Land Law

Reading Material

Arvind Nath Tripathi

Damodaram Sanjivayya National Law University

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 Importance and significance of Land

Land is a free gift of the nature and it is an ample source of creation, sustenance and
destruction for living and non-living things. It is the prime factor amongst the four factors of
production namely land, labour, capital, and organization or entrepreneurship. The progress
and prosperity of any country largely depends upon the geographical nature, yielding quality,
intrinsic value and the extent of its territory. Land is a symbol of social status, greater extent
of holding the land is higher will be the social status, which is universal truth. It is obvious
that land in its overall natural existence is limited by what it has been fixed by the nature
while formulating the planet Earth. Its extent cannot be extended horizontally, except by way
of artificial methods of filling up sub-soils by soil, or where it is so done naturally by the acts
of god, like earthquakes, tsunami, etc. There cannot be any land without an owner it is
accepted fact that the king or the sovereign authority (in the modern sense, the State or
Government) is the real owner of all the lands existing under his or its regime.During ancient
period king was also considered to be the true representative of God. One of the peculiar
characteristics of land is of its ownership, which cannot be carried away physically inasmuch
as it is an immovable property.

Income or
wealth
Source of
Symbol of
creation and
social status
sustenance

Emotional Factors of
attachment production

Signs of
permanence
Prosperity
Fixed
Supply

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 Ownership is a concept and friction. It cannot be seen but conceived from the enjoyment of
property by the holder of it to the total exclusion of others. The definition of ownership differs
from one legal system to other legal system. Ownership is sometimes regarded as a trinity of
rights which in Latin tag means iusutendi, fruend, abutendi i.e., a right of using or profiting
from land use means exclusive use. The owner of a thing may not only use it for himself, he
may also prevent others from using it without his permission. “Profiting from" means
enjoying the fruits or profits by the owner out of such use, depending upon the nature of the
thing owned. "Of using up" means, the owner of a thing can abuse it, damaging or destroying
it. The most important aspect involved in establishing the ownership is the right of the owner
to transfer his land to another person in any manner as he wants viz, by way of sale, gift or
otherwise.

The primary owner of land is the king or in the modern sense, the elected government in
power. As such the right of ownership will always remain with the king or with the elected
government. Notwithstanding the fact that the land is transferred to individual for agricultural
or their purpose by the king or the government, ownership in the land vest always in the king
or the government, as the case may be, therefore when such land is required for "public
purpose” government can acquire. In time of war or insurrection the proper authorities may
possess and hold any part of the territory for common safety; and in time of peace the
legislature may authorise to appropriate the same for public purpose. This is simply named as
doctrine of eminent domain.

Doctrine of "eminent domain", in its general connotation means supreme power of the king or
the government under which the king or the state can appropriate private property for its own
use without owner's consent. Government most commonly use the power of eminent domain
when acquisition of real property is necessary for completion of public projects such as
making roads, construing dams and irrigation canals, establishing manufacturing industry and
for urban development even though owner of the required property is unwilling to negotiate
the price for its sale. Using of domain power or sovereign power of the state for compulsory
acquisition of land is only against private property and it cannot be invoked against crown
land or government land.

• Land is an important source of identity, symbol of social status and foundation for
rural power in India, often carrying significant emotional attachment.

• Land is a free gift of the nature and it is an ample source of creation and sustenance
for living and non-living things.

• It is the prime factor amongst the four factors of production namely land, labour,
capital, and organization or entrepreneurship.

• The primary owner of land is the king or in modern sense the elected Government in
power. As such the right of ownership will always remain with the king or the elected
government, notwithstanding the fact that land is transferred to individual citizens for
agricultural or other purposes by the king or the government as the case may be.

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 • Meaning of Eminent Domain Doctrine of ‘Eminent domain’, in its general
connotation means the supreme power of the king or the government under which
property of any person can be taken over in the interest of general public. However,
over the years such taking over the property by the king or the government has been
made possible only after compensating the land owner of such property. Thus eminent
domain explained as the power of the king or the government to take over the property
of a private person when it is needed for a public purpose.

• Doctrine of ‘eminent domain’ is based on two maxims namely salus populi supreme
lex esto which means that the welfare of the people is the paramount law and
necessita public major est quan, which means that public necessity is greater than
the private necessity

• Eminent Domain is power of the sovereign to acquire property of an individual for

public use without the necessity of his consent. This power is based on sovereignty of
the State. Payment of just compensation to the owner of the land which is acquired is
part of exercise of this power. Eminent domain power is regarded as an inherent
power of the State to take private property for public purpose. This power depends on
the superior domain of the State over all the property within its boundaries. An
incidental limitation of this power is that the property shall not be taken without just
compensation.

• The expression “eminent domain” means permanent (eminent) dominion (domain) of

the state on the property. The power of the State to take private property for public use
and consequent right of the owner to compensate now emerge from the constitution of
India. In entry 42 list III of seventh schedule under Indian Constitution, both union
and States government are empowered to enact laws relating to acquisition of
property. The use of eminent domain power for land acquisition is also justified when
the public purpose in question can be served by only a specific piece of land, which
has no substitute

Distinction between Eminent Domain Power & Police Power

• In Chiranjit Lal v. Union of India, Supreme Court held that the eminent domain is the
inherent right in every sovereign State to take and appropriate the private property
belonging to an individual for public purpose. The State under its police power also
regulates the use and enjoyment of private property. The police power can, however,
be distinguished from eminent domain power. While under police power, State merely
regulates the use and enjoyment of property; under the eminent domain, State can
take the property from the owner for public use.

• Police power forms the part of State government power. It is exercised in maintaining
law and order situation of the country. It denotes the dominant role of the police in
carrying out day to day activities of the State in its administration in streamlining the
societal living. Police power is also an inherent power of the sovereign authority
to provide protection for health, morals, safety, and welfare of the people.

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 • Notwithstanding this all pervasive nature of police power is that exercise of police
power restricted only to maintenance of law and order situation. In as much as police
is only an assisting machinery. This power seems to be synonymous with the power of
eminent domain. However there is vital difference between these two powers.

• 1. Eminent domain is a sovereign power exercised subject to public convenience, with

the ultimate object of meeting public welfare and public purposes and where as
the police power is exercised to ensure, interalia that the law and order is
enforced to protect property right, to achieve public purpose etc.,

• 2. Eminent domain power is unopposed authority subject to payment of

compensation to the person interested and whereas the police power is subject to
the executive and judicial wing

• 3. Eminent domain power originates out of the constitutional provisions and

whereas the police power originates out of legal provisions, which shall not be
contrary to constitutional provisions.

• 4. Exercise of eminent domain power operates sometimes harshly and unequally

and requires special sacrifices from the persons interested whereas such a situation
does not arise while operating police power.

• 5. Exercise of the power of eminent domain deprives the right in the property,
and whereas exercise of the police power provides security to the person and
property.

Distinction between Power of Taxation vis-à-vis Power of Eminent Domain

• Powers of taxation and right of eminent domain have much in common.

Both are inherent powers in any government and sometime both operate
on property. Besides this, both are generally asserted for public use and
benefit. It is, therefore, not surprising that both cases confused with each
other. Nevertheless, there is a clear line of demarcation between these
two powers.

• The power of imposing taxes by the State is yet another power

exercised by the state which resembles to be similar to the power of
eminent dominant, but with different objective. Power of taxation has to
be exercised by the state with the sole objective of raising income of the
state interalia for meeting the public expenses. Through such earnings
State undertakes various socio – economic activities including the
activities to be achieved by the exercise of the power of eminent
domain. The other objective of the power of taxation is to reduce

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 economic disparities between the poor and the rich fraction of the
society.

• In India, this power is exercised by both union as well as the State

governments. Taxing power will have direct impact on the earnings of the
citizen and on their living conditions. The following are some of the
differences between the power of imposing taxes and power of eminent
domain.

• 1. The power of taxation is not exercisable in respect of certain

transactions of the society whose income is below the level of imposing
taxes, whereas such exclusion is not, while exercising the power of
eminent domain.

• 2. The power of taxation of the State is legal power and whereas the
power of eminent domain is an inherent power of the State.

• 3. Taxation power is exercised to impose and collect taxes and whereas

the power of eminent domain is exercised to acquire and hold
immovable property of persons for public purposes which is a
question of fact in each case.

• 4. While exercising the power of taxation the State need not pay any
compensation to the person connected instead of that citizen has to pay
taxes to the State and whereas in case of power of eminent domain, the
State is under an obligation to pay compensation to the person
interested.

• 5. The power of taxation can be exercised against any property,

movable or immovable, whereas, the power of eminent domain can be
exercised generally against the immovable property, i.e., land,
including anything permanently fixed to the earth

The Eminent Domain

• `Eminent domain' is thus inherent power of a governmental entity to take

privately owned property, especially land and convert it to public use,
subject to reasonable compensation for the taking [vide P. Ramanatha
Aiyar's Advanced Law Lexicon, Volume 2, page 1575].

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• The term `eminent domain' is said to have originated by Grotius, legal
scholar of the seventeenth century. He believed that the State possessed
the power to take or destroy property for the benefit of the social unit, but
he believed that when the State so acted, it was obligated to compensate
the injured property owner for his losses.

• In his well known work `De Jure, Belli et Pacis', the learned author
proclaimed;

• "The property of subject is under the eminent domain of the State, so that
the State or he who acts for it may use, alienate and even destroy such
property, not only in the case of extreme necessity, in which even private
person have a right over the property of other, but for the ends of public
utility, to which ends those who founded civil society must be supposed
to have the intended the private ends should give way".

• Blackstone too believed that State had no general power to take private
property of land-owners, except on the payment of a reasonable price.
The right of the State or the sovereign to its or his own property is
absolute while that of the subject or citizen to his property is only
paramount. The citizen holds his property subject always to the right of
the sovereign to take it for a public purpose. The power of eminent
domain is merely a means to an end; viz. larger public interest.

• The power of eminent domain does not depend for its existence on a
specific grant. It is inherent and exists in every sovereign State without
any recognition thereof in the Constitution or in any statute. It is founded
on the law of necessity. The power is inalienable. No Legislature can
bind itself or its successors not to exercise this power when public
necessity demands it. Nor it can be abridged or restricted by
agreement or contract.

• Willis in his well known work `Constitutional Law' discusses two view
points as to exercise of power of eminent domain. The older and stricter
view was that unless the property was dedicated for user by the
public at large or a considerable section thereof, it would not be for
public use or for public purpose. The modern and more liberal view,
however, is that it is not an essential condition of public use that the
property should be transferred to public ownership or for public user
and it is sufficient that the public derives advantage from the scheme.

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• In Fallbrook Irrigation District v. Bradley, (1896) 164 U.S. 112 : 41 Law
Ed. 369, an Act of California provided for the acquisition of lands
whenever 50 land-owners or a majority of them in a particular locality
required it for construction of a watercourse, the object of the legislation
being to enable dry lands to be brought under wet cultivation. The validity
of the Act was challenged on the ground that the acquisition would only
benefit particular land owners who could take water from the channel and
the public as such had no direct interest in the matter and consequently
there was no public user. The contention was right if narrow view was to
be accepted but was not well-founded if liberal view was to be adopted.

• Rejecting the contention, the Court observed;

• "To irrigate and thus bring into possible cultivation these large masses of
otherwise worthless lands would seem to be a public purpose and a matter
of public interest, not confined to the land-owners, or even to anyone
section of the State. The fact that the use of the water is limited to the
land-owner is not, therefore, a fatal objection to this legislation. It is not
essential that the entire community, or even any considerable portion
thereof, should directly enjoy or participate in an improvement in
order to constitute a public use.....It is not necessary, in order that the
use should be public that every resident in the district should have the
right to the use of the water."

• The power of compulsory acquisition, as described by the term ‘eminent

domain’, can be exercised only in the interest of welfare of people and
prosperity of community or public at large. The concept of eminent
domain is an essential attribute of every State. This concept is based on
the fundamental principle that the interest and claim of the whole
community is always superior to the interest of an individual. The
doctrine of eminent domain indisputably finds its roots in the natural law
movements it asserts the rights of state over the land and its related
resources within the territory. It is perceived as a necessary right to be
invoked to further public good. In consequence, the right of any person
or community to refuse to permit the intervention of the State, or to
dissert from the states perceptions of public good is considerably eroded.

• Although the power to determine what constitutes public purpose is

primarily with government, Courts have powers to review such
decisions. In practice, however, the Courts have generally placed
limitation on themselves.

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• 1. Compensation for the property acquired.

• 2. The interest of the community is always superior to the interest of the

individual.

• The application of eminent domain power of the state in the early

constitutional years of independent India was assisted by the
jurisprudence that had developed around the colonial Land Acquisition
Act of 1894. The impugned legislation and the case law that grew around
it, made the power of eminent domain, and the nature of 'public purpose',
a matter solely for executive determination, and, therefore, non-
justifiable.

• The Supreme Court in Sooraram Reddy v. Collector, Ranga Reddy

District, (2008)9 SCC 552, has articulated the following grounds for
review of this power:

• (i) malafide exercise of power;

• (ii) a public purpose that is only apparently a public purpose but in

reality a private purpose or collateral purpose;

• (iii) an acquisition without following the procedure under the Act;

• (iv) when the acquisition is unreasonable or irrational; (v) when the

acquisition is not a public purpose at all and the fraud on the statute is
apparent.

• However, even today, eminent domain is among the doctrines that have
not been attempted to be curtailed by constitutionalism. This doctrine is
contested; as it raises the classic debate of power of state versus
individual rights.

• Prof. Hugo Grotious an International jurist defined eminent domain in

1626 thus the property of subject is under the eminent domain of the
State, so that the State or he who acts for it may use and even alienate and
destroy such property, not only in cases of extreme necessity but for ends
of public utility. Since the power of eminent domain is an inseparable
incidence of sovereignty, there is no need to confer this authority
expressly by the Constitution.

• It exists without any declaration to effect. While the exercise of the power
is recognized, constitutional provisions provide safeguards subject to

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 which the right may be exercised. For instance in America three
limitations, as noted by Cooley exists:

• (i) there must be a law authorizing the taking of the property;

• (ii) the property must be taken for some public use; and

• (iii) just compensation must be paid.

• The importance of the power of eminent domain to the life of the State
need hardly be emphasized. It is so often necessary for the proper
performance of governmental functions to take private property for public
use. The power is inalienable for it is founded upon the common necessity
and interest and appropriate the property of the individual members of the
community to the greater interests of the whole community. However in
doing so the State should reconcile the corresponding rights of individual
to claim their property.

• The Constitution of India also recognizes the power of eminent domain.

However, this power of the state has been in limelight, more for the
mischief that it is allegedly imputed to bring about. Soon after
Independence, the Supreme Court was charged with judging the
constitutionality of certain laws, which were intended to abolish the
feudal zamindari (landowning) system. Supreme Court in Chiranjit Lal v.
Union of India held that eminent domain is a right inherent in every
sovereign to take and appropriate private property belonging to individual
citizens. Acquisition or taking possession of private property which is
implied in clause (2) of Article 31 of Indian Constitution, such taking
must be for public purpose.

• The other condition is that no property can be taken, unless the law
authorizes such appropriation contains a provision for payment of
compensation in the manner as laid down in the clause. The power of
eminent domain was under the scrutiny of the Court. In explaining the
power, the Court held that eminent domain was “the power of the
sovereign to take property for public use without the owner’s consent”.
Meaning is that the power in its irreducible terms i.e., (a) power to take,
(b) without the owner's consent, and (c)for the public use

• The Constitution in its original un-amended form guaranteed the right to

property as a fundamental right. Article 19(l)(f) existed in the
Constitution of India which gave a modicum of protection to private

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 property. Article 31 makes the property right more stronger by putting
constitutional restraint against State i.e., State shall not deprive the
property right of individual unless saved by authority of law. These
Articles were repealed by the forty fourth constitutional amendment and
Article 300A inserted. This move has to a great extent diluted the
Constitutional protection to the institution of private property in India.

• One of the reason for deletion of Articles 19(l)(f) and Art.31 is to reduce
the property right from the status of fundamental right make it as a legal
right, i.e., the right will be available against the executive interference but
legislature has the power to make laws interfering with the individual's
property right. Supreme Court has very clearly stated that the executive
authority cannot deprive a person of his property without the authority of
law and law in this context means "an Act of Parliament or of a State
legislature, a rule, or a statutory order, having force of law, that is positive
or State made law".

• Owner occupied homes and small business are the typical victims of
eminent domain with no legal recourse. It is argued that government
should safeguard the common benefit, protection and security of the
whole community while exercising its power. The power of eminent
domain need to be exercised carefully for the purpose of acquiring
private property for public purpose. Social analysts question the
arbitrary seizure of private properties by the State for the purpose of
conveying it to a private person or entity for commercial purpose. The
line of demarcation between the public purpose and commercial
purpose for public goal is very thin and the State can cross the line in
various circumstances.

• The power to acquire by State the land owned by its subjects hails from
the right of eminent domain vesting in the State, which is essentially an
attribute of sovereign power of the State. So long as the public purpose
subsists, the exercise of the power by the State to acquire land of its
subjects without regard to wishes of the owner or person interested in the
land cannot be questioned

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 Sooraram Reddy v. Collector, Ranga Reddy District, (2008)9 SCC 552

According to the appellants, the High Court was wholly wrong in dismissing the
writ petition relying on the judgment in Writ Petition No. 21712 of 2002 since in
that case, the Court has considered only one issue; viz. the acquisition was or
was not for public purpose as the beneficiary was Andhra Pradesh Industrial
Infrastructure Corporation Limited (`APIIC' for short). Really, the property has
been given in bounty to a foreign Company which was not lawful. The High
Court failed to consider and decide several important and crucial issues
raised by the small landowners. Being aggrieved by the order passed in the
writ petition, the appellants preferred Writ Appeal which was also dismissed.
The appellants have, therefore, approached Supreme Court by filing the present
appeal.

• As already adverted to earlier, the State of Andhra Pradesh in the

background of `World Tourism Organization Report' and `Vision 2020
Document' took a policy decision for the development of the City of
Hyderabad. For the said purpose, it decided to establish an Integrated
Project which would make Hyderabad a major Business-cum-Leisure
Tourism Infrastructure Centre for the State. The project is both
structurally as well as financially integrated. It is to be implemented
through Andhra Pradesh Infrastructure and Investment Corporation
(APIIC) which has taken all steps to make Hyderabad a world-class
business destination. APIIC is an instrumentality of State and works as
`Nodal Agency' developing the project which would facilitate socio-
economic progress of the State by generating revenues, weeding out
unemployment and bringing new avenues and opportunities for public at
large.

• Development of infrastructure is legal and legitimate `public purpose'

for exercising power of eminent domain. Simply because a Company
has been chosen for fulfillment of such public purpose does not mean that
the larger public interest has been sacrificed, ignored or disregarded. It
will also not make exercise of power bad, mala fide or for collateral
purpose vitiating the proceedings.

• The respondents are right in submitting that in case of integrated and

indivisible project, the project has to be taken as a whole and must be

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 judged whether it is in the larger public interest. It cannot be split into
different components and to consider whether each and every
component will serve public good. A holistic approach has to be
adopted in such matters. If the project taken as a whole is an attempt in
the direction of bringing foreign exchange, generating employment
opportunities and securing economic benefits to the State and the
public at large, it will serve public purpose.

• It is clearly established in this case that the Infrastructure Development

Project conceived by the State and executed under the auspices of its
instrumentality (APIIC) is one covered by the Act. The Joint Venture
Mechanism for implementing the policy, executing the project and
achieving lawful public purpose for realizing the goal of larger public
good would neither destroy the object nor vitiate the exercise of power of
public purpose for development of infrastructure. The concept of joint
venture to tap resources of private sector for infrastructural development
for fulfillment of public purpose has been recognized in foreign countries
as also in India in several decisions of this Court.

• Taking the facts in their entirety, we are of the view that the action of the
State in initiating acquisition proceedings for establishing and
developing infrastructure project cannot be held contrary to law
or objectionable. The High Court was, therefore, right in dismissing
writ petitions as also writ appeals and we find no infirmity therein. All
the appeals, therefore, are liable to be dismissed 

• Final Outcome

• Applying the aforesaid principles to the case on hand, in our considered

opinion, it cannot be said that the proceedings initiated by the State for
acquisition of land under the Land Acquisition Act, 1894 are illegal,
unlawful, unwarranted, mala fide, fraud on part of state exercise of
power.

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DOCTRINE OF ESCHEAT OR BONA VACANTIA

Article 296 of the Constitution of India provides that any property in the
territory of India which would have accrued to the ruler of an independent
State by escheat or lapse or as bona vacantia for want of a rightful owner
shall if it is the property situate in a State, vest in such State, and in any other
case in the Union of India.

• It is well settled that escheat is an incident of sovereignty pursuant to

which property vesting in the Government in the absence of an heir or
successor of the owner of the property. A claim of escheat has to be
proved rigorously and the onus lies heavily upon the person who claims
escheat.

• It operates only in the absence of any heirs of a person who dies intestate.

• Bona vacantia is used to describe a situation where a certain amount of

goods or property are unclaimed over a period of time. No ownership
is claimed over those goods or property. When such a situation arises
then the goods or the property goes to the government and the
government serves as the custodian of those goods or property. The
government has to take such goods and act as their owners for perpetuity.
The cases of such ownership arises when the goods or the property are
being abandoned when the person dies without any living heirs. Such
situation can also arise when a business or unincorporated association is
dissolved the assets thereof are not distributed appropriately. Other
process how such situation arises are when a trust in the path of failing or
when the property owner in nowhere to be found and does not any
information about its whereabouts.

• In other words it is a property without any claim. Bona vacantia is used

for those goods and property which does not have any ownership.
Ownership and property are two interrelated concepts. There cannot
be any ownership without any property and also there can be any
property without ownership. However Bona vacantia are those goods
and property which loses its ownership over a period of time ad
remains the same for long time.

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• The concept of bona vacantia has its origins from the common law. The
maxim Bona vacantia is used for the situation in which property is left
without any clear owner. The owner of the goods is not known. The
goods are being treated in different manner in such a kind of situation. It
is seen that in most cases the goods are stated to be the property of
the crown i.e the government. The rightful owner if found then the
goods are returned to them

• In the case of Sita Ram Jaiswal and others v State of U.P. and others
2016 (118) ALR 146, it was observed by the court that  that the right
of the King to take property by escheat or as bona vacantia was
recognized by common law of England.

• Escheat property was the lord’s right of re-entry on real property

held by a owner dying intestate without lawful heirs. On the owner
dying intestate without leaving any lawful heirs, his estate came to an
end and the lord was in by his own right and not by way of succession
or inheritance from the owner to re-enter the real property as owner.

• In most of the cases the land escheated to the Crown as the lord
paramount, in view of the gradual elimination of intermediate or mesne
lords since 1290 AD. The Crown takes as bona vacantia goods in which
no one else can claim property. “it is the right of the Crown
to bona vacantia to property which has no other owner.” The right of the
Crown to take as bona vacantia extends to personal property of every
kind. Giving a notice at this stage that the escheat of real property of an
intestate dying without heirs was abolished in 1925 and the Crown cannot
take its property as bona vacantia. 

• In Halsbury’s Laws of England, 3rd Edn., Vol. 7, p. 536, para 1152, it is

stated that “the term bona vacantia is applied to things in which no
one can claim a property and includes the residuary estate of persons
dying intestate”

• Holdsworth’s History of English Law, 2nd Edn., Vol. 7, p. 495-96. In

Connecticut Mutual Life Insurance Company v. Moore (333 US 541, 546)
the principle behind the law was stated to be that “the state may,
more properly, be custodian and beneficiary of abandoned property
than any other person”. Consistently with the principle stated above, a
law relating to abandoned property enacts firstly provisions for the State
conserving and safeguarding for the benefit of the true owners

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 property in respect of which no claim is made for a specified and
reasonable period, and secondly, for those properties vesting in the
State absolutely when no claim is made with reference thereto by the
true owners within a time limited.”

• Radha Krishna (1983) 3 SCC 118, this Court held as under:- “272. It is
well settled that when a claim of escheat is put forward by the
Government the onus lies heavily on the appellant to prove the
absence of any heir of the respondent anywhere in the world.
Normally, the court frowns on the estate being taken by escheat unless the
essential conditions for escheat are fully and completely satisfied. Further,
before the plea of escheat can be entertained, there must be a public
notice given by the Government so that if there is any claimant
anywhere in the country or for that matter in the world, he may come
forward to contest the claim of the State.

• Article 296 does not leave any discretion for determination of what might
constitute escheat or bona vacantia. Article 296 makes it clear that the
principles applicable in this regard, prior to commencement of the
Constitution of India, would continue. Law relating to bona vacantia
provides for conservation of abandoned properties.

• Kutchi Lal (2017) 16 SCC 418, this Court held as under:-The doctrine of
escheat postulates that where an individual dies intestate and does not
leave behind an heir who is qualified to succeed to the property, the
property devolves on the Government. Though the property devolves on
the Government in such an eventuality, yet the Government takes it
subject to all its obligations and liabilities.

• Escheat is a doctrine which recognises the State as a paramount

sovereign in whom property would vest only upon a clear and
established case of a failure of heirs.

• Definition of escheat

• Black’s Law Dictionary defines ‘escheat’ as:

• 1. The reversion of land ownership back to the lord when the immediate
tenant dies without heirs.

• 2. Reversion of property (especially real property) to the state upon the

death of an owner who has neither a will nor any legal heirs.

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• 3. Property that has so reverted.

• Thus we see that Doctrine of Escheat is a common law doctrine which

transfers the property of a person who dies without heirs to the crown or
the state. It serves to ensure that property is not left in ‘limbo’ without
recognized ownership.

• Doctrine of Escheat or bona vacantia in India

• The Doctrine of bona vacantia or Escheat was declared to be a part of the

law in India by the Privy Council as early as in 1860 in Collector of
Masulipatam v. Cavary Vancata Narrainappah, (1859-61) 8 Moo Ind
App 500 at PP. 525. This case also held that the General Law of universal
application and that General Law was that “private ownership not
existing, the State must be the owner as the ultimate Lord”.

• Biswanath Khan And Ors. v. Prafulla Kumar Khan, AIR 1988 Calcutta
275

• The right to acquire by way of escheat or as bona vacantia is not a

creature of any Private Law of Succession but is an attribute of
Sovereignty. It is true that Statutory provisions of Private Law of
Succession such as Section 29 of Hindu Succession Act sometimes
expressly recognise right of the State to acquire properties by escheat
or as bona vacantia. But that right would have been very much there
even without any such provisions. 

• Narendra Bahadur Tandon v. Shanker Lal, AIR 1980 SC 575

• In India the law is well-settled that the property of an intestate dying

without leaving lawful heirs, and the property of a dissolved Corporation,
passes to the Government by escheat or as bona vacantia” and that “if the
Company had a subsisting interest in the lease on the date of dissolution,
such interest much necessarily vest in the Government by escheat or as
bona vacantia.”

• It is not only the tangible property that comes within the ambit of
Doctrine of Escheat or bona vacantia. The word ‘property’, when used
without any qualification or limitation, as above, is a term of the widest
import.

• State of Bihar & Ors. v. Sri Radha Krishna Singh & Ors. AIR 1983 SC
684

17
• The Supreme Court has observed thus: “It is well settled that when a
claim of escheat is put forward by the Government the onus lies heavily
on the appellant to prove the absence of any heir of the respondent
anywhere in the world. Normally, the court frowns on the estate being
taken by escheat unless the essential conditions for escheat are fully and
completely satisfied. Further, before the plea of escheat can be
entertained, there must be a public notice given by the Government so
that if there is any claimant anywhere in the country or for that matter in
the world, he may come forward to contest the claim of the State.”

18
Sita Ram Jaiswalv.State of U.P(High Court Of Judicature At Allahabad)Civil

Miscellaneous Writ Petition No. 20828 Of 1987

This writ petition under Article 226 of Constitution of India has been filed
questioning notification dated 19th August, 1987 issued, under Section 4(1) of
Land Acquisition Act, 1894 , by State of U.P., proposing to acquire land , situate
at Civil Station, District Allahabad for the purpose of Planned Development
Scheme of Allahabad Development Authority i.e. for construction of a
residential colony. Government dispensed with the compliance of Section 5-A
of Act, 1894 in exercise of power under Section 17(4) of Act, 1894. Reason
assigned for dispensation is that land is urgently required for construction of
residential colony and there is urgency, therefore to eliminate delay likely to be
caused by an enquiry under Section 5-A of Act, 1894, the same is dispensed
with.

19
• 17. Special powers in case of urgency. – (1) In cases of urgency whenever
the [appropriate Government], so directs, the Collector, though no such
award has been made, may, on the expiration of fifteen days from the
publication of the notice mentioned in section 9, sub-section 1). [take
possession of any land needed for a public purpose]. Such land shall
thereupon [vest absolutely in the [Government], free from all
encumbrances.

• (2) Whenever, owing to any sudden change in the channel of any

navigable river or other unforeseen emergency, it becomes necessary for
any Railway Administration to acquire the immediate possession of any
land for the maintenance of their traffic or for the purpose of making
thereon a river-side or ghat station, or of providing convenient
connection with or accesses to any such station, [or the appropriate
Government considers it necessary to acquire the immediate possession of
any land for the purpose of maintaining any structure or system
pertaining to irrigation, water supply, drainage, road communication
or electricity,] the Collector may immediately after the publication of the
notice mentioned in sub-section (1) and with the previous sanction of the
[appropriate Government], enter upon and take possession of such land,
which shall thereupon [vest absolutely in the [Government]] free from all
encumbrances :

• Besides other, petitioners have challenged acquisition on the ground that

there was no urgency, hence dispensation of inquiry under Section 5A
of Act, 1894 was wholly illegal and a colourable exercise of power.

• Substantial question for consideration in writ petition is "whether

dispensation of inquiry under Section 5-A of Act, 1894 is justified".

• The learned counsel for the parties in this aspect referred to the doctrine
of Escheat/bona vacantia. We find that the right of the King to take
property by escheat or as bona vacantia was recognised by common law
of England. Escheat property was the lord's right of re-entry on real
property held by a owner dying intestate without lawful heirs. Owner
dying intestate without leaving any lawful heirs, his estate came to an
end and the lord was in by his own right and not by way of succession
or inheritance from the owner to re-enter the real property as owner.
In most of the cases the land escheated to the Crown as the lord
paramount. The Crown takes as bona vacantia goods in which no one else
can claim property.

20
• In Dyke v. Walford 5 Moore PC 434 : 496-13 ER 557 (580) it was said "it
is the right of the Crown to bona vacantia to property which has no other
owner." The right of the Crown to take as bona vacantia extends to
personal property of every kind. The principle of acquisition of
property by escheat i.e right of the Government to take on property by
escheat or bona vacantia for want of a rightful owner was enforced in the
Indian territory during the period of East India Company by virtue
of statute 16 and 17 Victoriae, C. 95, Section 27.

• The Apex Court in Pierce Leslie and Co. Ltd. has considered the above
principles in the context of sovereign India as it stands under its
constitution after independence and has observed that "in this country the
Government takes by escheat immoveable as well as moveable
property for want of an heir or successor. In this country escheat is not
based on artificial rules of common law and is not an incident of feudal
tenure. It is an incident of sovereignty and rests on the principle of
ultimate ownership by the State of all property within its jurisdiction.

• In Union of India and others v. Mukesh Hans (2004) 8 SCC 14, Court
held that Section 17(4) is an exception to normal mode of acquisition.
Mere existence of urgency or unforeseen emergency by itself is not
sufficient to direct for dispensation of Section 5-A. Court reiterated that
there must be real existing emergency for which an opinion must be
formed by the Government, objectively. Court said "It requires an opinion
to be formed by concerned Government that along with existence of such
urgency or unforeseen emergency there is also a need for dispensing with
Section 5-A enquiry, which indicates that the legislature intended that the
appropriate Government to apply its mind before dispensing with Section
5-A enquiry. It also indicates the mere existence of an urgency under
Section 17 (1) or unforeseen emergency under Section 17 (2) would not
by itself be sufficient for dispensing with Section 5-A enquiry.

• Land owners whose land is proposed to be acquired, are given an

opportunity to make their objections. Collector is under an obligation to
consider objections and also offer an opportunity of hearing to objectors
and thereafter submit a report to Government containing his
recommendations on the objections, for decision of Government. After
considering the report and other material, Government makes declaration
that land is proposed to be acquired for public purpose and this is done by
publication of notification under Section 6.

21
• Collector is then authorised to take order for acquisition and under
Section 8 is supposed to mark, measure and plan the acquired land. A
notice thereafter is issued under Section 9 to Land Owners by Collector
notifying his intention of taking possession of land and that the claim for
compensation be submitted to him. Under Section 11, Collector makes
enquiry for determining amount of compensation payable to land owners,
whose land has been acquired, and make award. After payment of
compensation, Collector takes possession of land.

• Right to file objection against proposal of acquisition of land published

under Section 4 is a substantial right, consistent with principle of natural
justice, since forcibly acquisition of land, without consent of land owners,
is a serious matter.

• In Munshi Singh and others v. Union of India, (1973) 2 SCC 337,

which is a decision of three judges bench, Court stressed upon and
emphasised upon an inbuilt legislative recognition of principal of
natural justice in Section 5-A and said "Sub-section (2) of Section 5-A
makes it obligatory on the Collector to give an objector an
opportunity of being heard. After hearing all objections and making
further inquiry he is to make a report to the appropriate Government
containing his recommendation on the objections. ‘..... The legislature
has, therefore, made complete provisions for the persons interested to file
objections against the proposed acquisition and for the disposal of their
objections. It is only in cases of urgency that special powers have been
conferred on the appropriate Government to dispense with the provisions
of Section 5-A".

• Considering the facts of this case as discussed above and also exposition
of law, Court satisfied that there existed no such urgency so as to justify
exercise of power under Section 17 for dispensation with inquiry under
Section 5A of Act, 1894 and impugned notifications, therefore, in so far
as inquiry under Section 5A has been dispensed with, are vitiated in law.

22
 State of West Bengal vs. Mrs. Bela Banerjee and Others 1954 AIR 170

The impugned Act was passed on October 1, 1948, primarily for the settlement
of immigrants who had migrated into the Province of West Bengal due to
communal disturbances in East Bengal, and it provides for the acquisition and
development of land for public purposes' including the purpose aforesaid. A
registered Society called the West Bengal Settlement Kanungoe Co-operative
Credit Society Ltd., was authorised to undertake a development scheme, and the
Government of the State of West Bengal, the appellant herein, acquired and
made over certain lands to the society for purposes of the development scheme
on payment of the estimated- cost of the acquisition. On July 28, 1950, the
respondents , the owners of the lands thus acquired, instituted a suit in the Court
of the Subordinate Judge, 11 Court at Alipore, District 24- Parganas, against the
society for a declaration that the impugned Act was void as contravening the
Constitution and that all the proceedings taken thereunder for the acquisition
aforesaid were also void, and of no effect and for other consequential reliefs.

The State of West Bengal was subsequently impleaded as a defendant. As the

suit involved questions of interpretation of the Constitution respondents also
moved the High Court under article 228 of the Constitution to withdraw the suit
and determine the constitutional question. The suit was accordingly transferred
to the High Court and the matter was heard by a Division Bench (Trevor Harries
C.J. and Banerjee J.) who, by their final judgment, held that the impugned Act
as a whole was not unconstitutional or void save as regards two of the
provisions contained in section 8 which, so far as it is material here, runs as
follows:-"A declaration under section 6 shall be conclusive evidence that the
land in respect of which the declaration is made is needed for a public purpose
and, -after making, such declaration, the Provincial Government may acquire the
land and thereupon the provisions of the Land Acquisition Act, 1894,
(hereinafter in this section referred to as%, the said Act), shall, so far as may be,
apply:Provided that-

• (b) in determining the amount of compensation to be awarded for land

acquired in pursuance of this Act the market value referred to in clause

23
 first of sub- section (1) of section 23 of the said Act shall be deemed to be
the market value of the land on the date of publication of the notification
under sub-section (1) of section 4 for the notified area in which the land is
included subject to the following condition, that is to say-

if such market value exceeds by any amount the market value of the land
on the 31 st day of December, 1946, on the assumption that the land had
been at that date in the state in which it in fact was on the date of
publication of the said notification, the amount of such excess shall not be
taken into consideration. "

The provision making the declaration of the Government conclusive

as to the public nature of the purpose of the acquisition and the
limitation of the amount of compensation so as not to exceed the
market value of the land on December 31, 1946, were declared ultra
vires the Constitution and void.

• The only serious controversy in the appeal centred round the

constitutionality of the " condition " in proviso (b) to section 8 limiting
the compensation payable so as not to exceed the market value of the land
on December 31, 1946. The Attorney-General, while conceding that the
word " compensation " taken by itself must mean a full and fair money
equivalent, urged that, in the context of article 31(2) read with entry No.
42 of List III of the Seventh Schedule, the term was not used in any rigid
sense importing equivalence in value but had reference to what the
legislature might think was a proper indemnity for the loss sustained by
the owner.

• Article 31(2) provides:No property, movable or immovable, including

any interest in, or in any company owning, any commercial or industrial
undertaking, shall be taken possession of or acquired for public purposes
under law authorising the taking of such possession acquisition, unless the
law provides for compensation for the property taken possession of or
acquired and either fixes the amount of the compensation, or specifies the
principles on which, and the manner in which, the compensation is to be
determined and given. and entry 42 of List III reads thus Principles on
which compensation for property acquired or requisitioned for the
purposes of the Union or of a State or for any other public purpose is to be
determined, and the form and the manner in which such compensation is
to be given.

24
• It is argued that the term " compensation " in entry 42 could not mean full
cash equivalent, for then, the power conferred on the legislature to lay
down the principles on which compensation is to be determined and the
form and the manner in which such compensation is to be given would be
rendered nugatory. On the other hand, the entry showed that the
compensation to be "given " was only " such compensation " as was
determined on the principles. laid down by the law enacted in exercise of
the power, and, as the concluding words used in article 31(2) are
substantially the same as in the entry, the Constitution, it was claimed,
left scope for legislative discretion in determining the measure of the
indemnity.

• While it is true that the, legislature is given the discretionary power of

laying down the principles which should govern the determination of the
amount to be given to the owner for the property appropriated, such
principles must ensure that what is determined as payable must be
compensation, that is, a just equivalent of what the owner has been
deprived of. Within the limits of this basic requirement of full
indemnification of the expropriated owner, the Constitution allows free
play to the legislative judgment as to what principles should guide the
determination of the amount payable. Whether such principles take into
account all the elements which make up the true value of the property
appropriated and exclude matters which are to be neglected, is a
justiciable issue to be adjudicated by the court.

• Reference was made to certain Australian cases where the opinion was
expressed that the terms of compulsory acquisition of property were
matters of legislative policy and judgment. The decisions largely turned
on the absence of any constitutional prohibition in regard to deprivation
of private property without compensation as in the Fifth Amendment of
the American Constitution and on the use of the words " just terms "
instead of " compensation " in section 51 (xxxi) of the Commonwealth
Constitution which conferred power on the Parliament to make laws with
respect to " the acquisition of property on just terms from any State or
person.......... " (cf. Grace Brothers Pty. Ltd. v. The Commonwealth(72
C.L.R. 269.). Those decisions, therefore, are of no assistance to the
appellant here.

• Turning now to the provisions relating to compensation under the

impugned Act, it will be seen that the latter part of the proviso to section 8

25
 limits the amount of compensation so as not to exceed the market value of
the land on December 31, 1946, no matter when the land is acquired.
Considering that the impugned Act is a permanent enactment and lands
may be acquired under it many years after it came in. to force, the fixing
of the market value on December 31, 1946, as the ceiling on
compensat , without reference to the value of the land at the time of
the acquisition is arbitrary and cannot be regarded as due
compliance in letter and spirit with the requirement of article 31 (2).

• Issue in the Case

• In State of West Bengal v. Mrs Bela Banerjee the issue was whether the
compensation provided for under the West Bengal Land Development
and Planning Act, 1948, was in compliance with the provision in
Article 31(2). For under the State Act, lands could be acquired many
years after it came into force but nevertheless it fixed the market
value as it prevailed on December 31, 1946, as ceiling on
compensation without reference to the value of the land at the time of
the acquisition.

• The Calcutta High Court's decision that Section 8 of the Act was ultra
vires was confirmed by the Supreme Court which also held that Entry 42
of List III of the Seventh Schedule conferred on the Legislature the
discretionary power of laying down the principles which govern the
determination of the amount to be given to the owner of the property
acquired and Article 31(2) required that such principles must ensure
that what is determined as payable is compensation, that is a just
equivalent of what the owner has been deprived of. Patanjali Sastri, C.J.,
then declared

• "While it is true that the Legislature is given the discretionary power of

laying down the principles which should govern the determination of the
amount to be given to the owner for the property appropriated, such
principles must ensure that what is determined as payable must be
compensation, that is just equivalent of what the owner has been deprived
of.

• Within the limits of this basic requirement of the full indemnification of

the expropriated owner, the Constitution allows free play to the legislative
Judgment as to what principles should guide the determination of the
amount payable. Whether such principles take into account all the

26
 elements which make up the true value of the property appropriated and
exclude matters which are to be neglected, is a justiciable issue to be
adjudicated by the court."

• The Chief Justice clearly postulates that the basic requirement is the full
indemnification of the expropriated owner by giving him a just equivalent
of what he had been deprived of. It was further made clear that the ambit
of legislative power included the taking into consideration all the
elements that go to make up the true value of the appropriated property.
This was made justiciable. So in effect the decision lays down three main
points:—

• (i) the compensation under Article 31(2) shall be a just equivalent of

what the owner has been deprived of;

• (ii) the principles which the Legislature can prescribe are only
principles for ascertaining just equivalent of what the owner was
deprived of;

• (iii) and if the compensation fixed was not a just equivalent of what the
owner has been deprived of; or if the principles did not take into
account all relevant elements or take into account irrelevant elements
for arriving at a just equivalent, the question in regard thereto a is
justifiable issue.

• What is the change effected by the 1955 Amendment? In the words of

Justice K. Subba Rao, "A scrutiny of the amended Article discloses that it
accepted the meaning of the expressions 'compensation and principles as
defined by this court in Mrs Bela Banerjee case. It may be recalled that
this court in the said case defined the scope of the said expressions and
then stated whether the principles laid down take into account all the
elements which make up the true value of the property appropriated and
exclude matters which are to be neglected, is a justiciable issue to be
adjudicated by the court. Under the amended Article the law fixing the
amount of compensation or laying down the principles governing the
said fixation cannot be questioned in any court on the ground that the
compensation provided by that law is inadequate."

• It is demonstrably clear that the Legislature may fix "compensation“ lay

down the "principles" for such fixation of compensation. The word
"compensation" has not been defined in Article 31 or under the Land
Acquisition Act. The dictionary meaning of compensation is 'equivalent'.

27
 'To compensate' means to 'balance'. This brings in the concept of
justness as what balances is just. In America, the fifth amendment no
doubt has the word 'just compensation' explicitly. Even the absence of the
word 'just' will not affect the meaning of the word 'compensation'. Nichols
in his work on 'Eminent Domain' states "The adjective 'Just' only
emphasis what would be true if omitted, that the compensation should be
equivalent.

• The matter directly involved is the much litigated Article 31 of the

Constitution of India relating to acquisition of property and compensation
therefore. It may be therefore necessary to restate Article 31; clause (2)
as it was originally and as it was subsequently amended by the Fourth
(Constitution) Amendment of 1955 after the decision in State of West
Bengal v. Mrs Bela Banerjee

The State Of Bihar vs Maharajadhiraja Sir Kameshwar 1952 1 SCR 889

These appeals and petitions which fall into three groups raise the issue of the
constitutional validity of three State enactments called The Bihar Land
Reforms Act, 1950 (Bihar Act of 1950), The Madhya Pradesh Abolition of
Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 , and The Uttar
Pradesh Zamindari Abolition and Land Reforms Act, 1950 ( referred to as
the Bihar Act, the Madhya Pradesh Act and the Uttar Pradesh Act, respectively).

28
• The common aim of these statutes, generally speaking, is to abolish
zamindaries

• The constitutionality of these Acts having been challenged in the

respective State High Courts on various grounds, the Bihar Act was
declared unconstitutional and void on the ground that it
contravened article 14 of the Constitution, the other grounds of attacks
being rejected, while the other two Acts were adjudged constitutional and
valid.

• The argument may be summarised thus. Entry of List II read with article

246(3) was obviously tended to authorise a State Legislature to exercise
right of eminent domain, that is, the right of compute acquisition of
private property. The exercise such power has been recognised in the
jurisprudence all civilised countries as conditioned by public necessity
and payment of compensation. All legislation is this country authorising
such acquisition of property from Regulation I of 1824 of the Bengal
Code down to the Land Acquisition Act, 1894, proceeded on that footing.

• The existence of a public purpose and an obligation to pay compensation

being thus the necessary concomitants of compulsory acquisition of
private property, the term "acquisition" must be construed as importing,
by necessary implication, the two conditions aforesaid. It is a recognised
rule for the construction of statutes that, unless the words of the statute
clearly so demand, a statute is not to be construed so as to take away the
property of a subject without compensation

•  For all these reasons the state Legislatures, it was claimed had no power
to make a law for acquisition of property without fulfilling the two
conditions as to public purpose and payment of compensation.

29
 Raja Suriya Pal Singh vs The State Of U.P. And Another (DATE OF
JUDGMENT: 27/05/1952)

The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, is valid in
its entirety. The jurisdiction of the court to question its validity on the ground
that it does not provide for payment of compensation is barred by arts.
Art.31(4), 31-A and 31-B of the Constitution. The said Act is not a fraud on the
Constitution; it does not delegate essential legislative power to the executive;
and is not liable to be impugned on the ground of absence of a public purpose.

• The main questions for consideration in these appeals are the following :--

• 1. Whether the impugned Act was validly enacted.

• 2. Whether the acquisition of properties contemplated by the Act is for a

public purpose.

• 3. Whether the delegation of power in the various sections of the Act is

within the permissible limits.

• 4. Whether the said Act constitutes a fraud on the Constitution.

30
• (i) The expression "public purpose" is not capable of a precise definition
and has not a rigid meaning. It can only be defined by a process of
judicial inclusion and exclusion. The definition of the expression is
elastic and takes its colour from the statute in which it occurs, the
concept varying with the time and the state of society and its needs.
The point to be determined in each case is whether it is in the interest of
the community as distinguished from the private interest of an individual.

• (ii) There is nothing in law to prevent the subject-matter of a Crown grant

being compulsorily acquired for a public purpose and land held by the
taluqdars of Oudh does not therefore stand on a higher footing than
that of other owners of Oudh.

• (iii) Property dedicated to charity by a private individual is not

immune from the sovereign's power to compulsorily acquire property
for a public purpose.

• Property of A cannot be acquired to be given to B for his own private

purposes and that there is a positive element in the concept that the
property taken must be for public benefit. Both these concepts are
present in the acquisition of the zamindari estates. Zamindaries are
not being taken for the private benefit of any particular individual or
individuals, but are being acquired by the State in the general interests of
the community. Property acquired will be vested either in the State or
in the body corporate, the gaon samaj, which has to function under
the supervision of the State. Tenants, sirdars, asamis etc., are already in
possession of the lands in which their status is to be raised to that of
bhumidars. Zamindars who are being reduced to the status of bhumidars
are also in possession of the lands.

• There is no question in these circumstances of taking property of A and

giving it to B. All that the Act achieves is the equality of the status of the
different persons holding lands in the State. It is not correct to say that
Government is acquiring the properties for the purpose of carrying
on a business or a trade. The moneys received from persons seeking
bhumidari status or from the income of zamindari estates will be used for
State purposes and for the benefit of the community at large. For the
reasons given above Court hold that the impugned Act is not void by
reason of the circumstance that it does not postulate a public purpose.

31
 • As regards the question of delegation, our attention was drawn
particularly to the provisions of sections 6 (e) and (g) and Sec.68. These
sections provide for the prescription of the rate of interest by the
executive government on mort- gages and they also authorize the local
government to determine the period of redemption of the bonds and
the fixation of the ratio between payment of compensation in bonds
and payment in cash. Court held that,the delegation is within the
permissible limits and does not amount to delegation of essential
legislative power. The main principles on these matters have been
laid down in the Act and matters of detail have been left to the rule-
making power.

Visweshwar Rao vs The State Of Madhya Pradesh AIR 1952 SC 252

This is a petition under article 32 of the Constitution of India by Shri Visheswar

Rao, zamindar and proprietor of Ahiri zamindari, an estate as defined in section
2 (3) of the Central Provinces Land Revenue Act, II of 1917, and situated in
tehsil Sironcha, district Chanda (Madhya Pradesh), for the enforcement of his
fundamental right to property under article 31(1) of the Constitution by the issue
of an appropriate writ or a direction to the respondent State restraining it from
disturbing his possession of the estate, and eighty malguzari villages situate in
the Garchiroli tehsil of the same district.

• The petitioner and his ancestors have been owing and enjoying these
properties in full proprietary right for several generations past. On
the 5th April, 1950, the Madhya Pradesh Legislative Assembly enacted an
Act called the Madhya Pradesh Abolition of Proprietary Right Act.
The petitioner thus was to lose his estate and lands on the 31st March
1951. On the 9th March, 1951, i.e. before the vesting date, he presented
the present application to this court for the issue of appropriate writs
against the government prohibiting it from taking possession of his
properties. It was alleged that the Madhya Pradesh Act, of 1951 was
unconstitutional and void and infringed the fundamental rights of the
petitioner in a variety of ways.

• Mr. B. Somayya appearing for the petitioner challenged the validity of the
Act of the following grounds :-

• (a) that the Madhya Pradesh Legislature was not competent to enact
the said Act, in as much as -

32
• (i) the acquisition sought to be made under the Act is not for the public
purpose, and

• (ii) there is no provision for payment of compensation in the legal sense;

• (b) that the Act constitutes a fraud on the Constitution;

• (c) that the Act is unenforceable in that it provides for payment of

compensation by installments but does not specify the amount of the
installments;

• (d) that the Act has delegated essential legislative functions to the
executive Government;

• The preamble of the Act is in these terms :-

• " An Act to provide for the acquisition of the rights of proprietors in

estates, mahals, alienated villages and alienated lands in Madhya Pradesh
and to make provision for other matters connected there with".

• The legislation clearly falls within entry 36 of List II of the Seventh

Schedule of the Constitution. The Madhya Pradesh Legislature had
therefore undoubted competence to enact it. The Act is divided into
eleven chapters and three schedules. Chapter II deals with the vesting of
proprietary rights in the State and states the consequences of the vesting.

• The main purpose of the Act is to bring the actual tillers of the soil in
direct contract with the State by the elimination of intermediary
holders. In short, the Act aims at converting malguzari into ryotwari land
system. In also aims at giving to the gram panchayats the
management of common lands freed from the grip of proprietors and
contemplates the establishment of self-government for the villages. The
provisions of the Act in respect of payment of compensation, though they
do not in any way provide for an equivalent in money of the property
taken and in that sense may not be adequate cannot be called illusory.

• Mr. Bindra, who appeared for the petitioner placed reliance on the
observations of Holmes C.J. in Communications Assns. v. Douds (339
U.S. 382, 384), viz., " that the provisions of the Constitution are not
mathematical formulas having their essence in their form; they are
orgnic living institutions transplanted from English soil. Their
significance is vital, not formal; it is to be gathered not simply by
taking the words and a dictionary, but by considering their origin

33
 and the line of their growth", and contended that if the Constitution of
India was constructed in the light of these observations, then despite the
express provisions of article 31(2) it would be found that there is
something pervading it which makes the obligations to pay real
compensation a necessary incident of the compulsory acquisition of
property.

Sri Sankari Prasad Singh Deo vs Union Of India And State ( 1951 AIR 458)

34
Facts in Brief: Power of Parliament to Amend Constitution
In order to abolish the Zamindari system widely prevalent in India, some State
Govts enacted the Zamindari Abolition Act to acquire huge holding of land
that lay with rich zamindars, and redistribute them among the tenants. But
the same was challenged as being unconstitutional and violative of the Right to
Property that was included in the Fundamental Rights. The Act was held
unconstitutional by the HC of Patna but was upheld by the HCs of
Allahabad and Nagpur; whereby eventually the matter was put before the
Supreme Court. In the midst of this, the Union Govt brought forward the First
Amendment to the Constitution, validating the Zamindari Abolition laws and
limiting the Fundamental Right to Property. New Articles 31 A and B were
included in the Constitution to validate the impugned measures. The
Zamindars challenged the first Amendment in the Supreme Court, stating
that it was unconstitutional and invalid.

Decision of the Court: It was held that the power of the Parliament to
amend the Constitution including the Fundamental Rights is entailed in Art
368 and is not violative of the provisions of the Constitution. The validity of
the land reforms was upheld by the Court; as they do not curtail the powers of
the High Court under Art. 226 to issue writs for enforcement of any of the rights
conferred by Part III or of the Supreme Court under Arts. 132 and 136 to
entertain appeals from orders issuing or refusing such writs. Articles 31A and
31B are were held not invalid on the ground of ultra vires; the Court
declared that though the subject of ‘Land’ came under the State List, the
power to enact amendments of the Constitution lay solely with the
Parliament.

“… to make a law which contravenes the Constitution constitutionally valid is a

matter of constitutional amendment, and as such it falls within the exclusive
power of Parliament..”
“…these articles [31 A and B] do not either in terms or in effect seek to make
any change in Article 226 or in articles 132 and 136.”

“…Court find it difficult in the absence of a clear indication to the contrary; to

suppose that they [Constitution framers] also intended to make those rights
[Fundamental Rights] immune from constitutional amendment…”
“……“law” must be taken to mean rules or regulations made in exercise of
ordinary legislative power and not amendments to the Constitution made in

35
exercise of constituent power, with the result that article 13(2) does not
affect amendments made under Article 368….”

• Although "law" must ordinarily include constitutional law there is a clear

demarcation between ordinary law which is made in the exercise of
legislative power and constitutional law, which is made in the exercise
of constituent power. In the context of Art. 13, "law" must be taken to
mean rules or regulations made in exercise of ordinary legislative power
and not amendments to the constitution made in the exercise of
constituent power with the result that Art. 13(2) does not affect
amendments made under Art. 368.

• A more plausible argument was advanced in support of the contention

that the Amendment Act, in so far as it purports to take away or abridge
any of the fundamental rights, falls within the prohibition of article
13(2) which provides that "the State shall not make any law which takes
away or abridges the rights conferred by this Part and any law made in
contravention of this clause shall to the extent of the contravention be
void." The argument was put thus: "The State" includes Parliament
(article 12)and "law" must include a constitutional amendment. It was the
deliberate intention of the framers of the Constitution, who realized the
sanctity of the fundamental rights conferred by Part III, to make them
immune from interference not only by ordinary laws passed by the
legislatures in the country but also from constitutional amendments.

• Although "law" must ordinarily include constitutional law, there is a

clear demarcation between ordinary law, which is made in exercise of
legislative power, and constitutional law, which is made in exercise of
constituent power. Dicey defines constitutional law as including "all
rules which directly or indirectly affect the distribution or the exercise of
the sovereign power in the State." It is thus mainly concerned with the
creation of the three great organs of the State, the executive, the
legislature and the judiciary, the distribution of governmental power
among them and the definition of their mutual relation. No doubt our
constitution-makers, following the American model, have incorporated
certain fundamental rights in Part III and made them immune from
interference by laws made by the State. 

• The Court inclined to think that they must have had in mind what is of
more frequent occurrence, that is, invasion of the rights of the subjects by
the legislative and the executive organs of the State by means of laws and

36
 rules made in exercise of their legislative power and not the abridgement
or nullification of such rights by alterations of the Constitution itself in
exercise of sovereign constituent power. That power, though it has been
entrusted to Parliament, has been so hedged about with restrictions that its
exercise must be difficult and rare. On the other hand, the terms of article
368 are perfectly general and empower Parliament to amend the
Constitution, without any exception whatever. Had it been intended to
save the fundamental rights from the operation of that provision, it would
have been perfectly easy to make that intention clear by adding a proviso
to that effect.

• In short, we have here two articles each of which is widely phrased, but
conflicts in its operation with the other. Harmonious construction requires
that one should be read as controlled and qualified by the other. Having
regard to the considerations adverted to above, we are of opinion that in
the context of article 13 "law" must be taken to mean rules or
regulations made in exercise of ordinary legislative power and not
amendments to the Constitution made in exercise of constituent
power, with the result that article 13(2) does not affect amendments made
under article

Sajjan Singh vs State Of Rajasthan 1965 AIR 845

In 1951, several State legislative measures passed for giving effect to a policy of
agrarian reform faced a serious challenge in the Courts. In order to assist the
State Legislatures to give effect to the policy, Arts. 31A and 31B were added to
the Constitution by the Constitution (First.Amendment) Act, 1951. Article 31B
provided that none of the Acts specified in the Ninth Schedule to the
Constitution shall be deemed to be void or ever to have become void. In 1.955,
by the Constitution- (Fourth Amend ment) Act, Art. 31A was amended.

37
• Notwithstanding those amendments some legislative measures adopted by
different States for giving effect to the policy were effectively challenged.
In order to save the validity of those Acts as well as of other Acts
which were likely to be struck down, Parliament enacted the Constitution
(Seventeenth Amendment), Act 1964, by which Art. 31A was again
amended and 44 Acts, were added to the Ninth Schedule.

• THE CONSTITUTION (SEVENTEENTH AMENDMENT) ACT, 1964

• STATEMENT OF OBJECTS AND REASONS

• Article 31A of the Constitution provides that a law in respect of the

acquisition by the State of any estate or of any rights therein or the
extinguishment or modification of any such rights shall not be
deemed to be void on the ground that it is inconsistent with, or takes
away or abridges any of the rights conferred by article 14, article 19
or article 31. The protection of this article is available only in respect
of such tenures as were estates on the 26th January, 1950, when the
Constitution came into force. The expression "estate" has been defined
differently in different States and, as a result of the transfer of land from
one State to another on account of the reorganisation of States, the
expression has come to be defined differently in different parts of the
same State. Moreover, many of the land reform enactments relate to
lands which are not included in an estate. Several State Acts relating
to land reform were struck down on the ground that the provisions of
those Acts were violative of articles 14, 19 and 31 of the Constitution
and that the protection of article 31A was not available to them.

• The petitioners in the Writ Petitions in Supreme Court, and interveners,

were persons affected by one or other of those Acts. They contended that
none of the Act by which they were affected could be saved because the
Constitution (Seventeenth Amendment) Act was constitutionally invalid.
It was urged that : (i) Since the powers prescribed by Art. 226, which is in
Chapter V, Part VI of the Constitution, were likely to be affected by
Seventeenth Amendment, the special procedure laid down in the proviso
to Art. 368, namely' requiring the ratification by not less half the number
of States, should be followed; (ii) The decision in Sri Sankari Prasad
Singh Deo v. Union of India and State of Bihar, [1952] S.C.R. 89, which
negatived such a contention when dealing with the First Amendment,
should be reconsidered; (iii) The Seventeenth Amendment Act was a
legislative measure in respect of land and since Parliament had no right to

38
 make a law in respect of land, the Act was invalid and (iv) Since the Act
purported to set aside decisions of Court of competent jurisdiction, it was
unconstitutional.

Radhy Shyam & Ors vs State Of U.P

(Arising out of Special Leave Petition (C) No.601 of 2009)

This appeal is directed against order dated 15.12.2008 passed by the Division
Bench of the Allahabad High Court whereby the writ petition filed by the
appellants questioning the acquisition of their land for planned industrial
development of District Gautam Budh Nagar through Greater NOIDA Industrial
Development Authority (hereinafter referred to as the, "Development
Authority") by invoking Section 17(1) and 17(4) of the Land Acquisition Act,
1894 .

• Upon receipt of proposal from the Development Authority for acquisition

of 205.0288 hectares land of village Makora, Pargana Dankaur, Tehsil
and District Gautam Budh Nagar, which was approved by the State
Government, notification dated 12.3.2008 was issued under Section
4(1) read with Section 17(1) and 17(4) of the Act.

39
• The appellants challenged the acquisition of their land on several grounds
including the following:

• (i) That the land cannot be used for industrial purposes because in the
draft Master Plan of Greater NOIDA (2021), the same is shown as part of
residential zone.

• (ii) That they had already constructed dwelling houses and as per the
policy of the State Government, the residential structures are exempted
from acquisition.

• (iii) That the State Government arbitrarily invoked Section 17(1) read

with Section 17(4) of the Act and deprived them of their valuable
right to raise objections under Section 5-A.

• (iv) The acquisition of land is vitiated by arbitrariness, mala fides and

violation of Article 14 of the Constitution inasmuch as lands of the
Member of Legislative Assembly and other influential persons were
left out from acquisition despite the fact that they were not in abadi, but
they were not given similar treatment despite the fact that their land was
part of abadi and they had constructed dwelling units.

• That the whole acquisition proceedings are void, unconstitutional, tainted

with mala fide, abuse of authority and power, non-application of mind,
and as such, liable to be quashed as violative of Articles 14,19 and 300-A
of the Constitution of India.

40
 R. L. Arora vs State Of U. P, 1962 AIR 764

The Government acquired appellant's land for a company for setting up a

textile machinery parts factory. The entire compensation for the acquisition
was to be paid by the company. The Government was satisfied that the product
of the company would be useful to the public and the agreement between the
company and the Government provided that those who had business with the
company shall have access to the land and works. The notifications under ss. 4
and 6 of the Land acquisition Act, 1894, were issued showing that the land was
acquired for the company. The appellant contended that the notification
under s. 6 was invalid as the acquisition was not for the construction of any
work which was likely to prove useful to the public as contemplated by s. 40
(1)(b) read with cl. (5) of s. 41.

• That the notification under s. 6 of the Act was invalid and the
proceedings should be quashed. Section 40 (1)(b), which alone could
apply to the case, provided that in case of acquisition for a company the
Government could give its consent if the acquisition was needed for the
construction of some work which was likely to prove useful to the public.
For such cases cl. (5) of s. 41 provided that the agreement between the
company and the Government shall state the terms on which the public
shall be entitled to use the works.

• These provisions had to be read together and required that the work
should be directly useful to the public and that the agreement should
contain a term as to how the public shall have the right to use the work
directly themselves. The provision of access to the land or works to those
having business with the company or the fact that the product of the

41
 company would be useful to the public were not sufficient to bring the
acquisition for a company within the meaning of the relevant words
in ss. 40 and 41.

• The satisfaction of the Government that the work was likely to prove
useful to the public upon a wrong construction of s. 40 and s. 41 was
not binding. The conclusiveness attached by s. 6(3) to the notification
under s. 6(1) was only to this extent that the land was needed for the
purposes of a company and this was not in dispute.

Somawanti v. State of Punjab AIR 1963 SC 151

In February, 1961, the petitioners purchased over six acres of land situate in the
State of Punjab for a sum of Rs. 4,50,000 and claim, to have done so for the
purpose of establishing a paper mill. The sixth respondent, private' limited
company, which had a licence from the Government of India for starting a
factory for the manufacture of various ranges of refrigeration compressors and
ancillary equipment, requested the State of Punjab for the allotment of an appro-
priate site for the location of the factory.

• In the official Gazette of August 25, 1961. was published 'a notification of
the Governor of Punjab dated 'August 18, 1961, under s. 4 of the Land
Acquisition Act, 1894, to the effect that the land belonging to the
petitioners was likely to be needed by the Government at public expenses
for a public purpose, namely, for setting up a factory for manufacturing
various ranges of refrigeration compressors and ancillary equipment. The
Government directed that action under s. 17 of the Act shall be taken
because there was urgency and that the provisions of s. 5A shall not
apply to the acquisition. In the same Gazette another notification under s.
6 of the Act dated August 19, 1961, was published to the effect that the
Governor of Punjab was satisfied that the land was required by the
Government at public expense for the said purpose, The notification
provide for the immediate taking of possession of the land under the
provisions of s. 17 (2) (c) of the Act.

• The petitioners filed an application under Art. 32 of the Constitution of

India challenging the legality of the action taken, by the Government on
the grounds, inter alia,

• (1) that the acquisition was not for a public purpose either under s. 4 or
s. 6 of the Land Acquisition Act;

42
• (2) that the land was in reality being acquired for the benefit of the sixth
respondent and that the action of the Government amounted to
discrimination against the petitioners and violated Art. 14 of the
Constitution of India;

• (3) that the notifications under ss. 4 and 6 could not have been made
simultaneously and were, therefore, without efficacy.

• The declaration made by the Government in the notification under s. 6

(1) of the Land Acquisition Act, 1894, that the land was required for
a public purpose, was made conclusive by sub-s. 3 of s. 6 and that it
was not open to a court to go behind it and try to satisfy itself
whether in fact the acquisition was for a public purpose. Whether in a
particular case the purpose for which land was needed was a public
purpose or not was for the Government to be satisfied about and the
declaration of the Government would be final subject to one exception,
namely that where there was a colourable exercise of the power the
declaration would be open to challenge at the instance of the aggrieved
party.

• That purpose, if we may recall, is to set up a factory for the manufacture

of refrigeration compressors and ancillary equipment. The importance of
the under'taking to a State such as the punjab which has a ,surplus of fruit,
dairy products etc. the general effect of the establishment of this factory
on foreign exchange resources, spread of education, relieving the
pressure on unemployment etc., have been set out in the affidavit of the
respondent and their substantee appears in the earlier part of this
judgment.The affidavits have not been controverted and we have,
therefore, no hesitation in acting upon them. On the face of it, therefore,
bringing into existence a factory of this kind would be a purpose
beneficial to the public even though that is a private venture. As has
already been pointed out, facilities for providing refrigeration are
regarded in modern times as public utilities.

• All the greater reason.- therefore, that a factory which manufactures

essential equipment for establishing public utilities must be regarded
as an undertaking carrying out a public purpose. It is well established
in the United States. of America that the power of eminent domain can be
exercised for establishing public utilities. Such a power could, therefore,
be exercised for establishing a factory for manufacturing equipment upon
which a public utility depends. 

43
• It is, therefore, clear that quite apart from the provisions of sub-s. (3) of s.
6 the notification of the State Government under s. 6 cannot be
successfully challenged on the ground that the object of the acquisition is
not carry out a public purpose. Court cannot, therefore, accept the
petitioner's contention that the action of the Government in making
the notification under sub-s. (1) of s. 6 was a colourable exercise of
the power conferred by the Act.

• The next argument to be considered is whether there has been a

discrimination against the petitioners. They claim that as they intend to
establish a factory for manufacturing paper which is also an article
useful to the community they are as good an industrial concern as the
respondent No. 6 and the State Government in taking away land from
them and giving it to respondent No. 6 is practicing discrimination
against them. In the first place it is denied on behalf of the respondents
that the petitioners are going to establish a paper factory. 

• It is always open to the State to fix priorities amongst public utilities of

different kinds, bearing in mind the needs of the State the existing
facilities and other relevant factors. In the State like the Punjab where
there is a large surplus of fruit and dairy products there is need for
preserving it. There are already in existence a number of cold storages in
that State. The Government would, therefore, be acting reasonably in
giving priority to a factory for manufacturing refrigeration equipment
which would be available for replacement in these storages and which
would also be available for equipping new cold storages.

• Apart from this it if; for the State Government to say which particular
industry may be regarded as beneficial to the public and to decide that its
establishment would serve a public purpose. No question of
discrimination would, therefore, arise merely by reason of the fact
that Government has declared that the establishment of a particular
industry is a public purpose. The challenge to the notification based
on Art. 14 of the Constitution must, therefore, fail. 

KEDAR NATH YADAV Vs. STATE OF WEST BENGAL

APPEAL NO.8438 OF 2016
(Arising out of SLP (C) No.8463 of 2008)

44
The State of West Bengal formulated an industrial policy to establish
automobile industries in the State to cater to the needs of the people and to solve
the problem of unemployment in the State. In pursuance of the same, the
respondent, Tata Motors Ltd., entered into discussions with the State
Government of West Bengal regarding the infrastructural needs of the project.
In a letter dated 19.01.2006 addressed to then Principal Secretary of the
Commerce and Industries Department of the Government of West Bengal, TML
stated that a team had visited the State and met representatives of the
Government. It also that the Government for the openness with which the
discussions were held and the assurance of its full support on the project.

• The State Government had initially proposed location of this plant in

Kharagpur. TML have informed that this will be flagship project,
providing very high visibility to West Bengal as an investment
destination. They also need very good connectivity and proximity to
airport, as well as quality urban and physical infrastructure.

Taking all these factors into account, TML, after seeing a number of sites in
Howrah, Hooghly, Paschim Medinipur and Purba Medinipur, finally selected a
site in Singur Block.

• The Act, under the provision of Section 5-A further provides that after the
notification, the objections, if any, may be submitted in writing to the
Collector. The Collector, after the receipt of such objections, needs to
give an opportunity of being heard to the person so objecting. The
Collector is then required toconduct an inquiry and submit a report in that
respect to the State Government for its consideration. In the instant case,
five objection petitions were received from the land owners/cultivators
within 30 days after publication of notification under Section 4 of the
L.A. Act.

• The Land Acquisition Collector submitted the report dated 31.08.2006 to

the State Government. In the report, the Land Acquisition Collector
concluded that WBIDC intends to acquire the land for generating
employment and for socio-economic development of the area by setting
up a factory for the ‘Small Car Project’ of TML at Singur. Being such a
large scale project, it was bound to create immense job opportunities for
the local youth, both directly and indirectly. The Land Acquisition
Collector, thus, concluded that the acquisition of the land in question was

45
 indeed for public purpose. Therefore, Collector concluded that those
objections may be ignored in the greater interest of the public

• The Land Acquisition Collector subsequently made award of

compensation on 25.09.2006. WBIDC then took possession of the land in
question, the extent which was 997 acres. By its letter dated 20.12.2006,
WBIDC asked TML to take “permissive possession of 95 acres of land
pending finalization of the lease deed and lease terms and conditions.”
The formal lease de was executed on 15.03.2007. Subsequently, the
acquisition proceedings were challenged before t High Court of
Calcutta by way of Writ Petitions. By common judgment and order
dated 18.01.2008, a Division Bench of the Calcutta High Court,
dismissed the Writ Petitions, and upheld the acquisition of land,
holding the same to be in the interest of the public and for public
purpose. The same was challenged by way of Special Leave Petition
before Supreme Court

• Even as the above said cases were pending before this Court, the State
Government of West Bengal and TML went ahead with the development
of the land and setting up of the factory for the ‘Small Car Project’. It
was, however, at around that time that the local population started
protesting against the acquisition of the land and setting up of the factory.
Numerous incidents of blockade, protests and violence were reported in
the print and electronic media.

• By letter dated 10.11.2008 addressed to the Director General of Police,

West Bengal, TML informed that it is suspending operations as the
circumstances were no longer conducive for them to work in a peaceful
manner. TML started removing the equipments, machines and other
materials from the site from 10.11.2008 onwards. The said plant was then
relocated to the State of Gujarat.

• The new Government of West Bengal enacted a legislation on 20.06.2011

titled the ‘Singur Land Rehabilitation and Development Act, 2011’ for
taking over the land covered by the lease granted in favour of TML. TML
challenged the constitutional validity of the said Act by way of Writ
Petition before a single Judge of the Calcutta High Court. By judgment
and order dated 28.09.2011 the learned single Judge upheld the validity of
the said Act

46
• The correctness of the said decision was challenged by way of appeals
before a Division Bench of the High Court. By its common judgment and
order dated 22.06.2012, the Division Bench allowed the appeals and
struck down Sections 2, 4(3), 5 and 6 of the Singur Act, 2011 as
unconstitutional as they were in direct conflict with the provisions of the
L.A. Act and repugnant to the said Act. It was further held that the entire
Singur Act, 2011 itself is void and unconstitutional as the same had not
received assent from the President of India. Hence, the present appeals.

• The learned senior counsel contends that the mere mention of public
purpose in the notifications, does not in fact make the acquisition one for
a public purpose, when the acquisition of lands was made in favour of
TML. To make the acquisition one for public purpose, it must be directly
useful to the public, and the benefit must not be merely incidental in
nature. The learned senior counsel places reliance on the Statement of
Objects and Reasons of the Amendment Act 68 of 1984 to the L.A. Act,
which states thus:

• “ With the enormous expansion of the State's role in promoting public

welfare and economic development since independence, acquisition of
land for public purposes, industrialisation, building of institutions, etc.,
has become far more numerous than ever before. While this is inevitable,
promotion of public purpose has to be balanced with the rights of the
individual whose land is acquired, thereby often depriving him of his
means of livelihood. Again, acquisition of land for private enterprises
ought not to be placed on the same footing as acquisition for the State or
for an enterprise under it.

• On the basis of the factual and rival legal contentions advanced on behalf
of the learned counsel appearing on behalf of the parties as well as the
material produced on record and from perusal of the original files, the
following points would arise for consideration of this Court:

• 1.Whether the lands involved in these proceedings have been acquired

for a public purpose or for a Company (TML)?

• 2.If the lands have been acquired for a Company, whether the procedure
provided for under Part VII of the L.A. Act has been complied with by the
state government?

• 3.Whether the inquiry as contemplated under Section 5-A(2) of the L.A.

Act has been duly conducted by the Land Acquisition Collector?

47
• 4. Whether the Land Acquisition Collector has assigned reasons in his
report for rejecting the objections raised by the landowners/cultivators
after application of mind?

• 5. Whether the report of the Land Acquisition Collector is based on the

decision of the State Government taken prior to issuing notification under
Section 6 of the L.A. Act?

• 6. Whether the awards have been passed after holding due inquiry under
Section 9 of the L.A. Act and also in compliance with the principles of
natural justice?

• 7.Whether the compensation awarded in favour of the land

owners/cultivators is based on a proper appreciation of the market value
of the land?

• 8. What is the legal effect on the acquisition proceedings of not

conducting an inquiry under Section 5-A (2) and passing composite
awards under Section 11 of the L.A. Act?

• 9.What order can be passed in these proceedings at this stage?

• Acquisition of land for establishing such an industry would ultimately

benefit the people and the very purpose of industrialization, generating
job opportunities hence it would be open to the State Government to
invoke the provisions of Part II of the Act. When Government wants to
attract the investment, create job opportunities and aims at the
development of the State and secondary development, job opportunities,
such acquisition is permissible for public purpose.

• In Somawanti v. State of Punjab AIR 1963 SC 151, the concept of “public

purpose” has been considered by this Court as under :

• “Public Purpose” as explained by this Court in Babu Barkaya Thakur

case (1961) 1 SCR 128 : AIR 1960 SC 1203 means a purpose which is
beneficial to the community. But whether a particular purpose is
beneficial or is likely to be beneficial to the community or not is a matter
primarily for the satisfaction of the State Government. In the notification
under Section 6(1) it has been stated that the land is being acquired for a

48
 public purpose, namely, for setting up a factory for manufacturing various
ranges of refrigeration compressors and ancillary equipment. It was
vehemently argued before us that manufacture of refrigeration equipment
cannot be regarded as beneficial to the community in the real sense of the
word and that such equipment will at the most enable articles of luxury to
be produced.

• But the State Government has taken the view that the manufacture of
these articles is for the benefit of the community. No materials have been
placed before us from which we could infer that the view of the
Government is perverse or that its action based on it constitutes a fraud on
its power to acquire land or is a colourable exercise by it of such power.

• Further, the notification itself sets out the purpose for which the land
is being acquired. That purpose, if we may recall, is to set up a factory for
the manufacture of refrigeration compressors and ancillary equipment.
The importance of this undertaking to a State such as the Punjab which
has a surplus of fruit, dairy products etc. the general effect of the
establishment of this factory on foreign exchange resources, spread of
education, relieving the pressure on unemployment etc. have been set out
in the affidavit of the respondent and their substance appears in the earlier
part of this judgment. The affidavits have not been controverted and we
have, therefore, no hesitation in acting upon them.”

• In Jage Ram & Ors. v. State of Haryana & Ors. (1971) 1 SCC 671, this
Court held that setting up of a factory for purpose of manufacture of
China-ware and Porcelain-ware including wall Glazed Tiles was a public
purpose. This Court has held thus :

• “ There is no denying the fact that starting of a new industry is in

public interest. It is stated in the affidavit filed on behalf of the State
Government that the new State of Haryana was lacking in industries and
consequently it had become difficult to tackle the problem of
unemployment. There is also no denying the fact that the industrialisation
of an area is in public interest. That apart, the question whether the
starting of an industry is in public interest or not is essentially a question
that has to be decided by the Government.

• That is a socio-economic question. This Court is not in a position to go

into that question. So long as it is not established that the acquisition is
sought to be made for some collateral purpose the declaration of the

49
 Government that it is made for a public purpose is not open to challenge.
Section 6(3) says that the declaration of the Government that the
acquisition made is for public purpose shall be conclusive evidence that
the land is needed for a public purpose. Unless it is shown that there was a
colourable exercise of power, it is not open to this Court to go behind that
declaration and find out whether in a particular case the purpose for which
the land was needed was a public purpose or not

• In Narayan Govind Gavate v. State of Maharashtra (1977) 1 SCC 133,

this Court held that development and utilization of land as residential
industrial area qualified as “public purpose”. This Court held that : “6. In
writ petitions before the High Court, the submission that no public
purpose existed was not pressed in view of the decision of this Court in
Somavanti Smt v. State of Punjab AIR 1963 SC 151. In Ramtanu
Cooperative Housing Society Ltd. Shri v. State of Maharashtra (1970) 3
SCC 323 acquisition of land for development of industrial areas and
residential tenements for persons to live on industrial estates was held to
be legally valid for a genuinely public purpose. This ground, therefore,
need not detain us, although the appellants, who are owners of the
properties acquired, have formally raised it also by means of the six
appeals filed by them (Civil Appeals 1616-1621 of 1969). In agreement
with the High Court, we hold that notifications under Section 4(1) of the
Act were valid in all these cases.”

• In Arnold Rodricks v. State of Maharashtra (1966) 3 SCR 885 the

acquisition of land for development and utilization as industrial and
residential area met the test of “public purpose”. This Court laid down
thus :It was urged before us that the State Government was not entitled to
acquire property from A and give it to B. Reliance was placed on the
decision of the Supreme Judicial Court of Massachusetts (204 Mass.
607) . But as pointed out by this Court, public purpose varies with the
times and the prevailing conditions in localities, and in some towns like
Bombay the conditions are such that it is imperative that the State should
so all it can to increase the availability of residential and industrial sites.

• It is true that these residential and industrial sites will be ultimately

allotted to members of the public and they would get individual benefit,
but it is in the interest of the general community that these members of the
public should be able to have sites to put up residential houses and sites
to put up factories. The main idea in issuing the impugned notifications

50
 was not to think of the private comfort or advantage of the members of the
public but the general public good. At any rate, as pointed out in Babu
Barkva Thakur v. State of Bombay [(1961) 1 SCR 128 at p 137] a very
large section of the community is concerned and its welfare is a matter of
public concern. In our view the welfare of a large proportion of persons
living in Bombay is a matter of public concern and the notifications
served to enhance the welfare of this section of the community and this is
public purpose. In conclusion we hold that the notifications are valid and
cannot be impugned on the ground that they were not issued for any
public purpose.”

• In State of Karnataka v. Ranganatha Reddy (1977) 4 SCC 471 Krishna

Iyer, J. stated: (SCC p. 502, para 57) “. … There may be many processes
of satisfying a public purpose. A wide range of choices may exist. The
State may walk into the open market and buy the items, movable and
immovable, to fulfil the public purpose; or it may compulsorily acquire
from some private person’s possession and ownership the articles needed
to meet the public purpose; it may requisition, instead of resorting to
acquisition; it may take on loan or on hire or itself manufacture or
produce. All these steps are various alternative means to meet the public
purpose. The State may need chalk or cheese,

• pins, pens or planes, boats, buses or buildings, carts, cars, or eating houses
or any other of the innumerable items to run a welfare-oriented
administration or a public corporation or answer a community
requirement. If the purpose is for servicing the public, as governmental
purposes ordinarily are, then everything desiderated for subserving such
public purpose falls under the broad and expanding rubric. The nexus
between the taking of property and the public purpose springs necessarily
into existence if the former is capable of answering the latter. On the other
hand, if the purpose is a private or non-public one, the mere fact that the
hand that acquires or requires is Government or a public corporation, does
not make the purpos automatically a public purpose.

• Let us illustrate. If a fleet of cars is desired for conveyance of public

officers, the purpose is a public one. If the same fleet of cars is sought for
fulfilling the tourist appetite of friends and relations of the same public
officers, it is a private purpose. If bread is ‘seized’ for feeding a starving
section of the community, it is a public purpose that is met but, if the
same bread is desired for the priva dinner of a political maharajah who

51
 may pro tem fill a public office, it is a private purpose. Of course, the
thing taken must be capable of serving the object of the taking. If you
want to run bus transport you cannot take buffaloes.”

The land shall be given back to the land owners and compensation if any
paid to them shall not be recovered from them those who have not
collected it are free to collect the same in lieu of damages for deprivation of
possession for ten years.

52
NINTH SCHEDULE AND POWER OF JUDICIAL REVIEW

A good Constitution must possess some fundamental limitations and

restrictions on the powers to govern and legislate. The limitations and restrictions
are direct or indirect, express or implied. A good Constitution must also provide for
the power of judicial review over the Constitutional amendments and legislative
1
Acts. Judicial review scans the unconstitutional laws enacted by both Centre and
State Legislatures and examines the action taken by the executive. The power of
judicial review must vest in the Court which is the only competent, impartial,
effective and authoritative organ to check the violations of the constitutional rights
affecting the Union, the State and the people.

Judicial review is a part and parcel of the principle of Constitutionalism. The

principle of Constitutionalism is an antithesis of arbitrary rule and it imposes
limitations on the exercise of governmental power in order to avoid usurpation or
its tyrannous applications. Any law enacted either by the Parliament or State
legislature must always confer an opportunity to the judiciary to test the laws,
2
whether such laws are against to the common right and reason. If such laws are not
based on any reason and irrational, they shall be declared void. In India suo motto
power is not conferred on the judiciary to question the constitutional validity of
laws passed by the legislatures. Such being the case, there should not be any scope
under Constitution for excluding the power of judicial review even for special laws.
Otherwise it affects the principles of Constitutionalism which exist in Constitution
of India and there may be chance to abuse the same by so called Parliamentarians.
In addition to that the Parliament occupies the supremacy, which Constitution is
having. This happened in the Constitution of India in the Ninth

53
Schedule which included some laws which are irrational, controversial,
unscientific, illogical, unreasonable and no way related to land reforms also.
(Example Tamil Nadu Reservation Act provides 69% reservation against to the
mandate of Indra sawhney’s case). Thereby this Schedule confers unlimited power
to the Parliament to make judiciary silent to question the constitutional validity of
laws listed in the Ninth Schedule by excluding the judicial review. Initially land
reforms laws were placed in the Schedule with sole object of abolishing the
Zamindari system, though they were violative of right to property which was earlier
considered as fundamental right. But thereafter, especially in Thirty-ninth and
Fortieth Constitutional Amendments during Indira Gandhi’s period, Schedule was
misused like any thing by putting unrelated laws into the Ninth Schedule and it has
become Constitutional Dustbin in the hands of legislatures.

Historical Background of Ninth Schedule

Land reforms essentially consist of a systematic change in the laws and

regulations and customs that govern ownership of land. For a country which is
dependent on its agriculture, India has since long seen a struggle to formulate that
correct legislation which could bring about positive growth. Every Kingdom, every
government constantly endeavoured to regulate the system of land in a way which
brought about an increase in the revenue from these lands.

India is predominantly an agrarian country with nearly three fourths of the

people dependent on agriculture or rural economy. When India became
independent in 1947, huge majority of her people were living in rural areas and

54
were dependent on the agrarian economy for their livelihood. The state of this
economy was vey poor, primarily as a result of policies of the British. Indian
farmers were completely frustrated from the plans and actions of British rulers with
respect to agrarian development concern. The living condition of the peasants
during British period was so critical and deplorable.

After independence, Indian leaders had to concentrate on harsh realities of

country’s economy and poverty.Independence had raised high hopes and
expectations among all the sections of the society. It was realized that, various
revolutionary changes have to be made to protect the interest of agriculturist.

As a result the democratic Governments of States and Centre had moved in a

large way to remove the unhealthiest impediments to the progress of the agrarian
Sector. Land reform programmes, which were given a place of special significance
both in the First and in the Second Plan, had two specific objects. The first is to
remove such impediments to increase in agricultural production from the agrarian
structure inherited from the past. This should help to create conditions for evolving
as speedily as possible an agricultural economy with high levels of efficiency and
productivity. The second object which is closely related to the first, is to eliminate
all elements of exploitation and social injustice within the agrarian system to
provide security for the tiller of soil and assure equality of status and opportunity to
all sections of the rural population.

The abolition of zamindari (intermediaries) system was only a small part of

the larger programme of economic and social reconstruction undertaken by the
Government of India. This larger progarmme involved taking steps for the
protection of tenants from arbitrary ejectment, the allotment of land to the landless,
the imposition of ceilings on individual holdings, the reduction of rental

55
values of land, the prescription of maximum rental values, the introduction of co-
operative farming, the consolidation of holdings, and the like.Since Five –Year
Plans became an integral part of the development process, agriculture legislations
also became portion of a purposeful national effort for changing the socio-
economic condition of the society.

Reforms in agrarian social and economic structure became a top priority

after independence. Accordingly, several land reform legislations were passed by
various States, aimed mainly at the abolition of intermediaries in the agricultural
economy, and the institution of land ceilings. However, problems regarding the
constitutional validity of these legislations soon arose, in the context of the
Fundamental Rights chapter of the Constitution and this initiation affected the
Fundamental Rights of the Zamindars.

Therefore, certain aggrieved zamindars challenged the validity of those Acts

in various High Courts of the States on the ground of contravention of Fundamental
Rights recognized under Part III of the Constitution. In 1950, the Bihar Land
Reforms Act was challenged before the Patna High Court in Kameshwar Singh v.

State of Bihar. Patna High Court, in this case held that the Bihar Land Reforms Act
was violative of fundamental rights and declared unconstitutional. But the
Allahabad High Court upheld the relevant agrarian laws passed in Uttar
Pradesh.The Nagpur High Court also upheld the agrarian legislation. The person
aggrieved by these decisions filed appeals in Supreme Court and some of the
parties filed writ petitions under Art.32 directly before the Supreme Court.

Before, however, the Supreme Court in appeals, could give its verdict on the
validity or otherwise of this type of legislation, the Central Government under

56
Shri Jawaharlal Nehru became restive at the delay being caused by litigation in
furthering the programme of agricultural land reforms and thought of short
circuiting the judicial process. Nehru was an ardent supporter of agrarian reform
which he regarded as a process of social reform and social engineering. The Centre
wanted to remove any possibility of such laws being declared invalid by the courts
and have brought the amendment to put an end to all these litigations. Therefore,
the Central Government in order to carry out agrarian scheme sponsored by the
party in the power brought about the First Constitutional Amendment of 1951 by
which Arts.31-A and 31-B were introduced and Ninth Schedule was also
incorporated in the Constitution curtailing the power of the Court in the matter of
judicial review of land reforms legislation.

Parliament Debates on Ninth Schedule

The then Prime Minister Nehru introduced the Constitution (First

th
Amendment) Bill in the Loka Sabha (Provisional Parliament) on 8 May, 1951.
th
After its introduction, on 16 May 1951, Nehru moved that Bill to amend the
Constitution to be referred to a Select Committee consisting of himself and twenty
other members of the Provisional Parliament. While moving the Bill he said:

“The Bill is not a very complicated one; not is it a big one. Nevertheless, I
need hardly point out that it is of intrinsic and great importance. He further said
that, the real important provision which he was putting before the house related to
11
Art.31. Emphasizing the need of Art.31-B and Ninth Schedule, he said that if they
did not make proper arrangements for the land, all their schemes would fail. As
such something of the above amendment was necessary.

Further he opined that “When I think of this Article the whole gamut of
picture comes up before my mind. I am not a Zamindar nor am I a tenant, I am an

57
outsider. But the whole length of my public life has been intimately connected with
agrarian agitation in my province.” The debates in Parliament prior to the
enactment of the First Amendment throw light on the factors that led to the creation
of the Ninth Schedule.

Pandit Jawaharlal Nehru set the tone of the debates in Parliament on May
18, 1951.Due to the confusion of doubt created by Bihar, Allahabad and Nagpur
High Courts on the issue of progressive agrarian reform legislation by giving
contrary decisions on the matter Nehru was worried. He said,

“…Are we to wait for this confusion and doubt gradually to resolve itself, while
powerful agrarian movements grow up? If there is agrarian trouble and insecurity
of land tenure nobody knows what is to happen. Therefore, these long arguments
and these repeated appeals in courts are dangerous to the State, from the security
point of view, from the food production point of view, and from the individual
point of view, whether it is that of the zamindar or the tenant or any intermediary."

He further said, Arts.31-A and 31-B were aimed to give effect to a dynamic
move of directive principles and strengthen the Constitution. He trusted that
immunity to the Scheduled legislations was essential for advancing social change
initiated by the State.

On May 29, 1951, after the Select Committee submitted its report on the
First Amendment, Nehru said: "It is not with any great satisfaction or pleasure that
we have produced this long Schedule. We do not wish to add to it for two reasons.
One is that the Schedule consists of a particular type of legislation, generally
speaking, and another type should not come in. Secondly, every single measure
included in this Schedule was carefully considered by our President and certified
by him. If you go on adding at the last moment, it is not fair, I think, or just to this

58
Parliament or to the country." Nehru's reply was in response to some members who
had given notice of amendments to add other laws to the Schedule.

When the proposed amendment came for discussion in the House, Ranga,
Renka Ray, Kala Venkata Rao, M.P.Mishra, Rev.D’Souza, Deshmukh, Frank
15
Anthony, S.L.Sakshena, T.Hussain and Durga Bai supported the amendment. But
S.P. Mookerjee, Kunzru, Kamath, Shyamanandan Shaya, Hussain Imam, K.T.Shah
and Acharya Kripalani opposed the amendment. They were in favour of awaiting of
the decision of apex court on the matter.

Hussain Imam while speaking on the amendment observed that it was an

inopportune and unnecessary amendment to the Constitution and it was altogether,
so anti democratic that it would be difficult to find in the annals of the history a
measure of this nature that had been introduced in any democracy of the world. He
explained that, it was inappropriate because no indication in advance was given. It
was unnecessary because it was not going to be used by the existing government
and the laws that are to be included in the Ninth Schedule had not been pronounced
by the highest tribunal to be ultra vires the legislature. And it was undemocratic,
because Art.31 was included in the list of justiciable rights, but by means of this
amendment they were excluding all the jurisdiction of the Court.

Prof. K.T. Shah, a Member of the Constituent Assembly who opposed the
Ninth Schedule, appealed against it in order to "uphold the sanctity of the Court",
and urged the government to validate the laws to be placed under the Ninth
Schedule after the Supreme Court considered them on a reference by the President.
But Nehru was categorical. He replied to the debate: "Millions wait and have been
waiting for decades. Do you think that lawyers or any petty legal arguments are
going to come in the way of these millions? Are we to submit to things and wait till
some great revolution comes to change the condition of things?"

59
 He further said,” The Constituent Assembly took great care to lay down that
these changes should not be challenged in a Court of law. In spite of this care,
perhaps the language was not clear enough. That was our fault and so it has been
challenged and these reforms have been in consequence delayed. Are we to wait for
this delaying process to go on and for this process of challenge in Courts of law to
go on month after month and year after year? And the people who talk about
waiting do not know what is stirring the hearts of those millions outside."

th
Prior to this even in the Constituent Assembly, on 10 September1949,
Pandit Nehru said that, if the property is required for public use it is well
established law that it should be acquired by the State, by compulsion if necessary
and compensation is paid accordingly by methods laid down by law and the
principles governing the source should not be challenged in Courts of law except
where there has been any abuse of law or a fraud on the Constitution. But, normally
it is presumed that Parliament representing the entire community of the nation will
not commit the same and will be very much concerned with doing justice to
individual as well as the community.

There has been a tendency for monopoly of wealth and property in a limited
number of hands who really dominated the scene and the small man is crushed out
of existence by the modern tendency to have money power concentrated in some
hands. To break this circle and to provide for equitable distribution of the resources
to all, the national leaders were thinking to adopt various legislative measures to
achieve the objectives of egalitarian society in a move towards social welfare states
and the Ninth schedule was one of them.

The external inspiration for the Ninth Schedule came from Ireland, where
land had been unevenly distributed. Art.43 (2) of the Irish Constitution stated that
the exercise of the right on land should be regulated by the principles of social

60
justice. Dr. B.R. Ambedkar explained to the House, the Irish law had appointed a separate
board with the power to acquire land, to break up holdings, to equalise land, and to make
uneconomic holdings economic ones by taking land from a neighbouring owner, and the
right to assign compensation was given to this board. Ambedkar underlined the point that
there was no judicial authority to interpret the action of this board and there was no appeal
against the board's decision. "Some people took appeals to the Courts, but they held that
no appeals lay with any Court," he told the House.

Further he said that, Art.31-B, enumerates in the Ninth Schedule certain laws which had
been passed … prima facie it was an unusual procedure, but looked at from the point of
view of principles on which those laws were made to acquire estates and neither the
principle of compensation nor the principle of discrimination should stand in the way of
validity of it. Therefore, sentimentally there might be objection, but from the practical
point of view there should not be any objection to declare such laws valid.

Finally the Bill was passed with 238 ayes and 7 noes (Speaker announces the final result
th
by saying 'The Ayes/Noes have it) and received the assent of the President 18 June
1951.Thus the Constitution First Amendment Act, 1951 was passed and added Arts.31-A
and 31-B read with Ninth Schedule to the Constitution. This is how, The First
Amendment was made to the Constitution in 1951 by the Provisional Parliament. This is
the historical background of the Ninth Schedule which was added to the Constitution
along with Art.31-B.

The rationale for Art.31-B and the Ninth Schedule becomes clear on reading
the Parliament debates on the First Amendment relating to the Ninth Schedule. It is
not the fear of the judiciary striking down land reform laws that compelled the
Nehruvian state to prevent judicial review of those laws, but its

remarkable degree of impatience - characteristic of those early years following the

achievement of freedom - with the conservatism of the judiciary. Therefore, the rationale

61
for the Ninth Schedule, as articulated by Nehru and Ambedkar in the early 1950s,
continues to be relevant even today.

An Act is included in the Ninth Schedule by exercising the Constituent

Power of Parliament i.e. by process of Constitutional majority and it is for this
reason that all subsequent amendments made by a simple majority to those Acts are
open to challenge in courts, though not the Act itself. To begin with, only Acts
abolishing zamindari were included in the Schedule.

The Constitution (First Amendment) Act, 1951

The Statement of Objects and Reasons stated in the Constitution (First

Amendment) Act, 1951, are as follows:

Statement of Objects and Reasons

During the last fifteen months of the working of the Constitution, certain
difficulties have been brought to light by judicial decisions and pronouncements
especially in regard to the chapter on Fundamental Rights. In this regard
unanticipated difficulties have arisen in Art.31. The validity of agrarian reform
measures passed by the Legislatures, in spite of the provisions of clauses (4) and

(6) of Art.31, formed the subject-manner of dilatory litigation, as a result of which

the implementation of these important measures, affecting large numbers of people
has been held up.

The main object of this Bill is, to insert provisions fully securing the
Constitutional validity of Zamindars abolition laws in general and certain specified
State Acts in particular. The opportunity has been taken to propose a few minor
amendments to other Articles in order to remove difficulties that may arise

62
Insertion of Art.31-B read with Ninth Schedule

After Art.31 of the Constitution the following Articles shall be inserted, and
shall be deemed always to have been inserted, namely Arts.31-A and 31-B. No
22
doubt these two Articles are exception to Art.13 of the Constitution. Though the
laws enacted by the legislature under Arts.31-A and 31-B contravene the
Fundamental Rights recognized under part III of the Constitution, it is necessary to
make those laws which are constitutionally valid, in order to give effect to the
agrarian reforms and to establish egalitarian society.

Art.31-B operates to immunize legislations from challenge on the grounds

that they violate Fundamental Rights. Furthermore, it acts retrospectively to confer
validity on Acts and Regulations which have been previously declared void under
Art.13, such that these Acts and Regulations are to be treated as having been valid
since their inception. On a plain reading, this seems a drastic provision- several
members of Parliament who opposed the First Amendment criticized it as
undemocratic, on the grounds that it eradicates the judicial review of laws as
against the provisions of Part III.

Art.31-B has to be read with the Ninth Schedule because it is only those
Acts and regulations which are put in that Schedule that can receive the protection
of that article. This Schedule was added under section 14 of the First Amendment
Act 1951. According to this Section 5 and 14 of the said Act, as and when Acts and
Regulations are put into the Ninth Schedule by constitutional amendment made
from time to time, they will automatically by the reason of the provisions of Art.31-
B, receive the protection of that Article.

Retrospective Effect of Art.31-B

63
 The very significant characteristic of Art.31-B is that it is having
retrospective effect. As result of this effect, any legislation which is previously
declared void by the Supreme Court on the ground that it violated any of the
fundamental rights, receives protection if such void legislation is introduced in the
Ninth Schedule by the Constitutional Amendment. Any Act, cannot after its
introduction in the Ninth Schedule be declared void or ever to have become void,
on the ground of its inconsistency with any fundamental right. In State of Uttar
Pradesh v. Brijrnder Singh case, Supreme Court also made above observations.

Because of this characteristic of Art.31-B, it became very easy for the

Parliament to validate any Act already declared unconstitutional, simply by

putting such unconstitutional Act in the Ninth Schedule. Once legislation enters into the
protective umbrella of the Ninth Schedule its constitutionality cannot be challenged as per
the wordings of Art.31-B.

The protection of Art.31-B is only available to original Acts included in the

Ninth Schedule. Similarly, in Prag Ice and Oil Mills v. Union of India,it has been
held that order and notifications made under the Acts included in the Ninth
Schedule also are not entitled to protection of Art. 31-B as they are not the part of
the original Acts.

Ninth Schedule

The Ninth Schedule and Arts.31-A and 31-B represent a novel, innovative
and drastic technique of Constitutional amendment. It is an interesting innovation
in the area of Constitutional Amendment. A new technique of by-passing judicial
review was initiated. Any Act incorporated in the Schedule becomes fully protected
against any challenge in a Court of law and any Fundamental Rights. The Ninth
Schedule was drafted by the Nehru government in 1951. It emanates from Art.31-A
and 31-B which were introduced by the Constitution (First Amendment) Act, 1951,
with effect from June 18, 1951 ensure certain laws were valid even if it violated the
fundamental rights of citizen.

64
 The Schedule was not envisaged by our founding fathers at all. In fact, it
owes its birth to ideological battles in the nascent republic between the progressive
executive and legislature on the one hand and the conservative judiciary on the
28
other. According to the provision of Art.31-B, “none of the laws specified in the
Ninth Schedule shall be deemed to be void on the ground that it was inconsistent
with any of the Fundamental Rights, notwithstanding any judgement, decree or
order of any court or tribunal to the contrary.” This meant that the laws put in the
Ninth Schedule were not subject to judicial review. The justification offered was

65
that Courts should not be allowed to get in the way of socialist polices such as land
reforms. As the researched mentioned earlier Art.31-B, which gives blanket protection to
all items in the Ninth Schedule, is also retrospective in nature. So, even if a statute which
has already been declared unconstitutional by a court of law is included with in the
Schedule, it is deemed to be constitutionally valid from the date of its inception. In short,
the judicial decision is nullified when the statute is included in the Schedule.

Thus, initially only thirteen State Acts were put beyond any challenge in courts for
contravention of Fundamental Rights. But Schedule Nine has swelled and swelled in
course of time as all kinds of statutes have been included therein to protect them from
judicial review so much so that today the Schedule contains as many as 284 entries.

Objectives of Ninth Schedule

When the Ninth Schedule was introduced through the First Amendment of Constitution,
then the framers felt the following objectives for its adoption and inclusion. They are:

1. To protect the agrarian reforms laws i.e. to say to push land reforms.

2. To abolish the zamindari system which was deemed to be an evil and

a terrible evil of feudalism should be ended and socialism should be
ushered in, was a slogan then.

3. To immunize certain Acts and regulations from a challenge and the

ground of violations of Fundamental Rights under Arts.14 and 19 of
the Constitution. Thus its very purpose was to deprive the powers of
court to challenge the validity of the Act passed by the legislation.

4. To bring the weaker section of the society into main stream and
uphold the interest of same category.

66
 5. To promote social change towards a more equal justice and the
Constitutional goal of egalitarianism.

6. To reduce the concentration of land in a few hands, so that the

agriculturist may feel sure of reaping the fruits of his labour.

Since the land reform legislations directly impinged upon the Fundamental
Right to property of the big land lords, this right proved to be the biggest obstacle
in implementing land reforms. In order to remove such an obstacle and fulfill the
above mentioned objectives, Art.31-B read with Ninth Schedule was incorporated
under the provisions of the Constitution through First Amendment Act, 1951.
Thus speaking truly and contextually, the singular objective “behind Art.31-B
read with Ninth Schedule is to remove difficulties and not obliterate part III in its
entirety or judicial review” the objective was essentially to accelerate the process
of land reforms.

Nature and Scope of Article 31-B read with Ninth Schedule

It has already been pointed out that the Ninth Schedule has today become a
constitutional dustbin and house for every controversial law passed by the
government of the day. Such a situation was not envisaged at the time, the First
Amendment was enacted. It is argued here that a correct interpretation of the
language of Art.31-B can effectively end this problem.

Arts.31-A (1) and 31-B are intended to operate as protections against

consequences which could otherwise mean breach of Constitution. Legislation
falling under any part of Art.31-A (1), including the provisions, can also receive
protection under Art.31-B. If conditions of either article are satisfied, there is no
bar to a legislation receiving double protection. In this connection, to know further

67
 about relationship between Arts.31-A and 31-B, Prof. A.R. Blackshield’s
observation is relevant for the discussion. He considered the opening words of
Art.31-B (Without prejudice to the generality of the provisions contained in Art.31-
A) as structural interconnection between Arts.31-A and 31-B. That gives rise to an
inference that Art.31-B read with Ninth Schedule is particularization of Art.31-A
itself.

But unfortunately, the judicial approach on this matter is not on the above
lines, with a result that Ninth Schedule has become an open ended weapon of
44
protecting unconstitutional laws indefinitely in terms of time, subject and space.
In Vishweshwara v. State of Madhya Pradesh, the Court observed Art.31-B as
independent of Art.31-A. Thereafter, the opening words of Art.31-B were
interpreted by the Supreme Court in N.B. Jeejeebhoy v. Assistant Collector, Thana
as implying that “the Acts and regulations specified in the Ninth Schedule would
have the immunity even if they did not attract Art.31-A of the Constitution.” The
Court’s reasoning was that “if every Act in the Ninth Schedule would be covered
by Art.31-A, this Article would become redundant.” Further, they derived support
from the existence in the Ninth Schedule of laws unrelated to ‘estate’ as defined in
Art.31-A(2), and concluded that Art.31-B was not governed by Art.31-A.

It is submitted that this reasoning is misleading, and that the correct conclusion was
arrived at by J. Bhagwati in Minerva Mills v. Union of India,when he stated that “the
Ninth Schedule of Art.31-B was not intended to include laws other than those covered by
Art.31-A.” In this regard, it is submitted that the correct interpretation of the phrase
‘without prejudice to the generality of Art.31-A’ can be arrived at in the following way.
The ambit of Art.31-A extends to five types of laws, corresponding to sub-clauses a) to e)
of its first clause. Now, by providing that Art.31-B does not detract from the generality of
Art.31-A, what is meant is that although a law may be included in the Ninth Schedule
under Art.31-B, this does not mean that it is thereby deprived of the protection afforded
by Art.31-A.

The kind of laws which are entitled to protection under Art.31-B are also
necessarily entitled to protection under Art.31-A, although there may be many laws
under Art.31-A which are not covered by Art.31-B i.e. which are not included in

68
the Ninth Schedule. Infact, there would be no purpose in providing that Art.31-B
does not detract from the generality of Art.31-A unless their subject matters
overlapped. As for the reasoning in Jeejeebhoy, the Court was wrong in supposing
that the above interpretation would make Art.31-B redundant, because the
protection it affords is greater than that provided by Art.31-A. Also, the fact that
there exist many laws in the Ninth Schedule unrelated to Art.31-A is indicative, not
of the correct use of Art.31-B, but of its blatant misuse. Therefore, it is submitted
that Art.31-B should be interpreted as above, so as to render unconstitutional any
additions to the Ninth Schedule which are not covered by Art.31-A. Art.31-A aims
at saving laws providing for the compulsory acquisition by the State of a certain
kind of property from the operation of Art.13 read with other relevant Articles in
Part III, while Art.31-B purports to validate certain specified Acts and Regulations
already passed which but for such a provision would be liable to be impugned
under Art.13.

The scope of Art.31-B is wider in nature than Art.31-A, as Art 31-A is

limited to property related laws and regulations, Art.31-B not only stand
independent of Art.31-A, but will also validate a law if it contravenes the
provisions of Art.31-A. The protection of Art.31-B extends to the Act as it stoods
on the date of its inclusion in Ninth Schedule. It means that, the protection would
not apply to the Act after the inclusion within the Schedule. The reason for this is,
while the inclusion of an Act requires an exercise of the amending powers of
Parliament, an amendment to the Act can be made by ordinary legislative process.
Thus, it can be said that, wide range of powers are given to the legislature under
Art.31-B. No review of policies and principles enshrined within the State laws
could ever be or were ever inspected by the Courts.

Since 1951, the Ninth Schedule has been expanded constantly so much so
that today 284 Acts are included therein. From the context of Art.31-B it is put
under the heading of right to property immediately after Arts.31 and 31-A, and its
opening words are “without prejudicing the generality of the provisions contained
in Art.31-A” – it could plausibly be assumed that Art.31-B was meant to protect
legislation dealing with property rights and not any other type of legislation. But, in

69
 practice, Art.31-B has been use to invoke protection for many laws not concerned
with property rights at all. Art. 31-B is thus being used beyond the socio- economic
purposes which was its only justification.

After examining the relationship between Arts.31-A and 31-B, the

researcher made an attempt to find out the exact difference between these two
Articles through below mentioned table.

Table

Sl No. Article 31-A Article 31-B

1. Art.31-A validates law which would Art.31-B specifically validates

otherwise contravene Art.31(2) but its certain Acts in the Ninth Schedule

operation is restricted to laws despite the provision of Art.31-A.

providing for acquisition of estates It is not illustrative of Art.31-

and other matter mentioned in sub- 51
A, but stands independent of it.
50
clause (1). That means This Article

provides protection only to the laws

enacted by the competent legislature

with in the purview of clauses (a) to

(e) of Art.31-A(1).

2. This Article protects specified laws Whereas this Article protects the
enacted by the legislatures only laws placed in the Ninth Schedule,

against Arts.14, 19 and 31 of the no matter what character, kind or

Constitution. category they may be, against all

fundamental rights.

70
 3. Art.31-A gives definite criterion and Art.31-B provides no definite
it provides for a standard by which criterion or standards.

laws stand excluded from judicial

review.

4 Jurisdiction of Parliament and State Jurisdiction of Parliament to enact

legislatures to enact law under Art.31- law under Art.31-B is Unlimited.

A is so limited. So Art.31-B has wider jurisdiction

than Art.31-A.

5 Art.31-A has no competency Where as Art.31-B alone is

• to give retrospective effect to competent

agrarian or economic legislations, • to give retrospective effect to

• to override the judicial decisions. agrian or economic

legislations,

• to override the judicial

decisions.

6 Art.31-A cannot extend protection to Where as Art.31-B can extend

the laws placed in the Ninth Schedule protection even to the laws made

unless those laws fall under the under Article 31-A.(Law relating to

category of Art.31(A)(1)(a) to (e) of Acquisition etc.) i.e. Double

the Constitution. protection.

Constitutional Amendments and the Ninth Schedule

Constitutional validity of laws placed in the Ninth Schedule through

different amendments have been questioned from Shankari Prasad case to

71
 Kesavananda Bharathi and from Forty-fourth Amendment to I.R.Coelho case. The
Ninth Schedule has the effect of nullifying the judicial pronouncement
prospectively as well as retrospectively. It is agreed by all, that the legislature can
nullify the effect of judicial decisions by changing the basis of decision and giving
it retrospective effect. However, it is not open for the legislature to directly overrule
a decision pronounced by the competent Court. It can neither be done in the
exercise of ordinary legislative power nor in the exercise of the constituent or
amendment power. In all cases, the challenge was against the law relating to the
agrarian revolution. Hence, all these cases are dealing with agrarian revolutions
which are discussed below in brief.

Status of Ninth Schedule in Pre I.R.Coelho’s case

When Arts.31-B read with Ninth Schedule have been inserted through Constitution (First
Amendment) Act in 1951, same was challenged in Shankariprasad v. Union of India.Two
principal contentions were urged for the petitioners. In the first place it was urged that the
Constitution-makers had in mind of Art.11 of the Japanese Constitution declaring certain
rights to be “eternal and inviolate” and also Art.5 of the U.S. Constitution by which “No
State shall be deprived of its equal representation in the senate without consent.”Art.13
was thus intended to place the fundamental rights beyond the reach of even Constitution
Amendment. Secondly, the definition of law in Art.13(3) being inclusive definition must
necessarily include a Constitutional Amendment and hence a Constitutional Amendment
also comes with in the prohibition of Art.13 (2). A unanimous Bench of Five Judges
rejected both the contentions. The Court pointed out that the terms of Art.368 are
perfectly general and confer power on Parliament to amend the Constitution without
exception whatever. The terms of Art.13 (2) are also general. Hence by the rule of
Harmonious Construction, Art.13(2) should be read down so as to exclude a
Constitutional Amendment. Further, Court observed that, there is a well-recognised
distinction between Constitutional Law and Ordinary Law, the former being made in
exercise of constituent power while the latter is made in exercise of legislative power.
Hence, a constitutional amendment made under Art.368 will not come with in the
mischief of Art.13(2).

Another contention before the Court was that since the First Amendment
declares that certain kinds of law will not be void for violation of Fundamental

72
 Rights, the jurisdiction of Supreme Court and High Courts was to that extent
curtailed and therefore the First Amendment required ratification by the State
Legislatures under the Proviso to Art.368. The Court rejected the argument as
proceeding on a misconception that the First Amendment sought to make any
changes in Arts.226, 132 or 136. The powers of the Court under those Articles still
remain intact: only certain classes of cases have been excluded from the operation
of Art.13 so that there will be no occasion for the Courts to exercise their powers in
respect of those cases. Thus, the First Amendment, and the power of Parliament to
abridge or take away any of the Fundamental Rights by a constitutional amendment
made under Art.368, were upheld by an unanimous Court. After nearly fifteen years
of settled Constitutional law, a second attempt to challenge the power of Parliament
to amend the Fundamental Rights was made in Sajjan Singh v. State of
Rajasthan,writ petitions were filed impugning the

validity of the Constitution (Seventeenth Amendment) Act, 1964 as petitioners were

affected by one or the other Acts, added to the Ninth Schedule by the impugned
Amendment. It was argued that the impugned Amendment was invalid, as the impugned
Act passed by the Parliament was merely validating the land legislation already passed by
the State Legislature, falling within its jurisdiction. And also that the impugned Act
purported to set aside the decisions of Courts by adding to the Ninth Schedule, Acts,
which were declared to be invalid.

The Court held with respect to the question of powers of Parliament to

validate State laws, by amending the definition ‘estate’ in Art.31-A by the
Constitution (Seventeenth Amendment) Act, 1964, that even though land was in the
State list, Parliament was competent to enact Seventeenth Amendment if it has
power to amend Fundamental Rights. Court also held that, the constituent power
conferred by Art.368 on the Parliament could also be exercised both prospectively
and retrospectively.It was noted that Arts.31-A and 31-B were added to the
Constitution realizing that State legislative measures adopted by certain States for
giving effect to the policy of agrarian reforms have to face serious challenge in the
Courts of law on the ground that they contravene the Fundamental Rights
guaranteed to the citizen by Part III of the Constitution. The Court observed that the
genesis of the amendment made by adding Arts.31-A and 31-B is to assist the State

73
Legislatures to give effect to the economic policy to bring about much needed
agrarian reforms. It noted that if pith and substance test is to apply to the
amendment made, it would be clear that the Parliament is seeking to amend
fundamental rights solely with the object of removing any possible obstacle in the
fulfillment of the socio-economic policy viz. a policy in which the party in power
believes. Finally the Court upheld the Constitutional validity of the impugned
amendment.

In I.C. Golaknath v. State of Punjab case the validity of the Constitution

th
(17 Amendment) Act, 1964 was again challenged which inserted certain State
Acts in Ninth Schedule. This case is the most controversial one which dealt by the
Supreme Court relating to the right to property issue. The Supreme Court in this
land mark decision overruled the decision given in the Shankariprasad and Sajjan
Singh’s case. It held that the Parliament had no power from the date of this decision
to amend Part III of the Constitution so as to take away or abridge the fundamental
rights. Eleven Judges participated in this decision with the ratio being 6:5.The
judges were worried about the numerous amendments made to abridge the
fundamental rights since 1950. It apprehended that if the Courts were to hold that
the Parliament had power to take away fundamental rights a time might come when
these rights are completely eroded. Chief justice in this case applied the doctrine of
the prospective overruling and held that this decision will have only prospective
st th th
operation and, therefore, the 1 , 4 and 17 amendment will continue to be valid.
It means that all cases decided before the Golaknath’s case shall remain valid. In
order to remove difficulties created by Golaknath’s decision Parliament enacted the
th
24 Amendment.This Amendment added a new clause (4) to Art.13 which
provides that nothing in this Article shall be applied to any amendment of these
Constitution made under Art.368. It also inserted a new sub clause (1) of Art.368,
which provides that notwithstanding anything in the Constitution, Parliament may,
in exercise of its constituent power amend by way of addition, variation, or repeal
any provision of this Constitution in accordance with procedure laid down in the
th
Article. Thus the 24 Amendment restored the amending power of the Parliament.
th
The validity of the 24 Amendment was challenged in the case of Keshavananda
Bharathi v.State

74
of Kerala. It also challenged the validity of the Kerala land reform Act 1963. But during
the pendency of the petition the Kerala Land Reforms Act was placed in the Ninth
th
Schedule by the 29 Amendment.The question involved was the extent of the amending
power conferred by Art.368 of the Constitution. A special bench of the 13 judges were
constituted to hear the case. The Court by majority overruled by the Golaknath’s case
which denied Parliament the power to amend fundamental rights of citizens. It held that
th
the 24 Amendment merely made explicit which was implicit in the unamended Art.368.
The Court further held that under the Art.368, Parliament is not empowered to amend the
basic structure or framework of the Constitution. After the decision of the supreme court
nd
in Keshavananda Bharathi and Indira Gandhi cases the Constitution (42 Amendment)
Act, 1976, was passed which added two new clauses, namely, clause 4 of Art.368
Provided that ‘no Constitutional amendment (including the provision of part III) or
purporting to have been made under Art.368 whether before or after the commencement
nd
of the Constitution (42 Amendment) Act, 1976 shall be called in any court on any
ground’. Clause 5 of Art.368 removed any doubts about the scope of the amending power.
It declared that there shall be no limitations whatever on the constituent power of
Parliament to amend by way of addition, variation or repeal of the provisions of the
Constitution under this Article.

Thus by inserting this clause it was made clear that the basic structure of the
Constitution could be amended. In Minerva Mills v. Union of India, the Supreme
Court by 4 to 1 majority struck down clauses (4) and (5) of Art.368inserted by the
nd
42 Amendment, on the ground that these clauses destroyed the essential feature
of the basic structure of the Constitution. Since these clauses removed all
limitations on the amending power and there by

75
conferred an unlimited amending power, it was destructive of the basic structure of the
Constitution. The judgement of the Supreme Court thus makes it clear that the
Constitution and not the Parliament which is supreme in India. The Parliament owes its
existence to the Constitution and it cannot take priority over the Constitution. Therefore
this landmark decision ended the long controversy between courts and the executive.

In Waman Rao v. Union of India,the Supreme Court ruled by majority that

th
all laws and regulation included in the Ninth Schedule before 24 April, 1973
could not be challenged on the ground of being inconsistent with a Fundamental
th
Rights. But Acts and Regulation included in the Ninth Schedule after 24 April,
1973, would not be protected by Art.31-B for simple reason that because of
Keshavananda Bharathi case decision in which Constitution bench held “in every
case where Constitutional Amendment includes a laws in the Ninth Schedule, its
constitutional validity would have to be considered by reference to the basic
structure doctrine and such Constitutional Amendment would be liable to be
declared invalid to the extent to which it damages or destroys the basic structure of
the Constitution.

In Waman Rao case, judicial observation which create an ambiguity i.e.

Whether all Acts or Regulations which or a part of which, is or has been found by
the Supreme Court to be violation of any of the Arts.14, 19 and 21 can be included
in the Ninth Schedule and Whether it is only a Constitutional amendment,
amending the Ninth Schedule that damages or destroys the basic structure of the
Constitution that can be struck down.

The bench in I.R.Coelho case observed that the judgement in Waman Rao
case needed to be reconsidered by the Nine judges bench in view of certain
inconsistencies.

Development of Ninth Schedule in Post I.R.Coelho’s Case (old, 1999)

In the present study this case is of utmost importance as it is the recent case
relating to the confrontation of power between the Supreme Court and the
Parliament. The judgement in this case put an end to the politico-legal controversy
by holding the Parliament’s amending power subject to Judicial Review in line

76
with Kesavananda Bharti’s decision that the violation of Doctrine of Basic
Structure will not be considered.

The Nine-Judge bench headed by Y.K. Sabharwal, C.J.I., after a reference

being made to it by a Five-judge Bench has unanimously pronounced upon the
constitutional validity of the Ninth Schedule laws that, in the post-1973 era, they
are open to attack for causing the infraction which affects the basic structure of the
Constitution. Such laws will not get the protection of the Ninth Schedule for
escaping the judicial scrutiny and are open to challenge in the courts of law.

In this connection, the researcher has made an attempt to analyse the case by
stating the facts of the case, the issues involved, the contentions of the petitioner
and respondents and the concluding decision of the Apex Court which is most
important. The researcher has also placed the development of law that has been
considered by the Supreme Court.

I. R. Coelho v. State of Tamil Nadu (New, 2007)

The judgement by the Supreme Court in I.R.Coelho has initiated the thought
process among various segments and different interpretations have emerged. It is
an unanimous judgement of the nine judge bench of the Supreme Court of India,
wherein the Court is confronted with a very important yet not very easy task of
determining the nature and character of the protection provided by Art.31-B of the
Constitution of India to the laws added to the Ninth Schedule by amendments made
th
after 24 April 1973, the date on which the judgement was pronounced in the
Kesavananda Bharathi’s case propounding the doctrine of basic structure of the
Constitution to test the validity of constitutional amendments.

77
 THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS
(RECOGNITION OF FOREST RIGHTS) ACT 2006

The Doctrine of Terra Nullius has long supported appropriation of forest lands by the
Government over which no crystallized rights of property could be established by any
person/s.The forest department was set up by the British Government in the year 1864 and it
remains the greatest landlord in the country with about 23% of land in India being designated
as forest land.The appropriation of forestlands by the State has remained one of the biggest
reasons leading to the historical exploitation and deprivation of forest dwelling communities.
The Indian Government's initiative in the 1970s to introduce the Conservation of Forests and
Natural Ecosystems Bill failed and the Bill lapsed pushing consolidated forest legislation into
ignored areas of legislative business. The Indian Forests Act 1927 continued to be the
applicable legislation supplemented by the Forest Conservation Act of 1980 which further
riddled the status of forest dwelling communities. The said Acts did not recognize the rights
of the forest dwelling communities in the forestland and declared encroachment into
protected forests as a punishable offence.

The government overhauled its forest policy in the beginning of the millennium and the
most important sigh of relief came in the form of the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights Act) 2006 (hereinafter referred to as "the
Forest Rights Act") which recognizes the pre-existing customary rights of the forest dwellers
whether as individuals or as a group in the forest land. The Forest Rights Act seeks to
recognize the rights of over 200 million people in forestlands who were disfranchised during
the colonial era. The Forest Rights Act met with mixed reactions from various interested
groups. While the groups vouching for tribal rights acclaimed the scheme of the legislation, it
met with a great dissent from the forest bureaucracy and the conservationists who believed
that the surrender of control of the forests over to the tribal communities is hazardous to the
natural resources and forests of the country.

The Preamble of the Forest Rights Act recognizes the rights of the forest dwelling
communities in the forestlands. It seeks to vest the property over such land in the
communities inhabiting the land. The Preamble of the Forest Rights Act also recognizes that
the rights of these communities have not been recorded thereby contemplating that the proof
of possession may have to be other than documentary evidence. The Forest Rights Act not
only recognizes the right of the communities to gain title over their land but also radically
changes the forest policy of the country by vesting the authority and control of conservation
of these forests and its resources in the communities. The authority to conserve the forests
and its resources seeks to harmonize the concerns of the conservationists with those of the
tribals. However, the Act has not been well received by the conservationists who fear the
overexploitation of forests by the tribes.

While competing interests of tribal communities and conservationists hauled the debate
until lately, there is a growing concern parallel to the debate around the overall efficacy of the
78
 Act in delivering the tribal communities and their rights in land. These concerns arise from
the mechanisms employed by the Act in determining these rights and vesting the same in the
communities. Also, there has been a strong jurisprudential critique, which raises questions
challenging the conceptualization of welfare for the tribal communities via the medium of the
Act. The third source of the critique comes from the poor implementation of the Act and the
lack of willingness on the part of State Governments in implementation of the Act, resulting
in the overall poor delivery of results. Last, but not the least, various activists and jurists have
found the Act to be necessary but not sufficient.

Objectives of the Act

The objectives of the Forest Rights Act are laid out in the Preamble of the Act [5] and
seem ambitious considering the scenario in which the Act was passed. Some of the other
objectives of the Act, which can be deduced from the Preamble of the Act, are:

 To provide the Scheduled Tribes and other forest dwellers the right and responsibility for
sustainable use, conservation of biodiversity and maintenance of ecological balance.

 Strengthen the conservation regime of forestlands by making the forest dwellers a part of
the decision making process.

 Ensuring the livelihood and food security of the forest dwellers.

 To undo the historical injustice meted out to the forest dwellers by recognizing their right
to their ancestral land.

 To recognize that forest dwellers are fundamental to the sustainability of the forest
ecosystem.

 To address the insecurity of possession and access rights of forest dwellers including those
who were forced away from their homeland sue to developmental projects sanctioned by
the State.

The objectives set forth are historic in the sense that not only do they recognize for the
first time the rights of forest dwellers, but also that the Preamble of the Act recognizes the
short-comings of the Government in denying the forest dwellers their rights for so many
decades. Thus, the Act sees the forest jurisprudence in India moving away from the unjust
framework laid down by the British. The Forest Rights Act seeks to link the rights provided
to the forest dwellers under the Act with the authority for conservation and sustainable use,
using this as an opportunity to further enhance the forest conservation regime.The Forest
Rights Act does this without compromising on the livelihood and food security of the forest
dwellers and thus, the Act provides a platform for democratic decentralization of forest
governance in the country.

Salient Features of the Act

The Forest Rights Act was enacted to bring about two major reforms:

79
 i. Grant legal recognition to the rights of traditional forest dwellers, in an attempt to
correct injustice caused by the forest laws prior to the Forest Rights Act; and

ii. Taking the first step towards giving forest dwellers and the public some authority and
power in forest management and wildlife conservation.

Eligibility

Like any other welfare legislation in India, the most important aspect of the Act remains
identification of the beneficiaries or the persons entitled to the rights provided under the said
legislation. There are two qualifications a person, which are to be fulfilled in order to be
eligible to be granted rights under the Act.

The first qualification has two conditions:

i. Primarily residing in forests or forest lands; and

ii. Dependent on forests and forestland for his/her livelihood ("bona fide livelihood
needs").

To prove the aforesaid conditions, a person must not only have a place of residence
within the forest premises or in a forest village but also in occupation of a place for
cultivation, grazing purposes etc. Also, bona fide livelihood would imply non-commercial
profit, through the sale of crops or minor forest produce or income from water bodies, for
survival.

The second qualification runs thus:

i. To be declared as "Forest Dwelling Scheduled Tribe" (a) that you are a member of a
Scheduled Tribe; or (b) that you are residing in an area where they are Scheduled and

ii. To be as declared as "Other Traditional Forest Dweller" - that the conditions

mentioned above have been fulfilled for a minimum period of 75 years (3
generations) as of the 13th day of December 2005.

Being a member of the Scheduled Tribes community automatically qualifies an

individual for the benefits arising under the Act. However, any other person who is not a
member of any of the Scheduled Tribes can also be eligible under the Act if the person's
forefathers have resided in forests for 75 years.

Rights

Section 3 of the Forest Rights Act is the principal section, which recognizes four
principal forms of rights, viz., land rights or ownership rights, community rights and user
rights, management and conservation rights, and finally traditional and customary rights.
While the first type of rights is individual in nature, the other two types of rights are
communal rights, which are held by the community as a whole and exercised through the
common, will of the community expressed through the Panchayats constituted under the
Panchayat Extension to Scheduled Areas Act of 1994.

80
 Land Rights

Land rights under the Act are available only if the person claiming such right satisfies
the eligibility criteria laid out under the Act. No land right can be granted under the Act
unless the person was cultivating the land as on December 13, 2005. The Act further requires
that the land under cultivation by the claimant must be for personal cultivation by the
claimant.However, the Act covers lands under dispute between the claimants and the forest
department whereby such disputed land can be then transferred in favour of the claimant if
the eligibility criteria are met.The Act provides a ceiling limit of four hectares and the land
under cultivation up to four hectares can be granted under the Act.

User rights

User rights are the rights, which have been traditionally exercised by the communities
over forest resources such as drinking water, collection of minor forest produce, grazing
grounds, medicinal herbs etc. These rights are communal in nature and can be exercised by
all members of the community equally. The Act also provides for customary habitat rights for
primitive tribal groups who lead a nomadic lifestyle characterized by shifting cultivation. The
primitive tribal groups have been given a special status to exercise their rights in reserved and
protected forests also.The primitive tribal groups have historically remained most
marginalized even among the tribal communities and have been victims of private usurpation
of their resources by private forces.

The Act also converts all forest villages into revenue villages thereby bringing these
villages outside the jurisdiction of the forest department and allowing the state to
grant Pattas and other titles as per the ROR system. This conversion also ensures the delivery
of Government facilities and developmental activity benefits to these communities, which
were otherwise excluded by virtue of being under the jurisdiction of the forest department.

Management and Conservation Rights

The Act vests the communities with the right to conserve and manage forest
resources.This right has been lauded to be the most powerful right among the other rights
within the Act, which reinvests the control of the forests in the communities who have been
historically deprived of this right. This right is exercisable by the panchayats constituted
under the Panchayat Extension to Scheduled Areas Act. Section 3(1)(j) provides for the
saving of the rights recognized by any state laws and autonomous district councils in the
north eastern states through the operation of Schedule-V of the Constitution of India.

Traditional and Customary Rights

The Act finally recognizes the right of the communities over bio-diversity, traditional
knowledge and intellectual property of the community, which has been enshrined in customs,
and traditions of the community. Section 3(1) (l) recognizes other rights customarily
exercised by the communities over the bio-diversity in their habitat. However, the section
expressly excludes any hunting or poaching activities, which may have been customarily
undertaken by the community.

The Act recognizes a whole universe of rights, which the communities were historically
deprived of, and reinvests the same with the communities upon the proof of existence of the
rights. The rules provide for a diluted regime of evidence production for the establishment of

81
these rights making the Act an important and landmark legislation towards tribal welfare in
the country.

Critique of the Forest Rights Act

The Act marks a turning point in the history of tribal rights in India. However, it faces a
few very strong challenges. The most recurrent criticism against the Act has been the criteria
for the identification for forest dwelling communities. The Joint Committee on Schedule
Tribe presented its Report to the Parliament in the year 2005. The Committee recognized the
fact that the criteria of schedule tribes was only a post-constitutional concept and therefore
subscribing to it as the sole criteria could present problems for communities which have been
dwelling in forests and have not been identified as a scheduled tribe.

Legislative Challenges

The Act restricts its primary application to schedule tribes only. Schedule tribes are
recognized on a geographical basis thereby negating rights to non-schedule tribes in a
particular state and those tribes, which are, Scheduled Tribes in one state but not recognized
as scheduled tribes in another state. Further, the definition of ˜other forest dwelling
communities' sets impractical criteria for the identification of other forest dwellers. Under the
definition any person or community not being a schedule tribe has to prove occupation over
the forest area for at least 3 generation preceding December 2005. Each generation is defined
as 25 years thereby requiring the communities to present the proof of possession for more
than 75 years.

The provision was basically drafted following the strong resistance from the Ministry of
Tribal Affairs. The ministry feared that setting up a shorter period as criteria would dilute the
Act and allow non-tribals to claim ownership over the land under the Act. The provision sets
stricter criteria over the Ministry of Environment and Forests, which required proving
occupation since the year 1980 to crystallize forestland rights.However, the provision
presents us with various difficulties as there are no land records or forest records which
would present the case for the communities leaving oral evidence in the form of narratives
and testimonies which are not reliable before the court. The Act provides for the vesting of
community forest rights with the village assemblies established under the Panchayats
Extension to Scheduled Areas Act 1994. The Act failed to recognize the failure of PESA. The
Panchayats Extension to Scheduled Areas Act also provided for community forest rights
vesting in the Gram Sabhas however the provision was never implemented by the states.

Further, the Panchayats Extension to Scheduled Areas Act introduces

the Panchayati system, which is alien to many communities who prefer to stick to a more
traditional and often decentralized system.Also, the Panchayats Extension to Scheduled Areas
Act has assemblies' membership from the non-tribal communities who may interfere with the
administration of tribal resources falling within their jurisdiction, which has been
conveniently overlooked by the Act. The tribal population in a Gram Panchayat in the
Panchayats Extension to Scheduled Areas Act is limited to 50% thereby leaving substantial
opportunity for the non-tribal communities to exploit the community forest rights.

The Act waters down the recognition provided under the 1980 Ministry of
Environmental and Forest's circular. The Act provides for two kinds of rights- rights to land
and the rights over forests and forest produce. The individuals or the communities can claim
82
the former. The Act favours the ST tribals over the non-ST tribals and it limits the extent of
land to four hectares per family unlike in the 1990 guidelines, which do not provide for any
such limitation. Alongside, the implementation of Act has seen serious defects as most states
only recognize the rights on land and ignore the rights allowed over forests and forest
produce. The reading of the Forest Rights Act has been limited only to the first category of
rights and the little awareness among the departments and the communities has brought down
the overall efficacy of the Act.

The Act does not allow the tribal communities and persons in whom the rights vest, to
have any power of alienation or transfer of the property. Section 4(4) of the Act states that the
rights under the Act are inheritable but not alienable or transferable, however, the Act denies
any opportunity to the tribals to create any charge or mortgage on the property even in cases
of economic hardships or in cases of movement and resettlement. It must also be remembered
that the rights under the Act are subject to the eminent domain power of the state thereby
diluting the essence of the rights. Therefore, in light of the new Land Acquisition Act 2013
there is a hope of relief inasmuch the statute requires an overwhelming consent from the
community.

The Act further includes that Section 4(3) only allows persons under occupation of the
land to make a claim under the Act. If a certain person is not under the occupation of land at
the time when the Act came into force, he / she cannot make a claim under the Act.
Therefore, the Act does not address the historical injustices, which may have occurred
immediately before the enactment of the Act leading to the dispossession of land from certain
persons. Also, given the fact that most tribes follow shifting cultivation wherein it is difficult
to establish title on the basis of actual possession.

Further, another issue which arises relates to the status of the joint forest management
projects which worked through Joint Committees of State Forest Departments and the
community representatives. In Orissa and Gujarat the departments have vested the control of
such projects with the panchayats under the Panchayats Extension to Scheduled Areas Act
and the Forest Rights Act; however, there is no clarity as to the final status of the projects and
their Joint Forest Management Committee.

Issues Relating to Implementation

Besides these issues, serious challenges are faced by the Act due to the involvement of
three governmental authorities, i.e., the Ministry of Tribal Affairs, the Ministry of
Environment and Forest and the Department of Land Revenue, Government of
India. Interdepartmental conflicts, bureaucratic unwillingness and the lack of information and
publicity have severely hampered the implementation of the Act. In most cases the interests
of the forest department officials are not in consonance with those of the tribal community
and they often act under a conservationist attitude of limited human interferences thereby not
recognizing and often displacing tribal communities from demarcated forest areas.

The adverse attitude of the forest department towards the tribals has led to mass scale
deprivation in terms of the final settlements granted to the communities. A study in the
Wayanad district of Kerala indicates that 76% of the families received less than one acre of
land as settlement and only three families received the ceiling limit of four hectares. More
than 57% of the families received less than 50 % of the land upon settlement by the forest
department. The study reported that during the settlement process of community rights were
recognized and recorded by the department as no instructions regarding the same were passed
on to the officials. The entire exercise was concluded with the grant of Pattas by the revenue
department in favour of the families over small pieces of land insufficient to spare a living for
the families.

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 Further, it has been reported that in most states the procedure adopted by the forest
department to settle lands has been in absolute violation of the Act. According to survey, in
most cases the settlements were done at the panchayat levels whereas the Act specifically
requires the settlement process to be completed at the Gram Sabha level.Further, despite the
contribution of tribal women to the tribal economy through the collection of minor forest
produce, their participation has been limited in the settlement process. Rule (3) of the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Rules, 2007 requires the Gram Sabha to constitute a verification committee with 1/3rd of
being women members. However, most committees lack any women member and often the
requirement is waived on the grounds of there being no interested candidates.

The study by Council for Social Development reported that in most cases the forest
department overlooked the entire settlement process and exercised veto rights overturning the
decisions reached by the Gram Sabha unlike its supervisory role contemplated under the
Act.The Council for Social Development's study reported that in most cases the enquiry into
the title and settlement of land was dined in a hasty manner without proper procedure being
followed and often leading to the denial of claim. The lack of appeal left the tribals with no
recourse upon verification and denial and under Section 4(5) the department has been
empowered to evict the holders upon the completion of the process.

Implementation of community forest rights faces the most serious disregard. In most
cases, the district authorities ignored the community rights. This led to the community
resources being left to the management of none as the tribal sabhas continued to perceive that
the regulation of community forests vested with the government.The diversion of forest land
towards community forest rights also faces difficulties due to the hurdles presented by the
Forest Conservation Act 1980 and the Wildlife Protection Act 1972 which operate along with
the Forest Rights Act making regularization of rights in forest land more difficult.

The implementation of the Act faced the first major blow in the State of Andhra
Pradesh wherein in the year 2009, a petition was filed before the High Court contending the
act would lead to the degeneration of forests and was potentially subject to misuse. The
petition was filed by retired forest officials and led to the High Court granting a stay on the
issue of final titles, however, allowing the temporary settlement of lands in the favour of the
tribals.The High Court finally dismissed the petition subsequently and the appeal to the
Supreme Court awaits a rather unsympathetic hearing.The institutional displeasure with the
Act companioned with the inherent ambiguities in the Act has only led to the derailment of
the objectives of the Forest Rights Act.

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 Tribes, Land and Forests: Emerging Legal Implications with reference to
PESA and FRA

The objective of this paper is to highlight a series of policy developments that

influenced forest governance during pre- and postcolonial India. There is no
denying that colonial forest administration was revenue-centric and exploitative,
and thus recognized no rights and concessions for forest dwellers, especially
tribals. To address the common domain, this paper also briefly traces the history
of forest laws and policies in India (colonial and postcolonial) and their impacts on
tribal people, with particular focus on the two recent landmark legislations, the
Panchayat Extension to Scheduled Area Act (1996) and the Forest Rights Act
(2006) promulgated to recognize rights over forests and forest lands.

Forest is an integral part for triabls. They were used to cultivating land collectively
for their subsistence. Many engaged in shifting cultivation and did not cultivate a
given area for a long period. There is historical evidence of non-tribal landed
gentry continuously pushing tribals into the interior regions of forest and hills.
Many tribal owners thus became unrecorded tenants and/or labourers in the less
fertile highlands or bonded or semi-bonded labourers in the fertile lowlands or
forest areas. The British were primarily interested in timber and other incomes
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from forests, and therefore framed laws to evict the local inhabitants. Land
settlements were introduced and the state granted alienable title to land to
individual males on the payment of cash. The relationship with land was now
mediated by the state and the community ceased to exist in the eyes of the
courts. Until 1887 the main aim of the rulers was conquest with a strong military
thrust into the forest depths and hill tops. "Good governance" also led to the
administration opening up tribal areas to contractors, civil and military officers,
traders, alcohol vendors, timber contractors and merchants. In 1927 the
government passed the Indian Forest Act, under which it could constitute any

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forest or waste land which was the property of Government into a reserved area,
by issuing a notification. However, since the settlement of rights had not been
carried out, large areas remained un-surveyed. Unaware of administrative
complexities, most tribal cultivators remained without official land titles. Forest
areas were defined as reserved, protected and unclassified. Under the first, no
one was allowed to use any forest product without permission from the forest
department. In Gujarat 7 per cent of the land area is forested. Of this 71.26 per
cent falls within the reserved forest area. Adivasis as well as non-tribals who
were traditional cultivators without formal titles began to be treated as
encroachers.

The Wildlife Protection Act, 1972 provided for creation of protected Areas and
wildlife habitats whereby Adivasis lost access to lands and livelihoods based on
forests. Again, the settlements of rights were not carried out completely. Hence
all Adivasis became 'encroachers' when they cultivated lands they had tilled for
generations. The Forest Conservation Act acknowledged "the traditional right of
the tribal people on forest land", but no effort was made to protect these rights.
The forest department continued to treat Adivais as encroachers and destroyed
their crops. Moreover the department began plantations on tribal land as a
strategy to evict them.

Pre-independence Forest History in India

The state and local communities have competed fiercely over Indian forests.
Colonial forest policy changed the relationship between forest dwelling
communities and forests changing the way forests were perceived and owned.
The colonial state established property rights over forests in the 1860s, prior to
which usufruct was unrestricted. Today, forests continue to be state property and
control over them rests with the Forest Department (FD). Ramachandra Guha
(1983) has argued that before 1947, our forests served the strategic interests of
British imperialism. After independence, they served the needs of the mercantile
and industrial bourgeoisie. Colonial forest policies in India had begun to take
concrete shape around the middle of the nineteenth century, when in keeping
with the bourgeois outlook towards forests, the British turned towards maximising
the revenue. Down to the middle of the nineteenth century, traditional dues and
cesses, which accrued to the colonial rulers, were the main source of forest
revenues to the British.
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In 1850, a commission mandated by the colonial administration prepared a report
that concluded that Indian forests were being destroyed because of
mismanagement by the local people (Agarwal, 1985). Consequently a full-fledged
forest department was created in 1864. From then onwards, the assertion of state
monopoly and the exclusion of forest communities marked the organising
principles of forest administration. Towards this end, the first Forest Act was
passed in 1865. As commercial considerations and revenue generation became
overriding, this was found inadequate and replaced by a much more repressive
Act in 1878. In fact, all provisions of the 1865 Act were found to be defective,
except Section 8, which according to Baden-Powell, chief architect of the 1878
Act, "gives the one satisfactory power in the Act, and must be maintained in the
new law; arrest without warrant is absolutely essential" (Guha, 1983, p. 1941).
The 1878 Act was a comprehensive document. Compared to the previous
legislation the new Act was entirely different in form and content. While the 1865
Act had only 19 Sections, the 1878 Act had 83 Sections, divided into 14 Chapters
and a Preamble. For the 1878 Act, establishment of absolute state property rights
and so a firm settlement between the state and its subjects over their respective
rights in the forests represented the chief concern. As Brandis put it, "Act VII of
1865 is incomplete in many respects – the most important omission being the
absence of all provisions regarding the definition, regulation, commutation and
extinction of customary rights…[by the state]…" (Guha, 1983, p.1944).

Thus, the establishment of state property and the separation of customary rights
became primary objectives of the 1878 Act. Towards this end, the classification of
forests into reserved forests, protected forests and village forests – and the
procedure for forest settlement in these, were the twin features. The demarcation,
an inherent feature of the definition of forests, is based purely on administrative
grounds. However, commerce was the guiding principle. In reserved forests
(Chapter II), lands were the absolute property of the government. In protected
forests (Chapter IV), although lands were the property of the government, the
use-rights of the villagers remained. In village forests (Chapter III), the
government held only the rights of management. Village forests consisted of
residual wastelands with negligible forest department control. The
reserved/protected classification was guided by the goal of profit from timber. In
village forests, profit was absent. To begin with only areas needed for national
requirements and for export to England were designated as reserved. However, it
was not possible to assess these needs immediately. With time, the area under

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89
reserved forests increased. Protected forests were designated with the goal of
converting them into reserved forests. Such conversion took place as the
demand for forest resources increased. There were 14,000 square miles of state
forests in 1878. This increased to 56,000 square miles of reserved forests and
20,000 square miles of protected forests in 1890 and to 81,400 and 8,300 square
miles respectively in 1900 (Gadgil and Guha, 1992, p. 134). The several
amendments to the 1878 Act and the ambiguous language used necessitated a
single piece of legislation that would do away with ambivalence. This led to the
promulgation of the 1927 Act. In fact, the differences between the Acts of 1927
Act and 1878 (read along with the various amendments) are minor.

The 1927 Act continues to be the basis of Indian forest legis1ation. The Indian
Forest Act of 1927 is timber oriented. Its title says "An Act to consolidate the law
relating to forests, the transit of forest produce and the duty leviable on timber
and other forest produce". There is no mention of conservation. According to the
Act, no person can claim a right to private property in forested land merely
because he is domiciled there, or his forefathers lived there for centuries. Nor do
such people have any rights over forest produce. The purpose behind the Forest
Act is clearly to lay down the procedure by which the government can acquire
property and generate revenue from it. Two fundamental issues can be identified.
The first pertains to the method by which government acquires land, the nature of
its control over it, and the way it may negotiate its proprietary rights with existing
rights holders and claimants. The second pertains to the control of timber and
other forest produce in transit, the duty leviable on them and the collection of drift
and stranded timber.

Forest Policy after Independence

The government of India announced its Forest Policy in 1952. Prior to this, one of
the prime concerns of the forest department had been to increase revenue
generation from forests. The Forest Policy added the objective of increasing
forest cover. It envisaged a tree cover of 33 percent of the total geographical
area, regardless of the composition of the forests, and regardless of the opinions
of, and impact upon forest-dependent communities. Consequently, eucalyptus
was planted in various places throughout the country. (Vira, Bhaskar, 1995) On
the other hand, forests were recognised as useful for the needs of the mercantile
and industrial bourgeoisie - increased forest cover meant increased availability of
forest products, especially timber. Government short-sightedness after
independence was also evident in the failure to amend the Act of 1878. The 1894
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policy had spoken of the rights of rural communities over forest produce.
Gradually this came to mean ‘rights and privileges’, which were given legal status
in the Indian Forest Act of 1927. The sovereign government of India could have
undone the damage, instead of which its 1952 policy adopted the phrase "rights
and concessions." Forests were not perceived as a whole, and the focus was on
timber, which is but a component of a complex whole. The colonial government
had turned land without individual titles into state property, and forest dwellers
into ‘encroachers’. After independence, the process intensified. As a result tree
cover declined from 70 million ha in 1950 to 35 million ha in 1990.

In 1961, at the start of Third Five Year Plan, it had been recognized that there
was a large and growing gap between the demand and supply of forest produce.
The plan estimated that by 1975, the shortfall of fuel wood would be 100 million
tones. Despite this, nearly 75 percent of the Third Plan outlay on afforestation
was targeted towards production forestry. During the 1960s, a massive
programme was initiated to clear existing forests, which were to be replaced by
monoculture plantation of fast growing commercially useful species,
predominantly eucalyptus and tropical pine. This process continued till the end of
the Fifth Plan, with an emphasis on self-sufficiency in commercial products,
especially pulp, newsprint, wood panel products and matches. Through this
period, forests generated high revenues for the state. The Forest Department’s
surplus increased from Rs. 133.9 million annually, averaged over 1951-52 to Rs.
1547.2 million in 1980-81.

Afforestation was an important component of state-initiated forestry programs,

and comprised 50.06% of total public sector outlay in forests between 1951 and
1980. The Fourth Five Year Plan stressed the need to achieve self-sufficiency in
forest products, especially those required by forest-based industries and
proposed greater efforts at creating large scale plantations of quick-growing
species and species of economic and industrial importance. By the start of the
Fifth Five Year Plan in 1974-75, of the total outlay on afforestation, 80.40 percent
had been spent on production forestry, which accounted for 65.14 percent of the
physical area covered. The need to accelerate these efforts was emphasized by
the National Commission on Agriculture in 1976, which suggested the use of
forest lands for production forestry to meet industrial needs. The report
suggested the establishment of State Forest Development Corporations in order

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to attract institutional funding for industrial forestry. To lighten the burden on
production forestry, the report recommended a programmme of social forestry in

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non-forest areas, private farms and community lands to meet the subsistence
needs of rural populations. This programmme had two components: farm
forestry, targeted at private landholders; and community forestry, linked to
various categories of public and community land, excluding forest land. The
Forest Development Corporation was established in different provinces to
promote production forestry. All these corporations depended upon industrial
finance as well as re-investment of profits. The space opened up by felling was
used for the monoculture of quick growing species. Natural forests were on their
way to being replaced by man-made plantations. But the policy was doomed from
the start, because conservation or exploitation of forests requires the scientific
understanding of delicately balanced forest ecology. The results have indeed
been catastrophical. Thus there has been continuous process of decreasing
forest which forced government to enact the law in 1980 which had direct impact
on forest dwelling communities i.e. Adivasis of India.

The Forest Conservation Act 1980 and its Impact on Forest Dwellers

The Forest Conservation Act of 1980 (FCA) was a crisis-driven response. It was
introduced by Prime Minister Indira Gandhi in the 1970's, when remote sensing
data showed a remarkable decline in forest cover (about one million hectares a
year over the decade). The Act was promulgated to stop the use of forestlands
for roads, dams and buildings. The central government now had sole authority for
granting such permissions. The result was that state governments neglected
small but important activities and requirements of villagers to build schools,
electric poles or bridges. As a result, Uttarakhand, the very area which gave birth
to the Chipko movement saw a Jangal Kato (forest felling) Andolan in the 1980s
against the Act. The FCA was a two-page document that strengthened the 1927
Act empowers the Minister to make decisions about forest lands. It is a law on
land use and its implementation depends upon the whims of the minister. Further,
it only forbids "reserve forests" from being denotified by the states. The Act’s
mandate even extends to lands for which only notifications under Section 4 of the
Indian Forest Act (IFA) have so far been issued ( Section 4 (1) (c ) of the IFA of
1927. This declares the state’s intention to reserve an area as a forest, and
requires appointment of the forest settlement officer (FSO) to settle claims of pre-
existing occupants and users. This safety clause has often been dispensed with.
An area is formally notified as a forest only after the formalities associated with
Section 20 and 29 are completed). Areas recorded as ‘forests’ in any government
record also comes under the Act’s purview. As neither the IFA nor the FCA
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defined a "forest’, on 12-12-1996 the Supreme Court ruled (Godavarman case)
that the Act’s provisions would apply to any area conforming to the dictionary
definition, irrespective of ownership. This also includes all lands entered in any
government record as ‘forest’, whether or not that land has any tree cover and
whether or not preliminary notifications were issued. It also applies to all
community-managed forests on revenue lands – forests which have been
maintained and nurtured precisely because villagers did not follow the forest
department’s ‘scientific forestry’ prescriptions, which would have involved clear
felling and mono-cultural plantations for sustained yield of timber.

Given the disarray in government land records, and the diverse categories of land
in different contexts for which the term ‘forest’ has used in them, a very wide
range of common lands critical for local livelihoods could now be brought under
the ‘scientific’ management of the forest department’s ‘working plans’. There is no
requirement to verify the current status of these lands, whether any forest on
them ever existed in the past or still exist, the rights people enjoy in them or the
function thesae lands play in people’s livelihoods. The Court does not seem to
have noticed that many of these lands are riddled with disputes, including
pending claims for land rights by their indigenous inhabitants.

Due to non-recognition of their rights, tribal people (as per FCA 1980) who were
rooted in forests for ages, came to be looked upon as encroachers. The threat of
eviction looms large in their psyche. This historical injustice and insecurity is the
reason why tribal communities feel emotionally and physically alienated from
government. Tribals, NGOs and radical activists have protested against the Act.
They have argued that the FCA’s aim was to deny customary rights over natural
resources, and to exploit resources under state forestry, which resulted in the
degradation of forests. There were series of protests all over the country against
this Act by tribals and NGOs activists, and the government was compelled to
address their demands. The National Forest Policy, 1988 stresses that forests
are first charge to tribal communities. Their livelihood needs are paramount and
superior to commercial needs. While recognizing the symbiotic relationship
between tribal people and forests, the policy also safeguards the customary
rights and interests of tribal people and dwellers on forest lands. This policy
provided for the association of tribal people with the protection, regeneration and
development of forests with a view to providing gainful employment to people
living in and around forests, with special attention to:

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(i) Replacement of contractors by tribal cooperatives,

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(ii) Protection, regeneration and optimum collection of minor forest produce
along with institutional arrangements for marketing.

(iii) Development of forest villages on par with revenue villages, family-

oriented schemes for improving the status of tribal beneficiaries, and;

(iv) Undertaking integrated area-development programmes to support the

tribal economy.

The requirements of forest-dependent communities now acquired a priority. In

order to fulfill the commitments enshrined in the 1988 policy, the Central Ministry
of Environment and Forest (MoEF) issued 6 circulars on 18-9-1990 for the
settlement of disputed claims. As per these circulars, pre-1980 encroachments
on forest lands were eligible for regularization provided the State Governments
had evolved eligibility criteria in accordance with local needs and conditions and
had decided to regularize such encroachments. These Circulars provided for:

1. Appointment of joint teams of Revenue, Forest and Tribal Welfare Deptt.;

2. Involvement of Gram Sabhas;

3. Banning agriculture practices on certain slopes; claims established through

proper inquiry;

4. Demarcation of land to be restored to the claimant-no ceiling on size of

holding;

5. Proposal for de-notification of forest lands along with the proposal for
compensatory afforestation;

6. Elimination of intermediaries and replacement of contractors by tribal

cooperatives, etc;

7. Protection of tribals and non-engagement of outside labour in forestry

activities;

8. Conversion of forest villages in remote and inaccessible forest areas into

revenue villages with a view to providing uninterrupted manpower for
forestry operations;

9. An acceptance that it would not be appropriate to deny inhabitants of forest

villages legitimate rights over lands allotted to them decades ago for
settlement and have been continuously their occupation since then;

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10. Restricting admissible evidences mainly to first Offence Report and thus in
practical terms denying recognition.

However, the MoEF could not implement its decision wholly or partly due to
enactment of the FCA 1980. The 1988 amendment to the FCA 1980 places all
forestland under the jurisdiction of the forest department. Thus while on one hand

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the Indian government has adopted a policy sympathetic to the needs of the
forest dwellers, on the other it has enacted laws that restrict access of these
people to the forest. Putting this situation in perspective the environmentalist
Singh noted that "In the case of the government of India, the left hand does not
know what the right hand is doing. As regards forest development, the right hand
is undoing what the left hand is trying to do."

Evolution and Implications Pro-Tribal Forest Legislations in India

Since the primary intention of colonial laws was to take over lands and deny the
rights of communities, the “settlement” process initiated during the late nineteenth
and early twentieth centuries was hardly effective. Surveys were often incomplete
or not done (82.9% of Madhya Pradesh’s forest blocks have not been surveyed
to date, while in Orissa more than 40% of State forests are “deemed” reserved
forests where no settlement of rights took place). Where the claims process did
occur, the rights of socially weaker communities—particularly tribals—were rarely
recorded. The problem became worse particularly after Independence, when the
lands declared “forests” by the Princely States, the zamindars, and the private
owners were transferred to the Forest Department through blanket notifications.
In short, what the Government records called “forests” often included large areas
of land that were not and never were forest at all. Moreover, those areas that
were in fact forest included the traditional homelands of communities. As such
consolidation of Government forests did not settle existing claims on land; all
people, mostly tribals, who lived in these forests, were subsequently declared
“encroachers,” as they did not have recognized rights and claims to their
ancestral homelands.

Panchayats Extension to Schedule Areas Act, 1996

During the 1990s, the Eminent Domain of the Government was challenged by
activists and human rights movements. Rights of the tribals over local resources
were considered sacrosanct and nonnegotiable and a move was initiated to
secure Constitutional recognition for these rights. The sustained campaign led
first to the 73rd Amendment of the Constitution to give recognition to
decentralized governance in rural areas and then the constitution of the Bhuria
Committee to look at tribal rights over resources through extension of the
provisions of this Amendment to the Schedule V areas. Based on the
recommendations of the committee, Parliament passed a separate legislation in

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1996 as an annexure to the 73rd Amendment specifying special provisions for
Panchayats5 in Schedule V areas. Known as the Panchayats Extension to

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Schedule Areas6 (PESA), 1996, it decentralized existing approaches to forest
governance by bringing the Gram Sabha center stage and recognized the
traditional rights of tribals over “community resources”—meaning land, water, and
forests. PESA was important not just because it provided for a wide range of
rights and privileges, but also because it provided a principle as well as a basis
for future law making concerning the tribals. According to the Central Government
law, the states promulgated their own laws supposedly giving rights to tribals over
local resources. It is almost two decades since PESA came into effect, but the
obstacles in enforcing its provisions have remained largely unaddressed. Its
avowed objective of power to the people has yet to take shape. The states are
struggling to devise definitive procedures to define rights over forests and minor
forest produce. Meanwhile, some states like Maharastra, Gujurat, and Orissa, in
an effort to perpetuate State control over forest resources, tried to dilute the
provisions of PESA although they had no legal jurisdiction to do so .

With regards to implementation of PESA our study revealed that not a single
provision of PESA has been implemented after two decades of its introduction.
There are some contradictions with regards to provisions of PESA and ground
realities existed in Gujarat.

These can be summarised as:

1. Tribal’s area of Gujarat are having less minerals except lime and stones
there are no other minerals found in tribal area of Gujarat. Due to this
important provision of PESA about regulation of minerals by Gram Sabha is
of no use.

2. Gujarat being high industrial and urbanised state coupled with various
socio-religious and Gandhian movements tribal age-old traditions, culture
and their own social system have been disappeared or wiped out by
external forces hence protecting culture and traditions is not a important
aspect.

3. There is a anomaly in transferring tribal land to non-tribal. Earlier the power

was rested with district collector but after government has modified this
provision and power has been given to the president of district panchayat.
Further, in earlier provision only tribal land could be transfer to tribal but

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under the new provision even tribal land can be transfer to non-tribal also.
Due to this, many small and marginal tribal farmers have lot their land.

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4. In Gujarat there is a prohibition act since long hence regulating prohibition
through Gram Sabha has no meaning.

5. With regards to regulating money lenders in tribal area through Gram

Sabha is important provision but our study found out that tribal elites are
very much involved in money lending to their fellow tribals. Gram Sabha
cannot do anything in this situation.

There are four points that need particular emphasis here. First there are critical
omissions of some of the fundamental principles without which the spirit of PESA
can never be realized. Secondly, the state legislations, perhaps by design, twist
certain words from the Central PESA that has resulted in powers being taken
away from the Gram Sabha – the collectivity of all village adults where the need
for empowerment is most critical for making local self-governance a reality in the
Country especially in relation to managing common pool resources. Thirdly, even
where it affirmed some provisions of the law in principle, their applicability was
made subject to framing of rules/ orders or “as may be prescribed.” As stated
earlier, such enabling rules are not yet in place in most cases. Finally, few rules
and prescriptions began to surface in early 2000 primarily through revocable
official circulars but which again have been totally inoperative because of the
ambiguity and lack of clarity of these provisions. Thus it is not surprising that
even these are waiting to be taken to the ground. The operative provisions being
not in place, a promising radical law has been reduced largely to a paper law.

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People Movements against Repressive Forest Laws and enactment of FRA-
2006

The policy relating to forest underwent a sea change in 1988. The role of the
village communities in the preservation and management of the forests came to
be recognized. This historical turnaround gave birth to the policy of Joint Forest
Management (JFM). The JFM implies the handing over certain rights to village
communities to appropriate natural resources for their own use, However, the
lack of a clear definition of the rights holders and the kinds of rights and sanctions
that can be applied has impeded the process of establishing social institutions.
The policy failed to understand social and economic features at local level and
user’s responses to changes. One reason for the failure of the JFM is its top-
down approach, and lack of people’s participation in planning. On the other hand
there has been an effort to regularize forest lands that tribals had long been
cultivating. But every one of these efforts stayed within the existing structure.
Some regularization orders even required proof that the claimant had earlier been
booked for ‘encroachment’. As per MoEF figure in response to Starred question
no. 284 in Lok Sabhaa, 16.8.2004, the total area under pre-1980 eligible
encroachment regularized so far is 3.66 lakh hectare against the 13.43 hectare of
forest land is under encroachment in the country.

The consequences of this failure became apparent on 3 May 2002, when the
Inspector General of Forests (IGF) wrote to the Chief Secretaries of all State
Governments informing them that in response to the problem of encroachment
raised in the Godaverman Thirumulpad vs Union of India case (Interlocutory
Application No. 703, Writ Petition No. 202/95), the Supreme Court had (23
November 2001) restrained the Central Government from regularizing
encroachments without its permission. The letter directed State authorities to
prepare a time-bound programmme for summary eviction of all encroachments
not eligible for regularization as per the Ministry’s 1990 guidelines by 30
September. In the month following this letter, forced evictions of adivasis
occurred across the country at a scale unprecedented in recent history. 40,000
families were evicted in Assam and the countrywide total was estimated at 3 lakh
families. Adivasis were evicted from about 1.52 lakhs hectares of forest area.
These mass evictions triggered the first real steps forward. In Maharastra, after a
demonstration by more than one lakh tribals in Mumbai on October 10, 2002, the
government announced new regulations that recognized tribal rights over forest
lands. But this was not replicated elsewhere in the country. People’s movements
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and organizations now began organizing to resist evictions. Some organizations
filed interventions before the Supreme Court, while others filed applications
before the Central Empowered Committee. But most importantly, concerted
resistance via protest demonstrations, Jail Bharo Andolans, and written counter
replies to the forest department’s eviction notices amplified people’s views on this
issue. "There are no adivasis without forests and no forest without adivasis, we
are one. We will not give up our rights. Try and evict us!"

The gross violation of democratic rights of Adivasis and other forest communities
by the forest department continues to be a matter of grave concern. It is in this
context that the Campaign for Survival and Dignity (CSD) organized a Public
Hearing in Delhi on 19-20 July 2003. The CSD, a federation of tribal and forest
community organizations from 10 states, merged to resist evictions.
Subsequently, the NDA government issued two circulars (stayed by the Supreme
Court). The UPA government’s Common Minimum Programme called for a halt to
evictions. Forest issues had acquired national status Responding to the Supreme
Court stay, in July 2004, the MoEF filed an affidavit in which it admitted that forest
communities had suffered a "historical injustice" and that the "rural poor,
especially tribals, had been deprived of their livelihood rights". The Ministry did
nothing to follow up on this admission, but in January, following pressure from the
CSD, other indigenous groups demand and UPA government commitment to
implement its common minimum programmes, the Prime Minister directed the
ministry of tribal affairs to draft a law on forest rights. The choice of Ministry was
another popular victory - the government accepted that forest authorities would
not and could not draft a just law.

Forest Right Act 2006

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of

Forest Rights) Act 2006, popularly known as the Forest Rights Act (FRA), is a
watershed in the hard-fought and prolonged struggle of adivasis and other forest
dwellers of India. The new law attempts to right that historic injustice and gives
forest communities a primary role in forest management. The statement of object
and reason (SOR) of the FRA, attributed the delay in recognising forest rights to
colonial rule which had ignored this reality for economic gain. The SOR admitted
that after Independence, in its enthusiasm to protect natural resources, the state
had persisted with colonial practices. The simplicity of tribal people and their

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general ignorance of modern regulatory frameworks precluded them from
asserting their genuine claims. The SOR suggested that insecurity of tenure and

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fear of eviction had engendered a sense of alienation amongst tribal communities.
The SOR explained the rationale of the FRA in terms of vesting forest rights and
occupation of forest land with forest-dwelling communities who were integral to the
survival and sustainability of the forest ecosystem, but whose rights could not be
recorded. The FRA’s salient features are as follows:

1. The Act recognises and vests rights and occupation in forest land in forest-
dwelling Scheduled Tribes and other traditional forest-dwellers who have
resided in such forests for generations but whose rights were not recorded.

2. The Act provides for recognition of forest rights of other traditional forest-
dwellers provided they have for at least three generations prior to
13.12.2005 primarily resided in and have depended on the forest or
forestlands for bona-fide livelihood needs. A generation would mean a
period of 25 years.

3. The cut-off date for the recognition and vesting of forest rights under the Act
will be 13.12.2005.

4. The Act provides for the ceiling of occupation of forestland for purposes of
recognition of forest rights to the area under occupation and in no case
exceeding an area of four hectares.

5. The Act provides for conferring rights in national parks and sanctuaries
habitat.

6. The Act provides for the right to hold and live in forest land under individual
or common occupation for habitation or for self-cultivation for livelihood by a
member or members of forest-dwelling Scheduled Tribes and other
traditional forest-dwellers.

7. The Act recognises the right of ownership access to collect, use and
dispose of minor forest produce which was traditionally collected within or
outside village boundaries. The Act defines minor forest produce to include
all non-timber forest produce of plant origin, including bamboo, brush wood,
stumps, cane, tussar, cocoons, honey, wax, lac, tendu or kendu leaves,
medicinal plants and herbs roots and tubers.

8. The Act recognises the right to in situ rehabilitation including alternative

land in cases where Scheduled Tribes and other traditional forest-dwellers

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have been illegally evicted or displaced from forestland of any description
without granting their legal entitlement to rehabilitation prior to 13.12.2005.

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9. The Act provides for forest rights relating to government providing for
diversion of forest land for schools, hospitals, anganwadis, drinking water,
water pipelines, roads, electric and telecommunications lines.

10. The rights conferred under the Act are heritable but not alienable or
transferable and to be registered jointly in the name of both spouses in the
case of married persons and a single head in the case of households
headed by a single person. In the absence of a direct heir the heritable right
shall pass on to the next of kin.

11. The Act provides that no member of a forest-dwelling Scheduled Tribes or

other traditional forest-dwellers shall be evicted or removed from forest land
under his occupation until the recognition and verification procedure is
completed.

12. Gram sabhas have been designated as competent authorities for initiating
the process of determining the nature and extent of individual or community
forest rights or both that may be given to forest dwellers.

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