TaxTMI 
TaxTMI 
TaxTMI 
2010 (9) TMI 1232
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....f janmis in Janmam estates in the Gudalur taluk of the Nilgiris district and for the introduction of ryotwari settlement in such estates. On 26.10.1970, the Madras High Court dismissed nine writ petitions filed by the janmis challenging the constitutional validity of the Janmam Act (Act 24 of 1969). By a judgment dated 19.4.1972 delivered by a Constitution Bench of this Court in the case of Balmadies Plantations Ltd. v. State of Tamil Nadu (1972) 2 SCC 133, it was held that the Janmam Act (Act 24 of 1969) was immune to challenge from Articles 14, 19 and 31 as it was an Act for acquisition of an estate under Article 31A with one exception of acquisition of forest lands which could not be considered as agrarian reforms under Article 31A in the absence of anything in the Act to show the purpose for which the forest land stood acquired (see para 18). Consequently, acquisition of forest lands was held to be violative of the Constitution. Meanwhile on 29.6.1972, the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1972 (Act 20 of 1972) [for short "the Ceiling Act (Act 20 of 1972)"] was passed so as to extend the provisions of the principal Act. Proceedings were....
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....inserted as Item No. 80 in the Ninth Schedule of the Constitution by the Constitution (Thirty-fourth Amendment) Act, 1974. On 25.11.1974, the Collector of Nilgiris issued a notice to the petitioner(s) herein asking them to hand over the possession of their lands under the Janmam Act (Act 24 of 1969). On 27.11.1974, as stated above, the Janmam Act (Act 24 of 1969) stood notified. Till this date, no proceedings were taken under the Ceiling Act (Act 20 of 1972). Hence, ceiling was not determined till that date. In fact on 16.12.1974, writ petitions were filed by the petitioner(s) herein seeking a direction to the State to complete proceedings under the Ceiling Act (Act 20 of 1972) and to refrain from proceeding under the Janmam Act (Act 24 of 1969). On 23.9.1976, the writ petitions were dismissed by the Madras High Court against which Special Leave Petition No. 8994 of 1976 was filed in this Court; leave was granted by this Court as Civil Appeal No. 1345 of 1976. In 1988, writ petition No. 242 of 1988 was also filed by the petitioner(s) under Article 32 of the Constitution in which vide order dated 17.2.1989, a Division Bench of this Court referred the case to the Constitution Bench [....
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....l review as the impugned Constitution (Thirty-fourth Amendment) Act, 1974 confers naked power on the Parliament to obliterate the judicial decision in Balmadies case which became final, without changing the basis of the decision or the law and, therefore, the said impugned Constitutional Amendment Act destroys the basic feature of the Constitution, namely, judicial review. Similarly, according to the learned Counsel, the Constitution (Thirty-fourth Amendment) Act, 1974 violated the basic structure of rule of law and equality. In this connection, it was submitted that in Tamil Nadu in respect of lands held in excess of the ceiling limits there is an Act called the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 which came into force on 6.4.1960. The said Act stands inserted in the Ninth Schedule as Item No. 46 on 20.6.1964. At this stage, it may be noted that the forest lands fell outside the said 1961 Act prior to 1.3.1972. By Ceiling Act (Act 20 of 1972), hilly areas stood included in the said 1961 Act. The Ceiling Act (Act 20 of 1972) also stood inserted in the Ninth Schedule of the Constitution as Item No. 169 on 27.5.1976 by the Constitution (Fortieth Amendment)....
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....ions for the following reasons: At the outset, we may state that in this case the essence of the challenge to the Constitution (Thirty-fourth Amendment) Act, 1974, in our view, is in the context of "right to property". In this connection, we must bear in mind that by the Constitution (Forty-fourth Amendment) Act, 1978, "right to property" has ceased to be a fundamental right under Article 19(1)(f). If one sees the history of amendments to the Indian Constitution, one finds that the Constitution (First Amendment) Act, 1951, the Constitution (Seventeenth Amendment) Act, 1964, the Constitution (Twenty-fifth Amendment) Act, 1971, the Constitution (Twenty-sixth Amendment) Act, 1971 and the Constitution (Twenty-ninth Amendment) Act, 1972 were all in the context of "right to property". The challenge to the Constitution (Twenty-fourth Amendment) Act, 1971 on the ground of unlimited power to amend the Constitution was also in the same context of right to property. The challenges to all these Constitutional Amendment Acts, referred to hereinabove, have been negatived. This aspect is important because in the present case in the garb of "rule of law" and "separation of powers" the challenge ....
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....969) to show the purpose for which the forests are to be used by the Government, it cannot be said that acquisition of forests in Janmam estate is for a purpose related to agrarian reform. Therefore, although the constitutional validity of the Janmam Act (Act 24 of 1969) by and large stood upheld by this Court, it was held in Balmadies case that Section 3 of the Janmam Act (Act 24 of 1969) insofar as it related to transfer of forests in Janmam estates was violative of the Constitution and as such Section 3 to that extent was struck down. It was held that invalidity of Section 3 to the above extent would not affect the validity of the other provisions of the Act as the two were distinct and severable. 7. On reading the judgment of the Constitution Bench of this Court in Balmadies case, in its entirety, we find that although the Janmam Act (Act 24 of 1969) was challenged on the ground of the Act being violative of Articles 14, 19 and 31, this Court in Balmadies case struck down Section 3 to the extent of acquisition of forests in the Janmam estate only on the ground that there was nothing in the Janmam Act (Act 24 of 1969) to show the purpose for which the forest lands stood acquire....
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....principle (s). One must keep in mind that in this case the challenge is not to the ordinary law of the land. The challenge is to the constitutional amendment. In a rigid Constitution [See Article 368] power to amend the Constitution is a derivative power, which is an aspect of the constituent power. The challenge is to the exercise of derivative power by the Parliament in the matter of inclusion of the Janmam Act (Act 24 of 1969) as Item No. 80 in the Ninth Schedule of the Constitution vide the Constitution (Thirty-fourth Amendment) Act, 1974. Since the power to amend the Constitution is a derivative power, the exercise of such power to amend the Constitution is subject to two limitations, namely, the doctrine of basic structure and lack of legislative competence. The doctrine of basic structure is brought in as a window to keep the power of judicial review intact as abrogation of such a power would result in violation of basic structure. When we speak of discrimination or arbitrary classification, the same constitutes violation of Article 14 of the Constitution. In this connection, the distinction between constitutional law and ordinary law in a rigid Constitution like ours is to ....
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....alue in Article 21. The important point to be noted is that in this case we are concerned with vesting of forests in the State. When we talk about inter-generational equity and sustainable development, we are elevating an ordinary principle of equality to the level of over- arching principle. Equality doctrine has various facets. It is in this sense that in I.R. Coelho's case this Court has read Article 21 with Article 14. The above example indicates that when it comes to preservation of forests as well as environment vis-a-vis development, one has to look at the constitutional amendment not from the point of view of formal equality or equality enshrined in Article 14 but on a much wider platform of an egalitarian equality which includes the concept of "inclusive growth". It is in that sense that this Court has used the expression Article 21 read with Article 14 in I.R. Coelho's case. Therefore, it is only that breach of the principle of equality which is of the character of destroying the basic framework of the Constitution which will not be protected by Article 31B. If every breach of Article 14, however, egregious, is held to be unprotected by Article 31B, there would be....
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....the petitioner (s) that inclusion of the Janmam Act (Act 24 of 1969) in the Ninth Schedule (Item No. 80) amounted to direct negation and abrogation of judicial review as the impugned Constitution (Thirty- fourth Amendment) Act, 1974 confers naked power on the Parliament to obliterate the judicial decision in Balmadies case which became final, without changing the basis of the decision or the law and, therefore, the said impugned Constitutional Amendment Act destroys the basic feature of the Constitution, namely, judicial review. As stated above, the amending power under Article 368 of the Constitution is a derivative power. The doctrine of basic structure provides a touchstone on which the validity of the Constitutional Amendment Act could be judged. While applying this doctrine, one need not go by the content of a "right" but by the test of justifiability under which one has to see the scope and the object of the Constitutional Amendment. In the present case, we are concerned with the validity of the Constitution (Thirty-fourth Amendment) Act, 1974. It is true that all lands including forests falling in the janmam estate vest in the State under Section 3 of the Janmam Act (Act 24 ....
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....amil Nadu State Legislature to enact the Janmam Act (Act 24 of 1969) 10. Mr. P.H. Parekh, learned senior counsel appearing on behalf of one of the appellants submitted that the Tamil Nadu Legislature did not have legislative competence to enact Section 3 of the Janmam Act (Act 24 of 1969) insofar as the said Act related to transfer of forests in Janmam estates to the State without any public purpose. According to the learned Counsel, the Janmam Act (Act 24 of 1969) providing for vesting of Janmam estates in the State stood enacted under Entry 42, List III of the Seventh Schedule of the Constitution. 11. Before us it was submitted that the right to legislate under Entry 42 of List III postulates the existence of a public purpose. According to the learned Counsel, in the present case, Entry 42 of List III was required to be read with Article 31(2), as it then stood, on the day the Janmam Act (Act 24 of 1969) was enacted, and if so read, the requirement of public purpose must be read into Entry 42 of List III and since in the present case the impugned enactment stood unprotected by Article 31A as held in Balmadies case, the Janmam Act (Act 24 of 1969) was liable to be struck down fo....
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....slature thought that private forests be treated as agricultural lands in the sense that they should be utilized to increase agricultural production in the State. Consequently, it was held that since the purpose was clearly spelt out in the impugned Kerala Private Forests (Vesting and Assignment) Act 26 of 1971, the Act stood protected as a measure of agrarian reform under Article 31A. Further, we find merit in the argument of Mr. T.R. Andharujina, learned senior counsel appearing on behalf of the State of Tamil Nadu that the Janmam Act (Act 24 of 1969) is a piece of legislation for abolishing feudal tenure and is a measure of land reform in pursuance of Directed Principles of State Policy. [See The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Ors. 1952 SCR 889] Assuming for the sake of argument that there was no public purpose in the acquisition of forests, as contended on behalf of the petitioners, we are of the view that the requirement of public purpose and compensation are not legislative requirements of the competence of Legislature to make laws under Entry 18, List II or Entry 42, List III, but are conditions or restrictions under Article 31(2) of th....
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....to be paid for excess lands which vested in the State under the Ceiling Act (Act 20 of 1972), the Janmam Act (Act 24 of 1969) came into force on 27.11.1974 under which the forests vested in the State. The main focus of the Ceiling Act (Act 20 of 1972) was to fix a ceiling of agricultural land holding and to distribute the excess lands to the landless and other agricultural population. The scope of the Ceiling Act (Act 20 of 1972) was made wide enough to cover the lands in the hilly areas. In short, before the excess lands could be determined for vesting in the State under the Ceiling Act (Act 20 of 1972), the Janmam Act (Act 24 of 1969) came into force which, as stated above, operated in a different sphere vis-a-vis the Ceiling Act (Act 20 of 1972). For the afore-stated reasons, we find no merit in the argument on behalf of the petitioners that both the Acts operated in the same field and, consequently, it was not open to the State Government to act according to the provisions of the Janmam Act (Act 24 of 1969). Conclusion 15. For the afore-stated reasons, we see no merit in this batch of cases. Accordingly, the same are dismissed with no order as to costs. K.S. Panicker Radhakr....
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....Kesavananda Bharati (supra) and then to Waman Rao's case (supra). The Court held that the theory of basic structure is applicable to the laws included in the Ninth Schedule also. The Court declared Article 31B valid and held if there is any violation, restriction or encroachment upon the fundamental rights, guaranteed under Articles 14, 15, 19 and 21, the State must justify its action on the touch stone of the doctrine of basic structure of the Constitution. The judgment is reported in I.R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu (2007) 2 SCC 1. Coelho Principle: Coelho held that the object behind Article 31B is to validate certain legislations, which otherwise may be invalid and not to obliterate Part III in its entirety or to dispense with judicial review of those legislations. The Court held that Article 21 confers right to life, which is the heart of the Constitution and when Article 21 read with Articles 14, 15 and 19 is sought to be eliminated not only the "essence of right" test but also the "right test" has to be applied, particularly when cases in Kesavananda Bharati (supra) and Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1, have expanded the scope of the....
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....ights of the janmies in Janmam Estate in Gudalur Taluk and for the introduction of the ryotwari rights in the State. Chapter 2 of the Act deals with the vesting of Janmam estates in the State. Petitioner submits that, by virtue of the Janmam Act, janmies are being deprived of their rights over their forest land on which they have full proprietorship. According to the petitioner, the whole purpose of the vesting of the forest under Section 3 of the Janmam Act is to acquire the forest for the Government on payment of nominal compensation which would amount to confiscation of property. Petitioner also stated that acquisition of property without resorting to the provisions of the Land Acquisition Act, 1894 is violative of Articles 14 and 300A of the Constitution and equality clause enshrined in the Constitution. Petitioner further submitted that the petitioner should have been subjected to the provisions of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (in short 'the Ceiling Act') rather than the Janmam Act, in which case, petitioner could have retained at least a portion of forest land exercising the right of option and would have got more amount of compe....
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....e word 'estate' also fell for consideration. The Court noticed that the Janmam rights in the States of Madras and Kerala are, as explained by Subba Rao, J. in Kavalappara Kottarathil Kochuni and Ors. v. State of Madras and Ors. (1960) 3 SCR 887, are rights of hereditary proprietorship in land. The Court held those rights, like the rights created by grant of jagir or inam relating to land, which included agricultural land or waste lands or forests and hills are brought within the definition of Estates and, therefore, have to be acquired by the State under Article 31A(1)(a) of the Constitution. Reference was also made to the decision of this Court in State of U.P. v. Raja Anand Brahma Shah (1967) 1 SCR 362, wherein the Court pointed out that the elimination of ancient Janmam rights may per se be regarded as possessing the attributability of agrarian reforms because to wipe out feudal vestiges from our country side and to streamline land ownership are preliminaries in the projection of a Socialistic order which Part IV and Article 31A of the Constitution strive to achieve. Referring to Balmadies Plantations (supra), this Court in Gwalior Rayon (supra) case stated as follows: ....
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....tion is also provided in the Act. Section 8 of the Act says that janmi would also be entitled to a ryotwari patta in respect of all lands proved to have been cultivated by the janmi himself, except the forest land which would vest in the State. Section 9 also entitles a tenant to a ryotwari patta in respect of the lands in his occupation. Section 10 states that where no person is entitled to a ryotwari patta in respect of a land in a janman estate under Sections 8 or 9 and the land vests in the Government, a person who had been personally cultivating such land for a continuous period of three years immediately before the 1st day of June, 1969 shall be entitled to a ryotwari patta in respect of that land. 23. Section 11 stipulates that no ryotwari patta shall be granted in respect of forests, which stood vested in the State. Such a provision was introduced in the Act so as to preserve forest wealth, its flora and fauna and to maintain ecological balance in tune with Article 48A and 51A(g) of the Constitution. For understanding the real scope of Article 14, 19 and 21 the impact of the above mentioned provisions has to be kept in mind. 24. The only question is, in such a situation, ....
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....n states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Plea of inequality was raised on the ground that if ceiling Act was made applicable to the petitioner, it could have got the benefit of ceiling provision, consequently a portion of forest land could have been retained, and for the rest the petitioners would have got enhanced compensation. Further it was pointed out that there was obvious inconsistency between various clauses of the Ceiling Act and the Janmam Act and the petitioner was discriminated in their application violating Article 14 of the Constitution of India. Further it was contended that when the forest land was acquired applying the provisions of Land Acquisition Act, 1894, the petitioner would have got market value, for the forest land acquired and the inadequacy of compensation would amount to deprivation of property, violating Article 300A of the Constitution. In my considered view, the plea raised alleging violation of Articles 14 and 300A cannot stand, since the petitioner is holding private forest in the Gudalur Taluk by way of janmam, which are rights of hereditary propri....
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....e Constitution have a common identity committed to an overarching principle which is the basic structure of the Constitution. Rule of law is often said as closely inter-related principle and when interpreted as a principle of law, it envisages separation of powers, judicial review, restriction on the absolute and arbitrary powers, equality, liberty etc. Separation of powers is integral part of rule of law which guarantee independence of judiciary which is a fundamental principle viewed as a safeguard against arbitrary exercise of powers, legislative and constitutional. Doctrine of absolute or unqualified parliamentary sovereignty is antithesis to rule of law. Doctrine of parliamentary sovereignty may, at times, make rule of law and separation of powers subservient to the wish of the majority in parliament. Parliamentary supremacy cannot be held unqualified so as to undo the basic structure. Basic structure doctrine is, in effect, a constitutional limitation against parliamentary autocracy. Let us, however, be clear that the principles of equality inherent in the rule of law does not averse to the imposition of special burdens, grant special benefits and privileges to secure to all ....