PETITIONER:
KARIMBIL KUNHIKOMAN
Vs.
RESPONDENT:
STATE OF KERALA
DATE OF JUDGMENT:
05/12/1961
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
GUPTA, K.C. DAS
AYYANGAR, N. RAJAGOPALA
CITATION:
1962 AIR 723 1962 SCR Supl. (1) 829
CITATOR INFO :
R 1964 SC1515 (1,5,7,8)
R 1965 SC 845 (12)
RF 1967 SC1643 (43,65,227,259)
RF 1972 SC 425 (5)
R 1972 SC2027 (18,20,27,28,32,34)
RF 1972 SC2240 (10)
RF 1980 SC1789 (36)
RF 1980 SC2097 (10)
RF 1981 SC 234 (31)
ACT:
Ryotwari lands-If "estates"-Compensation-
Provisions for plantations of tea and coffee etc.,
if violative of egual protection of laws-The
Kerala Agrarian Relations Act, 1961 (IV of 1961),
ss. 3(39), 3(viii), 52,57,58,59,64,80-Constitution
of India, Arts. 14, 31A (I).
HEADNOTE:
The Kerala Agrarian Relations Act was
impugned on various grounds.
^
Held, (per Gajendragadkar, Wanchoo and Das
Gupta, JJ.) that (1) the bill which was originally
passed by a Legislative Assembly which as
dissolved and was reconsidered and re-passed by a
new legislative assembly did not lapse and validly
became the law when the President assented to it
after it was passed by the second legislative
assembly.
830
Purushothaman Nambudiri v. State of Kerala,
[1962] Supp. 1 S.C.R. 753, followed.
(II) The Act which made certain deductions
from the compensation payable to the landholders
under Ch. II and to others who held excess land
under Ch. III cannot be struck down as a piece of
colourable legislation which is beyond the
competence of the State Legislature, and it cannot
be said that any device has been employed in the
Act to take away the moneys of the landowners or
the persons from whom excess land is taken away
for the purpose of adding to the revenue of the
State.
Section 80 of the Act provides for the
Constitution of an agriculturist rehabilitation
fund for the purpose of rendering help by way of
loan, grant or otherwise to persons affected by
the Act and eligible for the same under the rules
but rr. 161 (a) (III) and 161 (b) (III) are so
framed as to take within their scope even persons
not affected by the Act. Those rules are ultra
vires of s. 80 and must be struck down.
(III) The lands held by ryotwari pattadars in
the area which came to the State of Kerala by
virtue of the States Reorganisation Act from the
State of Madras are not 'estates' within the
meaning of Art. 31A(2)(a) of the Constitution and
therefore the Act is not protected under Art. 31A
(1) from attack under Arts. 14, 19 and 31 of the
Constitution.
State of Bihar v. Rameshwar Pratap Narain
Singh, A.I.R. 1961 S.C. 1649, referred to.
(IV) The reasons which call for exemption of
tea, coffee and rubber plantations from certain
provisions of the Act equally apply to areca and
pepper plantations and there is no intelligible
differentia related to the object and purpose of
the Act which would justify any distinction in the
case of tea, coffee and rubber plantations as
against areca and pepper plantations. The
provisions in the Act relating to plantations are
violative of Art. 14 of the Constitution.
The provisions relating to plantations cannot
be severed from the Act and struck down only by
themselves. The whole Act must be struck down as
violative of Art. 14 of the Constitution so far as
it applied to ryotwari lands in those areas of the
State which were transferred to it from the State
of Madras.
(V) The manner in which ceiling has been
fixed under s. 58(1) is violative of the
fundamental right enshrined in Art. 14 of the
constitution and as that section is the basis of
entire Ch. III the whole chapter must fall with it
831
(IV) The manner in which progressive cuts
have been imposed on the purchase price under s.
52 and the market value under s. 64 in order to
determine the compensation payable to landowners
or intermediaries in one case and to persons from
whom excess land is taken in another, results in
discrimination and cannot be justified on any
intelligible differentia which has any relation to
the objects and purposes of the Act. The provision
as to compensation is all pervasive and the entire
Act must be struck down as violative of Art. 14 of
the Constitution in its application to ryotwari
lands which have come to the State of Kerala from
the State of Madras.
Per Sarkar, J.-Sections 52 and 64 of the Act
which provide for payment of Compensation at
progressively smaller rates for larger valuations
of the interests acquired are not invalid as
offending Art. 14 of the Constitution. The
provisions in the act making a discrimination in
favour of tea, coffee, rubber and cardamom
plantation and also in favour of cashew
plantations cannot be upheld. Sections 3(viii), 57
(1) (d) and 59 (2) are therefore invalid. These
are however severable from the other parts of the
Act and the whole Act cannot be held to be bad
merely because those provisions are bad.
Per Ayyangar, J.-Properties held on ryotwari
tenures and the interest of the ryot in such lands
would not be "estate" for the purposes of Art.
31A(2) as it stood even after the Fourth Amendment
of the Constitution.
Where an existing law in relation to land-
tenures in force in an area contains a definition
of an 'estates' and that definition excludes the
interest of a ryotwari proprietor, the very words
of Art. 31A(2) of the Constitution negatived the
applicability of its provisions to that tenure.
Ram Ram Narain Medhi, v. State of Bombay,
[1959] Supp. I S.C.R. 489 and Atma Ram v. State of
Punjab, [1959] Supp. I S.C.R. 748, referred to.
Section 2(39) which by definition excludes
pepper and areca plantations from the category of
the plantations named in it which are exempted
from the operative provisions of the impugned Act,
s. 58 for the determination of the ceiling in
respect of different individuals who are brought
within the scope of the enactment and ss. 52 and
64 for determining the compensation payable to the
several classes of persons whose lands are
acquired under the Act are all violative of the
guarantee of equal protection of laws under Art.
14 of the Constitution.
JUDGMENT:
ORIGINAL JURISDICTION: Petitions Nos. 114 and
115 of 1961.
Petition under Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
832
M. K. Nambiar, M. K. Govind Bhatt, S. N.
Andley, and Rameshwar Nath, for the petitioners.
M. C. Setalvad, Attorney-General of India, K.
K. Mathew, Advocate- General for the State of
Kerala, Sardar Bahadur, George Pudissary and V. A.
Seyid Muhammad, for the respondents.
1961. December 5. The Judgment of Gajendra
gadkar, Wanchoo and Das Gupta, JJ., was deliverd
by Wanchoo, J. Sarkar, J. and Ayyangar, J.
delivered separate Judgment.
WANCHOO, J.- These two writ petitions which
were heard along with Purushothaman Nambudiri v.
The State of Kerala (1) raise the
constitutionality of the Kerala Agrarina Relations
Act, No. IV of 1961 hereinafter referred to as the
Act. The petitioners come from that part of the
State of Kerala which was formerly in the South
Canara district of the State of Madras and came to
the State of kerala by the State Reorganisation
Act of 1956. Their lands are situate in Hosdrug
and kasargod Taluks which have now been made part
of the Cannanore District in the State of Kerala.
They hold large areas of lands, the major part of
which is held by them as ryotwari parradars, of
Madras under the Board’s Standing Orders of that
State. In these lands they have areca and pepper
plantations besides rubber plantation. They also
grow other crops on some of the lands. The Act is
being attacked on the ground that it contravenes
Arts. 14, 19 and 31 of the Constitution. Besides
this, it is also contended on behalf of the
petitioners that the Bill which became the Act
lapsed under the provisions of the Constitution,
and therefore the assent given to the Bill by the
President was of no effect and did not result in
the Bill becoming an Act. We do not think it
necessary to set out the details of the attack on
this last score in the present petitions as the
matter
833
has been considered in full in the judgment in the
connected Writ Petition No. 105 of 1961. The
petitioners further submit that their lands which
they hold as ryotwari pattadars are not estates
within the meaning of Art. 31A (2)(a) of the
Constitution and therefore the Act so far as it
affects them is not protected under Art. 31A, and
it is open to them to assail it as violative of
the rights conferred on them by Arts. 14, 19 and
31 of the Constitution. They have attacked the Act
on a number of grounds as ultra vires the
Constitution in view of the provisions of Arts.
14, 19 and 31. We do not however think it
necessary to detail all the attacks on the
constitutionality of the Act for present purposes.
It is enough to say that the main attack on the
constitutionality of the Act has been made on the
following six grounds:-
(1) The Bill which became the Act had lapsed
before it was assented to by the
President and therefore the assent of
the President to a lapsed bill was of no
avail to turn it into law.
(2) The Act is a piece of colourable
legislation as it has made certain
deductions from the compensation payable
to landholders under Chap. II and to
others who held excess land under Chap.
III and this amounts to acquisition of
money by the State which it is not
competent to do under the power
conferred on it in Lists II and III of
the Seventh Schedule to the
Constitution.
(3) The properties of the petitioners who
are ryotwari pattadars are not estates
within the meaning of Art. 31A of the
Constitution and therefore the Act is
not protected under that Article so far
as it applies to lands of ryotwari
pattadars like the petitioners.
(4) The Act exempts plantation of tea,
coffee, rubber and cardamom from certain
834
provisions thereof, but no such
exemption has been granted to
plantations of areca and pepper, and
this is clearly discriminatory and is
violative of Art. 14.
(5) The manner in which ceiling is fixed
under the Act results in discrimination
and is therefore violative of Art. 14.
(6) The compensation which is payable under
Chapters II and III of the Act has been
reduced by progressive cuts as the
amount of compensation increase and this
amounts to discrimination between
persons similarly situate and is
therefore violative of Art. 14.
The petitions have been opposed on behalf of
the State and its contention is, firstly, that the
Bill did not lapse and the President’s assent was
rightly given to it rightly became law; secondly,
that the petitioners’ estates lands are estates
within the meaning of Art. 31A (2)(a) and the Act
is therefore protected under that Article;
thirdly, that the Act is not a piece of colourable
legislation and the State Legislature was
competent to enact the Act under item 18 of List
II and item 42 of List III of the Seventh Schedule
and there is no acquisition of money by the state
under the Act and reference is made to s. 80 of
the Act in this connection; and lastly, that the
discrimination alleged with respect to
plantations, the fixation of ceiling and the
deductions from compensation payable under
Chapters II and III is really no discrimination at
all and the provisions in that behalf are based on
an intelligible differentia which is in accordance
with the object and purpose of the Act.
Re. (1).
The question whether the Bill which finally
received the assent of the President on January
21, 1961, had lapsed because the legislative
assembly which originally passed it was dissolved
and a new legislative assembly which came into
being after
835
the general elections reconsidered and re-passed
it under Art. 201 of the Constitution has been
considered by us in Writ Petition No. 105 of 1961,
judgment in which has just been delivered and it
has been held there that the bill did not lapse
and therefore it validly became law when the
President assented to it. The attack on the Act
therefore on this grounds must fail.
We now come to the attack made on the Act on
the ground that it is a piece of colourable
legislation beyond the legislative competence of
the State legislature. What is colourable
legislation is now well-settled: see K. C.
Gajapati Narayan Deo v. The State of Orissa (1),
where it was held “that the question whether a law
was a colourable legislation and as such void did
not depend on the motive or bona fides of the
legislature in passing the law but upon the
competency of the legislature to pass that
particular law, and what the courts have to
determine in such cases is whether though the
legislature has purported to act within the limits
of its powers, it has in substance and reality
transgressed those powers, the transgession being
veiled by what appears, on proper examination, to
be a mere pretence or disguise. The whole doctrine
of colourable legislating is based upon the maxim
that you cannot do indirectly what you cannot do
directly.
The Act has been passed under the legislative
powers vested in the State legislature under item
18 of List II and item 42 of List III of the
Seventh Schedule. Item 18 of List II deals inter
alia with “land, that is to say, rights in or over
land, land-tenures including the relation of
landlord and tenant, and the collection of rents”
Item 42 of list III deals with “acquisition and
requisitioning of property.” The contention on
behalf of the petitioners is that in the guise of
legislating under these two entries the State
legislature by the employment of certain
836
devices has taken away money, which should have
gone to land-owners or to those from whom excess
lands were being acquired. The attack is based on
the facts that in s. 52 of the Act compensation
payable to a land-owner is reduced after the
purchase price to be paid by the tenant to whom
the land is to be assigned has been ascertained,
and that in s. 64 of the Act the compensation
payable to a person from whome excess land is
taken in reduced by certain percentage after the
market value of the land has been determined. It
is urged that by these devices the State is
acquiring money which should properly have gone to
the land-owner to whome compensation is payable
under s. 52 and to the person who surrenders
excess land to whome compensation is payable under
s. 64. There is no doubt that certain deductions
are made from the purchase price payable by the
tenant under s. 45 and from the market value
before compensation is arrived at for payment to
the land owner under s. 52 and to the person
surrendering excess land under s. 64. But if one
looks at the purpose and object of the Act it will
be clear that the main provisions of the Act are
clearly within the legislative competence of the
State legislature under item 18 of List II and
item 42 of List III. The scheme of the Act so far
as Chap. II dealing with extinction of the land-
owner’s right is concerned is that the land-
owner’s right vested in the State under ss. 41 and
42 on a day to be notified by the Government in
that behalf. Thereafter, s. 43 provides that
cultivating tenants of the lands which have vested
in the State shall have a right to assignment of
the right, title and interest so vested in the
State on payment of a certain price which is
calculated under s. 45 and is called the purchase
price. After the purchase price is determined, the
compensation to be paid to the land-owner is
provided by s. 52 and there is reduction in the
purchase price for the purpose of given
compensation. It is however obvious that the
object of Chap. II is to vest proprietorship in
the land in the
837
cultivating tenants and for that purpose Chap. II
provides for carrying out the object in two
stages. In the first stage, the property of the
landowner is vested in the State. Thereafter the
tenant is given the right to acquire that property
from the State. What price the tenant is to pay
for the land is worked out under s. 45, and what
compensation the State is to pay to the land-owner
is worked out under s. 52, which however reduces
the purchase price arrived at under s. 45 for the
purpose of giving compensation. It is however
clear that tenants are not bound to apply to
acquire the land which they hold as tenants and
where they do not do so, s. 44 (3) provides that
they become the tenants of Government and shall be
liable to pay to the Government the rent payable
in respect of the land from the date on which the
right, title and interest over the land vested in
the Government. It cannot therefore be said that
the scheme which provides for two stages, namely,
first acquisition by Government and secondly
assignment to tenants is a camoflage devised for
the purpose of taking away the money which would
otherwise have been payable to the land-owner in
case the interest of the landowner was directly
transferred to the cultivating tenants. It is also
clear that there is bound to be a time lag between
the acquisition under ss. 41 and 42 and the
assignment to tenants under s. 43 and the
subsequent sections and in the meantime the
Government would be the owner of the rights
acquired. Clearly, therefore Chap. II of the Act
envisages first the acquirement of the land
owner’s interest by the State for which
compensation is payable under s.52. Thereafter the
State will assign to such cultivating tenants as
may apply the rights acquired by the State and
there is likely to be an interval between the two
transactions. Besides some cultivating tenants may
not apply at all and that part of the property
will remain with the State Government. In these
circumstances it cannot be said that the scheme
evolved in Chap. II is a device for
838
taking away any part of the money to the landowner
from the tenant to whom his interest may
eventually be assigned. Besides the adequacy of
compensation provided under s. 52 for acquisition
by the State of the interest of the land-owner
cannot be challenge on the ground that the
compensation provided by the law is not adequate:
See Art. 31(2). It is only because the
compensation provided under s. 52 is a percentage
of the purchase price as calculated under s. 45
that it appears as if the State is taking away a
part of the compensation due to the landowner.
Section 52 is however only a method for
determining compensation and the whole
compensation due to the land-owner is to be found
in s. 52 and it cannot therefore be said that any
part of the compensation is being taken away by
the State.
Similarly the scheme of Chap. III which
provides a ceiling is that any land in excess of
the ceiling shall vest in the Government under s.
62. Thereafter the land so vested in Government
can be assigned under s. 70 to persons who do not
possess any land or possess land less than 5 acres
of double crop nilam or its equivalent. It is true
that Government may assign the lands to those who
apply under s. 70 but it is not bound to do so and
here again there will be a time lag between the
vesting of the excess land in the Government under
s.62 and its assignment to those who are eligible
under s. 70. The charge that in this Chapter there
is a device for taking away the compensation due
to the land-owner is based on the fact that s. 72
the person to whom the land is assigned under s.
70 has to pay 55 per cent. Of the market value of
the land while the person from whom the excess
land is taken is not always paid 55 per cent. Of
the market value, inasmuch as the percentage goes
down to 25 per cent. Of the market value in
certain circumstances. But here again the
compensation is provided entirely under s. 64 and
it is that section which sets out the manner in
which the compensation is to be
839
provided. The adequacy of that compensation cannot
be questioned in view of Art. 31(2). The fact that
under ss. 70 and 72 when the Government in its
turn assigns land to those who are eligible for
such assignment, a different percentage of market
value is fixed would not make these provisions a
device to take away the money due to those who
surrender excess land. As we have already said the
compensation to those who surrender excess land is
all provided by s. 64 and even if there is a
difference between the price payable under s. 72
by the assignee and the compensation payable to
the landowner under s. 64 that would not amount to
taking away the money of the landowner by a device
particularly when the assignment is bound to take
place sometime after the property has been
acquired by Government.
It is also clear from the provisions
contained in Chapters II and III of the Act that
the main purpose of the Act is to do away with
intermediaries and to fix a ceiling and give the
excess land, if any, to the landless or those who
hold land much below the ceiling. The method
employed to carry out this object is first to
acquire the land for the State and thereafter to
assign it to the cultivating tenants or to the
landless or to those with small amounts of land.
The main provisions of the Act therefore are
clearly within the legislative competence of the
State legislature under item 18 of List II and
item 42 of List III and this is not being disputed
on behalf of the petitioners. But what they
contend is that in the process of doing this, the
Government has by adopting certain devices taken
away the money which was due to the land-owner or
to the person from whom the excess land is
acquired. This argument is however fallacious
because the compensation due to the land-owner or
the person from whom excess land is acquired is
not what is provided by s. 45 and s 72 but what is
provided in s. 52 and s 64. The adequacy of that
compensation cannot be
840
challenged in view of Art. 31(2), and there is
therefore no justification for saying that the
money due to the landowner or the person from whom
the excess land is acquired is being taken away by
the State. That argument would only be possible if
the compensation was the whole amount arrived at
under s. 45 or under s. 72 and from that the
Government deducted money due to the landowner.
That however is not so and the compensation to
which the landowner or the person from whom the
excess land is acquired is to be found only in ss.
52 and 64 and there is thus no question of taking
away any money due to the landowner.
Further, whatever unfairness might appear
because of the difference between ss. 45 and 52 on
the one hand and ss. 64 and 72 on the other and
the manner in which the compensation is shown as a
percentage of the purchase price or the market
value is removed by the provision in s. 80 of the
Act. That section provides for the constitution of
an agriculturist rehabilitation fund in which the
surplus, if any, of the purchase price after the
disbursement therefrom of the compensation is to
be put along with other moneys. This surplus does
not to go to the revenues of the State and the
State cannot be said to have taken away for its
own purpose any part of the compensation. Further
s. 80 provides that the fund shall be utilised for
rendering help by way of loan, grant or otherwise
to persons affected by the Act who are eligible
for the same in accordance with the rules framed
by the Government. The fund therefore created
under s. 80 of the surplus, if any, is to be
utilised for rendering help to persons affected by
the Act. That in our opinion clearly means either
the landowners whose rights are affected by Chap.
II or the persons from whom excess land is taken
under Chap. III. The surplus money therefore is to
be utilised for the benefit of the persons
affected by the Act as indicated above. This
section also
841
provides that the Government will frame rules with
respect to the persons affected and their
eligibility for help from the fund. Our attention
in this connection has been drawn to the
eligibility rules framed under this section for
the administration of the fund, and in particular
to r. 161 which provides for eligibility for
grants and loan. That rule in our opinion goes
beyond the scope of s. 80 in so far as it provides
for making of grants or loans to persons not
affected by the Act. We may in this connection
refer to r. 161 (a)(i) and (ii) and r. 161 (b) (i)
and (ii) which are so framed as to take within
their scope even persons not affected by the Act,
though r. 161 (a)(iii) and r. 161(b)(iii) are with
respect to persons who may be affected by the Act.
Rule 161(a)(i) and (ii) and r. 161(b)(i) and (ii)
in so far as they take in persons not affected by
the Act are ultra vires of the provisions of s. 80
and must be struck down on that ground and may
have to be replaced by more suitable rules. But
the rules which have been actually framed will not
affect the provisions of s. 80 which clearly show
that the fund is for the benefit of those who are
affected by the Act, namely, those who are
affected by Chapters II and III of the Act, i.e.,
those landowners whose rights have been acquired
under ss. 41 and 42 and those persons from whom
excess land is taken away under s. 62. Section 80
thus clearly shows that any surplus that may arise
is not taken away by the State for its own revenue
purposes but is meant to be used for the benefit
of those affected by the Act and therefore even
the apparent result of the difference between ss.
45 and 62 and ss 64 and 72 is taken away by the
constitution of the fund under s. 80, and it
cannot be said at all under the circumstances that
any device has been employed in the Act to take
away the moneys of the landowners or the persons
from whom excess land is taken away for the
purpose of adding to the revenue of the State. We
are therefore of opinion that
842
the Act” cannot be struck down as a colourable
piece of legislation which is beyond the
competence of the State Legislature.
Re. (3).
Article 31A was inserted in the Constitution
by the Constitution (First Amendment) Act, 1951,
with retrospective effect so that it must be
deemed to have been in the Constitution from the
very beginning, i.e., January 26, 1950. The
article was further amended by the Constitution
(Fourth Amendment) Act, 1955 which was also made
retrospective and therefore Art. 31A as it stands
today must be deemed to have been part of the
Constitution right from the start, i.e., January
26, 1950. We are not concerned in the present
petitions with cl. (1) of Art. 31A, which was
extensively amended in 1955 but only with cl. (2).
This clause originally read as follows:-
“In this article,-
(a) the expression ‘estate’ shall, in
relation to any local area, have the same
meaning as that expression or its local
equivalent has in the existing law relating
to land-tenures in force in that area, and
shall also include any jagir, inam or muafi
or other similar grant.
(b) the expression ‘right’ in relation
to an estate, shall include any rights
vesting in a proprietor, sub-proprietor,
under-proprietor, tenure-holder or other
intermediary and any rights or privileges in
respect of land revenue.”
In 1955, in sub-cl. (a) the words “and in the
States of Madras and Travancore-Cochin any janmam
rights ” were added at the end while in sub-cl.
(b) the words ” raiyat under-raiyat ” were added
after the word ” tenure-holder ” and before the
words “or other intermediary”.
843
It will be seen therefore that so far as the
meaning of the word “estate” is concerned, there
was no change in sub-cl. (a) and the only change
was with respect to the inclusive part of the
definition of the word “estate”. The word “estate
has all along been defined to have the same
meaning in relation to any local area as that
expression or its local equivalent has in the
existing law relating to landtenures in force in
that area. It is also remarkable that the word
“intermediary” does not occur in sub-cl. (a)
though it occurs in sub-cl. (b). The definition in
sub-cl. (a) is self-contained and there is no
scope for importing any idea of intermediary in
the definition from sub-cl. (b). The reason why
the words “other intermediary” are used in sub-cl.
(b) which defines rights in relation to an estate,
is that sub-clause mentions a number of
intermediaries as such, like sub-proprietors,
under-proprietors, tenure-holders but does not
give a complete enumeration of all intermediaries
that may be existing in an estates all over India
and therefore uses the words “other intermediary”
to bring in all kinds of intermediaries existing
in an estate. As an example we may mention that
formerly in Uttar Pradesh there were fixed rate
tenants in the permanently settled districts who
were also intermediaries and it is such persons or
their likes who were brought in within the sweep
of the definition of rights in relation to an
estate by the use of the words “other
intermediary”. Therefore, when the words “raiyat,
under raiyat ” were added in sub-cl. (b) in 1955,
it was further enumeration within a class already
there; further as held in The State of Bihar v.
Rameshwar Pratap Narain Singh (1), their inclusion
in the circumstances and in the particular setting
showed that the words “or other intermediary” did
not necessarily qualify or colour the meaning to
be attached to these new tenures. The meaning of
the word “estate” has however to be found in
844
sub-cl. (a) and it is the words used in that sub-
clause only which will determine its meaning
irrespective of whether any intermediary existed
in an estate or not. The meaning of the word
“estate” in sub-cl (a) is the same as it might be
in the existing law relating to land-tenure in
force in a particular area. Where therefore there
is an existing law in a particular area in which
the word “estate” as such is defined the word
would have that meaning for that area and there is
no necessity then for looking for its local
equivalent. But if in existing law of a particular
area the word “estate” as such is not defined, but
there is a definition of some other term which in
that area is the local equivalent of the word
“estate” then the word “estate” would have the
meaning assigned to that term in the existing law
in that area. In order, however, that one may be
able to say that a particular term in an existing
law in a particular area is a local equivalent of
the word “estate” used in sub-cl (a) it is
necessary to have some basic idea of the meaning
of the word “estate” for that purpose. That basic
idea seems to be that the person holding the
estate should be the proprietor of the soil and
should be in direct relationship with the State
paying land-revenue to it, when it is not remitted
in whole or in part. If a term therefore is
defined in any existing law in a local area which
corresponds to this basic idea of an estate that
term would be a local equivalent of the word
“estate” in that area. It is unnecessary to pursue
the matter further because this aspect of the case
has also been considered in Writ Petition No. 105
of 1961.
It may be added that as the definition of the
word “estate” came into the Constitution from
January 26, 1950, and is based on existing law we
have to look into law existing on January 26,
1950, for the purpose of finding out the meaning
of the word “estate” in Art. 31A.
845
Let us therefore look at state of the law as
it was in the State of Madras on January 26, 1950,
for the area from which these petitions come was
then in the district of South Canara, which was
then a part of the Province of Madras, which
became the State of Madras on January 26, 1950.
The usual feature of land-tenure in Madras was the
ryotwari form but in some districts, a landlord
class had grown up both in the northern and
southern parts of the Presidency of Madras as it
was before the Constitution. The permanent
settlement was introduced in a part of the Madras
Presidency in 1802. There were also various
tenures arising out of revenue free grants all
over the Province (see Chap. IV, Vol. III of land
Systems of British India by Baden Powell) and
sometimes in some districts both kinds of tenures,
namely, landlord tenures and the ryotwari tenures
were prevalent. There were various Acts in force
in the Presidency of Madras with respect to
landlord tenures while ryotwari tenures were
governed by the Standing orders of the Board of
Revenue. Eventually, in 1908, the Madras
legislature passed the Madras Estate Land Act, No.
1 of 1908, which was later amended from time to
time. It contains a definition of the word
“estate” as such in s. 3(2) and when the
Constitution came into force the relevant part of
the definition was as follows:-
“Estates’ means:-
(a) any permanently settled estate or
temporarily settled zamindari;
(b) any portion of such permanently
settled estate or temporarily settled
zamindari which is separately registered in
the office of the Collector;
(c) any unsettled palaiyam or jagir;
(d) any inam village of which the
grant has been made, confirmed or recognised
by the British Government, notwithstanding
that
846
subsequent to the grant, the village has been
partitioned among the grantees or the
successors-in title of the grantee or
grantees.”
This Act applied to the entire Presidency of
Madras except the Presidency town of Madras, the
district of Malabar and the portion of the Nilgiri
district known as South East Wynaad. It thus
applied to the district of South Canara from where
these petitions come. So far therefore as the
District of South Canara was concerned, there was
an existing law which defined the word “estate”
for that local area. Shortly before the
Constitution came into force the Madras
legislature had passed the Madras Estates
(Abolition and Conversion into Ryotwari) Act No.
XXVI of 1948. That Act provided for the abolition
of estates subject to certain restrictions with
which we are not concerned. It also provided for
repeal of the Madras Permanent Settlement
Regulation, 1802, and the Estates Land Act of 1908
to the extent and from the date on which
notifications were made under s. 3 of that Act.
There was thus no repeal of Act I of 1908 by the
Act of 1948, and it is not in dispute that Act No.
1 of 1908 was in force on January 26, 1950, in
large parts of the Province of Madras including
South Canara, and is still in force in such parts
of it as have not been notified under s. 3 of the
Act of 1948. Therefore, we reach the position that
when Art. 31 became applicable from January 26,
1950, Act No. 1 of 1908 was still in force in
large parts of the Madras State and it contained a
definition of the word “estate” as such. Further,
Act I of 1908 was clearly a law of land-tenures as
a brief review of its provisions will show.
Section 6 of the Act conferred occupancy rights on
tenants of certain lands in “estates” as defined
in the Act of 1908. Chapter II dealt with the
general rights of landlords and tenants. Chapter
III dealt with provisions relating to rate of rent
payable by tenants and provided for enhancement,
reduction, commutation, alteration
847
and remission of rent. Chapter IV dealt with
pattas and muchilikas. Chapter V provided for
payment of rent and for realisation of arrears of
rent. Chapter VI provided the procedure for
recovery of rent. Other Chapters dealt with other
matters including Chap. X which dealt with
relinquishment and ejectment. It is clear
therefore that the Act of 1908 was a law relating
to landtenures. Therefore, we reach the position
that in a law relating to land-tenures which was
in force in the State of Madras when the
Constitution came into force the word “estate” was
specifically defined. This law was in force in the
whole of the State of Madras except some parts and
was thus in force in the area from which the
present petitions come. This area was then in the
south Canara district of the State of Madras. We
are therefore of opinion that the word “estate” in
the circumstances can only have the meaning given
to it in the Act of 1908 as amended up to 1950 in
the State of Madras as it was on the date the
Constitution came into force.
We have already said that the Act of 1908
dealt with landlord tenures of Madras and was an
existing law relating to land-tenures. The other
class of land-tenures consisted of ryotwari
pattadars which were governed by the Board’s
Standing Orders, there being no Act of the
legislature with respect to them. The holders of
ryotwari pattas used to hold lands on lease from
Government. The basic idea of ryotwari settlement
is that every bit of land is assessed to a certain
revenue and assigned a survey number for a period
of years, which is usually thirty and each
occupant of such land holds it subject to his
paying the land-revenue fixed on that land. But it
is open to the occupant to relinquish his land or
to take new land which has been relinquished by
some other occupant or become otherwise available
on payment of assessment, (see Land Systems of
British India by Baden-Powell, Vol. III, Chap. IV,
s. II, p. 128). Though, theoretically, according
to some authorities, the occupant of ryotwari
848
land held it under an annual lease (see Macleane,
Vol. I Revenue Settlement, p. 104), it appears
that in fact the Collector had no power to
terminate the tenant’s holding for any cause
whatever except failure to pay the revenue or the
ryot’s own relinquishment or abandonment. The ryot
is generally called a tenant of Government but he
is not a tenant, from year to year and cannot be
ousted as long as he pays the land-revenue
assessed. He has also the right to sell or
mortgage or gift the land or lease it and the
transferee becomes liable in his place for the
revenue. Further, the lessee of a ryotwari
pattadar has no rights except those conferred
under the lease and is generally a sub-tenant at-
will liable to ejectment at the end of each year.
In the Manual of Administration, as quoted by
BadenPowell, in Vol. III of Land Systems of
British India at p. 129, the ryotwari tenure is
summarised as that of a tenant of the State
enjoying a tenant-right which can be inherited,
sold, or burdened for debt in precisely the same
manner as a proprietary right subject always to
payment of the revenue due to the State”. Though
therefore the ryotwari pattadar is virtually like
a proprietor and has many of the advantages of
such a proprietor, he could still relinquish or
abandon his land in favour of the government. It
is because of this position that the ryotwari
pattadar was never considered a proprietor of the
land under his patta, though he had many of the
advantages of a proprietor. Considering, however,
that the Act of 1908 was in force all over the
State of Madras but did not apply to lands held on
ryotwari settlement and contained a definition of
the word “estate” which was also applicable
throughout the State of Madras except the areas
indicated above, it is clear that in the existing
law relating to land-tenures the word “estate” did
not include the lands of ryotwari pattadars,
however valuable might be their rights in lands as
they eventually came to be recognised.
849
Turning now to the district of South Canara
and the areas from which the present petitions
come it appears that originally the ryotwari
settlement was not in force in this area and two
kinds of tenures were recognised, namely,
mulawargdar and Sarkarigniwargdar. It is, however,
unnecessary to go into the past history of the
matter, for it is not in dispute that the ryotwari
system was introduced in South Canara district in
the early years of this century. The history will
be found in the Book “Land Tenures in the Madras
Presidency” by S. Sunderaraja Iyengar, IIEdn., pp.
45-47, where it is said that “after the
introduction of the ryotwari system into South
Canara, no distinction now exists between the
wargadar, the mnulawargadar and kudutaledar and
they are all ryotwari pattadars” Therefore, when
the Constitution came into force the ryotwari
pattadars of South Canara were on the same
position as the ryotwari pattadars of the rest of
the State of Madras. Further, as the Act of 1908
was in force in South Canara also, though there
may not be many estates as defined in that Act in
this area it follows that in this area also the
word “estate” would have the same meaning as in
the Act of 1908 and therefore ryotwari pattadars
and their lands would not be covered by the word
“estate”. Further, there can be no question of
seeking for a local equivalent so far as this
parts of the State of Kerala which has come to it
from the former State of Madras is concerned. We
are therefore of opinion that lands held by
ryotwari pattadars in this part which has come to
the State of Kerala by virtue of the States
Reorganisation Act from the State of Madras are
not estates within the meaning of Art. 31A (2)(a)
of the Constitution and therefore the Act is not
protected under Art. 31A (I) from attack under
Arts. 14, 19 and 31 of the Constitution.
850
Re. (4).
The next contention on behalf of the
petitioners is that the Act makes a discrimination
between areca and pepper plantations on the one
hand and certain other plantations on the other
and should therefore be struck down as violative
of Art. 14 of the Constitution. Section 2(39) of
the Act defines “plantation” to mean any land used
by a person principally for the cultivation of
tea, coffee, rubber or cardamom or such other kind
of special crops as may be specified by the
Government by notification in the gazette. Areca
and pepper plantations have however not been
included in this definition. It is urged on behalf
of the petitioners that in this part of the State
there are a large number of areca and pepper
plantations which are practically run on the same
lines as tea, coffee and rubber plantations and
there is no reason why discrimination should be
made between areca and pepper plantations on the
other hand and tea, coffee and rubber plantations
on the other. The discrimination is said to arise
from the provisions of s. 3 and s. 57 of the Act.
Section 3(viii) which occurs in Chap. II dealing
with the acquisition of the interest of landowners
by tenants excepts tenancies in respect of
plantations exceeding thirty acres in extent from
the application of that chapter. The result of
this is that tenants in plantations exceeding
thirty acres in extent cannot acquire the interest
of the landowners with respect to such plantations
and the landowners continue to own such
plantations as before. Further s. 57 which is in
Chap. III provides for exemption of all
plantations whatever their extent from the
provisions of that Chapter. Thus the ceiling area
provided in s. 58 will not apply to plantations
which will be left out in calculating the ceiling
area for the purpose of s.58. Further, s.59(2)
provides that in calculating the ceiling area any
cashew estate if it was a cashew estate on April,
11, 1957 and continued as such at the
851
commencement of s. 59 (provided the cashew estate
was principally planted with cashewnuts tree and
be a contiguous area not below 10 acres) will
continue to be owned or held as before, though the
ceiling in such cases would be reduced to half of
that provided in s.58. These provisions inter alia
confer benefits on those who hold plantations as
defined in s. 2(39) and also on those who have
cashew estates as defined in the Explanation to s.
59(2). The contention on behalf of the petitioners
is that there is no reason why the same benefits
which have been conferred on plantations as
defined in the Act should not be conferred on
those who hold areca and pepper plantations, and
that there are no intelligible differentia which
would justify the State legislature in treating
the pepper and areca plantations differently from
rubber, tea and coffee plantations.
Article 14 has been the subject of
consideration by this Court on a number of
occasions and the principles which govern its
application have been summarised in Shri Ram
Krishna Dalmia v. Shri Justice S. R. Tendolkar
(1), in these words:-
“(a) that a law may be constitutional even
though it relates to a single individual
if, on account of some special
circumstances or reasons applicable to
him and not applicable to others, that
single individual may be treated as a
class by himself;
(b) that there is always a presumption in
favour of the constitutionality of an
enactment and the burden is upon him who
attacks it to show that there has been a
clear transgression of the
constitutional principles;
(c) that it must be presumed that the
legislature understands and correctly
appreciates the need of its own people,
that its laws are directed to problems
852
made manifest by experience and that its
discriminations are based on adequate
grounds;
(d) that the legislature is free to
recognise degrees of harm and may
confine its restrictions to those cases
where the need is deemed to be the
clearest;
(e) that in order to sustain the presumption
of constitutionality the court may take
into consideration matters of common
knowledge, matters of common report, the
history of the times and may assume
every state of facts which can be
conceived existing at the time of
legislation; and
(f) that while good faith and knowledge of
the existing conditions on the part of a
legislature are to be presumed, if there
is nothing on the face of the law or the
surrounding circumstances brought to the
notice of the court on which the
classification may reasonably be
regarded as based, the presumption of
constitutionality cannot be carried to
the extent of always holding that there
must be some undisclosed and unknown
reasons for subjecting certain
individuals or corporations to hostile
or discriminating legislation.”
The petitioners rely on cl.(f) of this summary and
contention is that there is nothing to show either
in the Act or even in the affidavit filed on
behalf of the State in reply to the petitions or
in the circumstances brought to the notice of the
court that the classification in this case which
excludes areca and pepper plantations and includes
tea, coffee and rubber plantations is a proper
classification based on intelligible differentia
which are related to the objects and purposes of
the Act.
853
This brings us to a consideration of the
reasons which may have impelled the legislature to
treat plantations as a class differently from
other lands. 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 an agrarian economy with a high level
of efficiency and productivity (see p. 178 of the
Second Five Year Plan). It is with this object in
view that ceiling on land-holdings has been
imposed in various States. Even so, it is
recognised that some exemptions will have to be
granted from the ceiling in order that production
may not suffer. This was considered in the Second
Five Year Plan at p. 196 and three main factors
were taken into account in deciding upon
exemptions from the ceiling, namely:-
(1) integrated nature of operations,
especially where industrial and agricultural
work are undertaken as a composite
enterprise,
(2) specialised character of
operations, and
(3) from the aspect of agricultural
production the need to ensure that
efficiently managed farms which fulfil
certain conditions are not broken up.
Bearing these criteria in mind it was recommended
in the Second Five Year Plan (see p. 196) that the
following categories of farms may be exempted from
the operation of ceiling namely:
“(1)tea, coffee and rubber plantation;
(2) orchards where they constitute
reasonably compact areas;
854
(3) specialised farms engaged in cattle
breeding, dairying, wool raising etc;
(4) sugarcane farms operated by sugar
factories; and
(5) 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 has been reiterated in Chap. XIV of
the Third Five Year Plan dealing with Land Reform
and ceiling on agricultural holdings and para 28
thereof refers to the grounds of exemption
envisaged by the Second Five Year Plan. It is
obvious therefore that when the State legislature
in this case exempted tea, coffee, rubber and
cardamom plantations from the ceiling under Chap.
III and treated plantations of over 30 acres as a
special case for the purpose of Chap. II, it must
have had the principles enunciated above in mind
to differentiate them from ordinary cultivation of
other crops. If that be so, the question
immediately arises whether there is any reason for
treating areca and pepper plantations differently.
If there is none and areca and pepper plantations
stand so far as these conditions are concerned on
the same footing as tea, coffee and rubber
plantations there will clearly be a discrimination
against them by the provisions of the Act referred
to above.
Turning now to pepper plantations, first, we
may refer to the information contained in Farm
Bulletin No. 55 relating to pepper cultivation in
India issued by the Farm Information Unit,
Directorate of Extension, Ministry of Food and
Agriculture, New Delhi in September 1959. It
appears from this bulletin that Kerala is the most
important pepper producing State in India, where
pepper is cultivated on an organised plantation
scale over
855
fairly extensive areas. There are three distinct
regions of the pepper growing belt, namely, (1)
The Travancore and Cochin region. (2) The Malabar
and South Canara region, and (3) the Coorg and
North Canara region. Though pepper is essentially
a homestead garden crop, growers were encouraged
to grow it on plantation scale since 1928 when the
price of pepper rose to about Rs. 700/- per candy.
Since then there has been a further rise in the
price of pepper with the result that new homestead
gardens and plantations have sprung up and pepper
cultivation has extended a good deal. During the
last fifty years, pepper which was largely a
household garden crop has emerged as a plantation
crop and fairly large sized plantations of pepper
exist in the submontane eastern parts of North
Malabar and the Hosdrug taluk of South Canara,
(the area from which these petitions come). In
Hosdrug taluk in particular pepper is grown mostly
on large scale plantations and it is here that the
finest and the best organised pepper plantations
in India exist. Some of the largest plantations
among them have an area of a 100 to 150 acres.
Pepper vines commence yielding usually from the
third year, the yield increasing gradually until
the vines come to full bearing in about ten years.
The economic life of a vine varies from place to
place. From the tenth to the 25th year, the vines
are in full bearing, and the yield begins to
decline after the 30th year. The initial outlay on
pepper plantations is heavy and the pepper crop
requires continuous attention and care. The total
area under pepper is over 2 lakhs acres out of
which about 20,000 acres are under pure pepper
plantations. The initial expenditure on laying out
a pepper plantation can be recovered only after
several years and the best organised and most
extensive pepper plantations of India are in the
Hosdrug taluk, South Canara (from where these
petitions come) and North Malabar.
856
This information taken from Farm Bulletin 55
shows that in the last fifty years pepper in India
has reached the plantation stage and in particular
in Hosdrug taluk from where these petitions come
there are the best organized and most extensive
pepper plantations in India. The initial cost of
laying out a pepper plantation is heavy and the
pepper vines yield nothing for three years and
full production comes only in the tenth year.
Therefore, where pepper is cultivated as a
plantation crop on a large scale the cost is heavy
and may be comparable to the outlay on large scale
tea, coffee and rubber plantations. It is in these
circumstances that we have to consider whether
there has been discrimination against pepper
plantations when they have not been included in
the definition of plantation under s. 2(39) of the
Act.
Turning to arecanut, reference may be made to
Farm Bulletin No. 14 issued by the same authority.
The major arecanut growing belt in India is again
the same regions, i.e., South Canara, Malabar,
Coorg and Travancore-Cochin along with parts of
Mysore, Bengal and Assam. Arecanut is also grown
on plantation scale. Since the crop begins to bear
fruit after about eight years, large sums have to
be expended up to the bearing stage without any
income till then. The estimated life of an
arecanut garden is about 50 to 60 years, though
some of the palms in the garden will be dying
occasionally or becoming uneconomic and it will be
necessary to replace them. For this reason
underplanting is taken up periodically. It appears
further from the Proceedings of the Ninth Annual
General Special and Twelfth Ordinary Meetings of
the Indian Central Arecanut Committee held on
January 23, 1958, that the question whether
arecanut gardens should be put under ceiling or
not and whether there would be hampering of
production which would be against national
interest if a ceiling were imposed on such gardens
had been referred to a Sub-committee for
consideration.
857
The Sub-committee reported that if areca gardens
were brought under the ceiling it would hamper
production which would be against the national
interest and recommended to the Planning
Commission, the Central Government and the State
Governments that, as proposed by the Planning
Commission in respect of tea, coffee and rubber
plantations, orchards, specialised farms and
efficiently managed farms, arecanut gardens be
also similarly exempted from ceiling. The Sub-
committee also noticed that arecanut cultivation
involved heavy capital outlay in establishing,
maintaining and protecting the arecanut trees.
This recommendation of the Sub-committee came up
for consideration before the Indian Central
Arecanut Committee on January 23, 1958, and was
accepted. Thus these proceedings show that
fixation of ceiling on arecanut gardens would
hamper production which would be detrimental to
national economy. It is in this background
therefore that we have to consider whether the
non-inclusion of areca and pepper plantations in
the definition in s. 2(39) with the result that
areca and pepper plantations do not enjoy similar
benefits as others, is discriminatory.
From what we have said above it has not been
shown that there is any appreciable difference
between the economics of tea, coffee and rubber
plantations and areca and pepper plantations. It
is true that plantations in areca and pepper are
not so widespread as tea, coffee and rubber
plantations but it is equally true that in this
particular area from which these petitions come
areca and pepper plantations are very common. The
fact however that areca and pepper plantations are
very common only in this area of the State of
Kerala is no reason for treating them differently
from tea, coffee and rubber plantations which are
apparently more evenly distributed throughout the
State. If the criteria evolved by the Planning
Commission, as already indicated, apply to tea,
coffee and rubber
858
plantations in our opinion they equally apply to
areca and pepper plantations and there is no
reason for differentiating between these two sets
of plantations. So far as areca is concerned we
have the recommendation of the Sub-committee,
mentioned above, endorsed by the Indian Central
Arecanut Committee, that it would be detrimental
to national economy not to extend the benefit of
exemption from ceiling to arecanut plantations in
the same way as is done in the case of tea, coffee
and rubber plantations. As for pepper we have it
from Farm Bulletin No. 55 that the best organised
and most extensive pepper plantations of India are
in Hosdrug Taluk of South Canara and that some of
them are even as large as 100 to 150 acres each.
The result of the application of the ceiling and
other provisions of the Act would mean the break-
up of these plantations and may result in fall in
production. It is to avoid the break-up of tea,
coffee and rubber plantations and the consequent
fall in production that ceiling has not been
imposed on these plantations. The same reasons in
our opinion lead to the conclusion that pepper
plantations should also be treated similarly. In
this connection reference may be made to the
opinion expressed in Farm Bulletin No. 55 where
the author has said that it is impossible to keep
a large plantation of pepper in good tip-top
condition, without incurring heavy expenditure and
without great efforts and has added that in the
existing conditions no one planter should have
more than 10 acres of pepper plantation. This
would seem to suggest that 10 acres is the
economic optimum limit for pepper plantations. It
is not clear however on what basis this
recommendation is based, for undoubtedly the
bulletin shows that there are plantations of much
larger extent in this area and the plantations
here are the best organised and the most extensive
throughout the whole of India. The only reason
which seems to have been given in support of the
opinion that
859
10 acres is the optimum area for a pepper
plantation is that one planter in that region was
of the view that unless the price of one candy of
pepper remained at a high level of anything
between Rs. 1,500/- and Rs. 2,000/- it will be
impracticable and unprofitable to maintain large
scale plantations of pepper in these regions, and
if prices go down for below this level, large
scale pepper plantations may have even to be
abandoned. This does not afford a sufficient basis
for holding that 10 acres is the optimum holding
for a pepper plantation. In the first place, it is
mentioned at p. 8 of the bulletin that pepper
began to be grown on plantation scale when the
price rose to about Rs. 700/- per candy in 1928.
Therefore even if the price falls below Rs.
1,500/- to Rs. 2,000/- per candy there is no
reason why pepper cultivation on a plantation
scale should become impracticable, particularly as
it is unlikely that the cost of only pepper will
fall and not all other commodities. At p. 72 the
bulletin mentions that the cost of cultivation of
pepper can be brought down only if the general
price level is brought down substantially. Now
there is no reason to suppose that there would be
a catastrophic fall in the price level of pepper
only which would make all pepper plantations above
10 acres uneconomic and unprofitable. In any case
this is not the reason urged on behalf of the
State in support of not including pepper
plantations in the definition of plantation. In
this connection we ought to add that the counter
affidavit filed by the respondent is very
unsatisfactory; no serious attempt has been made
at all to justify the exclusion of pepper and
arecanut from the exemption granted to tea,
coffee, rubber and cardamom; no facts are stated
and no data supplied in reply to the detailed
allegations made in the petitions challenging the
validity of the classification in question. The
only reason given by the State in the counter
affidavit is that a plantation crop is generally
understood
860
to refer only to tea, coffee and rubber and
cardamom. It is not quite clear what exactly is
meant by this one sentence in the counter
affidavit in support of the definition. If a
plantation crop is generally understood to refer
to only tea, coffee, rubber and cardamom, it is
not understood why the definition provides for
extending the word “plantation to other crops by
notification. The very fact that power has been
reserved for extending the definition by
notification to other crops shows that other crops
can also be grown on plantation scale. In view
therefore of what we have said above with respect
to the economics of areca and pepper cultivation,
it is obvious that no sufficient reason has been
shown for differentiating areca and pepper
plantations in this area from tea, coffee and
rubber plantations in the State. Making all the
presumptions in favour of the classification made
under s.2(39) it is clear that there is nothing on
the face of the law or the surrounding
circumstances which has been brought to our notice
in this case on which the classification contained
in s. 2(39) can be said to be reasonably based.
Considering the object and purpose of the Act and
the basis on which exemption has been granted
under Chapters II and III to plantations as
defined in the Act, there appears to be no reason
for making any distinction between tea, coffee and
rubber on the one hand and areca and pepper on the
other in this particular case. It is not as if
tea, coffee and rubber are grown only on a large
scale while areca and pepper are mostly grown on a
small scale. We find from the report of the
Plantation Inquiry Commission, 1956, that small
holdings exist in tea, coffee and rubber
plantations also and are in fact the majority of
such plantations. For example, in the report of
the Plantation Inquiry Commission relating to
coffee at pp. 9 and 14 we find that out of the
total number of registered estates more than 4,500
are between 5 acres and 25 acres while only about
2,200
861
estates are above 25 acres. Further there are more
than 24,000 estates below 5 acres. Similarly at p.
97, Chap. XI, Part III of the Report dealing with
rubber, out of the total of over 26, 709 rubber
estates, 23,300 are up to 5 acres, 1,900 up to 10
acres and only about 1,500 above 10 acres. So it
appears that the large majority of plantations
whether they be of coffee or rubber are below 10
acres and that is also the case with area and
pepper plantations. Thus there is no reason for
giving preference to plantations of tea, coffee
and rubber over plantations of area and pepper for
the conditions in the two sets of plantations
whether for the purpose of ceiling under Chap. III
or for the purpose of acquisition of landowners’
rights under Chap. II are the same. The reasons
therefore which call for exemption of tea, coffee
and rubber plantations equally apply to areca and
pepper plantations and there is no intelligible
differentia related to the object and purpose of
the Act which would justify any distinction in the
case of tea, coffee and rubber plantations as
against area and pepper plantations. We are
therefore of opinion that the provisions relating
to plantations are violative of Art. 14 of the
Constitution.
The next question is whether these provisions
are severable, that is to say, whether the Kerala
legislature would have passed the Act without
these provisions. That depends upon the intention
of the legislature and as far as we can judge that
intention from the provisions of the Act, it seems
clear to us that 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 production and
detriment to national economy. It seems that the
legislature could not have intended in order to
carry out the purpose of the legislation to do so
even after breaking-up all the plantations which
862
existed in the State. It follows therefore that
the legislature would not have passed the rest of
the Act without the provisions relating to
plantations. As these provisions affect the entire
working out of Chapter 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 be
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, and we
order accordingly.
Re. (5).
Then we come to the attack that the Act is
violative of Art. 14 on account of the manner in
which ceiling has been fixed under s. 58 thereof.
Section 2(12) defines a “family” as meaning
husband, wife and their unmarried minor children
or such of them as exist. There are three kinds of
families existing in this State namely, the joint
Hindu family, Marumakhathayam family and
Aliyasanthana family, the latter two being
matriarchal. In the matriarchal family the husband
and wife are not members of the same family but
belong to different families. The joint Hindu
family does not merely consist of the husband,
wife and unmarried minor children; it consists at
least of the husband wife and all the children
whether married or unmarried and whether minor or
adult. The definition of “family” therefore in the
Act is an artificial one which does not conform to
any of the three kinds of families prevalent in
the State.
Turning now to s. 58, the ceiling has been
fixed in two ways. The first is by reference to a
family as defined in the Act of not more than five
members which is allowed 15 acres of double crop
nilam or its equivalent with an addition of one
acre of double crop nilam or its equivalent for
each
863
member in excess of five, so however that the
total extent of the land shall not exceed 25 acres
of double crop nilam or its equivalent. The second
is by reference to an adult unmarried person who
is allowed 7.50 acres of double crop nilam or its
equivalent. It has been urged on behalf of the
State that the provisions as they stand do not
make any discrimination whatsoever for there is
the same provision for all adult unmarried persons
and the same for all families as defined in the
Act. This in our opinion is an over-simplification
of the provision relating to ceiling under s. 58.
On an argument of this kind no provision would
ever be discriminatory for it is unlikely that a
provision would on the face of it make a
discrimination. The discriminatory nature of the
provision has to be judged from the results that
follow from it and we have no doubt that the
results which follow from this double provision as
to ceiling are bound to be discriminatory. If the
ceiling had been fixed with respect to one
standard whether it be of an individual person or
of a natural family by which we mean a family
recognised in personal law, the results may not
have been discriminatory. But where the ceiling is
fixed as in the present case by a double standard
and over and above that the family has been given
an artificial definition which does not correspond
with a natural family as known to personal law,
there is bound to be discrimination resulting from
such a provision. A simple illustration will
explain how the results of the manner in which the
ceiling has been fixed by s. 58 will lead to clear
discrimination between person and person. Take the
case of an adult unmarried person and a minor who
is an orphan with no father, mother brother or
sister. Assume further that each owns 25 acres of
land under personal cultivation. The former who is
an adult unmarried person will retain 7 acres and
will have to surrender 17.50 acres as excess land.
The latter will be an artificial family under the
definition of that word
864
in s. 2(12). This follows from the fact that a
family consists of husband, wife and their
unmarried minor children or such of them as exist.
This is also made clear by s. 61(2) which shows
that even a minor who has no parents, and no
brothers or sisters will constitute a family under
s. 2(12). This minor therefore as constituting a
family will be entitled to 15 acres of land and
will have to surrender only 10 acres as excess
land. No justification has been shown to us on
behalf of the State for this discriminatory
treatment of two individual persons; nor are we
able to understand why such discrimination which
clearly results from the application of the
provisions of s. 58(1)is not violative of Art. 14
of the Constitution. Examples can be multiplied
with reference to joint Hindu families also, which
would show that in many cases discrimination will
result on the application of these provisions to
joint Hindu families. Similar would in our opinion
be the case with Marumakhathayam and Aliyasanthana
families where as we have already pointed out the
husband and wife do not belong to the same family
as known to personal law. Discrimination therefore
is writ large on the consequences that follow from
the provisions of s. 58(1). We are therefore of
opinion that s. 58(1) is violative of the
fundamental right enshrined in Art. 14; as that
section is the basis of entire Chap. III the whole
Chapter must fall with it. This would be an
additional reason why Chap. III should be struck
down as violative of Art 14 in its application to
ryotwari landas which have come to the State of
Kerala from the State of Madras.
Re. (6)
It is contended that the manner in which the
compensation is cut down progressively in ss. 52
and 64 of the Act is violative of Art. 14. The
Compensation payable under s. 52 is determined in
this manner. First the purchase price is arrived
at under s. 45. Thereafter s. 52(2)(b) provides
that the landowner or the intermediary, except in
the
865
case of religious, charitable and educational
institution of a public nature, would be entitled
to compensation. The compensation would consist of
(1) the value of structures, wells and embankments
of a permanent nature situated in the land and
belonging to the landowner or the intermediary, as
the case may be, and (2) the percentage of the
value of interest of the landowner or the
intermediary in respect of the land and the
improvements other than those falling under sub-
cl. (i) according to the scales specified in Sch.
II. Schedule II then provides that the first Rs.
15,000/-. of the compensation will be paid in
full. Thereafter there will be a reduction of 5
per cent. in each slab of Rs. 10,000/- till we
reach compensation above Rs. 1,45,000/- Thereafter
the compensation arrived at under s. 52 read with
s. 45 is reduced by 70 per cent so that the
landowner or the intermediary gets only 30 per
cent of what has been arrived at under s. 52 (2)
(b) read with s. 45.
Similarly in s. 64 the compensation payable
for excess land surrendered is (i) the full value
of any structures, wells and embankments of a
permanent nature situate in the land and belonging
to the person who surrenders such land, and (ii)
the percentage of the market value of the land and
improvements other than those specified above.
Here again on the first Rs. 15,000/- compensation
at 60 per cent is to be paid. Thereafter the
compensation is reduced by 5 per cent for each
slab of Rs. 15,000/- till we reach over Rs.
1,75,000/- when the compensation is reduced by 75
per cent.
The contention on behalf of the petitioners
is that there is no intelligible differentia on
which the purchase price determined under s. 45 or
the market value is to be reduced by different
percentages depending on the total purchase price
or the total market value of the interest to be
acquired. The reply on behalf of the State is that
there is really no discrimination inasmuch
866
as the same percentage is reduced where the
compensation payable to different persons is the
same. That is undoubtedly so. But that alone is
not in our opinion the end of the matter. The
question which is posed for our consideration is
why a person in whose case the purchase price or
the market value Rs. 15,000/- should get the full
purchase price or suffer a reduction in the market
value at a certain rate while another person in
whose case compensation is more than Rs. 15,000/-
should suffer reductions at a different rate which
reductions become progressively higher as the
purchase price or the market value increases. We
could understand once the purchase price or the
market value had been determined a uniform cut
therefrom for all persons entitled to
compensation. That would then raise the question
of adequacy of compensation and unless the cut was
so large as to make the compensation illusory the
cut may be protected by Art.31(2). But in the
present case there is not a uniform cut on the
purchase price or the market value for all
persons, the cut is higher as the purchase price
or the market value gets bigger and bigger after
the first slab of Rs. 15,000/-. This difference in
cut in being justified on behalf of the State on
the same principle on which (for example) the slab
system exists for purposes of income-tax. We are
however of opinion that there is no comparison
between the slab system of income-tax rates and
the present cuts. Taxation is a compulsory levy
from each individual for the purpose of the
maintenance of the State. We may therefore
reasonably expect that a rich man may be required
to make a contribution which may be higher than
what may be proportionately due from his income
for that purpose as compared to a poor man. This
principle cannot be applied in a case where a
person is deprived of his property under the power
of eminent domain for which he is entitled to
compensation. There is no reason why when two
persons are deprived of their property one richer
than the other, they should be paid at
867
different rates when the property of which they
are deprived is of the same kind and differs only
in extent. No such principle can be applied in
case where compensation is being granted to a
person for deprivation of his property. Where one
person owns property valued at Rs. 15,000/- while
another owns property valued at Rs. 30,000/-, both
are equally deprived of the property. When
therefore it comes to a question of payment of
compensation we can see no reason why a person
whose compensation amounts to Rs. 15,000/- should
get the whole of it or a large part of it while
another person whose compensation amounts to (say)
Rs. 30,000/- should get something less than the
first person. It is not as if there is some
difference in the nature of the property which
might justify different payments of compensation.
What the Act provides is to work out the purchase
price or the market value first for the purpose of
determining compensation and then make different
cuts from the purchase price or the market value
according to whether in one case the purchase
price or the market value is Rs. 15,000/- and in
another case it is more than Rs. 15,000/-. No
justification, is pointed out for this
discrimination except the principle on which the
slab system for the purpose of income-tax is
justified. That principles as we have just pointed
out does not apply to a case of compensation.
Nor are we able to see any rational
classification which would justify different cuts
based simply on the amount of compensation worked
out on the basis of purchase price or market
value. The only thing we can see is that because a
person is possibly richer he must be paid less for
the same type of land while a person who is poorer
must be paid more. This kind of discrimination in
the payment of compensation cannot in our opinion
be possibly justified on the objects and purposes
of the Act. The object and purpose of the Act, as
we have already said, is to grant rights to
cultivating tenants so that they may
868
improve their lands resulting in larger production
to the benefit of the national economy. Secondly,
the object of the Act is to provide land for the
landless and to those who may have little land by
taking excess land from those who have large
tracts of lands so that peasant proprietorship may
increase with consequent increase in production
due to greater interest of the cultivator in the
soil. But these objects have no rational relation
which would justify the making of different cuts
from the purchase price or the market value for
the purpose of giving compensation to those whose
interests are being acquired under the Act. We can
therefore see no justification for giving
different compensation based on different cuts
from the purchase price or the market value as
provided in ss. 52 and 64 of the Act.
We may in this connection refer to Kameshwar
Singh v. The State of Bihar (1), in which similar
question with respect to compensation provided in
the Bihar Land Reforms Act, 1950, came up for
consideration. There the Act provided compensation
at different rates depending upon the net income.
The landowner having the smallest net income below
Rs. 500/- was to get twenty times the net income
as compensation while the landowner having the
largest net income, i. e., above 1,00,000/- was to
get only three times of the net income.
Intermediate slabs provided different multiples
for different amounts of net income. That
provision was struck down by the Special Bench of
the Patna High Court as violative of Art. 14. It
may be mentioned that decision was given before
the Constitution (First Amendment) Act adding Art.
31A and the Ninth Schedule to the Constitution was
passed. Three learned Judges composing the Special
Bench who heard that case were unanimously of the
869
opinion that such difference in payment was
violative of Art. 14 and the principle of
progressive taxation did not apply to compensation
for land acquired. We are of opinion that the view
taken in that case is correct and the same applies
to the present case. We may point out that case
came in appeal to this Court (see, The State of
Bihar v. Maharajadhiraja Sir Kameshwar Singh (1)
). The appeal however was heard after Art. 31A and
the Ninth Schedule had been introduced in the
Constitution and therefore this Court had no
occasion to consider whether such difference in
payment of compensation would be violative of Art.
14. We are therefore clearly of opinion that the
manner in which progressive cuts have been 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 is taken in another results in
discrimination and cannot be justified on any
intelligible differentia which has any relation to
the objects and purposes of the Act. As the
provision as to compensation is all pervasives,
the entire Act must be struck down as violative of
Art. 14 in its application to ryotwari lands which
have come to the State of Kerala from the State of
Madras.
In view of what we have said above on the
main points urged in the petitions, it is
unnecessary to consider other subsidiary points
attacking particular sections of the Act on the
ground that they were unreasonable restrictions on
the right to acquire, hold and dispose of property
under Art. 19(1)(f). We therefore allow the
petitions and strike down the Act in relation to
its application to ryotwari lands which have come
to the State of Kerala from the State of Madras.
The petitioners will get their costs from the
State of Kerala, one set of hearing costs.
870
SARKAR, J.-I wish to say a few words on two
of the questions that arise in these cases.
The Act, the validity of which is challenged,
provides for acquisition of lands for equitable
distribution among the people who require it for
cultivation by themselves. It provides for payment
of compensation to those whose interests are
acquired. It also provides for a mode of valuation
of these interests. Then it provides by ss. 52 and
64 for payment of compensation at a progressively
smaller rate for larger valuations. For the higher
slabs in the valuation made as provided by the
Act, less and less is paid by way of compensation.
It is said that these provisions for progressively
diminishing compensation are discriminatory and
unconstitutional. This is the first point with
which I propose to deal.
The question is whether the payment of
compensation at a progressively smaller rate as
the valuation is higher offends Art. 14 of the
Constitution. Now it is not disputed that
progressively higher rate of taxation by an Act
taxing income is not unconstitutional. I think
such taxation is too well recognised now to be
challenged. If that is so-and that was the basis
on which arguments proceeded in this case-I am
unable to see that a statute providing for
acquisition of property and for payment of
compensation at a progressively lower rate for the
higher slabs of valuation can be unconstitutional.
“The reason for progressive taxation in the
case of inheritance taxes and income taxes is the
ability of those receiving or giving to pay”:
Willis’s Constitutional Law (1936 ed.) p. 597. The
cases in America that I have looked up also put
the matter on the same basis. The classification
by progressively higher taxation in a taxing
statute is therefore good if based on the tax
payers’ ability to pay.
It is however said that what applies in the
case of a taxing statute cannot apply to a statute
871
permitting acquisition of property on payment of
compensation. I do not see why ? I am not aware
that the test for determining whether there has
been unequal treatment is different with different
varieties of statutes, that the test for a taxing
statute is not the same as that for a statute
providing for acquisition on payment of
compensation. I think the test is the same for all
statutes, and it is that there must be an
intelligible differentia having a rational
relation to the object of the Act.
Now the object of a taxing statute is to
collect revenue for the governance of the country.
Ability to pay is acknowledged to be an
intelligible differentia having a relation to such
an object. The object of the statute with which we
are concerned is to acquire land on payment of
compensation so that the land may be equitably
distributed among the people. If under a statute
whose object is to collect revenue more can be
legitimately demanded from a person having more,
it seems to me that under a statute whose object
is to acquire land by paying compensation less can
equally legitimately be paid to a person who has
more. Ability to pay, or which is the same thing
as ability to bear the loss arising from smaller
payment received, would in either case be an
intelligible differentia having a rational
relation to the object of the Act. In one case it
serves the object by collecting more revenue for
adding to the resources for governing the country
and in the other case it serves the object by
making it possible for the State by payment of
less money out of its resources to acquire lands
for better distribution. In both cases the State
resources are benefited, in one by augmentation
and in the other by prevention of larger
depletion. Therefore, I would accept the learned
Attorney-General’s argument that ss. 52 and 64 of
the Act cannot be held to be discriminatory and
void for the same reason on which
872
progressive rates of taxation are held not to be
so in the case of an Income-tax Act.
The next question on which I wish to say a
few words concerns those provisions of the Act
which exempt plantations of tea, coffee, rubber or
cardamom or such other kinds of special crops as
the Government may specify, from certain
provisions of the Act. Plantations have been
defined in s. 2(39) of the Act as land used by a
person principally for the cultivation of tea,
coffee, rubber or cardamom or other notified
crops. No other crop appears to have been notified
yet. Section 58 of the Act provides the ceiling
area of land which may be held by any individual
proprietor. Land above the ceiling has to be
surrendered to the Government. Section 57 of the
Act provides that this provision would not apply
to plantations as defined in s. 2(39). Again, Ch.
2 of the Act which gives the tenants the right to
purchase land from the landlords and vests in the
Government the lands of the landlords not
themselves cultivating them above the ceiling
fixed, is by s. 3 (viii) not made applicable to
plantations exceeding thirty acres in extent. The
question is whether the benefit so given to the
plantations as defined in the Act is
discriminatory. The petitioners own large scale
cultivation of areca and pepper. They contend that
no legitimate differentiation is possible between
lands on which areca and pepper are grown and
lands on which tea, coffee, rubber and cardamom
are grown.
No doubt the presumption is that a statute is
constitutional but such presumption is not
conclusive. It is also true that a court is
entitled to assume the existence of all rational
basis on which the classification made by an Act
may be justified. Even so, it seems to me, that
the present classification is, on the materials
now before us not justified. It may be that
plantations of tea, coffee
873
rubber and cardamom, especially the first three,
are usually large in size and require big
investments. It may be that they are carried on as
industries which give employment to a large labour
force. These characteristics may however only
justify the putting of large plantations of these
crops in a class. The Act however exempts all
lands on which tea, coffee, rubber or cardamom is
grown irrespective of the size of the business
carried on or of labour employed on them, as a
class. Materials have been placed before us to
show that there are a very large number of smaller
plantations growing tea, coffee and rubber. There
are also many areca and pepper plantations
exceeding thirty acres in area. There is no reason
to put tea, coffee, rubber and cardamom
plantations in a class as distinguished from
similar sizes of plantations of areca and pepper.
None at least has been shown by the State of
Kerala to exist. The only ground shown in the
affidavit of the State of Kerala seeking to
justify the classification of tea, coffee, rubber
and cardamom plantations in one class is that
“plantation crop is generally understood to refer
only to tea, coffee, rubber and cardamom” and that
“areca and pepper are not generally grown on a
plantation scale”. I am unable to think that these
afford sufficient justification for making a
discrimination in favour of tea, coffee, rubber
and cardamom plantations. It would appear from the
Planning Commission’s Report that other kinds of
crops might profitably be grown as plantation
crops. In any case, a general understanding even
if there was one, is not sufficient basis for
discrimination. With regard to the other
statements of the State, it is enough to say that
the Act does not make a discrimination because of
the size of the plantations. Therefore, there is
no point in saying that areca and pepper are not
grown on a plantation scale.
For these reasons I think the provisions in
the Act making a discrimination in favour of tea,
874
coffee, rubber and cardamom plantations cannot be
upheld. For the same reason, I think the
discriminatory treatment made in favour of cashew
plantation also cannot be sustained. Sections
3(viii), 57(1)(d) and 59(2) of the Act are
therefore, in my opinion, invalid. I think however
that these provisions are severable from other
parts of the Act. I think it cannot be reasonably
said that the legislature would not put the Act
into operation if these provisions are taken out
of it. The deletion of the provisions does not
further make it impossible for the rest of the Act
to operate. I am, therefore, unable, to hold that
because the sections mentioned above are bad, the
whole Act should be declared to be bad.
That is all I wish to say in this judgment.
With regard to the other matters arising in this
case, I agree with the judgment delivered by
Wanchoo J.
AYYANGAR, J.-I entirely agree with the order
that the petitions should be allowed and the
impugned Act struck down in relation to its
application to ryotwari lands which came into the
State of Kerala from the State of Madras-this
being the only relief which the petitioners seek
from this Court. My only reason for this separate
judgment is because I do not agree with that
portion of the reasoning in the judgment just now
pronounced in these petitions where it deals with
the interpretation of Art. 31A(2). In my judgment
in the companion case-Writ Petition No. 105 of
1961-I have endeavored to point out what according
to me is the proper construction of this Article
and I adhere to that view.
I consider that on Art. 31A(2) as it stands
even after the fourth Amendment, properties held
on ryotwari tenures and the interest of the royt
in such lands would not be “estates” for the
purposes of that Article. No doubt as pointed out
by me in the
875
other judgment, if there was a law existing on the
date of the Constitution in relation to land-
tenures under which “estate” were defined as
including not merely lands held by intermediaries
and of others holding under favourable tenurers,
but also of ryotwari proprietors having direct
relationship with the Government and paying full
assessment, such latter category of interests
might also be comprehended within the term
“estate” by reason of the words “have the same
meaning as that expression…….has in the
existing law relating to land tenures in force in
that area” in Art.31A(2)(a). That is the real
basis and the ratio underlying the decisions of
this Court in Ram Ram Narain Medhi v. State of
Bombay(1), and Atma Ram v. State of Punjab(2). In
all other cases (apart from the two categories
specially added by the Fourth Amendment) no lands
other than those held by intermediaries or held on
a favourable tenure would fall within the
definition of “an estate” this being according to
me the central concept or the thread which runs
through the entire definition.
The choice between the different
interpretations of the Article does not however
present itself for the disposal of this petition
which has to be answered in favour of the
petitioner even on the view of the scope of Art.
31A which has commended itself to my colleagues.
Where an “existing law in relation to land-tenures
in force in an area” contains a definition of an
“estate” and that definition excludes the interest
of a roytwari proprietor, the very words of
Art.31A(2)(a) which I have extracted earlier would
negative the applicability of its provisions to
that tenure.
Art. 31A being out of the way I agree that
the provision in (1) s. 2 (39) of the Act which by
definition excludes pepper and areca plantations
from the category of the plantations which are
named in it which are exempted from the operative
provisions of the impugned Act, (2)s. 58 for the
876
determination of the ceiling in respect of
different individuals who are brought within the
scope of the enactment, and (3) ss.52 and 64 for
determining the compensation payable to the
several classes of persons whose lands are
acquired under Act, all these are violative the
guarantee of the equal protection of laws under
Art. 14 of the Constitution.
I therefore agree in the order proposed that
the petitions be allowed, and with costs.
Petitions allowed.