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PETITIONER: MALANKARA RUBBER AND PRODUCE CO., & ORS.  ETC.ETC.

       Vs.

RESPONDENT: STATE OF KERALA & ORS.  ETC. ETC.

DATE OF JUDGMENT28/04/1972

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SIKRI, S.M. (CJ) SHELAT, J.M. DUA, I.D. KHANNA, HANS RAJ

CITATION:  1972 AIR 2027            1973 SCR  (1) 399  1972 SCC  (2) 492  CITATOR INFO :  R          1981 SC 522  (29,30)  R          1988 SC  59  (5)  D          1990 SC1747  (10)

ACT: Kerala  Land Reforms Act 1964 as amended in 1969  and  1971- Validity of sub-section (1A) of s. 96-Public purpose in sub- section  (1A)  whether can be read down  as  public  purpose connected   with  agrarian  reform-Provisions  relating   to kudikidippukars  whether  covered  by  expression  ’agrarian reform’-Reduction of ceiling by amending Act without payment of compensation at market value-Validity-Act whether discri- minatory  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  eucalyptus  trees   whether exempted under Act.

HEADNOTE: The  Kerala Land Reforms Act 1 of 1964 was included  in  the Ninth  Schedule  and  was  protected by  Art.  31-B  of  the Constitution.   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 only under Art. 31A.  The validity of the amended Act was considered by the Kerala High Court in Narayan  Nair v.  State, (A.I.R., 1971 Kerala 98).  The High Court,  inter alia, held that the lands in question were ’estates’  within the meaning of Art. 31A, and that the reference in s. 96  to reservation  of acquired land for ’public purpose’  must  be read  down  to mean public purpose connected  with  agrarian reform,  and  so read the Act. as a whole was  Protected  by Art. 31A though portions failed for want of that protection. After  this  judgment the Kerala legislature  by  a  further amendment  added sub-s. (IA) to s. 96 and  provided  therein that  "Notwithstanding anything contained in sub-s. (1)  the Land Board may, if it considered that any land vested in the Government  under section 86 and section 87 is required  for

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any public purpose, reserve such land for  such  purpose". The present petitions challenging various provisions of  the Act as amended were filed under Art. 32 of the Constitution. HELD : (i) It was for the petitioners to establish 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 the categorical findings of the Full Bench of the  Kerala High Court in Paragraph 5 and 99 of the judgment is  Narayan Nair’s case.  In the absence of material in the petitions to show Prima facie that the lands of the petitioners were  not estates  it could not be held that the petitioners were  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 reason of its inclusion in the Ninth Schedule  to the Constitution. [426E-F] (ii) 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(1) [426G] The  contention that reduction in the ceiling area fixed  by the 1964 Act had to be compensated for by Payment of  market value  of the difference between the ceiling areas fixed  by the two Acts could not be                             400 accepted  inasmuch, as the "ceiling limit applicable to  him under any law 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  and  repealed.. [413G] It  was open to the legislature to prescribe a  ceiling  for all I landholders whether they are incorporated or not,  and merely because the 1964 Act did not touch these incorporated bodies,  no  objection can be taken to their  being  brought within. the fold by the Amending Act,. [413H-414B] (iii)     Section 96(1A) is no doubt couched is too  general and wide a language of including public purpose which  would not  be  those  failing  within  the  ’expression  ’agrarian reform’.   The  fact however that the legislature  has  once again  used  the  same  general language  in  spite  of  the interpretation  given  by the High Court in  Narayan  Nair’s case need not lead us to strike down wholly the sub-section. In accordance with the well recognised canon of construction adopted in a number of cases decided by this Court the  sub- section  must be read down to mean only reservation  of  the land for such public purposes as would bring about  agrarian reform  inasmuch as any acquisition under Art. 31-A for  any public purpose other than that falling under the  expression "agrarian  reform"  cannot  be  considered  as  having   the protection of that Article, [415H-416D] Ranjit  Singh  v.  State  of Punjab,  [1965]  1  S.C.R.  82, referred to. The  provision for settlement of tenants of  kudikidippukars in  small  holdings would be covered by agrarian  reform  or purposes   ancillary   thereto.    The   problem   of    the kudkidppukars  has  always been  intimately  connected  with agricultural   1-and  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 the improvement of their  lot and grant of permanent rights to them  would  not transgress  the limits of agrarian reform.   This  principle however  only  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

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kudikidappus for consideration less than the mark’ value  of the  land  when the same was below the  ceiling  area  fixed tinder  the  Act  and  within  the  area  of  the   personal cultivation  of  the  landlord would be hit  by  the  second proviso to Art. 31-A of. the Constitution. [421H-422C] Armupha  Konar v. Sanku Muthammal, A.I.R. 1950  Madras  487, Saimva    Umma  v. Kunhammad.  I.L.R. [1957] Kerala 815  and Mariant & Ors. v.   Ouseph Xavier, 1971 K.L.T. 707, referred to. (iv) Lands   which   are  interspersed  between   sites   of commercial under takings and  house-sites in  municipalities with land-, surrounding them are not    agricultural   lands fit for acquisition under the Act. [427D] (v)  The  provisions  of the Act  withdrawing  protecton  to pepper  and  area plantation could not be  challenged  under Art. 14 if the lands were estates within the meaning of Art. 3 IA(2) (a). [426H] (vi) The  Act was not discriminatory with regard  to  cashew and cocoanut gardens.. [426H] (vii)     The withdrawal of exemption from lands  continuous to rubber plantations by the Amending Act of 1964 could  not be challenged. [427A] However  important  it may be for the owner  of  the  rubber plantation to have or hold lands in the immediate  vicinity of the plantation for its 401 expansion  it. cannot be said that the Rubber, Act gave  the Union Legislature any power to direct a rubber  manufacturer to  increase his production by bringing any additional  land under  rubber plants.  All that s. 17 of the Act aims at  is to make it obligatory on the owner of an estate to secure  a licence  if he wants to plant rubber on land which does  not bear it or replant rubber in the portions of the land  which are  under it.  Further although it was the function of  the Rubber Board under s. 8 to take measures for the development of the rubber industry, it did not appear that the expansion of a rubber plantation or guidance in that direction by  the Board was contemplated under the section. [424 G-425 Al Tika  Ramii  & Ors. etc. v. The State of Uttar  Pradesh  and Ors.,  [1956]  S.C.R.  393  and  State  of  Maharashtra   v. Patilchand, [1968] 3 S.C.R. 712, referred to. (vii)     Forest lands and jungles would be exempt from  the operation of the Act.  A jungle unless it is included within an   estate  consisting  inter  alia  of  lands   held   for agricultural  purposes cannot be acquired so as to have  the protection  of Art. 31A : if the holding or tenure in  which the  jungle  lies consists oily of jungle it  cannot  be  so acquired.   The same private forests are specially  exempted from acquisition under the Act.[426B-C] (ix) Lands under eucalyptus or teak which are the result  of agricultural  operations  normally  would  be   agricultural ’lands and therefore would be exempt under the provisions of the  Act.  However lands which are covered by eucalyptus  or teak growing spontaneously as in a jungle or a forest  would be outside the purview of acquisition [426 D]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petitions Nos. 117, 132 to 134, 149, 167, 168, 209 and 516 of 1970. Under   article  32  of  the  Constitution  of   India   for enforcement of the Fundamental Rights. M.   C.  Chagla, Joy Joseph, B. Datta, J. B. Dadachanji,  O. C.  Mafhur and Ravinder Narain, for the petitioner (in  W.P.

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No. 117 of 1970). K.   T.  Hzrindranath,  B. Datta, J. B.  Dadachanji,  O.  C. Mathur  and  Ravinder Narain, for the petitioner  (in  W.Ps. Nos. 132 and 133 of 1970). M.   C.  Setalvad  K.  T. Harindranath, K.  R.  Nambiar,  B. Datta,  J. B. Dadachanji, O. C. Mathur and Ravinder  Narain, for the petitioner  (in W.P. No. 134 of 1970). M.   Natesan, Fazee Mahmood, P. C. Chindi, A. T. M.  Sampath and E.    C.  Agrawala, for the petitioner (in W.P. No.  149 of 1970). M.   C. Chagla, B. Datta, J. B. Dadachanji. O. C Mathur and Ravinder  Narain,  for the petitioners (in W.P. No.  167  of 1970). J.   B. Dadachanji, O. C. Mathur and Ravinder Narain and  S. Swarup, for the petitioner (in W.P. No. 168 of 1970). A.   V.  V.  Nair, for the petitioner (in W.P. N,).  516  of 1970). K.   T.  Harindranath and A. Sreedharan Nambiar,  for  the petitioner (in W.P. No. 516 of 1970). 402 M.   M.  Abdul ,Khader, Advocate, General for the, State  of Kerala,  M.  M.  K.  Nair  and  Varghese  Kaliath,  for-the, respondent (State of Kerala) (in all the Petitions) B. Sen and R. N. Sachthev, for respondent no.2 (in w.p. no 117 of 1970). R.   N. Sachthey, for respondent No. 2 (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  a  group  of  nine   writ   petitions challenging  the vires of the Kerala Land Refroms Act,  1963 (Act  1  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  a 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,   a,  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 AC.  91-00  of land  to  tenants.   He owns jointly  with  his  brother  an arecanut garden of AC. 5-50, cocoanut plantation of AC.  49- 00 and cashew plantation of AC. 25-00.                  Writ Petition No. 133/1970 Petitioner owned lands in Kasargod taluk AC. 9-94 in  extent which has been usufructuarily mortgaged for a long time.                  Writ Petition No. 134/1970 Petitioner is a ryotwari pattadar holding pepper garden  AC. 30-00,  arecanut AC. 45-00, rubber estate AC. 445-00  cashew plantation  AC. 25-00, cocoanut garden AC. 44-00  and  paddy lands  of AC. 2-00, all under personal cultivation.  He  has also leased out AC. 673-00 of dry land to tenants.   Besides the above he cultivates as lessee AC. 56-00 of pepper garden and owns

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403 with  his  brother Ac. 22-00 of pepper garden  and  arecanut garden  etc.  He also owns with other members of his  family Ac. 19--00 of land set apart and used as dairy farm.                  Writ Petition No. 137/1970 Petitioner  is a matadhipati in Kasargod taluk :  extent  of lands Ac. 348-00 of paddy, Ac. 114-00, of garden land  under coconut  and arecanut, Ac. 69-00 leased’ out to tenants  and Ac.  219-00 of dry land bearing cashew etc. are also  leased out.                  Writ Petition No. 149/1970 The  two petitioners owned Ac. 95-00 of land in District  of Trichur.  They also owned Ac. 58-00 in village Azhikode  and Ac. 154-00 in village Kadappuram and all the lands are  used for coconut plantation.  It is stated in paragraph 2 of  the petition  that the petitioners have employed a large  number of kudikiddappukarans either as watchmen or workers to  look after the lands.                  Writ Petition No. 167/1970 Petitioner is a Private Limited Company and petitioner No. 2 is  a  director  and shareholder.   Petitioner  owns  rubber plantations  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,  cardamom  Ac.  305-00. cocoanut Ac.  5-50,  teak  Ac. 36--00, eucalyptus Ac. 530-00.                 Writ Petition No. 168,/1970 Petitioner owns Ac. 3888-00 of which Ac. 3000-00 are private forest and Ac. 400-00 under rubber.  There are also cocoanut gardens, arecanut gardens, teak and eucalyptus plantations.                  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 which Ac.  1-21 is his residential compound containing several buildings  He also  owns Ac. 1-84 of paddy land in his  direct  possession besides  a few tenants holding Property under him.   In  the said  land  of  Ac.  2-69  there  are  nine  kudikidippukars (respondents  3  to  11) to each of whom he  will  have  to, transfer 10 cents of land if s. 80-A of the Act is enforced. The buildings occupied by these respondents do not lie close to  one  another but are spread all over  the  property  and parcelling out to cents of land to each of them                             404 in terms of the provisions of the Act with valuable cocoanut trees, will destroy the utility of the petitioner’s property Permanently.  According to the-petition the Act in so far as it  makes  provision for the compulsory  transfer  of  lands under    the    petitioner’s   personal    cultivation    to kudikidippukar  is  Rot  a law  of  acquisition  within  the meaning  of  Art.  3 1 A and as such  is  not  entitled  to protection  under that Article.  The petition however  shows that the lands are situate in a panchayat area. Most  of  the petitioners do not I give  any  indication  of their title to the lands which are the subject matter of the petitions.   They all, apprehend that the Act as  it  stands will affect their holdings.  In the counter affidavit of the State there is a bald statement that the lands owned or held by the petitioners come within the meaning of the expression ’estate’ as defined in Art. 31-A(2). In Writ Petition 167 of 1970 there is an admission that  the properties stand in the names of the petitioners as ryotwari pattadars. In  substance the complaint of the petitioners is  that  the ceilings  fixed are arbitrary, that plantations  of  cashew,

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areca  and  pepper and even gardens of  cocoanut  cannot  be acquired.   The  further  complaint is that  the  Act  is  a composite  Act  intended  to affect all  the  lands  whether agricultural  or  not and to be used for purposes,  some  of which would not come under agrarian reform. 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  agrarian reform.   This  series  of petitions  was  heard  after  the disposal  of  various  applications under Art.  226  of  the Constitution disposed of by a Full Bench of the Kerala  High Court.   It  is worthy of note that in paragraph 5  of  that judgment  of  the  Chief Justice  concurred  in  by  another learned Judge, the opening sentence runs. "The lands held by the several petitioners are  undisputable               estates within the meaning of Art. 31-A of the               Constitution." The  third learned Judge who delivered a  separate  judgment stated in paragraph 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."                             405 We  may  also :note that in Purushothaman  Nambudri  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 expression 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 a single  tenure  which could  be  said to, be equivalent to  an  estate-would  come under Art. 31-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 they are held on  indepen- dent  tenures  and  are not parts of land held  or  let  for purposes  of-agriculture or for purposes ancillary  thereto. This  is  the result of the decision of this Court  in  U.P. State  v. Raja Anand(2).  In that case it was held  that  in the  case  of a gran of the nature of a jagir  or  inam  its acquisition  for  the purpose of agrarian  reform  would  be protected under Art. 3 1 A in spite of the fact that  hund- 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.  3 1 A unless the same were held or let  for  purposes ancillary to agriculture. The impugned Acts are not the first enactments of the  State to  divert  lands  from  the  hands  of  large  owners   for distribution  among  less favoured people.  The  density  of population  a  substantial  portion  whereof  is   landless, coupled with the high rate of unemployment, have always been a  headache to the State of Kerala.  To relieve  the  latter evil at least partially, ’he State embarked upon legislation very  soon after the Reorganisation of States in 1956.   The Kerala Agrarian Relations Bill was introduced in the  Kerala Legislative  Assembly in December 1957 and was passed by  it

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in  June  1969.   Ultimately, after  some  modification,  it received the assent of the President in January 1961 and was intituled  the  Kerala Agrarian Relations  Act,  1960.   Its object  was to provide for acquisition of certain  types  of agricultural  I  lands  in the State  beyond  the  specific, maximum  extents laid down in the statute.  It was  attacked on  various  grounds  in this Court by two  groups  of  writ petitions  filed  in 1961.  The Act was sruck down  by  this Court in the second group of petitions reported in  Karimbil Kunhikoman v. State of Kerala (3). The ground urged relevant for   our  present  purpose  was  that  the   Act   exempted plantations  of  tea,.  coffee,  rubber  and  cardamom  from certain  ceiling  Provisions  but  no  such  exemption   was provided for in the case of plantations of areca, and pepper and  as  such was violative of Art. 14.  The basis  of  this decision was that the-lands held by rycytwari patadars (1)  [1962]- Supp. (1) S.C.R. 753 at 817.      (2)  [1967]-1 S.C.R. 362. (3)  [1962]-Supp. (1) S.C.R. 829. 406 Which  came 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. 3 1 A(2(a) of the  Constitution and   therefore  the  Act  was  not  protected  by   Art.31A 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 Kerala  (supra) that the validity of the Act could not  be, questioned  by  persons holding land on Puravaka  tenure  or Pandaravaka Veruvupattam tenure which satisfied the test  as to what constituted art estate under Art. 31-A(2) (a) of the Constitution. Chapter II of the 1960 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 a 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  did not  possess  any  land  ,or possessed land less than Ac. 5-00 of certain type. It was held by this Court in Karimbil Kunhikoman’s case that the  main  purpose  of  the Act was  to  do  away  with  the intermediaries  ;and  to fix a ceiling and give  the  excess lands,  if any, to the landless or those who had  land  much below the ceiling.  The Court held that the lands held by  a 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(1) from attack under Arts. 14, 19 and 31  of the  Constitution.  With regard to the contention on  behalf of  the,  petitioners that there was no  reason  to  exclude plantations  of areca and pepper from exemption  granted  to other  plantations like those ,,of tea, coffee, rubber  etc. the Court noted that "The  objective of land reform including the  imposition  of ceilings on land holdings is to remove all impediments which arise from the agrarian structure inherited from the past in order  to  increase agricultural production, and  to  create conditions for evolving as speedily as possible in  agrarian economy  with  a high level of efficiency  and  productivity (see  D.  178 of the Second Five Year Plan) Even So,  it  is recognised that some exemptions will have to be granted from the ceiling in order that production may not suffer."

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The  main  factors  to  be  taken  into  account  to  decide exemptions from the- ceiling in the Second Five Year Plan at p. 196 as noted by this Court were: 407 (1)  integrated   nature  of  operations  especially   where industrial  and  agricultural  work  are  undertaken  as   a composite enterprise, (2)  specialized character of operations, and (3)  consideration  from  the aspect  of  agricultural  pro- duction  the need to ensure, that efficiently managed  farms which fulfil certain conditions are not broken up. According  to the judgment it was in pursuance of this  that the  Second  Five  Year  Plan  recommended  exemptions  from operation  of ceilings of plantations like tea, coffee,  and rubber,  where  they constitute  reasonably  compact  areas; specialised farms engaged in catle bleeding, dairying,  wool raising  etc; sugarcans farms operated by  sugar  factories; and  efficiently  managed  farms which  consist  of  compact blocks  on  which heavy investment or  permanent  structural improvements  have been made and whose break-. up is  likely to  lead  to  a  fall in  production.   The  same  view  was reiterated  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 cultivation  in India issued by the Farm  Information  Unit, Directorate of Extension, Ministry of Food and  Agriculture, in September 1959 the Court observed that "the  most  important pepper producing State in,  India  was Kerala where the cultivation was on an organised  plantation over fairly    extensivee areas.." The  Court  also observed that the  initial  expenditure  on laying out a pepper plantation could be recovered only after several years.      A  similar  reference was made  to  Farm Bulletin  No. 14 with regard to arecanut.   On-the  material before, the Court it took the view that fixation of  ceiling on  arecanut garden would hamper production  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 Art. 14 of the Constitution.  Addressing itself to  the  question whether the provisions were  severable  it took the view that (see P. 861):- "the  legislature   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 detriment to national economy.  It               seems  that  the legislature  could  not  have               intended in order to 408 carry out the purpose of the legislation to do so even after breaking-up  all the plantations which existed in the  Sale. It  follows  therefore that the legislature could  no,  have passed  the rest of the Act without the provisions  relating to  plantations.   As  these provisions  affect  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 plantations cannot be severed from the Act  and struck  down only by themselves.  Therefore, the  whole  Act must struck down as violative of Art.14 of the  Constitution so far as it applies to ryotwari lands in those areas of the State which were transferred to it from the State of Madras.

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The Act was also held to be violative of Art. 14 on  account of  the manner in which the celling had been fixed under  S. 58.   It  was further held to be objectionable on  the  same ground  because  of  the progressive  cuts  imposed  on  the purchase price under s. 52 and the market value under S.  64 in  order  to  determine the compensation  payable  to  land owners  or  intermediaries in one case and to  persons  from whom  excess land was taken in another.  In the  result  the Act  was  struck  down in relation to  its  application’  to ryotwari  lands which had come to the State of  Kerala  from the State of Madras. However, the Legislature of Kerala passed a new Act known as the Kerala Land Reforms Act, 1963 which became Act 1 of 1964 and  amended.  it  further by Act 35 of  1969  which  became effective from 1st Judy, 1970 Act 1 of 1964 was included  in the  Ninth  Schedule  of  the  Constitution  receiving   the protection  of Art. 31-B.  Such an immunity however did  not attach to the Amending Act of 1969.  The Act as amended  was challenged  by numerous writ petitions filed in  the  Kerala High  Court.  These were all decided by a judgment  reported in  Narayan Nair v. State(1).  The conclusions of  the  High Court may be summarised as follows :- 1.   The  Act as a whole, was a measure of agrarian  reform. It  had to be read as applicable to agricultural land  alone by the doctrine of severable application.  It got protection of  Art.  31-A  though  portions failed  for  want  of  that protection and could be challenged under Arts. 14, 19 and 31 of the Constitution. 2.   According  to  the learned Chief Justice  of  the  High Court and one of his colleagues agrarian reform may be  wide enough  to include ameliorative measures for  agriculturists unrelated to rights in the lands but in (1) A.I.R. 1971 Kerala 98.                             409 the  context  of  Art. 31-A it  could  only  cover  measures affecting rights in estates.  According to the third learned Judge  the scope of agrarian reform was much wider  and  the objective  of  such  reform  justified  the  enactment   and protected it under Art. 3 1 A. The  net result of the provisions relating :to  compensation payable under S.72-A was that it was not likely to exceed  a third of the market value of the property and even this  low compensation was not payable within a reasonable time.  Even so  the provisions under consideration being those  for  the acquisition  by  the State of rights in an  estate  for  the purpose  of  agrarian reform they were  immune  from  attack under Arts. 14, 19 and 31. In this judgment we, shall only refer to such provisions  of the  Act as call for special attention for the  disposal  of the  writ petitions while others are the subject  matter  of the  group  of  appeals filed in this Court  from  the  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  regard  to the tracts of land actually occupied by the said plantations etc.   The  definition of ’Plantation’ in the  Act  of  1964 suffered  a  change  by the Amendment Act  of  1969.   Under s.2(44) of the Act of 1964 ’plantation’ meant any land  used principally  for  the  cultivation of  tea,  coffee,  cocoa, rubber,  cardamom or cinnamon, (known as  plantation  crops) and included.- (a)  land used for any purpose ancillary to the  cultivation of  plantation crops or for the preparation of the same  for the market; (b)  land  contiguous to, or in the vicinity of,  or  within

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the  boundaries  of, the areas  cultivated  with  plantation crops,  not exceeding 20 Per cent of the area so  cultivated and reserved by the said person and fit for the expansion of such cultivation; (c) Agricultural lands interspersed within the boundaries of the  area  cultivated  by the said  person  with  plantation crops,  not exceeding, such extent as may be  determined  by the Land Board as necessary for the protection and efficient management  of  such cultivation.  Although not  within  the definition   of  ’plantations’  cashew  estates   having   a contiguous extent of Ac. 10-00 or more, pure pepper  gardens and  pure arecanut gardens having a like extent of Ac.  5-00 or more were exempted 410 from  the  operation of the 1964 Act under s.  81.   By  the amendment in 1969 the said exemptions have been deleted from s. 8 1. Cocoanut gardens were never made the subject  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 petitioners  adopted  the arguments  advanced by Messrs Chagla and Setalvad with  some additions thereto. Both  Mr. Chagla and Mr. Setalvad pursued the same  line  of attack against the vires of the Act.  Their submissions were as follows :- (a)  Chapter  II  of the Act was not  aimed  exclusively  at agrarian  reform and as such was not saved by Art. 31-A., In particular, even if the Act of 1964 got the protection of Art. 31-B by inclusion in the Ninth Schedule, the amendments in the 1969 Act are not similarly protected and can only  be upheld if they are covered by, Art.     3 1 A. (b)  By the deletion of cls. (f ) and (g) of, s. 8 1 (I)  by the  amendment  of 1969 and taking away the exemption  given by  the 1964 Act to cashewe states of AC. 10-00 or more  and pure  pepper gardens and pure areca gardens of AC.  5-00  or more, the enactment has become violative of Art. 14 as  was, pointed out in Karimbil Kunhikoman’s ease (supra) as  should be struck down.  It was further said that these  plantations i.e. of cashew, pepper and areca, 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 plantations will  be decimated  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 plantations  alike under Act 17 of 1960.  Further, Plantations Labour Act 69 of 1951 treats all plantations as industries.  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 expansio  of  plantations or are likely to be taken  up  for expanson  in the future cannot be acquired and  diverted  to other purposes inasmuch as the Rubber 411 Act  of  1947  has declared the rubber  industry  to  be  an industry   of   national  importance.    The   Parliamentary legislation  under  Entry 52 of List I must  have  supremacy over State, Legislation encroaching thereupon. Mr. Natesan learned counsel appearing for the petitioner  in W.P. No. 149 of 1970 adopted the above arguments, and raised an  additional plea for cocoanut gardens being  regarded  as

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plantations  in the same way as tea, coffee etc.  and  urged that   denial   of  protection  to   cocoanut   gardens   is discriminatory and violative of Art. 14 on the same  grounds as  impelled  this  Court  to take  this  view  in  Karimbil Kunhikoman’s (1) case. Mr. Harindranath who appeared in Writ Petitions 132 and  133 of 1970 adopted the arguments of Messrs Chagla And  Setalvad and so far as writ petitions 132 and 133 were concerned,  he did not press the point as to the invalidity of s.4-A  which had  been  struck  down  by the Kerala  High  Court  in  its judgment in Narayanan Damodaran v. Narayana Pancicker (2). (d)  Mr. Chagla appearing in Writ Petition  167/1970  raised additional   Arguments   with   regard  to   the   area   of Ac. 530-00 planted with eucalyptus and Ac. 5-50 planted with teak.    He  contended  that  the  timber  from   eucalyptus plantation  was used in rayon pulp, manufacture and as  such the p lants were grown for an industrial purpose. Mr.  J. B. Dadachanji contended that in considering  Central and  State  Legislation on the same subject  the,  pith  and substance  of  the legislation was to be  looked  into.   He submitted  that the aim of the Rubber Act was to secure  raw material  for  the,  industry  and  the  raw  matterial  was integrally  connected with the end product and that  if  the latter  was the 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 a concept which was well recognised in law and  the legal history with regard to plantation had to be taken note of.   He, drew our attention to a number of measures  passed by  the Central Legislature to 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 the  industry in the finished products would be adversely affected if  the production  of the raw material was in any way  stalled,  or affected by the State Legislature. We may note the main provisions of Chapter III of the Apt as enacted in 1964 and consider the effect of the amendments (1] [1962] Supp.  1 S.C.R. 829 (2) 1971 Kerala Law Journal 461 1286SupCI/72 412 introduced by the 1969 Act.  The broad scheme of Chapter III of the Act of 1964 is epitomised by 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 subclauses (f), (g)  and  (n). Sub-cls. (f) and (g), relate to cashew estates, pure  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 justified  under Art. 3 1 A if it is included in  a  tenure which can be equated with an ’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

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the  same  manner as tea, coffee, or rubber  and  these  are essentially  "homestead  garden crops". The State  does  not admit  that  in Kerala pepper cultivation  has  reached  the plantation  stage or that arecanut is generally grown  on  a plantation scale and asserts that the cultivation of pepper, areca,  cashew  and cocoanut is in the main on  holdings  of less  than  Ac.  5-00.   It appears to  us  that  in  giving exemption to. pure pepper gardens and pure arecanut gardens- the,  word  "pure" being used to show that  the  lands  were being utilised substantially if not exclusively for training pepper vines and growing arecanut trees-the State recognised that  these  called for some protection but  now  the  State asserts  that pepper and areca are  "’essentially  homestead garden crops" or that "these have not reached the plantation stage."  After all the State is best qualified  to  consider are overall aspect of the matter in relation to its  economy and  on  the  materials before us we cannot  hold  that  the State’s viewpoint is not corect. With  regard  to  cocoanut gardens, it  was  argued  by  Mr. Natesan  that there was no reason to make  a  discrimination thereof from plantations like tea, coffee etc.  He  referred us to the definition of ’plantation’ in s.2(6) of the Kerala Plantations  (Additional  Tax)  Act  of,  1960  under  which plantation  meant land used for growing one or more  of  the following,  namely,, cocoanut 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 above,- mentioned Act should not have excluded them from 413 exemption   under  the  Act  of  1964  and  1969  and   this discrimination   should   have  the  same  result   as   the discrimination  against  pepper and areca  had  in  Karimbil Kunhikoman’s  case.   He  submitted that  cocoanut  and  its products  could  be  of  considerable  importance-  to   the national  economy if proper- attention was directed  towards it.   He made extensive reference to a monograph called  the Cocoanut Palm by Menon and Pandalai to show that coir  mats, rugs, mattings and carpets were being exported from India to various  countries and to augment the production of coir  it was necessary to stimulate the production of cocoanut not in small  gardens but in plantations.  He referred to the  said monograph to show that mechanisation in cocoanut gardens was only  possible  where  the  area  was  not  small  and  such mechanisation  would  greatly increase efficiency  and  "any attention  paid  to  the cocoanut Palm  will  be  adequately rewarded  as has been the experience 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 of 1953  and by  s.  2  thereof declared that it was  expedient  in  the public interest that the Union should take under its control the  coir industry.  According to Mr. Natesan coir  industry could only thrive by encouragement 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 the 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. 3 1 A ( 1 ) 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  a  rate not less than  the  market  value thereof was provided which undoubtedly is not the case here.

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S.82  of the Act of 1964 was aimed at imposing ceiling  area on  families and adult unmarried persons and did  not  touch companies.   The  amending.  Act of 1969  makes  a  complete departure  from  the above provision and imposes  a  ceiling limit on all persons inclusive of companies or  incorporated bodies.The  contention  that reduction in the  ceiling  area fixed  by the 1964 Act had to be compensated for by  payment of market value of the difference between the ceiling  areas fixed  by the two Acts cannot be accepted inasmuch as the  " ceiling  limit applicable to him under any law for the  time being  in  force in 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 414 to prescribe a ceiling for all landholders whether they were incorporated or not and merely because the 1964 Act did  not touch  these incorporated bodies, no objection can be  taken to their being brought within the fold by the Amending  Act. S.  83 as amended in the Act of 1969 imposes a ceiling  area on  incorporate  bodies  as well.  S. 85  provides  for  the determination  of lands in excess of the ceiling in  certain cases  and  the  surrender  of all  excess  ’lands.   S.  86 provides for the vesting of excess lands in Government which are  to  be surrendered under s. 85.  It empowers  the  Land Board   to  call  upon  persons  affected  by  the   ceiling provisions ’to surrender the excess lands and in default  of compliance ’to take possession thereof in manner prescribed. Upon surrender all lands are to vest in the Government  free 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 kudikida ppukars to these  persons,  as far as possible and (ii) out of the remaining area available for  assignment to assign (a) 50% (later raised to  87-1/2%) to  landless agricultural labourers of which again one  half was  to  be  given to the  landless  agricultural  labourers belonging to the Scheduled Castes, (b) 25% (later reduced to 12-1/2% ) to small holders and other landlords not  entitled to  resume any land and (c) the rema 25% to cultivators  who did not possess 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 a person 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(1) was completely 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 vested in the Government under section 86 or  ’Section 87, as specified below: (i)  the lands in which there are, kudikidappukars shall  be assigned to such kudkidappukars; (ii) the remaining lands shall be assigned to- (a)  landless agricultural labourers; and (b)  small holders and other land lords who are not entitled to resume any land Provided that eighty-seven and half per cent of the area  of the   lands  referred  to  in  clause  (ii)  available   for assignment in a taluk shall be assigned to landless

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415 agricultural  labourers of which one-half shall be  assigned to   landless  agricultural  labourers  belonging   to   the Scheduled Caste or the Scheduled Tribes. Explanation.-For the purposes of this section- (b)  a kudikidappukaran or the tenant of a kudiyiruppu shall be deemed to be a landless agricultural labourer if he  does not possess any other land; and (c)  "Scheduled Castes" and "Scheduled Tribes" shall include converts to Christianity from such Castes and Tribes." As  a  result of the amendment assignment of land is  to  be made  not only to kudikidappukars and landless  agricultural labourers  but also to tenants of a kudiyiruppu who were  to be  deemed landless agricultural labourers if they  did  not possess any other land.  A new sub-s. (lA) was added reading : "Notwithstanding  anything contained in sub-s. (1) the  Land Board  may,  if  it considers that any land  vested  in  the Government  under section 86 or section 87 Is  required  for any public purpose reserve such land for such purpose." Sub-ss. (2) and (3) were modified by limiting the extent  of assignment  of land from Ac. 5-00 to Ac. 1-00 in all  cases. Subs. (lA), 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 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  entirely unconnected  with  agriculture  such  as  for  example,   an "industrial  undertaking" on the ground that "having  regard to  the  context  in which it appears  the  reservation  for public  purposes  under  that sub-section can  only  be  for public  purposes  relating  to  agriculture,  such  as   the provisions  for  threshing  floors or  the  construction  of irrigation  or  drainage  channels or  the  construction  of houses  for  agricultural labourers", the  new  sub-s.  (1A) shows  that  the  State did not intend to be  bound  by  the construction placed upon s. 96 by the High Court and made it clear  that the section was not to be so read  down  thereby keeping,  in its hand the matter of reservation of land  for public purpose of any kind not limited to agrarian reform. The agreement though forcefully put cannot be accepted.  The object  of  both  the 1964 Act and the present  Act  was  to effect  agrarian reform, which only can give to the  statute the protection 416 of  Art.31-A. This was made clear by the High Court  in  its judgment  and in our view rightly, by reading down the  said provision   as  to  reservation  for  public   purposes   to reservation  for  purposes  falling  within  the  expression "agrarian 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 again been made prone to the  same constitutional  challenge.  We have no doubt that  the  sub- section is couched in too general and wide a language  capa- ble  of including public purposes which would not  be  those falling within the expression ’agrarian reform’.  There was therefore  considerable force in the contention  of  counsel for  the petitioners The fact however that  the  Legislature has  once again used the same general language in  spite  of the  aforesaid interpretation given by the High  Court  need

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not  I,--ad  us to strike down wholly the  sub-section.   In accordance  with the well recognised canon  of  construction adopted  in a number of cases decided by this Court we  read the  sub-section  to mean only reservation of the  Jand  for such  public purposes as would bring about  agrarian  reform inasmuch  as any acquisition under Art. 31-A for any  public purpose  other  then  that  falling  under  the   expression "agrarian  reform"  cannot  be  considered  as  having   the protection of that Article. It   was  argued  that  the  section  suffers   from   other deficiencies.    It-was  said  that  in  order   to   secure protection  of Ail. 31-A it must be shown that  the  surplus lands  were  meant to be utilised only for  agrarian  reform which, broadly speaking, would include distribution of  land among landless or near landless people to advance the  cause of  agriculture and other equitable distribution of land  to diminish  imbalance in society and prevent concentration  of land in the hands of a few to raise ’the economic  standards and  better rural health and social conditions as  was  laid down  in Ranjit Singh v. State of Punjab(1).  Some  examples cited  in  that case were provision for  the  assignment  of lands  to  village  panchayats for the use  of  the  general community  or for hospitals, schools, manure  pits,  tanning grounds,  the  settling of a body of  agricultural  artisans such as village carpenters, village blacksmiths etc. A  fair  amount of argument was advanced  to  challenge  the provisions   in  the  Act  relating   to   kudikidappukaran, kudikidippu  and  kudiyiruppu.  It was  said  that  settling landless  people  on  land by itself  would  not  constitute agrarian reform.  It was also 417 said  that such landless people unless they  are  associated with  agriculture would not help the cause or  advance  such reform-  further  a  tenant of a  kudikidappukar  would  not necessarily  be an agricultural labourer and  a  kudiyirippu might  be occupied by people unconnected  with  agricultural pursuits. The important statutory provisions may be noted in this con- nection.  Under s.2(25) of the Act "kudikidappukaran"  means a person who has neither a homestead nor any land  exceeding 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 which he could erect a homestead and (a)  who has been permitted with or without an obligation to pay  rent  by a person in lawful possession of any  land  to have  The use and occupation of a portion of such  land  for the purpose of erecting, a homestead; or (b)  who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to  pay rent, a but 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 attached thereto. Provided that a person who, on the 16th August, 1968, was in occupation  of  any land and the homestead  thereon,  or  in occupation  of a hut belonging to any other person, and  who continued  lo 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  homestead,  or hut,  as the case may be, with permission as required  under this clause. Under’s.2(26)  "kudiyiruppu"  means a holding or part  of  a holding consisting of the site of any residential  building, the  site or sites or other buildings appurtenant thereto,

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such  other  lands  as  ate  necessary  for  the  convenient enjoyment   of  such  residential  building  and   easements attached thereto but does not include a kudikidappu.   Under s.75(1)  no kudikidappukaran was liable to be  evicted  from his  kudikidappu except on the grounds mentioned.  Under  s. 80-A kudikidappukaran was to have subject to the  provisions of  the  section  the  right  to  purchase  the  kudikidappu occupied  by  him and lands adjoining thereto.   Under  sub- s.(3) the extent of the land which the kudikidappukaran  was entitled to purchase under the section was to be three cents in  a city or major municipality or five cents in any  other municipality    or   ten   cents   in   a    panchayat    or Sections go B and laid down the procedure for the  purchase, of  kudikidappukaran and the deposit of purchase  price  and the issue of a certificate of 418 purchase.   Under  s.95 of the Act before its  amendment  in 1971  the  Land Board constituted under the Act  had,  after reserving  in  each village the lands necessary  for  public purposes,  to assign inter alia the holdings in which  there were kudikidappukars to such kudikidappukars.  There was  an Explanation to the section by which a kudikidappukaran or  a tenant  of a kudiyiruppu was to be deemed to be  a  landless agricultural labourer if he did not possess any other  land. The section has been amended in 1971 but the main provisions thereof  including the Explanation are also in  the  amended Act. The objections raised by the petitioner in Writ Petition No. 516 of 1970 were sought to be met in the, counter  affidavit of the State as follows :- "(a)  Kudikidappukars as a class were permitted by the  land owners to reside in their land in return for their  services as  watchmen  of the parambas and cocoanut  gardens  and  as agricultural labourers.  Kudikidappukars work for the  owner of  the property in which the kudikidappu is situated.   The wages paid to the kudikidappukars by the owners of the  land are  generally  lower  than  That  paid  to  the  labourers. Kudikidappukars work for the owners of the land at the  time of   pluckin  of  cocoanuts  and  at  times  of   conducting agricultural  operations  in the land.   Besides  this,  the kudikidappukars  work  in the paddy lands of the  owners  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 a person may be both an artisan and a  la-               bourer,  doing  what work comes his way  at  a               given  time  in the year.  Thus they  had  all               connections  with the lands as persons  living               in  the huts or homesteads and also  labourers               employed in the cultivation of lands. (b)  The   granting   of  relief  to   kudikidappukars   and conferment  of benefits on them have always been treated  as part  of  measures of agrarian legislation  in  Kerala.   By Proclamation  XVIII  of  1122,  the  Government  of   Cochin recognised   the   need   to   prevent   the   eviction   of kudikidappukars.    In   Travancore,  permanent   right   of occupancy  in respect of their kudikidappu was conferred  on kudikidapukkars by the Travancore Prevention of Eviction Act XXII of 1124.  Under this Act, the rights of kudikidappukars were made heritable. 419 Further  this  Act gave every kudikidapukkaran  a  permanent right   to  occupy  in  his  kudikidappu,  subject  to   the

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provisions  of  the  Act.  Section 7  of  the  Act  provides specific grounds in which kudikidapukkars might be  evicted. The Malabar Tenancy (Amendment) Act, 1951 gave protection to holders ’ulkudies’ or ’kudikidappus’ by granting them  right of permanent occupation subject to payment of fair rent. (c)  Protection   of   kudikidappukars  always   formed   an important  part  of legislation 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 a scheme of agrarian reform embodied in the Act.  Under  the provisions  of that Act, as well as under the Principal  Act kudikidappukarans  were entitled to 90% of the  compensation in case of acquisition of land occupied by his homestead  or               hut. (d)  The report of the Agrarian Problems Enquiry  Committee, 1949  (published by the Government of Cochin) the report  of the Land Policy Committee, 1950 (published by the Government               of  Travancore Cochin) and the report  of  the               Special Officer for the investigation of, Land               Tenures  on he recommendations of the  Malabar               Tenancy Committee, May 1947 (published by the               Madras  Government) recommended  measures  for               the protection of kudikidappukars as part  and               parcel of tenancy legislations.  The report of               the  Land  Policy  Committee  considered   the               question  of conferment of purchase rights  on               kudikidappukars.   Who report  also went  to               show ,hat the kudikidappukars were  originally               inducted   as   agricultural   labourers   and               watchmen. (e)  The Kerala Land Reforms Act, 1963 (Act 1 of 1964)  took               within  its  compass certain  provisions  ’in-               tended    for    the   protection    of    the               kudikidappukars  as  an integral part  of  the               scheme  of  agrarian reforms embodied  in  the               Act.   The provisions in the Kerala Act 35  of               1969  were in continuation and enlargement  of               the  rights conferred on kudikidappukars  from               time  to  time  as  an  integral  part  of  he               agrarian  reforms  and those  provisions  were               intended  to make them the owners of huts  and               homesteads  and  the lands  adjacent  thereto.               Kudikidappukars,  landless  or  near  landless               labourers  were  at  the very  base  of  rural               economy.   They  were connected with  land  as               agricultural labourers.  They 420 have  interest in the land as persons living and working  on them.  Statutory provisions dealing with their rights would, therefore,  be a 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  estates   are concerned,  the direction for compulsory purchase  in  their favour cannot be questioned under Art. 31-A.   Substantially these  provisions  were contained in the Act of  1964  which received protection under Art. 31B by inclusion in the Ninth Schedule.   The  land reforms legislations 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  goes  to  show   that kudikidappukars have for very many years past been  residing in  the lands in return for services which may  be  seasonal

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and  they  were by and large  agricultural  labourers.   The rights  conferred on them in respect of  kudikidappu  cannot therefore  be said to have trangressed a scheme of  agrarian reform.   With  regard to the Explanation to s.  96  that  a kudikidappukaran or a tenant of a kudikidappukaran would  be deemed to be a landless agricultural labourer if he did  not possess  any other land is beyond challenge inasmuch  as  it was contained in the Act of 1964 which had the protection of Art. 3 1 B read with the Ninth Schedule to the Constitution. The  problem posed by the presence of hordes of  kudikidapu- karans  and the tenants of kudiyiruppus and the pressure  on the  land  thus  caused have engaged the  attention  of  the legislature for many years past as mentioned in the  counter affidavit  of  the  State, and it is also  apparent  from  a number  of decisions of the Madras and Kerala  High  Courts. We   may  mention  the  case  of  Armugha  Konar  v.   Sanku Muthammal(1)  where  a  tenant claimed  to  be  entitled  to purchase the landlord’s right in kudiyiruppu under s. 33  of the  Malabar  Tenancy  Act (Act XIV  of  1930).   A  similar question  fell  for  consideration in Saimva  Umma  v.  Kun- hammad(2).  In that case it was held that a vacant site  not attached  to  a building will not become  kudiyirappu.   The construction  of any kind of a building on such a site  will not  also make it a kudiyiruppa.  Reference was made to  the observations  oil the Kerala High Court in Mariain &  others v. Ouseph Xavier(3) wherein referring to 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  a  community. essentially agrarian, with large chunks of the (1)  A.I.R.  1960  Madras 487.             (2)  I.L.R.  1957 Kerala 815. (3) 1971 Kerala Law Times 707 at 710-1 1. 421 population  engaged in agricultural labour and  accommodated by,  or with the leave and licence of, the, .owners in  tiny tenements  dotting  the farms and the fields where  or  near where   they  work,  feudal  fashion,  a   certain   special equilibrium  is maintained.  But the pressure of  population and consequent increase in the number of shacks or kudis  on the  one hand and the tempting rise in the price of  produce and  of  lands  appetising  the  landlords  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 a social phenomenon of many evictions of  these homeless  in the world..... The play of these social  forces explains  the legislative insulation of kudikidappus,  punc- tuated by further ameliorative changes in the law calculated to  plug  the  loopholes exploited by the  land  owners  and brought to light by judicial decisions .... When  the  legislature conferred immunity from  eviction  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  became noticeable  for  reasons  I have already  stated.   Since  a permission  to  occupy  was an  essential  ingredient  of  a kudikappu, by definition, this Court held that where consent was not extant, in the sense of its having been withdrawn or not renewed, the right of kudikidappu also ceased to  exist. Landlords  could easily stultify the kudikidappu  protection clause  by unilaterally withdrawing permission to remain  On the  homestead  and  the flood-gates of  eviction  would  be thrown open.  The legislature naturally re-explanation, that any person in occupation of a kudikidappu on 11th April 1957               and  continued on the hutment would be  deemed

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             to be there with permission required as  under               the  clause.  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 removed by               with  drawal of permission by the land  owner.               Once  a  person  came  to  occupy  a  hut   by               permission  he became a  kudikidappukaran  and               acquired the right to fixity." The above is sufficient to show that the problem of  kudiki- dappukaran   has  always  been  intimately  connected   with agricultural land and can legitimately come within "agrarian reform".  Historically they were allowed to come on to the land because of the 422 needs of an agricultural population and any scheme which en- visages the improvement of their lot and grant of  permanent rights  to Them would not transgress the limits of  agrarian reform. It  may however be noted that our judgment only  relates  to lands  in panchayat areas and kudikidappukars etc. on  them. We  are  not dealing with a similar problem  in  respect  of lands in municipal areas.  Although no specific argument was advanced ,on the point it appears to us that the  provisions for   purchase   contained  in  s.  80-A  of  the   Act   by kudikidappukaran  of  their kudikidappus  for  consideration less  than  the market value of the land when the  same  was below  the ceiling area fixed under the Act and  within  the area  in the personal cultivation of the landlord  would  be hit by the second proviso to Art. 31-A of the Constitution. Argument  was  also raised that s. 83  which  forbade  every person  from  owning  or holding or  possessing  land  under mortgaged in the aggregate in excess of the ceiling area was bad  inasmuch as the provision made no  distinction  between agricultural  land and other lands.  This was sought  to  be fortified by reference to s. 81 some sub-clause of which, it was argued, could possibly have no bearing. on  agricultural land.  For insurance, sub-cl. (k) of s. 81 (1) only  exempts "land  belonging to or held by an industrial  or  commercial undertaking  And  se,, apart for use for  similar  purpose." That  all lands belonging to or held by such an  undertaking (lid not qualify for exemption is made clear by the  proviso to the clause under which Any land not actually used for the purpose  for  which  it had been set  apart  could  only  be considered for exemption if the setting apart has been  made within  a time fixed by the District Collector by notice  to the  undertaking concerned.  Similarly cl. (m) it was  said. aimed at giving a very restricted exemption even with regard to  lands  appurtenant to dwelling houses, tanks,  wells  or other  structures  inasmuch  as such  lands  could  only  be exempted if found necessary for convenient enjoyment of  the house  sites,  structures  etc.  The  adjudication  of  ,,he question  as to whether any land was to be exempted  or  not was  left to be decided by the Land Board constituted  under s.  100  by  virtue of the provision in s.  101(4)  and  the decision  of  the Land Board was to be final.  It  was  said that  even  within  municipal areas  lands  appertaining  to dwelling  houses  or belonging to or held by  industrial  or commercial  undertakings which could serve  no  agricultural purposes were within the fold of the Act.  The intention  of the  legislature, it was urged. was clear in hit the  legis- lation  was  not  meant  to  make  any  distinction  between agricultural  and non-agricultural land but was a  composite Act which affected every bit and parcel of land in the State of  Kerala.   Such  a  comprehensive  legislation,  it   was

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contended, could rot possibly be upheld under Art. 31-A. 423 No doubt in its counter affidavit the State has made a  case that  "in Kerala within cities and municipalities there  are tracts  of cultivated lands" and merely because the Act  was applied   to   the   lands   situate   within   cities   and municipalities  it  did  not de-tract   from  its  essential character  as  a measure of agrarian reform.   It  was  also submitted in the said affidavit: "Lands  are agricultural lands unless they are put  to  non- agricultural  uses like the construction of buildings  which alters  the  physical character of the  land,  rendering  it unfit for agricultural purposes.  Neither the principal  Act nor  the  Amendment Act concerns themselves  with  commerce, trade or industries or buildings." We  find ourselves unable to accept the.  above  submission. Whether  lands  are agricultural or not may depend  also  on their physical properties and situation.  There may be rocky lands,  sandy  lands, hillsites, uncultural  lands,  forests etc.  which  by  their very natural   are  not  agricultural lands.   So  also  lands  comprised  within  a  municipality specially  in, towns and. cities cannot be  styled  agricul- tural  lands because agricultural operations can be  carried on  there.  Further the statements in the counter  affidavit do  not  follow  the provision of sub-ss. (k)to  (m)  of  s. 81(1).   To  take,  an example, if  an  industrial  or    or commercial  undertaking  owns several  blocks  of  buildings situate  close to each   other with some  land  interspersed between  them,  it  cannot be said that  these,  lands,  are agricultural lands and can only. qualify for exemption  only if  they  are notified to the, District  Collector  and  set apart  for  the  industrial or  commercial  purpose  of  the undertaking.  Similarly, a person owning a house with  lands surrounding  it covered by a garden or an orchard  within  a municipality  should not be left to the mercy, of  the  land Board  to  decide  the  extent of  land  necessary  for  the convenient  enjoyment of the house and have the  rest  taken away from him.  However laudable may be the, object of’  the legislature  in  attempting to settle  landless  persons  on land,  obtained by the Land Reforms Act, the taking away  of such lands in the circumstances mentioned above either  from industrial  or commercial undertakings or from the owner  of house sites within a municipality for distribution among the landless cannot be said to effect agrarian reform.  The  Act in  so far as it purports to acquire these Lands  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 ought to  be struck 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  a declaration that it was expedient 424 in 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  the ’conditions of a special licence issued by the Rubber  Board and  a licence issued under this section was to specify  the area in which the rubber may be planted or replanted and the period  for  which the, licence was to, be valid.   He  also

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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 administered 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 rubber contained in any  manufactured  article. Under  s. 8(1) it was to be the duty of the Rubber Board  to permit such measures as was thought fit for the  development of  rubber industry.  All this according to Mr. Chagla  went to show that the rubber industry including 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 additional 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  a company  engaged in the manufacture of rubber would  not  be purely  agricultural but that there was an industrial  side to  it  and  any  taking  away  of  lands  from  the  rubber manufacturer  would affect his industry and  so  contravened the provisions. of the Rubber Act. We  find ourselves unable to accept this broad  proposition. However  important  it  may be for the  owner  of  a  rubber plantation  to have or held lands in the immediate  vicinity of  the plantation for its expansion it cannot be said  that the  Rubber  Act  gave the Union Legislature  any  power  to direct  a rubber manufacturer to increase his production  by bringing any additional land under )rubber plants.  All that s.  17  of the Act aims at is to make it obligatory  on  the owner of an estate to secure a licence if he wants to  plant rubber  on land which does not bear it or replant rubber  in portions  of the land which are under it.  Further  although it  was the function of the Rubber Board under s. 8 to  take ,measures  for  the development of the rubber  industry,  it does not 425 appear that the expansion of a rubber plantation or guidance in  that direction by the Board was contemplated  under  the said section. The learned 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 not mean to control the production of raw  material i.e.  the  latex etc. from which rubber  was  produced.   In support  of  his  contention  he drew  our  attention  to  a 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 subject 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 legislations in force the Court observed (see at  p. 420): "The   Provincial  Legislatures  as  well  as  the   Central

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Legislature  would  be  competent to enact  such  pieces  of legislation and no question of legislative competence  would arise.  It also follows as a necessary corollary ,that, even though  sugar  industry was a controlled industry,  none  of these  Acts  enacted  by the Centre was in exercise  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  materials  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 comprised in Entry 27 of  List II.               The process of manufacture or production               would  be  comprised in Entry 24  of  List  II               except  where  the industry was  a  controlled               industry when it would fall within Entry 52 of               List I and the products of the industry  would               also  be  comprised  in Entry 27  of  List  II               except  where  they were the products  of  the               controlled  industries  when they  would  fall               within Entry 3 3 of List III.  This being  the               position,   it   cannot  be  said   that   the               legislation which was enacted by the Centre in               regard  to  sugar  and  sugarcane  could  fall               within Entry 52 of List I." Reference  was  also  made  to  the  decision  in  State  of Maharashtra v.  Patilchand  ( 2 )  in this connection and it was submitted that (1)  [1956]  S.C.R.  393.                     (2)  [1968]  3 S.C.R. 712. 426 taking  away surplus lands which were not under  cultivation of  rubber did not entrench upon the field of  operation  of the Rubber Act of 1947. Mr.  Chagla  also contended, apart from  his  submission  on pepper and areca gardens which have already been noted, that a  jungle was not held for agricultural purposes  and  could not  be  acquired under’ Art. 31-A(2).  A jungle  unless  it is included within an estate consisting inter alia of  lands held for agricultural purposes cannot be acquired, so as  to have  the  protection  of Art. 3 1 A : if  the  holding  or tenure in which the jungle consists 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- cultural  operations normally would be  agricultural  lands. They  would certainly not be forests but the  statements  in the petitions seem to suggest that operations were  carried, hereon  for the express purpose of growing these plants  and trees.   However, lands which are covered by  eucalyptus  or teak growing spontaneously as in a jungle or a forest, would be outside the purview of acquisition. Our conclusions therefore are as follows:-- 1.  It was for the petitioners to establish 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 the 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 absence of  material in  the petitions to show prima facie that the lands of  the petitions   were  not  estates  we  cannot  hold  that   the petitioners  are not affected, by the, Kerala  Land  Reforms Act of 1964 a amended in 1969.  In any event, so far as  the

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provisions of the 1964 Act are concerned the same could  not be  challenged under Art. 31 by reason 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(1). 3.   The  provisions  of the Act withdrawing  protection  to pepper and areca plantations cannot be challenged under Art. 14 if the Ian s were estates within the meaning of Ar. 31  A (2) (a). 4.   The act is not discriminatory with regard 16 cashew and cocoanut gardens. 427 5.   The  withdrawal of exemption from lands  contiguous  to rubber  plantations  by the Amending Act of 1969  cannot  be challenged. 6.   Forest  lands  and  jungles would be  exempt  from  the operation  of  the Act only as  already  indicated,  Private forests  are  however specially  exempted  from  acquisition under the Act. 7.   Dairy  farms  if  they are parts  of  estates  are  not exempt. 8.   Lands planted with eucalyptus or ’teak are agricultural lands and so arc not exempt. 9.   The provision for settlement of tenants of kudiyiruppus or  kidikidippukars  in small holdings would be  covered  by agrarian reform or purposes ancillary thereto. 10.  Lands   which   are  interspersed  between   sites   of commercial  undertakings and house sites  in  municipalities with  lands surrounding them are not agricultural 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 interspersed 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, provisions of the Kerala  Land Reforms Act are beyond challenge.  The  parties will pay and bear their own costs. G.C. 10-L[286]Sup.CI/72 428