Judgement

B. P. JEEVAN REDDY, J.:- WRIT PETITION(C)NOS.974 OF 1991 AND 419 OF 1989

The Kerala Private Forests (Vesting and Assignment) Act (Act 26 of 1971), was enacted by the Kerala Legislature to acquire forest lands held on janmam right as a measure of agrarian reform. The Act did not provide for any compensation being paid to the owners of these private forests. The forest lands so vesting in government were intended to be assigned to landless agriculturists and agricultural labourers for cultivation. Sub-section (1) of Section 10 says that the government shall first reserve such extent of the private forests vesting in the government under the Act as may be necessary for purposes directed towards the promotion of agriculture or the welfare of the agricultural population or for purposes ancillary thereto. Balance extent of the vested private forests were to be assigned on registry or lease to agriculturists, agricultural labourers, members of Scheduled Castes and Scheduled Tribes who are willing to take up agriculture as means of their livelihood and other categories of persons mentioned therein. Section 11 expected that such assignment "shall, as far as may be, completed within two years from the date of publication of this Act in the Gazette".

2. Soon after the Act was made, which had the effect of vesting the ownership and possession of private forests in the government, the affected owners filed writ petitions in the Kerala High Court challenging the constitutional validity of the enactment. A Full Bench of the Kerala High Court struck down the Act holding it to be outside the protective umbrella of Article 31A of the Constitution, which decision is reported in AIR 1973 Ker 36. The State of Kerala questioned the said judgment in this Court which, by its judgment and order dated September 18, 1973, allowed the appeals, set aside the judgment of the Kerala High Court and upheld the validity of the enactment. The decision of this Court is reported in State of Kerala v. Gwalior Rayons Silk Manufacturing Company, (1974) 1 SCR 671 : (AIR 1973 SC 2734). The main judgment of the Constitution Bench was delivered by Palekar, J., while V.R. Krishna Iyer, J. delivered a separate concurring judgment.

3. After the judgment of this Court, the Government of Kerala constituted a committee comprising certain high officials to study the forest areas and to formulate guidelines for the assignment of the vested forests. After receiving the report of the said committee, the government says, it started the process of assignment. It is stated in the counter-affidavit that out of a total area of 2,26,975 hectares vesting in the government under the Act, 4000 hectares has been given to tribals, co-operatives and agricultural reforms and an additional area of 6,878 hectares has been handed over to the revenue department for being distributed. An extent of 8000 hectares is said to be under the possession of encroachers.

4. While so, the Parliament enacted the Forest (Conservation) Act, 1980 by virtue of Entry 17A of List-III of the Seventh Schedule to the Constitution. It may be recalled that the subject-matter of forests was originally in List-II but by virtue of the 42nd (Amendment) Act to the Constitution, it was deleted from List-II and inserted in List-III. Section 2 of the Forest (Conservation) Act provides that "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 land or any portion thereof may be used for any non-forest purpose". The explanation to Section 2 says that for the purpose of Section 2 `non-forest purposes means breaking up or clearing of any forest land or p