect of the matter in relation to its economy and on the materials before us we cannot hold that the State's viewpoint is not correct . 24. With regard to cocoanut gardens, it was argued by Mr. Natesan that there was no reason to make a discrimination thereof from plantations like tea, coffee etc. He referred us to the definition of 'plantation' in Section 2(6) of the Kerala Plantations (Additional Tax) Act of 1960 under which plantation meant land used for growing one or more of the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amending Act of 1969 makes a complete departure from the above provision and imposes a ceiling limit on all persons inclusive of companies or incorporated bodies. The contention that reduction in the ceiling area fixed by the 1964 Act had to be compensated for by payment of market value of the difference between the ceiling areas fixed by the two Acts cannot be accepted inasmuch as the ceiling limit applicable to him under any law for the time being in force in Article 31A can refer only to the limit imposed by the law which fixes it and not any earlier law which is amended or repealed. 26. Further there is no substance in the contention put forward on behalf of the companies because it was open to the legislature to prescribe a ceiling for all landholders whether they were incorporated or not and merely because the 1964 Act did not touch these incorporated bodies, no objection can be taken to their being brought within the fold by the Amending Act. Section 83 as amended in the Act of 1969 imposes a ceiling area on incorporated bodies as well. Section 85 provides for the determination of lands in excess of the ceiling in certain cases and the surrender of all excess lands. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of this section- (b) a kudikidappukaran or the tenant of a kudiyiruppu shall be deemed to be a landless agricultural labourer if he does not possess any other land; and (c) Scheduled Castes and Scheduled Tribes shall include converts to Christianity from such Castes and Tribes. As a result of the amendment assignment of land is to be made not only to kudikidappukars and landless agricultural labourers but also to tenants of a kudiyiruppu who were to be deemed landless agricultural labourers if they did not possess any other land, A new Sub-section (1A) was added reading : Notwithstanding anything contained in Sub-section (1) the Land Board may, if it considers that any land vested in the Government under Section 86 or Section 87 is required for any public purpose reserve such land for such purpose. Sub-sections (2) and (3) were modified by limiting the extent of assignment of land from Ac. 5-00 to Ac. 1-00 in all cases. Sub-section(lA), it may be noted, was inserted in the Act of 1971 after the decision of the Full Bench of the Kerala High Court. 27. It was argued that although the Kerala High Court in Narayan Nair's case turned down the contention th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout agrarian reform inasmuch as any acquisition under Article 31A for any public purpose other then that falling under the expression agrarian reform cannot be considered as having the protection of that Article. 29. It was argued that the section suffers from other deficiencies. It was said that in order to secure protection of Article 31A it must be shown that the surplus lands were meant to be utilised only for agrarian reform which, broadly speaking, would include distribution of land among landless or near landless people to advance the cause of agriculture and other equitable distribution of land to diminish imbalance in society and prevent concentration of land in the hands of a few to raise the economic standards and better rural health and social conditions as was laid down in Ranjit Singh v. State of Punjab [1965]1SCR82 . Some examples cited in that case were provision for the assignment of lands to village panchayats for the use of the general community or for hospitals, schools, manure pits, tanning grounds, the settling of a body of agricultural artisans such as village carpenters, village blacksmiths etc. 30. A fair amount of argument was advanced to challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pukaran was to have subject to the provisions of the section the right to purchase the kudikidappu occupied by him and lands adjoining thereto. under Sub-section(3) the extent of the land which the kudikidappukaran was entitled to purchase under the section was to be three cents in a city or .major municipality or five cents in any other municipality or (sic) ten cents in a panchayat or township. Sections 80 B and 80 C laid down the procedure for the purchase of kudikidappukaran and the deposit of purchase price and the issue of a certificate of purchase. under Section 95 of the Act before its amendment in 1971 the Land Board constituted under the Act had, after reserving in each village the lands necessary for public purposes, to assign inter alia the holdings in which there were kudikidappukars to such kudikidappukars. There was an Explanation to the section by which a kudikidappukaran or a tenant of a kudiyiruppu was to be deemed to be a landless agricultural labourer if he did not possess any other land. The section has been amended in 1971 but the main provisions thereof including the Explanation are also in the amended Act. 34. The objections raised by the petitioner in Wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dappukars as an integral part of a scheme of agrarian reform embodied in the Act. Under the provisions of that Act, as well as under the Principal Act kudikidappukarans were entitled to 90% of the compensation in case of acquisition of land occupied by his homestead or hut. (d) The report of the Agrarian Problems Enquiry Committee, 1949 (published by the Government of Cochin) the report of the Land Policy Committee. 1950 (published by the Government of Travancore-Cochin) and the report of the Special Officer for the investigation of Land Tenures on the recommendations of the Malabar Tenancy Committee, May 1947 (published by the Madras Government) recommended measures for the protection of kudikidappukars as part and parcel of tenancy legislations. The report of the Land Policy Committee considered the question of conferment of purchase rights on kudikidappukars. The report also went to show that the kudikidappukars were originally inducted as agricultural labourers and watchmen. (e) The Kerala Land Reforms Act, 1963 (Act 1 of 1964) took within its compass certain provisions intended for the protection of the kudikidappukars as an integral part of the scheme of agrarian refo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a tenant claimed to be entitled to purchase the landlord's right in kudiyiruppu under Section 33 of the Malabar Tenancy Act (Act XIV of 1930). A similar question fell for consideration in Saimya Umma v. Kunhammad 1957 I.L.R. Ker 815. In that case it was held that a vacant site not attached to a building will not become kudiyirappu. The construction of any kind of a building on such a site will not also make it a kudiyiruppa. Reference was made to the observations of the Kerala High Court in Mariam and Ors. v. Ouseph Xavier 1971 Ker L T 707 wherein referring to the provisions for kudikidappukaran etc. it was said : The legislative perspective of this provision (Section 2(25)) will throw light on its scope and sweep. In a community, essentially agrarian, with large chunks of the population engaged in agricultural labour and accommodated by, or with the leave and licence of, the owners in tiny tenements dotting the farms and the fields where or near where they work, feudal fashion a certain special equilibrium is maintained. But the pressure of population and consequent increase in the number of shacks or kudis on the one hand and the tempting rise in the price of produce and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with a similar problem in respect of lands in municipal areas. Although no specific argument was advanced on the point it appears to us that the provisions for purchase contained in Section 80-A of the Act by kudikidappukaran of their kudikidappus for consideration less than the market value of the land when the same was below the ceiling area fixed under the Act and within the area in the personal cultivation of the landlord would be hit by the second proviso to Article 31A of the Constitution. 39. Argument was also raised that Section 83 which forbade every person from owning or holding or possessing land under mortgage in the aggregate in excess of the ceiling area was bad inasmuch as the provision made no distinction between agricultural land and other lands. This was sought to be fortified by reference to Section 81 some Sub-clause of which, it was argued, could possibly have no bearing on agricultural land. For instance, Sub-clause (k) of Section 81 (1) only exempts land belonging to or held by an industrial or commercial undertaking and set apart for use for similar purpose. That all lands belonging to or held by such an undertaking did not qualify for exemption is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural lands. So also lands comprised within a municipality specially in towns and cities cannot be styled agricultural lands because agricultural operations can be carried on there. Further the statements in the counter affidavit do not follow the provisions of Sub-sections (k) to (m) of Section 81(1). To take an example, if an industrial or commercial undertaking owns several blocks of buildings situate close to each other with some land interspersed between them, it cannot be said that these lands are agricultural lands and can only qualify for exemption only if they are notified to the District Collector and set apart for the industrial or commercial purpose of the undertaking. Similarly, a person owning a house with lands surrounding it covered by a garden or (sic) an Orchard within a municipality should not be left to the mercy of the Land Board to decide the extent of land necessary for the convenient enjoyment of the house and have the rest taken away from him. However laudable may be the object of the legislature in attempting to settle landless persons on land obtained by the Land Reforms Act, the taking away of such lands in the circumstances mentioned above either from in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of additional areas with rubber but if the State of Kerala was to take away lands which were not actually planted with rubber plaits but set apart for development of the plantation in future, there would be usurpation of the powers of the Union Legislature. It was also argued that the activities of a company engaged in the manufacture of rubber would not be purely agricultural but that there was an industrial side to it and any taking away of lands from the rubber manufacturer would affect his industry and so contravened the provisions of the Rubber Act. 43. We find ourselves unable to accept this broad proposition. However important it may be for the owner of a rubber plantation to have or held lands in the immediate vicinity of the plantation for its expansion it cannot be said that the Rubber Act gave the Union Legislature any power to direct a rubber manufacturer to increase his production by bringing any additional land under rubber plants. All that Section 17 of the Act aims at is to make it obligatory on the owner of an estate to secure a licence if he wants to plant rubber on land which does not bear it or replant rubber in portions of the land which are under it. Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar and sugar-cane could fall within Entry 52 of List I. 45. Reference was also made to the decision in State of Maharashtra v. Patilchand [1968]3SCR712 in this connection and it was submitted that taking away surplus lands which were not under cultivation of rubber did not entrench upon the field of operation of the Rubber Act of 1947. 46. Mr. Chagla also contended, apart from his submission on pepper and areca gardens which have already been noted, that a jungle was not held for agricultural purposes and could not be acquired under Article 31A(2). A jungle unless it is included within an estate consisting inter alia of lands held for agricultural purposes cannot be acquired so as to have the protection of Article 31A : if the holding or tenure in which the jungle lies consists only of jungle it cannot be so acquired. The same would hold good of dairy farms, pastures etc. 47. Lands under eucalyptus or teak which are the result of agricultural operations normally would be agricultural lands. They would certainly not be forests but the statements in the petitions seem to suggest that operations were carried hereon for the express purpose of growing these plants and trees. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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