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PETITIONER: SRI BAGAWATI TEA ESTATES LTD. & ANR ETC.

       Vs.

RESPONDENT: GOVERNMENT OF INDIA  & ORS.

DATE OF JUDGMENT03/02/1995

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) SEN, S.C. (J)

CITATION:  1996 AIR  209            1995 SCC  (2) 452  JT 1995 (2)   274        1995 SCALE  (1)429

ACT:

HEADNOTE:

JUDGMENT: 1.   The  Kerala  Private Forests (Vesting  and  Assignment) Act,  (Act  26  of  197  1  )  was  enacted  by  the  Kerala Legislature to acquire forest lands held on janmam right  as a  measure of agrarian reform.  The Act did not provide  for any compensation being paid  to the owners of these  private forests.   The  forest lands so vesting in  government  were intended  to  be  assigned to  landless  agriculturists  and agricultural labourers for cultivation.  Sub-section (1)  of Section 10 says that the government shall first reserve such extent of the private forests vesting in the government  un- der  the  Act  as may be  necessary  for  purposes  directed towards  the promotion of agriculture or the welfare of  the agricultural  population or for purposes ancillary  thereto. Balance  extent  of the vested private forests  were  to  be assigned   on   registry   or   lease   to   agriculturists, agricultural  labourers,  members of  Scheduled  Castes  and Scheduled  Tribes who are willing to take up agriculture  as means  of their livelihood and other categories  of  persons mentioned therein.  Section 11 expected that such assignment "shall,  as far as may, be completed within two  years  from the date of publication of this Act in the Gazette" 2.   Soon after the Act was made, which had  the  effect  of vesting the ownership and     possession of private  forests in the government, the affected owners filed writ  petitions in  the  Kerala High Court  challenging  the  constitutional validity of the enactment.  A Full Bench of the Kerala  High Court  struck  down  the Act holding it to  be  outside  the protective  umbrella of Article 3 1 A of  the  Constitution, which  decision  is reported in A.I.R. 1973  Kerala  63.  He State  of Kerala questioned the said judgment in this  court which,  by its judgment and order dated September 18,  1973, allowed  the appeals, set aside the judgment of  the  Kerala High  Court and upheld the validity of the  enactment.   The decision  of this court is reported in State of  Kerala  and Another  v. Gwalior Rayons Silk Manufacturing Company  (1974

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(1) S.C.R.671). The main judgment of the Constitution  Bench was  delivered by Palekar,J., while V.R.Krishna Iyer,j.  de- livered a separate concurring judgment. 3.   After  the  judgment of this court, the  Government  of Kerala  constituted  a  committee  comprising  certain  high officials  to  study  the  forest  areas  and  to  formulate guidelines for the assignment of the vested forests.   After receiving  the report of the said committee, the  government says, it started the process of assignment.  It is 277 stated in the counter-affidavit that out of a total area  of 2,26,975  hectares vesting in the government under the  Act, 4000  hectares has been given to tribals,  cooperatives  and agricultural  reforms  and  an  additional  area  of   6,878 hectares has been handed over to the revenue department  for being distributed.  An extent of 8000 hectares is said to be under the possession of encroachers. 4.   While   so,   the   Parliament   enacted   the   Forest (Conservation) Act, 1980 by virtue of Entry 17A of  List-III of  the  Seventh Schedule to the Constitution.   It  may  be recalled  that the subject-matter of forests was  originally in List-II but by virtue of the 42nd (Amendment) Act to  the Constitution,  it was deleted from List-II and  inserted  in List-III.   Section  2  of  the  Forest  (Conservation)  Act provides  that "(N)otwithstanding anything contained in  any other  law for the time being in force in a State, no  State Government  or other authority shall make, except  with  the prior   approval  of  the  Central  Government,  any   order directing  (i) that any reserved forest (within the  meaning of the expression "reserved forest’ in any law for the  time being in force in that State) or any portion thereof,  shall cease  to  be  reserved; (ii) that any forest  land  or  any portion  thereof  may be used for any  non-forest  purpose". The  explanation to Section 2 says that for the  purpose  of Section  2  ’non  -forest purposes’  means  breaking  up  or clearing  of  any  forest land or portion  thereof  for  any purpose  other than reafforestation.  The enactment  of  the Conservation  Act certainly placed an hurdle in the  way  of the  implementation  of  the objectives of  the  Kerala  Act inasmuch  as  one of the main objectives was  assignment  of said  forest  land  for cultivation  and  cultivation  meant clearance’  of  forest growth - and no  such  clearance  was possible   without  the  prior  approval  of   the   Central Government.   No  doubt, the forest land could  probably  be assigned as such, i.e., with the forest growth but this  was not  done.   In the year 1988, the  Parliament  amended  the Forest (Conservation) Act prohibiting the leasing of  forest land or any portion thereof to any private person or to  any authority, corporation, agency or any other Organisation not owned,  managed  or  controlled  by  the  government.    The explanation  to  Section 2 was also substituted  which  says inter alia that ’non-forest purpose’ means any purpose other than reafforestation.  Be that as it may,, the fact  remains that the private forests acquired under the Kerala Act could not be reserved or assigned so far, as contemplated by  Sec- tion  IO  of the Act, except assignment of a  small  portion mentioned above. 5.   Having failed to challenge successfully the validity of the  Act, some of the affected owners applied for  exemption of certain portions of the private forests under Section  3. Their  applications were rejected against which  they  filed appeals  which too were dismissed.  Some of them  approached this  court  by way of Special  Leave Petitions  which  were dismissed.  It is then that some of them have come.  forward with these writ petitions.

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6.   The relief sought for by the petitioners in these  writ petitions  is  for  a declaration that  the  Kerala  Act  is unconstitutional  and for a direction restraining the  State of Kerala and its officers from enforcing the provisions  of the  said Act with respect to the private forests  owned  by them  prior to their vesting in the government.  It is  also prayed  that  the  possession  of  the  private  forests  be restored to the                             278 erstwhile owners.  The main ground urged in support of these writ  petitions  is this: the Act is a measure  of  agrarian reform; because it was supposed to be a measure of  agrarian reform,  it  was  held protected by Article 3  1  A  of  the Constitution  though it provided no compensation  whatsoever to  the deprived owners.  The Act contemplates  distribution of  the forest lands so acquired to specified categories  of persons for the purposes of cultivation.  Though a period of more  than twenty years has elapsed since the said  Act  was enforced,  the  forest  lands  have  not  been  assigned  as contemplated by Section 10, except perhaps a minor  portion. The  government  is deriving income from the  forest  wealth just as the owners were doing prior to their vesting in  the government.   In  other words, the government is  using  the said  forest  lands for augmenting its income.   It  is  not really  interested in distribution/assignment of  the  land. Moreover,  with the enactment of the  Forest  (Conservation) Act,  1980,  the assignment of the forest  land  has  become impossible.   It  is  idle  to  presume  that  that  Central Government would permit the clearance of such vast tracts of forests.  Since clearance of forest growth from such a large extent  of land would affect the ecology and environment  of the  State, the Central Government would never agree to  it, which  means  that the object of the  enactment  has  become impossible to achieve.  Since the main objective of the  Act has  failed,  the entire Act falls and the  private  forests must  be restored to their erstwhile owners.  The  inclusion of  the  Act in the Ninth Schedule to the  Constitution  (at Sl.No.146) by Constitution 40th (Amendment) Act, does in  no manner  stand in the way of the above submission.  Not  only has it been included in the Ninth schedule by a post-Bharati Amendment  Act, the protection afforded by Article 3 1 B  is no answer to the submission of the petitioners.  The counsel for the petitions submitted further that the Kerala Act  and the  Forest (Conservation) Act are repugnant to  each  other and  that  in  any event until the  prior  approval  of  the Central Government is granted, the inconsistency remains. 7.   Section  3  of  the Kerala Act vests  all  the  private forests in the State in the government on the appointed day. "Appointed  day" means 10th day of May, 1971 as  per  clause (a)  of  Section  2.  The  constitutional  validity  of  the enactment  was  questioned by the affected owners  but  they failed  ultimately as stated hereinbefore.  The decision  of this court upholding the validity of the Act was rendered in September 1973.  Having waited for about sixteen years, some of the owners have come forward with the present writ  peti- tions  again  impugning the constitutional validity  of  the said  enactment, no doubt on a different ground.   The  main ground  now  urged, in substance, is that  inasmuch  as  the acquired forest lands have not been assigned as contemplated by  Section 10 of the Act inspite of more than twenty  years having  elapsed, the main objective of the Act  has  failed. It is submitted that the, enactment of Forest (Conservation) Act by the Parliament in the year, 1980 and its   subsequent amendment in 1988 has made the achievement of the  objective of  the Act impossible.  In other words, they say,  the  Act

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has  failed as a measure of agrarian reform.  It has  turned out  to  be  a mere and sheer measure  of  expropriation  of private property.  The Act incorporates a composite  scheme; if  one part falls, the whole scheme/enactment fails, it  is submitted.  It  does not even appear, say the counsel for 279 the  petitioners,  that the Government of  Kerala  had  ever applied  for  the prior approval of the  Central  Government under Section 2 of the Forest (Conservation) Act, 1980 which fact  according to them establishes that the  government  is never minded to enforce the Act.  Since it is sitting pretty upon the forest wealth and deriving income therefrom, it has no  inclination  to distribute the land, they  say.   Strong reliance  is placed upon the following observations  in  the opinion of Krishna Iyer,J. in Gwalior Rayons:               "We  may,  however,  point out  here  that  in               ascertaining  whether the  impugned  enactment               outlines  a blueprint for agrarian reform  the               Court  will  look  to  the  substance  of  the               statutory  proposal and not its  mere  outward               form.  The Court will closely study to see  if               the  legislation  merely  wears  the  mask  of               agrarian  reform or it is in reality such.   A               label  cannot  salvage  a  statute  from   the               clutches of constitutional limitations if  the               agrarian reform envisaged by it is "a  teasing               illusion or promise of unreality".  The  Court               should not be too gullible to accept a  scheme               of  agrarian reform when it is nothing  but  a               verbal  subterfuge, but at the same  time  the               Court should not be too astute to reject  such               a scheme because it is not satisfied with  the               wisdom   of  the  scheme  or   its   technical               soundness.    Can  the  State  take  over   an               industrial  unit  or  a  business  undertaking               without payment of compensation and claim  the               protection  of  art.31A by  stating  that  the               profit  arising from such industrial  unit  or               business  undertaking  would be  utilised  for               purposes directed to agriculture or welfare of               the  rural  population?  Such  an  acquisition               would  obviously  not be  an  acquisition  for               carrying  out  a  scheme  of  agrarian  reform               because there will be no direct nexus  between               the    subject-matter   acquired    and    its               utilisation for agrarian reform.  It would not               be enough merely to say that the income of the               property  acquired  is  to  be  utilised   for               purposes  of  agrarian reform.   The  property               itself must be acquired for carrying out  such               a  reform.  This requirement is  satisfied  in               the present case because forest lands reserved               under  s. 10 are to be utilised "for  purposes               directed  to the promotion of  agriculture  or               for the welfare of the agricultural population               or for purposes ancillary thereto." We do  not               think it would have been sufficient merely  to               provide  that the income from the  produce  of               the forests shall be utilised for promotion of               agriculture or the welfare of the agricultural               population,  but the forest lands need not  be               so  utilised.  That would have been  merely  a               devise  for  augmenting the  revenues  of  the               State   though  with  a  direction  that  such               addition to the revenue shall be expended only

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             on purposes of promotion of agriculture or the               welfare  of the agricultural population.   But               here  it is clear on a reading of s.  IO  that               the  forests and not merely the income are  to               be   devoted  to  or  directed   towards   the               promotion of agriculture or the welfare of the               agricultural population or for ancillary  uses               closely  related  to  agrarian   reform.   The               details  of the scheme of  agrarian reform  to               which the acquired forests would be  subjected               cannot  obviously be embodied in  the  statute               and  they  are left to be  provided  by  rules               which  are  to  be made under s.  17  for  the               purpose of carrying out the provisions of  the               statute.  No rules could so far be made by the               State  Government, it is said,  because  there               was  a stay against the implementation of  the               Act  when  the petition was  pending  in   the               Kerala  High Court and thereafter the Act  was               declared  to  be ultra vires and void  by  the               judgment  of  the Kerala High Court  which  is               under  appeal before us.  Now that the Act  is               being  declared  by  us  as   constitutionally               valid, the State Government will have to  make               rules  setting  out the precise  programme  of               agrarian  reform  which  is  intended  to   be               carried out.               280               Counsel for the forest owners has expressed an               apprehension   before   us  that   the   State               Government  may keep the forests as  they  arc               for  a long number of years and namely  go  on               augmenting  the  revenues  of  the  state   by               cutting and selling timber growing on them and               thereby  defeat  the  rationale  of  art.  3lA               itself But there is no basis or  justification               for  this apprehension because we are  of  the               view  that the agrarian project would have  to               be  spelt out concretely by the State  Govern-               ment within the prescribed period of two                years  or at  any rate  within  a  reasonable               time  thereafter.   If  the  State  Government               merely  goes  on making money by  cutting  and               selling  the  timber  grown  on  the   forests               without implementing the definite proposals of               agrarian reform contemplated in s. IO within a               reasonable  period  of  time, it  would  be  a               subversion  of the statute and in such a  case               it would be competent to the aggrieved parties               to  take legal action compelling the State  to               make good the statutory promise and to act  in               terms of s. IO and if the forests are diverted               for  uses outside the scope of s.10 the  court               could  restrain the State from such  illegiti-               mate adventures." 8.   We are unable to agree with the learned counsel for the petitioners.   While we see the force of the  argument  that the Government of Kerala has, to a large extent, failed.  in carrying out the objectives of the enactment as contemplated by  Section  10,  we see no ground  for  holding  that  such failure  of the government renders the enactment  void.   It has never been held by any court that failure to fully carry out  the  objectives of an enactment renders  the  enactment void or unconstitutional.  There is no such principle  known to  law.   We are equally unable to agree  that  the  Forest

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(Conservation) Act has made the Kerala Act unworkable.   The Conservation Act does not prohibit the clearance of  forests altogether.   All  that it says is that  no  such  clearance shall  take place without the prior approval of the  Central Government.   The  bar is not absolute  one  but  qualified. Even  the 1988 Amendment to Forest (Conservation)  Act  does not make the implementation of the State Act impossible.  It may  be  remembered  that Section 10  does  not  contemplate assignment  or distribution of entire private  forest  lands (vesting in the government under the Act) but only a portion of  it.   First, it requires the government  to  reserve  an appropriate  portion  of the acquired forests  for  purposes directed  towards  the promotion of  agriculture  and  other matters  mentioned  therein.  The remaining land has  to  be given   out   on  lease  or  registry  to   individuals   or cooperatives.  All this can still be done without  violating the provisions of the Act.  It is also not possible to agree with   the  submission  Of  the  learned  counsel  for   the petitioners that the Central Government is bound to  decline prior approval under Section 2 of the Forest  (Conservation) Act.  We cannot decide for the Central Government nor can we presume so and invalidate the Act on that ground. 9.   Indeed, the very observations in the opinion of Krishna Iyer,J.  in  Gwalior Rayons, quoted  hereinbefore,  militate against  the  contention of the  petitioners.   The  learned Judge  observed  that  if  the  State  Government  fails  in carrying   out  the  provisions  of  Section  10  within   a reasonable  period, it would be competent to  the  aggrieved parties  to take legal action compelling the State  to  make good  the statutory promise and to act in terms  of  Section 10".  The petitioners cannot be treated as aggrieved parties contemplated  by  the learned Judge.  In  the  context,  the expression means those persons who stand to 281 gain  if  the  forest  land  is  reserved  or  assigned   as contemplated  by  Section IO.  The learned  Judge  had  also observed that "if the forests are diverted for uses  outside the scope of Section 10, the court could restrain the  State from such illegitimate adventures" All that can be done,  if a  proper  party  comes  to court, will  be  to  direct  the Government  of Kerala to make good the statutory promise  by acting in terms of Section 10. 10.We must also mention that the counsel for the petitioners could not bring to our notice any decision of this Court  or of any other Court where such acquisition was invalidated on the ground that the objects of acquisition were not achieved within  a reasonable period or that  permission/approval  of some other authority has to be obtained before taking  steps for implementation of its objectives. 11.Learned  counsel for the petitioners relied upon  certain observations  in  Bhim  Singhji  v.  Union  of  India  (1985 Suppl.S.C.R.862) to say that inclusion in the Ninth Schedule does  not save an Act if it damages the basic  structure  of the Constitution.  We see no relevance of those observations herein, in view of what we have said hereinabove. 12.For  the above reasons, the writ petitions fall  and  are dismissed.  No costs. CIVIL APPEAL NO. 120 OF 1986: 13.This  appeal  is preferred against the  judgment  of  the Kerala  High Court allowing a review petition filed  by  the State and setting aside its earlier judgment dated August 3, 1983. 14.  The appellant states that he entered into an  agreement on  August 7, 1963 with the karta and the senior members  of the  Venkunadu Kovilkam to take on lease 550 acres  of  land

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belonging  to  the  said Kovilkam  in  janmam,  situated  in Neelamala  Palghat  district.  He says that he, was  put  in possession of the entire extent and that he raised coffee on 215 acres and Cardamom on 225 acres before May 10, 1971, the date  on which the Kerala Forests (Vesting  and  Assignment) Act,  1971 came into force, The appellant further says  that he  has  been  paying land tax and basic tax  for  the  said plantation  from  1974 onwards, i.e., after  the  plantation started  yielding.   Contending  that the  said  extent  had vested  in  the government under Section 2 of  the  Act,  he says, the authorities encroached upon the said extent where- upon  he instituted O.A.139 of 1977 under Section 8  of  the Act before the appropriate Tribunal.  His contention  before the  Tribunal  was that the said land did not  vest  in  the government  under Section 3 for the reason that well  before the  date of coming into force of the Act it had ceased   to be a private forest within the meaning of Section 2(f).   By its order dated May 25, 1981, the Forest Tribunal upheld the appellant’s claim against which the State of Kerala filed an appeal,  M.F.A.No.1  of  1982 before the  High  Court.   The Division Bench which heard the appeal dismissed the same  on August 3, 1983 affirming the findings of the Tribunal.   One of  the contentions urged by the State before  the  Division Bench  was  that  the said agreement of  lease  having  been entered  into  without obtaining previous  sanction  of  the Collector, as required by the Madras Preservation of Private Forests  Act, the lease is not only void but the  said  fact also  establishes  that the alleged agreement of  lease  and delivery of possession pleaded by the 282 appellant  is not true.  This argument was rejected  by  the Division Bench relying upon A-20, the report of the receiver appointed  in O.S.1/64 on the file of the  learned  District Judge,  Palghat  and upon the recitals in the  formal  lease deed Exh.A21 executed pursuant to the agreement of lease  in the year 1973.  In addition to the above, the Division Bench also relied upon Exh.A-8, the rent receipt dated November 9, 1963  issued  by  the  Kariastha  of  the  Kovilkam  to  the appellant.  He Bench held that the appellant had indeed come into  possession of the said land on August 7, 1963 and  had also converted the said extent into plantation prior to  May 10,  1971.   This  order  became  final,  not  having   been questioned by the State in this Court or otherwise. 15.On  November 18, 1983, the Governor of Kerala  issued  an ordinance  being Ordinance No.39 of 1983 amending Section  8 of the Act and inserting new Sections 8-B, 8-C and 8-D after Section 8-A in the Principal Act.  Section 8-B extended  the period of limitation for the State to apply for review of  a judgment  rendered by the Tribunal on the grounds  specified therein.    Section  8-C(3),  which  is  relevant  for   our purposes, extended the period of limitation for the State to apply for review of judgment delivered by the High Court  on the  grounds  specified therein.  For the  purpose  of  this case, it is enough to notice sub-section (3) of Section 8-C. It reads as follows:               "(3)  Notwithstanding  anything  contained  in               this  Act  or  in  the  Limitation  Act,  1963               (Central Act 36 of 1963), or in any other  law               for  the  time  being  in  force,  or  in  any               judgment,  decree  or order of  any  Court  or               other  authority, the Government, if they  are               satisfied  that  any judgment or  order  other               than  an order referred to in  subsection  (2)               passed  by the High Court in  any  proceeding,               relates to any land which is a private  forest

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             and  that  such  judgment or  order  has  been               passed due to suppression or misrepresentation               of  facts  or due to the  failure  to  produce               relevant data or other particulars or that  an               appeal  against such judgment or  order  could               not  be  filed  by  reason  of  the  delay  in               applying for and, obtaining an certified  copy               of  such  judgment or order, may,  within  six               months  from  the commencement of  the  Kerala               Private   Forests  (Vesting  and   Assignment)               Amendment Ordinance, 1983, make an application               to the High Court for review of such  judgment               or order."                            (Quoted from the Paper Book) 16.     It is brought to our notice that after the lapse  of the  original ordinance, successive ordinances  were  issued from time to time.  Be that as it may, taking advantage,  of Section  8-C(3),  the State of Kerala filed a  petition  for reviewing  the  judgment of the High Court dated  August  3, 1983.   It was posted before Thommen,J., who was one of  the two  members of the Division Bench which had  dismissed  the appeal  on  August 3, 1983.  The learned Judge  allowed  the review  petition and restored the appeal to file  under  the impugned order dated September 17, 1985. 17.A reading of Section 8-C(3) shows that the High Court can review its order on any of the following three grounds: (1)     that such judgment or order has been passed  due  to suppression or misrepresentation of facts; (2)that  such judgment or order has been passed due  to  the failure to produce relevant data or other particulars; or (3)  that an appeal against such judg- 283 ment  or order could not be filed by reason of the delay  in applying for or obtaining a certified copy of such  judgment or order. 18.  The review petition filed by the State  was based  upon the second ground, viz., failure  of  the State  to  produce relevant  data  or other particulars,  a  fact  specifically noted  in  the very first paragraph of the  impugned  order. The  contention  urged on behalf of the  Government  Pleader before the learned Judge was that it was not brought to  the notice  of  the High Court that prior to  the  execution  of Exh.A-5  in 1963. the sanction of the District Collector  as required  under  Section  3 of the  Madras  Preservation  of Private  Forests  Act had not been  obtained.   The  learned Judge  took note of the fact that this contention was  urged before  the Division Bench when it heard the appeal and  had rejected  it.   Even so the learned  Judge  observed,  after noticing Section 3 of the Madras Act, that according to  the said provision any alienation without the previous  sanction of the District Collector is null and void and that the said circumstance  raises  several questions  for  consideration, viz.,  whether the agreement-of lease amounts to  alienation within the meaning of Section 3 of the Madras Act and if  so whether  it was entered into with the previous  sanction  of the  Collector and further whether such  alienation  without such previous permisSion can constitute a foundation for ex- cluding  the  land from the purview of the  Kerala  Act  and certain  other questions.  What is of relevance is that  the learned Judge did not say or find that the order of the High Court  was made, or vitiated, due to the failure to  produce relevant data or other particulars.  Indeed, no such data or particulars were placed before the Court by the State in the review petition.  On the same material, which was on  record in the appeal, the impugned order has been made.  We are  of

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the  opinion  that  the words "due  to  failure  to  produce relevant data or other particulars" mean what they say.   It must  be a failure to produce relevant data or  particulars; it cannot mean a mere change of opinion on the same material or on the same evidence.  We are, therefore, of the  opinion that  the ground on which the review petition was filed  was not made out and hence the order dated August 3, 1983  could not have been reviewed and set aside.  It is true that under the impugned order the learned Judge has merely restored the appeal to file after setting aside the order dated August 3, 1983,  which meant that appeal is yet to be heard,  but,  in our  opinion,  the  very setting aside of  the  order  dated August  3, 1983 was not called for until and unless  one  or the other ground specified by statute is made out. 19.  In  view of the above, it is not necessary to  consider the other question raised in this appeal, viz., the validity of   the  successive  ordinances  inserting  the   aforesaid sections in the Kerala Act. 20.  Accordingly,  we  allow the appeal and  set  aside  the impugned  judgment and restore the judgment of the  Division Bench  dated  August  3, 1983.  It is  made  clear  that  if pursuant to the order impugned herein, any orders are passed in the appeal, whether interim or final, they shall  equally stand set aside.  No costs. 285