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