BALMADIES PLANTATIONS LTD. & ANR. versus STATE OF TAMIL NADU

BALMADIES PLANT.£\TIONS LTD. & ANR.

STATE OF TAMIL NADU April 19, 1972

(with connected appeals)

[S. M. SIKRI, C.J., J. M. SHELAT, A. N. RAY, I. D. DUA AND H. R. KHANNA, JJ.]

Constitution of India, 1951)-Artlc/e 31A 2(a) (I) and .(111)-Estate-Fortsts In Janmam Lands-Requirement of cl. (ill) also need not be satis· fied-Agrarlan Reform-Acquisition of forests In lanmam lands-Mere transfer of ownership or augmentation of resource~ oj the State not sufficient to show object of agrarian reform.

Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (Act 24 of 1969)-Constitutionality-Resettlemenl of 1926-lf has the effect of conversion into ryotwari lands.

The appellants and the petitioners challenged the vires of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, on the ground that it was violative of articles 14, 19, and 31 of the Con-stitution. Theff case was that their lands in the Gudalur Taluk, in the State of Tamil Nadu, were prev'ously 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 tb<Se lands; that so far as the forest areas in the Jan111ani lands-in question were concern .. ed they did. not constitute "estate"; and that the acquisition of the lands was not for implementing agrarian reform• and, therefore, did not get the protection of article 31A.

HELD : that the pro\isions of s. 3 of the Act in so far as they related to the transfer of forests in Janmam estates to the government were not protected by article 3 IA. and, being violative of the Constitution had to be struck down; and that the vire.< of the Act in other respects had to be upheld. (i) The effect of the Resettlement of 1926 was to retain the lanmam estates and not to abolish the same or to convert them into ryotwari es-tates. There was merely change of nomenclature. Government Janmam land6 were caJied the new hold.ings while private Janmam lands were called the old holdings. In respect of Janmabhogam (Janmi's share) relating to government Janmam lands, the order further directed that the amount to be paid to the government should include both the taram assess-ment and Janmabhogam. It is difficult to infer from theso that Janmam rights in the lands in question were extinguished and converted into ryotwari estates. The use of the word Janmabhogam, on the contrary, indicates that the rights of .Tenmis were kept in tact. [271BJ

Kottarathil Kochuni and Others '" The State of Madras and Others, [1960] 3 S.CR. 887, Karimbil Kunhilkoman v. State of Kera/a, [1962] 1 Supp. S. C.R. 847 and Secretary of State v. Ashtamurthi, I.LR. f3 Madras 89. referred to.

The grant of right of relinquishment to Janmi would not by itself convert jt~nmam rights in the lands into ryotwari estate. [272A-Bl

Further, apart from the lands in question, there are no Janmam estates in the State of Tamil Nadu (Maclras). To hold that the Janmam rights in the lands ceased to exist after the Resettlement of 1926 would have the effect of rendering the words, in clause (2) (a) (i) of article 31A, wherein there is reference to Janmam rights in the State of Madras meaningless and without any purpose. [272·D)

(ii) As Janmam lands fall under clause (2) (a) (i) of article 31A it is not essential to snow that the requirements of clause (2)(a) (iii) too arc satisfied for such lands and it would make no difference whether forests are part of the Janmam lanes. All lands which are part of Janmam estate of Janmi in the State of Madras and Kerala would consti-tute "estate" as mentioned in Clause (2) (a) (i) of Article 3 lA. [273-E]

(iii) The 'object and general scheme of the Act is to abolish

inter-

mediaries between the state and the cultivator and to help the actual culti-c vator by giving him the status of directs relationship between himself and the Sr.le. The Act. as such. in its broad outlines, &hould be held to be measure of agrarian reform and· woulc! consequently be protected by article 3 lA of the Constitution. Therefore, it is immune from attack on the ground of bdng violative of articles 14, 19 or 31. [274-A]

. Vajraye/u Madaliar v. Special Deputy Collector, Madras & A.nr. [1965) 1 S.C.R. 614, referred to.

(iv) But, the acquisition of forests in Janmam estates is not in further-ence of the objective of agrarian reform, and, as such, is not protected by Art. 3 !A. 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 purpose related to agrarian reform. The mere fact that the ownership of forests would stand transferred. to the State would not .show that the object of the transfer is to bring about agrarian reform. Augmenting the resources of the State by itself. and in the absence of anything more re-garding the purpose or utili•ation of those resources cannot be held to be measure of agrarian reform. There is no material on the record to indicate that the transfer of forests from the Janmi to the Governmen• is linked in any way with scheme of agrarian reform or betterment of village ceremony. [274-H)

State of Uttar Pradesh v. Raia Anand Brahma, [1967] 1 S.C.R. 362, held inapplicable.

ORIGINAL/CIVIL APPELLATE JURISDICTION: Writ·Petition No. 373 of 1970.

Under Article 32 of the Constitution of India for enforcement of the Fundamental Rights with Civil Appeals Nos. 2211 and 2212 of 1970 and 85 to 91of1971.

Appeals from the judgment and decree dated October 26, 1970 of •lie Madras High Courtin Writ Petitions Nos. 64, 117, 118, 119, 120, 121, 185, 136 and 220 of 1970 respectively.

M. C. Chagla and K. Jayararn, for the petitioners (in W.P. No. 373 of 1970).

M. Natesan, Sardar Bahadur Saharya, K. Jayaram and Yougin-dra Khushalani, for the appellant (in C.A. No. 2211of1970).

M. C. Setalvad and K. J1ryaram, for the appellant (in C.A. No. 2212 of 1970).

K. liryaram, for the appellants (in C.As. Nos. 85 to 91 1971).

S. Govind Swaminathan, Advocate-General for the State of Tamil Nadu, S. Mohan, A. V. Rangam, A. Subhashini and N. S. Sivan, for the respondent (in all the matters).

The Judgment of the Court was delivered by

Khanna, J. The Gudalur Janmam Estates Abolition and Conversion into Ryotwari) Act, 1969 (Act No. 24 of 1969), hereinafter referred to as the Act, received the assent of the Pre-sident on December 6, 1969, after it had been er.acted by the legislature of the State of Tamil Nadu. It was thereafter published in the gazette on December 17, 1969. The Act extends to the Gudalur taluk of the Nilgiris district and applies to all janmam estates. It is to come into force on such date as the State Govern-ment may, by notification, appoint. This Court stayed the issue of the notification and, as such, no notification has so far been issued.Nine petitions under a,rticle 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 janniam estates but subsequently became ryotwari estates, especially afier the resettle-ment 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 Constitutipn. 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 pro-. prietor of that land besides some other land. The Company (O'Valley Estate Ltd.) has plantation on~ estate-and is engag-ed in cultivatio.n 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 gtoiind that the lands in· question were janmam estates and had retained that character till the passing of the Act. The State of Tamil Nadu also invoked the protection of article 31A of the Constitution. The nine petitions were dismissed by the Madras Hieb Court by common judgn:ent given in the petition filed by O'Va!ley Estate Ltd~ It was held that the lands were janmam estates and had not lost that character. The Act was held to be

l!ALMADIES PLANTATIONS LTD, v. TAMIL NADU

(Khanna, I.)

protected by article 3 lA of the Constitution. Civil appeals Nos. 2211 and 2212 of 1970 and Nos. 85 to 91of1971 have been filed against the above judgment of the High Court.

Writ petition No. 373 of 1970 has been filed under article 32 of the Constitution by Balmadies Plantations Ltd. and its share-holder Dayanand Bansilal Saxena challen&ing the vires of the Act N! tlie ground that it is violative of articles 14, 19 and 31 of the Constitution and is not protected by article 3 lA. According to the petitiom:r, the janmam estates which are now intended to be abolished by the Act had been converted into ryotwari estates. The purpose of the Act, it is further stated, is not to bring about agrarian reform. The petitioner company in this case had taken on lease 170.78 hectares from the Nilambur Kovilakam, the appel-lant in civil appeal No. 2211 of 1970, in the 19th century. Out of the above area, 143.22 hectares is under coffee plantation, while the rest of the land consists of forests and waste land.

The writ petition bas been resisted by the State of Tamil Nadu and the affidavit of Shri A. S. Venkataraman, Additional Secretary has been filed in opposition to the petition. The respondent has controverted the different grounds ta.ken by the petitioner.

Gudalur taluk, it may be stated, comprises 12 villages. The said taluk was origiIJ.ally part of Malabar district which now forms part of Kerala State. O'V alley village was transferred to the Nilgiris in 1873 and the other eleven villages were transferred in 1877. Or\ginally the janmis in Malabar were absolute pro-prietors of the land and did not pay land revenue. After Malabar was annexed by the British in the beginning of the 19th century, the janmis conceded the liability to pay land revenue. According to the case set up by the petitioner-appellants, there was gradual orision of the rights of janmis in the lands in q.iestion and the janmam estates becanre ryotwari estates after the resettlement of 1926. As such, the Act, it is submitted, does not apply to the lands in dispute. Before dealing with this aspect of the matter, it would be pertinent to refer to the different provisions of the Act. Sec~on 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,-· · . ·

(I ) all expressions defined in the Malabar Tenancy

Act sJiall 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 sub-section ( 4) of section 1; ( 4) "forest" includes waste or arable land, contain-ing trees, sh;-ubs or reeds.

Explanation.-A forest shall not cease to be such by reason only of the fact that, in portion thereof, trees, shrubs or reeds are felled, or lands are cultivated, or rocks, roads, tanks, rivers or the like exist;

( 6) "janmam estate" means any parcel or parcels of land included in the holding of janmi;

( 7) "janmi" means person entitled to the abso-lute proprietorship of land and includes trustee in respect thereof;

( 9) "plantation crop" means tea, coffee, rubber, cinchona or cardamom;

( 11) "tenant" means verumpattamdar as defined in sub-clause (a) of clause ( 29) of section 3 of the Malabar Tenancy Act;"

Section 3 of the Act deals with the vesting of janmam estates in Government, and reads as under :

"3. Vesting of janmam estates, etc., in Govern-ment.-With effect on and from the appointed day and save as otherwise expressly provided in this Act-

( a) the Malabar Tenancy Act, the Malabar Land Registration Act, 1895 (Tamil Nadu Act III of 1896), the Gudalur Compensation for Tenants Improvements Act, 1931 (Tamil Nadu Act XIII of 1931) and all other enactments applicable k> janmam estates as such, shall be deemed to have been repealed in their applica-tion to j anmam estates;

(b) every janmam estate including all communal

lands and porambokes, waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries, and ferries situated within the boundaries thereof shall stand transferred to the Government and vest in them free of all incum-brances, and the Tamil Nadu Revenue Recovery Act, 1864 (Tamil Nadu Act II of 1864), the Tamil Nadu Irrigation Cess Act, 1865 (Tamil Nadu Act VII qf 1865), the Tamil Nadu Cultivating Tenants Protection Act, 1955 (Tamil Nadu Act XXV of 1955), the Tamil Nadu Cultivating Tenants (Payment of Fair Rent) Act, 1956 (Tamil Nadu Act XXIV of 1956) and all other enactments applicable to ryotwari lands shall apply to the janmam estate;

( c) all rights and interests created by the janmi in or over his janmam estate before the appointed day shall as against the Government cease and determine;

(d) the Government may, after removing any obstruction that may be offered, forthwith take posses-sion of the janmam estate and all accounts, registers, pattas, muchilikas, maps, plans and other documents relating to the janmam estate which the Government may require for the administration thereof;

Provided that the Government shall not dispossess any person of any land in the janmam estate in respect of which they consider that he is prima facie entitled to ryotwari patta pending the decision of the appro-priate authority under this Act as to whether such per-son is entitled to such patta;

( e) the janmi and any other person whose rights stand transferred under clause (b) or cease and deter-mine under clause ( c) shall be entitled only to such rights and privileges as are recognised or conferred on him by or under this Act;

(f) the relationship of janmi and tenant, shall as between them, be extinguished; and

(g) any rights and privileges which may have accru-ed in the janmam estate to any person before the appoint-ed 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 1 ;ghts 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 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 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 an\l plantation crops. According to Explanation IT, where any lan<l is cultivated with plantation crops, any land occupied by any building for the purpose of or ancillary to the cultivation of such crops or the preparation of the same for the market and any waste land lying interspersed among or contignous to the planted area

upto maximum of twj:nty-five per centum of the planted area shall be con&trued to be lam! cultivated by the ianmi. Section 9 deals with lands in re&p~ct of which tenant is entitled to ryotwari patta. According to the section, every tenant shall, with effect on an\l frolll the appointed day, be entitled to ryotwllri patta in respect of tbe lands in his occupation. The right of the tenant to the ryotwari patta is subject to tlie conditions regarding cultivation mentioned in the provisos to that section. Section 10 provides that where no person is entitled to ryotwari patta in respect of land in janmam estate under section 8 or section 9 and the land vests in the Government, a· person who had bllen personally culti-vating such fand for continuous period of three agricultural years immediately before the 1st day of June 1969, shall be entitled to ryotwari patta in respect of that land. This right too is subject to conditions mentione.d in that section. According to section 11, no ryotwari patta shall be granted with respect to the following categories situated within the limits of janmam estate :

(a) forests;

(b) beds and bunds of tan!\:s and of supply, drainage, surplus or irrigation, channels;

( c) threshing floor, cattle stands, village sites, cart-tracks, roads, te'11ple sites and such other lands situated in any janmam estate as are set apart for the ,common use of the vill<1gers;

( d) rivers, streams and other porambokes.

Section 12 empowers the Settlement Officer to inquire into the claims of any person for ryotwari patta under the Act in respect of any land in janmam estate and decide in respect of which land the claim should be allowed. right of appeal against the decision of the Settlement Officer to thll Tribunal appointed under the A,ct is given by sµb-section ( 3) of section 12. The Tribunal, <\CCOrding (o section 7·, shall consist of one persoil' only who shall be <\ Judicial Officer not bel\>w the rank of Subordinate Judge. Section 13 fastens li1tbility to pay land revenue to Government on the person who becomes entitled to ryotwari patta under the Act. As regards l;>uild,i.ng, section 14 provides that with effect on and ft\)m the appointed d'.ly, the same shall vest in the person who owned it inimediately before that day, subject to tile conditions mentioned in that s.ectio11. Section 15 deals with rights of persons a,dmittfd into pos,s.esswn of any land in j3.WJ1.am estate by any janmi for non-agricultuJ"a,l purpose, while sectron 16 makes pro-visi<>n for clirectiollS to be issued by the Government in respect of person <1dinitt<ld by janmi into. IJ06Session of any land of the

(Khanna, J.)

Section 17 .relates to the

description specified in s~ction 11. Section 17 rights of lessees of plantat10ns and reads as under ·

"S. 17. Rights of lessees of p/antations.-(1) (a~ Where at any time be.fore the appointed day the 1anm1 has created by way of lease, rights in any lands for pur-poses of cultivation of plantatio~ c:ops, the . qovem-B ment may, if in their opinion, it 1s m the pubhc interest to do so, by not\ce given to the person concerned ter-minate the right with effect fr?m such . date as may be specified in the notice, not bemg 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 prescribed, having regard to the value of the right and the period for which the right was created.

( c) Where any such right is not determined under this sub-section, the transaction whereby such right was created shall be deemed to be valid and all rights and obligations arising thereunder, on or after the appointed day, shall be enforceable by or against the Government :

Provided that the transaction was not void or illegal under any law in force at the time.

(2) The Goverwnent may, if in their opinion, it is in the public interest to do so, impose reasonable res-trictions on the exercise of any right continued, under this section.

Explanation.-Any rights granted in perpetuity shall cease and determine and be dealt with under section

(3) (e) and not under this section."

Section 18 deals with the rights of certain other lessees.

Chapter IV of the Act, which contains sections 19 3nd 20, deals with survey and settlement of janmah1 estates. Chapter V,' which contains sections 21 to 30, makes provision for determina-tion and payment of compensation. As regards the Nilambur Kovilagam, one of the appellants before us, the explanation to section 22 reads as under :

"Explanation.-For the purposes of this section, the janmam estate owned by the Nilambur Kovilagam which is partly divided and partly held in common by the seve-ral tavazhis shall be construed as single janmam estate."

Amount of compensation is the subject of section 28, while section 29 relates to the determination of basic annual sum and compen-sation. The subject deal with by chapter VI, containing sections 31 to 46, is "Deposit and Apportionment of Compensation". Sections 4 7 to 50 contained in chapter VII make provision for recovery of contribution from pattadars. Chapter VIII contains the miscellaneous provisions. Section 58 makes final the orders passed by the various authorities under the Act, while section 60 confers powers on the Government to make rules for carrying out the purposes of the Act. The rules are required to be pub-lished in the gazette and to be placed on the table of both Houses of Legislature, so that the Houses may, if they so deem proper, make modificatio:i in any such rule.We may at this stage advert to janmam estate. According to Land Tenures in the Madras Presidency by S. Sundararaja Iyen-gar, Second Edition ( p. 49), the exclusive right to, and hereditary possession of the sail in Malabar is denoted by the term jenmam which means birthright and the holder thereof is known as jenmi, jenmakaran or ~111talalan. Until the conquest of Malabar by the M ahomer.lan 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 ther: as was not found in any oth~r part of the Presidency. Sir Charles Turner after noticing the various forms of transactions prevalent in Mala-bar stetted that they pointed to an ownership of the soil as complete as was enjoyed by freeholder in England. Subb~. f~ao J. (as he then was), speaking for the Court, in the case of Kavalappara Koltarathil Kochuni and Others v. The State of Madras and Others(') observed :

"A janmam right is the freehold interest in pro-perty situated in Kerala. Moor in his "Malabar Law and Custom" describes it as hereditary proprietorship. janmam interest may, therefore, be described as "pro-prietary interest of landlord in lands",. and such janmam right is described as "estate" in the Constitu-tion."

· It was held that the proprietor called janmi could create many subordinate interests or tenures like lease or mortgage in janmam estate. It is not, however, necessary to dilate upon the matter as janmam estate has been defined in clause (6) of section 2 of the Act to mean any parcel or parcels of land included in the holding of janmi. Janmi, according to clause (7) of the said section, means person entitled to the absolute proprietorship of land and includes trustee in respect thereof.

Ryotwari or kulwar system was first introduced intO the British possessions by Col. Read in 1792. When the Baramahal and Saleem were ceded to the British by Tippu, Lord Cornwallis spe-cially deputed Col. Read for their settlement. The prevailing system of land revenue settlement at the time was the permanent settlement. Col. Read, however, deemed it prudent to enter into temporary settlements with the actual cultivators and this gave rise to new system since designated ryotwari or kulwar system. The system introduced by Col. Read embraced the survey of every holding in the district and field assessment based on the productive powers of the soil. The ryot was not regarded as the proprietor of the soil but only as cultivating tenant from whom was to be exacted by . government all that the he could afford. Certain objectionable features of the ryotwari system were then noticed, and an effort was made to eliminate those objectionable features. The ryotwari system in force at present means the divi-sion of all arable land, whether cultivated or waste, into blqcks, the assessment of each block at fixed rate for term of years and tfo exaction of revenue from each occupant according to the area of land thus assessed. That area may remain either cons-tant or may be varied from year to year at the occupant's pleasure by the relinquishment of old blocks or the occupation of new ones. This distinguishing feature of this system is that the state is brought into direct contact with the occupant of land and col-lects its revenue through its own servants without the intervention of an intermediate agent such as the Zemindar. All the' inco1'Je derived from extended cultivation goes to the state. Ryotwari lands are known as taraf lands in the Tanjore District, and as ayan, sirkar, koru, or government lands in· the other parts of the Presidency (see pages 152 and 153 of Land Tenure 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 certain revenue and assigned survey number for period of years. which is usually thirty, and each occupant of such land holds it subject to his paying the Jand-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 pay-ment of assessment. The above observations were referred to bv this Court in the case of Karimbil Kunhikoman v. State of Kerala([1]) and it was said:

"The ryot is generally called ii tenant of Government but he is not tenant from year to year and cannot be ___ ousted as long as he pays the land-revenue assessed. He (1) [1962] 1 Supp S.c.R.847.

has also the right to sell or mortgage or gift the land or lease it and the transfree becomes liable in his place for the revenue. Further, the lessee of ryotwari pattadar has no rights except those conferred under the lease and is generally sub-te.nant at-will liable to eject-ment at the end of each year. In the Manual of Administration as quoted by Baden-Powell, in Vol. III of Land Systems of J:jritish India at p. 129, the ryotwari tenure is summarised as that "of tenant of the State enjoying tenant-right which can be inherited, sold, or burdened for debt in precisely the same manner as pro-prietary right subject always to the payment of the reve-nue due to the State". Though therefore the ryotwari ;;attadar is virtually like proprietor and has many of the' advantages of such proprietor, he could still relin-quish or abandon his land in favour of the government. It is because of this position that the ryotwari pattadar was never considered proprietor of the land under his patta, though he hdd many of the advantages of pro-prietor ."This Court held in the above case that the land held by ryotwari pattadars in the area which came to the State of Kerala by virtue of the States Reorganization Act from the State of Madras were not 'estates' within the meaning of article 31A(2). of the Constitu-tion. Subsequent to that decision, clause (2) of article 31A was amended by the Constitution (Seventeenth Amendment)· Act, 1964. As result of that amendment, 'estate' would also include any land held under ryotwari settlement.

Let us now go into the question as to whether the janmam

rights in the lands in question have been converted into ryotwari estate. We are concerned in the present case with the settlement of 1886 and resettlement of 1926. In connection with the settle-ment of 1886, G.O. 741 Revenue dated August 27, 1886 was issued and its main purpose was to settle the lands which had been escheated to the Government and to collect revenue for the State. An attempt was then made to have direct dealing with the cultiva-tors without notice to the janmi. This act of the State was held to be against law by Division Bench of the ·Madras High Court in the case of Secretary of Stqte v. Ashtamurthi('). In that case the Collector of Malabar let defendant No. 2 into possession of certain waste land in 1869 under cowle, and in 1872 granted to him patta for it. The cowledar then brought the land under cultivation b11t subsequently left it uncultivated and failed to pay the assessed revenue. The land was consequently attached in 1885 for arrears of revenue under th~ Revenue Recovery Act and sold to defendant No. 3. The plaintiff. who was the janmi of the

BALMADIES PLANTATIONS LTD. V. TAMIL NADU (Khanna, J.)

land, had no notice of, the grant of either the cowle or the patta. He asserted his right to janmabhogam in 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 plain-tiff 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 observ· ed:

"The evidence shows that the janmis or the proprie-tors of the soil in Malabar have long been in the habit of leasing out the greater portion of their estates to kanomdars wh(} are thus in the immediate occupancy of the greater part of the soil. This was the state of things at the time of Ryder's conquest (exhibit XIV), and the British Government is stated to have continued the prac-tice 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 cultivators, Trimbak Ranu v. Nana Bhavani(') and Secretary of State v. Vira Rayan ('), thus limiting its claim to revenue. Further, in their despatch of 17th December 1813 relating to the settlement of Malabar the Directors observed that in Malabar they bad no property in the land to confer, with the exception of some forfeited estates. This may be regarded as an 1bsolute disclaimer by the Government of the day of any proprietary'right in the janmis' estate, and is hardly consistent with the right of letting in tenant which is certainly an exercise of proprietary right."

On account of the above decision, the Madras Government reconsidered the matter and in 1896 the Malabar Land Registra-tion Act (Act 3 of 1896) was enacted. The object of that Act wou!J be clear from its preamble which reads :

"WHEREAS Regulation XXVI of 1802 prov10es that landed property paying revenue to Government shall be registered by the Collector; and whereas such landed property in certain areas in the Nilgiri district · has in many cases not been registered in the names of the pro-prietors thereof; and whereas it is desirable for the secu-rity. of the public revenue to provide summary means whereby the .Collector may ascertain such proprietors; It is hereby enacted as follows."

According to section 13 of the above Act every person registered as proprietor of an estate shall be deemed to be the landholder in (1) 12 Born. H.C.R. 144: (2) I.L.R. 9 Mad.175.'

respect of such estate within the meaning and for the purposes of the Madras Revenue Recovery Act II of 1864. The janmam rights in the lands in dispute thus remained intact. . The st~d taken on behalf of the petitioner-appellant, as ment10ned earher, is that the janmam rights in the lands in dispute were converted into ryotwari estate as result of resettlement of 1926. Govern-ment order No. 1902 Revenue dated November l, 19~6 was issued in this connection. Para 3 of that order deals with the janmam estates and reads as under :

"3. JANMABHOGAM :-Paragraph 11 of the Board's Proceedings-Lands have hitherto been describ-ed as-

(a) Government Janmam, i.e. lands which are held directly from the Government and on which taram assessment and janmabhogam are paid to the Govern-ment and

(b) private janmam, i.e. lands wlich are held directly from the Government and on which taram assessment but not janmabhogam is paid to the Gov-ernment.

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 (I ) and ( 3) but recommended an increase to Re. 1 in the case of pro-posal ( 2). The Government have decided to apply the I Si per cent limit imposed in G.O. No. 924, Reve-nue, 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 'lanmabhogam' 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

BALMADIES PLANTATIONS LTD. V. TAMIL NADU (Khanna, !.)

consolidated rate based UPon the total of the rates at which these two items of the land revenue are now being levied. In all the figures quoted in the Appendix to this order concerning these lands the revised rate given is this consolidated rate."

It would appear from the above that the effect of the resettlement of 1926 was to retain the janmam estates and not to abolish the same or to convert them into ryotwari estates. There was merely change of nomenclature. Government janmam lands were called the new holdings, while private janmam lands were called the old holdings; In respect of janmabhogam ( Janmi's share) relating to Government janmam lands, the order further directed that the amount to be paid to the Government should include both the taram assessment and janmabhogam. It is difficult, in our opinion, to infer from the above that janmam rights in the lands · in question were extinguished and converted into ryotwari estates. The use of the word 'janmabhogam' on the contrary indicates that the rights of janmis were kept intact. It has been argued on behalf of the petitioner-appellants that the grant of right of relinquishment to janmis had the effect of obliterating the distinction between janmam estate and ryotwari estate. The janmam rights, according to the submission, were thus converted into ryotwari estate. In this connection we find that the Government order No. 1902 dated November 1, 1926 shows that question was raised as to whether janmi of private janmam land could claim exemption from assessment by leaving cultivable lands waste. The Board of Revenue recommended that exemption should not be granted unless the janmi pattadar relinquished his whole right, title and interest. The Government, however, considered that having regard to the practice of exempt-ing unoccupied janmam lands from assessment the janmi shculd not be required to pay assessment on lands the cultivation of which was to cease. In 1896 system was introduced, according to which janmi could give notice of relinquishment without giving up his janmam rights over the-land and claim remission of assess-ment on the relinquished land if it was not taken up for cultiva-tion in the following year. The Board of Revenue in proceedings dated October 16, 1897 pointed out that this was in effect rever-G sion to the old system of charging all cultivation with all its atten-dant evils of corruption, loss of revenue and unnecessary labour in inspection. The matter was thereafter further considered and the Board in its proceedings dated June 13, 1916 expressed the opinion that the existing rule relating to relinquishment of private lands l"Jas 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 reiterate<\ in l 919. lt would thus appear that the relinquishment permissible in the case of janmi was _of a. somewhat peculiar nature inasmuch as there could be no re!m9mshme.nt of janmam lands unless the janmi surre.ndered al~o. his ia.nam nghts. The above right of relinquishment, m our opm10n, did. not. have the effect of converting the janmam rights in the lands m 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 result of the resettlement of 1926, there would have arisen no necessity to mention the janmam right in the State of Madras in clause (2) (a) (i) of article 31A of the Constitution. The fact that in addition to the janmam right in the State of Kerala, the janmam right in the State of Madras was also men-tioned in clause (2) (a) (i) of article 31A as result of amend-ment, shows that the janmam rights in the lands in question were assumed by the legislature to be in existence. To hold that the janmam rights in the lands in question ceased to exist after the resettlement of 1926 wo1.1ld have the effect of rendering the words, wherein there is reference to janmam right in the State of Madras ifi clause (2)(a)(i) of article 31A, to be meaningless and with-out any purpose.

To hold that the

Reference has been made on behalf of the petitioner-appellants to the Full Bench case of Sukapuram Sabhayogam v. State of Kem/a(') wherein it was held that person would cease to be pro;:irietor of soil if he gets right or is under an obligation to relinquish or abandon the land. The above case related to the plains of Malabar, while we are concerned with the hilly tracts of Gudalur taluk. In the cited case pattas and. Adanoal recristers were produced in the court and the State accepted th~ authe~ticitv of those documents. In the cases before us, no patta was pro-duced by the petitioner-appellants either in the High Court or in this Court. In view of the above, we are of the opinion that the facts of the Full Bench case are distinguishable. In any case, we are unable to subscribe to the proposition that the rir,ht of relin-qui5hment of janmam rights of janmi would by itself convert janmam rights into ryotwari estate.

Argument has also been advanced on behalf of the petitioner-appellants that so far a> the forest areas in the janmam lands in question are concerned, they do not constitute estate unless they are held or let for purpose~ of agriculture or for purposes ancil-lary .thereto, as contemplated by clause (2)(a) (iii) of article 31A of tbe Constitution. This fOntention, in our opinion, is devoid of

force. Sub-clause (a) of clause (2) of article 31A reads as under:

"(2) In this article,-

( a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its equivalent has in the existing Jaw relating to land tenures in force in that area and shall also include-

( i) any jagir, inam 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 cul-tivators of land, agricultural labourers and village artisans;"

Janmam lands are covered by clause (2) (a) (i) of article 31A. 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 case to show that the forest land is hllld or let · for purposes of agriculture or for purposes a:1cillary thereto. Alt lands which are part of janmam estate of janmi in the States of Madras and Kerala would constitute estate as mentioned in clause (2) (a) (i) of article 31A of the C9nstitution. As janmam lands fall under clause ( 2 )(a)( i), it is not essential to show that the req•1irements of clause (2)(a) (iii) too are satisfied for such lands and it would make no difference whether forests are part -of the janmam lands.

The next question which arises for consideration is whether the acquisition of the lands in question i~ for agrarian reform. It is well established that in order to invoke the protection of article 3 lA, it has to be shown that the acquisition of the estate was with u view to implement agrarian reform. The said article is confined only to agrarian reform and its provisions would apply only to law made for the acquisition by the State of any rights therein or for extinguishment or modification of such rights if such acquisi-tion, extinguishment or modification is connected with agrarian reform [see P. Vajravelu Mudaliar v. Special Deputy Co/!ector, Madras & Anr.(')l.We have referred in the earlier part of this judgment to the various provisions of the Act, and it is manifest from their perusal that the object and general scheme of the Act is to abolish inter-mediaries between the State and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the State. The Act, as such, in its broac! outlines should be held to be measure of agrarian reform and would consequently be protected by article 3 lA of the Constitu-tion. The said article provides that notwithstanding anything contained in aricle 13, no law providing for the acquisition by the State· of any estate or of any rights therein or the extinguishment or modification of any such right shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31, provided that where such law is law made by the Legislature of State, the provisions of article 3 lA shall not apply thereto unless such law, having been reserved for the consideration of the Presi-dent, has received his assent. The impugned Act, as stated earlier, received the assent of tbs President on December 6, 1969. As the Act is protected by article 31A of the Constitution, it is immune from attack on the ground of being violative of article 14, article 19 or article -31. This fact would not, however, stand in the way of the court examining the constitutional validity of any particular provision of the Act . It has been s~~mitt.ed on behalf of the appellants that whatever might ~ t~e pos1tJon m respect of other j:rnmam lands, so far as forests ~ 1ann;iam estates are concerned, the acquisition of those forests 1s not. m furtheranee of the objective of agrarian reform, and as such, 1s not protected by article 3 lA. This submission in our opinion, is well founded. According to section 11 of the Act no ryotwari patta would be issued in respect of forests in janma~ estates after those estates stand transferred to the Government. There is nothing in the Act to indicate as to what would be pur-pose for which the said forests would be used after the transfer of janman land containing forests to the Government. All that sec-tion 16 states is that, except where the Government otherwise directs. no· person admitted by 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 1 emain in possession of any such land. Jn the absence of any-thing 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 purpose related to agrarian reform. The mere fact that the ownership of forests would stand transferred to the State would not show that the object of the transfer is to bring about agrarian reform. Augmenting the

(Khanna, I.)

resou;ces of the State by itself a.nd in the absence of anything more r~garding the purpose of utilisation of those resources, can-not be held to be measure of agrarian reform. There is no material on the record to indicate that the transfer of forests from the janmi to the Government is linked in any way with i. scheme of agrarian reform or betterment of village economy.

Learned Advocate General has referred to the case of State of Uttar P.radesh v. Raja Anand Brahma Shah(1). In that case all the estates in Pargana, including the forests, were acquired by the State of Uttar Pradesh under the U.P. Zamindari Abolition and Land Reforms Act. Objection was taken to the acquisition of forests on the ground that it was not for the purpose of agrarian reform. Repelling the objection, this Court observed :

"Mr. A. K. Sen further urges that the acquisitibn of the estate was not for the purposes of agrarian re-forms because hundreds of square miles of forest are sought to be acquired. But as we have held that the area in dispute is grant in the nature of Jagir or inam, its acquisition like the acquisition of all Jagirs, inams, or similar grants, was necessary step in the implemen-tation of the agrarian reforms and was clearly contem-plated in article 3 IA." Ii would appear from the above that the Court in that case was· dealing with the acquisition of an estate wthich was in the nature of Jagir, inam or similar grant, and it was found that the said acquisition was necessary step in the implementation of agrarian reform. We are, in the cases before us, not concerned with Jagir, inam or other grant, and so far as the forests in question are concerned, it has already -been observed that theL acquisition is not in any way related to agrarian reform. As such, the respon-d~nt State, in our '1iew, cannot get much assistance from the cited case.

We, therefore, hold that the acquisition of the forests on the janmam land is not protected by article 3 IA. It has not been shewn to us that if the protection of article 3 IA is taken off, the acquisition of forests can otherwise be justified. We, therefore, are of the view that the provisions of section 3 of the Act in so far as they relate to the transfer of forests in the janmam estates 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 peti-tioner-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 termination of the lessee rights under the above provision, according to the submission made OP behalf of the petitioner-appellants, would tie 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 ;matier. 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 petitio-ner-appellants. Indeed, the question of issuing such notice can only arise after the Act comes into force. Even after the Act comes into force, the Government would have to apply its mind to the question as to whether in its opinion it 1s in public interest to terminate the rights of the plantation lessees. Till such time as such notice is given, the matter is purely of an academic nature. In case the Government decides not to terminate the lease of the plantation lessees, any discussio'l in the matter would be an exercise in futility. If, on the contrary, actiori is taken by the Government under section 17 in respect of any lease of land for purposes of the cultivation or plantation crop, the aggrieved party can approach the court for appropriate relief.As result of the above, we uphold the vires of the Act, except in one respect. The provisions of section 3 in so far as they relate to the transfer of forests in jan_mam estates tQ the Government are not protected by article 31 and being violative of the Constitution are struck down. The appeals and writ peti-tion are disposed of accordingly. The parties, in the circums-tances, are left to bear their own costs throughout.

Appeals and petition allowed in part