W.P(C) No.26691 of 2010, etc.

having been reserved for consideration of the President and

having been assented on 25.4.2005, the 2003 enactment is saved by virtue of Article 254(2)
of the Constitution. We thus do not accept the submission of the learned counsel for the
petitioners that the 2003 Act is repugnant to various Central enactments as referred to
above.

51. One more submission of the petitioners needs to be noted is whether the 2003 Act
violates Article 253 of the Constitution. Article 253 of the Constitution as noted above
empowered the Parliament to make any law for the whole or any part of the territory of
India for implementing any treaty, agreement or convention with any other country or
countries or any decision made at any International conference, Association or other body.
There cannot be any dispute to the ambit and scope of Article 253 of the Constitution and
empowerment of the Parliament to legislate. The 2003
W.P(C) No.26691 of 2010, etc. enactment cannot be held to be an enactment to give effect
to any International agreement. As noted above, Article 48A of the directive principle of
state policy has to be implemented by the legislature while making its policies and laws.
Article 48A of the Constitution was inserted in the Constitution by the 42nd Amendment
Act, 1976 in recognition of and consequent to various International declarations and
conferences. The Stock Holme Declaration on the Human Rights in the United Nation
conference from 5 to 16 June, 1972, one of the principal International declarations was a
factor in the insertion of Article 48A in the Constitution. But it cannot be said that the 2003
enactment has been enacted by the State Legislature to give effect to any international
agreement. Submission of the learned counsel that the 2003 Act violates Article 253 of the
Constitution thus cannot be accepted.

ISSUE NO.IV:
 W.P(C) No.26691 of 2010, etc.

52. The submission of the petitioners is that Act, 2003 is violative of Article 14 of the
Constitution of India.

Protection under Article 31A of the Constitution of India is not available to the Act, 2003, since it is not
an Act relating to agrarian reform. A reference to the preamble of the Act, 2003 will show that it has
nothing to do with the agrarian reform. Thus the Act is not protected from challenge on the ground that
it violates Articles 14 and 19 of the Constitution. The Act denies compensation to the lands declared as
ecologically fragile in terms of Section 3(1) of the Act, 2003 while compensation is payable to land
notified under Section 4(2) of the Act, which is unsustainable. The question is as to whether the Act,
2003 can be saved with the aid of Article 31A of the Constitution. Article 31A of the Constitution is as
follows:
"31-A. Saving of laws providing for acquisition of estates, etc.--[(1) Notwithstanding
anything contained in Article 13, no law providing for--
W.P(C) No.26691 of 2010, etc.

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment
or modification of any such rights, or

(b) the taking over of the management of any property by the State for a limited period
either in the public interest or in order to secure the proper management of the property, or

(c) the amalgamation of two or more corporations either in the public interest or in order to
secure the proper management of any of the corporations, or

(d) the extinguishment or modification of any rights of managing agents, secretaries and
treasurers, managing directors, directors or managers of corporations, or of any voting
rights of shareholders thereof, or

(e) the extinguishment or modification of any rights accruing by virtue of any agreement,
lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or
the premature termination or cancellation of any such agreement, lease or licence, shall 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 or Article 19]:

Provided that where such law is a law made by the Legislature of a State, the provisions of
this article shall not apply thereto unless such law, having been reserved for the
consideration of the President, has received his assent:] [Provided further that where any
law makes any
 W.P(C) No.26691 of 2010, etc. provision for the acquisition by the State of any estate and
where any land comprised therein is held by a person under his personal cultivation, it shall
not be lawful for the State to acquire any portion of such land as is within the ceiling limit
applicable to him under any law for the time being in force or any building or structure
standing thereon or appurtenant thereto, unless the law relating to the acquisition of such
land, building or structure, provides for payment of compensation at a rate which shall not
be less than the market value thereof.] (2) In this article,--

[(a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression
or its local equivalent has in the existing law relating to land tenures in force in that area and shall also
include--
(i) any jagir, inam or muafi or other similar grant and in the States of [Tamil Nadu] and Kerala, any
janmam right;
(ii) any land held under ryotwari settlement;
(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste
land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of
land, agricultural labourers and village artisans;]
(b) the expression "rights", in relation to an estate, shall include any rights vesting in a proprietor, sub-
proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat] or other intermediary and any rights or
W.P(C) No.26691 of 2010, etc. privileges in respect of land revenue."
53. Article 31A of the Constitution was introduced in the Constitution by the Constitution (First
Amendment) Act, 1951. As it originally stood, the said Article only provided that no law affecting
rights of any proprietor or intermediate holder in any estate shall be void on the ground that it is
inconsistent with any of the fundamental rights included in Part III of the Constitution. Article 31A of
the Constitution was further amended by the Constitution (fourth Amendment) Act, 1955. The object of
the amendment was explained in the statement of objects and reasons for Constitution (fourth
Amendment) Act, 1955. The statement of objects reads as follows:
"It will be recalled that the Zamindari abolition laws which came first in our programme of
social welfare legislation were attacked by the interests affected mainly with reference to
Articles 14, 19 and 31, and that in order to put an end to the dilatory and wasteful litigation
and place these laws above challenge in the courts, Articles
 W.P(C) No.26691 of 2010, etc. 31A and 31B and the Ninth Schedule were enacted by the
Constitution (First Amendment) Act. Subsequent judicial decisions interpreting Articles 14,
19 and 31 have raised serious difficulties in the way of the Union and the States putting
through other and equally important social welfare legislation on the desired lines, e.g., the
following:

(i) While the abolition of Zamindaries and the numerous intermediaries between the State
and the tiller of the soil has been achieved for the most part, our next objectives in land
reform are the fixing of limits to the extent of agricultural land that may be owned or
occupied by any person, the disposal of any land held in excess of the prescribed maximum
and the further modification of the rights of land owners and tenants in agricultural
holdings.

xx xx xx It is accordingly proposed in clause 3 of the Bill to extend the scope of Article

31A so as to cover these categories of essential welfare legislation."

54. The Apex Court in two earlier judgments, i.e., Sri Ram Ram Narain v. state of Bombay (AIR 1959
SC 459) and Atma Ram v. State of Punjab (AIR 1959 SC 519) had held that Article 31A of the
Constitution had been enacted to save legislation affecting agrarian
W.P(C) No.26691 of 2010, etc. reforms. In Atma Ram's case (Supra) the following was laid down at
page 526:
"Keeping in view the fact that Article 31A was enacted by two successive amendments -
one in 1951 (First amendment), and the second in 1955 (Fourth Amendment) - with
retrospective effect, in order to save legislation effecting agrarian reforms, we have every
reason to hold that those expressions have been used in their widest amplitude, consistent
with the purpose behind those amendments".

55. A Constitution Bench of this Court had occasion to consider Article 31A in Kavalappa Kochuny v.
State of Madras & others (AIR 1960 SC 1080). In the above case, validity of the Madras
Marumakkathayam (Removal of Doubts) Act (32 of 1955) was challenged. In 1955 Act the legislature
confers shares in the property on other members of the Tarwad. It declares particular sthanams to have
always been Tarwads. The result was that the sole title of the sthanee is not recognised and the
members of the Tarwad were given rights therein. That was challenged
W.P(C) No.26691 of 2010, etc. by sthanee on the ground that it has extinguished its right and title in
the property by reducing share, which is violative of Articles 14 and 19 of the Constitution. One of the
submissions, which was raised on behalf of the State was that legislation is protected by Article 31A of
the Constitution. The Apex Court in Kavalappa Kochuny's case (supra) rejected the above submission
of the State and held that the enactment does not effectuate any agrarian reform and regulate the rights
inter se between landlords and tenants, hence, was not protected by Article 31A of the Constitution.
Following was laid down in paragraph 19 of the judgment:
"(19) The impugned Act does not purport to modify or extinguish any right in an estate.
The avowed object of it is only to delcare particular sthanams to be Marumakkathayam
tarwads and the property pertaining to such sthanams as the property of the said tarwads. It
declares particular sthanams to have always been tarwads and their property to have always
been tarwad property.

The result is that the sole title of the sthanee is not recognised and the members of the tarwad area
given rights therein. The impugned Act does not effectuate any
W.P(C) No.26691 of 2010, etc. agrarian reform and regulate the rights inter se between landlords and
tenants. We, therefore, hold that the respondents cannot rely upon art.31A to deprive the petitioner of
his fundamental rights."
56. Another judgment of the Apex Court, which needs to be noted is of a Constitution Bench in
Balmadies Plantations v. State of Tamil Nadu (AIR 1972 SC 2240). Article 31A came to be considered
in the said case. The following was laid down by the Apex Court in paragraphs 16 and 17 of the
judgment:
"16. The next question which arises for consideration is whether the acquisition of the lands
in question is for agrarian reform. It is well established that in order to invoke the
protection of Article 31-A, it has to be shown that the acquisition of the estate was with a
view to implement agrarian reform. The said article is confined only to agrarian reform and
its provisions would apply only to reform a law made for the acquisition by the State of any
rights therein or for extinguishment or modification of such rights if such acquisition,
extinguishment or modification is connected with agrarian reform (see P. Vajravelu
Mudaliar v. Special Deputy Collector, Madras)7.

17. We have referred in the earlier part of this judgment to the various provisions of the Act,
and it is
 W.P(C) No.26691 of 2010, etc. manifest from their perusal that the object and general
scheme of the Act is to abolish intermediaries between the State and the cultivator and to
help the actual cultivator by giving him the status of direct relationship between himself
and the State. The Act, as such, in its broad outlines should be held to be a measure of
agrarian reform and would consequently be protected by Article 31-A of the Constitution.
The said article provides that notwithstanding anything contained in Article 13, no law
providing for the acquisition by the State of any estate or of any rights therein or the
extinguishment or modification of any such right shall 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, provided that where such law is a law made by the Legislature
of a State, the provisions of Article 31-A shall not apply thereto unless such law, having
been reserved for the consideration of the President, has received his assent. The impugned
Act, as stated earlier, received the assent of the President on December 6, 1969. As the Act
is protected by Article 31-A of the Constitution, it is immune from attack on the ground of
being violative of Article 14, Article 19 or Article

31. This fact would not, however, stand in the way of the court examining the constitutional
validity of any particular provision of the Act."

57. Constitution Bench of the Supreme Court had occasion to consider challenge to constitutionality of
the
W.P(C) No.26691 of 2010, etc. Kerala Private Forest (Vesting and Assignment) Act 1971. By the 1971
Act the private forest, by virtue of Section 3(1) of the Act, is vested in the Government free from all
encumbrances, right, title and interest. Validity of the Act was challenged as violative of Articles 14
and 19 of the Constitution. It was contended that private forest has been vested in the Government
without payment of compensation, since Section 9 of the 1971 Act provided that no compensation will
be payable for vesting in the Government of any private forest. Section 9 of the Act was to the
following effect:
"Section 9 provides that "No compensation shall be payable for the vesting in the
Government of any private forest or for the extinguishment of the right, title and interest of
the owner or any other person in any private forest under sub- section (1) of Section 3."

58. The State's submission in support of the Act was that the Act is protected by Article 31A of the
Constitution. After noticing the scheme of 1971 Act,
W.P(C) No.26691 of 2010, etc. especially Section 10, which contemplated assignment of private
forests to agriculturists and agricultural labourers, the Apex Court has laid down in paragraphs 20 and
35 as follows:
"20. In short the Act purports to acquire forest lands without payment of compensation for
implementing a scheme of agrarian reform by assigning lands on registry or by way of
lease to the poorer sections of the rural agricultural population. This is done after reserving
portions of the forests as may be necessary for purposes "directed towards the promotion of
agriculture or the welfare of the agricultural population or for purposes ancillary thereto".

This scheme of agrarian reform is intended to be completed within two years.

xx xx xx
35. What then is the scheme of agrarian reform envisaged in the impugned Act? The title of the Act
shows that it is an act to provide for the vesting in the Government of private forests for the assignment
thereof to agriculturists and agricultural labourers for cultivation. The Preamble shows that such private
forests which the legislature thought to be agricultural lands in the sense, already explained, should be
so utilised as to increase their agricultural production in the State and to promote the welfare of the
agricultural population in the State. It is further stated in the Preamble that in order to give effect to the
above objects it
W.P(C) No.26691 of 2010, etc. was necessary that the private forests should vest in the Government.
The objectives of increasingthe agricultural production and the promotion of the welfare of the
agricultural population are clearly a predominant element in agrarian reform. How these objectives are
to be implemented are generally stated in Sections 10 and 11. All the private forests, after certain
reservations, are to be assigned to agriculturists or agricultural labourers and to the poorer classes of the
rural population desiring bona fide to take up agriculture as a means of their livelihood. The reservation
in respect of certain portions of the forests is also made in the interest of the agricultural population
because the section says that the reservations will be such as may be necessary for purposes directed
towards the promotion of agriculture or welfare of the agricultural population or for purposes ancillary
thereto. Section 11 further provides that after making the necessary reservations the scheme for the
assignment of the private forests to the various beneficiaries described in Section 10 shall as far as may
be, completed within two years from the date of the publication of the Act. The conditions and
restrictions under which the assignments are to take place have to be prescribed by rules. We
understand that in view of the stay granted by the courts, the rules have not been framed. But it is clear
that the rules will have to be framed forthwith because of the urgency of the matter as seen in Section
11 and these rules will undoubtedly unfold the details of the scheme generally envisaged in Section 10.
It
W.P(C) No.26691 of 2010, etc. would not be necessary to emphasize that the rules will have to be
consistent with the purposes of the Act. In Statutes of this nature, provision can only be generally made
to indicate the broad details of the scheme for agrarian inform and that is what is done in the Act. In
Balmadies case, referred to above no such scheme had been envisaged. But in another case, namely,
Kannan Devan Hills Produce v. State of Kerala,5 the Statute viz. The Kannan Devan Hills (Resumption
of Lands) Act 5 of 1971 disclosed a scheme in Section 9 which is very similar to our own Section 10 of
the impugned Act, Section 9 of that Act was as follows:
"9. Assignment of lands.--(1) The Government shall, after reserving such extent of the
lands, the possession of which has vested in the Government under sub-clause (1) of
Section 3 ... as may be necessary for purposes directed towards the promotion of agriculture
or the welfare of the agricultural population to be settled on such lands, assign on registry
the remaining lands to agriculturists and agricultural labourers in such manner, on such
terms and subject to such conditions and restrictions, as may be prescribed."

That scheme as envisaged in this section was upheld by this Court as a scheme for agrarian reform and
we do not see any good reason why we should take a different view with regard to the scheme
envisaged in Section 10 of the
W.P(C) No.26691 of 2010, etc. impugned Act."
59. The Apex Court in the said case, accepting the contention of the State on the strength of Article
31A of the Constitution laid down following in paragraph 38 of the judgment:
"38. In an attempt to show that the impugned Act was a piece of colourable legislation,
reference was made to the Karala Private Forests Acquisition Bill, 1968 LA Bill No. 33 of
1968 which provided for the acquisition of private forests on payment of compensation for
the acquisition. That Bill, it is contended, was allowed to lapse and the present Act was
enacted with the obvious intention of expropriating vast forest lands without paying
compensation. We can hardly countenance such an argument. The question really is, in the
first place, of the competence of the legislature to pass the impugned Act and, in the
second, whether the Act is constitutional in the sense that it is protected by Section 31-A(1).
So far as the competence of the legislature is concerned, no objection is made before us. As
to its constitutionality we have shown that the Act purports to vast the janman rights to the
forests in the Government as a step in the implementation of agrarian reform. If this could
be constitutionally done by the legislature, the fact that at an earlier stage the Government
was toying with the idea of
W.P(C) No.26691 of 2010, etc. paying compensation to owners of private forests is of little
consequence. The dominant purpose of the impugned Act, as already pointed out, is to
distribute forest lands for agricultural purposes after making reservations of portions of the
forests for the benefit of the agricultural community. The fear is expressed that such a
course if, genuinely implemented, may lead to deforestation on a large scale leading to soil
erosion and silting of rivers and streams and will actually turn out to be detrimental to the
interests of the agricultural community in the long run. It is undoubtedly true that rackless
deforestation might lead to very unhappy results. But we have no material before us for
expressing opinion on such a matter. It is for the legislature to balance the comparative
advantages of a scheme like the one envisaged in the Act against the possible disadvantages
of resulting deforestation. There are many imponderables to which we have no safe guides.
It is presumed that the legislature knows the needs of its people and will balance the present
advantages against possible future disadvantages. If there is pressure on land and the
legislature feels that forest lands in some areas can be conveniently and, without much
damage to the community as a whole, utilized for settling a large proportion of the
agricultural population, it is perfectly open, under the constitutional powers vested in the
legislature, to make a suitable law, and if the law is constitutionally valid this Court can
hardly strike it down on the ground that in the long run the legislation instead
 W.P(C) No.26691 of 2010, etc. of turning out to be a boon will turn out to be a curse."

60. Justice V.R.Krishna Iyer, for himself and for Justice Bhagwati, delivered a concurrent opinion.
Constitutional history of Section 31A was traced out, especially in context of 1971 Act. Following was
observed by Justice V.R.Krishna Iyer in paragraphs 43, 44 and 45 in Balmadies Plantations's case
(supra):
"43. The State wields the shield of Article 31-A to ward off the private owners, sword
thrust of Article 13 read with Articles 14, 19 and 31. We must examine the application of
Article 31-A to the Forest Act.

44. Any law providing for the acquisition by the State of an "estate" is saved by Article 31-
A subject to certain conditions, violation of Articles 14, 19 and 31 notwithstanding. Sub-
article (2) explains the concept of "estate" and includes therein janman rights. Although
Article 31-A is worded widely enough to rope in acquisition of any estate by the State
regardless of purpose, the Supreme Court has cut back on this amplitude by limiting
entitlement to constitutional protection to agrarian reform legislation only. Subba Rao, J., in
Kochuni case speaking for the Court, reviewed the earlier decisions under Article 31-A and
interpreted the provision against the back-drop of the objects of the Constitution (Fourth
Amendment) Act, 1955 and the
 W.P(C) No.26691 of 2010, etc. earlier Constitution (First Amendment) Act, 1951, to arrive
at the conclusion that Article 31-A was meant "to facilitate agrarian reforms". This Court in
the aforesaid decision struck down the Madras Marumakkathayam (Removal of Doubts)
Act, 1955, because "the impugned Act does not effectuate any agrarian reforms and
regulate the rights inter-se between landlords and tenants". Article 31-A deprives citizens of
their fundamental rights and such an article cannot be extended, by interpretation, to
overreach the object implicit in the article, observed Subba Rao, J., and this judicial gloss
has come to stay. Forensic debate has since centered round what is agrarian reform, and
counsel here have joined issue on the claim of the Forest Act to wear this protective mantle.

45. Article 31-A having been read down to relate to agrarian reform -- rightly, if we may
say so -- in the feudal context of the country and the founding faith in modernisation of
agriculture informed by distributive justice, the controversy in the present case demands a
study of the anatomy and cardiology of the statute, not its formal structure but its heart
beats."

61. There are several other decisions of the Supreme Court to the same effect. In Prag Ice Oil Mills v.
Union of India [(1978)3 SCC 459] the Apex Court has laid down that Article 31A of the Constitution
does not protect legislation, which does not relate to agrarian
W.P(C) No.26691 of 2010, etc. reform.
62. Thus, for availing protection under Article 31A of the Constitution, the enactment should be an
enactment with the object of bringing agrarian reform. Now, we proceed to examine 2003 Act to decide
as to whether by the said enactment any agrarian reform has been brought by the Legislature. The 2003
Act has been enacted to provide for the vesting in the Government of the Ecologically Fragile Land and
for the management of such lands with a view to maintaining ecological balance and conserving the
bio-diversity. The preamble of the Act contains purpose and object of the enactment. The preamble of
the Act is to the following effect:
"Preamble.- WHEREAS the earth's biological resources with their intrinsic ecological,
genetic, economic, social, cultural, scientific, educational, recreational and aesthetic values
are global assets and public trust vital to the sustained economic and social development,
maintenance of ecological balance and the
 W.P(C) No.26691 of 2010, etc. very existence of humanity;

AND WHEREAS the fundamental requirement for the conservation of biological diversity
is the insitu conservation of ecosystems and natural habitats and the maintenance and
recovery of viable populations of species in their natural suroundings;

AND WHEREAS the tropical forests in the western ghats, which has been declared a bio-
diversity hot-spot by the International Union for Conservation of Nature and Natural
Resources, are very rich repositories of bio- diversity extremely susceptible to rapid
irreversible degradation;

AND WHEREAS it has become inevitable to conserve effectively the ecologically fragile
lands, minimising the reduction or degradation of these ecosystems and biological diversity
therein, which evolved through millions of years;

AND WHEREAS it is considered necessary to manage such lands in an integrated and

uniform manner within their ecological boundaries in accordance with the management
plans based on sound scientific principles."

63. The provisions of the Act as has been noted above do not indicate that any of the provisions has
been enacted with a view to bring any agrarian reform. Ecologically fragile land vests in the state and is
managed by the Forest Department as per the
W.P(C) No.26691 of 2010, etc. management plan. 2003 Act does not, thus, in any manner indicate that
the said enactment has been brought as the measure for agrarian reform. In view of the law laid down
by the Apex Court as noted above, protection of Article 31A of the Constitution is not applicable. We,
thus, conclude that 2003 Act is not protected by Article 31A of the Constitution of India. ISSUE NO.V
64. Question to be answered is as to whether the 2003 Act has been enacted by the State Legislature to
give effect to the directive principles of state policy as contained in Article 39(b) of the Constitution?
Chapter IV of the Constitution deals with directive principles of state policy. Directive principle of state
policy embodies importance, aim and object of the State under the Constitution. 'Directive principles of
State Policy'. embodies the idea of socio economic justice which is the core guiding principle of the
welfare of State.
W.P(C) No.26691 of 2010, etc. Legislation 2003 whether can be treated to be legislation in furtherance
of the directive principles of state policy as enjoined on the State under Article 39(b) is the core
question to be answered. Article 39(b) provides as follows:
"39. Certain principles of policy to be followed by the State. - The state shall, in particular,
direct its policy towards securing -

xx xx xx

(b) that the ownership and control of the material resources of the community are so
distributed as best to subserve the common good;"

Article 48A which has been inserted in the Constitution by the 42nd Amendment Act, 1976 enumerates
the directive principle of policy that the State shall endeavour to protect and improve the forest and
wild life of the country. Salient feature of the 2003 Act has to be looked into for understanding the true
nature and spirit of the legislation.
65. Preamble of the Act as quoted above throws
W.P(C) No.26691 of 2010, etc. considerable light on the object and reason for enactment of the Act.
Ecologically fragile land as defined in Sec.2(b)(1) of the 2003 Act extinguish the right, title and interest
of the owner or any other person thereof. Section 2(b), 2(c) and 3(1) are quoted as below:
"2(b). 'ecologically fragile lands' means.-

(i) any forest land or any portion thereof held by any person and lying contiguous to or
encircled by a reserved forest or a vested forest or any other forest land owned by the
Government and predominantly supporting natural vegetation; and

(ii) any land declared to be ecologically fragile land by the Government by notification in
the Gazette under Sec.4.

2(c) "forest" means any land principally covered with naturally grown trees and undergrowth and
includes any forests statutorily recognized and declared as reserved forest, protected forest or
otherwise, but does not include any land which is used principally for the cultivation of crops of long
duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites
of residential buildings and surroundings essential for the convenient use of such buildings".
Safeguarding of forest and wild life is with the object of
W.P(C) No.26691 of 2010, etc. serving the common good and for protection of lives on the earth. The
Supreme Court In M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] had elaborately considered the
subject. The Public Trust doctrine was held applicable to Indian Law and natural resources such as air,
river, water, etc., have to be protected for the purpose of protecting the ecosystem. Elaborating the
Public Trust doctrine, the Apex Court had laid down the following in paragraphs 23, 24, 25 and 35
which are to the following effect:
"23. The notion that the public has a right to expect certain lands and natural areas to retain
their natural characteristic is finding its way into the law of the land. The need to protect the
environment and ecology has been summed up by David B. Hunter (University of
Michigan) in an article titled An ecological perspective on property : A call for judicial
protection of the public's interest in environmentally critical resources published in Harvard
Environmental Law Review, Vol. 12 1988, p. 311 is in the following words:

"Another major ecological tenet is that the world is finite. The earth can support only so
many people and only so much human
W.P(C) No.26691 of 2010, etc. activity before limits are reached. This lesson was driven
home by the oil crisis of the 1970s as well as by the pesticide scare of the 1960s. The
current deterioration of the ozone layer is another vivid example of the complex,
unpredictable and potentially catastrophic effects posed by our disregard of the
environmental limits to economic growth. The absolute finiteness of the environment, when
coupled with human dependency on the environment, leads to the unquestionable result that
human activities will at some point be constrained. `[H]uman activity finds in the natural
world its external limits. In short, the environment imposes constraints on our freedom;
these constraints are not the product of value choices but of the scientific imperative of the
environment's limitations. Reliance on improving technology can delay temporarily, but not
forever, the inevitable constraints. There is a limit to the capacity of the environment to
service ... growth, both in providing raw materials and in assimilating by-product wastes
due to consumption. The largesse of technology can only postpone or disguise the
inevitable.' Professor Barbara Ward has written of this ecological imperative in particularly
vivid language:

`We can forget moral imperatives. But today the morals of respect and care and modesty
come to us in a form we cannot evade. We cannot cheat on DNA. We cannot get round
photosynthesis. We cannot say I am not going to give a damn about phytoplankton. All
these tiny mechanisms provide the preconditions of our planetary life. To say we do not
care is to say in the most literal sense that "we choose death".' There is a commonly-
recognized link between laws and social values, but to ecologists a balance between laws
W.P(C) No.26691 of 2010, etc. and values is not alone sufficient to ensure a stable
relationship between humans and their environment. Laws and values must also contend
with the constraints imposed by the outside environment. Unfortunately, current legal
doctrine rarely accounts for such constraints, and thus environmental stability is threatened.

Historically, we have changed the environment to fit our conceptions of property. We have
fenced, plowed and paved. The environment has proven malleable and to a large extent still
is. But there is a limit to this malleability, and certain types of ecologically important
resources -- for example, wetlands and riparian forests -- can no longer be destroyed
without enormous long-term effects on environmental and therefore social stability. To
ecologists, the need for preserving sensitive resources does not reflect value choices but
rather is the necessary result of objective observations of the laws of nature.

In sum, ecologists view the environmental sciences as providing us with certain laws of
nature. These laws, just like our own laws, restrict our freedom of conduct and choice.
Unlike our laws, the laws of nature cannot be changed by legislative fiat; they are imposed
on us by the natural world. An understanding of the laws of nature must therefore inform all
of our social institutions.

24. The ancient Roman Empire developed a legal theory known as the "Doctrine of the
Public Trust". It was founded on the ideas that certain common properties such as rivers,
seashore, forests and the air were held by Government in trusteeship for the free and
unimpeded
W.P(C) No.26691 of 2010, etc. use of the general public. Our contemporary concern about
"the environment" bear a very close conceptual relationship to this legal doctrine. Under the
Roman law these resources were either owned by no one (res nullious) or by every one in
common (res communious). Under the English common law, however, the Sovereign could
own these resources but the ownership was limited in nature, the Crown could not grant
these properties to private owners if the effect was to interfere with the public interests in
navigation or fishing. Resources that were suitable for these uses were deemed to be held in
trust by the Crown for the benefit of the public. Joseph L. Sax, Professor of Law, University
of Michigan -- proponent of the Modern Public Trust Doctrine -- in an erudite article
"Public Trust Doctrine in Natural Resource Law : Effective Judicial Intervention",
Michigan Law Review, Vol. 68, Part 1 p. 473, has given the historical background of the
Public Trust Doctrine as under:

"The source of modern public trust law is found in a concept that received much attention
in Roman and English law -- the nature of property rights in rivers, the sea, and the
seashore. That history has been given considerable attention in the legal literature, need not
be repeated in detail here. But two points should be emphasized. First, certain interests,
such as navigation and fishing, were sought to be preserved for the benefit of the public;
accordingly, property used for those purposes was distinguished from general public
property which the sovereign could routinely grant to private owners. Second, while it was
understood that in certain common properties

-- such as the seashore, highways, and

 W.P(C) No.26691 of 2010, etc. running water -- `perpetual use was dedicated to the public',
it has never been clear whether the public had an enforceable right to prevent infringement
of those interests. Although the State apparently did protect public uses, no evidence is
available that public rights could be legally asserted against a recalcitrant government."

25. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters
and the forests have such a great importance to the people as a whole that it would be wholly
unjustified to make them a subject of private ownership. The said resources being a gift of nature, they
should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon
the Government to protect the resources for the enjoyment of the general public rather than to permit
their use for private ownership or commercial purposes. According to Professor Sax the Public Trust
Doctrine imposes the following restrictions on governmental authority:
"Three types of restrictions on governmental authority are often thought to be imposed by
the public trust: first, the property subject to the trust must not only be used for a public
purpose, but it must be held available for use by the general public; second, the property
may not be sold, even for a fair cash equivalent; and third the property must be maintained
for particular types of uses.

35. We are fully aware that the issues presented in this case illustrate the classic struggle
between those
 W.P(C) No.26691 of 2010, etc. members of the public who would preserve our rivers,
forests, parks and open lands in their pristine purity and those charged with administrative
responsibilities who, under the pressures of the changing needs of an increasingly complex
society, find it necessary to encroach to some extent upon open lands heretofore considered
inviolate to change. The resolution of this conflict in any given case is for the legislature
and not the courts. If there is a law made by Parliament or the State Legislatures the courts
can serve as an instrument of determining legislative intent in the exercise of its powers of
judicial review under the Constitution. But in the absence of any legislation, the executive
acting under the doctrine of public trust cannot abdicate the natural resources and convert
them into private ownership, or for commercial use. The aesthetic use and the pristine glory
of the natural resources, the environment and the ecosystems of our country cannot be
permitted to be eroded for private, commercial or any other use unless the courts find it
necessary, in good faith, for the public good and in public interest to encroach upon the said
resources".

The Apex Court in T.N. Godavarman v.Union of India ([2002] 10 SCC 606) had emphasised that it is
the duty and constitutional obligation of the Government to protect the environment enshrined in
Articles, 21, 48A
W.P(C) No.26691 of 2010, etc. and 51A(g) of the Constitution. Following was laid down in paragraphs
17 and 24:
'"17. Article 48-A in Part IV (Directive Principles) of the Constitution of India, 1950
brought by the Constitution (Forty-second Amendment) Act, 1976, enjoins that "State shall
endeavour to protect and improve the environment and to safeguard the forests and wildlife
of the country". Article 47 further imposes the duty on the State to improve public health as
its primary duty. Article 51-A(g) imposes "a fundamental duty" on every citizen of India to
protect and improve the natural "environment" including forests, lakes, rivers and wildlife
and to have compassion for living creatures. The word "environment" is of broad spectrum
which brings within its ambit "hygienic atmosphere and ecological balance". It is,
therefore, not only the duty of the State but also the duty of every citizen to maintain
hygienic environment. The State, in particular has a duty in that behalf and to shed its
extravagant unbridled sovereign power and to forge in its policy to maintain ecological
balance and hygienic environment. Article 21 protects right to life as a fundamental right.
Enjoyment of life and its attainment including the right to life with human dignity
encompasses within its ambit, the protection and preservation of environment, ecological
balance free from pollution of air and water, sanitation without which life cannot be
enjoyed. Any contra acts or actions would cause environmental pollution. Therefore,
hygienic environment
 W.P(C) No.26691 of 2010, etc. is an integral facet of right to healthy life and it would be
impossible to live with human dignity without a humane and healthy environment.
Environmental protection, therefore, has now become a matter of grave concern for human
existence. Promoting environmental protection implies maintenance of the environment as
a whole comprising the man-made and the natural environment. Therefore, there is
constitutional imperative on the Central Government, State Governments and bodies like
municipalities, not only to ensure and safeguard proper environment but also an imperative
duty to take adequate measures to promote, protect and improve the man- made
environment and natural environment.

24. The tide of judicial considerations in environmental litigation in India symbolizes the
anxiety of courts in finding out appropriate remedies for environmental maladies. At global
level, the right to live is now recognized as a fundamental right to an environment adequate
for health and well-being of human beings. [See World Commission on Environment and
Development --

Our Common Future (1987).] To commemorate the tenth anniversary of the Stockholm Conference, the
world community of States assembled in Nairobi (May 10-18, 1982) to review the action taken on to
implement the Stockholm Declaration. It expressed serious concern about the state of environment
worldwide and recognized the urgent need of intensifying the effort at the global, regional and national
levels to protect and improve it. The above view was again reiterated by the Apex Court
W.P(C) No.26691 of 2010, etc. in T.N.Godavarman v. Union of India [(2006) 1 SCC 1] where the Apex
Court noted the following in paragraphs 1 and 3:
"1. Natural resources are the assets of the entire nation. It is the obligation of all concerned,
including the Union Government and State Governments to conserve and not waste these
resources. Article 48-A of the Constitution requires that the State shall endeavour to protect
and improve the environment and to safeguard the forest and wildlife of the country. Under
Article 51-A, it is the duty of every citizen to protect and improve the natural environment
including forests, lakes, rivers and wildlife and to have compassion for living creatures.

3. Forests are a vital component to sustain the life support system on the earth. Forests in
India have been dwindling over the years for a number of reasons, one of it being the need
to use forest area for development activities including economic development.
Undoubtedly, in any nation development is also necessary but it has to be consistent with
protection of environments and not at the cost of degradation of environments. Any
programme, policy or vision for overall development has to evolve a systemic approach so
as to balance economic development and environmental protection. Both have to go hand in
hand. In the ultimate analysis, economic development at the cost of degradation of
environments and depletion of forest cover would not be long-lasting.
 W.P(C) No.26691 of 2010, etc. Such development would be counterproductive. Therefore,
there is an absolute need to take all precautionary measures when forest lands are sought to
be directed for non-forest use".

The importance and necessity to conserve natural resources including forest have been emphasised
time and again. Tropical forest of western ghats, has been declared as a bio-diversity hot-spot by the
International Union for Conservation of Nature and natural resources, the 2003 Act been passed to
conserve natural resources which are rich repositories of bio-diversity extremely susceptible to rapid
irreversible degradation. Forest cover in the State had been depleting and dwindling from time to time.
The State who is constitutionally obliged to maintain the forest cover has to discharge its obligation by
giving effect to the directive principle of State policy as noted above. Salient features of the 2003 Act
have already been noticed above, the object and purpose of the 2003 Act
W.P(C) No.26691 of 2010, etc. is to increase the forest cover and vest the same in the State for its
proper management. Section 16 of the Act contains the objectives of the State to manage the
ecologically fragile land vested in the Government in accordance with the provisions of the
management plans approved by the Government from time to time.
66. Article 39(b) refers to "ownership and control of the material resources of the community" and
further employs that ownership and control are so distributed as best to subserve the common good.
There cannot be any dispute that the material resources of the community include forest. The Apex
Court had occasion to consider the concept of material resources as enshrined in Article 39B of the
Constitution. The Apex Court in State of T.N. v. L. Abu Kavur Bai, 1984 (1) SCC 515 laid down the
following in paragraph 77:
"77. With due respect, this view is not correct and proceeds on a misconception of the law
and interpretation of the words `material resources' as mentioned in Article
 W.P(C) No.26691 of 2010, etc. 39(b). In fact, Article 39(b) does not mention either
movable or immovable property. The actual expression used is "material resources of the
community". Material resources as enshrined in Article 39(b) are wide enough to cover not
only natural or physical resources but also movable or immovable properties. Black's Law
Dictionary defined the word `resources' thus:

"Money or any property that can be converted to meet needs; means of raising money or
supplies; capabilities of raising wealth or to supply necessary wants."

Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147), a Constitution Bench of the
Apex Court held that resources of the community are not confined to natural resources and it includes
resources and land both public owned or private owned. In the said case also the Apex Court had
occasion to consider the word "distribute" as used in Article 39(b). The question which arose in the
above case was as to whether the provisions of the Act, 1972 is saved by Article 31 C and whether the
said Act has been protected to secure the objective of Article 39(b). The
W.P(C) No.26691 of 2010, etc. following was laid down by the Apex Court in the said in paragraphs 19
and 20 as follows:
"19. The nationalisation of the coking coal mines and the coke oven plants was "with a
view to reorganising and reconstructing such mines and plants for the purpose of
protecting, conserving and promoting scientific development of the resources of coking
coal needed to meet the growing requirements of the iron and steel industry and for matters
connected therewith or incidental thereto". We do not entertain the slightest doubt that the
nationalisation of the coking coal mines and the specified coke oven plants for the above
purpose was towards securing that "the ownership and control of the material resources of
the community are so distributed as best to subserve the common good". The submission of
Shri A.K. Sen was that neither a coal mine nor a coke oven plant owned by private parties
was a "material resource of the community". According to the learned counsel they would
become material resources of the community only after they were acquired by the State and
not until then. In order to qualify as material resources of the community the ownership of
the resources must vest in the community i.e. the State. A legislation such as the Coking
Coal Mines (Nationalisation) Act may be a legislation for the acquisition by the State of
coking coal mines and coke oven plants belonging to private parties but it is not a
legislation towards securing that the ownership and control of the material resources
 W.P(C) No.26691 of 2010, etc. are so distributed as best to subserve the common good.
Shri Sen invited our attention to the emphasis which Krishna lyer, J. laid on the word
"distribute" occurring in Article 39(b) of the Constitution in State of Karnataka v.
Ranganatha Reddy5 and Krishna lyer, J.'s description of it as "the key word" and the
dissertation on "the genius of the Article". Shri Sen urged that if the word "distribute"

was given its proper emphasis, it would inevitably follow that material resources must belong to the
community as a whole, that is to say, to the State or the public, before they could be distributed as best
to subserve the common good. Since those material resources which belonged to the State only could
be distributed by the State, Shri Sen argued that material resources had first to be acquired by the State
before they could be distributed. A law providing for acquisition was not a law for distribution. We are
unable to appreciate the submission of Shri Sen. The expression "material resources of the community"
means all things which are capable of producing wealth for the community. There is no
warrant for interpreting the expression in so narrow a fashion as suggested by Shri Sen and
confine it to public-owned material resources and exclude private-owned material
resources. The expression involves no dichotomy. The words must be understood in the
context of the constitutional goal of establishing a sovereign, socialist, secular, democratic
republic. Though the word "socialist" was introduced into the Preamble by a late
amendment of the Constitution, that socialism has always been the goal is evident from
 W.P(C) No.26691 of 2010, etc. the Directive Principles of State Policy. The amendment
was only to emphasise the urgency. Ownership, control and distribution of national
productive wealth for the benefit and use of the community and the rejection of a system of
misuse of its resources for selfish ends is what socialism is about and the words and thought
of Article 39

(b) but echo the familiar language and philosophy of socialism as expounded generally by
all socialist writers.

To quote a recent writer:

"Socialism is first of all, a protest against the material and cultural poverty inflicted by
capitalism on the mass of the people. It expresses a concern for the social welfare of the
oppressed, the unfortunate and the disadvantaged. It affirms the values of equality, a
classless society, freedom and democracy. It rejects the capitalist system and its competitive
ethos as being inefficient in its use of resources .... They (Socialists) want a new system,
whether by reform or revolution, in which productive wealth is owned and controlled by
the community and used for communal ends."

We may also look at it this way. When we say that the State of Himachal Pradesh possesses immense
forest wealth or that the State of Bihar possesses immense mineral wealth, we do not mean that the
Governments of the States of Himachal Pradesh and Bihar own the forest and mineral wealth; what we
mean is that there is immense forest and mineral wealth in the territories of the two States, whether
such wealth is owned by the people as a whole or by individuals. Again, when we talk of, say, a certain
area in Delhi being a Bengali, Punjabi or
W.P(C) No.26691 of 2010, etc. South Indian area, we do not mean that the area is owned by Bengalis,
Punjabis or South Indians but only that large numbers of Bengalis, Punjabis or South Indians live in
that area. When Article 39(b) refers to material resources of the community it does not refer only to
resources owned by the community as a whole but it refers also to resources owned by individual
members of the community. Resources of the community do not mean public resources only but
include private resources as well. Nor do we understand the word "distribute" to be used in Article
39(b) in the limited sense in which Shri Sen wants us to say it is used, that is, in the sense only of retail
distribution to individuals. It is used in a wider sense so as to take in all manner and method of
distribution such as distribution between regions, distribution between industries, distribution between
classes and distribution between public, private and joint sectors. The distribution envisaged by Article
39(b) necessarily takes within its stride the transformation of wealth from private ownership into public
ownership and is not confined to that which is already public-owned. The submissions of Shri Sen are
well-answered by the observations of Krishna Iyer, J. in State of Karnataka v. Ranganatha Reddy5
which we quote below: (SCC pp. 515-16, paras 80-82) "The key word is "distribute" and the genius of
the article, if we may say so, cannot but be given full play as it fulfills the basic purpose of
restructuring the economic order. Each word in the article has a strategic role
W.P(C) No.26691 of 2010, etc. and the whole article a social mission. It embraces the entire material
resources of the community. Its task is to distribute such resources. Its goal is so to undertake
distribution as best to subserve the common good. It reorganizes by such distribution the ownership and
control.
`Resources' is a sweeping expression and covers not only cash resources but even ability to borrow
(credit resources). Its meaning given in Black's Law Dictionary is:
"Money or any property that can be converted into supplies; means of raising money or supplies;
capabilities of raising wealth or to supply, necessary wants;
available means or capability of any kind." And material resources of the community in the context of
reordering the national economy embraces all the national wealth, not merely natural resources, all the
private and public sources of meeting material needs, not merely public possessions. Every thing of
value or use in the material world is material resource and the individual being a member of the
community his resources are part of those of the community. To exclude ownership of private resources
from the coils of Article 39(b) is to cipherise its very purpose of redistribution the socialist way. A
directive to the State with a deliberate design to dismantle feudal and capitalist citadels of property
must be interpreted in that spirit and hostility to such a purpose alone can be hospitable to the meaning
which excludes private means of production or goods produced from the instruments of production. Sri
A.K. Sen agrees that private means of production are included in `material
W.P(C) No.26691 of 2010, etc. resources of the community' but by some baffling logic excludes things
produced. If a car factory is a material resource, why not cars manufactured? `Material' may cover
everything wordly and `resources', according to Random House Dictionary, takes in `the collective
wealth of a country or its means of producing wealth money or any property that can be converted into
money assets'. No further argument is needed to conclude that Article 39
(b) is ample enough to rope in buses. The motor vehicles are part of the material resources of the
operators. The next question is whether nationalisation can have nexus with distribution. Should we
assign a narrow or spacious sense to this concept? Doubtless, the latter, for reasons so apparent and
eloquent. To "distribute", even in its simple dictionary meaning, is to `allot, to divide into classes or
into groups' and `distribution' embraces `arrangement, classification, placement, disposition,
apportionment, the way in which items, a quantity, or the like, is divided or apportioned; the system of
dispersing goods throughout a community'. (see Random House Dictionary). To classify and allocate
certain industries or services or utilities or articles between the private and public sectors of the national
economy is to distribute those resources. Socially conscious economists will find little difficulty in
treating nationalisation of transport as a distributive process for the good of the community. You cannot
condemn the concept of nationalisation in our Plan on the score that Article 39(b) does not envelope it.
It is a matter of public policy left to legislative wisdom
W.P(C) No.26691 of 2010, etc. whether a particular scheme of take-over should be undertaken."
We hold that the expression "material resources of the community" is not confined to natural resources;
it is not confined to resources owned by the public; it means and includes all resources, natural and
man-made, public and private-owned.
22. In view of the foregoing discussion, we hold that the Coking Coal Mines (Nationalisation) Act,
1972 is a legislation for giving effect to the policy of the State towards securing the principle specified
in Article 39(b) of the Constitution and is, therefore, immune, under Article 31-C, from attack on the
ground that it offends the fundamental right guaranteed by Article 14.
67. The Apex Court in 1984(1) SCC 515 (supra) had occasion to consider Article 39(b) especially in
the context of what the material resources and distribution are. The following was laid down in
paragraphs 78 to 80:
"78. The mere fact that the resources are material will make no difference in the concept of
the word `resources'. In Stroud's Judicial Dictionary (Vol. 3) at p. 1634, the word `material'
is defined thus:

"Materials, tools, or implements, to be

 W.P(C) No.26691 of 2010, etc. used by such artificer in this trade or occupation, if such
artificer be employed in mining;. . . wooden props or `sprags' though neither "tools or
implements"

were `materials' within these words. . . . `Material' includes a painter's bucket of distemper and brush."
79. In Webster's Third New International Dictionary at p. 1934 the word `resources' has been defined
thus:
"available means (as of a country or business): computable wealth (as in money, property)."

80. In Words and Phrases (Permanent Edition), Vol. 37-A, the word `Resources' has been defined at p.
16 thus:
"Resources included products of farm, forest, manufacture, art, education, etc. . . . The
`resources' of a country include its land, timber, coal, crops, improvements, railways,
factories and everything that goes to make up its wealth or to render it desirable."

68. Explaining the concept of distribution under Article 39(b) the following was laid down in
paragraphs 89, 90, 91 and 92.
"89. The last contention raised by the respondents was that the conditions or objects
mentioned in Article 39

(b) and (c) are not subserved by the nationalisation policy codified by the Statute because
there is no distribution at
 W.P(C) No.26691 of 2010, etc. all in the sense that the property taken over is distributed to
various members of the community for their benefit.

Moreover, the members of the community have been deprived of the services rendered to them by the
operators under permits issued by the transport authority. So far as this argument is concerned, it is
based on a serious misconception of understanding the real position. The word `distribution' used in
Article 39(b) must be broadly construed so that a court may give full and comprehensive effect to the
statutory intent contained in Article 39 (b). A narrow construction of the word `distribution' might
defeat or frustrate the very object which the Article seeks to subserve. In Black's Law Dictionary the
word `distribution' has been defined thus:
"The giving out or division among a number, sharing or parcelling out, allotting,
dispensing, apportioning." (p. 426)

90. Similarly, Webster's Third International Dictionary at p. 660 defines `distribution' thus:

"the position, placement, or arrangement (as of a mass or the members of a group); the
disposition or arrangement in rational groups or classes: CLASSIFICATION -- the accurate
distribution of several rare zoological specimens; delivery or conveyance (as of newspapers
or goods) to the members of a group (the distribution of telephone directories to consumers)
in charge of company sales and distribution; a device, mechanism, or system by which
something is distributed (as from a main source); the marketing or merchandising of
commodities."

91. In Family Word Finder published by Reader's Digest the word `distribution' has been defined at p.
237 thus:
 W.P(C) No.26691 of 2010, etc. "dissemination, scattering, spreading, circulation, grouping,
organisation, apportionment, allotment, allocation, division."

92. It is obvious, therefore, that in view of the vast range of transactions contemplated by the word
`distribution' as mentioned in the dictionaries referred to above, it will not be correct to construe the
word `distribution' in a purely literal sense so as to mean only division of a particular kind or to
particular persons. The words, apportionment, allotment, allocation, classification, clearly fall within
the broad sweep of the word `distribution'. So construed, the word `distribution' as used in Article 39(b)
will include various facets, aspects, methods and terminology of a broad-based concept of distribution.
In other words, the word `distribution' does not merely mean that property of one should be taken over
and distributed to others like land reforms where the lands from the big landlords are taken away and
given to landless labourers or for that matter the various urban and rural ceiling Acts. That is only one
of the modes of distribution but not the only mode. In the instant case, as we have already pointed out,
distribution is undoubtedly there though in a different shape. So far as the operators were concerned
they were mainly motivated by making huge profits and were most reluctant to go to villages or places
where the passenger traffic is low or the track is difficult. This naturally caused serious inconvenience
to the poor members of the community who were denied the facility of visiting the towns or other areas
in a transport. By nationalising the transport as also the units the
W.P(C) No.26691 of 2010, etc. vehicles would be able to go to the farthest corner of the State and
penetrate as deep as possible and provide better and quicker and more efficacious facilities. This would
undoubtedly be a distribution for the common good of the people and would be clearly covered by
clause (b) of Article 39."
69. A seven Judges Bench of the Apex Court in State of Karnataka v. Ranganath Reddy [(1977) 4 SCC
471] had occasion to consider Article 39(b) and the concept of material resources and distribution.
Krishna Iyer, J (as His Lordship then was) interpreting the concept of distribution as engrained in
Article 39(b) has laid down the following in paragraphs 80 and 81.
"80. This takes us to the non-negotiable minimum of nexus between the purpose of the
acquisition and Article 39(b). Article 39(c) was feebly mentioned but Article 39(b) was
forcefully pressed by the appellant. Better read Article 39(b) before discussing its full
import:

"39. (b) Certain principles of policy to be followed by the State-- The State shall, in
particular, direct its policy towards securing that the ownership and control of the material
resources of the community are so distributed as best to
 W.P(C) No.26691 of 2010, etc. subserve the common good."

The key word is "distribute" and the genius of the Article, if we may say so, cannot but be given full
play as it fulfils the basic purpose of restructuring the economic order. Each word in the article has a
strategic role and the whole article a social mission. It embraces the entire material resources of the
community. Its task is to distribute such resources. Its goal is so to undertake distribution as best to
subserve the common good. It re-
organizes by such distribution the
ownership and control.

81. "Resources" is a sweeping expression and covers not only cash resources but even ability to borrow
(credit resources). Its meaning given in Black's Legal Dictionary is:
"Money or any property that can be converted into supplies; means of raising money or
supplies; capabilities of raising wealth or to supply necessary wants;

available means or capability of any kind."

And material resources of the community in the context of re-ordering the national economy embraces
all the national wealth, not merely natural resources, all the private and public sources of meeting
material needs, not merely public possessions. Every thing of value or use in the material world is
material resource and the individual being a member of the community his resources are part of those
of the community. To exclude ownership of private resources from the coils of Article 39(b) is to
W.P(C) No.26691 of 2010, etc. cipherise its very purpose of redistribution the socialist way. A directive
to the State with a deliberate design to dismantle feudal and capitalist citadels of property must be
interpreted in that spirit and hostility to such a purpose alone can be hospitable to the meaning which
excludes private means of production or goods produced from the instruments of production. Sri A.K.
Sen agrees that private means of production are included in "material resources of the community" but
by some baffling logic excludes things produced. If a car factory is a material resource, why not cars
manufactured? "Material" may cover everything worldly and "resources", according to Random House
Dictionary, takes in "the collective wealth of a country or its means of producing wealth: money or any
property that can be converted into money assets". No further argument is needed to conclude that
Article 39
(b) is ample enough to rope in buses. The motor vehicles are part of the material resources of the
operators.
70. Thus the word "distribution" in Article 39(b) cannot be understood as physical distribution of any
material resources only. Control and management of the material resources is envisaged to distribute as
best to subserve the common good is now accepted principle which cannot be disputed by anyone.
Learned counsel for the petitioners submitted that at
W.P(C) No.26691 of 2010, etc. best the legislation 2003 can be understood to be a legislation to give
effect to the directive principle of state policy under Article 48A of the Constitution and cannot be
considered to be an enactment to give effect to Article 39(b). Legislation to give effect to the directive
principle of state policy as contemplated in Article 39(b) can very well encompass in itself the state
policy delineated by Article 48A. It cannot be said that legislation to give effect to the directive
principles of state policy under Article 39(b) and the legislation to give effect to the directive principle
of state policy under Article 48A are mutually exclusive. Thus even if the submission of the learned
counsel for the petitioners that the 2003 Act has been enacted to give effect to Article 48A is accepted,
the same does not militate against the legislation being covered by Article 39(b). Learned counsel for
the petitioner has further contended
W.P(C) No.26691 of 2010, etc. that the fact that legislation 2003 was not enacted to give effect to the
directive principles of state policy under Article 39(b) is apparent from the fact that the State when it
has filed its counter affidavit in the Writ Petition had not even stated that the legislation has been made
to give effect to the directive principle of state policy under Article 39(b). It is submitted that it was
only after the first hearing that additional counter affidavit has been filed taking the stand that
legislation has been enacted to give effect to the directive principle of state policy under Article 39(b).
We are of the view that the mere fact that initially the State did not take the stand in the original counter
affidavit that the enactment is to give effect to the directive principle of state policy under Article 39(b)
is inconsequential. In the additional counter affidavit filed by the State on 3.9.2014 in W.P(C) No.6814
of 2003 following has been
W.P(C) No.26691 of 2010, etc. stated in paragraph 4.
"4. It is humbly submitted that the Act, which has been challenged in the present writ petition is entitled
for the protection of Article 31-C of the Constitution. It is submitted that the present Act besides being
enacted to further the principles laid down in Articles 37, 48A r/w 51A(g) has also been passed to
further the principles under Article 39(b) of the Constitution. According to the said Article, material
resources of the community have to be so distributed so as to best subserve the common good. It is
submitted that the present Act clearly fulfills the mandate of the said article by vesting these lands to
protect the same for the common good of not only the present generation but even future generations."
More so, when it is to be examined whether an act has been enacted to give effect to the directive
principle of state policy under Article 39(b), the said consideration cannot be limited by the pleading of
the parties. The Apex Court in Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147
(supra) had laid down that when constitutional validity of an Act is challenged, validity of the
legislation is not to be
W.P(C) No.26691 of 2010, etc. defended merely by an affidavit filed on behalf of the State. It is useful
to quote paragraph 25 of the judgment.
"25. Shri Ashoke Sen drew pointed attention to the earlier affidavits filed on behalf of
Bharat Coking Coal Limited and commented severely on the alleged contradictory reasons
given therein for the exclusion of certain coke oven plants from the Coking Coal Mines
(Nationalisation) Act. But, in the ultimate analysis, we are not really to concern ourselves
with the hollowness or the self-condemnatory nature of the statements made in the
affidavits filed by the respondents to justify and sustain the legislation. The deponents of
the affidavits filed into court may speak for the parties on whose behalf they swear to the
statements. They do not speak for the Parliament. No one may speak for the Parliament and
Parliament is never before the court. After Parliament has said what it intends to say, only
the court may say what the Parliament meant to say. None else. Once a statute leaves
Parliament House, the Court is the only authentic voice which may echo (interpret) the
Parliament. This the court will do with reference to the language of the statute and other
permissible aids. The executive Government may place before the court their understanding
of what Parliament has said or intended to say or what they think was Parliament's object
and all the facts and circumstances which in their view led to the legislation.
W.P(C) No.26691 of 2010, etc. When they do so, they do not speak for Parliament. No Act
of Parliament may be struck down because of the understanding or misunderstanding of
parliamentary intention by the executive Government or because their (the Government's)
spokesmen do not bring out relevant circumstances but indulge in empty and self-defeating
affidavits. They do not and they cannot bind Parliament. Validity of legislation is not to be
judged merely by affidavits filed on behalf of the State, but by all the relevant
circumstances which the court may ultimately find and more especially by what may be
gathered from what the legislature has itself said. We have mentioned the facts as found by
us and we do not think that there has been any infringement of the right guaranteed by
Article 14.

After vesting of ecologically fragile land under the 2003 Act, the same is to be managed as
per Sec.16 of the 2003 Act with the objectives as enumerated in Sec.16 (2) of the Act.
Objectives of the management as enshrined in Sec.16(2), are is quoted for ready reference;

"Ecologically fragile lands to be managed by Forest Department as per Management Plans.-

xx xx (2) The management plans shall be prepared in

 W.P(C) No.26691 of 2010, etc. accordance with the guidelines issued from time to time by
the State Government and the Government of India for the preparation of Working Plans
and Management Plans for the reserved forest areas and protected areas with a view to-

(i) conserving natural resources;

(ii) arresting depletion and degradation of flora and fauna;

(iii) improving productivity and sustainability; and

(iv) maintaining ecological balance in the ecologically fragile lands:

Provided that the management plans prepared under this sub-section shall be such as to
retaining the rights of the local Scheduled Tribe Communities regarding their means of
livelihood."

Sec.16(2) clearly indicates that management is with the intent to subserve the common good. Benefit
flowing from the forest, protection of ecology subserves the common good and benefit extends to the
public in general.
71. In view of the forging discussion we are of the considered opinion that the 2003 Act has been
enacted to give effect to the directive principle of state policy as
W.P(C) No.26691 of 2010, etc. enshrined in Article 39(b) of the Constitution. The issue is answered
accordingly.
ISSUE NO.VI
72. Learned counsel for both the parties have made elaborate submissions regarding assent by the
President dated 25.4.2005 on the Bill, namely, "The Kerala Forest (Vesting and Management of
Ecologically Fragile Land) Bill, 2001" ("2001-
([

] "). Learned counsel for the

petitioners have contended that the presidential assent dated 25.4.2005 cannot be treated to be an assent
given under Articles 31A and 31C of the Constitution of India, hence the 2003 Act is not protected
from challenge on the ground of violation of Articles 14 and 19 of the Constitution. On the other hand,
the learned
W.P(C) No.26691 of 2010, etc. Senior Counsel for the State contended that the assent dated 25.4.2005
shall also be treated as an assent given by the President within the meaning of Article 31C of the
Constitution.
73. Before we proceed to consider the rival contentions of learned counsel for the parties, it is useful to
note the chronological events and facts leading to presidential assent dated 25.4.2005. The Kerala
Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000 was promulgated by
the Governor on 2.6.2000. Thereafter Ordinance No.8 of 2000 and 3 of 2001 was promulgated.
Ordinance No.16 of 2000 was promulgated by the Government of Kerala on 26.1.2001. A Bill, namely,
Kerala Forest (Vesting and Management of ecologically Fragile Lands) Bill, 2001 was introduced and
published as Bill No.28 in Kerala Gazette Extraordinary dated 3.11.2001. The Bill was
W.P(C) No.26691 of 2010, etc. introduced in the Legislative Assembly on 4.12.2001 and referred to the
Select Committee on the same day. The Select Committee, after detailed discussion, considered the Bill
and recommended the Bill with certain modifications. On 7.8.2003 the Bill was passed by the
Legislative Assembly with certain modifications. When the bill was circulated to the Governor for his
assent, the Governor reserved the Bill for consideration of the President. Letter dated 27.2.2004 was
sent by the Law Secretary to the Government of India. The Ministry of Environment and Forests
conducted certain proceedings on 6.7.2004 and conveyed the consent to the enactment. On 15.7.2004
the Ministry of Urban Development and Poverty Aleviation issued an Office Memorandum stating that
the above Ministry has no objection if the assent of the President is accorded to the above Bill. Certain
clarification was also called for
W.P(C) No.26691 of 2010, etc. and submitted by the State Government. The President assented to the
Bill on 25.4.2005. Letter was communicated to the Governor and thereafter the Bill became the Law
and was published in the Kerala Gazette Extraordinary dated 8.6.2005.
74. The Law Department of the State submitted a note that the draft of the Kerala Forest (Vesting and
Management of Ecologically Fragile Lands) Ordinance, 2000, as approved by the Council of Ministers
requires instructions from the President vide Articles 31A and 254(2) of the Constitution. Opinion of
the Advocate General was obtained, who gave a detailed opinion dated 25.5.2000 opining that the
Ordinance can be promulgated without instructions from the President of India. The Governor noticed
conflicting opinion submitted before him, one strongly advising that it requires previous sanction of the
President, and the
W.P(C) No.26691 of 2010, etc. other refuting that. Following order was passed by the Governor on
3.12.2001:
"I RESERVE THIS BILL FOR THE CONSIDERATION OF THE PRESIDENT."

75. The Bill was forwarded by letter of the Law Secretary dated 15.1.2004. On 27.2.2004 the Law
Secretary sent a revised draft letter for onward transmission to the Government of India for obtaining
the assent of the President of India.
76. The learned Government Pleader has submitted a compilation regarding the presidential assent
containing certain correspondence and notes. In the revised draft letter addressed to the Secretary to the
Government of India, Ministry of Home Affairs, certain facts have been stated, which are at page 39 of
the compilation. It is useful to extract the following relevant portion of the letter:
"To The Secretary to the Government
W.P(C) No.26691 of 2010, etc. of India, Ministry of Hiome Affairs, Government of India,
Jaisalmer House, Mansingh Road, New Delhi-110 011.

Sir, Sub:- The Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Bill,
2001 -

Assent of the President of India - request for - reg.

Ref:- Letter No.1619/99-Judl dated 29th October, 1999, Ministry of Home Affairs,
Government of India, New Delhi.

I am directed to forward herewith three copies of the Kerala Forest (Vesting and
Management of Ecologically Fragile Lands) Bill, 2001, as passed by the Kerala Legislative
Assembly and authenticated by the Speaker, which has been reserved by the Governor of
Kerala, for consideration of the President of India.

I am further directed to state that:-

The Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Bill, 2001 has
been passed by the Kerala Legislative Assembly on the 7th day of August, 2003.

International Union for Conservation of Nature and Natural Resources (IUCN) has declared
the Western Ghats as one of the Biodiversity Hotspots in the world. As signatory to the
Convention of Biological Diversity (CBD) our nation has the responsibility to conserve the
biological
W.P(C) No.26691 of 2010, etc. resources for the sustained economic and social
development of the society and for the maintenance of ecological stability. The Honourable
Supreme Court of India has ordered that natural resources such as forests, rivers etc. shall
be conserved as Public Trust for the welfare of the Society at large. The Apex Court while
laying down the principle and guidelines of the 'Public Trust Doctrine' has stipulated that
resources like air, sea, water and the forest have such a great importance to the people as a
whole that it would be wholly unjustified to make them a subject of private ownership. The
Honourable Supreme Court has further ordered that the 'Public Trust Doctrine' as laid down
by it shall be part of the law of the land, that the State Government and the statutory
authorities must anticipate, prevent and attack the causes of environmental degradation, and
that, where there are threats of serious and irreversiable damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent environmental
degradation.

It has been observed that many ecologically fragile areas in the State are under the private
ownership. Over- exploitation and unsound management of the resources therein would
lead to irreversible degradation of social, economic and ecological stability of the State. As
a precautionary and preventive measure, the Government consider it necessary to enact a
legislation to bring the ecologically fragile areas under the ownership of the State and to
ensure their conservation for the welfare of the
 W.P(C) No.26691 of 2010, etc. society and of the nation at large....."

77. The letter, after noticing the entire chronological details of promulgation of Ordinance,
recommendation of the Select Committee and noting of the Governor, in the end, made the following
request:
"I am directed to request you that the assent of the President of India to the Bill may kindly
be obtained and communicated."

78. There has been correspondence, including letter from the Government of India, Ministry of
Environment and Forests (Forest Policy Division) and reply to the clarification sent by the Secretary to
the Governor and ultimately, the President of India assented to the Bill. On the Bill itself, which
contains endorsement of the Governor, the President of India recorded his assent on 25.4.2005 to the
following effect:
"I ASSENT TO THIS BILL."

79. Learned counsel for the petitioners submits

W.P(C) No.26691 of 2010, etc. that in the note put by the Governor there was no reference to Article
31C of the Constitution nor in the letters, which were forwarded from the State Government there was
any reference to Article 31C, hence the assent having not been specifically sought for with regard to
Article 31C, the assent dated 25.4.2005 shall be treated and assented only in context of Article 254(2)
of the Constitution of India. It is submitted that actually the Governor has reserved the Bill finding out
certain repugnancy with the Central Act, including Forest Conservation Act, 1980.On the contrary, the
learned Senior Advocate for the State submits that the presidential assent need not be specific. It is
submitted that the presidential assent is the general assent. He submits that when the assent is sought
for and given in general terms, it is effective for all purposes. Learned counsel for the parties have
placed reliance on various
W.P(C) No.26691 of 2010, etc. judgments of the Apex Court, which need to be considered first.
80. Learned counsel for both the parties have referred to Constitution Bench judgment reported in
Gram Panchayat of Village, Jamalpur v. Malwinder Singh and others [(1985)3 SCC 661]. In the above
case, presidential assent was sought for by the State Legislature on Punjab Village Common Lands
(Regulation) Act, 1953, under which Shamlat-deh lands have vested in the Panchayat. The above
provisions were repugnant to Administration of Evacuee Property Act, 1950. The Punjab Village
Common Lands (Regulation) Act, 1053 was reserved for the assent of the President for specific
purpose under Articles 31 and 31A of the Constitution. The Act was not reserved for the assent of the
President on the ground that it was repugnant to earlier Act passed by the Parliament,
W.P(C) No.26691 of 2010, etc. namely, 1950 Act. The Apex Court in the aforesaid case has laid down
the following in paragraph 12 of the judgment:
"12. The Punjab Act of 1953 was reserved for consideration of the President and received
his assent on December 26, 1953. Prima facie, by reason of the assent of the President, the
Punjab Act would prevail in the State of Punjab over the Act of the Parliament and the
Panchayats would be at liberty to deal with the Shamlat- deh lands according to the relevant
Rules or bye-laws governing the matter, including the evacuee interest therein. But, there is
a complication of some nicety arising out of the fact that the Punjab Act was reserved for
the assent of the President, though for the specific and limited purpose of Articles 31 and
31-A of the Constitution. Article 31, which was deleted by the Constitution (Forty-fourth
Amendment) Act, 1978 provided for compulsory acquisition of property. Clause (3) of that
article provided that, no law referred to in clause (2), made by the Legislature of a State
shall have effect unless such law, having been reserved for the consideration of the
President, has received his assent. Article 31-A confers protection upon laws falling within
clauses (a) to (e) of that article, provided that such laws, if made by a State Legislature,
have received the assent of the President. Clause (a) of Article 31-A comprehends laws of
agrarian reform. Since the Punjab Act of 1953 extinguished all
W.P(C) No.26691 of 2010, etc. private interests in Shamlat-deh lands and vested those
lands in the Village Panchayats and since, the Act was a measure of agrarian reform, it was
reserved for the consideration of the President. The judgment of the High Court shows that
the hearing of the writ petitions was adjourned to enable the State Government to place
material before the Court showing the purpose for which the Punjab Act of 1953 was
forwarded to the President for his assent. The record shows, and it was not disputed either
before us or in the High Court, that the Act was not reserved for the assent of the President
on the ground that it was repugnant to an earlier Act passed by the Parliament, namely, the
Central Act of 1950. In these circumstances, we agree with the High Court that the Punjab
Act of 1953 cannot be said to have been reserved for the assent of the President within the
meaning of clause (2) of Article 254 of the Constitution insofar as its repugnancy with the
Central Act of 1950 is concerned. The assent of the President under Article 254(2) of the
Constitution is not a matter of idle formality. The President has, at least, to be apprised of
the reason why his assent is sought if, there is any special reason for doing so. If the assent
is sought and given in general terms so as to be effective for all purposes, different
considerations may legitimately arise. But if, as in the instant case, the assent of the
President is sought to the Law for a specific purpose, the efficacy of the assent would be
limited to that purpose and cannot be extended beyond it. Not only was the President not
apprised in the instant case that his
 W.P(C) No.26691 of 2010, etc. assent was sought because of the repugnancy between the
State Act and the pre-existing Central Act on the vesting of evacuee properties but, his
assent was sought for a different, specific purpose altogether. Therefore, that assent cannot
avail the State Government for the purpose of according precedence to the law made by the
State Legislature, namely, the Punjab Act of 1953, over the law made by the Parliament,
even within the jurisdiction of the State."

81. It is relevant to note that in the above observations the Apex Court had observed that "If the assent
is sought and given in general terms so as to be effective for all purposes, different considerations may
legitimately arise.....".
82. The next judgment, which has been relied upon by learned counsel for the petitioners is Kaiser-I-
Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd. [(2002)8 SCC 182], which again was
a Constitution Bench judgment. The contention that once President grants the "assent" to the State
legislation, the state law would prevail on the
W.P(C) No.26691 of 2010, etc. said subject and such "assent" would be deemed to be an assent quo all
earlier enactments made by the Parliament on the subject was negativated. Paragraphs 2 and 3 of the
judgment are quoted below:
"2. The contention is, once the President grants the "assent" to the State legislation, the
State law would prevail on the said subject and such "assent" would be deemed to be an
assent qua all earlier enactments made by Parliament on the subject.

3. This contention is negatived for the reasons recorded hereinafter. It is held that
"consideration" by the President and his "assent" under Article 254(2) is limited to the
proposal made by the State Government; the State legislation would prevail only qua the
laws for which repugnancy was pointed out and the "assent" of the President was sought
for. Proposal by the State is a sine qua non for "consideration" and "assent"."

In the above case it was held that assent under Article 254(2) of the Constitution is limited to the
proposal made by the State Government. The Apex Court in paragraph 14 of the judgment has
observed as follows:
"14. In view of the aforesaid requirements, before obtaining the assent of the President, the
State
 W.P(C) No.26691 of 2010, etc. Government has to point out that the law made by the State
Legislature is in respect of one of the matters enumerated in the Concurrent List by
mentioning entry/entries of the Concurrent List and that it contains provision or provisions
repugnant to the law made by Parliament or existing law. Further, the words "reserved for
consideration" would definitely indicate that there should be active application of mind by
the President to the repugnancy pointed out between the proposed State law and the earlier
law made by Parliament and the necessity of having such a law, in the facts and
circumstances of the matter, which is repugnant to a law enacted by Parliament prevailing
in a State. The word "consideration" would manifest that after careful thinking over and due
application of mind regarding the necessity of having State law which is repugnant to the
law made by Parliament, the President may grant assent. This aspect is further reaffirmed
by use of the word "assent" in clause (2), which implies knowledge of the President to the
repugnancy between the State law and the earlier law made by Parliament on the same
subject-matter and the reasons for grant of such assent. The word "assent" would mean in
the context as an expressed agreement of mind to what is proposed by the State."

83. Another Constitution Bench judgment, which has been referred to and relied in extenso by the
W.P(C) No.26691 of 2010, etc. parties is Rajiv Sarin and another v. State of Uttarakhand and others
[(2011)8 SCC 708] Kumaun and Uttarkhand Zamindari Abolition and Land Reforms Act, 1960, which
provided for vesting of private forest lands in State due to agrarian reform came up for consideration. It
was contended that the provisions of 1960 Act were repugnant to the Forest Act, 1927. Section 4A
providing for vesting was introduced in the 1960 Act by amendment in the year 1978. On the
requirement of obtaining presidential assent in the above case the following was laid down by the Apex
Court in paragraph 58 of the judgment:
"58. Having discussed the law as applicable in the aforesaid manner and upon scrutiny of
subject-matters of both the concurrent Acts, it is crystal clear that no case of repugnancy is
made out in the present case as both the Forest Act, 1927 and the KUZALR Act operate in
two different and distinct fields as pointed out hereinbefore. Accordingly, both the Acts are
legally valid and constitutional. That being so, there was no requirement of obtaining any
Presidential assent. Consequently, Article
 W.P(C) No.26691 of 2010, etc. 254(2) of the Constitution has also no application in the
instant case. However, it would be appropriate to discuss the issue as elaborate argument
was made on this issue as well."

84. The Constitution Bench noted both the earlier Constitutional Bench judgments in Gram Panchayat
of Village, Jamalpur's case (supra) and Kaiser-I- Hind (P) Ltd.'s case (supra). After noticing the relevant
observations in both the above judgments in paragraphs 61 and 62, the following was laid down in
paragraphs 64 and 65 of the judgment:
"64. If it is to be contended that Kaiser lays down the proposition that there can be no
general Presidential assent, then such an interpretation would be clearly contrary to the
observation of the Bench in para 27 itself where it states that it is not examining the issue
whether such an assent can be taken as an assent.

65. Such an interpretation would also open the judgment to a charge of being, with respect,
per incuriam as even though while noting the Jamalpur case, it overlooks the extracts in
Jamalpur case dealing with the aspect of general assent: (SCC p. 669, para 12) "12. ... The
assent of the President under
 W.P(C) No.26691 of 2010, etc. Article 254(2) of the Constitution is not a matter of idle
formality. The President has, at least, to be apprised of the reason why his assent is sought
if, there is any special reason for doing so. If the assent is sought and given in general terms
so as to be effective for all purposes, different considerations may legitimately arise. But if,
as in the instant case, the assent of the President is sought to the law for a specific purpose,
the efficacy of the assent would be limited to that purpose and cannot be extended beyond
it."

85. Another judgment of the Apex Court, which needs to be noticed is P.N.Krishna Lal v. Government
of Kerala [(995)2 SCC 187]. In paragraphs 13 and 14 of the judgment the following was laid down:
"13. It is not the requirement of law under Article 254 that the State Government should
seek assent of the President in respect of each and every specified provisions of the Central
Act or Acts in respect of which there would be inconsistency or repugnancy in the
operation of the Central provisions and the State
W.P(C) No.26691 of 2010, etc. enactment. It is enough that once the assent of the President
is sought and given to the State amendment, though to some extent inconsistency or
repugnancy exists between any provision, part or parts of any Act or Acts of any Central
statutes, the repugnancy or inconsistency ceases to operate in relation to the State in which
the assented State enactment operates.

14. In Jamalpur Gram Panchayat case the facts were that specific assent of the President
was sought, namely, Article 31 and Article 31-A of the Constitution vis-`-vis Entry 18 of
List II of the Seventh Schedule of the Constitution. The President had given specific assent.
The Shamlat-deh lands in Punjab were owned by the proprietors of the village, in
proportion to their share in the property of the lands held by them. After the partition, the
proprietary interests in the lands of the migrants and proportionate to share of their lands
vest in the Union of India. The question arose whether the Punjab Village Common Lands
(Regulation) Act, 1953 prevails over Evacuee Property Act, 1950. It was contended that in
view of the assent given by the President, the State Act prevails over the Central Act. This
Court in that context considered the scope of the limited assent. Chandrachud, C.J.
speaking for majority, held that the Central Act, 1950 prevails over the Punjab Act, 1953
and the assent of the President which was obtained for a specific purpose cannot be utilised
for according precedence to the Punjab Act. At page 42, placitum `B' to `E', this Court held
that
 W.P(C) No.26691 of 2010, etc. "the assent of the President under Article 254(2) of the
Constitution is not a matter of idle formality. The President has, at least, to be apprised of
the reason why his assent is sought if, there is any special reason for doing so. If the assent
is sought and given in general terms so as to be effective for all purposes, different
considerations may legitimately arise."

Thus it is clear that this Court did not intend to hold that it is necessary that in every case the assent of
the President in specific terms had to be sought and given for special reasons in respect of each
enactment or provision or provisions. On the other hand, the observation clearly indicates that if the
assent is sought and given in general terms it would be effective for all purposes. In other words, this
Court observed that the assent sought for and given by the President in general terms could be effective
for all purposes unless specific assent is sought and given in which event it would be operative only to
that limited extent."
The proposition was reiterated that if the assent is sought and given by the President in general terms, it
could be effective for all purposes unless a specific assent is sought and given, in which event it would
be operative only to that limited extent.
W.P(C) No.26691 of 2010, etc.
86. In the correspondence regarding the presidential assent, which has been submitted by the learned
Government Pleader, the noting of the Governor on the Bill for reserving the Bill for consideration of
the President has been referred to in his minutes. The endorsement dated 3.12.2003 as noted by the
Governor in the Bill has already been extracted, which only stated that "I reserve this Bill for the
consideration of the President". From the letter of the Law Secretary, which was dated 15.1.2004, sent
to the Secretary to Governor along with letter addressed to the Secretary to Government of India as
well as the revised letter dated 27.2.2004, although all chronological events, passing of Ordinance and
recommendation of Select Committee have been noticed as well as the minutes recorded by the
Governor, there was no specific proposal praying for presidential assent limited to any particular
W.P(C) No.26691 of 2010, etc. enactment. The Law Secretary sent letter dated 27.2.2004 stating "a
revised draft letter for onward transmission to the Government of India for obtaining assent of the
President of India is enclosed as desired in the letter cited". Copy of the revised draft letter for onward
transmission to the Government of India is on the compilation from pages 39 to 51. It is relevant to
extract the last portion of the letter, which also extracted the minutes recorded by the Governor, which
is to the following effect:
"When the file was circulated to the Governor for his assent to the Bill, His Excellency
reserving the Bill for the consideration of the Honourable President has minuted as follows:

"I have carefully gone through the provisions of the Bill that is before me.

In the proposal for the original legislation (pages 45-52 of vol.II and 137-147 of vol.I of file
No17277/E2/99/F&WLD), I find conflicting legal opinions, one strongly advising that it
requires the previous sanction of the President, and the other refuting that. In any case,
being a fait accompli, this is a matter that is
 W.P(C) No.26691 of 2010, etc. outside my consideration now.

I am afraid, the Bill seeks to encroach on the powers of the Government of India.
Dereservation of forests, any land which currently is classified as Forest, is a function that
comes within the jurisdiction of the Government of India, as the law stands now. Section 2
of the Forest Conservation Act, 1980 says:

"2. Restriction on the dereservation of forestrs or use of forest land for non forest purpose-
Notwithstanding anything contained in any other law for the time being in force in a State,
no State Government or other authority shall make, except with the prior approval of the
Central Government, any order directing-

(i) that any reserved forest (within the meaning of the expression "reserved forest" in any
law for the time being in force in that State) or any portion thereof, shall cease to be
reserved;

(ii) that any forest lar any portion thereof may be used for any non-forest purpose:

(iii) that any forest land or any portion thereof may be assigned by way of lease or
otherwise to any private person or to any authority, corporation, agency or any other
organisation not owned, managed or controlled by Government.

(iv) that any forest land or any portion thereof may be cleared of trees which have grown
naturally in that land or portion for the purpsoe of using it for re-

afforestation.
Explanation- For the purpose of this section 'Non-
W.P(C) No.26691 of 2010, etc. forest purpose" means the breaking up or clearing of any forest land or
portion thereof for-
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or
medicinal plants;
(b) any purpose other than re-afforestation." Even the very definition given to the term "Forest" in the
present Bill:-
'"forest" means any land principally covered with naturally grown trees and undergrowth
and includes any forest statutorily recognised and declared as reserved forest, protected
forest or otherwise, but does not include any land which is used principally for the
cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom,
coconut, arecanut or cashew or any other sites of residential buildings and surrounding
essential for the convenient use of such buildings;' cannot, in any way, be repugnant to the
provisions of Forest Conservation Act, 1980, as both have broadly the very same
objectives.

The above observations are in light of the provisions of Article 254 of the Constitution of
India. (The subject 'Forests' is listed as Entry 17-A, List III (Concurrent List), Seventhy
Schedule in the Constitution.) In view of these circumstances, I am constrained to reserve
this Bill for consideration of the Honourable President of India.

Action may kindly be taken in this regard.". I am directed to request you that the assent of
the
W.P(C) No.26691 of 2010, etc. President of India to the Bill may kindly be obtained and
communicated, at an early date.

Six copies each of the following documents are also enclosed:-

1. The Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Bill, 2001,
as introduced in the Legislative Assembly and its English translation.

2. The Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Bill, 2001,
as reported by the Select committee.

3. The Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Bill, 2001,
as passed by the Kerala Legislative Assembly and its English translation."

87. The Bill was reserved by the Governor for assent of the President under Articles 200
and 2001 of the Constitution. Articles 200 and 2001 are quoted as below:

"200. Assent to Bills.--When a Bill has been passed by the Legislative Assembly of a State
or, in the case of a State having a Legislative Council, has been passed by both Houses of
the Legislature of the State, it shall be presented to the Governor and the Governor shall
declare either that he assents to the Bill or that he withholds assent therefrom or that he
reserves the Bill for the consideration of the President:

Provided that the Governor may, as soon as

W.P(C) No.26691 of 2010, etc. possible after the presentation to him of the Bill for assent,
return the Bill if it is not a Money Bill together with a message requesting that the House or
Houses will reconsider the Bill or any specified provisions thereof and, in particular, will
consider the desirability of introducing any such amendments as he may recommend in his
message and, when a Bill is so returned, the House or Houses shall reconsider the Bill
accordingly, and if the Bill is passed again by the House or Houses with or without
amendment and presented to the Governor for assent, the Governor shall not withhold
assent therefrom:

Provided further that the Governor shall not assent to, but shall reserve for the
consideration of the President, any Bill which in the opinion of the Governor would, if it
became law, so derogate from the powers of the High Court as to endanger the position
which that Court is by this Constitution designed to fill.

201. Bills reserved for consideration.--When a Bill is reserved by a Governor for the
consideration of the President, the President shall declare either that he assents to the Bill or
that he withholds assent therefrom:

Provided that, where the Bill is not a Money Bill, the President may direct the Governor to
return the Bill to the House or, as the case may be, the Houses of the Legislature of the
State together with such a message as is mentioned in the first proviso to Article 200 and,
when a Bill is so returned, the House or Houses shall reconsider it accordingly within a
period of six months from the date of receipt of such message and, if it is again passed by
the
W.P(C) No.26691 of 2010, etc. House or Houses with or without amendment, it shall be
presented again to the President for his consideration."

88. When the Bill is reserved for consideration of the President, it is to be presumed that
entire Bill has been considered and assented by the President. All provisions of the Bill
shall be treated to be assented by the President. A provision in the Bill, which subsequently
became the Act, 2003, which contains provision giving effect to the directive principles in
Article 39(b) of the Constitution, shall also be treated to have been assented by the
President. As noted above, present is not a case where a specific proposal praying for
presidential assent with regard to a particular purpose has been prayed for. In the minutes
the Governor has noted certain reasons, but the reason given for reserving the Bill does not
limit the consideration by the President all the provisions of the
W.P(C) No.26691 of 2010, etc. Bill in any manner, especially when there is no specific
proposal seeking limited or specific assent of the President. There is one more reason,
which requires us giving full effect to the presidential assent dated 25.4.2005. After the Bill
is received by the Government of India, there are several noting by the Government,
discussions and consultations. The Government of India being not a party in the leading
Writ Petition, W.P (C).No.26691 of 2010 or W.P(C).No.14064 of 2007, in which detailed
counter affidavit and additional counter affidavit have been filed by the State, it is not safe
to conclude that the President was not appraised of all facts and consequences of 2001 Bill.
It is well settled that assent by the President is not justiciable. Assent of the President being
part of the legislative process, has to be given its due weight and effect. The Constitution
Bench judgments of the Apex Court as relied on by the
 W.P(C) No.26691 of 2010, etc. parties as noted above, do contemplate both a specific
proposal and specific assent as well as general assent.

When there is no specific proposal for any specific or qualified assent, the assent dated 25.4.2005 has
to be treated as a general assent, which will also enure to the benefit of Article 31C as well as Article
31A of the Constitution of India. The issue No.VI is answered accordingly.
ISSUE NO.VII
89. We have already held that the 2003 Act is protected from the challenge under Articles 14 and 19 of
the Constitution of India in view of the protection extended to the Act under Article 31C of the
Constitution. However looking into the elaborate submissions made by the learned counsel for the
petitioners characterising the 2003 Act arbitrary, discriminatory, devoid of rational classification, we
are
W.P(C) No.26691 of 2010, etc. of the view that said submissions also need to be considered on merits
to decide the real nature and character of the Act. Thus we proceed to examine the submissions
challenging the Act as violative of Article 14 and 19 of the Constitution on merits also.
90. Grounds which have been pressed by the learned counsel for the petitioners challenging the Act
under Articles 14 and 19 of the Constitution include that (i) the Act takes away land of the petitioners
without providing for any compensation for the land taken whereas Article 300A inhears payment of
compensation; (ii) there is no rational classification between the land which is notified under Sec.3 and
the land which is notified under Sec.4 and denying compensation to one category of owners, i.e., whose
lands are notified under Sec.3 which is arbitrary and discriminatory. (iii) The mere fact that petitioner's
land
W.P(C) No.26691 of 2010, etc. are lying contiguous to or encircled by reserved forest, vested forest or
any other land owned by the Government does not furnish any valid reason for classification of the
land. What is contiguous has neither been defined in the Act nor there is any rational definition.
Whether the entire land has to be contiguous or even if it is only a fraction of the land is contiguous, the
entire land is taken, are issues for which there is no indication in the Act and there is no specific
explanation. Definition of the ecologically fragile land is an unsatisfactory definition without being
based on any rational basis. Submissions in detail have already been noted above which needs no
repetition. Before we take up the challenge to the aforesaid grounds to the Act it is relevant to note
certain basic facts and principles governing the environmental law. The Apex Court by its various
judgments has laid down various
W.P(C) No.26691 of 2010, etc. principles and directions to the Central and State Governments
regarding environment, ecology and forest. As noted above, Article 48A obliges the State to endeavour
to protect and improve the environment and safeguard the forest and wild life of the country, to have a
clean environment have also been read under Article 21 of the Constitution of India. Public Trust
doctrine that the natural resources of the earth "air, water, forest, hills, etc., are held by the State in trust
which have to be utilised for the welfare of the common people.
91. More than three decades ago, Justice O.Chinnapa Reddy in State of Tamil Nadu v. M/s.HInd Stone
and others [A.I.R 1981 SC 711] sounded a note of caution to all governments in following words:
"6. Rivers, Forests, Minerals and such other resources constitute a nation's natural wealth.
These resources are
 W.P(C) No.26691 of 2010, etc. not to be frittered away and exhausted by any one
generation. Every generation owes a duty to all succeeding generations to develop and
conserve the natural resources of the nation in the best possible way. It is in the interest of
mankind. It is in thew interest of the nation..............."

92. A judgment sounding great concern on the environmental law was delivered by the Supreme Court
in M.C.Mehta v. Kamal Nath ([1997] 1 SCC
388). The Apex Court in the said judgment held that the public has a right to expect certain lands and
natural areas to retain their natural characteristic which concept is finding its way into the law of the
land. It is useful to quote paragraph 23 of the judgment.
23. The notion that the public has a right to expect certain lands and natural areas to retain their natural
characteristic is finding its way into the law of the land. The need to protect the environment and
ecology has been summed up by David B. Hunter (University of Michigan) in an article titled An
ecological perspective on property : A call for judicial protection of the public's interest in
environmentally critical resources published in Harvard Environmental Law Review, Vol. 12 1988, p.
311 is in the following words:
W.P(C) No.26691 of 2010, etc. "Another major ecological tenet is that the world is finite.
The earth can support only so many people and only so much human activity before limits
are reached. This lesson was driven home by the oil crisis of the 1970s as well as by the
pesticide scare of the 1960s. The current deterioration of the ozone layer is another vivid
example of the complex, unpredictable and potentially catastrophic effects posed by our
disregard of the environmental limits to economic growth. The absolute finiteness of the
environment, when coupled with human dependency on the environment, leads to the
unquestionable result that human activities will at some point be constrained.

`Human activity finds in the natural world its external limits. In short, the environment
imposes constraints on our freedom; these constraints are not the product of value choices
but of the scientific imperative of the environment's limitations. Reliance on improving
technology can delay temporarily, but not forever, the inevitable constraints. There is a limit
to the capacity of the environment to service ... growth, both in providing raw materials and
in assimilating by-product wastes due to consumption. The largesse of technology can only
postpone or disguise the inevitable.' Professor Barbara Ward has written of this ecological
imperative in particularly vivid language:
W.P(C) No.26691 of 2010, etc. `We can forget moral imperatives. But today the morals of
respect and care and modesty come to us in a form we cannot evade. We cannot cheat on
DNA. We cannot get round photosynthesis. We cannot say I am not going to give a damn
about phytoplankton. All these tiny mechanisms provide the preconditions of our planetary
life. To say we do not care is to say in the most literal sense that "we choose death".' There
is a commonly-recognized link between laws and social values, but to ecologists a balance
between laws and values is not alone sufficient to ensure a stable relationship between
humans and their environment. Laws and values must also contend with the constraints
imposed by the outside environment. Unfortunately, current legal doctrine rarely accounts
for such constraints, and thus environmental stability is threatened. Historically, we have
changed the environment to fit our conceptions of property. We have fenced, plowed and
paved. The environment has proven malleable and to a large extent still is. But there is a
limit to this malleability, and certain types of ecologically important resources -- for
example, wetlands and riparian forests -- can no longer be destroyed without enormous
long-term effects on environmental and therefore social stability. To ecologists, the need for
preserving sensitive resources does not reflect value choices but rather is the necessary
result of objective observations of the laws of nature.
 W.P(C) No.26691 of 2010, etc. In sum, ecologists view the environmental sciences as
providing us with certain laws of nature. These laws, just like our own laws, restrict our
freedom of conduct and choice. Unlike our laws, the laws of nature cannot be changed by
legislative fiat; they are imposed on us by the natural world. An understanding of the laws
of nature must therefore inform all of our social institutions." Elaborating the public trust
doctrine it was further observed by the Apex Court in the said case that judicial concern has
been so in protecting all ecologically important lands. In paragraphs 25 and 33 the
following was laid down.

"25. The Public Trust Doctrine primarily rests on the principle that certain resources like
air, sea, waters and the forests have such a great importance to the people as a whole that it
would be wholly unjustified to make them a subject of private ownership. The said
resources being a gift of nature, they should be made freely available to everyone
irrespective of the status in life. The doctrine enjoins upon the Government to protect the
resources for the enjoyment of the general public rather than to permit their use for private
ownership or commercial purposes.

According to Professor Sax the Public Trust Doctrine imposes the following restrictions on
governmental
W.P(C) No.26691 of 2010, etc. authority:
"Three types of restrictions on governmental authority are often thought to be imposed by
the public trust: first, the property subject to the trust must not only be used for a public
purpose, but it must be held available for use by the general public; second, the property
may not be sold, even for a fair cash equivalent; and third the property must be maintained
for particular types of uses."

33. It is no doubt correct that the public trust doctrine under the English common law extended only to
certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent
cases have expanded the concept of the public trust doctrine. The observations of the Supreme Court of
California in Mono Lake case clearly show the judicial concern in protecting all ecologically important
lands, for example fresh water, wetlands or riparian forests. The observations of the Court in Mono
Lake case to the effect that the protection of ecological values is among the purposes of public trust,
may give rise to an argument that the ecology and the environment protection is a relevant factor to
determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United
States are finally beginning to adopt this reasoning and are expanding the public trust to encompass
new types of lands and waters. In Phillips Petroleum Co. v. Mississippi the United States
W.P(C) No.26691 of 2010, etc. Supreme Court upheld Mississippi's extension of public trust doctrine
to lands underlying non-navigable tidal areas. The majority judgment adopted ecological concepts to
determine which lands can be considered tide lands. Phillips Petroleum case assumes importance
because the Supreme Court expanded the public trust doctrine to identify the tide lands not on
commercial considerations but on ecological concepts. We see no reason why the public trust doctrine
should not be expanded to include all ecosystems operating in our natural resources. The concept of
ecologically fragile land was also noticed in the above judgment. It was laid down that State is the
trustee of all natural resources and under legal duty to protect the natural resources. It is further held
that these resources cannot be converted into private ownership. Following was laid down in paragraph
34.
"34. Our legal system -- based on English common law -- includes the public trust doctrine as part of
its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public
use and enjoyment. Public at large is the beneficiary of the sea- shore, running waters, airs, forests and
ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources.
These resources meant for
W.P(C) No.26691 of 2010, etc. public use cannot be converted into private ownership.
93. The next judgment is T.N.Godavarman Thirumulpad v. Union of India and Others [(1997) 2 SCC
267]. The Apex Court in the above case held that the words "forest must be understood according to its
dictionary meaning and the forest be identified by the Government irrespective of ownership.
Following is laid down by the Supreme Court in the said case.
"4. The Forest Conservation Act, 1980 was enacted with a view to check further
deforestation which ultimately results in ecological imbalance; and therefore, the provisions
made therein for the conservation of forests and for matters connected therewith, must
apply to all forests irrespective of the nature of ownership or classification thereof. The
word "forest" must be understood according to its dictionary meaning. This description
covers all statutorily recognised forests, whether designated as reserved, protected or
otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "forest
land", occurring in Section 2, will not only include "forest" as understood in the dictionary
sense, but also any area recorded as forest in the Government record irrespective of the
ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The
W.P(C) No.26691 of 2010, etc. provisions enacted in the Forest Conservation Act, 1980 for
the conservation of forests and the matters connected therewith must apply clearly to all
forests so understood irrespective of the ownership or classification thereof. This aspect has
been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State
of Gujarat Rural Litigation and Entitlement Kendra v. State of U.P. and recently in the order
dated 29-11-1996 (Supreme Court Monitoring Committee v. Mussoorie Dehradun
Development Authority). The earlier decision of this Court in State of Bihar v. Banshi Ram
Modi has, therefore, to be understood in the light of these subsequent decisions. We
consider it necessary to reiterate this settled position emerging from the decisions of this
Court to dispel the doubt, if any, in the perception of any State Government or authority.
This has become necessary also because of the stand taken on behalf of the State of
Rajasthan, even at this late stage, relating to permissions granted for mining in such area
which is clearly contrary to the decisions of this Court. It is reasonable to assume that any
State Government which has failed to appreciate the correct position in law so far, will
forthwith correct its stance and take the necessary remedial measures without any further
delay.

In paragraph 5 of the judgment general directions were issued by the Apex Court. It is
relevant to quote
 W.P(C) No.26691 of 2010, etc. direction No.5 which is to the following effect:

5. We further direct as under:

I. GENERAL

1. In view of the meaning of the word "forest" in the Act, it is obvious that prior approval of
the Central Government is required for any non-forest activity within the area of any
"forest". In accordance with Section 2 of the Act, all on-going activity within any forest in
any State throughout the country, without the prior approval of the Central Government,
must cease forthwith. It is, therefore, clear that the running of saw mills of any kind
including veneer or plywood mills, and mining of any mineral are non-forest purposes and
are, therefore, not permissible without prior approval of the Central Government.
Accordingly, any such activity is prima facie violation of the provisions of the Forest
Conservation Act, 1980. Every State Government must promptly ensure total cessation of
all such activities forthwith.

2. In addition to the above, in the tropical wet evergreen forests of Tirap and Changlang in
the State of Arunachal Pradesh, there would be a complete ban on felling of any kind of
trees therein because of their particular significance to maintain ecological balance needed
to preserve bio-diversity. All saw mills, veneer mills and plywood mills in Tirap and
Changlang in Arunachal Pradesh and within a distance of 100 kms from its border, in
Assam, should also be closed immediately.

The State Governments of Arunachal Pradesh and Assam must ensure compliance of this direction.
W.P(C) No.26691 of 2010, etc.
3. The felling of trees in all forests is to remain suspended except in accordance with the working plans
of the State Governments, as approved by the Central Government. In the absence of any working plan
in any particular State, such as Arunachal Pradesh, where the permit system exists, the felling under the
permits can be done only by the Forest Department of the State Government or the State Forest
Corporation.
4. There shall be a complete ban on the movement of cut trees and timber from any of the seven North-
Eastern States to any other State of the country either by rail, road or waterways. The Indian Railways
and the State Governments are directed to take all measures necessary to ensure strict compliance of
this direction. This ban will not apply to the movement of certified timber required for defence or other
Government purposes. This ban will also not affect felling in any private plantation comprising of trees
planted in any area which is not a forest.
5. Each State Government should constitute within one month an Expert Committee to:
(i) Identify areas which are "forests", irrespective of whether they are so notified,
recognised or classified under any law, and irrespective of the ownership of the land of such
forest;

(ii) identify areas which were earlier forests but stand degraded, denuded or cleared; and
 W.P(C) No.26691 of 2010, etc.

(iii) identify areas covered by plantation trees belonging to the Government and those
belonging to private persons.

94. In T.N.Godavarman Thirumulpad v. Union of India and Others [(2002) 10 SCC 606] further
directions were also issued by the Apex Court on 30.10.2002. In the above case the Apex Court has
extracted the off quoted reply of the wise Indian Chief of Seattle to the offer of the Great White Chief
in Washington to buy their land. The reply contained a wisdom of ages which has been extensively
extracted in paragraph 14 of the judgment which we quote as below:
"14. "Environment" is a difficult word to define. Its normal meaning relates to the
surroundings, but obviously that is a concept which is relatable to whatever object it is
which is surrounded. Einstein had once observed, "The environment is everything that isn't
me."

About one-and-a-half century ago, in 1854, as the famous story goes, the wise Indian Chief of Seattle
replied to the offer of the Great White Chief in Washington to buy their land. The reply is profound. It
is
W.P(C) No.26691 of 2010, etc. beautiful. It is timeless. It contains the wisdom of the ages. It is the first
ever and the most understanding statement on environment. The whole of it is worth quoting as any
extract from it is to destroy its beauty:
"How can you buy or sell the sky, the warmth of the land? The idea is strange to us.

If we do not own the freshness of the air and the sparkle of the water, how can you buy
them?

Every part of the earth is sacred to my people. Every shining pine needle, every sandy
shore, every mist in the dark woods, every clearing and humming insect is holy in the
memory and experience of my people. The sap which courses through the trees carries the
memories of the red man.

`the white man's dead forget the country of their birth when they go to walk among the
stars. Our dead never forget this beautiful earth, for it is the mother of the red man. We are
part of the earth and it is part of us. The perfumed flowers are our sisters; the horse, the
great eagle, these are our brothers. The rocky crests, the juices in the meadows, the body
heat of the pony, and man -- all belong to the same family'.

So, when the Great Chief in Washington sends word and he wishes to buy our land, he asks
much of us. The Great Chief sends word he will reserve us a place so that we can live
comfortably to ourselves. He will be our father and we will be his children. So we will
consider your offer to buy our land. But it will not be easy. For this land is sacred to us.
W.P(C) No.26691 of 2010, etc. This shining water moves in the streams and rivers is not
just water but the blood of our ancestors. If we sell you land, you must remember that it is
sacred, and you must teach your children that it is sacred and that each ghostly reflection in
the clear water of the lakes tells of events and memories in the life of my people. The
water's murmur is the voice of my father's father. The rivers are our brothers, they quench
our thirst. The rivers carry our canoes, and feed our children. If we sell you our land you
must remember, and teach your children, that the rivers are our brothers, and yours and you
must henceforth give the kindness you would give any brother.

We know that the white man does not understand our ways. One portion of land is the same
to him as the next, for he is a stranger who comes in the night and takes from the land
whatever he needs. The earth is not his brother but his enemy and when he has conquered
it, he moves on. He leaves his father's graves behind, and he does not care.

He kidnaps the earth from his children. His father's grave and his children's birthright are
forgotten. He treats his mother, the earth, and his brother, the sky, as things to be bought,
plundered, sold like sheep or bright beads. His appetite will devour the earth and leave
behind only a desert.

I do not know. Our ways are different from your ways. The sight of your cities pains the
eyes of the red man. But perhaps it is because the red man is a savage and
W.P(C) No.26691 of 2010, etc. does not understand.

There is no quiet place in the white man's cities. No place to hear the unfurling of leaves in
spring or the rustle of an insect's wings. But perhaps it is because I am a savage and do not
understand. The clatter only seems to insult the ears. And what is there in life if a man
cannot hear the lonely cry of the whippoorwill or the arguments of the frogs around a pond
at night? I am a red man and do not understand. The Indian prefers the soft sound of the
wind darting over the face of a pond, and the smell of the wind itself, cleansed by a midday
rain, or scented with the piqon pine.

The air is precious to the red man, for all things share the same breath -- the beast, the tree,
the man, they all share the same breath. The white man does not seem to notice the air he
breathes. Like a man lying for many days, he is numb to the stench. But if we sell you our
land, you must remember that the air is precious to us, that the air shares its spirit with all
the life it supports. The wind that gave our grandfather his first breath also receives the last
sign. And if we sell you our land, you must keep it apart and sacred as a place where even
the white man can go to taste the wind that is sweetened by the meadow's flowers.

So we will consider your offer to buy our land. If we decide to accept, I will make one
condition. The white man must treat the beasts of this land as his brothers. I am a savage
and I do not understand any other way. I have seen a thousand rotting buffaloes on the
prairie, left
W.P(C) No.26691 of 2010, etc. by the white man who shot them from a passing train. I am
a savage and I do not understand how the smoking iron horse can be more important than
the buffalo that we kill only to stay alive.

What is man without the beasts? If all the beasts were gone, man would die from a great
loneliness of spirit. For whatever happens to the beasts soon happens to man. All things are
connected.

You must teach your children that the ground beneath their feet is the ashes of our
grandfathers, so that they will respect the land. Tell your children that the earth is rich with
the lives of our kin. Teach your children what we have taught our children, that the earth is
our mother. Whatever befalls the earth befalls the sons of the earth. If man spits upon the
ground, they spit upon themselves.

This we know: the earth does not belong to man, man belongs to the earth. This we know:
all things are connected like the blood which unites one family. All things are connected.

Whatever befalls the earth befalls the sons of the earth. Man did not weave the web of life;
he is merely a strand in it. Whatever he does to the web he does to himself. Even the white
man, whose God walks and talks with him as friend to friend cannot be exempt from the
common destiny. We may be brothers after all. We shall see. One thing we know, which the
white man may one day discover -- our God is the same God. You may think now that you
own him as you wish to own our land; but you
 W.P(C) No.26691 of 2010, etc. cannot. He is the God of man, and his compassion is equal
for the red man and the white. This earth is precious to him, and to harm the earth is to heap
contempt on the creator. The white too shall pass perhaps sooner than all other tribes.
Contaminate your bed and you will one night suffocate in your own waste. But in your
perishing you will shine brightly, fired by the strength of the God who brought you this
land and for some special purpose gave you dominion over this land and over the red man.
That destiny is a mystery to us, for we do not understand when the wild buffaloes are
slaughtered, the wild horses are tamed, the secret corners of the forest heavy with scent of
many men and the view of the ripe hills blotted by talking wires. Where is the thicket?
Gone. Where is the eagle? Gone. The end of living and the beginning of survival."

The Apex Court noted that environmental protection has become a matter of great concern for human
existence. It was held that it is the constitutional imperative on the Central and State Governments to
safeguard the environment and also take measures to protect and improve the interest following was
laid down in paragraphs 17 and 29.
W.P(C) No.26691 of 2010, etc. "17. Article 48-A in Part IV (Directive Principles) of the Constitution
of India, 1950 brought by the Constitution (Forty-second Amendment) Act, 1976, enjoins that "State
shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the
country". Article 47 further imposes the duty on the State to improve public health as its primary duty.
Article 51-A(g) imposes "a fundamental duty" on every citizen of India to protect and improve the
natural "environment" including forests, lakes, rivers and wildlife and to have compassion for living
creatures. The word "environment" is of broad spectrum which brings within its ambit "hygienic
atmosphere and ecological balance". It is, therefore, not only the duty of the State but also the duty of
every citizen to maintain hygienic environment. The State, in particular has a duty in that behalf and to
shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance
and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and
its attainment including the right to life with human dignity encompasses within its ambit, the
protection and preservation of environment, ecological balance free from pollution of air and water,
sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental
pollution. Therefore, hygienic environment is an integral facet of right to healthy life and it would be
impossible to live with human dignity without a humane and healthy environment. Environmental
protection,
W.P(C) No.26691 of 2010, etc. therefore, has now become a matter of grave concern for human
existence. Promoting environmental protection implies maintenance of the environment as a whole
comprising the man-made and the natural environment. Therefore, there is constitutional imperative on
the Central Government, State Governments and bodies like municipalities, not only to ensure and
safeguard proper environment but also an imperative duty to take adequate measures to promote,
protect and improve the man- made environment and natural environment.
xx xx xx
29. To protect and improve the environment is a constitutional mandate. It is a commitment for a
country wedded to the ideas of a welfare State. The world is under an impenetrable cloud. In view of
enormous challenges thrown by the industrial revolution, the legislatures throughout the world are busy
in their exercise to find out means to protect the world. Every individual in the society has a duty to
protect nature. People worship the objects of nature. The trees, water, land and animals had gained
important positions in the ancient times. As Manu VIII, p. 282 says, different punishments were
prescribed for causing injuries to plants. Kautilya went a step further and fixed the punishment on the
basis of importance of the part of the tree."
95. The next judgment we need to be noted is the judgment of the Apex Court in T.N. Godavarman
W.P(C) No.26691 of 2010, etc. Thirumulpad v. Union of India and Others [(2006) 1 SCC 1]. After
noticing the constitutional provisions regarding protection and improvement of natural environment
including forest, river, well, etc, the following was laid down in paragraphs 3 and 68.
"3. Forests are a vital component to sustain the life support system on the earth. Forests in
India have been dwindling over the years for a number of reasons, one of it being the need
to use forest area for development activities including economic development.
Undoubtedly, in any nation development is also necessary but it has to be consistent with
protection of environments and not at the cost of degradation of environments. Any
programme, policy or vision for overall development has to evolve a systemic approach so
as to balance economic development and environmental protection. Both have to go hand in
hand. In the ultimate analysis, economic development at the cost of degradation of
environments and depletion of forest cover would not be long-lasting. Such development
would be counterproductive. Therefore, there is an absolute need to take all precautionary
measures when forest lands are sought to be directed for non-forest use.

xx xx xx

68. The duty to preserve natural resources in pristine purity has been highlighted in M.C.
Mehta v.
W.P(C) No.26691 of 2010, etc. Kamal Nath. After considering the opinion of various
renowned authors and decisions rendered by other countries as well on environment and
ecology, this Court held that the notion that the public has a right to expect certain lands
and natural areas to retain their natural characteristics is finding its way into the law of the
land. The Court accepted the applicability of public trust doctrine and held that it was
founded on the ideas that certain common properties such as rivers, seashore, forests and
the air were held by the Government in trusteeship for the free and unimpeded use of the
general public. These natural resources have a great importance to the people as a whole
that it would be wholly unjustified to make them subject to private ownership. These
resources being a gift of nature, should be made freely available to everyone irrespective of
their status in life. The doctrine enjoins upon the Government to protect the resources for
the enjoyment of the general public rather than to permit their use for private ownership or
commercial purposes. It was held that our legal system -- based on English common law --
includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all
natural resources which are by nature meant for public use and enjoyment. The public at
large is the beneficiary of these resources. The State as a trustee is under a legal duty to
protect these natural resources. Summing up the Court said: (SCC p. 413, para 35) "35. We
are fully aware that the issues presented in this case illustrate the classic struggle between
those members of the public
 W.P(C) No.26691 of 2010, etc. who would preserve our rivers, forests, parks and open
lands in their pristine purity and those charged with administrative responsibilities who,
under the pressures of the changing needs of an increasingly complex society, find it
necessary to encroach to some extent upon open lands heretofore considered inviolate to
change. The resolution of this conflict in any given case is for the legislature and not the
courts. If there is a law made by Parliament or the State Legislatures the courts can serve as
an instrument of determining the legislative intent in the exercise of its powers of judicial
review under the Constitution. But in the absence of any legislation, the executive acting
under the doctrine of public trust cannot abdicate the natural resources and convert them
into private ownership, or for commercial use. The aesthetic use and the pristine glory of
the natural resources, the environment and the ecosystems of our country cannot be
permitted to be eroded for private, commercial or any other use unless the courts find it
necessary, in good faith, for the public good and in public interest to encroach upon the said
resources."

In view of the above, we hold that the natural resources are not the ownership of any one State or
individual, the public at large is its beneficiary and, therefore, the contention of Mr. Venugopal that the
amount of NPV shall be made over to the State Government cannot be accepted."
The Apex Court further noticed the Forest Policy, 1988 of the Central Government. Following was laid
down in paragraphs 72 and 73:
W.P(C) No.26691 of 2010, etc. "72. The Forest Policy has a statutory flavour. The non-
fulfilment of the aforesaid principle aim would be violative of Articles 14 and 21 of the
Constitution. The basic objectives of the Forest Policy, 1988 are:

"2.1. The basic objectives that should govern the National Forest Policy are the following:

-- Maintenance of environmental stability through preservation and, where necessary,

restoration of the ecological balance that has been adversely disturbed by serious depletion
of the forests of the country.

-- Conserving the natural heritage of the country by preserving the remaining natural forests
with the vast variety of flora and fauna, which represent the remarkable biological diversity
and genetic resources of the country.

-- Checking soil erosion and denudation in the catchment areas of rivers, lakes and
reservoirs in the interest of soil and water conservation, for mitigating floods and droughts
and for the retardation of siltation of reservoirs.

-- Checking the extension of sand dunes in the desert areas of Rajasthan and along the
coastal tracts.

-- Increasing substantially the forest/tree cover in the country through massive afforestation
and social forestry programmes, especially on all denuded, degraded and unproductive
lands.

-- Meeting the requirements of fuelwood, fodder, minor forest produce and small timber of
the rural and tribal populations.

-- Increasing the productivity of forests

 W.P(C) No.26691 of 2010, etc. to meet essential national needs.

-- Encouraging efficient utilisation of forest produce and maximum substitution of wood.

-- Creating a massive people's movement with the involvement of women, for achieving
these objectives and to minimise pressure on existing forests.

2.2. The principal aim of the Forest Policy must be to ensure environmental stability and
maintenance of ecological balance including atmospheric equilibrium which are vital for
sustenance of all life forms, human, animal and plant. The derivation of direct economic
benefit must be subordinated to this principal aim."

73. It has been recognised that one of the essentials for forest management is the conservation of total
biological diversity, the network of national parks, sanctuaries, biosphere reserves and other protected
areas to be strengthened and extended adequately." After noticing the aforesaid pronouncements of the
Supreme Court it is also relevant to note the reasons given by the State Government in its counter
affidavit for enacting the 2003 Act. A detailed counter affidavit has been filed in Writ Petition No.6814
of 2013 which has been adopted in almost all the Writ Petitions by the
W.P(C) No.26691 of 2010, etc. State. Counter affidavits notice the relevant constitutional provisions.
As stated above, there is an ongoing global biodiversity crisis due to unprecedented loss of natural
ecosystem. Paragraphs 12 and 13 of the counter affidavit are quoted below:
"12. Further on notice of the alarming depletion of Forests of the country over years, the
Government of India have decided to review and revise the existing national Forest Policy
of 1952 and hence adopted a fresh national Forest Policy in the year 1988 to be followed by
all the States. The prime objectives of the National Forest Policy, 1988 are:-

a. Maintenance of environmental stability through preservation and where necessary,

restoration of ecological balance that has been adversely disturbed by serious depletion of
the forests of the country.

b. Conserving the natural heritage of the country by preserving the remaining natural
forests with the vast variety of flora and fauna, which represent the remarkable biological
diversity and genetic resources of the country.

c. The principal aim of forest policy must be to ensure environmental stability and
maintenance of ecological balance including atmospheric equilibrium which are vital for
sustenance of all life forms, human, animal and plant. The derivation of direct economic
benefit must be subordinated to this principal aim.(Para 2.1 & 2.02 of National Forest
Policy 1988).

The National Forest Policy 1988 also provides for essential of forest management. As per
para 3.3 of the
W.P(C) No.26691 of 2010, etc. Policy, "for the conservation of total biological diversity,
the network of national parks, sanctuaries, biosphere reserves and other protected areas
should be strengthened and extend adequately." Further para 4.3.1 of the policy provides
that "schemes and project which interfere with forests that clothe steep slopes, catchments
of rivers, lakes and reservoirs, geologically unstable terrain and such other ecologically
sensitive areas should be severely restricted. Tropical rain/moist forests particularly in areas
like Arunachal Pradesh, Kerala, Andaman and Nicobar Islands, should be totally
safeguarded". It is evident from the above policy that the importance of protection of
tropical forest of Kerala have been recognized by Government of India itself.

13. Thus it may be seen that the constitutional provisions and the laws as laid down by
Honourable Supreme Court and Honourable High Court and the National Forest Policy
1988 adopted by Government of India stipulate that:

1. The State shall endeavour to protect and improve the environment and to safeguard the
forests and wildlife of the country(Art.48A).

2. It shall be the duty of every citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wildlife, and to have compassion for living
creatures(Art.51A(g).

3. The State is the trustee of all natural resources such as seashore, running
 W.P(C) No.26691 of 2010, etc. waters, airs, forests and ecologically fragile lands
(M.C.Mehta vs. Kamalnath and others [(1997) 1 SCC 388]. "

Referring to the above conservation of biodiversity and sustenance of ecological services from the
forest, the following was stated in paragraph 15.
"15. Conservation of biodiversity and sustenance of ecological services from forests are the
serious concerns of every Government, every community and every citizen. Timber,
firewood and non-timber forest produce which are merchantable products are no longer the
major concerns of forest management. But more valuable are the ecological services
rendered by the forests which shall be made available not only to the community in and
around the forests, but also to all the human beings in the region and all over the world. It
has now been widely accepted that water is the most important product from forest. In the
absence of forest it would not be possible to retain water in the soil in high ranges and to
sustain flow in the streams and rivers. Forests control floods, sustain perennial streams and
rivers during lean summer months, regulate greenhouse gases in the atmosphere, minimize
global warming, regulate climate change, act as carbon sink and release oxygen. They
conserve biodiversity and genetic resources of the decease resistant and medicinally
valuable plants which from the resource base for
W.P(C) No.26691 of 2010, etc. manufacture of medicines in all systems of medicines such
as Ayurveda, Allopothy, Homeo, Unani, Sidha etc and for very large number of local health
traditions(Naattu Vaidyam). The tropical rain forests in Western ghats are rich repositories
of biodiversity and provide maximum ecological services as mentioned above. It is in view
of this fact, the Conservation International have declared Western ghats to be a biodiversity
hot spot (World's biological richest and most threatened eco system). Over 50% of the
Earth's species are confined to the tropical latitudes, where poverty and population pressure
put tremendous demands on natural eco systems. Even within the tropics, some regions
have higher levels of biodiversity and endemism and need to be prioritized for
conservation. Therefore, the concept of biodiversity hot spot was first put forward by
Myers and the Western Ghats of India and Sri Lanka were included in the first list of 18
global diversity hot spots due to high levels of species endemism. The list of biodiversity
hot spots has now increased to 34 reflecting a severe threat to biodiversity. For example, in
the Western Ghats/Sri.Lanka (WG/SL) biodiversity hot spot, forest loss has been so rapid
that out of the original extent of 182,500 km2 of primary vegetation only 12,480 km2 (i.e.
6.8%) remains (current science volume 93, No.11, 10 December, 2007). All forest area in
the State of Kerala are either on the slopes of the Western Ghats or at its foot hills and form
part and parcel of the biodiversity hot spot. It has been specifically stated in para 4.3.1 in
the National Forest
 W.P(C) No.26691 of 2010, etc. Policy that tropical rain forests in Kerala, Arunachal
Pradesh and Andamans are most precious ecosystems which shall be conserved for the
benefit of the entire humanity. Therefore it is imperative that forest areas in this biodiversity
hot spots are to be conserved for the present and future generations."

96. It has been further stated that the 2003 Act is a legislation precisely to operationalise the legal
principle laid down by the Constitution, the Supreme Court as well as different High Courts. Regarding
mismanagement of ecologically fragile land, the following was stated in paragraphs 19 and 20.
"19. An examination of the scheme of law as per the Kerala Forest (Vesting and
Management of Ecologically Fragile Land) Act, 2003 (hereinafter referred to as EFL Act)
will clearly show that the said legislation is precisely to operationalise the legal principles
laid down by the Constitution, the Honourable Supreme Court and Honourable High Court.
In M C Mehta Case, the Honourable Supreme Court has stated that public at large is the
beneficiary of sea shore, running water, airs, forests and ecological fragile lands. Central
and State Governments have enacted various laws for coastal zone regulation, prevention of
water and air pollution
W.P(C) No.26691 of 2010, etc. and for protection of forests in Government ownership etc.
But there has been no specific law for protecting forests and other ecologically fragile lands
under private ownership. As pronounced by the Honourable Supreme Court and this
Honourable Court, such forests and other ecologically fragile lands cannot be allowed to be
managed by private persons and for commercial purposes. State, as trustees of such lands,
have a duty to take them over and manage scientifically for public good. The impugned
EFL Act is precisely to make up the deficiency in this regard in the present legal system.

20. Kerala has several examples of mismanagement of ecologically fragile lands. If is well
known fact that estuaries and lakes with mangroves vegetation around them are the best
spawning ground for fishes. Depending upon seasons, fish population, in large numbers
accumulate in such spawning areas. Private individuals owning such areas indulge in
intensive fishing similar is the case in respect of roosting and feeding areas of migratory
birds and nesting sites of water birds. Private individuals hunt birds from such sites. It is
also well known that marine turtles travels thousands of kilometers to go to the beaches
chosen by them and lay eggs there. These eggs are stolen and eaten by local people as
delicacy. Several such examples of mismanagement and greed in areas of immense
ecological values can be cited within the State. If they are not managed
 W.P(C) No.26691 of 2010, etc. scientifically and prudently many species would face threat
of poaching and extinction."

From the above it is clear that legislation 2003 is an enactment by the State Legislature to give effect to
the directive principle of state policy as contained in Part IV of the Constitution and the various
pronouncements and directions issued by the Supreme Court by its various judgments. As noted above,
tropical forest in the western ghats, which has been declared as a bio- diversity hot-spot by the
International Union for Conservation of Nature and natural resources, the 2003 Act been passed to
conserve natural resources which are rich repositories of bio-diversity extremely susceptible to rapid
irreversible degradation. The enactment is an arbitrary legislation does not commend us.
97. Ecological fragile land has been defined in Sec.2(b) as any forest land or any portion thereof held
W.P(C) No.26691 of 2010, etc. by any person and lying contiguous to or encircled by a reserved forest
or a vested forest or any other forest land owned by the Government and predominantly supporting
natural vegetation. Forest has been defined in Sec.2(c). For a land to be ecologically fragile land the
pre-condition is that it should be for predominantly supporting natural vegetation. The land lying
contiguous or encircled by a reserved forest or a vested forest or any other forest is with an object of
protecting forest and managing the same as per the provision in Sec.16 of the 2003 Act. To maintain
forest cover as far as possible to support lives on the earth is an eminent necessity. Forest protect the
water, streams and the ground water is an accepted phenomina. In view of the pronouncements of the
Supreme Court and the constitutional obligation no one can dispute that it is becoming the necessity of
the day
W.P(C) No.26691 of 2010, etc. to maintain forest in its pristine form. Thus we are not satisfied that
there is no rational basis for defining ecologically fragile land or vesting lands in the State. It is to be
noted that it is only the forest predominantly supporting natural vegetation which has been taken under
the fold of the Act. Even within the forest there are several land which have been exempted i.e.(i)
which is used principally for the cultivation of crops of long duration (ii) any other sites of residential
buildings and surroundings essential for the convenient use of the said building. The forest land which
is used principally for cultivation of crops of long duration, sites of residential buildings and
surroundings have been exempted from the ambit of ecologically fragile land makes the provision
reasonable non-arbitrary.
98. Much emphasis has been given that there is no valid classification between the land notified under
Sec.3 as well as the land notified under Sec.4. Section 3
W.P(C) No.26691 of 2010, etc. vests ownership and possession of ecologically fragile land held by any
person in the State with effect from the commencement of the Act. The aforesaid vesting is automatic
by operation of law. The vesting of the above land is as per the definition under Sec.2(b) and 2(c) of the
2003 Act. Such land which is vested under Sec.3 is an identifiable land by the contiguity with the
reserve and vested forest. Or land which is encircled by reserve forest and vested forest. It cannot be
said that there is no basis for defining the said land. It is submitted that the word contiguous has not
been satisfactorily defined and may lead to uncertainty and arbitrary exercise of power for issuing
Notification under Sec.3(2). The word "contiguous" has been defined in Law Lexicon by P.Ramanatha
Aiyar, 11th Edn., in the following manner:
"Contiguous. Adjoining; adjacent. "What is contiguous must be fitted to touch entirely on
one side : fields are adjoining to each other; houses contiguous to each other."(Crabbe.
Synonyms)"
W.P(C) No.26691 of 2010, etc. It has also been submitted that lands which are separated by river, or
streams have also treated as contiguous. It is useful to note Sec.2(d) which defined land as "land
includes rivers, streams and its origin and other water bodies." The mere fact that the river flows
between vested forest and land owned by a person cannot lead to the conclusion that such land is not
contiguous. Exercise of declaring and notifying any land which is not contiguous under Sec.3(2) may
be incorrect exercise of power by the authorities which can be corrected by machinery provided in law,
but that cannot be a ground to declare the invalidity of statute. The land which is covered by Sec.4
Notification is within the power vested in the Government to declare any land as ecologically fragile
land after receiving recommendation of the Advisory Committee. Under Sec.15 of the Act a High
Power Committee has been
W.P(C) No.26691 of 2010, etc. constituted consisting of the Principal Chief Conservator of Forest,
Secretary of the Forest Department and other experts on the subject. Further for the land notified under
Sec.4 compensation is also contemplated by virtue of Section 8 of the Act . Those land which is vested
under Sec.3(1) and lands which is to be contemplated to be notified under Sec.4 are entirely different
and based on different criteria. There is valid classification between land which is vested under Sec.3
(1) and subsequently notified under Sec.3(2) as well as the land notified under the Sec.4. It cannot be
said that classification is irrational or without any basis. One more reason for rational classification
between land vested under section 3 and notified under section 4(2) has been explained which gives
justification for classification. If is useful to refer paragraph 77 of the counter affidavit (relevant
portion) in which following
W.P(C) No.26691 of 2010, etc. was stated.
"........ The lands which vests in th Government by virtue of Section 3 are those lands
covered by Section 2

(b) (i) of the above Act. In those lands, there is no human skill, labour and effort has been
made into effect.

In such class of forest land or portion thereof , there is no need to pay any compensation to the person
who is holding the same. There is clear distinction between the properties covered by Section 2(b)(i)
and 2(b)(ii). The properties covered by 2(b)(i) are those properties on which no human skill, labour and
resources have been spent for agricultural operations. Therefore, the owners of such forest lands or
portions thereof are not entitled to any amount as compensation. "
99. Now we come to another ground of challenge of the petitioners to the Sec.3 of the Act. Submissions
of the petitioners are to the effect that Sec.3 contemplated vesting of ecologically fragile land without
payment of compensation. It is submitted that land of petitioners cannot be vested in the State without
payment of compensation and the vesting of land is arbitrary and discriminatory and violates Article 14
of
W.P(C) No.26691 of 2010, etc. the Constitution. It is submitted that even though right of property is
not fundamental right, the entitlement to receive compensation for the land acquired cannot be denied.
Right to property stood as a fundamental right as contained in the Constitution initially.
100. Article 31A was inserted by the Constitution (1st Amendment Act, 1951) to protect Zamindari
Laws. By the 44th Amendment Act, 1978, Articles 19(1)(f) and 31 were deleted from the Constitution
and Article 300A was inserted in Part XII. A Chapter, Chapter IV, "Right To Property". It is useful to
quote paragraphs 3, 4 and 5 of the Statements of Objects and Reasons of the Constitution (44th
Amendment) which are to the following effect:
"3. In view of the special position sought to be given to fundamental rights, the right to
property, which has been the occasion for more than one amendment of the Constitution,
would cease to be a fundamental right and become only a legal right. Necessary
amendments for this purpose are being made to Article 19 and Article 31
 W.P(C) No.26691 of 2010, etc. is being deleted. It would, however be ensured that the
removal of property from the list of fundamental rights would not affect the right of
minorities to establish and administer educational institutions of their choice.

4. Similarly, the right of persons holding land for personal cultivation and within the ceiling
limit to receive compensation at the market value would not be affected.

5. Property, while ceasing to be fundamental right, would, however, be given express

recognition as a legal right, provision being made that no person shall be deprived of his
property save in accordance with law."

Noticing the amendment made by constitution 44th Amendment, it has been held by a Constitution
Bench of this Court that right to property is no longer fundamental right. It is useful to quote paragraph
77 of the judgment of the Apex Court in Rajiv Sarin v. State of Uttarakhand [(2011) 8 SCC 708].
"77. Article 31(2) of the Constitution has since been repealed by the Constitution (Forty-
fourth Amendment) Act, 1978. It is to be noted that Article 300-A was inserted by the
Constitution (Forty-fourth Amendment) Act, 1978 by practically re-inserting Article 31(1)
of the Constitution. Therefore, right to property is no longer a fundamental right but a right
envisaged and conferred by the
W.P(C) No.26691 of 2010, etc. Constitution and that also by retaining only Article 31(1) of
the Constitution and specifically deleting Article 31(2), as it stood. In view of the aforesaid
position the entire concept of right to property has to be viewed with a different mindset
than the mindset which was prevalent during the period when the concept of eminent
domain was the embodied provision of fundamental rights. But even now as provided under
Article 300-A of the Constitution the State can proceed to acquire land for specified use but
by enacting a law through State Legislature or by Parliament and in the manner having
force of law.

101. The question which is to be considered is as to whether Article 300A can be read to
mean that for taking away a property of an owner by law, payment of compensation is
must. It is clear that when the State exercise the power of the eminent domain for acquiring
private property, provision is generally made in the Statute to pay compensation to be fixed
or determined according to the criteria made in the Statute. But a law without payment of
compensation may or may not attract the vice of arbitrariness. Constitution Bench of this
Court in K.T. Plantation Private Limited and
W.P(C) No.26691 of 2010, etc. another v. State of Karnataka [(2011) 9 SCC 1] had
elaborately considered Article 300A and payment of compensation. After noticing the
entire constitutional history of right to property, the following was laid down in paragraphs
166 to 178.

"166. Article 300-A, when examined in the light of the circumstances under which it was
inserted, would reveal the following changes:

1. Right to acquire, hold and dispose of property has ceased to be a fundamental right under
the Constitution of India.

2. Legislature can deprive a person of his property only by authority of law.

3. Right to acquire, hold and dispose of property is not a basic feature of the Constitution,
but only a constitutional right.

4. Right to property, since no more a fundamental right, the jurisdiction of the Supreme
Court under Article 32 cannot be generally invoked, aggrieved person has to approach the
High Court under Article 226 of the Constitution.

167. Arguments have been advanced before us stating that the concept of eminent domain
and its key components be read into Article 300-A and if a statute deprives a person of his
property unauthorisedly, without adequate compensation, then the statute is liable to be
challenged as violative of Articles 14, 19 and 21 and on the principle of the rule of law,
which is the basic structure of our Constitution. Further, it was also contended that
 W.P(C) No.26691 of 2010, etc. the interpretation given by this Court on the scope of
Articles 31(1) and (2) in various judgments be not ignored while examining the meaning
and content of Article 300-

A.
168. Article 300-A proclaims that no person can be deprived of his property save by authority of law,
meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without
any specific legal authority or without the support of law made by a competent legislature. The
expression "property" in Article 300-A confined not to land alone, it includes intangibles like
copyrights and other intellectual property and embraces every possible interest recognised by law.
169. This Court in State of W.B. v. Vishnunarayan and Associates (P) Ltd., while examining the
provisions of the West Bengal Great Eastern Hotel (Acquisition of Undertaking) Act, 1980, held in the
context of Article 300- A that the State or executive officers cannot interfere with the right of others
unless they can point out the specific provisions of law which authorises their rights.
170. Article 300-A, therefore, protects private property against executive action. But the question that
looms large is as to what extent their rights will be protected when they are sought to be illegally
deprived of their properties on the strength of a legislation. Further, it was also argued that the twin
requirements of "public purpose" and "compensation" in case of deprivation of property are inherent
and essential elements or ingredients, or "inseparable concomitants" of the power of
W.P(C) No.26691 of 2010, etc. eminent domain and, therefore, of List III Entry 42, as well and, hence,
would apply when the validity of a statute is in question.
171. On the other hand, it was the contention of the State that since the Constitution consciously
omitted Article 19(1)(f), Articles 31(1) and 31(2), the intention of Parliament was to do away the
doctrine of eminent domain which highlights the principles of public purpose and compensation.
172. Seervai in his celebrated book Constitutional Law of India (4th Edn.), spent a whole Chapter XIV
on the Forty-fourth Amendment, while dealing with Article 300-A. In Para 15.2 (pp. 1157-58) the
author opined that confiscation of property of innocent people for the benefit of private persons is a
kind of confiscation unknown to our law and whatever meaning the word "acquisition" may have does
not cover "confiscation" for, to confiscate means "to appropriate to the public treasury (by way of
penalty)". Consequently, the law taking private property for a public purpose without compensation
would fall outside List III Entry 42 and cannot be supported by another entry in List III.
173. Requirements of a public purpose and the payment of compensation, according to the learned
author, be read into List III Entry 42. Further, the learned author has also opined that the repeal of
Articles 19(1)(f) and 31(2) could have repercussions on other fundamental rights or other provisions
which are to be regarded as part of the basic structure and also stated that notwithstanding
W.P(C) No.26691 of 2010, etc. the repeal of Article 31(2), the word "compensation" or the concept
thereof is still retained in Article 30(1-A) and in the second proviso to Article 31-A(1) meaning thereby
that payment of compensation is a condition of legislative power in List III Entry 42.
174. The learned Senior Counsel Shri T.R. Andhyarujina, also referred to the opinion expressed by
another learned author Prof. P.K. Tripathi, in his article "Right to Property After Forty-fourth
Amendment--Better Protected Than Ever Before". The learned author expressed the opinion that the
right of the individual to receive compensation when his property is acquired or requisitioned by the
State, continues to be available in the form of an implied condition of the power of the State to legislate
on "acquisition or requisition of property" while all the exceptions and limitations set up against and
around it in Articles 31, 31-A and 31-B have disappeared. The learned author opined that Article 300-A
will require obviously, that the law must be a valid law and no law of acquisition or requisition can be
valid unless the acquisition or requisition is for a public purpose, unless there is provision in law for
paying compensation, will continue to have a meaning given to it, by Bela Banerjee case.
175. The learned author, Shri S.B. Sathe, in his article "Right to Property After the Forty-fourth
Amendment: Reflections on Prof. P.K. Tripathi's Observations", to some extent, endorsed the view of
Prof. Tripathi and opined that the Forty-fourth Amendment has
W.P(C) No.26691 of 2010, etc. increased the scope of judicial review in respect of right to property.
The learned author has stated although Article 300-A says that no one shall be deprived of his property
save by authority of law, there is no reason to expect that this provision would protect private property
only against executive action. The learned author also expresses the wish that Article 21 may provide
viable check upon Article 300-A.
176. Durga Das Basu in his book Shorter Constitution of India, 13th Edn., dealt with Article 300-A in
Chapter IV wherein the learned author expressed some reservation about the views expressed by
Seervai, as well as Prof. Tripathi. The learned author expressed the view, that after the Forty-fourth
Amendment Act there is no express provision in the Constitution outside the two cases specified under
Article 30(1-A) and the second proviso to 31-A(1) requiring the State to pay compensation to an
expropriated owner. The learned author also expressed the opinion that no reliance could be placed on
the legislative List III Entry 42 so as to claim compensation on the touchstone of fundamental rights
since the entry in a legislative list does not confer any legislative power but only enumerates fields of
legislation.
177. The learned counsel on the either side, apart from other contentions, highlighted the above views
expressed by the learned authors to urge their respective contentions.
178. The principles of eminent domain, as such, are not seen incorporated in Article 300-A, as we see,
in
W.P(C) No.26691 of 2010, etc. Article 30(1-A), as well as in the second proviso to Article 31-A(1)
though we can infer those principles in Article 300-A. The provision for payment of compensation has
been specifically incorporated in Article 30(1-A) as well as in the second proviso to Article 31-A(1) for
achieving specific objectives. The Constitution (Forty-fourth Amendment) Act, 1978 while omitting
Article 31 brought in a substantive provision clause (1-A) to Article 30. Resultantly, though no
individual or even educational institution belonging to majority community shall have any fundamental
right to compensation in case of compulsory acquisition of his property by the State, an educational
institution belonging to a minority community shall have such fundamental right to claim
compensation in case the State enacts a law providing for compulsory acquisition of any property of an
educational institution established and administered by a minority community. Further, the second
proviso to Article 31-A(1) prohibits the legislature from making a law which does not contain a
provision for payment of compensation at a rate not less than the market value which follows that a law
which does not contain such provision shall be invalid and the acquisition proceedings would be
rendered void. The Constitution Bench elaborately considered Article 300A of the Constitution.
Following was laid down in paragraphs 182 to 192.
"182. We have found that the requirement of
W.P(C) No.26691 of 2010, etc. public purpose is invariably the rule for depriving a person
of his property, violation of which is amenable to judicial review. Let us now examine
whether the requirement of payment of compensation is the rule after the deletion of Article
31(2).

183. Payment of compensation amount is a constitutional requirement under Article 30(1-

A) and under the second proviso to Article 31-A(1), unlike Article 300-A. After the Forty-
fourth Amendment Act, 1978, the constitutional obligation to pay compensation to a person
who is deprived of his property primarily depends upon the terms of the statute and the
legislative policy. Article 300-A, however, does not prohibit the payment of just
compensation when a person is deprived of his property, but the question is whether a
person is entitled to get compensation, as a matter of right, in the absence of any stipulation
in the statute, depriving him of his property.

184. Before answering those questions, let us examine whether the right to claim
compensation on deprivation of one's property can be traced to List III Entry 42.

185. The Constitution (Seventh Amendment) Act, 1956 deleted List I Entry 33, List II
Entry 36 and reworded List III Entry 42 relating to
W.P(C) No.26691 of 2010, etc. "acquisition and requisitioning of property". It was urged
that the above words be read with the requirements of public purpose and compensation.
Reference was placed on the following judgment of this Court in support of that contention.
In State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.97 (SCR at p. 413) this Court
considered Schedule VII List II Entry 48 of the Government of India Act, 1935, "Taxes on
the sale of goods", in accordance with the established legal sense of the word "sale", which
had acquired a definite precise sense and held that the legislature must have intended the
"sale", should be understood in that sense. But, we fail to see why we trace the meaning of
a constitutional provision when the only safe and correct way of construing the statute is to
apply the plain meaning of the words. List III Entry 42 has used the words "acquisition"
and "requisitioning", but Article 300-A has used the expression "deprivation", though the
word "deprived" or "deprivation" takes in its fold "acquisition" and "requisitioning", the
initial presumption is in favour of the literal meaning since Parliament is taken to mean as it
says.

186. A Constitution Bench of this Court in Hoechst Pharmaceuticals Ltd. case, held that the
various entries in List III are not "powers" of legislation but "fields" of legislation. Later, a
W.P(C) No.26691 of 2010, etc. Constitution Bench of this Court in State of W.B. v.
Kesoram Industries Ltd. held that Article 245 of the Constitution is the fountain source of
legislative power. It provides that subject to the provisions of this Constitution, Parliament
may make laws for the whole or any part of the territory of India, and the legislature of a
State may make laws for the whole or any part of the State.

187. The legislative field between Parliament and the legislature of any State is divided by
Article 246 of the Constitution. Parliament has exclusive power to make laws with respect
to any of the matters enumerated in Schedule VII List I, called the Union List and subject to
the said power of Parliament, the legislature of any State has power to make laws with
respect to any of the matters enumerated in List III, called the Concurrent List. Subject to
the above, the legislature of any State has exclusive power to make laws with respect to any
of the matters enumerated in List II, called the State List. Under Article 248, the exclusive
power of Parliament to make laws extends to any matter not enumerated either in the
Concurrent List or State List.

188. We find no apparent conflict with the words used in List III Entry 42 so as to infer that
the payment of compensation is inbuilt or inherent either
W.P(C) No.26691 of 2010, etc. in the words "acquisition and requisitioning" under List III
Entry 42. Right to claim compensation, therefore, cannot be read into the legislative List III
Entry 42.

189. Requirement of public purpose, for deprivation of a person of his property under
Article 300-A, is a precondition, but no compensation or nil compensation or its
illusiveness has to be justified by the State on judicially justiciable standards. Measures
designed to achieve greater social justice, may call for lesser compensation and such a
limitation by itself will not make legislation invalid or unconstitutional or confiscatory. In
other words, the right to claim compensation or the obligation to pay, though not expressly
included in Article 300-A, it can be inferred in that article and it is for the State to justify its
stand on justifiable grounds which may depend upon the legislative policy, object and
purpose of the statute and host of other factors.

190. Article 300-A would be equally violated if the provisions of law authorising
deprivation of property have not been complied with. While enacting Article 300-A
Parliament has only borrowed Article 31(1) (the "Rule of Law" doctrine) and not Article
31(2) (which had embodied the doctrine of eminent domain). Article 300-A enables the
State to put restrictions on the right to property by law. That
 W.P(C) No.26691 of 2010, etc. law has to be reasonable. It must comply with other
provisions of the Constitution. The limitation or restriction should not be arbitrary or
excessive or what is beyond what is required in public interest. The limitation or restriction
must not be disproportionate to the situation or excessive.

191. The legislation providing for deprivation of property under Article 300-A must be
"just, fair and reasonable" as understood in terms of Articles 14, 19(1)(g), 26(b), 301, etc.
Thus in each case, courts will have to examine the scheme of the impugned Act, its object,
purpose as also the question whether payment of nil compensation or nominal
compensation would make the impugned law unjust, unfair or unreasonable in terms of
other provisions of the Constitution as indicated above.

192. At this stage, we may clarify that there is a difference between "no" compensation and
"nil"

compensation. A law seeking to acquire private property for public purpose cannot say that "no
compensation shall be paid". However, there could be a law awarding "nil" compensation in cases
where the State undertakes to discharge the liabilities charged on the property under acquisition and
onus is on the Government to establish validity of such law. In the latter case, the Court in exercise of
judicial review will test such a law keeping in mind
W.P(C) No.26691 of 2010, etc. the above parameters.
Further in paragraphs 205, 209 and 210 the following was laid down.
"205. Plea of unreasonableness, arbitrariness, proportionality, etc. always raises an element
of subjectivity on which a court cannot strike down a statute or a statutory provision,
especially when the right to property is no more a fundamental right. Otherwise the court
will be substituting its wisdom to that of the legislature, which is impermissible in our
constitutional democracy.

209. Statutes are many which though deprive a person of his property, have the protection
of Article 30 (1-A), Articles 31-A, 31-B, 31-C and hence are immune from challenge under
Article 19 or Article 14. On deletion of Article 19(1)(f) the available grounds of challenge
are Article 14, the basic structure and the rule of law, apart from the ground of legislative
competence. In I.R. Coelho case the basic structure was defined in terms of fundamental
rights as reflected under Articles 14, 15, 19, 20, 21 and 32. In that case the Court held that
statutes mentioned in Schedule IX are immune from challenge on the ground of violation of
fundamental rights, but if such laws violate the basic structure, they no longer enjoy the
immunity offered by Schedule IX.

210. The Acquisition Act, it may be noted, has not been included in Schedule IX but since
the Act is
W.P(C) No.26691 of 2010, etc. protected by Article 31-A, it is immune from the challenge
on the ground of violation of Article 14, but in a given case, if a statute violates the rule of
law or the basic structure of the Constitution, is it the law that it is immune from challenge
under Article 32 and Article 226 of the Constitution of India?

102. The Apex Court in Jibubhai Nanbhai Khachar v. Stateog Gujarat [(1995) 1 Suppl. SCC
596] has also elaborately considered the right to property under Article 300A. In paragraph
13 it was held that right to property under Article 300A is not basic feature of the
Constitution. It is only a constitutional right. It was further held that the obligation to pay
compensation to the deprived owner of the property was inherent is untenable. Following
was laid down in paragraphs 30 and 33.

30. Thus it is clear that right to property under Article 300-A is not a basic feature or
structure of the Constitution. It is only a constitutional right. The Amendment Act having
had the protective umbrella of Ninth Schedule habitat under Article 31-B, its invalidity is
immuned from attack by operation of Article 31-A. Even
 W.P(C) No.26691 of 2010, etc. otherwise it would fall under Articles 39(b) and (c) as
contended by the appellants. It is saved by Article 31-C. Though in the first Minerva Mills
case, per majority, Article 14 was held to be a basic structure, the afore- referred and other
preceding and subsequent to the first Minerva Mills case consistently held that Article 14 is
not a basic structure. Article 14 of the Constitution in the context of right to property is not
a basic feature or basic structure. The Constitution 66th Amendment Act, 1990 bringing the
Amendment Act 8 of 1982 under Ninth Schedule to the Constitution does not destroy the
basic structure of the Constitution.

33. It is true as contended by Shri Jhaveri that clause (2) of Article 31 was not suitably
incorporated in Article 300-A but the obligation to pay compensation to the deprived owner
of his property was enjoined as an inherent incident of acquisition under law is equally
untenable for the following reasons. Ramanatha Aiyar's The Law Lexicon Reprint Edn.
1987, p. 385, defined "eminent domain" thus:

"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. This right is
called `eminent domain'."

At p. 386 it was further stated that:

"The sovereign power vested in the State to
 W.P(C) No.26691 of 2010, etc. take private property for the public use, providing first a
just compensation therefor. A superior right to apply private property to public use. A
superior right inherent in society, and exercised by the sovereign power, or upon delegation
from it, whereby the subject-matter of rights of property may be taken from the owner and
appropriated for the general welfare. The right belonging to the society or to the sovereign,
of disposing in cases of necessity, and for the public safety, of all the wealth contained in
the State is called eminent domain. The right of every Government to appropriate,
otherwise than by taxation and its police authority, private property for public use. The
ultimate right of sovereign power to appropriate not only the public property but the private
property of all citizens within the territorial sovereignty, to public purposes. Eminent
domain is in the nature of a compulsory purchase of the property of the citizen for the
purpose of applying to the public use."

In Black's Law Dictionary, 6th Edn., at p. 523 "eminent domain" is defined as:
"The power to take private property for public use by the State, municipalities, and private
persons or corporations authorised to exercise functions of public character.... In the United
States, the power of eminent domain is founded in both the Federal (Fifth Amendment) and
State Constitutions. The Constitution limits the power to taking for a public purpose and
prohibits the exercise of the power of eminent domain without just compensation to the
owners of the property
 W.P(C) No.26691 of 2010, etc. which is taken. The process of exercising the power of
eminent domain is commonly referred to as `condemnation' or `expropriation'."

The Apex Court further laid down that each case must be considered in the facts and circumstances of
its setting. Following was laid down in paragraph 48.
48. The word `property' used in Article 300-A must be understood in the context in which the sovereign
power of eminent domain is exercised by the State and property expropriated. No abstract principles
could be laid. Each case must be considered in the light of its own facts and setting. The phrase
"deprivation of the property of a person" must equally be considered in the fact situation of a case.
Deprivation connotes different concepts. Article 300-A gets attracted to an acquisition or taking
possession of private property, by necessary implication for public purpose, in accordance with the law
made by Parliament or a State Legislature, a rule or a statutory order having force of law. It is inherent
in every sovereign State by exercising its power of eminent domain to expropriate private property
without owner's consent. Prima facie, State would be the judge to decide whether a purpose is a public
purpose. But it is not the sole judge. This will be subject to judicial review and it is the duty of the court
to determine whether a particular purpose is a public purpose or not. Public interest has
W.P(C) No.26691 of 2010, etc. always been considered to be an essential ingredient of public purpose.
But every public purpose does not fall under Article 300-A nor every exercise of eminent domain an
acquisition or taking possession under Article 300-A. Generally speaking preservation of public health
or prevention of damage to life and property are considered to be public purposes. Yet deprivation of
property for any such purpose would not amount to acquisition or possession taken under Article 300-
A. It would be by exercise of the police power of the State. In other words, Article 300-A only limits
the powers of the State that no person shall be deprived of his property save by authority of law. There
has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition
or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation.
Acquisition of mines, minerals and quarries is deprivation under Article 300-A"
The Apex Court also noted provision for payment of compensation. It was held that by way
of interpretation the doctrine of compensation or deprivation of property under Article
300A of the Constitution cannot be introduced. The following was laid down in paragraph
52.

"52. The constitutional history of the interpretation

W.P(C) No.26691 of 2010, etc. of the power of Parliament to amend the Constitution under
Article 368 from Kameshwar Singh to Kesavananda Bharati to give effect to the directive
principles in Part IV vis-`-vis the right to property in Articles 19(1)(f) and 31 as well as the
interpretation of `compensation' from Bela Banerjee to Banks Nationalisation case do
establish that Parliament has ultimately wrested the power to amend the Constitution,
without violating its basic features or structure. Concomitantly legislature has power to
acquire the property of private person exercising the power of eminent domain by a law for
public purpose. The law may fix an amount or which may be determined in accordance
with such principles as may be laid therein and given in such manner as may be specified in
such law. However, such law shall not be questioned on the grounds that the amount so
fixed or amount determined is not adequate. The amount fixed must not be illusory. The
principles laid to determine the amount must be relevant to the determination of the
amount. The doctrine of illusory amount or fixation of the principles to be arbitrary were
evolved drawing support from the language originally couched in the unamended Entry 42
of List III which stood amended by the Constitution 7th Amendment Act with the words
merely "Acquisition and Requisition of Property". Nevertheless even thereafter this Court
reiterated the same principles. Therefore, the amendment to Entry 42 of List III has little
bearing on the validity of those principles. We are conscious that Parliament omitted Article
31(2) altogether. However when the State
W.P(C) No.26691 of 2010, etc. exercises its power of eminent domain and acquires the
property of private person or deprives him of his property for public purpose,
concomitantly fixation of the amount or its determination be must in accordance with such
principles as laid therein and the amount given in such manner as may be specified in such
a law. However judicial interpretation should not be a tool to reinduct the doctrine of
compensation as concomitance to acquisition or deprivation of property under Article 300-
A. This would be manifest from two related relevant provisions of the Constitution itself --
Article 30(1-A) and second proviso to Article 31-A as exceptions to the other type of
acquisition or deprivation of the property under Article 300-A.

103. From the law as laid down above it is clear that the right under Article 300A is to be
interpreted according to the particular legislation. Non-payment of compensation may in
some cases be held to be violative of Article 300A and in some cases it may not be that the
right of compensation is necessary ingredient. Each case has to be looked into and decided
in its own setting. In the light of the provisions of the 2003 Act as detailed above and the
W.P(C) No.26691 of 2010, etc. constitutional principles and law laid down by the Supreme
Court as above, we are of the view that non- payment of compensation for land which is
vested under Sec.3 cannot be held to be violative of the rights of petitioners under Article
300A of the Constitution. We have held that there is valid classification in the land vested
under Secs.3 and notified under Section 4 of the Act regarding payment of compensation.
We thus hold that the 2003 Act does not violate Article 14 and 19 of the Constitution nor
can be held to be arbitrary, discriminatory, devoid of any rational classification. There is
valid rational basis for non-payment of compensation for the land under Sec.3 as compared
to payment of compensation for a land notified under Sec.4. We thus answer the issue
accordingly. ISSUE NO.VIII

104. Learned counsel for the petitioners submits that Section 3(1) of the 2003 Act overrides
the
W.P(C) No.26691 of 2010, etc. judgment and decree or order of any Court or tribunal
which provision has been enacted only for the purpose of overriding the judgment of Forest
Tribunal, High Court as well as Supreme Court delivered in the context of 1971 Act
wherein the lands of petitioners have been held to be exempted from private forest. It is
submitted that when the Forest Tribunal, High Court and Supreme Court held a particular
estate as a plantation being exempted from the 1971 Act, the Legislature by its device has
overruled the judgment which jurisdiction is not vested in the legislature. The Legislature
cannot override the judgments of the Court hence Section 3(1) deserves to be struck down.
Elaborating their submission, the learned counsel for the petitioners have referred to the
definition of 'private forest' as contained in Section 2(f) of the 1971 Act and also Section 3
which provided for vesting of private
 W.P(C) No.26691 of 2010, etc. forest in Government which is quoted as below:

"2(f) "private forest" means-

(1) in relation to the Malabar district referred to in sub-section(2) of Section 5 of the State
Reorginasation Act, 1956 (Central Act 37 of 1956)-

(i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act
XXVII of 1949), applied immediately before the appointed day excluding-

(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1
of 1964):

(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber,
cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such
crops or for the preparation of the same for the market."

3. Private Forests to vest in Government.- (1) Notwithstanding anything contained in any other law for
the time being in force, or in any contract or other document, but subject to the provisions of sub-
sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all
private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the
Government free from all encumbrances, and the right, title and interest of the owner or any other
person in any private forest shall stand extinguished.
(2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in
private forests held by an owner under his personal cultivation as is
W.P(C) No.26691 of 2010, etc. within the ceiling limit applicable to him under the Kerala Land
Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.
Explanation.- For the purposes of this sub-section, "cultivation" includes cultivation of trees or plants
of any species.
(3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held
by an owner under a valid registered document of title executed before the appointed day and intended
for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala
Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling are applicable to him
under Section 82 of the said Act.
(4) Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for
the purposes of sub-section (2) or sub-section (3), be deemed to be lands to which Chapter III of the
said Act is applicable and for the purposes of calculating the ceiling limit applicable to an owner,
private forests shall be deemed to be "other dry lands" specified in Schedule II to the said Act."
105. Learned counsel for the petitioners submitted that by virtue of Section 3(2) of 1971 Act, the land
comprised in private forest held by the owner under his personal cultivation within the ceiling limit
applicable to
W.P(C) No.26691 of 2010, etc. him was not vested and the action of the State treating the land under
personal cultivation as vested in State was challenged by the petitioner before the Forest Tribunal,
thereafter in High Court as well as in Supreme Court wherein the land was exempted holding it to be in
personal cultivation. The land which has to be held in personal cultivation is now sought to be vested as
per the 2003 Act. The judgment/decree or order of Court or Tribunal has been overridden and made
ineffective by Section 3(1). Whether the legislature has jurisdiction or power to override the judgment
of Court has been the subject matter of consideration before the Apex Court in large number of cases.
106. It is necessary to look into some pronouncement of the Apex Court to find out the ratio laid down.
The Constitution Bench judgment of the Apex Court in Shri. Prithvi Cotton Mills Ltd. v. Broach
Borough Municipality and others [AIR 1970
W.P(C) No.26691 of 2010, etc. SC 192] has laid down that a Court's decision must always bind unless
the conditions on which it is based are so fundamentally altered that the decision could not have been
given in the altered circumstances. It is useful to quote paragraph 4 which is to the following effect:
"4. Before we examine Section 3 to find out whether it is effective in its purpose or not we
may say a few words about validating statutes in general. When a Legislature sets out to
validate a tax declared by a court to be illegally collected under an ineffective or an invalid
law, the cause for ineffectiveness or invalidity must be removed before validation can be
said to take place effectively. The most important condition, of course, is that the
Legislature must possess the power to impose the tax, for, if it does not, the action must
ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to
declare merely that the decision of the Court shall not bind for that is tantamount to
reversing the decision in exercise of judicial power which the Legislature does not possess
or exercise. A court's decision must always bind unless the conditions on which it is based
are so fundamentally altered that the decision could not have been given in the altered
circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to
tax is wanting or the statute
W.P(C) No.26691 of 2010, etc. or the rules or both are invalid or do not sufficiently create
the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of
illegality or invalidity are capable of being removed and are in fact removed and the tax
thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction
had not been properly invested before. Sometimes this is done by re-enacting
retrospectively a valid and legal taxing provision and then by fiction making the tax already
collected to stand under the re-enacted law. Sometimes the Legislature gives its own
meaning and interpretation of the law under which tax was collected and by legislative fiat
makes the new meaning binding upon courts. The Legislature may follow any one method
or all of them and while it does so it may neutralise the effect of the earlier decision of the
court which becomes ineffective after the change of the law. Whichever method is adopted
it must be within the competence of the legislature and legal and adequate to attain the
object of validation. If the Legislature has the power over the subject-matter and
competence to make a valid law, it can at any time make such a valid law and make it
retrospectively so as to bind even past transactions. The validity of a Validating Law,
therefore, depends upon whether the Legislature possesses the competence which it claims
over the subject-matter and whether in making the validation it removes the defect which
the courts had found in the existing law and makes adequate provisions in the Validating
Law for a valid imposition of the tax."
W.P(C) No.26691 of 2010, etc.
107. In 1993 Supp(1) SCC 96(II) in the matter of Cauvery Water Disputes Tribunal the proposition of
law was again reiterated in paragraphs 74 to 76 which have to the following effect:
"74. In this connection, we may refer to a decision of this Court in Municipal Corporation
of the City of Ahmedabad v. New Shrock Spg. & Wvg. Co. Ltd. The facts in this case were
that the High Court as well as this Court had held that property tax collected for certain
years by the Ahmedabad Municipal Corporation was illegal. In order to nullify the effect of
the decision, the State Government introduced Section 152-A by amendment to the
Bombay Provincial Municipal Corporation Act, the effect of which was to command the
Municipal Corporation, to refuse to refund the amount illegally collected despite the orders
of this Court and the High Court. This Court held that the said provision makes a direct
inroad into the judicial powers of the State. The legislatures under the Constitution have,
within the prescribed limits, power to make laws prospectively as well as retrospectively.
By exercise of those powers a legislature can remove the basis of a decision rendered by a
competent court thereby rendering the decision ineffective. But no legislature in the country
has power to ask the instrumentalities of the State to disobey or disregard the decisions
given by the courts.
W.P(C) No.26691 of 2010, etc. Consequently, the provisions of sub-section (3) of Section
152-A were held repugnant to the Constitution and were struck down. To the same effect is
another decision of this Court in Madan Mohan Pathak v. Union of India. In this case a
settlement arrived at between the Life Insurance Corporation and its employees had become
the basis of a decision of the High Court of Calcutta. This settlement was sought to be
scuttled by the Corporation on the ground that they had received instructions from the
Central Government that no payment of bonus should be made by the Corporation to its
employees without getting the same cleared by the Government. The employees, therefore,
moved the High Court, and the High Court allowed the petition. Against that, a letters
patent appeal was filed and while it was pending, the Parliament passed the Life Insurance
Corporation (Modification of Settlement) Act, 1976 the effect of which was to deprive the
employees of bonus payable to them in accordance with the terms of the settlement and the
decision of the Single Judge of the High Court. On this amendment of the Act, the
Corporation withdrew its appeal and refused to pay the bonus. The employees having
approached this Court challenging the constitutional validity of the said legislation, the
Court held that it would be unfair to adopt legislative procedure to undo a settlement which
had become the basis of a decision of the High Court. Even if legislation can remove the
basis of a decision, it has to do it by alteration of general rights of a class but not by simply
excluding the
W.P(C) No.26691 of 2010, etc. specific settlement which had been held to be valid and
enforceable by a High Court. The object of the Act was in effect to take away the force of
the judgment of the High Court. The rights under the judgment would be said to arise
independently of Article 19 of the Constitution.

75. Yet another decision of this Court on the point is P. Sambamurthy v. State of A.P. In this
case what was called in question was the insertion of Article 371-D of the Constitution.
Clause (5) of the article provided that the order of the Administrative Tribunal finally
disposing of the case would become effective upon its confirmation by the State
Government or on the expiry of three months from the date on which the order was made,
whichever was earlier. The proviso to the clause provided that the State Government may
by special order made in writing for reasons to be specified therein, modify or annul any
order of the Administrative Tribunal before it became effective and in such a case the order
of the Tribunal shall have effect only in such modified form or be of no effect. This Court
held that it is a basic principle of the rule of law that the exercise of power by the executive
or any other authority must not only be conditioned by the Constitution but must also be in
accordance with law, and the power of judicial review is conferred by the Constitution with
a view to ensuring that the law is observed and there is compliance with the requirement of
the law on the part of the executive and other authorities. It is through the power of judicial
review conferred on an independent institutional
 W.P(C) No.26691 of 2010, etc. authority such as the High Court that the rule of law is
maintained and every organ of the State is kept within the limits of the law. If the exercise
of the power of judicial review can be set at naught by the State Government by overriding
the decision given against it, it would sound the death knell of the rule of law. The rule of
law would be meaningless as it would be open to the State Government to defy the law and
yet get away with it. The proviso to clause (5) of Article 371-D was, therefore, violative of
the basic structure doctrine.

76. The principle which emerges from these authorities is that the legislature can change the
basis on which a decision is given by the Court and thus change the law in general, which
will affect a class of persons and events at large. It cannot, however, set aside an individual
decision inter partes and affect their rights and liabilities alone. Such an act on the part of
the legislature amounts to exercising the judicial power of the State and to functioning as an
appellate court or tribunal."

108. To the same effect is the Apex Court judgment in K. Sankaran Nair v. Devaki Amma Malathy
Amma and others [(1996) 11 SCC 428] is relevant to note. The Apex Court in the said case had
occasion to consider the Kerala Land Reforms Act, 1963. Section 6C was introduced with effect from
07.07.1979.
W.P(C) No.26691 of 2010, etc. Section 74 of the Kerala Land Reforms Act which totally barred
creation of leases after 01.04.1964. Plaintiff's case was that his claim of tenancy right was on the basis
of the registered lease deed dated 10.01.1969. The Tribunal held that the defendant/respondent was not
a tenant which was confirmed by the High Court on 31.03.1978. The Special Leave Petition filed
before Supreme Court was dismissed on 28.08.1978. Section 6C was brought on the Statute book by
Kerala Land Reforms Amendment Act, 1979. Section 6C of the Kerala Land Reforms Act provides as
follows:
"6C. Certain lessees who have made substantial improvements, etc., to be deemed tenants.-
Notwithstanding anything contained in Section 74, or in any contract, or in any judgment,
decree or order of any Court or other authority, any person in occupation at the
commencement of the Kerala Land Reforms (Amendment) Act, 1969, of the land of
another person on the basis of a lease deed executed after the 1st day of April, 1964, shall
be deemed to be a tenant if-

(a) be (including any member of his family) did not own or hold land in excess of four
acres in extent on the
 W.P(C) No.26691 of 2010, etc. date of execution of the lease deed; and

(b) he or any member of his family has made substantial improvements on the land.

Explanation.- For the purpose of this section, improvements shall be deemed to be substantial
improvements if the value of such improvements is more than fifty per cent of the value of the land on
the date of execution of the lease deed. "
109. The claim of deemed tenancy was rejected. Thereupon the matter was taken to
Supreme Court. The provision of Section 6C was challenged on the ground that to bypass
the final judgments, the legislature had tried to override the binding judgment. The Apex
Court while considering the issue in K. Sankaran Nair's case (supra) made following
observations in paragraphs 5:

"......It is now well settled that the legislature cannot overrule any judicial decision without
removing the substratum or the foundation of that judgment by a retrospective amendment
of the legal provision concerned."

XX XX XX .... "It is now well settled by a catena of decisions of this Court that unless the
legislature by enacting a competent
W.P(C) No.26691 of 2010, etc. legislative provision retrospectively removes the substratum
or foundation of any judgment of a competent court the said judgment would remain
binding and operative and in the absence of such a legislative exercise by a competent
legislature the attempt to upset the binding effect of such judgments rendered against the
parties would remain an incompetent and forbidden exercise which could be dubbed as an
abortive attempt to legislatively overrule binding decisions of courts. A Constitution Bench
of this Court in the case of Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality1
speaking through Hidayatullah, C.J., made the following pertinent observations in this
connection: (SCC pp. 286-87, para 4) ".... When a legislature sets out to validate a tax
declared by a court to be illegally collected under an ineffective or an invalid law, the cause
for ineffectiveness or invalidity must be removed before validation can be said to take place
effectively. The most important condition, of course, is that the legislature must possess the
power to impose the tax, for, if it does not, the action must ever remain ineffective and
illegal. Granted legislative competence, it is not sufficient to declare merely that the
decision of the court shall not bind for that is tantamount to reversing the decision in
exercise of judicial power which the legislature does not possess or exercise. A court's
decision must always bind unless the conditions on which it is based are so fundamentally
altered that the decision could not have been given in the altered circumstances."
W.P(C) No.26691 of 2010, etc.
110. The Constitution Bench in State of Tamil Nadu v. Aroon Sugars Ltd. [(1997) 1 SCC 326] has laid
down in paragraphs 16, 17 and 18 as follows:
"16. The scope of a non obstante clause and of Validating Act has been examined by this
Court from time to time. Reference in this connection be made to the judgment in the case
of Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, where Hidayatullah, C.J.
speaking for the Constitution Bench said: (SCC pp. 286-87, para 4) "When a legislature
sets out to validate a tax declared by a court to be illegally collected under an ineffective or
an invalid law, the cause for ineffectiveness or invalidity must be removed before validation
can be said to take place effectively. The most important condition, of course, is that the
legislature must possess the power to impose the tax, for, if it does not, the action must ever
remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare
merely that the decision of the court shall not bind for that is tantamount to reversing the
decision in exercise of judicial power which the legislature does not possess or exercise. A
court's decision must always bind unless the conditions on which it is based are so
fundamentally altered that the decision could not have been given in the altered
circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to
tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the
jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of
illegality or invalidity are capable of being removed and are in fact removed and the tax
thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction
had not been properly invested before. Sometimes this is done by re-enacting
retrospectively a valid and legal taxing provision and then by fiction making the tax already
collected to stand under the re- enacted law. Sometimes the legislature gives its own
 W.P(C) No.26691 of 2010, etc. meaning and interpretation of the law under which the tax
was collected and by legislative fiat makes the new meaning binding upon courts. The
legislature may follow any one method or all of them and while it does so it may neutralise
the effect of the earlier decision of the court which becomes ineffective after the change of
the law."

The same view was reiterated in the cases of West Ramnad Electric Distribution Co. Ltd. v. State of
Madras; Udai Ram Sharma v. Union of India; Tirath Ram Rajindra Nath v. State of U.P.; Krishna
Chandra Gangopadhyaya v. Union of India; Hindustan Gum & Chemicals Ltd. v. State of Haryana;
Utkal Contractors and Joinery (P) Ltd. v. State of Orissa; D. Cawasji & Co v. State of Mysore and
Bhubaneshwar Singh v. Union of India. It is open to the legislature to remove the defect pointed out by
the court or to amend the definition or any other provision of the Act in question retrospectively. In this
process it cannot be said that there has been an encroachment by the legislature over the power of the
judiciary. A court's directive must always bind unless the conditions on which it is based are so
fundamentally altered that under altered circumstances such decisions could not have been given. This
will include removal of the defect in a statute pointed out in the judgment in question, as well as
alteration or substitution of provisions of the enactment on which such judgment is based, with
retrospective effect. This is what has happened in the present case. The judgment of the High Court in
Writ Petition No. 1464 of 1974, dated 8-10- 1976 was solely based on the amendments which had been
introduced by Act 7 of 1974. If those amendments so introduced have been effaced by Act 25 of 1978
with retrospective effect saying that it shall be deemed that no
W.P(C) No.26691 of 2010, etc. such amendments had ever been introduced in the Principal Act, then
full effect has to be given to the provisions of the later Act unless they are held to be ultra vires or
unconstitutional.
17. On behalf of the respondent, it was pointed out that the High Court in its judgment dated 8-10-1976
in Writ Petition No. 1464 of 1974 has not declared any provision to be invalid because of which a
Validating Act was required. The said judgment had also not pointed out any defect in any Act which
had to be rectified by a Validating Act. It had simply proceeded on the provisions of Act 7 of 1974 and
had issued direction to the State Government to proceed in accordance with those provisions. This
Court has examined the power of the legislature to amend the provisions of the Act in question after a
court verdict. Reference in this connection may be made to the case of Govt. of A.P. v. Hindustan
Machine Tools Ltd., where it was observed: (SCC pp. 278-79, paras 10-12) "We see no substance in the
respondent's contention that by re-defining the term `house' with retrospective effect and by validating
the levies imposed under the unamended Act as if notwithstanding anything contained in any judgment,
decree or order of any court, that Act as amended was in force on the date when the tax was levied, the
legislature has encroached upon a judicial function. The power of the legislature to pass a law
postulates the power to pass it prospectively as well as retrospectively, the one no less than the other.
Within the scope of its legislative competence and subject to other constitutional limitations, the power
of the legislature to enact laws is plenary. In United Provinces v. Atiqa Begum, Gwyer, C.J. while
repelling the argument that Indian Legislatures had no power to alter the existing laws retrospectively
observed that within the limits of their powers the Indian Legislatures were as supreme and sovereign
as the British Parliament itself and that those powers were not subject to the `strange and unusual
prohibition against retrospective legislation'. The power to validate a law retrospectively is, subject to
the
W.P(C) No.26691 of 2010, etc. limitations aforesaid, an ancillary power to legislate on the particular
subject.
The State Legislature, it is significant, has not overruled or set aside the judgment of the High Court. It
has amended the definition of `house' by the substitution of a new Section 2(15) for the old section and
it has provided that the new definition shall have retrospective effect, notwithstanding anything
contained in any judgment, decree or order of any court or other authority. In other words, it has
removed the basis of the decision rendered by the High Court so that the decision could not have been
given in the altered circumstances. If the old Section 2(15) were to define `house' in the manner that the
amended Section 2(15) does, there is no doubt that the decision of the High Court would have been
otherwise. In fact, it was not disputed before us that the buildings constructed by the respondent meet
fully the requirements of Section 2(15) as amended by the Act of 1974.
In Tirath Ram Rajindra Nath v. State of U.P., the legislature amended the law retrospectively and
thereby removed the basis of the decision rendered by the High Court of Allahabad. It was held by this
Court that this was within the permissible limits and validation of the old Act by amending it
retrospectively did not constitute an encroachment on the functions of the Judiciary."
18. Again in the case of Sunder Dass v. Ram Prakash, it was said: (SCC p. 669, para 6) "The appellant,
however, urged that the introduction of the proviso in Section 3 should not be given greater
retrospective operation than necessary and it should not be so construed as to affect decrees for eviction
which had already become final between the parties. Now, it is true, and that is a settled principle of
construction, that the court ought not to give a larger retrospective operation to a statutory provision
than what can plainly be seen to have been meant by the legislature. This rule of interpretation is
hallowed by time and sanctified by decisions, though we are not at all sure whether it should have
validity in the context of changed social norms and values. But even so, we do not see how the
retrospective introduction of the proviso in Section 3 can be construed so as to leave unimpaired a
decree for eviction already passed, when the question arises in execution whether it is a nullity.
W.P(C) No.26691 of 2010, etc. The logical and inevitable consequence of the introduction of the
proviso in Section 3 with retrospective effect would be to read the proviso as if it were part of the
section at the date when the Delhi Rent Control Act, 1958 was enacted and the legal fiction created by
the retrospective operation must be carried to its logical extent and all the consequences and incidents
must be worked out as if the proviso formed part of the section right from the beginning. This would
clearly render the decree for eviction a nullity and since in execution proceeding, an objection as to
nullity of a decree can always be raised and the executing court can examine whether the decree is a
nullity, the principle of finality of the decree cannot be invoked by the appellant to avoid the
consequences and incidents flowing from the retrospective introduction of the proviso in Section 3.
Moreover, the words `notwithstanding any judgment, decree or order of any court or other authority' in
the proviso make it clear and leave no doubt that the legislature intended that the finality of `judgment,
decree or order of any court or other authority' should not stand in the way of giving full effect to the
retrospective introduction of the proviso in Section 3 and applying the provisions of the Delhi Rent
Control Act, 1958 in cases falling within the proviso."
Same was the situation in the case of Bhubaneshwar Singh v. Union of India where taking note of the
subsequent amendments in the Act concerned the Court came to the conclusion: (SCC pp. 85-86, paras
13-14) "In the present case as already pointed out above, if sub-section (2) as introduced by the Coal
Mines Nationalisation Laws (Amendment) Act, 1986 in Section 10 had existed since the very
inception, there was no occasion for the High Court or this Court to issue a direction for taking into
account the price which was payable for the stock of coke lying on the date before the appointed day.
The authority to introduce sub- section (2) in Section 10 of the aforesaid Act with retrospective effect
cannot be questioned. Once the amendment has been introduced retrospectively, courts have to act on
the basis that such provision was there since the beginning. The role of the deeming provision
W.P(C) No.26691 of 2010, etc. need not be emphasised in view of series of judgments of this Court.
* * * In the present case, the lacuna or defect has been removed by introduction of sub-section (2) in
Section 10 of the Act with retrospective effect. Sub-section (2) of Section 10 as well as Section 19, both
have specified that the amount which is to be paid as compensation mentioned in the schedule shall be
deemed to include and deemed always to have included, the amount required to be paid to such owner
in respect of all coal in stock on the date immediately before the appointed day. As such the earlier
judgment of this Court is of no help to the petitioner.""
111. The judgment in Indian Aluminium Co. and others v. State of Kerala and others
[(1996) 7 SCC 637] was again a case where the jurisdiction of Legislature to override the
judgment has been considered. Following was laid down in paragraphs 35 and 56:

"35. The question, therefore, is whether Section 11 is an anti-judicial power interfering with
or encroaching on judicial review entrusted to the courts, a basic feature of the Constitution,
and whether it directly overrules the
W.P(C) No.26691 of 2010, etc. judgment of the High Court? In view of specific stand and
vehement contention that the legislature can, under no circumstance, nullify mandamus or
direction issued by a court, we have to survey the decided cases in which relevant
principles were laid by this Court. The primary question is whether the legislature has
trespassed and trenched into the preserve of the basic feature of judicial review. The
principle of power of validation vested in the legislature is no longer res integra. A
Constitution Bench of this Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough
Municipality which is an erudite leading judgment on this topic, laid by a unanimous
Constitution Bench of five Judges that Section 17 of the Bombay Municipal Boroughs Act,
1925 empowers the municipality to levy "rate on buildings or lands or both situate within
the municipality". The rules made under the Act applied the rates on percentage basis on the
capital value of lands and buildings. In Patel Gordhandas Hargovindas v. Municipal
Commr. this Court had held that the term `rate' must be given the special meaning it had
acquired in English law and must be confined to an impost on the basis of the annual letting
value; it could not be validly levied on the basis of capital value though capital value could
be used for the purpose of working out the annual letting value. Thereafter, Gujarat
Legislature amended the Act and enacted Gujarat Imposition of Tax by Municipalities
(Validation) Act, 1963. Section 3 thereof which validated past assessments and collections
on rate, on lands and buildings, on the basis of capital value or a percentage of capital
value, was declared
W.P(C) No.26691 of 2010, etc. valid, despite any judgment of a court or tribunal to the
contrary. Future assessment and collection on the basis of capital value for the period from
and after the Validation Act was authorised. Section 99 was enacted in the Gujarat
Municipalities Act to provide for the levy of a tax on lands and buildings "to be based on
the annual letting value or the capital value or a percentage of capital value of the buildings
or lands or both". The same was questioned and the High Court dismissed the writ petition.
On appeal, when the constitutionality thereof was challenged, this Court observed as under:
(SCC pp. 286-87, para 4) "... When a legislature sets out to validate a tax declared by a
court to be illegally collected under an ineffective or an invalid law, the cause for
ineffectiveness or invalidity must be removed before validation can be said to take place
effectively. The most important condition, of course, is that the legislature must possess the
power to impose the tax, for, if it does not, the action must ever remain ineffective and
illegal. Granted legislative competence, it is not sufficient to declare merely that the
decision of the court shall not bind for that is tantamount to reversing the decision in
exercise of judicial power which the legislature does not possess or exercise. A court's
decision must always bind unless the conditions on which it is based are so fundamentally
altered that the decision could not have been given in the altered circumstances. Ordinarily,
a court holds a tax to be invalidly imposed because the power to tax is wanting or the
statute or the rules or both are invalid or do not sufficiently create the jurisdiction.
Validation of a tax so declared illegal may be done only if the grounds of illegality or
invalidity are capable of being removed and are in fact removed and the tax thus made
legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been
properly invested before. Sometimes this is done by re-enacting retrospectively a valid and
legal taxing provision and then by fiction making the tax already collected to stand under
the re-enacted law. Sometimes the
 W.P(C) No.26691 of 2010, etc. legislature gives its own meaning and interpretation of the
law under which tax was collected and by legislative fiat makes the new meaning binding
upon courts. The legislature may follow any one method or all of them and while it does so
it may neutralise the effect of the earlier decision of the court which becomes ineffective
after the change of the law. Whichever method is adopted it must be within the competence
of the legislature and legal and adequate to attain the object of validation. If the legislature
has the power over the subject-matter and competence to make a valid law, it can at any
time make such a valid law and make it retrospectively so as to bind even past transactions.
The validity of a Validating Law, therefore, depends upon whether the legislature possesses
the competence which it claims over the subject-matter and whether in making the
validation it removes the defect which the courts had found in the existing law and makes
adequate provisions in the Validating Law for a valid imposition of the tax."

This Court upheld the constitutionality of the impugned enactment.

"36. The validity of the Validating Act is to be judged by the following tests: (i) whether the
legislature enacting the Validating Act has competence over the subject-matter;

(ii) whether by validation, the legislature has removed the defect which the court had found
in the previous law; (iii) whether the validating law is inconsistent (sic consistent) with the
provisions of Chapter III of the Constitution. If these tests are satisfied, the Act can confer
jurisdiction upon the court with retrospective effect and validate the past transactions which
were declared to be unconstitutional. The legislature cannot assume power of adjudicating a
case by virtue of its enactment of the law without leaving it to the judiciary to decide it with
reference to the law in force. The legislature also is incompetent to
 W.P(C) No.26691 of 2010, etc. overrule the decision of a court without properly removing
the base on which the judgment is founded."

112. In S.S. Bola and others v. B.D. Sardana and others [(1997) 8 SCC 522] was again a case where
provisions of the enactment namely Haryana Service Engineers, Class I, Public Works Department
(Buildings and Roads Branch), (Public Health Branch) and (Irrigation Branch) Act, 1995 was under
consideration. The act repealed various earlier service rules and gave it retrospective effect.
It was contended that the judgment of the Apex Court where finding regarding the seniority
was given; was overruled by legislative action which is illegal. The Apex Court after
referring to several earlier judgments laid down in paragraphs 172 and 174 as follows:

"172. Let us now examine the validity of the Act itself which was challenged by the direct
recruits in filing writ petitions in the High Court of Punjab and Haryana and those writ
petitions stood transferred to this Court. Mr Sachar, learned counsel appearing for the writ
W.P(C) No.26691 of 2010, etc. petitioners-direct recruits, contended that the Act is nothing
but a usurpation of judicial power by the legislature to annul the judgments of this Court in
Sehgal and Chopra and it merely declares the earlier judgments to be invalid without
anything more and as such is invalid and inoperative. Further the Act takes away the rights
accrued in favour of the direct recruits pursuant to the judgments of this Court in Sehgal
and Chopra and consequently the Act must be struck down. The learned counsel also urged
that the mandamus issued by this Court in Sehgal and Chopra has to be complied with and
the State Legislature has no power to make the mandamus ineffective by enacting an Act to
override the judgment of this Court which tantamounts to a direct inroad into the sphere
occupied by the judiciary and consequently the Act has to be struck down. This argument of
Mr Sachar was also supported by Mr Mahabir Singh, learned counsel appearing for the
petitioners in TP (Civil) No. 46 of 1997 in his written submissions and it was urged that in
any view of the matter the legislature could not have given retrospective operation to the
Act itself with reference to a situation that was in existence 25 years ago and such an Act of
the legislature must be held to be invalid as was held by this Court in the case of State of
Gujarat v. Raman Lal Keshav Lal Soni. In elaborating the contention that the Act merely
purports to override the judgment of this Court in Sehgal and Chopra the learned counsel
referred to the Statement of Objects and Reasons of the Act as well as the affidavit filed on
 W.P(C) No.26691 of 2010, etc. behalf of the State Government which would unequivocally
indicate that the Act was enacted to get over the judgments of this Court in Sehgal and
Chopra.

xx xx xx xx

174. At the outset it must be borne in mind that in the case of Sehgal as well as Chopra this
Court had not invalidated any provisions of the recruitment rules but merely interpreted
some provisions of the Rules for determining the inter se seniority between the direct
recruits and the promotees. The Act passed by the legislature, therefore, is not a validation
Act but merely an Act passed by the State Legislature giving it retrospective effect from the
date the State of Haryana came into existence and consequently from the date the Service in
question came into existence. The power of the legislature under Article 246(3) of the
Constitution to make law for the State with respect to the matters enumerated in List II of
the Seventh Schedule to the Constitution is wide enough to make law determining the
service conditions of the employees of the State. In the case in hand there has been no
challenge to the legislative competence of the State Legislature to enact the legislation in
question and in our view rightly, nor has there been any challenge on the ground of
contravention of Part III of the Constitution.

Under the constitutional scheme the power of the legislature to make law is paramount subject to the
field of legislation as enumerated in the entries in different lists. The function of the judiciary is to
interpret the law and to adjudicate the rights of the parties in accordance with the
W.P(C) No.26691 of 2010, etc. law made by the legislature. When a particular Rule or the Act is
interpreted by a court of law in a specified manner and the law-making authority forms the opinion that
such an interpretation would adversely affect the rights of the parties and would be grossly inequitous
and accordingly a new set of rules or laws is enacted, it is very often challenged as in the present case
on the ground that the legislatures have usurped the judicial power. In such a case the Court has a
delicate function to examine the new set of laws enacted by the legislatures and to find out whether in
fact the legislatures have exercised the legislative power by merely declaring an earlier judicial
decision to be invalid and ineffective or the legislatures have altered and changed the character of the
legislation which ultimately may render the judicial decision ineffective. It cannot be disputed that the
legislatures can always render a judicial decision ineffective by enacting a valid law on the topic within
its legislative field fundamentally altering or changing its character retrospectively as was held by this
Court in the case of Indian Aluminium Co. v. State of Kerala. What is really prohibited is that the
legislature cannot in exercise of its plenary power under Articles 245 and 246 of the Constitution
merely declare a decision of a court of law to be invalid or to be inoperative in which case it would be
held to be an exercise of judicial power. Undoubtedly under the scheme of the Constitution the
legislature does not possess the same. Bearing in mind the aforesaid principles it is necessary to
examine the legality of the Act
W.P(C) No.26691 of 2010, etc. in question. If we do not examine the substantive provisions of the Act
and merely go by the Statement of Objects and Reasons as given for the enactment of the Act as well as
the counter-affidavit filed on behalf of the State then the Act would be possibly held to be an intrusion
into the judicial sphere by the legislature. The Statement of Objects and Reasons while introducing the
Bill in Haryana Vidhan Sabha is extracted hereinbelow in extenso:
"There were separate rules regulating service conditions and fixation of seniority in the
Engineering Services in PWD, B&R, Public Health and PWD Irrigation Branches. These
rules although different for the three branches were on identical lines with minor variations.
These rules have been interpreted in the Supreme Court in the case of A.N. Sehgal v. R.R.
Sheoran and S.L. Chopra v. State of Haryana. Subsequently, the judgment has been
interpreted further in the case of A.N. Sehgal v. R.R. Sheoran by an order dated 31-3-1995
of the Supreme Court in a contempt petition filed by Shri R.R. Sheoran. In the Public
Health side, the seniority list prepared under the directions of the Supreme Court in S.L.
Chopra v. State of Haryana case was challenged in the High Court which struck down the
list. Thereafter, an appeal was filed by the State in the Supreme Court against the order of
the High Court in the case of State v. B.D. Sardana. The appeal was admitted by the
Supreme Court and the operative portion of the judgment of the High Court was stayed.
The matter is pending for final decision in the Supreme Court, and meanwhile the seniority
list prepared by the State is being operated by Public Health Branch.

2. Meanwhile, consequent to the directions given by the Supreme Court in the case of A.N.
Sehgal v. R.R. Sheoran and orders of the Supreme Court dated 31-3- 1995 in the contempt
petition filed by R.R. Sheoran subsequently the seniority list had to be redrawn in the case
of B&R Branch, which was totally at variance with the manner in which the seniority was
drawn up in the case of Public Health Branch. Thus, the directions of the Supreme Court in
the case of B&R
 W.P(C) No.26691 of 2010, etc. Branch had created a lot of administrative problems with
certain very junior officers getting undue seniority and becoming senior to the officers
under whom they were previously working. This naturally resulted in severe groupism and
tension between officers of the department in their day-to-day working.

3. In order to have uniform rules for all three branches of Engineering Services and to
clarify the position in an unambiguous manner so as to have uniformity and clarity in
interpretation, it became necessary to make certain amendments with retrospective effect.
This was possible only by enacting a legislation in this regard. As the Haryana Vidhan
Sabha was not in session, it was decided to achieve the purpose through issue of an
Ordinance on 13-5-1995. The Ordinance replaced the existing rules for all the three
branches of the PWD and the common enactment was to govern the service matters of
Class I service B&R Branch, Public Health Branch and Irrigation Branch.""

113. To the same effect there is yet another judgment of the Apex Court reported in Virender Singh
Hooda and others v. State of Haryana and another [(2004) 12 SCC 588] wherein following was laid
down in paragraphs 45 and 46:
"45. It is well settled that if the legislature has the power over the subject-matter and
competence to make a valid law, it can at any time make such a valid law and make it
retrospectively so as to bind even past transactions. The validity of a validating law,
therefore, depends upon whether the legislature possesses the competence which it claims
over the subject-matter and whether in making the validation it removes the defect which
the courts had found
W.P(C) No.26691 of 2010, etc. in the existing law.

46. It is equally well settled that the legislature cannot by a bare declaration, without
anything more, directly overrule, reverse or override a judicial decision; it may, at any time
in exercise of the plenary power conferred on it by the Constitution render a judicial
decision ineffective by enacting a valid law on a topic within its legislative field,
fundamentally altering or changing with retrospective, curative or neutralising effect the
conditions on which such decision is based (I.N. Saksena v. State of M.P.). In Saksena case
facts in brief were that the appellant attained the age of 55 years on 22-8-1963. On 28-2-
1963, by a memorandum, the State Government raised the age of compulsory retirement to
58 years. It, however, empowered the Government to retire an employee after the age of 55
years. This provision, however, was not incorporated in the statutory rules. On 11-9-1963,
the respondent passed an order retiring the appellant. The order of retirement of the
appellant was quashed by this Court. The Government, however, amended the rules under
which the retirement age was raised to 58 years and the Government was empowered to
retire the government servant after completion of 55 years of age. By a deeming clause, the
rules were made effective from 1-3-1963. By Act of 1967, the State Legislature validated
the retirement of certain government servants including the appellant, despite the judgment
of this Court. Upholding the validity of the 1967 Act, this Court held that adjudication of
the rights of the parties according to the law enacted by the legislature is
 W.P(C) No.26691 of 2010, etc. a judicial function. In the performance of this function, the
Court interprets and gives effect to the intent and mandate of the legislature as embodied in
the statute. On the other hand, it is for the legislature to lay down the laws prescribing
norms of conduct which will govern parties and transactions and to require the court to give
effect to that law. It was held that the rendering ineffective of judgments of courts and
tribunals by changing their basis by legislative enactment is a well-known pattern of all
validating Acts. It would be useful to reproduce para 22 as under: (SCC p.

756) "22. While, in view of this distinction between legislative and judicial functions, the
legislature cannot by a bare declaration, without more, directly overrule, reverse or override
a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by
Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a
valid law on a topic within its legislative field fundamentally altering or changing with
retrospective, curative or neutralising effect the conditions on which such decision is based.
As pointed out by Ray, C.J. in Indira Nehru Gandhi v. Raj Narain rendering ineffective of
judgments or orders of competent courts and tribunals by changing their basis by legislative
enactment is a well-known pattern of all validating Acts. Such validating legislation which
removes the causes for ineffectiveness or invalidity of actions or proceedings is not an
encroachment on judicial power.""

114. The ratio of the above judgment is that legislature cannot directly overrule a judgment of the
Court. However, it can be enacted in a manner to make a judgment ineffective by changing the basis of
the
W.P(C) No.26691 of 2010, etc. judgment.
115. Whether Section 3(1) of the Act overrides the judgment given by Forest Tribunal, High Court and
Supreme Court in the context of 1971 Act is a question to be answered. The 1971 Act was in force with
effect from 10.05.1971. i.e. the vesting of ownership and possession of all private forests in the State
was with effect from 10.05.1971. Private Forest is defined in Section 2(f) and Section 3(2) of the Act
which exempts the land comprised in private forests held by an owner under his personal cultivation
and is within the ceiling limit applicable with effect from 10.05.1971. When vesting of private forests
took place on 10.05.1971 by virtue of operation of law, the judgments of Forest Tribunal, High Court
and Supreme Court obviously determined the issue of vesting of private forests as on 10.05.1971. The
2003 Act has been enforced with effect from 02.06.2000 and vesting of Ecologically
W.P(C) No.26691 of 2010, etc. Fragile Lands in the State shall be deemed to have been taken place on
02.06.2000. Thus the Ecologically Fragile Land as defined in the 2003 Act under Section 2
(b) read with Section 2(c) is of a particular category of land. There cannot be any assumption that the
land which had already been vested with the State has again to be vested in the State on 02.06.2000.
The relevant date for vesting of Ecologically Fragile Land under Section 3 being entirely different from
vesting of private forest under the 1971 Act or exemption from private forest as on 10.05.1971 are two
distinct and different happenings and events. The non obstante clause in Section 3(1) is to give
overriding effect to Section 3(1) despite any judgment/decree or order of Tribunal. The judgments
rendered in the context of the 1971 Act were on a different operation of law and the definition of
Ecologically Fragile Land being different from private
W.P(C) No.26691 of 2010, etc. forest under the 1971 Act, Section 3(1) of the 2003 Act can in no
manner be faulted. The judgment and decree or order which is referred to in Section 3(1) of the 2003
Act are obviously the judgment and decree or order which were rendered prior to 02.06.2000. The 2003
Act envisaged definition on the concept i.e. Ecologically Fragile Land, and gave the overriding effect
to override the judgment or order is fully covered within the valid legislation and Section 3(1) cannot
be treated to be a legislation overriding the judgment rendered on the 1971 Act.
116. The second part of the issue is as to whether judgment/order of Forest Tribunal, High Court and
Supreme Court in the context of 1971 Act declaring the properties of the petitioners as plantation are
relevant or not. It is relevant to note that the scope of non obstante clause in a Statute has been
examined by the
W.P(C) No.26691 of 2010, etc. Apex Court in several cases. In State of Tamil Nadu v. Arooran Sugars
Ltd. (supra) the Supreme Court has laid down in paragraph 16 as quoted above. When Section 3(1)
gives an overriding effect, overriding the judgment/decree or order of Court or Tribunal, the
determination of Forest Tribunal, High Court or Supreme Court in the context of 1971 Act can in no
way affect the vesting of Ecologically Fragile Land within the meaning of 2003 Act with effect from
02.06.2000. The binding effect of judgment of any issue relevant for vesting of Ecologically Fragile
Land has been taken away expressly by Section 3(1). Although the judgments rendered in the context
of 1971 Act are not binding but whether such judgment can be held to be relevant for any purpose is
also to be examined. The judgments rendered by Forest Tribunal, High Court or Supreme Court are
relevant under Section 42 of Indian
W.P(C) No.26691 of 2010, etc. Evidence Act. Section 42 of the Evidence Act which is relevant for the
purpose of this case is quoted as below:
"42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in
Section

41.- Judgment, orders or decrees other than those relevant to the enquiry; but such
judgments, orders or decrees other than those mentioned in Section 41 are relevant if they
relate to matters of a public nature relevant to the enquiry; but such judgments, orders or
decrees are not conclusive proof of that which they state."

109. In view of the definition of Forest as contained in Section 2(c) and the Ecologically Fragile Land
as contained in Section 2(b) of the 2003 Act which exclude the land which is principally covered with
naturally grown trees and undergrowth and includes any forests statutorily recognised and declared as
reserved forest, protected forest or otherwise, but does not include any land which is used principally
for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut,
arecanut or cashew or any other
W.P(C) No.26691 of 2010, etc. sites of residential buildings and surroundings essential for the
convenient use of such buildings. Thus the lands which are used principally for the cultivation shall not
be Ecologically Fragile Land and the issue whether they are principally used for cultivation of crops is
relevant and is to be enquired into. Thus the judgments which were rendered by Forest Tribunal, High
Court and Supreme Court under the 1971 Act are clearly relevant judgments within the meaning of
Section 42 of the Indian Evidence Act and can be looked into as a piece of evidence for determining the
issue. We are thus of the view that any enquiry or decision under Section 19 or Section 9(3) and 10(b),
the judgments delivered in the context of plantation for personal cultivation etc are relevant and can be
relied for in appropriate cases.
117. Learned counsel for the petitioners have placed heavy reliance on the Division Bench Judgment in
State of Kerala v. Kumari Varma (2011 (1) KLT
W.P(C) No.26691 of 2010, etc. 1008) of which one of us (P.R.Ramachandra Menon, J) was also a
party. In the aforesaid case, father of the petitioner held vast extent of land approximately 2776.76
Acres. In proceedings under the Kerala Land Reforms Act, 1963 he was directed to surrender 1232.26
Acres as excess land. The 1971 Act was enacted vesting ownership and possession of private forest in
the State. Notification under Rule 2A of the 1974 Rules read with Sec.6 of the 1971 Act was issued
declaring 348 Acres to be private forest. Matter was taken to the Forest Tribunal by filing O.A. No.90
of 1979. After certain litigations, the matter was taken before the High Court in appeal in M.F.A.
No.658 of 1990. The High Court remanded the matter to the Tribunal for fresh consideration. The
Tribunal passed an order declaring an extent of 100.05 Acres as area covered by cardamom plantation.
Appeal preferred by the State of Kerala against the said order was dismissed. The matter was
W.P(C) No.26691 of 2010, etc. further carried to the Supreme Court by both parties. The Supreme
Court dismissed the appeal vide its order dated 04.08.2006 in Kumari Varma v. State of Kerala ([2006]
6 SCC 505). During the pendency of the aforesaid Notification the land was notified under the 2003
Act. Notification was published on 15.05.2001 under the Ordinances extinguishing the right and
possession of the owner. Two Writ Petitions were filed challenging the Notification. The Writ Petitions
were allowed by a learned Single Judge of this Court, against which order Writ Appeals were filed. A
Division Bench of this Court dismissed the Writ Appeals vide its judgment dated 3.2.2011. One of the
arguments raised before the Division Bench was that when it was held by the Forest Tribunal under the
1971 Act that 100.05 Acres is Cardamom Plantation, the said land cannot be notified under the 2003
Act. Argument of the learned Advocate General was that during the period from 1971
W.P(C) No.26691 of 2010, etc. to 2003 the land acquired the nature of forest and hence it cannot be
cleared under the 2003 Act was not accepted. The Division Bench Kumari Varma's case (supra) has laid
down the following in paragraph 29, which is quoted below:
"29. We reject the submission of the learned Additional Advocate General. There was no
intention on the part of the respondent to abandon the cultivation of cardamom as was
pointed out by the Supreme court in para 37 of Bhavani Tea case (supra). The respondent
was prevented by the State to continue the cultivation by denying possession to the
respondent on a wrong interpretation of the Private Forests Act, 1971. We see substantial
force in the submission made by the learned counsel for the respondent that on an
appropriate interpretation of the various provisions of the Act, the State cannot be permitted
to take advantage of a wrong committed by it in depriving the respondent of the legal rights
to cultivate thew lands in
 W.P(C) No.26691 of 2010, etc. dispute by wrongly invoking Kerala Private forests (Vesting
and Assignment) Act. Such an interpretation, in our opinion, is not necessarily
inconsistence with the purpose sought to be achieved by the Ecologically Fragile Lands
Act. If the State is of the opinion that the land in question is such an ecologically fragile
land as on today which is required to be protected, it is still open to the state to notify the
land to be ecologically fragile land under R.4 of the said Act subject, of course, following
the appropriate procedure stipulated under the Act."

118. Learned Senior Counsel for the State stated that against the above Division Bench judgment of
this Court the State has filed an Special Leave Petition, in which the Supreme Court has passed an
interim order directing the parties to maintain status quo, hence the judgment of the Division Bench has
not become final.
We have already held that although the judgments delivered under 1971 Act by virtue of Section 3(1)
are
W.P(C) No.26691 of 2010, etc. not binding but their relevancy as an evidence cannot be impeached.
The judgments rendered under 1971 Act can be looked into and each case has to be decided in
accordance with own merits.
We in this bunch of Writ Petitions have not entered into or adjudicated any individual claim on merits,
which need to be examined in appropriate proceedings. ISSUE NO.IX
119. The validity of 2007 Rules has also been challenged on the ground that it is ultravires to the 2003
Act. Section 18 of the 2003 Act empowers the Government to make rules either prospectively or
retrospectively to carry out the purpose of the Act. Section 18(1) is quoted as below:
"18. Power to make rules._ (1) The Government may, by notification in the Official
Gazette, make rules, either prospectively or retrospectively to carry out the purposes of this
Act."
W.P(C) No.26691 of 2010, etc.
120. The 2007 Rules were framed in exercise of powers conferred under Section 18 of the Kerala
Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 vide notification published
in Kerala Gazette Extraordinary dated 03.02.2007. The challenge has been made to Rules 17 to 20 and
prayed to be declared as ultravires to the 2003 Act and void. Rules 17, 18, 19 and 20 have already been
quoted above. Rule 18 may also be extracted which is to the following effect:
"17. Owner claiming exemption to apply.- (1) Any owner or any person having the right of
possession or enjoyment of any land notified under 3- (3)-

may file an appication before the custodian giving details of the location, extent, survey
number, crops cultivated etc; seeking a scrutiny of the notification and to decide whether
such land qualify to be notified as ecologically fragile in accordance with the provision of
the Act.

(2) Every application field under sub-rule (1) shall be accompanied by the following
documents.
W.P(C) No.26691 of 2010, etc.
(a) documents to prove ownership or possession or enjoyment of the land;
(b) documents to prove that the land is cultivated by such crops that are exempted under the Act.
(c) documents to prove the existence of a residential building if any, with the details thereof;
(d) any other documents as may be necessary for the verification of the particulars mentioned in the
application.
(3) Every application under sub-rule (1) shall be accompanied by an affidavit certifying that the records
produced along with the application and the particulars mentioned therein are true and valid.
(4) Every application under sub-rule(1) shall be accompanied by a court fee stamp of Rupees One
Hundred.
18. Inspection of the land.- (1) On receipt of the application under Rule 17 the custodian shall as soon
as possible cause a local inspection of the land through a committee consisting of the following
members:
(a) Divisional Forest Officer of the Territory where the land situated of Wildlife Warden
having jurisdiction of the area, as the case may be, who shall act as the convener of the
Committee.

(b) The technical Assistant of the Conservator of Forests of the area

(c) The Working Plan Officer.

W.P(C) No.26691 of 2010, etc. ( ) .
() .
,.
(2) The Committee shall inspect the land in respect of which application has been filed and shall
prepare a report as to whether the notified area is consistent with the provisions of this Act or not, and
submit the same to the custodian with in one month from the date of receipt of the order from the
custodian for local inspection of the land.
19. The Power of the Custodian to make additional enquiries.- On receipt of report of the Committee
under Rule 18, if required, the custodian may cause further enquired and call for further records, as he
deems fit.
20. Issue of Revised Notification.- (1) The custodian, after verification of the particulars mentioned in
the application and the documents produced along with the same and after considering the report of the
Committee under Rule 18 and after such further enquiry as he deems
W.P(C) No.26691 of 2010, etc. necessary, if satisfied that the land notified, or part thereof; is
inconsistent with the provisions of the Act, shall by order make a declaration in writing that such land
or part thereof is not vested in the Government as per the act and issue accordingly:
Provided that in case a revised notification is to be issued in respect of the land notified the
custodian shall arrange a survey and demarcation of such land before issuing the revised
notification, (2) A copy of the revised notification shall be communicated to the applicant.

(3) If on scrutiny as per sub-rule(1) of Rule 20, the custodian finds that the land notified is
consistent with the provisions of the act, he shall make a declaration that effect in writing
and communicate to the applicant."

121. It is contended that 2007 Rules provide a forum and procedure to challenge the notifications
issued under Ordinance which has not only eclipsed the very purpose and scope of the Tribunal
contemplated under the Act but also the time limit prescribed to challenge the notification. The rule
further provides
W.P(C) No.26691 of 2010, etc. totally different procedure from one set out in the 'Act'. It is contended
that the dispute as to whether the land vested in the Government is Ecologically Fragile Land or not is
the dispute within the jurisdiction of the Tribunal and the assumption of power by Custodian under
Rules 17 to 20 is ultravires of the Act.
122. Rules 17 to 20 of 2007 Rules are contained in Chapter V of the Rules with the heading
"application for review of notification." The submission in substance is that the jurisdiction to decide
the dispute as to whether land is an Ecologically Fragile Land and it is vested with the Tribunal hence
the said power cannot be vested in the Custodian and rules are ultravires to the Act. Rules 17 to 20 have
been framed to give effect to Section 19 of the Act. Section 19(3) is relevant and is extracted below for
ready reference:
"19.(3) Notwithstanding anything contained in the said Ordinance or in any judgment
decree or order of any
 W.P(C) No.26691 of 2010, etc. Court-

(a) no land other than the ecologically fragile land as defined in this Act, whether notified
under sub-section (3) of Section 3 of the said Ordinance or not, shall be deemed to have
vested or ever to have been vested in Government; and

(b) every notification issued in respect of any land under sub-section (3) of Section 3 of the
said Ordinance shall be scrutinised by the custodian suo motu or on an application made by
the owner or any person having the right of possession or enjoyment of such land and if
necessary, such notification shall be revised and issued in accordance with the provisions of
this Act."

123. Section 19(3) has been enacted only for a limited purpose. The purpose is to scrutinize the
notifications issued under sub-section (3) of the Ordinance notifying the land as Ecologically Fragile
land. As has been noted above, the definition of forest in the ordinance 6 of 2000 was entirely different
from the definition of forest as contained in Section 2(c) of the 2003 Act. There is substantial change in
the definition of forest as contained in Section 2(c). As per the
W.P(C) No.26691 of 2010, etc. definition of Section 2(c) 'forest' means any land principally covered
with naturally grown trees and undergrowth and includes any forests statutorily recognised and
declared as reserved forest, vested forest or otherwise, but does not include any land which is used
principally for cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom,
coconut, arecanut or cashew or any other sites of residential buildings and surroundings essential for
the convenient use of such buildings. Section 2(b) defines the Ecologically Fragile Lands as any forest
land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest
or a vested forest or any other forest land or owned by the Government and predominantly supporting
natural vegetation for notifying a land as Ecologically Fragile land. There was no such exemption from
the forest
W.P(C) No.26691 of 2010, etc. land in the definition of forest under the ordinance as has been now
contained in Section 2(c) of 2003 Act. There was substantial change in the definition. In view of the
above change of definition retrospectively there ought to be machinery provided in the statute to take
out those lands which were not forest within the meaning of Section 2(c) of the Act and were notified
under ordinance as per the definition of Forest in the ordinance. Section 19(3) is thus for the above
limited purpose and Rules 17 to 20 have been made to effectuate the purpose. The submission of
learned counsel for the petitioner that Rules 17 to 20 are ultravires is without any substance.
124. The second submission to challenge the rules is that the power to decide the dispute including
whether the land is ecologically fragile land is vested in the Tribunal under Section 10 and the said
power ought not have been given to the Custodian as observed
W.P(C) No.26691 of 2010, etc. above. Section 19 confines to and control the limited purpose i.e.
review of notifications which were issued under the Ordinance. There is no conflict in the mechanism
of Section 10 and that of Section 19. Sections 10 and 19 thus provide a different procedure which are
fully in accordance with the purpose of the aforesaid provisions. It is relevant to note that separate rules
have been framed dated 10.10.2007 namely the Kerala Forest (Vesting and Management of
Ecologically Fragile Lands) Rules, 2007 which governs the procedure before the Tribunal. The Rules
2007 dated 03.02.2007 and Rules 2007 dated 10.10.2007 cover the different fields. Thus we do not find
that Rule 2007 is ultravires to the 2003 Act and the submission of petitioners has no substance.
ISSUE NO.X:
125. The answer to the above issue is contained in
W.P(C) No.26691 of 2010, etc. the provision of Section 3(1) itself. Section 3(1) provides that with
effect from the date of commencement of this Act, the ownership and possession of all ecologically
fragile lands held by any person or any other form of right over them, shall stand transferred to and
vested in the Government free from all encumbrances and the right, title and interest of the owner or
any other person thereon shall stand extinguished from the said date. Section 1(2) provides that the Act
shall be deemed to have come into force on 02.06.2000. The deeming provision under Section 2(1) has
to give its full effect and meaning thereby with effect from 02.06.2000 the ownership and possession of
all ecologically fragile lands shall stand transferred to and vested in the Government. Thus 02.06.2000
is the relevant date for determination of vesting under the 2003 Act and the issue is answered
accordingly.
W.P(C) No.26691 of 2010, etc. ISSUE NOS.XI & XII
126. Since issue Nos.11 and 12 are interconnected, they are taken together. Issue No.12 mainly arises in
W.P.(C) No.3210 of 2008 - but has been raised in several other Writ Petitions as noted above.
Merchinston Estate was notified as ecologically fragile land as per Notification dated 20.10.2000
issued under Ordinance No.8/2000. Previous owner, i.e., Jay Shree Tea Industries had filed O.P.
No.35714 of 2000 - challenging the Ordinances as well as the Notification issued under Ordinance
No.8/200. A Full Bench of this Court considered O.P. No.35714 of 2000 along with other Writ Petitions
and disposed of the same by judgment dated 24.5.2006 giving liberty to avail remedy under Section 19
as well as to challenge the 2003 Act.
127. After the State Government framed the 2007 Rules, the petitioner filed an application under
Sec.19(3)
(b) of the 2003 Act praying that Merchinston Estate be
W.P(C) No.26691 of 2010, etc. deleted from the Notification notified as ecologically fragile land. On
the application, the Committee under Rule 18 of the 2007 Rules, made an inspection and submitted its
report recommending that only 24.709 hectares of land is ecologically fragile land and other land is
plantation which may be restored, the Custodian passed an order dated 12.06.2007 declaring 24.709
hectares as ecologically fragile land and directed for restoration of other property to the petitioner. The
Custodian subsequently issued notice dated 7.9.2007 stating that the land comprised in Merchinston
estate is vested in the Government. The Divisional Forest Officer also issued notice to vacate the land
within 30 days. Petitioner filed W.P(C) No.27801 of 2007 - challenging the aforesaid notices. On
26.12.2007 the Custodian issued notice to the petitioner directing to show cause as to why the order
dated
W.P(C) No.26691 of 2010, etc. 12.6.2007 be not recalled. Petitioner filed his objection on 5.1.2008.
The Custodian passed order dated 8.1.2008 reviewing the earlier order dated 12.6.2007. Writ Petition
No.3210 of 2008 is filed challenging the order dated 8.1.2008. Submission which have been pressed by
the learned counsel for the petitioner is that the Custodian exercised a quasi judicial authority under
Section 19 of the 2003 Act while deciding the application under Sec.19(3)(b) of the Act. A quasi
judicial authority cannot review its order unless the Statute has specifically provided for review. It is
submitted that the 2003 Act or the 2007 Rules framed thereunder do not provide for any power of
review in the Custodian, hence the order dated 8.01.2008 passed by the Custodian is without
jurisdiction. Refuting the submissions, learned Senior Advocate Shri K. Viswanathan submits that the
Custodian exercises
W.P(C) No.26691 of 2010, etc. administrative powers under Sec.19 of the Act, hence there is no lack of
jurisdiction in the Custodian reviewing/recalling the order earlier passed. It is submitted that the
statutory authority is fully vested with the jurisdiction to recall/review its orders. Learned Senior
Advocate Shri K.V.Viswanathan further submitted that for review of the order dated 12.06.2007 valid
and cogent reasons have been given by the Custodian in his order dated 8.1.2008.
128. We have to thus first examine as to whether the Custodian in exercise of the power under Sec.19
exercises quasi judicial or administrative power. We have to look into the statutory scheme to find out
the nature of the power exercised by the Custodian while deciding the application under Sec.19(3) (b).
It is to be noted that in Ordinance No.6/2000 dated 1.06.2000 which was published on 2.6.2000, the
definition of forest under Sec.2(c) of the Ordinance was as follows:
 W.P(C) No.26691 of 2010, etc. "2.(c) "Forest" means any land covered with trees and
undergrowth and includes all statutorily recognised forests, whether designated as reserved,
protected or otherwise and any land recorded as forests in the Government records
irrespective of the ownership."

Section 2(b) of the Ordinance defined 'ecologically fragile land' in the following manner:
"2(b) "ecologically fragile lands" means.-

(i) any portion of forest land held by any person and lying contiguous to or encircled by a
reserved forest or a vested forest or any other forest land owned by the Government and
predominantly supporting natural vegetation; and

(ii) any land declared to be an ecologically fragile land by the Government by notification
in the official Gazette under Section 4."

Under the 2003 Act, the definition of forest was substantially changed which is to the following effect.
"2(c)'forest' means any land principally covered with naturally grown trees and
undergrowth and includes any forests statutorily recognised and declared as reserved forest,
protect forest or otherwise, but does not include any land which is used principally for
cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom,
coconut, arecanut or cashew or any other sites of residential buildings and surroundings
essential for the convenient use
 W.P(C) No.26691 of 2010, etc. of such buildings."

The most substantial provision which has been introduced in the definition of Sec.2(c), i.e., certain land
has been excluded from the definition of forest, i.e., (i) any other land which is used principally for the
cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut arecanut or
cashew, (ii) on any other sites of residential buildings and surroundings essential for the convenient use
of such buildings. Another relevant statutory provision to be noted is that by Sec.1(2) of the 2003 Act
which Act has been enforced with effect from 2nd day of June, 2000.
129. The above change in the definition of forest and enforcement of the Act from 2.6.2000 clearly
indicates that several categories of land which were initially included in Ordinance No.6 of 2000 in the
definition of forest have been excluded and the Act
W.P(C) No.26691 of 2010, etc. having enforced with effect from 2.6.2000, definition of forest as
contained in Sec.2(c) was liable to be deemed to be operative. Consequence is that the land which was
notified under Ordinance No.6/2000 or subsequent Ordinance also includes the excluded categories of
land as contained in Sec.2(c) of the Act.
130. In view of the above substantial changes made by the 2003 Act, Sec.19(3) was enacted. Section
19(3) is quoted as below:
"19.(3) Notwithstanding anything contained in the said Ordinance or in any judgment
decree or order of any Court-

(a) no land other than the ecologically fragile land as defined in this Act, whether notified
under sub-section(3) of Section 3 of the said Ordinance or not, shall be deemed to have
vested or ever to have been vested in Government; and

(b) every notification issued in respect of any land under sub-section (3) of Section 3 of the
said Ordinance shall be scrutinised by the custodian suo motu or on an application made by
the owner or any person having the right of possession or
 W.P(C) No.26691 of 2010, etc. enjoyment of such land and if necessary, such notification
shall be revised and issued in accordance with the provisions of this Act."

Section 19(3) starts with a non-obstante clause, i.e., "notwithstanding anything contained in the said
Ordinance......" Section 19(3)(a) provided that no land other than the ecologically fragile land as
defined in this Act, whether notified under sub-section (3) of the said Ordinance or not, shall be
deemed to have vested or ever to have been vested in Government. This provision clearly mentioned
that only land which is ecologically fragile land within the meaning of the Act 2003 Act shall vest in
the Government. The other land which is excluded under the Act even if notified under the Ordinance
shall not vest. Consequence of the provision is that any land used principally for the cultivation of
crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut arecanut or cashew of
any
W.P(C) No.26691 of 2010, etc. other sites of residential buildings and surroundings essential for the
convenient use of such buildings shall not vest in the State despite they having been notified in the
Ordinance. On account of the above reason, Sec.19(3)(b) thus mandated a scrutiny by the Custodian
suo motu or on application made by owner or any person over right, possession or enjoyment of the
land. The scrutiny as contemplated in Sec.19(3)(b) assumes great importance and significance since the
lands which have been notified in the Ordinances which is principally used for cultivation of crops of
long duration has gone out of the purview of ecologically fragile land under the 2003 Act and
Notification was required to be revised accordingly. Scrutiny is contemplated both suo motu or on a
claim made by the owner person having right or possession. Thus the custodian is determining the lis
regarding the land
W.P(C) No.26691 of 2010, etc. covered by ecologically fragile land under the Act or not. The 2007
Rules have been framed to give effect to Sec.19. Rule 17 gives detailed proceeding for making an
application and the relevant documents to be accompanied by the application proving ownership,
possession and enjoyment. Rule 17(1) has already been quoted above.
131. Rule 19 empowers the Custodian to make further enquiry and call for further reports as he deems
fit. Rules 19 and Rule 20 have been quoted as above.
132. Whether the exercise undertaken by the Custodian is administrative or quasi judicial is the issue
which is to be answered.
133. H.W.R.Wade & C.F.Forsyth in the Administrative Law, 10th Edition while explaining the concept,
administration and quasi judicial functions has stated:
"The one distinction which would seem to be workable
 W.P(C) No.26691 of 2010, etc. is that between judicial and administrative functions. A
judicial decision is made according to rules. An administrative decision is made according
to administrative policy. A judge attempts to find what is the correct solution according to
legal rules and principles. An administrator attempts to find what is the most expedient and
desirable solution in the public interest. It is true, of course, that many decisions of the
courts can be said to be made on grounds of legal policy and that the courts sometimes have
to choose between alternative solutions with little else than the public interest to guide
them.

xx xx xx xx A quasi-judicial function is an administrative function which the law requires

to be exercised in some respects as if it were judicial. A typical example is a minister
deciding whether or not to confirm a compulsory purchase order or to allow a planning
appeal after a public inquiry. The decision itself is administrative, dictated by policy and
expediency. But the procedure is subject to the principles of natural justice, which require
the minister to act fairly towards the objectors and not (for example) to take fresh evidence
without disclosing it to them. A quasi judicial decision is therefore an administrative
decision which is subject to some measure of judicial procedure."

The Apex Court had also occasion to consider in several cases the distinction between administrative
and quasi judicial functions. It is sufficient to refer to the judgment of the Apex Court in Indian
National
W.P(C) No.26691 of 2010, etc. Congress v. Institute of Social Welfare [(2002) 5 SCC 685]. The Apex
Court in the said case had occasion to examine Section 29A of the Representation of Peoples Act, 1951
in the context of nature of function which is performed by the Election Commission. Section 29A
provided for registration of political parties. In a Judgment the Kerala High Court issued a direction
permitting cancellation of registration of political parties who violated the constitution by holding
forcible bandh which had been declared illegal. In the above context the High Court permitted to make
application to the Election Commission of India to initiate steps for cancellation of registration of
political parties. It was submitted that in exercise of a quasi judicial power there being no provision for
review, the order registering political parties cannot be reviewed.
134. The Apex Court in the said case found out whether function is administrative or quasi judicial.
W.P(C) No.26691 of 2010, etc. Following was laid down in paragraph 20 to 23.
20. On the argument of parties, the question that arises for our consideration is, whether the Election
Commission, in exercise of its powers under Section 29-A of the Act, acts administratively or quasi-
judicially. We shall first advert to the argument raised by learned counsel for the respondent to the
effect that in the absence of any lis or contest between the two contending parties before the Election
Commission under Section 29- A of the Act, the function discharged by it is administrative in nature
and not a quasi-judicial one. The dictionary meaning of the word quasi is "not exactly" and it is just in
between a judicial and administrative function. It is true, in many cases, the statutory authorities were
held to be quasi-judicial authorities and decisions rendered by them were regarded as quasi-judicial,
where there was contest between the two contending parties and the statutory authority was required to
adjudicate upon the rights of the parties. In Cooper v. Wilson6 it is stated that "the definition of a quasi-
judicial decision clearly suggests that there must be two or more contending parties and an outside
authority to decide those disputes". In view of the aforesaid statement of law, where there are two or
more parties contesting each other's claim and the statutory authority is required to adjudicate the rival
claims between the parties, such a statutory authority was held to be quasi-judicial and decision
rendered by it as a quasi-judicial order. Thus, where there is a lis or two
W.P(C) No.26691 of 2010, etc. contesting parties making rival claims and the statutory authority under
the statutory provision is required to decide such a dispute, in the absence of any other attributes of a
quasi-judicial authority, such a statutory authority is quasi-judicial authority.
21. But there are cases where there is no lis or two contending parties before a statutory authority yet
such a statutory authority has been held to be quasi-judicial and decision rendered by it as a quasi-
judicial decision when such a statutory authority is required to act judicially. In R. v. Dublin Corpn.7 it
was held thus:
"In this connection the term judicial does not necessarily mean acts of a Judge or legal
tribunal sitting for the determination of matters of law, but for purpose of this question, a
judicial act seems to be an act done by competent authority upon consideration of facts and
circumstances and imposing liability or affecting the rights. And if there be a body
empowered by law to enquire into facts, makes estimates to impose a rate on a district, it
would seem to me that the acts of such a body involving such consequence would be
judicial acts."

22. Atkin, L.J. as he then was, in R. v. Electricity Commrs. stated that when any body of persons has
legal authority to determine questions affecting the rights of subjects and having the duty to act
judicially, such body of persons is a quasi-judicial body and decision given by them is a quasi-judicial
decision. In the said decision, there was no contest or lis between the two contending parties before the
Commissioner. The Commissioner, after
W.P(C) No.26691 of 2010, etc. making an enquiry and hearing the objections was required to pass
order. In a nutshell, what was held in the aforesaid decision was, where a statutory authority is
empowered to take a decision which affects the rights of persons and such an authority is under the
relevant law required to make an enquiry and hear the parties, such authority is quasi-judicial and
decision rendered by it is a quasi-judicial act.
23. In Province of Bombay v. Khushaldas S. Advani2 it was held thus: (AIR p. 260, para 173) "(i) that
if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out
of a claim made by one party under the statute which claim is opposed by another party and to
determine the respective rights of the contesting parties who are opposed to each other there is a lis and
prima facie, and in the absence of anything in the statute to the contrary it is the duty of the authority to
act judicially and the decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority
has power to do any act which will prejudicially affect the subject, then, although there are not two
parties apart from the authority and the contest is between the authority proposing to do the act and the
subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the
authority is required by the statute to act judicially. In other words, while the presence of two parties
besides the deciding authority will prima facie and in the absence of any other factor impose upon the
authority the duty to
W.P(C) No.26691 of 2010, etc. act judicially, the absence of two such parties is not decisive in taking
the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required
by the statute to act judicially."
In paragraph 24 the Apex Court noted the legal principles holding that when act of statutory authority
would be quasi judicial or administrative. Paragraphs 24 and 25 are quoted below:
24. The legal principles laying down when an act of a statutory authority would be a quasi-judicial act,
which emerge from the aforestated decisions are these:
Where (a) a statutory authority empowered under a statute to do any act
(b) which would prejudicially affect the subject (c) although there is no lis or two contending parties
and the contest is between the authority and the subject and (d) the statutory authority is required to act
judicially under the statute, the decision of the said authority is quasi-judicial.
25. Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the
contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial
authority is sufficient to hold that such a statutory authority is quasi-judicial authority. However, in the
absence of a lis before a statutory authority, the
W.P(C) No.26691 of 2010, etc. authority would be quasi-judicial authority if it is required to act
judicially.
135. The Apex Court in the said case further laid down that what distinguishes administrative from a
quasi judicial function. Following was further laid down in paragraphs 27, 28 and 29.
"27. What distinguishes an administrative act from a quasi-judicial act is, in the case of
quasi-judicial functions under the relevant law the statutory authority is required to act
judicially. In other words, where law requires that an authority before arriving at a decision
must make an enquiry, such a requirement of law makes the authority a quasi-judicial
authority.

28. Learned counsel for the respondent then contended that a quasi-judicial function is an
administrative function which the law requires to be exercised in some respects as if it were
judicial and in that view of the matter, the function discharged by the Election Commission
under Section 29-A of the Act is totally administrative in nature. Learned counsel in
support of his argument relied upon the following passage from Wade & Forsyth's
Administrative Law:

"A quasi-judicial function is an administrative function which the law requires to be

exercised in some respects as if it were judicial. A typical example is
 W.P(C) No.26691 of 2010, etc. a minister deciding whether or not to confirm a compulsory
purchase order or to allow a planning appeal after a public inquiry. The decision itself is
administrative, dictated by policy and expediency. But the procedure is subject to the
principles of natural justice, which require the minister to act fairly towards the objections
and not (for example) to take fresh evidence without disclosing it to them. A quasi-judicial
decision is therefore an administrative decision which is subject to some measure of
judicial procedure."

29. We do not find any merit in the submission. At the outset, it must be borne in mind that another test
which distinguishes administrative function from quasi- judicial function is, the authority who acts
quasi-judicially is required to act according to the rules, whereas the authority which acts
administratively is dictated by the policy and expediency. In the present case, the Election Commission
is not required to register a political party in accordance with any policy or expediency but strictly in
accordance with the statutory provisions. The aforequoted passage from Administrative Law by Wade
& Forsyth is wholly inapplicable to the present case. Rather, it goes against the argument of learned
counsel for the respondent. The aforequoted passage shows that where
W.P(C) No.26691 of 2010, etc. an authority whose decision is dictated by policy and expediency
exercises administratively although it may be exercising functions in some respects as if it were
judicial, which is not the case here."
136. Now applying the ratio of the aforesaid judgment, let us proceed to examine the nature of function
of the Custodian while acting under Sec.19(3)
(b). When a person makes an application under Sec.19 (3)(b) challenging the Notification issued under
the Ordinances notifying the area as ecologically fragile land and contends that it is exempted under the
2003 Act, the lis very much arises. The lis of course is between the State Government and the
applicant. This attribute is fully attracted in the function of the Custodian envisaged under Sec.19(3)(b).
It is further relevant to note that the Custodian is statutorily obliged to conduct an enquiry and he has to
act according to Rules 2007 as noted above and his action is not to be dictated by the policy and
expediency.
W.P(C) No.26691 of 2010, etc.
137. The fact that the Custodian is also required to conduct an enquiry and obtain reports indicates that
he has to decide judicially as to whether the land is ecologically fragile land or not. Rule 17(1) uses the
words "to decide whether such land qualified to be notified as ecologically fragile land in accordance
with the provisions of the Act." Rules 2007 explain the statutory functions of the Custodian and the
Scheme delineated by Sec.19 as well as Rules 17, 19 and 20 fully proves that the Custodian acts quasi
judicially while deciding an application under Sec.19(3)(b).
138. Shri K.V. Viswanathan, learned Senior Advocate for the State has placed reliance on a judgment of
the Apex Court reported in 1980 (3) SCC 402 and the Apex Court in the said judgment laid down the
following in paragraph 5:
"5. The last point raised by Shri Garg was that the Central Government had no power to
review its earlier
W.P(C) No.26691 of 2010, etc. orders as the rules do not vest the government with any
such power. Shri Garg relied on certain decisions of this Court in support of his submission:
Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji; D.N. Roy v. State of Bihar and
State of Assam v. J.N. Roy Biswas. All the cases cited by Shri Garg are cases where the
government was exercising quasi-judicial power vested in them by statute. We do not think
that the principle that the power to review must be conferred by statute either specifically or
by necessary implication is applicable to decisions purely of an administrative nature. To
extend the principle to pure administrative decisions would indeed lead to untoward and
startling results. Surely, any government must be free to alter its policy or its decision in
administrative matters. If they are to carry on their daily administration they cannot be
hidebound by the rules and restrictions of judicial procedure though of course they are
bound to obey all statutory requirements and also observe the principles of natural justice
where rights of parties may be affected. Here again, we emphasise that if administrative
decisions are reviewed, the decisions taken after review are subject to judicial review on all
grounds
W.P(C) No.26691 of 2010, etc. on which an administrative decision may be questioned in a
court. We see no force in this submission of the learned Counsel. The appeal is, therefore,
dismissed. In the said case the Apex Court laid down that power to review must be
conferred by Statute either specifically or by necessary implication is not applicable to
decision purely of an administrative nature. The said judgment was in the context of an
administrative decision. As observed above, the Custodian exercises the quasi judicial
function and said judgment is of no help.

139. The 2003 Act or Rule 19 of the 2007 Rules does not confer any specific power of
review to the Custodian. Whether quasi judicial authority shall have any power to review or
recall his orders is the next question to be considered. It is relevant to note that in Indian
National Congress's case, the Apex Court held that the Election Commission exercises a
quasi judicial function under Sec.29A of the Representation of Peoples
W.P(C) No.26691 of 2010, etc. Act. The Apex Court in the said case observed that absence
of any statutory provision the quasi judicial authority may not have any power to review. In
paragraph 32, the following was laid down.

32. This matter may be examined from another angle. If the directions of the High Court for
considering the complaint of the respondent that some of the appellant political parties are
not functioning in conformity with the provisions of Section 29-A is to be implemented, the
result will be that a detailed enquiry has to be conducted where evidence may have to be
adduced to substantiate or deny the allegations against the parties. Thus, a lis would arise.
Then there would be two contending parties opposed to each other and the Commission has
to decide the matter of deregistration of a political party. In such a situation the proceedings
before the Commission would partake the character of quasi-judicial proceeding.
Deregistration of a political party is a serious matter as it involves divesting of the party of
the statutory status of a registered political party. We are, therefore, of the view that unless
there is
W.P(C) No.26691 of 2010, etc. express power of review conferred upon the Election
Commission, the Commission has no power to entertain or enquire into the complaint for
deregistering a political party for having violated the constitutional provisions. The Apex
Court further held that there are three exceptions that the Commission can review its order
registering a political party. In paragraph 33 the Apex Court noticed that three exceptions.
Paragraph 33 is quoted as below:

"33. However, there are three exceptions where the Commission can review its order
registering a political party. One is where a political party obtained its registration by
playing fraud on the Commission, secondly, it arises out of sub-section (9) of Section 29-A
of the Act and thirdly, any like ground where no enquiry is called for on the part of the
Election Commission, for example, where the political party concerned is declared
unlawful by the Central Government under the provision of the Unlawful Activities
(Prevention) Act, 1967 or any other similar law.
W.P(C) No.26691 of 2010, etc. One exception was that when the order is obtained by
playing fraud. In paragraph 34 of the judgment, the Apex Court considered the exception
and laid down the following:

"34. Coming to the first exception, it is almost settled law that fraud vitiates any act or
order passed by any quasi-judicial authority even if no power of review is conferred upon
it. In fact, fraud vitiates all actions. In Smith v. East Elloe Rural Distt. Council it was stated
that the effect of fraud would normally be to vitiate all acts and orders. In Indian Bank v.
Satyam Fibres (India) (P) Ltd. it was held that a power to cancel/recall an order which has
been obtained by forgery or fraud applies not only to courts of law, but also to statutory
tribunals which do not have power of review. Thus, fraud or forgery practised by a political
party while obtaining a registration, if comes to the notice of the Election Commission, it is
open to the Commission to deregister such a political party. In paragraph 35, the 2nd and
3rd exceptions were elaborated. In paragraph 35 the following pertinent
W.P(C) No.26691 of 2010, etc. observations were made.

"35. The second exception is where a political party changes its nomenclature of
association, rules and regulations abrogating the provisions therein conforming to the
provisions of Section 29-A(5) or intimating the Commission that it has ceased to have faith
and allegiance to the Constitution of India or to the principles of socialism, secularism and
democracy, or it would not uphold the sovereignty, unity and integrity of India so as to
comply with the provisions of Section 29-A(5). In such cases, the very substratum on
which the party obtained registration is knocked off and the Commission in its ancillary
power can undo the registration of a political party. Similar case is in respect of any like
ground where no enquiry is called for on the part of the Commission. In this category of
cases, the case would be where a registered political party is declared unlawful by the
Central Government under the provisions of the Unlawful Activities (Prevention) Act, 1967
or any other similar law. In such cases, power of the Commission to cancel the registration
of a political party is sustainable on the settled legal principle that when a statutory
authority is conferred
W.P(C) No.26691 of 2010, etc. with a power, all incidental and ancillary powers to
effectuate such power are within the conferment of the power, although not expressly
conferred. But such an ancillary and incidental power of the Commission is not an implied
power of revocation. The ancillary and incidental power of the Commission cannot be
extended to a case where a registered political party admits that it has faith in the
Constitution and principles of socialism, secularism and democracy, but some people
repudiate such admission and call for an enquiry by the Election Commission, reason
being, an incidental and ancillary power of a statutory authority is not the substitute of an
express power of review.

One of the submissions which was advanced by learned Senior Advocate Shri K.V.
Viswanathan is that under Sec.21 of the General Clauses Act quasi judicial authority can
always review or cancel its order. The Apex Court in the above case has laid down that
provisions of Sec.21 of the General Clauses Act are not applicable where a statutory
authority is required to
W.P(C) No.26691 of 2010, etc. act quasi judicially. The following was laid down in
paragraphs 38 and 39.

"38. We have already extensively examined the matter and found that Parliament
consciously had not chosen to confer any power on the Election Commission to deregister a
political party on the premise that it has contravened the provisions of sub-section (5) of
Section 29-A. The question which arises for our consideration is whether in the absence of
any express or implied power, the Election Commission is empowered to cancel the
registration of a political party on the strength of the provisions of Section 21 of the
General Clauses Act. Section 21 of the General Clauses Act runs as under:

"21. Power to issue, to include power to add to, amend, vary or rescind, notifications,
orders, rules or bye-laws.-- Where, by any Central Act or regulation, a power to issue
notifications, orders, rules or bye-laws is conferred, then that power includes a power,
exercisable in the like manner and subject to the like sanction and
 W.P(C) No.26691 of 2010, etc. conditions (if any) to add to, amend, vary or rescind any
notifications, orders, rules or bye-laws so issued."

39. On perusal of Section 21 of the General Clauses Act, we find that the expression "order" employed
in Section 21 shows that such an order must be in the nature of notification, rules and bye-laws etc. The
order which can be modified or rescinded on the application of Section 21 has to be either executive or
legislative in nature. But the order which the Commission is required to pass under Section 29-A is
neither a legislative nor an executive order but is a quasi-judicial order. We have already examined this
aspect of the matter in the foregoing paragraph and held that the function exercisable by the
Commission under Section 29-A is essentially quasi-judicial in nature and order passed thereunder is a
quasi-judicial order. In that view of the matter, the provisions of Section 21 of the General Clauses Act
cannot be invoked to confer powers of deregistration/cancellation of registration after enquiry by the
Election Commission. We, therefore, hold that Section 21 of the General Clauses Act has no
application where a statutory authority is required to act quasi-judicially.
W.P(C) No.26691 of 2010, etc. Whether the order dated 8.1.2008 passed by the Custodian can fall in
any of the exceptions enumerated by the Apex Court in Indian National Congress's case. In answering
this we have to look into the order dated 8.1.2008 and notice the grounds on which the Custodian
proceeded to pass orders recalling his earlier order dated 12.6.2007, since the order of review by the
Custodian can be saved when it falls in any of the exception as noted above. Otherwise exercising a
quasi judicial function the Custodian has no jurisdiction to review, power of review not having
specifically conferred. For considering W.P(C) No.3210 of 2008, we have to examine whether the said
order dated 8.1.2008 is sustainable. The Custodian in his notice dated 26.12.2007 has stated as follows:
"As per proceedings order cited 5, the Revenue Divisional officer, Thiruvananthapuram has
cancelled the transfer Registry effected in the name of M/s.Southern Field Ventures
Limited.
W.P(C) No.26691 of 2010, etc. As per Order cited 6 above, the Hon'ble High Court of
Kerala has passed an interim order. The Government as per communication cited 7 above,
has requested the Custodian to take appropriate Action.

The above facts were considered by the Custodian of Ecologically Fragile Lands and is
prima facie satisfied that the proceedings cited 3 above which has not come into force was
issued without taking into account consideration certain vital factors and also the result of
facts suppressed by you and also is issued without jurisdiction. Hence Custodian of
Ecologically Fragile lands is prima facie satisfied that the proceedings cited 3 above should
be recalled for the following among other reasons:-

1. The application cited 2 above is not maintainable since the person who filed the
application was not the owner of a person who had right of possession or enjoyment of the
land notified as Ecologically Fragile Land.

2. Even the sale deed executed by M/s.Jay Shree Tea & Industries Limited in favour of
Southern Field Ventures Private Limited is invalid in view of Section 84 of the Kerala Land
Reforms Act. This fact including pendency of the ceiling case was suppressed by you while
filing the application.

3. The question whether as on

 W.P(C) No.26691 of 2010, etc. 02.06.2000, the land was actually Ecologically Fragile land
is not gone into and considered by mistake, while issuing proceedings cited 3 above. 4. The
core question whether the land in question will come within the definition of Ecologically
Fragile land was not considered in proceedings cited 3 above. Take notice that Custodian of
Ecologically Fragile Lands is holding a sitting to consider these aspects on 2.06.2008 at
11.00 in the office of the Custodian of Ecologically Fragile Lands, Forest Head Quarters,
Vazhuthacaud, Thiruvanthapuram to ake a final decision whether to recall the proceedings
cite 3 or not.

You are therefore given a chance to explain your side on the above points before the Custodian,
Ecologically Fragile Lands. Hence you are requested to attend the siting on 2.01.2008 at 11.00 a.m.
Without fail. Since the matter is very urgent especially since the batch of cases are posted on 9.1.2008
before the Honourable High Court of Kerala, no adjournment will be given in the above matter. Hence
you are requested to attend the sitting without fail."
140. One of the grounds noticed in the order is that registry in favour of the petitioner M/s.Southern
Field Ventrues has been cancelled by the Revenue Divisional
W.P(C) No.26691 of 2010, etc. Divisional Officer by order dated 3.10.2007. Application dated
30.3.2007 was filed by the petitioner on the basis of registered sale deed dated 30.3.2005. Allegations
have also been made in the notice that several material facts including proceeding of ceiling pending in
Case No.K2-7561/84 of the Taluk Land Board has been concealed. Allegation of suppression of facts
was also alleged. It was alleged in the notice that application filed by the petitioner under Sec.19(3)(b)
was not maintainable. In view of the reasons as noted above in the show cause notice we are satisfied
that there were sufficient cause to initiate proceedings for recalling the order dated 12.6.2007. The
present case falls well within the exceptions as noted in Indian National Congress's case. We thus found
no infirmity in issuing the show cause notice dated 26.12.2007 for recall of the impugned order.
W.P(C) No.26691 of 2010, etc.
141. Now we come to the order dated 8.1.2008 passed by the Custodian recalling the order dated
12.6.2007. The order dated 8.1.2008 gives various reasons for recalling the order dated 12.6.2007. One
of the reasons given by the Custodian is that the order dated 26.12.2007 was passed on state of affairs
as existed on 12.6.2007 and not as on 2.6.2000 which was the relevant date, the Custodian has observed
that the said order was passed on a mistake due to which the order deserves to be recalled.
142. Pendency of Ceiling Case No.614 of 1984 which fact was suppressed pursuant to remand in
C.R.P. No.2346 of 1984. One more reason which has been given in the order is that the land having
vested under Notification dated 20.10.2000 issued under Ordinances there was no title with the
erstwhile owner, Jay Shree Tea to transfer any land in favour of the
W.P(C) No.26691 of 2010, etc. petitioner. It is useful to note the following observations of the
Custodian in paragraph 19.
Hence M/s.Jay Shree Tea and Industries Ltd., which was the previous owner of the property, had no
right, title or interest in the property after 2.6.2000. In view of Section 19(3) read with Rule 17 of
Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Rules, only three category of
persons, has right to apply before the Custodian, as regards the Ecologically Fragile Lands are
concerned. They are (1) owner, (2) any person having right of possession and (3) any person having
right of enjoyment of any land notified under Section 3 of the Ordinance. Owner is define under
Section 2(1) of the Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Act 2003, or
any person having right of possession or right of enj' of the above said land prior to 2.6.2000 has locus
standi to apply before the Custodian under Section 19(3) of the Act read with Rule 17 of the Rules. In
the present case, M/s.Southern Field Venrtures Pvt. Ltd. is the person who had filed application under
Section 19(3) of the Act. In view Rule 17(2)(a) of the Kerala Forest (Vesting & Management of
Ecologically Fragile Lands), Rules, every application shall be accompanied by documents to prove
ownership or enjoyment of the land. This means that the application should be accompanied by
documents showing that the applicant has legal title or possession or right of enjoyment of the said
land. In the present case,
W.P(C) No.26691 of 2010, etc. M/s.Southern Field Ventures had produced Photostat copies of three
Sale Deeds No.732/2005 dt.30.3.2005, 733/2005 dt.30.3.2005 and 734/2000 dated 30.3.2005 registered
in the Palode Sub Registry Office. The said sale deeds are allegedly executed on behalf of M/s.Jay
Shree Tea and Industries Ltd. in favour of M/s.Southern Field Ventures, allegedly transferring the entire
land. It is pertinent to note that as on the date of the above said sale deeds dt.30.3.2005, M/s.Jay Shree
Tea and Industries Ltd., had no legal right, title or legal possession of the above said land, which was
vested with the Government w.e.f. 2.6.2000. Hence the sale deeds as aforesaid does not covey any legal
title, ownership or possession in favour of Southern Field Ventures Ltd. Hence M/s.Southern Field
Ventures Pvt.Ltd. Has no "ownership", "right of possession", or "right of enjoyment"
of the above said properties, so as to enable the Company to file application under Section
19(3) of the Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Rules.
However, this jurisdictional precondition for entertaining an application was not noted, by a
mistake when proceedings cited 5 above was issued. As can be seen from the proceedings
cited 5 above, the Custodian had not considered the question regarding the right of
Southern Field Ventures to file application, under Section 19(3) of Rule 17. This an
apparent mistake.."

It is to be noted that by recalling the order dated 12.6.2007, application filed by the petitioner under
W.P(C) No.26691 of 2010, etc. Sec.19(3)(b) revived and was to be decided afresh. Order dated
8.1.2008 does not reject the application filed by the petitioner dated 30.3.2007. Rather the observation
in the order is to the effect that relevant aspect is to be considered. Following observations were made
by the Custodian in paragraph 24.
....A reading of the proceedings cited 5 above will clearly show that the said proceedings is only
relating to to the state of affairs as on 24.05.2007 and not as on 02.06.2000 and prior to such date, when
the actual vesting took place. This aspect was overlooked by mistake while issuing proceedings cited 5
above. The consideration of this aspect is crucial, for a complete and final disposal of the application
under Section 19(3)(b) of the Kerala Forest (Vesting & Management of Ecologically Fragile Lands)
Act, 2003 and to decided whether the land is Ecologically Fragile Land or not".
143. The Custodian having taken the view that application under Sec.19(3)(b) is to be decided again
after taking into consideration all relevant facts and
W.P(C) No.26691 of 2010, etc. circumstances, we are of the view that the Custodian ought not to have
expressed any concluded opinions regarding the merits of the application as has been done by him in
the order. Notice dated 26.12.2007 only was a notice to the effect as to whether the proceeding dated
12.6.2007 be recalled or not.
144. We are thus of the view that, although the Custodian was considering the issue of recall of the
order dated 12.6.2007, it was sufficient for him to give reason to recall the order, but since the
application was not decided by that order, he ought not to have expressed any final opinion. For eg.,
one of the opinions expressed by the Custodian in his order dated 8.1.2008 is that the petitioner has no
right to file application under Sec.19(3)(b) of the 2003 Act, which does not appear to be correct. The
reason given by him is that his previous owner, M/s.Jay Shree Tea Industries, has no right to transfer
the estate to the
W.P(C) No.26691 of 2010, etc. petitioner since it was already vested on 2.6.2000 in the State as
notified by Notification dated 20.10.2000 in the Kerala Gazette. As noticed above, the definition of
forest in Sec.2(c) Ordinance No.6/2000 was different which did not contain any exclusion. The
definition under Sec.2(c) of forest as per the 2003 Act was substantially changed which provided for
exclusion of plantations and buildings Sec.1(1) further provided that the Act shall be deemed to come
into force on the 2nd day of June, 2000. Section 19(3)(a) further provided that the ecologically fragile
land as defined in the 2003 Act shall only be vested in the State. Thus the ecologically fragile land as
defined under the 2003 Act shall only vest in the State Government as on 2.6.2000 which clearly means
that plantations were exempted. Thus by the operation of law it will be deemed that excluded
plantations do not vest in the State. Case of
W.P(C) No.26691 of 2010, etc. the petitioner was that his estate was tea plantation and did not vest in
the State. Thus the issue which was to be decided in the application was as to whether the estate was a
plantation excluded or was forest land as per the 2003 Act. Hence the assumption by the Custodian that
the land vested on 2.6.2000 in the State and Jay Shree Tea Industries has no jurisdiction to transfer was
not correct and was an issue which was yet to be decided in application. There are materials on record
including the Three Member Committee Report which was obtained by the Custodian for passing the
order dated 12.6.2007 which indicates that apart from plantation there were buildings and structures
existing in the building. Observation of the Custodian that the application was not maintainable thus is
unsustainable. An application which is claiming a right and inviting the Custodian to decide the issue
on merits cannot be
W.P(C) No.26691 of 2010, etc. thrown out observing that the application is not maintainable.
Observations of the Custodian thus, that the application was not maintainable are unsustainable. We
further observe that the other observations of the Custodian expressing any concluded opinion on the
merits of the application has also to be set aside to enable the custodian to decide the application afresh
without being influenced by any observations made in the order dated 8.1.2008.
145. We have noted the statutory scheme of Sec.19(3). According to Sec.19(3) the Custodian had to
scrutinise the notifications. Section 19(3)(b) mandates the Custodian to scrutinise any land notified
under Ordinances. Every Notification issued in respect of any land under 19(3) of Sec.3 of the said
Ordinance "shall be scruitised by the Cutodian...." The key words are "shall be scrutinised by the
Custodian suo motu. There is reason for using the word "shall" which is in
W.P(C) No.26691 of 2010, etc. mandatory form in Sec.19(3)(b). As noted above, Sec.19(3) begins with
a a non-obstante clause. The definition of forest under Sec.2(c) has been substantially changed under
the 2003 Act excluding plantation and buildings, etc., from the ambit of ecologically fragile land. An
overriding effect has been given to the provisions of the Act. Use of the words, "notwithstanding
anything contained in the said Ordinance" clearly indicate that Ordinances or Notifications are to be
overridden by the provisions of the Act regarding the definition of ecologically fragile land as given in
the Act. As noted above, Sec.1(2) deems the 2003 Act to have into force with effect from 2.6.2000. The
provisions of the Act thus shall be deemed to have come into force from 2.6.2000. Section 1(2) gives
retrospective enforcement of the Act. Deeming provisions are to be given its full effect as laid
W.P(C) No.26691 of 2010, etc. down by the Apex Court in Arooran Sugars Ltd's case (supra).
Paragraphs 11 and 13 which are relevant are quoted as below.
11. Sections 5 and 6 of Act 25 of 1978 contain deeming fiction in its different clauses while purporting
to omit and remove the amendments which had been introduced by Act 7 of 1974 in the Principal Act.
The role of a provision in a statute creating legal fiction is by now well settled. When a statute creates
legal fiction saying that something shall be deemed to have been done which in fact and truth has not
been done, the Court has to examine and ascertain as to for what purpose and between what persons
such a statutory fiction is to be resorted to. Thereafter courts have to give full effect to such a statutory
fiction and it has to be carried to its logical conclusion. In the well-known case of East End Dwellings
Co. Ltd. v. Finsbury Borough Council, Lord Asquith while dealing with the provisions of the Town and
Country Planning Act, 1947, observed:
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless
prohibited from doing so, also imagine as real the consequences and incidents which, if the
putative state of affairs had in fact existed, must inevitably have flowed from or
accompanied it. ... The statute says that you must imagine a certain
 W.P(C) No.26691 of 2010, etc. state of affairs. It does not say that having done so, you
must cause or permit your imagination to boggle when it comes to the inevitable corollaries
of that state of affairs."

That statement of law aforesaid in respect of a statutory fiction is being consistently followed by this
Court. Reference in this connection may be made to the cases of State of Bombay v. Pandurang
Vinayak Chaphalkar; Chief Inspector of Mines v. Karam Chand Thapar; J.K. Cotton Spg. and Wvg.
Mills Ltd. v. Union of India; M. Venugopal v. Divisional Manager, LIC and Harish Tandon v. A.D.M.
13. The legislature by different deeming clauses and through statutory fiction requires the court to treat
that amendments so introduced by Act 7 of 1974 had never been introduced in the Principal Act. The
power of the legislature to amend, delete or obliterate a statute or to enact a statute prospectively or
retrospectively cannot be questioned and challenged unless the court is of the view that such exercise is
in violation of Article 14 of the Constitution. It need not be impressed that whenever any Act or
amendment is brought in force retrospectively or any provision of the Act is deleted retrospectively, in
this process rights of some are bound to be affected one way or the other. In every case, it cannot be
urged that the exercise by the legislature while introducing a new provision or deleting an existing
provision with retrospective effect per se shall be violative of Article 14 of the Constitution. If that
stand is accepted, then the
W.P(C) No.26691 of 2010, etc. necessary corollary shall be that legislature has no power to legislate
retrospectively, because in that event a vested right is effected; of course, in special situation this Court
has held that such exercise was violative of Article 14 of the Constitution. Reference in this connection
may be made to the cases of State of Gujarat v. Raman Lal Keshav Lal Soni, T.R. Kapur v. State of
Haryana and Union of India v. Tushar Ranjan Mohanty. In the case of State of Gujarat v. Raman Lal a
Constitution Bench on the facts and circumstances of that case observed: (SCC pp. 61-62, para 52)
"The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to
a legislature- made law. The legislature is undoubtedly competent to legislate with retrospective effect
to take away or impair any vested right acquired under existing laws but since the laws are made under
a written Constitution, and have to conform to the do's and don'ts of the Constitution, neither
prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must
satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of
the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the
requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are
concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to
a situation that obtained twenty years ago and ignore the march of events and the constitutional rights
accrued in the course of the twenty years. That would be most arbitrary, unreasonable
W.P(C) No.26691 of 2010, etc. and a negation of history."
In same terms this Court expressed the opinion in the cases of T.R. Kapur v. State of Haryana and
Union of India v. Tushar Ranjan Mohanty in respect of alterations in rules framed under Article 309 of
the Constitution retrospectively regarding conditions of service. Ordinances having overridden to the
extent of definition of forest land and ecologically fragile land, earlier Notification issued in the
Ordinances notifying the land as ecologically fragile land thus has to be reconsidered which is the
requirement of the statutory scheme. Legislature consciously used the words "shall be scrutinised by
the Custodian". Thus it was the statutory duty of the Custodian to scrutinise the issue. It is further
relevant to note that notifications issued under the Ordinances notifying the land as ecologically fragile
land shall not become inoperative after lapse of Ordinance. Section 19(1) contains a transitory
provision, which is quoted as below:
 W.P(C) No.26691 of 2010, etc. "19. Validation and Transitory Provisions.- (1)
Notwithstanding the expiry of the Kerala Forest (Vesting and Management of Ecologically
Fragile Lands) Ordinance, 2001 (16 of 2001) (hereinafter referred to as the said Ordiance)-

(a) all ecologically fragile lands vested in the Government under the said Ordinance shall
insofar as it is not inconsistent with the provisions of this Act, be deemed to have been
vested under this Act;

(b) anything done or deemed to have been done or any action taken or deemed to have been
taken under the said Ordinance shall, insofar it is not inconsistent with the provisions of this
Act, be deemed to have been done or taken under this Act."

Section 19(1)(b) provided that anything done or deemed to have been done or any action taken or
deemed to have been taken under the said Ordinance shall in so far as it is not inconsistent with the
provisions of the Act be deemed to have been done or taken under the Act. Thus under the Ordinances
actions taken including the Notifications issued shall be deemed
W.P(C) No.26691 of 2010, etc. to have been taken under the Act in so far as they are not inconsistent
with the provisions of the Act shall operate. Thus by lapse of Ordinances Notifications shall not
automatically come to an end. The Notifications issued under the Ordinances shall not become
inoperative after lapse of the Ordinances since they shall be deemed to have taken under the 2003 Act
in so far as they are not inconsistent with the provisions of the Act and further the Custodian has to
scrutinise the Notifications issued under the Ordinances which is required by Sec.19(3)(b) of the Act
for the purpose and object as noted above.
ISSUE No.XIII
146. In view of the forgoing discussion now we proceed to examine as to what relief the petitioners, if
any, are entitled in this batch of Writ Petitions.
147. In view of our decision on above issues
W.P(C) No.26691 of 2010, etc. especially Issue No.12, W.P(C).No.3210/2008 (M/s.Southern Field
Ventures Private Ltd. v. State of Kerala) and few other Writ Petitions relating to the said issue need to
be decided in the following manner:
W.P(C).No.3210 of 2008 (M/s.Southern Field Ventures Private Ltd. v. State of Kerala):

148. The prayer for quashing Exhibit P38 show cause notice dated 26.12.2007 is refused. Exhibit P40
order dated 8.1.2008 in so far as it recalls the order dated 12.6.2007 is affirmed, we direct the
Custodian of Ecologically Fragile Lands to decide the application filed by the petitioner dated
30.3.2007 afresh without taking into consideration any of the observations and findings referred to in
his order dated 8.1.2008 and in accordance with this judgment.
149. The prayer in W.P(C).No.27821 of 2007 for quashing Exhibit P17 notification published on
20.10.2000 cannot be granted, since we have already
W.P(C) No.26691 of 2010, etc. passed order in W.P(C).No.3210 of 2008 directing the Custodian to
decide the application dated 30.3.2007. Exhibit P26 notice dated 7.9.2007 and Exhibit P27 notice dated
8.9.2007 shall be subject to the decision of the Custodian on the application dated 30.3.2007 of the
petitioner as directed in W.P(C).No.3210 of 2008. The Writ Petition is disposed of accordingly.
W.P(C).No.29101 of 2007 (Indian Institute of Space Science and Technology v. State of Kerala &
others):
150. The prayer for quashing Exhibit P3 notice dated 8.9.2007 shall abide by the decision
on the application of M/s.Southern Field Ventures Private Ltd.

dated 30.3.2007 as directed in W.P(C).No.3210 of 2008. The Writ Petition is disposed of accordingly.
WP(C).No.27296 of 2007 (PIL) (The Friends of Environment v. State of Kerala & others):
151. The prayer of the petitioner to quash Rules 17 to 20 of the Kerala Forests (Vesting and
Management
 W.P(C) No.26691 of 2010, etc. of Ecologically Fragile Lands) 2007 is refused. Exhibit P6
order dated 12.6.2007 having already been recalled by order dated 8.1.2008, which has
been confirmed in W.P (C).No.3210 of 2008, the prayer for quashing Exhibit P6 has
become infructuous. The Writ Petition is disposed of accordingly.

W.P(C).No.32767 of 2007 (PIL) (Lawyers Environmental Awareness Forum v. Union of India):

152. In view of our order in W.P(C).No.3210 of 2008 directing the Custodian to decide the
application dated 30.3.2007 regarding claim of Merchiston Tea Estate to be exempted from
notification issued under Ordinance, the prayer for declaring Merchiston Tea Estate as
ecologically fragile land cannot be granted.

However, we direct that no construction in Merchiston Tea Estate shall be undertaken without
conducting an environmental impact study to be conducted under the
W.P(C) No.26691 of 2010, etc. supervision of the sixth respondent. The Writ Petition is disposed of
accordingly.
W.P(C).No.29466 of 2009 (PIL) (D.Reghunathan Nair v. State of Kerala:
153. The prayer of the petitioner to quash Exhibit P2 order dated 12.6.2007 has become
infructuous, in view of order dated 12.6.2007 having been recalled by further oder dated
8.1.2008, which recalling has been confirmed by our order in W.P(C).No.3210 of 2008.
Rest of the prayers are refused. The Writ Petition is disposed of accordingly.

W.P(C).No.32740 of 2007(PIL) (T.H.Mustaffa v. State of Kerala):

154. In view of our order passed in W.P(C).

No.3210 of 2008, the prayer of the petitioner to quash Exhibit P2 order dated 12.6.2007 has become
infructuous, in view of the recalling of the said order by subsequent order dated 8.1.2008 which
recalling has
W.P(C) No.26691 of 2010, etc. been confirmed by us by order of the date in W.P(C). No.3210 of 2008.
Rest of the prayers are refused. The Writ Petition is disposed of accordingly.
W.P(C).No.29245 of 2007 (PIL) (P.A.Sekharan v. State of Kerala & others):
155. The prayer of the petitioner to quash Exhibit P2 dated 12.6.2007 has become
infructuous, in view of recalling of the said order by subsequent order dated 8.1.2008,
which recalling has been confirmed by our order of the day passed in W.P(C).No.3210 of
2008.

Rest of the prayers are refused. The Writ Petition is disposed of accordingly.
156. The prayer in W.P(C) No.30930 of 2006 N.A.Plantations v. State of Kerala & Others for issuance
of a declaration that the State is bound by the judgment of the civil court in O.S. No.134 of 1998 is
refused.
W.P(C) No.15324 of 2009 - State of Kerala v.
W.P(C) No.26691 of 2010, etc. N.A.Plantations filed by the State is allowed. The Compromise Ext.P8
as well as the judgment of the civil court, Ext.P10 dated 31.02.2003 in O.S. No.134 of 1998 are
quashed.
157. W.A. No.535 of 2014 - State Kerala & Others v. M/s.Athani Bricks & Metals (P) Ltd. Varabetta is
allowed. Interim order passed by the learned Single Judge in W.P(C) No.5605 of 2014 is set aside.
W.P(C) No.1767 of 2007 - (Pallippath Shylaj & Others v. Forest Range, Kottiuyoor & Others)
158. Respondent in the counter having come up with the stand that no Notification regarding
petitioner's land has been published under the 2003 Act, the reliefs claimed have become infructuous.
There will be liberty to the petitioner to file afresh Writ Petition if any cause of action arises.
W.P(C) No.36454/2007 - (Kizhakkanela Sudhakaran v. Union of India & Others)
W.P(C) No.26691 of 2010, etc.
159. Prayer of the petitioner to quash Ext.P6, Government Order dated 22.11.2007 is refused, however
the petitioner shall be at liberty to submit a representation to the State Government.
160. As noted above, there are two Writ Petitions filed by the State challenging the orders passed by the
Civil Court granting interim injunction in the civil suit filed by the owners of the land. In one Writ
Petition compromise was also entered by the officers of the State and the suit was decided in terms of
the compromise as noted above. The ground taken in the Writ Petition is that the Civil Court has no
jurisdiction to entertain a suit, which is barred by Section 13 of the 2003 Act. It is useful to quote
Section 13 of the 2003 Act, which is to the following effect:
"13. Bar of jurisdiction of Civil Court.- Except as otherwise provided in this Act, no Civil
Court shall have jurisdiction to decide or deal with any question or to
 W.P(C) No.26691 of 2010, etc. determine any matter which is, by or under this Act,
required to be decided or dealt with or to be determined by the Tribunal, the custodian or
any other officer."

In view of the specific bar in entertainment of Civil Suit by the Civil Court, we are of the view that the
suit filed by the owners of the land was clearly not maintainable and the Civil Court has committed
error in granting interim injunction as well as deciding the suit on the basis of the compromise. The
orders passed by the Civil Court were clearly without jurisdiction and deserve to be set aside.
161. We have already upheld the constitutional validity of the 2003 Act. The prayer in the Writ
Petitions to declare the Act unconstitutional is refused.
162. The constitutional validity having upheld the claim of petitioners needs to be considered on merit.
Some of the petitioners have availed remedy under
W.P(C) No.26691 of 2010, etc. Sections 19, 10, 10A and 10B of 2003 Act, but many have been
awaiting the outcome of challenge to the constitutional validity. For determining the claim of each
owner, the facts, evidence, spot position have all to be considered which cannot be appropriately done
in writ proceedings. For an application under Section 19, no time limit is provided and he Custodian is
also obliged to suo motu examine the notifications, but for a dispute to be raised under Sections 10,
10A and 10B there are time constraints. But looking to the fact that constitutional validity is being
decided today, we deem it fit and proper to give opportunity to all to avail the statutory remedy under
Sections 19, 10, 10A and 10B as the case may be. The Custodian and the Tribunal may decide the
respective claims in light of the observations as made above.
163. In addition to what has been directed above in paragraphs 147 to 159, we dispose of all the Writ
W.P(C) No.26691 of 2010, etc. Petitions in following manner.
(i) We uphold the constitutional validity of

the 2003 Act. The prayer in the Writ

Petitions to declare the 2003 Act

unconstitutional is refused. The challenge to Rules 17 to 20 of 2007 Rule is also repelled.

(ii) Those petitioners who have challenged the Notifications issued under the Ordinances, notifying
their land as ecologically fragile land under Ordinance Nos.6/2000, 8/2000, 3/2001 and 16/2001 are
given liberty to submit an application to the Custodian under Sec.19 of the 2003 Act for reviewing the
Notification within one month from this day if not already made.
(iii) The Custodian shall proceed to examine

the above applications taking into

W.P(C) No.26691 of 2010, etc.

consideration the relevant materials and averments and observations made in this judgment. The
decision be taken thereon within three months from the date of filing the application along with copy of
this judgment. The pending applications be also decided within three months.
(iv) Petitioners who have challenged the Notifications issued under Sec.3 of the Act are also allowed
one month's time to submit an application under Sec.10(1) and 10A as the case may be to the Tribunal
which may be considered and decided by the Tribunal in accordance with law expeditiously within a
period of six months from the date of submitting the applications.
W.P(C) No.26691 of 2010, etc.
(v) The other reliefs claimed in the different Writ Petitions not specifically dealt with as above are
refused.
164. Before we part, we record our deep appreciation for the learned counsel for the petitioners as well
as learned Counsel for the State who have placed the case with great industry and knowledge. With
their valuable assistance we could decide various involved issues with ease.
Parties shall bear their own costs.
AS