Holding

The Gujarat Surviving Alienations Abolition Act, 1963 validly extinguishes the respondents' hereditary right to the annual payment, and they are only entitled to compensation under the Act.

Summary

The respondents claimed a hereditary right to receive Rs.3,500 annually from the State of Gujarat, based on a 1914 agreement that commuted their right to collect forest produce from the Gir Forest. The State argued that the Gujarat Surviving Alienations Abolition Act, 1963 extinguished that right. The Supreme Court examined whether the cash allowance fell within sub‑clause (d) of clause (3) of section 2 of the Act and whether the Act, as an agrarian reform measure, was protected by Article 31A(1)(a) of the Constitution. The Court held that the right to the annual payment was indeed an alienation covered by the Act and that the Act was a valid exercise of agrarian reform, thus the right was extinguished. Consequently, the respondents are entitled only to compensation under the Act, and the suit was dismissed. The appeal by the State was allowed.

Issues considered

The right to receive Rs.3,500 per annum under the 1914 agreement is extinguished by the Gujarat Surviving Alienations Abolition Act, 1963.
Whether sub‑clause (d) of clause (3) of section 2 of the Act includes cash allowances such as the annual payment.
Whether the Act, insofar as it affects the respondents' right, falls within the ambit of agrarian reform protected by Article 31A(1)(a) and is therefore immune from Articles 14, 19 and 31 challenges.
Whether the respondents are entitled to compensation under the Act despite the constitutional provisions.

Legislation cited

Bombay Reorganisation Act, 1960
Gujarat Surviving Alienations Abolition Act, 1963s. 13, s. 2(3)(d), s. 6

Subjects

agrarian reformalienationcompensationforest rightsNinth ScheduleArticle 31Aconstitutional validityextinguishment of rights

Judgment

STATE OF GUJARAT & ANR.
A
v.
KAMLABEN JIVABHAI & ORS.

APRIL 21, 1989

[E.S. VENKATARAMIAH, N.D OJHA AND B
KULDIP SINGH, JJ.)

Gujarat Surviving Alienations Abolition Act, 1963-Sections

- 2(3)(d), 6 & 13-Act protected in view of inclusion in Ninth Schedule-
Section 2(3)(d)-Alone specifically excluded from protectimt of Article
3 lB-Law relating to agrarian reform-Held the rights of the respon-
dents ariSing out of the forest area validly extinguished-Are entitled to
c
+ payment of compensation notwithstanding the provisions of Art. 14, 19
& 31 of the Constitution of India by virtue of Art. 31(A)(I).

One Darbar Harsurvala by virtue of a declaratory decree made
in 1884 had the hereditary right of collecting grass, firewood, timber D
etc. from Gir Forest in the erstwhile state of Junagarh. This right
devolved on his son Jiva Vala. The State by an agreement dated 10th
August 1914 agreed to pay Rs.3,500 every year to Jiva Vala and on his
demise to his heirs, in lieu of the right to collect grass, firewood etc.
In January 1965 the revenue authorities issued a notice to the
Respondents-successors-in-interest of Harsurvala that the right to E
receive the aforesaid amount had come to an end on the coming into
force of the Gujarat Surviving Alienations Abolition Act, 1963 and
asked them to refund the amount paid to them for the year 1963-64. The
respondents filed a declaratory suit for a declaration that they con-
tinued to enjoy the right to receive Rs.3,500 hereditarily and for an
injunction restraining the State from recovering the amount already F
paid to them. The Trial Court dismissed the suit. On appeal the District
Judge allowed the appeal holding that the right to receive the amount
annually had not come to end. The High Court confirmed the decree
passed by the District Judge. The State came up in appeal by special
leave against that judgment of the High Court. Allowing the appeal,
this Court. G

HELD: The Gujarat Surviving Alienations Abolition Act, 1963
was passed with the object of abolishing certain alienations which
were not affected by the earlier enactments which had been enacted
for the abolition of various kinds of alienations in the State of
Gujarat. [690G I H
687
688 SUPREME COURT REPORTS [1989] 2 S.C:.R.
-L~
A The Act is included in the Ninth Schedule to the Constitution as 'f
Item No. 33. [692F]

Sub-clanse (d) of clause (3) of section 2 of the Act having been
specifically excluded, the said clause does not receive the protection of
Article 31-B of the Constitntion oflndia. [692G]
B
The 1963 Act should be construed as having the effect of bringing
abont the extinguishment of the right in an estate for the purpose of 9 •
better management of the forest area keeping in view the interests of the
people of the State in general, and of the people living in or around the
Gir Forest, in particular. [696C]
c In order to treat a particular law as a part of an agrarian reform
contemplated under Art. 31 A(l) it is not necessary that on the land
which is the subject matter of the said law actual cultivation should be
carried on. [695E]

D In the instant case, the right which the family of the respondents
possessed was the right to collect grass, fire-wood and timber etc. from
the Gir Forest and that right had already been surrendered under the
agreement dated 10-8-1914 by the said family in lieu of the annual
payment of Rs.3,500. The right which was being en.joyed by the pre-
decessor-in-interest of the respondents was a pasture. [693C-D!
E
The extinguishment of the right to receive a certain amount in lieu
of the right to remove timber, grass, etc. from a forest area, therefore,
formed part of the process of agrarian reform contemplated under Art.
31-A(I) as there was clear nexus between the agreement to pay the
amount and the rights arising out of the forest area. [695H; 696A)
F
The respondents are entitled to the payment of whatever compen-
sation is payable under the Act notwithstanding the provisions of Arti-
cle 14 and 19 and Articles 31 of the Constitution oflndia. [696E-J']

State of Kera/a & Anr. v. The Gwalior Rayon Silk Manufacturing
G (Wvg.) Co. Ltd. etc. [1974) l SCR 671, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1357
of 1973.

From the Judgment and Order dated 10.10.1972 of the Gujarat
H High Court in Second Appeal No. 93 of 1968.
STATE OF GUJARAT v. KAMLABEN [VENKATARAM!All, J.] 689

G.A. Shah and M.N. Shroff for the Appellants.

Krishan Kumar and Vimal Dave (N.P.) forthe Respondents.•

The Judgment of the Court was delivered by

VENKATARAMIAH, J. The question for consideration in this B
_J\ case is whether the here.ditary right of the respondents to recover a
't sum of Rs.3,500 per annum under an agreement dated 10.8.1914
entered into between the predecessor-in-interest of the respondents

- and the former princely State of Junagadh came to an end by virtue of
provisions contained in the Gujarat Surviving Alienations Abolition
Act, 1963 (hereinafter referred to as 'the Act').
c
There was one Darbar Harsurvala of Mandavad in the former
princely State of Junagadh. He had a hereditary right to collect certain
quantities of grass, fire-wood and timber from the Gir Forest in the
State of Junagadh and that right was recognised by a declaratory
decree made by the Ra jasthanik Court of Kathiawar in the year 1884. D
On the death of Harsurvala the said right was being enjoyed by his son
Jiva Vala till the year 1914. On 10th August, 1914 an agreement was
entered into between Jiva Vala and the State of Junagadh under which
the State of Junagadh agre.ed to pay every year (commencing with 1st
September of the preceding year and ending with the 31st August of
the succeeding year) in the month of January a sum of Rs.3,500 fo Jiva E
I Vala and after him to the heirs claiming under him in lieu of the right to
collect grass, fire-wood and timber which was being exercised by Jiva
Vala. Accordingly, Jiva Vala was receiving the sum of Rs.3,500 every
year and on his death his son Kalubhai was receiving the said sum
every year from the State of Junagadh and on the State of Junagadh
becoming part of the Union of India from the Saurashtra State, then F
from the State of Bombay in which Saurashtra State was merged and
thereafter from the State of Gujarat which came to be established
under the Bombay Reorganisation Act, 1960 till his death. After his
death Respondent No. 1-Kamlaben, the wife of Kaluhhai and the
other respondents; who were children of Kalubhai were receiving the
amount due to them till the year 1964. However, in January, 1965 the G
Mamlatdar of Visavadar issued notice under the orders of the Col-
lector, Junagadh to the respondents stating that the right to receive the
said amount had come to an end on the coming into force of the Act,
i.e., the Gujarat Surviving Alienations Abolition Act, 1963, which had
come into force on 1st October, 1963 and threatening the respondents
that measures such as attachment etc. would be taken if the amount H
690 SUPREME COURT REPORTS [1989] 2 S.C.R.
A paid for the year 1.9.1963.to 31.8.1964 was not refunded by them to -i--'
the State Government. Thereupon the respondents instituted the suit
before the Court of the Civil Judge, Junagadh out of which this appeal
arises for a declaration that they continued to en joy the right to receive
the sum of Rs.3,500 per annum hereditarily and for an injunction
B restraining the appellants, the State of Gujarat and •he Collector of
Junagadh frum taking any action to recover the amount which had ).__
already been paid to them. The Trial Court dismissed the suit.
Aggrieved by the judgment and decree of the Trial Court, the respon- f
dents filed an appeal before the District Judge, Junagadh in Civil

c
Regular Appeal No. 135 of 1966. The District Judge allowed the
appeal holding that the right to receive the amount had not come to an
end on the coming into force of the Act. The decree passed by the
-
learned District Judge was confirmed by the High Court of Gujarat in
Second Appeal No. 93 of 1968 vide its Judgment dated 10.10.1972. ~
The appellants have filed this appeal by special leave against the judg-
ment of the High Court.
D
There is no dispute about the facts involved in this case. The
right of Harsurvala to take grass, fire-wood and timber from the Gir
Forest belonging to the State of Junagadh had been declared in a
decree (Exhibit 21) passed by the Rajasthanik Court on April 14,
1884. By a further agreement dated 10th August, 1914 (Exhibit 24)
E which had been arrived at between Jiva Vala, descendant of
Harsurvala and the State of Junagadh, the State of Junagadh had
agreed to pay every year a sum of Rs.3,500 to Jiva Vala and his heirs in
lieu of the right to collect grass, fire-wood, timber from the Gir Forest, I
as stated above. That the State of Junagadh and then the State of
Saurashtra, the State of Bombay and the State of Gujarat were paying
F the said amount annually to Jiva Vala and his successors till the year
1964. The only question which arises for consideration is whether the
said right to receive Rs.3,500 per annum came to an end on the coming
into force of the Act.

The Act was passed with the object of abolishing certain aliena-
G lions which were not affected by the earlier enactments which had
been enacted for the abolition of various kinds of alienations in the
State of Gujarat and to provide for matters consequential and inciden-
tal thereto. The expression 'alienation', as defined in clause (3) of
section 2 of the Act reads thus:

H "3. 'alienation' means-
STATE OF GUJARAT v. KAMLABEN (VENKATARAMIAH, J.] 691

(a) any right in respect of an aghat land enjoyed by A
an aghat holder immediately before the appointed day,

(b) any right in respect of a Taiuqdari watan enjoyed
by the holder thereof immediately before the appointed day,

(c) any right, with or without any condition of 8.
service, in respect of any other land, village or portion of a
village and consisting of-

(i) any proprietary interest in the soil.coupled or not
coupled with exemption from the payment of the whole or
part of the land revenue, or
c
(ii) a right only to the land revenue or a share of land
revenue of the land, village or portion of a village,

enjoyed by the holder thereof for the time being and sub·
sisting immediately before the appointed day in limitation D
of the right of the State Government to assess the land or
village or portion of a village to lal)d revenue in accordance
with the Code, whether by virtue of an express grant or
recognition as a grant by the ruling authority for the time
being or otherwise, or
E
(d) any right to any cash allowance or allowance in
kind, by whatever name called, payable by the State
Government and enjoyed by any person immediately
.,.
.
before the appointed day;"

Section 6 of the Act reads thus: F

"6. Abolition of alienationsfogether with their incidents
and alienated lands liable to payment of land revenue.-
Notwithstanding any usage or custom, settlement, grant,
agreements, sanad or order or anything contained in any
decree or order of a court or any law for the time being G
applicable to any alienation, with effect on and from the
appointed day-

(a). all alienations shall be and are hereby abolished;

(b) save as expressly provided by or under this Act, H
692 SUPREME COURT REPORTS [1989] 2 S.C.R.

A all rights legally subsisting on the said day under such . "i_..,.
alienations and all other incidents of such alienations
(including any right to hold office, or any liability to render
service appertaining to an alienation) shall be and are
hereby extinguished;

B (c) subject to the other provisions of this Act, all
alienated lands shall be, and are hereby made liable to the •.
payment of land revenue in accordance with the provisions 9
of the Code and the rules made thereunder; and accord-
ingly the provisions therein relating to unalienated land
shall apply to all alienated lands."
c On such abolition the alienee is entitled to compensation as pro-
vided in section 13 of the Act, if the alienation is one covered by
section 2(3 )( d) of the Act.

The right to receive a sum of Rs.3,500 per annum which the
D respondents were en joying admittedly did not fall under sub-clauses
(a), (b) and (c) of clause (3) of section 2 of the Act. The question is
whether the said right falls under sub-clause (d) of clause (3) of section
2 of the Act and if it falls under that clause whether the payment of the
said sum can be abolished constitutionally under the Act. Sub-clause
(d) of clause (3) of section 2 of the Act is very widely worded and
E refers to any right to any cash allowance or allowance in kind, by
whatever name called, payable by the State Government and en joyed
by any person immediately before the appointed day.

The Act is included in the Ninth Schedule to the Constitution of
India as Item No. 33 which reads thus:
F
"33. The Gujarat Surviving Alienations Abolition Act,
1963 (Gujarat Act XXXIII of 1963), except in so far as this
Act relates to an alienation referred to in sub-clause (d) of
clause (3) of section 2 thereof."

G Sub-clause (d) of clause (3) of section 2 of the Act having been
specifically excluded, the said clause does not receive the protection of
Article 318 of the Constitution of India. The question which remains
to be considered is whether the said sub-clause can be deemed to be
protected by Article 3 lA of the Constitution of India. Article 3 lA of
the Constitution of India.refers to matters described in sub-clauses (a)
H to ( e) of Article 3lA{1) of the Constitution oflndia. It is not .claimed
STATE OF GUJARAT v. KAMLABEN [VENKATARAMIAH, J.] 693
·r ·on behalf of the State Government that the _present case falls under A
'

sub-claqses (b) to (e) of Article 31A(1) of the Constitution of India. It
is, however, urged that the present case falls under sub-clause (a) of
clause (1) of Article 31A of the Constitution of India, which reads
thus:

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

In other words it is.. urged that the provision in question should be
treated as a part of a legislation intended for bringing about agrarian
reform to which Article 31A(l)(a) of the Constitution of India is C
attracted. In the instant case the right which the family of the respon-
dents possessed was the right to collect grass, fire-wood and timber
etc. from the Gir Forest and that right had already been surrendered
under the agreement dated 10.8.1914 by the said family in lieu of the
annual payment.of Rs.3,500. In an earlier decision in Civil Application
No. 1399 of 1968 deeided on 18/19.3.1971 a Division Bench (J.M. D
Mehta and A.O. Desai, JJ.) of the Gujarat High Court had held that
sub-clause (d) of clause (3) of section 2 of the Act was not ultra vires so
,._ .. far as the alienation in question was by way of an agrarian reform. The
judgment in that case had been delivered by J.M. Mehta, J. The Judg-
ment out of which the present Second Appeal arises was also rendered
by J.M. Mehta, J. himself. Distinguishing his earlier decision from the E
present case J.M. Mehta;J. has observed thus:

"In the present case the right of plaintiff has origi-
nated in the right to take forest produce of the Gir Forest
belonging to the former Junagadh State and which had
been enjoyed by the ancestor Shri Harsurvala. The right F
was recognised by the Ra jasthanic Court of the then
Kathiawad Agency. It was under the agreement,

Ex. 24 dated August.10, 1914 that this right was commuted
into a lump sum amount of Rs.3,500 and this was enjoyed
hereditarily by the plaintiffs' ancestor. Therefore, this alie- G
nation has nothing to do with any agrarian reform and this
alienation would not fall within the section 2(3)(d) so that it
can have any immunity from the ·challenge. The State could
only succeed if the term 'alienation' in section 2(3)(d) is
interpreted in such wide context which would make it ultra
vires as per the settled legal position in the aforesaid Divi- H
694 SUPREME COURT REPORTS [1989! 2 S.C.R.

sion Bench decision. That is why narrow interpretation was
A
given by me confining to only those alienations which were -""'(-
incidental to the agrarian reform. The present alienation ·
which consisted of cash allowance as per Ex. 24 is not inci-
dental to any agrarian reform, and tnerefore, the Act
would not abolish this alienation. The plaintiffs' rights are
B to take forest produce and on commutation of their rights
by Ex. 24 they are property rights. When such allowance is '-(•·
. being paid the right to this cash allowance could never be
acquired by the State as per the aforesaid settled legal posi-
tion ...... " ,

In view of the foregoing the High Court held that section 2(3)(d)
C of the Act should be read down and construed as not including pay-
ment of cash allowance of the type in question. It held that otherwise -
the said clause would be violative of Articles 14, 19 and 31 of the " ;.
Constitution of India. ·

D It is not disputed by the learned counsel for the State Govern- ·
ment that unless the present case receives the protection of Article
. 3 lA of the Constitution of India the action taken by the State Govern-
ment to treat. the right of the respondents as having come to an end
would be unconstitutional since it would be violative of Articles 14, 19
and 31 of the Constitution of India. .-(~
E
It is, therefore, necessary to examine the nature of the transac- -
ti on under which the amount of Rs.3,500 was payable every year to the
respondents on the hereditary basis in order to find out whether the
abolition of the· said right caii-be considered as a part of agrarian
reform which ·receives the protection of Article 3 lA of the Constitu-
-F _ - tion of India. An extract of the Records of Rights giving particulars of
. the agreement dated 10th August, 1914 entered into between Vala Jiva
Harsur and the State of Junagadh ·is produced before the Court. It
shows that Vala Jiva Harsur, the predecessor-in-interest of the respon-
dents had the right to remove from the Gir Forest every year (i) 75 cart
loads of teak wood, (ii) 100 cart loads of atcot wood, (iii) 600 cart loads
G of sarpan, and (iv) 250 cart loads of grass, in addition to the right of
grazing of cattle and removing two lakhs bundles of grass during the
time of famine. It is clear from the above statement that certain rights
which the family of respondents possessed in the land comprised in the
Gir Forest were agreed to be surrendered against payment of Rs.3 ,500
· annually. It is no doubt true that long before the date on which the Act
H came into force the agreement had come into existence but it was a
STATE OF GUJARAT v. KAMLABEN [VENKATARAMIAH, J.] 695

t--' right which was originally annexed to land. It may be that the said land A
formed part of the said forest, but still it falls within the definition of
the expression 'estate' in clause (a) of Article 31A(2) of the Constitu-
tion of India. Article 31A(2)(a)(iii) states that 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 B
ia.., village artisans is included in the expression 'estate' for purposes of
.:. Article 31A of the Constitution of India. Article 31A, as it stood on
the date of the passing of the Act, provided that notwithstanding any-
thing 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 rights shall be deemed to be void on the
ground that it was inconsistent with or took away or abridged any pf C
rt- the rights conferred by Article 14 or Article 19 or- Article 31 Of the
Constitution of India. The expression 'rights' is again defined in Arti-
cle 31A(2) of the Constitution of India as in relation to an estate,
including any rights vesting in a proprietor, sub-proprietor, under-
proprietor, tenure-holder, raiyat, under-raiyat or other intermediary D
and any rights or priviliges in respect of land revenue. It is an inclusive
definition. The right which was being enjoyed by the predecessor-in-
interest of the respondents was a right in a waste land or a forest land
t"· or a land for pasture. In order to treat a particular law as a part of an
agrarian reform, it is not necessary that on the land which is the sub-
ject matter. of the said law actual cultivation should be carried on. In E
the State of Kera/a and Anr. v. The Gwalior Rayon silk Manufacturing
(Wvg.) Co. Ltd. etc., [1974] 1 S.C.R. 671 the.constitutionality of the
Kerala Private Forests (Vesting and Assignment) Act, 1971 came up
for consideration before this Court. In that case one of the questions
which arose for consideration was whether the said Act which related
to private forests envisaged a scheme of agrarian reform. In that case F
·li.. this Court held that even though the said legislation had the effect of
' extinguishing or modifying rights annexed to or arising out of the
forest land it could be considered as part of agrarian reform because
such forest lands also if prudently and profitably exploited could bring
about relief to people engaged in agriculture. This Court further
observed in that case that agrarian reform was more humanist than G
t.l
mere land reform and scientifically viewed covered not merely aboli-
tion of intermediary tenures, zamindaris and the like but restructuring
of village life itself taking in its broad embrace the socia-economic
regeneration of the rural population. In the present case the-exting-
uishment of the right to receive a certain amount in lieu of the right to
remove timber, grass, _etc. from a forest area, therefore, formed part H
696 SUPREME COURT REPORTS [1989] 2 S.C.R.

A of the process of agrarian reform as there was clear nexus between the ,.... •
agreement to pay the amount and the rights arising out of the forest
area. It is significant that under the agreement of the year 1914 the
State of Junagadh undertook to pay Rs.3,500 every year hereditarily in
lieu of the rights which the predecessor-in-interest of the respondents
had in the forest area, thereby meaning that if the amount was not
B
paid, the original right to carry timber, grass etc. from the forest area Ii..
would revive. It cannot, therefore, be said that the extinguishment of ~
the right to receive money alone unconnected with land was contemp- lJ> •
lated in the instant case. When once the above conclusion is reached
then the legislation in question should be construed as having the
effect of bringing about the extinguishment of the right in an estate for
c the purpose of better management of the forest area keeping in view
the interests of the people of the State in general and of the people
living in or around the Gir Forest in particular. Sub-clause (d) of ~
clause (3) of section 2 of the Act should be deemed to include the cash
allowance of the type involved in this case and the Act must be held to
be valid even though it affects the rights of the respondents which
D undoubtedly originated from the land covered by the forest area. We,
therefore, hold that the view taken by the High Court that if the
transaction in question is construed as covered by sub-clause (d) of
clause (3) of section 2 of the Act, the Act would become void to that
extent is not correct. We are of the view that the legislation has the . .
effect of validly extinguishing the right of the respondents to receive
E annually a sum of Rs.3,500 on a hereditary basis. The respondents are
entitled to the payment of whatever compensation is payable under the
Act notwithstanding the provisions of Articles 14 and 19 and Article 31
of the Constitution of India (as it existed prior to its deletion).

We, therefore, set aside the judgment of the High Court and
F dismiss the suit instituted by the respondents. We, however, make it
clear that the dismissal of the suit does not come in the way of the
respondents being paid whatever compensation they are entitled to
under the Act. If such compensation has not been paid yet, the autho-
rity concerned shall proceed to compute the amount of compensation
payable to the respondents and to dishurse it within three months from
G today.

The appeal is accordingly allowed. No costs.

R.N.J. Appeal allowed.