MALANKARA RUBBER AND PRODUCE CO., & ORS. ETC . versus STATE OF KERALA & ORS. ETC. ETC.

MALANKARA RUBBER AND PRODUCE CO., & OR'!. ETC . . ETC.

STATE OF KERALA & ORS. ETC. ETC.

A?ril 28, 1972

[S. M. S!KRI, C.J., J.M. SHELAT, I. D. DUA, H. R. KHANNA AND G. K. MnTER, JJ.J

Kera/a Land Reforms Act 1964 as amended in 1969 and 1971-Validity oj sub-section (lA) of s. 96-Public purpose in sub-section (lA) whether can be read down as public purpose connected with agrarian Te1orm-Provisions relating to kudik1dippukars whether covered by expres-sion 'agrarian reform'-Reduction of ceiling by amending Act without payment of compensarzon at market value-Validity-Act whether discri-mittatory is not granting exemption to pepper and areca plantations and cashewnut and cocoanut gardens-Whether offends Art. 14 of Constitution of India-Validity of provisions relating to Rubber plantations-Forests, dairy farms, lands under teak and eucalyp.·us trees whether exempted under Act.

The Kerala Land R<&forms Act 1 of 1964 was included in the Ninth Schedule and was protected by A't. 3l·B of the Constitut'on. The Act was amended by the Kerala Land Reforms (Amendment) Act, 1969. The amending Act was not included in the Ninth Schedule and therefore it could claim protection ""ty under Art. 3 !A. The validity of the amended Act was considered by the Kerala High Court in Narayan Nair v. State, (A.I.R. I 971 Kerala 98). The High Court, inter alia, held that the lands in question were 'estates' within the meaning of Art. 3 lA, and that the reference ih s. 96 to reservation of acquired land. for 'public purpose' must be read down to mean pubiic pu.rpose connected with agrarian reform, and so read the Act as whole Was protected by Art. 31A though po-tioTls failed for wint of that protec1ion. After this judgment the Kerala legislature by further amendmetrt added sub-s. (IA) to s. 96 and provided therein that "Notwithstancl:ing anything contained in sub-s. (1) the Land Board may, if it cons'dered that any land vested in the Government under sec'ion 86 and section 87 is required for any public pucpose, reserve such land for such pwpose". The prrsent petitions challenging various prov;sions of the Ac:t as amended were filed under Art. 32 of the Constitution. HELD : (i) It was for the pet;lfoneri: to establish that the lands· heh] by them and mentioned in the petitions were not 'estates' so that they could be out of the purview of the Act: It was all the more neressary for them to do so in view of the cate~oical findings of the Full Bench of the Kerala High Court in bara~raoh 5 and 99 of the judgment is Narayan Nair's case. In the absence of material in the petitions lo show prima fade that the lands of the petit;oners were not estates it could not be held that the pelit'oners were. not affected by the Kerala Land Reforms Act of 1964 as amended in 1969. In any event, so far as the orovisions of the 1964 Act a·e concerned the same could not be challenged U"der Art. 31 hv reason of its inclu.'on in the Ninth Schedule to the Constitu-tion. [426E-FJ

(iil The redu~tion of the ceilin~ Jim·t hy the Amendin~ Act of 1969 does not attract the operation of the second proviso tn Art. 31 A(l) [426-GJ

The co,,itentio1 that rednctio11 in the ceili11g area fbced bv the 1 '.J64 Art had to be comoensa·ed for bv payment of market value of the difference between the ceiling ?.reas fixed by the two Acts could not be

accepted inasmuch as the "cciling Wnit applicable to him under 1111)' law for the time being in force in Art. 31 A" can refer only to the limit im• po6ed by the law which fixes it a.ildi not any ear11er Jaw which is amended and repealed. 14130]

lt was open to the legislature to prescribe ceiling for all landholders whother they are incorporated or not, and merely because the 1964 Act did not. touch these in co. porated bodies, no objection can be taken to their being brought within the fold by the Amending Act. [413H-414Bl

(iii) Section 96(1A) is no donbt couched is too general and wide lan&uage ot including public purpose wh.ch would not be those falling withtn the expression 'agrarian reform'. The fact however that the legis-lature has once again used tbe same general language in spite of t.1e interpretation gi\i:n by the High Court in Narayan Nair's case need ncit lead us to st. ike down wholly the sub-section. ln accordance with lho well recognised canon of construction adopted in number of cases decided by tnis Court the sub-section must l>e read down to mean only reservation of the land for such public purposes as would bring about agrarian reform inasmuch as any .icquistion under Art. 31-A for any public purpose other than that falling under the expression "agrarian re-form" cannot be conaidered as having the protection of that Article. [415-H-4160]

Ranjit Singh v. State of Punjab, [1965] 1 S.C.R. 82, referred to.

The provisioo for settlement of tenants of kudikidippukars in small holdings would be covered by agrarian reform or purposes ancillary thereto. The problem of the kud kid:ppukars has always been intimately ,connected with a.gricultural land and can legitimately come within "agrarian reform". Historically they were allowed to come on to the land because of the needs of an agricultural population and any scheme which envisages '.be improvement of their lot and grant of permanent rights to them wou'li not transgress the limits of agrarian reform. This principle however onlv relates to lands in panchayat areas and kudikidappukars etc. on them.. The provisions for purchase contained in s. 80A of the Act by kudikidappukaran of their kudikidappus for consideration less than the marke• value of the land when the same was be'ow the ceiling area fixed under the Act and within the area of the personal cultivat;on of the landlo•d would be h;t by the second !?fOViso to Art. 31-A of. the Con-stitution. (42JH-422C]

Armuehq Konar v. Sanku Muthammal, A.LR. 1950 M'dras 4S7, Saimva Umma v. K"•hamm,.,/, I. L. R. 119571 Kerala 815 and Mariam cfc Ors; v. Ouseph Xavier, 1971 K.L.T. 707, referred to.

(iv) Lands which are interspersed between sites of commercial under-. takinl!S and house-sitO'l in mu»icipal'1ies w'!lb lands surround;n~ them arc not agricultural lands fit for acquisition under the Act. [42701

surround;n~ them

(v) The provisions of the Act withd·awing protect'on to pei>oer and area olan•afon could not be chaJJen~en under Art. 14 if the lands were estates within the rneaning of Art. 31A(2)(a). (426Hl

(vi) '(he Act was not discriminaitory with regard to cashew and ~'0-coanut gardens. [426H]

(viil The ·withd•awal df exem'>tio'l from lands conti<ruous to rnhhc:r plan'afons by the Amending Act of 1964 could not be challenged. (427Al

However imnortan• it mav be fo• the owner of the rubber plantation ·to have or hold lands in the immediate vicinity of the plantarion for ill

expansion i't cannot be said that the Rubber Act gave t:ie Unioo Lcgisla. ture any power to direct rubber manafacturer to increase his producUoQ by brin&ing any additional land under rubber planis. All that s. 17 ot' the Act wms at is to make it obi. gatory on the owner· of an estate to secure licence if he wants to plant rubber on land which does not bear it or replant rubber in the J)()rtions: of the land wh.ch are under it. Further although it was the function of the Rubber Board under s. 8 to take measures for the development of the nibber industry, it did not appear that the expansion of rubber plantation or guidance m that direcuon by the Board was contemplatecl under the section. [424 G-425 AlTika Ramii & Ors. etc. v. The State of Uttar Pradesh.and Ors., [1956) S.C.R. 393 and State of Maharashtra v. Patilchallli, [1968] 3 S.C.R. 712, referred to.

(vii:) Forest lands and jungles would be exempt from the operation of the Act jungle unless it is included within an estate consisting inter al<a of lands held for ag icultural purpose• cannot be acquired so as to have the protection of Art. 3 IA : if the holding or tenure in which tho jungle lies cons:sts o'IY of jungle it ca1mot be so acquired. The same private forests are specially exempted from acquisition under the Act.] [426B-CJ

(ix) Lands under eucalyptus or teak which are the result of agricul-tural operafo'S normally would be agric1tltural lands and therefore wowd be exempt uoder the provisions of the Act. However lands which are co>-ered by eucalyptus or teak growing spontaneouslv as in jungle or forest woulcl be outside the purview of a.cquisition [426 DJ

ORIGINAL JURISDICTION: Writ Pe:titions Nos. 117, 132 to 134, 149, 167, 168, 209 and 516 of 197().

Under article 32 of the Constitution of India for enforcement of the Fundamental Rights.

M. C. Chag/a, Joy h~eph B. Datta, I. B. Dad'lcha.,ji; 0. C.

Ma[1]hur and Ravinder Narain, for the petitioner (in W.P. No. 117 Of 1970).

K. T. H'lrindranath, B. Datta, J.B. Dadach'lnji, 0. C. Mathur and Ravinder Narain, for the petitioner (in W.Ps. Nos. 132 and 133 of 1970).

M. C. Seta/vad K. T. H'lrinrfrannth, K. R. Namblar, B. Datta,

J.B. Dadacha.,ji, 0. C. Mnthur ~nd Ravinder Narain., for the peti-tioner (in W.P. No. 134 of 1970).

M; Naresan, Fazee Mahmood, P. C. Chandi, A. T. M. Sammth

and E. C. Agrawala, for the petitioner (in W.P. No. 149 of 1970).

M. C. Chagla, B. Da•ta, J. B. Dadachnnji. 0. M'>th11r •nd

7?.avinier Narain, for the p~ti'ioners (in W.P. No. 167 of 1970).

I. B. Dadacha~ii, 0. C. Mnthur and Ravind•r Narain and S.

Swarup, for the petitioner (in W.P. No. 168of1970).

A. V. V. Nair, for the pe'itioner (in W.P. N-,, 516 of 1970).

. K. 1'.· H'lrindranath ·•nd A. Sreedhartm Nambiar, for the )lld-tioner (tn W.P. No. 516 of 1970). .

M. M. Abdul Khader, Advocate- General for the Sta:te of

Kerala, M. M. K. Nair and Varghese Kaliath, for the respondent

(Sta.e of Kerala) (in all 1he petitions).

B. Sen and R. N. Sachthe,v, for respoJldent No. 2 (in W.P. No.

117 of 1970).

R. N. Sachthey, for respondent No. Z (in W.Ps. Nos. 132 to

134 and 149 of 1970).

K. N. Bhat and K. L. Hathi, for respondents Nos. 3 to 6 (in

W.P. No. 133 of 1970).

The Judgment of the Court was delivered by

Mitter, J.-This is group of nine writ petitions challenging the vires of the Kerala Land Refroms Act, 1963 (Act I of 1964) as amended by the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) with the object of preventing the State from acquiring lands in the possession of the petitioners in excess of the ceilings imposed thereunder.

The details of the holdings of the petitioners are briefly as follows:--

Writ Petition No. 117 /1970

Petitioner company owns block of land Ac. 2313-00 in extent out of which Ac. 1818-00 were planted with rubber·trees, Ac. 30-00 with pepper, Ac. 5-50 with arecanut, Ac. 260--00 under cocoanut, Ac. 12-50 under paddy, Ac. 25--00 under nutmeg and fruit trees, the rest being jungle and waste.

Writ Petition No. 132/70

Petitioner, citizen, 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 Ire. 91--00 of land to tenams. 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 .l'etition No. 133/1970

Petitioner owned lands in Kasargod taluk Ac. 9-94 in extent which has been usufructuarily mortgaged for long time.

Writ Petition No. 134/1970

Petitioner is ryotwari pattadar holding pepper garden Ac. 30-00, arecanut Ac. 45-00, rnbber estate A~. 445--00 cashew plantation Ac. 25-· 00, cocoanut garden Ac. ·l4-00 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 ofland set apart and used as dairy farm.

Writ Petition No. 137I1970

Petitioner is matadhipati in Kasargod taluk : extent of lands : Ac. 348-00 of paddy, Ac. 114-00 of garden land under cocoa· nut and arecanut, Ac. 69-00 leased out to tenants and Ac. 219-00 of dry land bearing cashe:w etc. are also leased out.

Writ Pe1tition No. 149/1970

The two petitioners owned Ac. 95-00 of land in District of Trichur. They also own~d Ac. 58-00 in village Azhikode and Ac. 154-00 in village Kadappuram and all the lands are used for cocoanut plantation. It is stated in paragraph 2 pf the petition that the petitioners have employed large number of kudikiddap-. pukarans either as watchmen or workers to look after the lands.

Writ Petition No. 167/1970

Petitioner is Private Limited Company and petitioner No. 2 is director and shareholder. Petitioner owns rubber nlantations of Ac. 22-00, cashew Ac. 65-00, pepper Ac. 16--00, arecanut Ac. 58-00. cocoanut Ac. 13-00, paddy land Ac. 5-50. carda-mom Ac. 305-00. cocoanut Ac. 5-50, teak Ac. 36-00, euca-E lyptus Ac. 530-00.

Writ Petition No. 168/1970

Petitioner owns Ac. 3888-00 of which Ac. 3000-00 are private fotest and Ac. 400..-00 under rubber. There are also cocoanut gardens, arecanut gardens, teak and eucalyptus planta· tions.

Writ Petition No. 207/1970

Petitioner owns lands in Kasargod taluk in excess of the ceiling area.

Writ Petition No. 516/1970

The petitioner owns Ac. 2-69 of land out of wh:ch Ac. 1-21 is his residential compaund containing several buildings He also owns Ac. 1-84 of paddy land in his direct possession besides few tenants holding oropertv under him. In the said land of Ac. 2-69 there are. nine kudikidippukars (respondents 3 to 11) to each of whom he will hav" to tr•n~fer 10 cents of land if s. 80-A of the Act is enforced. The buildings occupied by these res· pondents do not lie close to one another but are spread all over the property and parcelling out 10 cents of land to each of them

in terms of the provisions of the Act with valuable cocoanut trees will destroy the utility of the petitiener's property permanently. According to the petition the Act in so far as it makes provision for the compulsorv transfer of lands under the petitioner's personal cultivo.ti9n to ku<likidippukar is not law of acquisition within the meanin11; of Art. 31-A and as such is not entitled to pro ection under that Article. The petition however shows that the lands are situate in panchayat area.

Most of the petitioners do not 11;ive any indication of their title to the lands which are the subject matter of the petitions. They all apprehend tliat t~ Act as it stands will affect their holdings. In the counter affidavit of the State there is bald statement that the lands owned or held by the petitioners come within the meaning of the expression 'estate' as defined in Art 31-A(2).

In Writ Petition 167 of 1970 there is an. admission that the properties stand in the names of the petitionerr;:J ryotwari pattadars.

In substance the complaint of' the petitioners is that the ceilings fixe i 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 composite Act intended to affect all the lands whether agricultural or not and to be used for purooses,, some of which would not come under agrarian reform.

_As regards the nature of the title to the lands i.e. whether they constitute estates or not within the meaning of Art. 31-A(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 Art. 31-A to state clearly why their holdings were not estates so as to be · without the State's power of acquisition for the purpose of a~arian reform. This series of petitiom was heard after the disposal of various applications under Art. 226 of the Constitution disposed of by Full Bench of the Kerala High Court. It is worthy of note that in paragraph 5 of that judgment of the Chief Justice con-curred in by anmher learned Judge, the opening sentence runs :

"The lands held by the several petitioners are undis-putablv estates within the meaning of Art. 31-A of the Constitution."

The third learned Judge who delivered separate judgmem stated in paragrap,h 99 ·that

"the lands involved in these petitions are estates within the meaning of Art. 31-A has been practically admitted by counsel appearing in these cases."

We may aiS9 note that in Purushothaman NambwlTi v. The State of Kerala([1]) this Court came to the conclusion that Pandaravaka Verumpattomdars and Puravaka tenures which were originally situate within the erstwhile State of Cochin but came to form part of the Kerala State were estates within the meaning of the ei.pres-sion used in Art. 31-A(2)(a).

Lands which are held or let for the purpose of agriculture--as undoubtedly most of these lands are, being covered with rubber, coffee etc., if held under single tenure which could be said lo-be equivalent to an estate-would come under Art. 3 l-A(2)(iii), but waste lands, forest lands, land for pastures or sites of buildings and other structures occupied by cultivators of land etc. would only be out of the purview of Art. 31-A(2) if th.ey are held on indepen-dent tenures anc\ are not parts of land held or let for purposes of al(riculture or for purposes ancillarv thereto. This is the result of the C:·~cision of this Court in U.P. State v. Raja Anand(2). In that case it was held that in the case of gran of the nature of jagir or inam its acquisition for the purpose of agrarian reform would be protected under Art. 31-A in spite of the fact that hund-D reds of square miles of forest land were comprised therein. The Court also held that forest lands, or waste lands etc. would not be deemed to be estates, within cl. (iii){2) of Art. 31-A unless the same were held or let for purposes anciliary to agriculture.The impuened Ac•s are not the first enactments of the State to divert lands from the hands of large owners for distribution among less favoured people. The densitv of population substantial portion whereof is landless, coupled with the high rate of un-emplovment. have always been headache to the S'ate of Kerala. To relieve the latter evil at least Partially, •he State embarked uporr legislation very soon after the Reorganisation of States in 1956. The Keraia 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 Pre~iderrt in Januarv 1961 and was intituled the Kerala Agrarian Relations Act, 1960. Its obiect 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 grouns of writ petitions filed in 1961. The Act. was s•ruck down bv this Court in the second group of petitions P'P"rted in Karimbil Kunhi-koman v. State of Kera/a('). The ground urged relevant for our· present purpose was that the Act exemoted ulantations of tea, coffee. rubber and cardamom from e<!rtain ceiling Provisions but no such exemption was provided for in the case of plantations of areca and nenuer and as such was violative of Art. 14. The basis of this rleci•ion was that the _lands held by ryotwari pa tadars (I) [19621-Supp. (I) S.C.R. 753 at 817. (2) [1967]-l S.C.R, 36Z (3) (1962)-Supp. (l) S.C.R. 829.

-whieh came to the State of Kerafa by virtue of the States Reorgani-sation Act from the State of Madras were not estates within the meaning of Art. 3 l-A(2(a) of the Constitution and therefore the Act was not protected by Art. 31 in respect thereof. It may however be noted that on the same date on which the above judgment was rendered the same Bench held in Purushottam Nambudiri v. The State of Kera/a (supra) that the validity of the Act could not be questioned by persons holding land on Puravaka tenure or Pan-daravaka Veruvupattam tenure which satisfied the test as to what constituted an estate under Art. 3 l-A(2) (a) of the Constitution.

Chapter II of the l,960 Act provided for the carrying out of the purposes of the Act in two stages : in the first stage, the property of the land-owner was vested in the State and thereafter the tenant was given the right to acquire the property from the State. The scheme of Chapter III was to provide for ceiling and any land in excess of the ceiling was to vest in the Government. The land so vested could be assigned to persons who <lid not ~'Jssess any land or possessed land less than Ac. 5-00 of certain type.

It was held by this Court in Karimbi/ Kunhikoman's case that the main purpose of the Act was to do away with the intermediaries and to fix ceiling and give the excess lands, if any, to th·~ land-less or those who had land much below the ceiling. The Court lteld that the lands held by ryotwari pattadar who had come to the State of Kerala by virtue of the States Reorganisation Act from the State of Madras were not estates within the meaning of Art. 31-A(2)(a) of the Constitution and the Act was not protected under Art. 31-A(l) from attack under Arts. 14, 19 and 31 of the Constitution. With regard to the contention on behalf of the peti-tioners that there was no reason to exclude plantations of areca and pepper from exem9tion granted to other plantations like those of tea, coffee, rubber etc. the Court noted that :"The objective of land reform including the imposi-tion of ceilings on land holdings is to remove all impedi-ments which arise from t9e agrarian structure inherited from the past in order to ii,icrease agricultural production, and to create conditions. for evolving as specdilv as possible in aerarian economy with high level of effi-ciencv and productivi•y (see p, 178 of the Second Fiv~ Year Plan) .. Even So/ it is recognised that some exemp-tions will have to be !!ranted from the ceiling in order that production may ,,not suffer."

'The main factors· to be taken into account to decide exemptions from tho~ ceilinJ! in the Second Five Year Plan at p. 196 as noted by this Court were:

( 1) intograted nature of ·op0r.ations espe0i8liy where industrial and aiiricultural work are undertaken aa composite enterprise,

(2) specialised character of operations, and

(3) consideration fiom the aspect of &Jlricultural pro· duction the need to ensure that efficiently managed farms which fulfil certain conditiom are not broken up.

According to the jud,gment it was in rmrsuance of this that the:

Second Five Year Plan recommended exemptions from operation of ceilings of plantations like tea, coffo~, and rubber, where tbey consti.'tu-.e reasonably compact areas; s,pecialised farms engaged in ca.tie bieeding, dairying, wool raising etc; sugarcans f.irms operated by sugar factories; and efficiently managed farms which. consist of compact blocks on which heavy investment or perma· nent structural improvements have bee111 made and whose break· up is likely to lead to fall in production. The same view was reiterared in Chapter XIV of the Third Five Year Plan dealing with Land Reform ceiling on agricultural holdings. Referring to Farm Bulletin No. 55 relating to pepper cliltivation in India. issued by the Farm Information Unit, Directorate of Extension, Minis.ry of Food and Agricliltur.e, in September 1959 the Court observed that

"the most important pepper pr()(!ucing State in

India was Kerala where the cultivation was on an orga• nised ,plantation over. fairly extellliive areas." ·

Th~ Court lllso observed· that the initial expendilllre on laying out pepper plantation could be recovered only after seve1al vears. similar reference was .made to .Farm Blillet:in No. 14 with reg>ard to arecamit. On the material before the Court. it took the view that fixation of ceiling on arecanut garden would hamper Ptoil..Jlction detrimental to national economy. Although: areca and pepper plantations were not as widespread ·as tea, coffee and rubber plantations, the Court found no reason for treating them differently from tea, coffee etc. Accordingly the Court was of opinion ·that <the provisions relating to plantations were violative of A,1. 14 of the Constitution. Addressing .jtselt to the question whether the provisions were severable, it took the view that (see p. 861) :-

"the legislatiure did not intend that the provisions relating to acquisition by tenants and ceilings should apply to plantations as ·defined in the Act, so that they .may have to be broken-up with consequent loss of pro-duction and deiriment ~o national economy. It seems that the legislature could not have intended in order to

carry out the purpose of the legislation to do so even after breaking-up all the plantlltions which exiS'ted in the S.a<te. It follows therefore that the legislature could no. have passed the rest of the Act without ilie provi-sions relating to plantations. As these provisions aJiect the entire working out of Chapters II and III of the Act which are the main provisions thereof, it follows that these provisions relating to planta.ions cannot be severed from the Act and struck down only by themselves. Therefore, the whole Act must be struck dowri as viola.ive of Art.14 of the Cons.itll'tion so far as it applies to ryotwari lands in those areas of the State which were transferred to ft from the State of Madrll§. .... "The Act was also held to be violative of Art.14 on account <>f 'the manner in which the ceiling h:id been fixed under s. 58. It was further held 10 be objectionable on the same ground b~cause of the prQJ!;1essive cuts impoSl'...d on the purchru;e price under s. 52 and the market value under s. 64 in order to determine the com-pensation payable to land owners or intermediaries in one case and to DCI'SOns from whom excess land was taken in another. In 1he 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.

However, the Legislature of Kerala passed new Act known

as the Kerala Land Reforms Act, 1963 which became Act 1 of 1964 and 81JJended it further by Act 35 of 1969 which became e!Iecti~ from 1st July, 1970. Act 1 of 1964 was included in the Ninth Schedule of the Coostitu ion receivin2 the ProlclCtion of Art. 31-B. Such an immunity however did not attach to the Amending Act of 1969. The Aot as amendH~ was challThcnged by numerous writ pe'.itions filed in the Kerala 1gh Court. ese were all decided by judgment reoorted in Narayan Nair v. Sta'e([1]). The conclusions of the High Court may be summaris-ed as follows :-

1. The Act as whole was measure of agrarian

reform. It bad to be read as applicable to aericultural land alone by the dcctrine of severable application. It got protection of Art. 31-A though portiom failed for want of ·1hat protection and could ·be challenged under Arts. 14, 19 and 31 of the ConS'litution.

2. According to the learned Chief Justice of the

High Court and one of his colleal!lles agrarian reform may be w.ide enough to include ameliorative measures for agriculturists unrelated to rights in the lands but in

die conte.xt of Art. 31-A it could only c.owr meas\JICI affecting rights in esta'les. According 10 the third leam-td Jvdge the scope of agrarian reform was much wider and the objective of such reform jl!S'tified the enactment and protected it under Art. 31-A. The net result of the provisions relating to compen-sation payable uniJ.er s. 72-A was that rt was not likely to exceed third of the market value of the property and even Ibis low compensation was not payable wi'thin reasonable iime. Even so the provisions under consi-deration bein1rthose for the acquisition by the State of rights in an estate for the pm pose of agrarian reform they were immune from attack under Arts. 14, 19 and 31.

In this judgment we shall only refer to such pro-visions of the Act as call for special attemion for the disposal of the writ petitions while others are the sub-ject matter of 1he group of appeals filed in this Court . from tl!_e said judgment of the High Court. Such of the petitioners as hold private forests and plantations of rubber, coffee, cardamom or cinnamon can have even now no grievance with rCj!.ard to the traots of land. actually occupied by the said plantations etc. The defini-tion of 'plantation' in the Act of 1964 suffered change by the Amendment Aot of 1969. Upder s.2(44) of the Act of 1964 'plantation' meant any land used princi-pally for the cultivation of teal, coffee, cocoa, rubber, ca1damom or cinnamon (known as plantation crops) and included.-

( a) land used for any purpose ancillary to the cul"i-vation of plantatJC:>n crops or for die preparation of the same for the market;

(b) land contiguous to, or in the vicinity of, ot within 1he boundaries of, the areas cultivated with plan-tation ctl'OPS. not exceeding 20 per cent of the area so cultiva•ed and reserved by thi: said person and fit for the expansion of such cultivation;

(c) ~gricultural lands interspersed within the boun-daries of the area cultivated by the said person With plantation crops, not excecdini~ such extent as may be determined by the Land. Board as necessary for the protec ion and efficient management of &uch cultiva-tion. Although not within rthe· definition of 'plantations' cashew estates having contiguo~ extent of Ac. 10-00 or more, pure pepper e;ardem and pure arecanut gardens having like extent of Ac, 5-00 or more \Wre exempted

from.the operation of the 1964 Act under s. 81. By the amendmeot in 1969 the said exemptions have been deleted from s.81. Cocoanut garc!o:ns were never made the sub.kl.ct matter of any exemption.

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 writ pe i· tioners adopted the arguments advanced by Messrs Chagla and Setalvad with some additions the;o~to.

Both Mr. Chagla and Mr. Setalvad pursued the same line of iraack against the vires of the Act. Their sub-missions were as follows :-

(a) Chapter II of the Act was not <iimed exclusively

at agrarian reform and as such was not saved by Art. 31-A. In particular, even if the Act of 1964 gat the protection of Art. 31-B by inclusion in the Nin'h Sche-dule, the amendments in the 1969 Act are not similarly protec~ed and can only be upheld if they are covered by Art. 31·A.

(b) By the de!e"ion of els. (f) and (ii;) of s. 81 (1)

by the amendment of. 1969 and taking away the exem.-ption given by the 1964 Act to cashew estates of Ac. 10·00 or more and pure pepper gardens and pure ateca · gardens of Ac. 5-00 or more, the enactment has become violative of Art. 14 as was pointed out in Karimbil KU:nhi-koman's case (supra) as should be struck down. It was further said that these plantations i.e. of cashew, pepper and a;eca, are of as much importance to the national economy as tea, coffee etc. which have received protection under the Act as plantations and the scheme of the Act whereby most of these plan'ations will be decima:ed to support landless or near landless persons cannot be upheld on the ground of agrarian reform. It was argued that the State of Kerala taxes all plan'a· tions alike un_der Ac.t 17 .of 1960. Further, Plantations Labour Act 69 of 1951 treats all planta'ions as indus-tries. Sub-division of plantations into two groups one of which is exempted under the Act and the other is not, savours of discrimination and violates Art. 14.

( c) So far as rubber estates are concerned lands which are not. at Present under rubber but have been set apart for expansion·'of plantations or are likely to be talren uo for expamion in the future cannot be acouired and diverted to other purposes inasmuch as the Rubber

Act of 194 7 has declared the rubber industry to be an industry of national importance. . The Parliamentary legislation under Enrry 52 of List I must have supre-macy over State Legislation encroaching thereupon.

Mr. Natesan learned counsel appearing for t!i.e petitioner In

W.P. No. 149 of 1970 adopted the above arguments, and raised an additional plea for cocoanut gardens being regarded as pian-ta'tions in the same way as tea, coffee etc:. and urged that denial of protect.ion to cocoanut gardens is dis.crimina'tory ·and violathe of Art. 14 on "the same gmunds as impelled !his Court to take this view in Karimbil Kunhikoman's (') case.

Mr. Harindranath who appeared in Writ Petitions 132 and·

133 of 1970 adopted the arguments of Messrs Chagla and S.:ta· lvad and so far as writ petitions 132 nnd 133 were concerntd, he did not press the point as to the invalidity of s.4-A whiCh had . been. struc\:: wown by [1]the Kerala High Court in its judgment in . Narayanan Damodaran v. Narayana Pa.nclcker (1).

(d) Mr .. Chagla appearing in Writ Petition 16711970 raised

additional arguments with regard to the area of Ac. 5 30-00 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.

Mr. J. B. Dadachanji contended that in considering Central and State Legislation on the same subjed the pith and substance of the legislation was to be looked into. He sumbitted that the aim of the Rubber Act was to secure raw material for the indus-t1y and the raw matefial was integrally, connected with the end product and that if the latter was th-3 subject matter of legislation by the Union any legislation by the State which might adversely affect 'the production of the raw material would encroach upon the field of Union Legislature. He also submitted that planta-tion was concept which was wel! recog'n,ised .in law and the legal history with regard to plantation had to be taken note of. He drew our at'•~ntion to number of measures passed by the Central Legislature 1o control various industries, namely, the Tea Act of 1953, the Rubber Act, 1947, The Cardamom Act, 1955, the Coffee Act of 1942 and the coir Act of 1963. The measures in all these Acts, according to counsel. though designed mainly to regulate 1he industry in the finished products would be adversely affected if the production of the raw material wa5 in any way stal-led or affected by the State Legislature.

We may note the main provisions of Chapter III of the Act as enacted in 1964 and consider the effect of the amendments

[I] [1961] Supp, I S.C.R. 829. (2) 1971 Kerala Law Journal 461

introduced by the 1969 Act. The broad scheme of Chapter Ill of the Act of 1964 is epitomised b~ its heading "restriction on ownership and possession of land in excess of the ceiling area and disposal of excess lands": By s.81 various exemptions were granted. Those which concern us in this batch of writ petitions are sub-clauses (f), (g) and (n). Sub-els. (f) and (g) relate to cashew estates, pu'l:e pepper gardens and pure arecanut gardens and (n) refers to uncultivable waste lands. This last class of lands is not agricultural land and acquisition thereof can only be justif.ed under Art. 11-A if it is included in tenure which can be equated with ari. 'estate'.

So far clauses ( f) and ( g) are concerned it was argued on behalf of the petitioners that the decision of this Court in Karimbil Kunhikoman's case (supra) would still hold and unless provision for exemption of plantations of pepper and arecanut were provided for the Act would suffer from the same defect as was pointed out in the judgment of this Court.

In the counter affidavit of the State it is asserted that pepper, arecanut, cashew and cocoanut are not cultivated in the same man-ner as tea, «_offee, or rubber and these are essentially "hom.:stead garden crop.l>". The State does not admit that in Kerala pepper cultivation has reached ihe plantation '6tage or tn.at arecanut is generally grown on plantation scale and asserts that the culti-v~tion of pepper, areca, cashew and cocoanut is in the main on holdings of Jess 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 rnbs[1]tantially if not exclusively for training pepper vines and grow-ing arecanut trees-the State recognised that these called for some protection but now the Stati~ 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 quali-fied to consider are overall aspect of the matter in relation to its ~conomy and on the materials before Us we cannot hold that the State's viewpoint is not corect.

With regard to cocoanut gardens, it was argued by Mr. Natesan that there was no reason to make discrimination thereof from plantations like tea, coffee etc. He referred us ito the definition of 'plantation' in s.2( 6) of the Kerala Plant&·'.ions (Additional Tax) Act of 1960 under which plantation meant land used for growing one or more of the following, namely, ~ocoanut trees, arecanut trees, rubber plants, coffee plants, tea plants, cardamom plants and pepper vines, and submitted that the State of Kerala having placed cocoanut .gardens in the definition of plantations· in the abov.~ mentioned Act shJuld not have excluded them from

exemption under the Act of 1964 and 1969 and this dsicrimina- 1 tion shou'd have the same result as the discrimination against pepper and ari:ca had in Karimbil Kunhikoman's case. He sub-mitted .that cocoanut and its products could be of considerable importano~ to the national economy if proper at1ention was direc-ted towards it. He made extensive reference to monograph 8 called! the Cocoanut Palm by Menon and Pandalai to show that coir mats, rugs, mattings and carpets w1~re being exported frOlll India to vaI,\ous countries and to augment the production of coir it was necessary to stimulate the production of cocoanut not in small gardens but. in plarrtations. He referred to the said mono-grap? to show that mechanisation in coc:oanut gardens was only possible where the area was ·nm small and such mechanisation would greatly increase efficiency and "any attention paid to the cocoanut palm will be adequately rewarded as has been the experi-ence of cocoanut growers in all parts of the cocoanut growing countries". (see 'the monograph at p.357). He also referred to the fact that realising the importance of the coir industry Parliament passed an Act known as the Coir Industry Act 45 cf 1953 and by s. 2 thereof lieclared that it was expedient in the public interest that the Union should take under its control the c-0ir indusry. Ac-cording to Mr. Natesan coir industry could only thrive by en-couragement of the growth of cocoanut in plantations."Ceiling area" is covered by s.82. Such area with regard to unmarried persons and families fixed by th~ 1964 Act was cut down considerably by the Amending Act of 1969. It was argued both by Mr. Chagla and Mr. Setalvad that· this was hit by the second proviso to Art. 31-A(l) inasmuch as the ceiling having once been fixed by the 1964 Act any diminution in the extent thereof would only be justified if compensation at rate not less than the market value thereof was provided which undoubtedly is not the case here. S.82 of the Act of 1964 was aimed at imposing ceiling area on families and adult unmarried persons and -lid not touch com-panies. The amending Act of 1969 makes complete departure from the above provision and imposes ceiling limit on all persons inclusive. of companies or incorpora1ed 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 betV1~en the ceiling areas fixed by the two Acts cannot be accepted inasmuch as th.~ "ceili.1g· limit applicabk to him under any Jaw for the time being in force in Art. 31-A"' can refer only to the limit imposed by the law which fixes it and not any earlier law which is amended or repealed.

Further there is no substance in the contention put forward on behalf of the companies because it was open to the legislature

to prescribe ceiling for all landholders wh>Other they were in-corpora:ted or not and merely because the 1964 Act did not touc_h these incorporated bodies, no objection can be taken . to their being brought within the fold by the Amending Act. S. 83 as amended in the Act of 1969 imposes ceiling area on incorporat-ed bodies as well. S. 85 provides for the determination of lands in excess of the ceiling in certain cases and the surrender .:if all excess lands. S. 86 provides for the vesting of excess lands in Government which are to be surrendered under s. 85. It em-. powers the Land Board to call upon persons affected by the ceil-ing provisions to surrender the excess lands and in default of compliance·'lo take possession thereof in manner prescribed. Upon surrender all lands are to vest in the Government fre-~ from all encumbrances. Under s. 96 as enacted in 1964 the Land Board was to reserve in each village lands necessary for public purposes and then assign on registry the remaining lands vested in the Government under ss~ 86 and 87 as specified therein, namely (i) to assign 'the holdings in which there were kudikidappukars to these persons, as far as possible and (ii) out of the remaining area available for assignment to assign (a) 50% (later raised to 871%) to landless agricultural labourers of which again one half was to be given to the landless agricultural labourers belonging to [1]the Scheduled Castes, (b) 25% (later reduced to 12t%) to small holders and other landlords not entitled to resume any land and ( c) the remaining 2~ % to cultivators who did not posses~ more than Ac. 5-00 of land in extent. Under sub-s. (2) of the section, the Land Board was not to assign more than Ac. 5-00 (later reduced to one acre) in extent of land to any person and where per~.n possessed any land only so much land as would make the extent thereof in his possession five acres was to be assigned. By the Amending Act of 1969 s. 91 (l) was com-pletely recast to provide as follows :-

"(1.) The Land Board- shall assign on

registry,

subject to such conditions and restrictions as may be prescribed, the lands ''~sted in the Government under section 8 6 or section 8 7, as specified below :

( i) the lands in which there are kudikidappukars shall be assigned to such kudikidappukars;

(ii) the remaining lands shall be assigned to-

(a) landless agricultural labourers; and

(b) small holders and other landlords who are not entitled to resume any land :

Provided that eighty-se\•~n and half per cent of the area of the lands referred to in clause (ii) available for assignment in 'laluk shall be assigned to landless

agricultural labourers of which one-half shall be assigned to landless agricultural labourers belongmg to the Schedu~d Caste or the Scheduled Tribes.

Explanation.-For the purposes of this section-

(b) kudikidappukaran or the tenant of kudiyi-ruppu shall be deemed to be landless agricultural labourer if he does not possess any other land; and

( c) "Scheduled Ca~tes" and "Scheduled Tribes" shall include converts to Christianity from such Castes and Tribes."

t\s result of the amendment assignment of land is to be made not only to kudikidappukars and landless agricultural labourers .but also to tenants of kudiyiruppu who were to be deemed land-less agricultural labourers if they did not possess any other land. new sub-s_. (lA) was added reading :

"Notwithstanding anything co1rtained in sub-s. ( 1) the LaQ.d 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-ss. (2) and (3) were modified by limiting the ex[1]tent of assignmen1 of land from A~. 5-00 to Ac. 1-00 in all cases. Sub-s. (!A), it may be noted, was inserted in the Act of 1971 after the decision of the Full Bench of the Kerala High Court.

It was argued [1]that although the Kerala High Court in Narayan Nair's case turned down the contention that under the wide language of s. 96 (1) "the reservation for public purpose could be for any purpose whatever including one en1irely unconnected \\ ith agriculture such as for example, an "industrial undertaking" on the ground that "having regard to the context in which it ap-pears the reservation for public purposes under that sub-section can only. ?e to; public purposes P~lirting to ngriculture, such as the prov1s1~ns ,or threshmg floors or the construction of irriga-twn or dramage channels or the const<uction of houses for agri-c~ltural. labourers", the· new sub-s. (IA) shows that the State did not 1mend to be bound by the construction placed upon s. 96 by the H1 gh Court and made it clear that the section was not to be .so read ~own thereby keeping in its hand the matter of reser-vat10~ of land for public purpose of any kind not limiied to agranan reform.

. The a~renient though forcefully put cannot be accepted. The ob1ec.t of both the _1964 Act and th•:! present Act was to effect agranan reform, which only can give to the statute the protection

of Art.31-A. This was made clear by the High Court in its judgment and in our view rightly, by reading down tho;) said pro-vision as to reserva<tion for public purposes to reservation for purposes falling within 1the expression "agrilrian reform". By enacting sub-s.( lA) despite the said construction by the High Court it appears that the intention of 'the State Legislature was to overrule legislatively the view expressed by the High Court and not to be bound by the interpretation placed by the High Court. By so doing the new sub-section has once ag.ain been made prone to the same constitutional challenge. We have no doubt that the sub-section is couched in too general and wide language capa-ble of includ.in~ public purposes which would not be those falling 'within 1he expression 'a_warian· reform'. There was therefore considerable force in the contention of counsel for rthe petitioners. The fact however that the Legislature has once again used the same general languag1e in spite of the aforesaid interpretation given by the High Court need not !·~ad us to strike down wholly the sub-section. In accordance with the well recognised canon of construction adopted in number of cases decided by this Court we read the sub-section to mean only reservation of the land for such public purposes as would bring about agrarian re-form inasmuch as anv acquisition under Art. 31 ··A for any public purpose other then that falling under the expression "agrarian re-form" cannot be conside.red as having the protection oi that Article.

It was argued [1]that the section suffers from other deficicncie•. It was said that in order to secure protection of Art 31-A it must be shown that the surplus lands were meant to be utilised only for agrarian reform which, broadly speaking, would include distri-bution of land among landless or near landless people to advance the cause ot a.griculture and other equitable distribution of land to diminish imbalance in society and prevent concentration of land in the hands of few to raise the economic standards and better rural health and social conditions as was laid down in Ranjit Singh v. State of Punjab('): Some examples cited in that case were provision for the assignment of lands to village oan· chayats for the use of the iteneral community or for hospitals, schools, manure pits, tanning grounds, the settling of body of agricultural artisans such as village carpen'.ers, village black· smiths etc.

fair amount cif argument was advanced to challenge the provisions in the Act relating to kudikidappukaran, kudikidippu and kudiyiruppu. It was said that settling landless people on \and by itself would not constitute agrarian reform. It was also

said that such landless people unless they are associated with agri-culture would not help the cause or advance such reform; further tenant of kudikidappukar would not nw~ssarily Le an a.2ricul-tural labourer and kudiyirippu might be o;;cupied by people un-connected with agricultural pursurts.

Th·~ important statutory provisions may be noted in this con-B nection. Under s.2(25) of the Act "kudikidappukaran" means person who has neither home~tead nor any land exceediag in· extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township in possession either as owner or as tenant on whi;;h he could erect homestead and--c

( a) who has been permitted with or without an obligation to pay rent by person in lawful possession ot any land to have 1he use and occupation of portion of such land for the purpose of erecting homestead; or

(b) who has been permitted by person in lawful possession of any land to occupy, with or without an obligation to pay rent, hut belonging to such person and situate in the said land; and ·kudikidappu' means the land and the homestead or the hut so permitted to be erected or occupied together with the easements ·a:1ached thereto.

Provided that person who, on the 16th August, 1968, was in occupation of any land :rnd the homestead thereon, or in occu-pation of hut belonging to any other person, and who conti-nued 1o be in such occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, shall be deemed to be in occupation of such land and bomeste'ad, or hut, as the case may be, with permission as required under this clause. Under s.2(26) "kudiyiruppu" means holding or part of hold-ing consisting of the site of any residential building, 'the site or si1es or other buildings appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building and easemell'ts attach·~d thereto but does .not include kudikidappu. Under s.75 ( 1) no kudikidappukaran was liable to be evicted from his kudikjdappu except on the grounds ml"1t-ioned. Under s. 80-A kudikidappnkaran was to have subject to che pr?visions of the section the right to purchase the kudikidappu occupied by him and lands adjoining thereto. Under s•1b-s. (3) the •.oxtent of th~ land which the kudikidappukaran wa~ entitled to purchase u_nder . the section was to be three cents in city or ma1or m~mc1pahty or five cents in any other municipality a!_. ten cents m panchayat or township. Sections 80 and 80 laid down th~ procedure for the purchase of kudikidappukaran and the deposit of purchase price and the issue of certificate of

purchase. Under s.95 of the Act before its amendment in 1971 the Land Boa.rd constituted under the Act had, ofter reserving in each villag~ 'the. lands necessary for public purposes, to assign inter a/ia the holdings in which there were kudikidappukars to such kudikidappukars. There was an Explanation to the section by which kudikidappukaran or tenant of kudiyiruppu was to be deemed to be landless agricultural la-B bourer if he did not possess any other land. The section ha~ been amend•~d in 1971 but ithe main provisions thereof including the Explanation are also in the amended Act.

The objections raised by the pe•titioner in Writ Petition No. 516 of 1970 were sought to be met in the counter affidavit of ~h~ · State as follows :-

"(a) Kudikidappukars as class were permitted by the land owners to reside in their land in re!urn for th·~ir services as watchmen of the parambas and cocoanut gardens and as agricultural labourers. Kudikidappukars work for the owner of ithe property in which the kudiki-dappu is situated. The wages paid to the kudikidappu-kars by the owners of 'the land are generally lower tha ,-that paid to the labourers. Kudikidappukars work for th~_o,;vners of th·~ land at the time of pluck-ing of cocoanuts and at times of conducting agricultural operaitions in the land. Beside5 this, the kudikidapo•: kars WJJrk in the paddy lands of the oweners of land during the cultivation season. They are therefore agricultural labourers. In rural life many individuals, whether farmers or labourers or artisans, have to eke out their existence by doing work of more than one kind and person may be both an ar'tisan and 1 la-bourer, doing what work comes his way at given time in the year. Thus they had all connections with the lands as persons living in the huts or homes!eads and also labourers employed in the cultivation of lands.(b) The gran'ting of relief to kudikidappukars and conferment of benefits on them have always been treated as part of measures of agrarian legislation in KeraJa, By Proclamation XVIII of 1122, the Govern-ment of Cochin recognised the need to prevent the evic-tion of kudikidappukars. In Travancore, permanent right of occupancy in respect of their kudikidappu was conferred on kudikidapukkars by the Travancore Pre-vention of Eviction Act XXII of 1124. Under this Act, the rights of kudikidappukars were made heritable.

Further this Act gave every kudikidapukkaran perma-nent right to occupy in his kudikidappu, ~ubjeot to the provisions of the Act. Section 7 of the Act provides specific grounds in which kudikidapukkars might be evicted. The Malabar Tenancy (AmendmenO Act, 1951 gave protection to holders 'ulkudies' or 'kudiki-dappus' by g:ran1inJ! them right of permanent occupation subject to payment of fair rent. ( c) Protection ·of kuaikidappukars always formed an important part of l·~gislation which has the objective of tenancy reform. The Kerala Agrarian Relations Act ( 4 of 1961) took within its compass certain provisions intended for the protection of kudikidappukars as an integral part of scheme of agrr,rian 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 acquisi-tion of land occupied by his homestead or hut.

( d) The report of the Agrarian Problems Enquiry Commirtee, 1949 (published by th•~ Government of Cochin) the report of the Land Policy Committee. 1950 (published by 1hc Governm:~nt of Travancore-Cochin) and the report of the Special Officer for the in-vestigation of Land Tenures on the recommendations of the Malabar Tenancy Committee, May 1947 (pub-lished by the Madras Governm>~nt) 1 recommended measures for th.~ protection of kudikidappukars as part and parcel of tenancy legislations. The rep;irt of the, Land Policy Commi'tee comidered the question of cJn-' ferment of purchase rights on kudikidappukars. Th~ repQrt also went to show 1hat the kudikidappukars were originally inqucted as agricultural labourers and watchmen.

(e) The Kerala Land Reforms Act. 1963 (Act l of 1964) took within its compass certain provisions in-tended for the protection of the kudikidappukars as an integral part of the scheme of agrarian reforms .~m­bodied in the Act. The p:ovisions in the Kerala Act 35 of 1969 were in continuation and enlargement of the rights conferred on kudikid2-ppukars from tim>~ to ~ime 11.s an integral part of the agrarian reforms and those provisions were intended tc make them the owners of huts and homesteads and the lands adjac.~nt thereto. Kudikidappukars, landless or near landless labourers were at the very -base of rural economy. They were connec'.ed with land as agricultural labourers. Th~.Y

have interest in the land as persons living and working on them. Statutory provisions dealing with their rights would, therefore, be part of any comprehensive law of agrarian reforms."

So far as kudikidappukarans or those who are deemed to be such under the Explanation to s. 96 on esla'tes are concerned, the direction for compulsory purchase in their favour ~annot be ques-tioned untfor Art. 31-A. Substantially these provisions were con-tained in the Act of, 1964 which received protection under Art. 31-B by inclusion in the Ninth Schedule. The land. reforms legis-• lations in most of the States in India have conferred such rights on tenants and it is too late in the day to challenge such legislation on the ground of hardship or of inconvenience. The affidavit affirmed on behalf of the State go~s to show that kudikidappukars have for very many years past been residing in the lands in return for services which may be seasonal and they were by and· large agricul'tural labourers. Th.;: rights conferred on them in respect of kudikidappu cannot therefore be said to have transgressed scheme of agrarian reform. With regard to the Explanatio11 to s. 96 that kudikidappukaran or tenant of kudikidappukaran would be deemed to be landless agricultural labourer if he did not possess l!nY O'ther land is beyond challenge inasmuch as it was contained in the Act of 1964 which had the protection of Art. 31-B read with the Ninth Schedule to the Constitution. Th.c problem posed by 'the presence of hordes of kudikidapu-karans and !he renants of kudiyiruppus and the pressure on the land thus caused have engaged the a'ttenlion of the legislature for many years past as mentioned in the counter affidavit of the State, and it is als0 apparent from number of decisions of the Madras and Kerala Hi~h Courts. We may mention the case of Armugha Konar v. Sanku Muthammal(') where tenant claimed to be entitled to purchase th·~ landlord's right in kudiyiruppu under s. 33 of the Malabar Tenancy Act (Act XIV of 1930). simihr question fell for consideration in Saimva Umma v. Kun-hammad('). In that case i'I was held that vacant site not attached 'to building will not become kudiyirappu. The cons-truction of any kind of building on such site will not also make it kudiyiruppa. Reference was mad·~ to the observations of the Kcrala High Court in Mariam & others v. Ouseph Xavier(') wherein referring 10 the provisions for kudikidappukaran etc. it was said :

"The legislative perspective of this provision ( s 2(25) ) will throw light on its scope and sweep. In communitv, essentially agrarian, with large chunks of the

(l) A.l.R. 1960 Madras 487.

(2) l.L.R. 1957 Kerala 815.

(3) 1971 Kerala Law Times 707 at 710-11.

populatjon engaged in agricultural labour and accom-modated by, or wi'th the leave and licence of, the owners in tiny tenements dotting the farms and the fields where or near where they w.ork, feudal fashion. certain special equilibrium is maintained. But the pres-sure of poplilation and consequent increase in the num-ber of shacks or kudis on the one hand and the tempt-ing rise in the price of produce and of lands appetising the lan.dlords to vacate the occupiers of homesteads who sometimes and on the sly, may help themselves to the income from the land on the other gave rise to social phenomenon of many evictions of these homeless in the world.. . . . The play of these social forces ex-plains the legislative insulation of kudikidappus, punc-tuated by further ameliorative changes in the law cal-culated to plug th•e loopholes exploited by the land owners and brought to light by judicial decisions ....When thf<. legisla.ture conferred immunity from evic-tion on occupiers of huts brought in by the permission of the land owner-by and large, they were landless families working on the farms-the tendency to evict them through court b~came noticeable for reasons l have already stated. Since permission to occupy was an essential ingredient of kudikappu, by definition. this C_QUrt held 'that where consent was not extant, in the ~ense of i'ts having been wiihdrawn or not renewed, the right of kudikidappu also ceased to exist. Land-lords could easily stultify the kudikidappu protection clause by unilaterally withdrawing permission to rr-main on the homestead and tbe flood-gates of eviction would be thrown open. The legislature naturally re-acted to this sit1tation by providing, in the shape of an explanation, that. any person in occupation of kudiki-dappu on 11th April 1957 and continued on the hut-ment would be deemed to be there with permission re-quired as . under the claus·~. The obvious intendment of this-Explanation (Explanation to s. 2(25) ) was to protect those who had come in by permission of the owner but who were sought to be ren10ved by with-drawal of permission by the !and owner. Once per-son came . to occupy hut by permission he became kudikidappukaran and acquired the right to fixity."

'the above is sufficient •to show t}Jat the problem of kudiki-dappukaran has always brnn intimately connected with agricultu-. ral land and can legitimately come within "agrarian reform". His-torically they were allowed td come on to '(he land because of the

needs of an agricultural population and any scheme which en-visages the improvement of their lot and grant of permanent' 'fights to them would not .transgress the limils of agrarian reform.

It may however be noted that our judgment only relates to lands in panchayat areas and kudikidappukars etc. on th-em. We are not dealing with similar problem in respect of lands in municipal areas. Although no specific argument was advar;ced on the point it appears to us that the provisions for pmchase con-tained in s. 80-A of the Act by kudikidappukaran of their kudiki-Jappus for consideration less 1han the market value of the land when the same was below the ceiling area fix•:;d under the Act and within the area in the personal cultivation of the landlord would be hit by th_e secand proviso ''o Art. .31-A of the Comtitut;o:1.

Argument was also raised that s. 83 which forbade eve1 y 'Person from owning or holding or possessing land under mortgage in the aggregate in excess of the ceiling area was bad ina,mu:h as the provision mac•:; nv distinc.tion betV.:een agricultural lanj and ether lands. This was 5ought 'o be fortified by reference to s. 81 some sub-clause of which, it was argued, could possibly have no beJrinz on agrb1ltural land. For ins'ance, sub-cl. (k) cf s. 81 ( 1) cnly exempts "land belonging to or held· by an indu>:rial or ccinmer~ial undertaking and sel apart for use for similar purpose." That all lands belon.ging to or held by such an undertaking did nnt oualifv for exemption is made clear by 1he proviso to the clause under which any land not actually us·:;d for the purpose for which it had he,~r. set apart could only be considered for exemp:ion if •:he setting apart has been made within time fixed bv lhe Dis•:rict Collector by notice to the undertaking wncerned. Similarly cl. (m) it was said, aimed at giving very restricP~d exempticn even with regard to lands apper!enant to dwelling homes, tanks, wells or o'her structures inasmuch as such lands could only be exempted if found necessary for convenien't enjoy-ment of the house sites, structures etc. The adjudication of the ·que3ticn as to whether any land was 'to be exempted or not \Vas left to t•c decided by the Land Board constituted under s. J 00 by virtue of thi;_ provision in s. 101 ( 4) and the decision of the Land Boa.·<;] was to be final. It was said that even within municipal areas lands appertaining to dwelling hou~es or belonging to or held by industrial or commercial under'.akings which could serve no agricultural purposes were within the fold of the Act The in-tention of the legislature, it was urged. was clear in th1t the bgis-lation was not meant to make any distinction between aqricultu.ral and non-agricultural land but was ccmoosite Act which bffected every bit and parcel of land in the S!ate of Ke·ala. Such comprehensive legislation, it was contended, could not possibly be upheld u'lder Art. 31-A.

No doubt in its coun~r affidavit the State ·has made case· that "in Kerala within cities and municipalities there are tracts of cu!itivated lands" and merely because the Act was applied to the lands situat~ within citios and municipalities it did not detract from its essential character as measure of agrarian reform. It was also submitted in the said affidavit :

"Lands are agricultural lands unless th•!y are put to non-agdcultural uses like the construction of buildings which alters the physical character of the land, render-ing it unfit for agricultural purposes. Neither the prin-cipal Act nor the Amendment Act concerns themselves wi'th commerce, trade or industries or buildings."

We find oursr.:lves unable to accept the above submission. Whether lands are . agricultural or not may depend also on their physic;1l properties and situation. There may be rocky lands, sandy lands, hillsites, unculturable lands, forests etc. which by their very nature are not a!(ricultural lands. So also lands comprised within municipality specially in towns and cities cannot be styled ag1icul-tural lands because agricultural operntions can be carried on there. Further the statements in the counter affidavit do not follow the provisi<'ns of sub-ss. (k) to (m) of s. 81(1). To take an example, if an industrial or commercial undertaking owns sev!ral 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 _nqtified to the District Collec:tor and set apart for th.~ industrial or commercial purpose of the undertaking. Similarly, person owning house with lands surrounding it covered by garden or an ·orchard within municipality should not be left to the mercy of the Land Board to decide the extent of land neces-sary for the convenient ·enjoyment of tl:e house and have the rest taken away from him, However laudable may be the object oi" the legislature in attempting to settle landless persons on· land obtained by the Land Reforms Act, the taking away of such fands in the circumstances mentioll'!d above either from indusrrial or commercial undertakings or from the owner' of house sites within municipality for distribution amonit the landless cannot be said to effect agrarian reform. The Act in so far as it purports to ac·· quire these 1,;>nds cannot be upheld.

Mr. Chagla contended that even if the Court were to hold that the acquisition of lands under the Act as amended in 1969 was for agrarian reform, certain provisions of it oughr to be ~truck down. In particular he contended that so far as rubber estates were concerned, lands contiguous thereto or set apart for development of rubber estates could not be acquired. He drew our attention to certain provisions of the Rubber Act of 1947 under s. 2 of which there was declaration that it was expec!ient

[1973] I S.C.R.

fa the public interest that the Union: should take under its control the rubber industry which was said to be in terms of item• 52 of List I of the Seventh· Schedule to the Constitution. Under s. 17 . . of this Act no one can plant or replant rubber ·except under and .in accordance with th.~ conditions of special licence issued by the Rubber Board and licence issued under this section was to ·specify the area ii< which the rubber may be planted or replanted and the P'~riod for which the licence was to be valid. He also drew •our attention to clauses ( c), ( e) and (h) of the definitions in s.3 ·Of the Rubber Act. Under cl. ( c) .. 'estate' means any area admi-nistered as one unit which contains land planted with rubber "Plants. Under cl. (e) 'manufacturer' means any person engaged · in the manufacture of any article in the making of which rubber is used and under cl. (h) 'rubber' includes not only crude rubber, that is, that prepared from the leaves, bark or latex of any rubber "Plant but include scrap rubber, sheet rubber etc. leaving out rub-ber contained in any manufactured article. Under s. 8 ( 1) it was to be the duty of the Rubber Board to permrt such measures as was thought fit for the development of rubber industry. · All this according to Mr. Chagla went to show that th~ rubber industry in-cluding rubber plantation was put under the special charge of the Union Legislature and it was not competent to any State to enact any provision which would affect the supremacy of the· Union legislation or run counter· thereto. · It was said that it was only the Rubber .Board which could sanction the planting of addi-tional areas with rubber but if the State of Kerala was to take away lands which were not actually planted with rubber plants 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 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 contrave11:ed the provisions of. the Rubber Act. ·

We find ourselves unable to accept this broad proposition. However. important it may be for the owner. of rubb>~r planta-tion to have or held lands in the immediate vicinity of the planta-tion for its expansion it cannot be said that the Rubber Act gave the Union Legislature any power to direct rubber manufacturer to increase his production by bringing any additional land under rubber plants. All that s. 17 of the Act aims at is to make rt obligatory on the owner of· an· estate to secure licence if he wants to plant rubber on land which does not bear it or replant rubber plants. All that s. 17 of the Act aims at is to make it though it was the function of the Rubber Board under s. 8 to take ·riieasmes for the development of the rubber .industry, it clo~s not /. . t - -' • .

appear that the expansion of rubber plantation or guidance in that direction by the Board was contemplated under the said ' section.

The leam~d Advocate-General of Kerala submitted that by the Rubber Act all that the Union Legislature sought to achieve was to control the industry i.e. the manufacture of rubber and did nat mean to control the production of raw material i.e. the latex etc. from which rubber was produced. In support of his conten-tion he drew our attention to judgment of this Court in Ch. Tika Ramji & others etc. The State of Uttar Pradesh and others ( 1) where this Court upheld the validity of the legislation of the U .P. State regulating the supply and purchase of sugarcane. It was there contended inter alia that the State of U.P. had no power to enact the impugned Act as it was with respect to the sub.i·~ct of industries •the control of which by the Union was declared by law to be expedient in the public interest within the meaning of Entry 52 in List I. Referring to the various legislatiO\JS in force the Court observed (see at p. 420):

"The Provincial Legislatures as well as the Central Legislature would be competent to enact such pieces of legislation and no question of legislaotive competence would arise. It also fo[1]lows as necessary corollary that, even though sugar industry was controlled in-dustry, none of these Acts enacted by tho~ Centre was in exerc.ise of its jurisdiction under Entry 52 of List I. Industry in the wide sense of the term would be capable of comprising three different aspects : ( 1) raw mate-rials which are an integral part of the industrial process, (2) the process of manufacture or production, and (3) the distribution of the products which would be com-prised in Entry 27 of List II. The process of manu-facture or production would be comprised in Entry 24 of List II except where the indus1ry was · controlled industry when it would fall within Entry 52 of List I and the products of the industry would also be com-prised in Entry 27 of List II except where 1hey were the products of the controlled industrie$ when they would fall within Entry 33 of List III. This being the position, it cannot be said that the legislation whici1 was enacted by the Centre in regard to sugar and sugar-cane could fall within Entry 52 of List I."

Reference was also made to the decision in State of Maharashtra <1. Patilchand ([2 ]) in this connection and it was submitted that

(I) [1956] S.C.R. 393.

(2) [1968] 3 S.C.R. 712.

taking away surplur, lands which were not under cultivation of rubber did not entrench upon the field of operation of the Rubblr Act of 1947.

Mr. Chagla also contended, apart from his submission on pepper and areca gardens which have already been noted, that jungle was u_ot held for agricultural purposes and could not be acquired under Art. 31-A(2). jungLe unless it is included within an estate consisting inter alia of lands held for agricultural purposes caW1ot be acquired ~o as to have the protection of Art. 31-A : if the holding or tenure in which the jungle lies con-sists only of jungle it cannot be so acquired. The same would hold good of dairy farms, pastures etc.

Lands under eucalyptus or teak which are the result of agri-cuhural operations normally would be agricultural lands. .They would certainly not be forests but the statements in the petitions seem to suggest that operaions were carried hereon for the ex-press purpose of growing these plants and trees. However, Janas which are covered by eucalyptus or teak growing spontaneously as in jungle or forest, would be outside the purview of acquisi-tion.

Our conclusions therefore are as follows :-

1. It was for the petitioners to establiBh that the lands held by them and mentioned in the petitions were not 'estates' so that they could be out of the purview of the Act. It was all the more necessary for them to do so in view of ithe categorical findings of the Full Bench of the Kerala High.Court in paragraphs 5 and 99 of the judgment in Narayanan Nair's case (supra). In the ab-sence of material in the p.~titions to show prima facie that the lands of the_ petitioners were not estates we cannot hold that the petitioners are not affected by 'the Kerala Land Reforms Act of 1964 as amended in 1969. in any event, so far as the provisions of the 1964 Act are concerned the same could not be challenged under Art. 31 by P~ason of its inclusion in the Ninth Schedule to the Constitution.

2. The reduction of •the ceiling limit by the Amending Act of 1969 does not attract the operation of the second proviso to Art. 31-A(l).

3. Th~ provisions. of the Act withdrawing protection to pepper and areca plantations cannot be challenged under Art. 14 if the lands were estates within the meaning of Art. 31-A(2)(a).

4. "Che aot is not discriminatory with regard to cashew and cocoanut gardens.

5. The withdrawal of exemption from lands contiguous to rubber plantations by the Amending Act of 1969 cannot he challenged.

6. Forest lands and jungles would be exempt from the op~ra­tion of the Act only as already indicated. Private forests are II. however specially exempted from acquisition under the Act.

7. Dairy farms if they are parts of estates are nO't exempt.

8. Lands planted with eucalyptus or 'teak are agricultural lands r.;.;d so are not exempt.

9. The provision for settlement of tenants of kudiyirup.pus or kidikidippukars in small holdin~s would be covered by agrarian reform or purposes anciliary thereto.

10. Lands which are interspersed between sites of commercial unlilet!takings and house sites in municipalities with I.ands sur-rounding them are not agricuHural lands fit for acquisition under the Act.

In the result, we hold that save that the provisions of the Act making discrimination against pepper and areca plantations are bad only if the lands are not estates and that the lands inter-spersed between sites of commercial undertakings and house sites in municipalities with lands surrounding them cannot be acquired as the same are not agricultural lands. Except as above the pr,1-E visions of the Kerala Land Reforms Act are beyond challenge. The parties will pay and bear their own costs.