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PETITIONER: STATE OF GUJARAT & ANR.

       Vs.

RESPONDENT: KAMLABEN JIVABHAI & ORS.

DATE OF JUDGMENT21/04/1989

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) OJHA, N.D. (J) KULDIP SINGH (J)

CITATION:  1989 AIR 1485            1989 SCR  (2) 687  1989 SCC  Supl.  (2) 440 JT 1989 (2)   163  1989 SCALE  (1)1039

ACT:     Gujarat    Surviving   Alienations    ’Abolition    Act, 1963--Sections  2 (3)(d), 6 & 13--Act protected in  view  of inclusion in Ninth Schedule-Section 2(3)(d)---Alone specifi- cally excluded from protection of Article 31B--Law  relating to  agrarian  reform--Held  the rights  of  the  respondents arising  out  of the forest area  validly  extinguished--Are entitled  to  payment of  compensation  notwithstanding  the provisions of Art. 14, 19 & 31 of the Constitution of  lndia by virtue of Art. 31(A)(1).

HEADNOTE:     One Darbar Harsurvala by virtue of a declaratory  decree made  in 1884 had the hereditary right of collecting  grass, firewood, timber etc. from Gir Forest in the erstwhile state of  Junagarh. This right devolved on his son Jiva Vala.  The State  by an agreement dated 10th August 1914 agreed to  pay Rs.3,500  every year to Jiva Vala and on his demise  to  his heirs, in lieu of the right to collect grass, firewood  etc. In  January 1965 the revenue authorities issued a notice  to the  Respondents--successors-in-interest of Harsurvala  that the right to receive  the  aforesaid  amount had come to an  end  on  the coming  into  force  of the  Gujarat  Surviving  Alienations Abolition Act, 1963 and asked them to refund the amount paid to  them for the year 1963-64. The respondents filed  a  de- claratory  suit  for a declaration that  they  continued  to enjoy the right to receive Rs.3,500 hereditarily and for  an injunction restraining the State from recovering the  amount already paid to them. The Trial Court dismissed the suit. On appeal  the District  Judge allowed the appeal holding  that the  right  to receive the amount annually had not  come  to end.  The  High  Court confirmed the decree  passed  by  the District Judge. The State came up in appeal by special leave against  that judgment of the High Court. Allowing  the  ap- peal, this Court.     HELD:  The Gujarat Surviving Alienations Abolition  Act, 1963 was passed with the object of abolishing certain alien- ations  which  were not affected by the  earlier  enactments which had been enacted for the abolition of various kinds of

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alienations in the State of Gujarat. [690G] 688     The Act is included in the Ninth Schedule to the Consti- tution as Item No. 33. [692F]     Sub-clause  (d) of clause (3) of section. 2 of  the  Act having been specifically excluded, the said clause does  not receive  the protection of Article 31-B of the  Constitution of India. [692G]     The 1963 Act should be construed as having the effect of bringing about the extinguishment of the right in an  estate for  the  purpose of better management of  the  forest  area keeping in view the interests of the people of the State  in general,  and  of  the people living in or  around  the  Gir Forest, in particular. [696C]     In  order  to  treat a particular law as a  part  of  an agrarian  reform contemplated under Art. 31 A(1) it  is  not necessary  that on the land which is the subject  matter  of the said law actual cultivation should be carried on. [695E]     In  the instant case, the right which the family of  the respondents possessed was the right to collect grass,  fire- wood and timber etc. from the Gir Forest and that right  had already been surrendered under the agreement dated 10-8-1914 by  the  said  family  in lieu  of  the  annual  payment  of Rs.3,500. The right which was being enjoyed by the predeces- sor-in-interest of the respondents was a pasture. [693C-D]     The  extinguishment  of the right to receive  a  certain amount  in lieu of the right to remove timber,  grass,  etc. from a forest area, therefore, formed part of the process of agrarian reform contemplated under Art. 31-A(1) as there was clear nexus between the agreement to pay the amount and  the rights arising out of the forest area. [695H; 696A]     The respondents are entitled to the payment of  whatever compensation  is payable under the Act  notwithstanding  the provisions  of  Article  14 and 19 and Articles  31  of  the Constitution of India. [696E-F]     State  of Kerala & Anr. v. The Gwalior Rayon Silk  Manu- facturing  (Wvg.) Co. Ltd. etc. [1974] 1 SCR  671,  referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1357  of 1973.     From  the  Judgment and Order dated  10.10.1972  of  the Gujarat High Court in Second Appeal No. 93 of 1968. 689 G.A. Shah and M.N. Shroff for the Appellants. Krishan Kumar and Vimal Dave (N.P.) for the Respondents., The Judgment of the Court was delivered by     VENKATARAMIAH, J. The question for consideration in this case  is whether the hereditary right of the respondents  to recover a sum of Rs.3,500 per annum under an agreement dated 10.8.1914  entered into between the  predecessor-in-interest of the respondents and the former princely State of Junagadh came  to  an end by virtue of provisions  contained  in  the Gujarat Surviving Alienations Abolition Act, 1963 (hereinaf- ter referred to as ’the Act’).     There  was  one  Darbar Harsurvala of  Mandavad  in  the former princely State of Junagadh. He had a hereditary right to collect certain quantities of grass, fire-wood and timber from the Gir Forest in the State of Junagadh and that  right was recognised by a declaratory decree made by the Rajastha- nik  Court  of Kathiawar in the year 1884. On the  death  of Harsurvala the said right was being enjoyed by his son  Jiva

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Vala  till the year 1914. On 10th August, 1914 an  agreement was entered into between Jiva Vala and the State of Junagadh under  which the State of Junagadh agreed to pay every  year (commencing  with  1st September of the preceding  year  and ending  with the 31st August of the succeeding year) in  the month  of January a sum of Rs.3,500 to Jiva Vala  and  after him to the heirs claiming under him in lieu of the right  to collect  grass, fire-wood and timber which was  being  exer- cised by Jiva Vala. Accordingly, Jiva Vala was receiving the sum of Rs.3,500 every year and on his death his son Kalubhai was  receiving  the said sum every year from  the  State  of Junagadh  and on the State of Junagadh becoming part of  the Union  of  India from the Saurashtra State,  then  from  the State  of  Bombay in which Saurashtra State was  merged  and thereafter from the State of Gujarat which came to be estab- lished  under the Bombay Reorganisation Act, 1960  till  his death. After his death Respondent No.1 --Kamlaben, the  wife of Kalubhai and the other respondents, who were children  of Kalubhai were receiving the amount due to them till the year 1964.  However, in January, 1965 the Mamlatdar of  Visavadar issued notice under the orders of the Collector, Junagadh to the  respondents stating that the right to receive the  said amount  had come to an end on the coming into force  of  the Act, i.e., the Gujarat Surviving Alienations Abolition  Act, 1963,  which  had come into force on 1st October,  1963  and threatening the respondents that measures such as attachment etc. would be taken if the amount 690 paid for the year 1.9.1963 to 31.8.1964 was not refunded  by them  to  the State Government.  Thereupon  the  respondents instituted  the  suit before the Court of the  Civil  Judge, Junagadh  out of which this appeal arises for a  declaration that they continued to enjoy the right to receive the sum of Rs.3,500  per annum hereditarily and for an  injunction  re- straining  the  appellants,  the State of  Gujarat  and  the Collector of Junagadh from taking any action to recover  the amount which had already been paid to them. The Trial  Court dismissed the suit. Aggrieved by the judgment and decree  of the Trial Court, the respondents filed an appeal before  the District Judge, Junagadh in Civil Regular Appeal No. 135  of 1966. The District Judge allowed the appeal holding that the right  to receive the amount had not come to an end  on  the coming  into  force  of the Act. The decree  passed  by  the learned  District Judge was confirmed by the High  Court  of Gujarat  in Second Appeal No. 93 of 1968 vide  its  Judgment dated  10.10.1972. The appellants have filed this appeal  by special leave against the judgment of the High Court.     There  is  no dispute about the facts involved  in  this case.  The right of Harsurvala to take grass, fire-wood  and timber  from the Gir Forest belonging to the State of  Juna- gadh  had been declared in a decree (Exhibit 21)  passed  by the Rajasthanik Court on April 14, 1884. By a further agree- ment  dated  10th August, 1914 (Exhibit 24) which  had  been arrived  at between Jiva Vala, descendant of Harsurvala  and the  State of Junagadh, the State of Junagadh had agreed  to pay every year a sum of Rs.3,500 to Jiva Vala and his  heirs in  lieu  of the right to collect grass,  fire-wood,  timber from  the  Gir Forest, as stated above. That  the  State  of Junagadh  and  then the State of Saurashtra,  the  State  of Bombay and the State of Gujarat were paying the said  amount annually to Jiva Vala and his successors till the year 1964. The only question which arises for consideration is  whether the said right to receive Rs.3,500 per annum came to an  end on the coming into force of the Act.     The Act was passed with the object of abolishing certain

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alienations  which were not affected by the  earlier  enact- ments  which had been enacted for the abolition  of  various kinds of alienations in the State of Gujarat and to  provide for  matters consequential and incidental thereto.  The  ex- pression ’alienation’, as defined in clause (3) of section 2 of the Act reads thus:                    "3, ’alienation’ means--               691                     (a)  any  right in respect of  an  aghat               land  enjoyed by an aghat  holder  immediately               before the appointed day,                     (b) any right in respect of a  Taluqdari               watan enjoyed by the holder thereof immediate-               ly before the appointed day,                      (c)  any  right, with  or  without  any               condition of service, in respect of any  other               land,  village  or portion of  a  village  and               consisting of--                      (i)  any  proprietary interest  in  the               soil  coupled  or not coupled  with  exemption               from  the payment of the whole or part of  the               land revenue, or                      (ii)  a right only to the land  revenue               or  a share of land revenue of the land,  vil-               lage or portion of a village,               enjoyed  by  the holder thereof for  the  time               being  and subsisting immediately  before  the               appointed  day in limitation of the  right  of               the  State  Government to assess the  land  or               village or portion of a village to land  reve-               nue  in accordance with the Code,  whether  by               virtue of an express grant or recognition as a               grant  by  the ruling authority for  the  time               being or otherwise, or                      (d) any right to any cash allowance  or               allowance  in kind, by whatever  name  called,               payable by the State Government and enjoyed by               any  person immediately before  the  appointed               day;"               Section 6 of the Act reads thus:               "6.  Abolition  of alienations  together  with               their incidents and alienated lands liable  to               payment  of land  revenue.Notwithstanding  any               usage  or  custom, settlement,  grant,  agree-               ments, sanad or order or anything contained in               any decree or order of a court or any law  for               the  time being applicable to any  alienation,               with effect on and from the appointed day--               (a)  all alienations shall be and  are  hereby               abolished;               (b)  save  as expressly provided by  or  under               this Act,               692               all rights legally subsisting on the said  day               under such alienations and all other incidents               of  such alienations (including any  right  to               hold office, or any liability to render  serv-               ice  appertaining to an alienation)  shall  be               and are hereby extinguished;                         (c) subject to the other  provisions               of this Act, all alienated lands shall be, and               are hereby made liable to the payment of  land               revenue  in accordance with the provisions  of               the  Code and the rules made  thereunder;  and               accordingly the provisions therein relating to

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             unalienated land shall apply to all  alienated               lands."                   On such abolition the alienee is  entitled               to  compensation as provided in section 13  of               the  Act, if the alienation is one covered  by               section 2(3)(d) of the Act.                   The right to receive a sum of Rs.3,500 per               annum  which  the  respondents  were  enjoying               admittedly did not fall under sub-clauses (a),               (b) and (c) of clause (3) of section 2 of  the               Act.  The question is whether the  said  right               falls  under sub-clause (d) of clause  (3)  of               section  2  of the Act and if it  falls  under               that  clause whether the payment of  the  said               sum  can be abolished  constitutionally  under               the  Act.  Sub-clause  (d) of  clause  (3)  of               section 2 of the Act is very widely worded and               refers  to any right to any cash allowance  or               allowance  in kind, by whatever  name  called,               payable by the State Government and enjoyed by               any  person immediately before  the  appointed               day.                   The Act is included in the Ninth  Schedule               to  the Constitution of India as Item  No.  33               which reads thus:               "33. The Gujarat Surviving Alienations  Aboli-               tion  Act, 1963 (Gujarat Act XXXIII of  1963),               except  in  so far as this Act relates  to  an               alienation  referred to in sub-clause  (d)  of               clause (3) of section 2 thereof."     Sub-clause  (d)  of clause (3) of section 2 of  the  Act having been specifically excluded, the said clause does  not receive the protection of Article 31B of the Constitution of India. The question which remains to be considered is wheth- er  the  said sub-clause can be deemed to  be  protected  by Article  31A of the Constitution of India. Article 3  IA  of the  Constitution of Indian refers to matters  described  in sub-clauses (a) to (e) of Article 31A(1) of the Constitution of India. It is not  claimed 693 on  behalf  of the State Government that  the  present  case falls under sub-clauses (b) to (e) of Article 31A(1) of  the Constitution  of  India.  It is,  however,  urged  that  the present  case  falls under sub-clause (a) of clause  (1)  of Article 31A of the Constitution of India, which reads thus:               "(a).  the  acquisition by the  State  of  any               estate or of any rights therein or the  extin-               guishment or modification of any such  rights,               or" In  other words it is urged that the provision  in  question should  be treated as a part of a legislation  intended  for bringing about agrarian reform to which Article 31A(1)(a) of the Constitution of India is attracted. In the instant  case the right which the family of the respondents possessed  was the  right to collect grass, fire-wood and timber etc.  from the  Git Forest and that right had already been  surrendered under  the agreement dated 10.8.1914 by the said  family  in lieu of the annual payment of Rs.3,500. In an earlier  deci- sion  in  Civil  Application No. 1399  of  1968  decided  on 18/19.3.1971  a Division Bench (J.M. Mehta and  A.D.  Desai, JJ.) of the Gujarat High Court had held that sub-clause  (d) of clause (3) of section 2 of the Act was not ultra vires so far as the alienation in question was by way of an  agrarian reform. The judgment in that case had been delivered by J.M. Mehta,  J.  The  Judgment out of which  the  present  Second

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Appeal  arises was also rendered by J.M. Mehta, J.  himself. Distinguishing  his earlier decision from the  present  case J.M. Mehta, J. has observed thus:                         "In  the present case the  right  of               plaintiff has originated in the right to  take               forest produce of the Gir Forest belonging  to               the  former Junagadh State and which had  been               enjoyed  by the ancestor Shri Harsurvala.  The               right was recognised by the Rajasthanic  Court               of the then Kathiawad Agency. It was under the               agreement,               Ex.  24 dated August 10, 1914 that this  right               was  commuted  into  a  lump  sum  amount   of               Rs.3,500 and this was enjoyed hereditarily  by               the  plaintiffs’  ancestor.  Therefore,   this               alienation has nothing to do with any agrarian               reform  and  this alienation  would  not  fall               within the section 2(3)(d) so that it can have               any  immunity  from the challenge.  The  State               could only succeed if the term ’alienation’ in               section  2(3)(d) is interpreted in  such  wide               context which would make it ultra vires as per               the  settled legal position in  the               aforesaid Divi-               694               sion Bench decision. That is why narrow inter-               pretation  was given by me confining  to  only               those alienations which were incidental to the               agrarian reform. The present alienation  which               consisted  of cash allowance as per Ex. 24  is               not  incidental  to any agrarian  reform,  and               therefore,  ,the  Act would not  abolish  this               alienation. The plaintiffs’ rights are to take               forest  produce  and on commutation  of  their               rights  by  Ex. 24 they are  property  rights.               When such allowance is being paid the right to               this cash allowance could never be acquired by               the  State as per the aforesaid settled  legal               position  ....."     In  view of the foregoing the High Court held that  sec- tion 2(3)(d) of the Act should be read down and construed as not  including  payment  of cash allowance of  the  type  in question.  It held that otherwise the said clause  would  be violative  of Articles 14, 19 and 31 of the Constitution  of India.     It is not disputed by the learned counsel for the  State Government that unless the present case receives the protec- tion of Article 3 IA of the Constitution of India the action taken  by  the State Government to treat the  right  of  the respondents  as having come to an end would  be  unconstitu- tional since it would be violative of Articles 14, 19 and 31 of the Constitution of India.     It is, therefore, necessary to examine the nature of the transaction  under which the amount of Rs.3,500 was  payable every  year  to the respondents on the hereditary  basis  in order  to find out whether the abolition of the  said  right can  be  considered as a part of agrarian reform  which  re- ceives the protection of Article 31A of the Constitution  of India.  An extract of the Records of Rights giving  particu- lars of the agreement dated 10th August, 19 14 entered  into between  Vala Jiva Harsur and the State of Junagadh is  pro- duced before the Court. It shows that Vala Jiva Harsur,  the predecessor-in-interest of the respondents had the right  to remove  from the Gir Forest every year (i) 75 cart loads  of teak wood, (ii) 100 cart loads of atcot wood, (iii) 600 cart

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loads of sarpan, and (iv) 250 cart loads of grass, in  addi- tion  to  the right of grazing of cattle  and  removing  two lakhs  bundles  of grass during the time of  famine.  It  is clear from the above statement that certain rights which the family of respondents possessed in the land comprised in the Gir Forest were agreed to be surrendered against payment  of Rs.3,500 annually. It is no doubt true that long before  the date on which the Act came into force the agreement had come into existence but it was a 695 right  which was originally annexed to land. It may be  that the  said land formed part of the said forest, but still  it falls  within the definition of the expression  ’estate’  in clause  (a) of Article 31A(2) of the Constitution of  India. Article 31A(2)(a)(iii) states that any land held or let  for purposes. of agriculture or for purposes ancillary  thereto, including  waste land, forest land for pasture or  sites  of buildings  and other structures occupied by  cultivators  of land, agricultural labourers and village artisans is includ- ed  in the expression ’estate’ for purposes of Article 3  IA of  the Constitution of India. Article 3 IA, as it stood  on the  date of the passing of the Act, provided that  notwith- standing anything contained in Article 13, no law  providing for  the  acquisition by the State of any estate or  of  any rights therein or the extinguishment or modification of  any such rights shall be deemed to be void on the ground that it was  inconsistent with or took away or abridged any  of  the rights  conferred by Article 14 or Article 19 or Article  31 of  the  Constitution of India. The expression  ’rights’  is again defined in Article 31A(2) of the Constitution of India as in relation to an estate, including any rights vesting in a proprietor, sub-proprietor, underproprietor,  tenure-hold- er,  raiyat,  under-raiyat  or other  intermediary  and  any rights  or privileges in respect of land revenue. It  is  an inclusive  definition. The Fight which was being enjoyed  by the predecessor-ininterest of the respondents was a right in a  waste  land or a forest land or a land  for  pasture.  In order  to .treat a particular law as a part of  an  agrarian reform,  it is not necessary that on the land which  is  the subject matter of the said law actual cultivation should  be carried  on. In the State of Kerala and Anr. v. The  Gwalior Rayon  silk  Manufacturing (Wvg.) Co. Ltd.  etc.,  [1974]  1 S.C.R.  671  the. constitutionality of  the  Kerala  Private Forests  (Vesting  and  Assignment) Act, 1971  came  up  for consideration  before  this Court. In that case one  of  the questions which arose for consideration was whether the said Act  which related to private forests envisaged a scheme  of agrarian  reform.  In that case this Court  held  that  even though the said legislation had the effect of  extinguishing or modifying rights annexed to or arising out of the  forest land  it  could  be considered as part  of  agrarian  reform because  such forest lands also if prudently and  profitably exploited  could  bring about relief to  people  engaged  in agriculture.  This Court further observed in that case  that agrarian reform was more humanist than mere land reform  and scientifically viewed covered not merely abolition of inter- mediary  tenures, zamindaris and the like but  restructuring of  village  life  itself taking in its  broad  embrace  the socia-economic regeneration of the rural population. In  the present  case the extinguishment of the right to  receive  a certain amount in lieu of the right to remove timber, grass, etc. from a forest area, therefore, formed part 696 of  the process of agrarian reform as there was clear  nexus between  the  agreement  to pay the amount  and  the  rights

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arising out of the forest area. It is significant that under the agreement of the year 1914 the State of Junagadh  under- took to pay Rs.3,500 every year hereditarily in lieu of  the rights which the predecessor-in-interest of the  respondents had  in the forest area, thereby meaning that if the  amount was not paid, the original right to carry timber, grass etc. from the forest area would revive. It cannot, therefore,  be said  that the extinguishment of the right to receive  money alone unconnected with land was contemplated in the  instant case.  When  once the above conclusion is reached  then  the legislation  in question should be construed as  having  the effect of bringing about the extinguishment of the right  in an estate for the purpose of better management of the forest area  keeping  in view the interests of the  people  of  the State  in general and of the people living in or around  the Gir  Forest in particular. Sub-clause (d) of clause  (3)  of section  2 of the Act should be deemed to include  the  cash allowance of the type involved in this case and the Act must be held to be valid even though it affects the rights of the respondents  which  undoubtedly  originated  from  the  land covered  by  the forest area. We, therefore, hold  that  the view  taken  by the High Court that it  the  transaction  in question is construed as covered by sub-clause (d) of clause (3)  of section 2 of the Act, the Act would become  void  to that  extent  is not correct. We are of the  view  that  the legislation  has  the effect of  validly  extinguishing  the right  of  the  respondents to receive  annually  a  sum  of Rs.3,500 on a hereditary basis. The respondents are entitled to the payment of whatever compensation is payable under the Act notwithstanding the provisions of Articles 14 and 19 and Article 31 of the Constitution of India (as it existed prior to its deletion).     We, therefore, set aside the judgment of the High  Court and  dismiss  the suit instituted by  the  respondents.  We, however,  make it clear that the dismissal of the suit  does not  come in the way of the respondents being paid  whatever compensation  they  are entitled to under the Act.  If  such compensation has not been paid yet, the authority  concerned shall proceed to compute the amount of compensation  payable to  the respondents and to disburse it within  three  months from today. The appeal is accordingly allowed. No costs. R.N.J.                                  Appeal allowed. 697