The remonstrance based on cessation of the lease on the
expiry of 36 years also does not commend for acceptance in the face
of unreserved acceptance of lease rent at the earlier rate of Rs.
693.75 paisa admittedly till the year 1978. The assertion that in
any view of the matter, as the respondent-company in terms of
Section 116 of the Transfer of Property Act 1882, ought to be
construed to be the lessee, holding over the demised land on
payment of rent and that the lease stood renewed from year to year
and that accordingly on the date of the institution of the suit there
was a subsisting tenancy in respect of plantation exceeding 30
acres cannot be sustained as well. Though admittedly, at the
institution of the suit, the rubber plantation of the
respondent-company did exist on the land, in the teeth of Section
116 of the Transfer of Property Act 1882, which comprehends
renewal of the expired lease, year after year or month after month it
is essentially qua the purpose for which the property had been
originally leased which in the instant case is traceable to the year
1918. As the lease deed dated 21.6.1918 proclaims in no uncertain
terms that the transaction evidenced thereby was by no means a
tenancy in respect of plantation, the same with efflux of time, in our
estimate cannot transfigure into the same merely because a
plantation has been raised on the leasehold land in between by the
lessee who had been left at its discretion to grow the same. In
absence of a conscious intervention of the parties to the lease,
either to convert it into one for tenancy in respect of such
plantation ad idem or to extend it thereto, an automatic
transformation of the lease not for plantation cannot stand
converted into one for plantation. As a transaction of this kind
involving immovable property is essentially governed by the terms
and conditions concurred upon by the parties thereto, no unilateral
alteration or modification thereof, unless agreed to by both, in
categorical terms, ought to be permitted to be pleaded or enforced
by anyone of them to the disadvantage of the other. Neither the
lease deed contains any stipulation sanctioning such unilateral
alteration of the stipulations contained therein nor do the materials
on record testify such consensus based modification of the lease
covenants. A plain perusal of the Section 116 of the Transfer of
Property Act 1882 also does endorse this deduction.
{REPORTABLE}
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5163/2012
N K RAJENDRA MOHAN ...….APPELLANT
Vs.
THIRVAMADI RUBBER CO. LTD & ORS …..RESPONDENTS
Dated: 02 July, 2015
Amitava Roy,J.
Citation;(2015) 9 SC326
The appellant, one of the plaintiffs in the suit instituted before
Munsif Court (II), Kozhikode along with others against the
respondent No. 1 herein, seeking eviction of the latter from the land
involved and damages for the use and occupation thereof, in his
relentless pursuit for redress is before this penultimate institutional
forum, having successively failed at all the intermediate tiers. The
procrastinated tussle spanning over three decades eventually seeks
a quietus at this end. Page 2
2
2. We have heard Mr. A. S. Nambiar, Senior Advocate for the
appellant and Mr. A. M. Singhvi, Senior Advocate for the respondent
No.1. Incidentally, the co-plaintiffs have been arrayed as other
respondents in the instant appeal.
3. The salient facts, which make up the edifice of the lingering
contentious dissent, however lie in a short compass. As adverted to
hereinabove, the appellant alongwith others did institute a suit,
being OS 569/1982 before Munsif Court (II), Kozhikode against the
Respondent No. 1 praying for its eviction from the suit land and
realization of arrear rent, damages etc, the pleaded case being that
the suit land had belonged to their Tarwad and was a private forest.
On 21.6.1918, an area of 963.75 acres was leased out to one Mr.
Campbell Hunt for a period of thirty six years vide Exh. A 1
whereunder, the lessee was liable to pay a sum of Rs. 693.75 per
annum towards annual rent. Eventually, through intervening
transactions, the respondent-company stood inducted to the suit
land with the same status. According to the plaintiffs, they were
the joint owners of the property and asserted that neither the
original lessee Mr. Campbell Hunt nor his successors did derivePage 3
3
fixity of tenure or right of ownership either under the lease deed or
the provisions of the Kerala Land Reforms Act 1964 (hereinafter
referred to as Act 1963), brought into force on and from 01.04.1964
or any other tenancy laws prior thereto. The plaintiffs averred, that
at the time of handing over the property to Mr. Campbell Hunt in
the year 1948, the same was a private forest under the ownership
and possession of their Tarwad. The lease which was for a period of
36 years with effect from 01.04.1918 lapsed with efflux of time and
the respondent-company had no right to retain the possession
thereof. The Plaintiffs admitted that it (respondent-company) had
raised a rubber estate on the suit land. It was alleged that the
respondent-company also did not pay the lease rent as fixed i.e. Rs.
693.75 per annum for the year 1979, 1980 and thereafter. That in
inspite of several requests, it did not vacate the land by removing its
buildings etc. therefrom for which a notice was addressed on
10.11.1980 to the respondent-company to vacate and deliver
possession of the suit land was stated. According to the plaintiffs,
in terms of the notice, the tenancy stood extinguished from
21.6.1981. However in response to the notice, the
respondent-company claimed in its reply, that it had acquired the
right of fixity of tenure on the suit land. In this factual premise, the
plaintiffs instituted the suit, for the above reliefs claiming inter alia
arrear lease rent at the rate of Rs. 693.75 per annum from
01.04.1979 to 20.06.1981 and damages at the same rate for the
period subsequent thereto for use and occupation thereof.
4. The respondent-company in its written statement, resisted the
suit. While admitting, the lease deed Exh. A 1, in favour of Mr.
Campbell Hunt in the year 1918, it elaborated that out of total land
leased, the cultivable area was 925 acres and that the lease was
granted with the right to cultivate coffee, tea, pepper, cinchona,
rubber etc. and any other produce as the lessee would consider
proper, by cleaning the area. The respondent-company claimed
fixity of tenure under the Malabar Tenancy Act 1929 (for short
hereinafter referred to as Act 1929) as well as the Act 1963, and
pleaded for the dismissal of the suit.
5. The learned Trial Court in the face of the
respondent-company’s claim of fixity of tenure, referred the issue to
the Land Tribunal, Kasargod which sustained this plea and
consequently the suit was dismissed. The appeal preferred by the
plaintiffs met the same fate. Being still aggrieved, they (appellants)
did take the challenge before the High Court of Kerala. By the
judgment impugned, the High Court has sustained the adjudication
of the Courts below.
6. As the decisions impugned would reveal, the High Court
negated the plaintiffs’ assertion that the suit land at the time of the
initiation of the lease in the year 1918 was a private forest and thus
stood excluded from the applicability of Act 1963 in terms of
Section 3 (1) (vii) thereof, as it was granted to Mr. Campbell Hunt as
per Exh. A 1 to cultivate rubber, cinchona, coffee and any such
crop as the lessee construed it to be proper. It was inter alia
observed that the lease deed clearly disclosed that the land was
Puramboke and not assessed to any revenue and that the lessee
was permitted to cut and remove trees, shrubs etc. to prepare the
same for the purpose of cultivating rubber, tea, coffee etc. The High
Court was also of the view that if the conveyed land was a forest,
there would have been some stipulation in the lease deed to the
effect. That the lease rent was fixed at the rate of the cultivable area
was also noted. The High Court did record as well, that the landPage 6
6
was assessed to Government revenue on the basis of cultivations
done which too belied the appellants’ claim of the same being a
private forest. Reference was also made to the relevant survey plan
(Exh. A 2), appended to the lease deed, to endorse the conclusion
against the existence of private forest on the land at the time of its
demise on lease. It ruled further, that even if the land was a private
forest at the time of the initial lease, cultivation of various other
crops thereon, after the execution of the lease deed took it out of the
ambit of Section 3 (1) (vii) of Act 1963.
7. Vis-a-vis the next contention, namely, that the suit land
contained a plantation on the date of enforcement of Act 1963 and
thus stood exempted from the ambit thereof, the High Court
entered a finding, that the statutory provision i.e. Section 3 (1) (viii),
applied to cases where a plantation did exist at the time of the grant
of lease and not on the date of commencement of the statute.
Relying on the decision of a Full Bench of the Kerala High Court in
Rt., Rev. Dr. Jerome Fernandes Vs B. B. Rubber Estate Ltd, 1972
KLT 613 dilating on the same issue, the High Court thus concluded
that the respondent-company was entitled to fixity of tenure. InPage 7
7
these premise, the aspect of its entitlement to the value of
improvements made by it on the land was left undecided. As a
corollary, the appeal was dismissed.
8. Mr. Nambiar, the learned Senior Counsel for the appellant has
assiduously argued, that having regard to the covenants of the lease
deed and the attendant facts and circumstances, the transaction
was well within the purview of Section 3 (1) (vii) and/or 3 (1) (viii) of
the Act 1963 and was thus exempted from the applicability thereof
and consequently the respondent-company was not entitled to any
fixity of tenure as per the statute. Referring to the objects and
reasons of the enactment, the learned senior counsel insisted that
the applicability of Section 3 (1) (vii) and 3 (1) (viii) thereof has to be
essentially tested on the touchstone of the date of the enforcement
of the legislation. As admittedly, there was a standing rubber
plantation on the suit land on that date i.e. 01.04.1964, the
respondent-company unmistakably had no sustainable right of
fixity of tenure and thus the deductions to the contrary as recorded
in the impugned decisions are patently non est in law. Mr. Nambiar
urged that this issue having been authoritatively settled by aPage 8
8
Constitution Bench of this Court in Karimbil Kunhikoman vs State
of Kerala (1962) Suppl. 1 SCR 829, the decision to the contrary as
recorded by the Full Bench of the Kerala High Court in Rt., Rev.
Jerome Fernandes (supra) is on the face of it per incuriam and
consequently the impugned verdict founded thereon is
unsustainable in law and on facts. The learned senior counsel
pleaded, that as the Act 1963, enacted after the Kerala Agrarian
Relations Act 1961, is one for implementing land reforms in the
State, no interpretation with regard to the applicability thereof
ought to be assigned that would ensue in fragmentation of
plantations existing on the date of the enforceability thereof and
thus, the plantations standing on the suit land, did come within the
exemption contemplated under Section 3 (1) (viii). No exposition of
Section 3 of Act 1963, incompatible with the objects and reasons
thereof being permissible in law, the finding of the non-applicability
thereof to the suit land is patently erroneous, he urged. The learned
senior counsel, to endorse this contention, amongst others, placed
reliance also on a subsequent decision of the Full Bench of the
Kerala High Court in Jacob Philip vs State Bank of Travancore,
1972 KLT 914. Contending that the Act 1963 is prospective inPage 9
9
nature, Mr. Nambiar emphasised that the text of Section 3 (1) (viii)
thereof, clearly expressed the legislative intent of including
tenancies in respect of plantation exceeding 30 acres existing on the
date of enforcement thereof. In addition, the learned senior counsel
asserted, that with the expiry of the initial period of lease in the
year 1954, there was no formal renewal thereof and in terms of
Section 116 of the Transfer of Property Act 1882, the respondent
continued in possession of the land by holding over, signifying at
the best a lease, on year to year basis and in that view of the
matter, in the face of admitted plantation on the suit land, the
respondent-company was drawn within the coils of Section 3 (1)
(viii) of the Act 1963 and thus was disentitled to claim fixity of
tenure. In the alternative, Mr. Nambiar insisted that the
respondent-company is not a tenant in respect of the land after
1954 and thus in any case, is not entitled to the protection of fixity
of tenure under Section 13 (1) of the Act 1963. The learned senior
counsel placed on reliance as well on the decision of this Court in
Malankara Rubber and Produce Co. & Ors vs The State of Kerala &
Ors. (1972) 2 SCC 492.Page 10
10
9. A contrario sensu, Mr. Singhvi, the learned senior counsel for
the respondent-company, maintained that as neither Section 3 (1)
(vii) nor the Section 3 (1) (viii) is attracted in the present factual
setting, the concurrent findings to this effect are assuredly
unassailable and thus the instant challenge deserves to be
dismissed in limine. The learned senior counsel insistently urged
that as the pleaded case of the appellant in the plaint was limited to
the existence of private forest at the time of lease and that there
was no whisper whatsoever of any plantation thereon, the plea
based on Section 3 (1) (viii) of Act 1963 ought not have been
entertained by High Court and by no means should be taken
cognizance of by this Court. Mr. Singhvi contended that in the face
of the concession on behalf of the appellant that neither at the
initiation of the lease nor at the enforcement of Act 1963 there did
exist a reserve forest or the land, Section 3 (1) (vii) was decisively
inapplicable. The plea founded of Section 3 (1) (viii) relatable to
plantation, in absence of any pleading to the effect ought to have
been summarily rejected, he asserted. This is more so as this plea
was not raised either before the Trial Court or the Land Tribunal, or
the First Appellate Court. The decision of the Kerala High Court inPage 11
11
Jerome Fernandes (supra) being a determination clearly answering
the issue vis-a-vis Section 3 (1) (viii) of the Act 1963 and as the
ruling of this Court in Karimbil Kunhikoman (supra) pertains to a
distinctively different sphere of scrutiny, the contention that the
former is per incuriam the latter is wholly misplaced, he maintained.
According to Mr. Singhvi, the decision in Karimbil Kunhikoman
(supra) dwelt upon the aspect of discrimination stemming from
classification of plantations under the Kerala Agrarian Relations Act
1961 and is wholly unrelated to the challenge in Jerome Fernandes
(supra). The learned senior counsel urged as well, that the decision
of this court in Malankara Rubber and Produce Co. and Ors supra
being on a different issue does not render the adjudication in
Jerome Fernandes (supra) per incuriam. Mr. Singhvi pleaded that
having regard to the doctrine of stare decisis, the verdict in Jerome
Fernandes (supra) having held the field, over the years, the same
was rightly applied by the courts below. He urged that not only the
materials on record, do unequivocally demonstrate that neither the
land was a private forest nor did contain any plantation on the date
of the lease and thus the same is beyond the scope of Section 3 (vii)
and 3 (viii) of Act 1963 as has been consistently held by the TrialPage 12
12
Court and the higher forums, and thus this Court in the exercise of
its jurisdiction under Article 136 of Constitution of India would not,
even otherwise, lightly dislodge the same. Mr. Singhvi maintained,
that the factum of existence of private forest and of plantation for
the applicability of Section 3 (1) (vii) and 3 (1) (viii) of the Act 1963
would be assuredly relevant as on the date of the lease and not on
one of the enforcement of the enactment and judged by that
benchmark, the suit land is beyond the said exemption clauses,
entitling the respondent-company to the right of fixity of tenure
under the legislation.
10. In responding to the plea raised on behalf of the appellant in
reply that in any view of the matter, the provisions of the Act 1963
pertaining to ceiling on the area of land that can be held by the
respondent-company would apply, Mr. Singhvi maintained that the
same at the first place having been raised for the first time in this
Court, it ought to be readily dismissed. Further, as there is a
plantation on the suit land on the date of enforcement of the Act, it
is exempted from ceiling as per the Section 81 (1) (e) thereof. In any
case, it being an issue between State Government and thePage 13
13
respondent-company, the appellant has no locus standi to even
refer thereto, the learned senior counsel urged. Mr. Singhvi did
argue as well, that in the face of Section 72 of the enactment, there
was no equity in favour of the appellant, he having been reduced to
a non-entity by the statutory investiture of the landlord’s right in
the Government. The following decisions amongst others too were
referred to.
N. V. Srinivasa Murthy (2005) 10 SCC 566, K. V. Pathumma vs
Taluk Land Board and Ors (1997) 4 SCC 114, State of Kerala vs K
Sarojini Amma and Ors (2003) 8 SCC 526.
11. We have extended our thoughtful consideration to the
recorded materials and the competing arguments. Whereas the
appellant seeks the ouster of the respondent-company from the
land involved contending that it is not entitled to the protection of
fixity of tenure under the Act 1963, the latter pleads to the contrary
by taking refuge of the enactment, asserting that the exemption
clauses contained in Section 3 (1) (viii) and 3 (1) (viii) are
inapplicable to it. A correct exposition of Section 3 (1) (vii) and 3 (1)
(viii) of Act 1963 would, as a corollary, be of definitive significance.Page 14
14
Necessarily thus, the instant adjudicative exercise, ought to be
preceded by an adequate reference to the relevant legal provisions.
12. As the flow of events attest, the enactment earliest in point of
time qua the present lis, is the Malabar Tenancy Act 1929. As the
preamble of this statute would reveal, it was one to define, declare,
alter and amend, the law relating to landlord and tenant in the
Gudalur Taluk of the Nilgiris District. Section 2 thereof, which
exempted lands from its application being of relevance is quoted
hereunder.
“ 2. Exception:
Nothing in this Act shall apply to-
(1)Lands transferred by a landlord for filling timber or for planting
tea, coffee, rubber, cinchona or any other special crop
prescribed by a rule made by the State Government or the
erection of any building for the purpose of or, ancillary to the
cultivation of such crop, or the preparation of the same for the
market or land let only for fugitive cultivation:
Provided that no rule under this clause shall affect any land in
respect of which any tenant has a right of fixity of tenure under
this Act, so long as such right subsists.
(2)any transaction relating only to the usufruct of trees.
(3)any building owned by a landlord including a house, shop or
warehouse, and the site thereof, together with the garden orPage 15
15
land appurtenant thereto but not including a hut belonging to a
landlord, in any ulkudi.
Apart from defining inter alia the expressions “landlord” and
“tenant”, the legislation did confer right of fixity of tenure on
certain classes of tenants as set out under Section 21.
13. A plain reading of Section 2 would authenticate exclusion
of the applicability of the Act 1929 to lands transferred by the
landlord for felling timber or for planting tea, coffee, rubber,
cinchona or any other special crop prescribed by a rule made by
the State Government or the erection of a building for the
purpose of or ancillary to the cultivation of such crop, or the
preparation of the same for the market or land let only for
fugitive cultivation. The proviso of Section 2 (1) clarifies that no
rule thereunder would affect any land, in respect of which any
tenant did have right of fixity of tenure so long as such right did
subsist. Sub-Sections (2) and (3) being not of relevance are not
being adverted to.
14. The legislative backdrop of the Act 1963 portrays, that it
was amongst others preceded by the Kerala Agrarian Relations
Act 1960 (hereinafter referred to as Act 1960) which sought toPage 16
16
introduce comprehensive land reforms in the State of Kerala and
did receive the assent of the President on 21.1.1961. The
statement of objects and reasons of the enactment i.e. Act 1963
disclose that this Court had declared unconstitutional the Act
1960 in its application to ryotwari lands of Hosdurg and
Kasargod Taluks, whereafter eventually the Act 1963 was
enacted to provide an uniform legislation in the State, by keeping
in view the broad objectives of land reforms as laid down by the
Planning Commission and the basic objectives of the Act 1960.
As the scheme of Act 1963 would dominantly demonstrate, the
statutory endeavour has been to strike a fair and equitable
balance of various interests to be impacted thereby so as to
facilitate smooth implementation thereof, without casting undue
financial burden on the State. Conferment of fixity of tenure on
the tenants as well as the limited right of resumption to the
landlords are also the noticeable features of the enactment with
the emphasis that the right of resumption would not be available
against tenants, who were entitled to fixity of tenure immediately
prior to 21.1.1961 under the law then in force, unless such
tenants had in their possession land in excess of the ceiling area.Page 17
17
The statement of objects and reasons do refer to as well, the
provisions pertaining to determination of fair rent at uniform
rates and purchase of the rights of the landowners and
intermediaries of a holding by the cultivating tenant. The Act
1963 as contemplated, did provide for imposition of a ceiling on
holdings and constitution of Land Tribunal and Land Board for
the administration of the provisions, with the remedy of
appeal/revision from the decisions of this fora. The legislation
received the assent of the President on 31.12.1963 and some of
the provisions thereof which concern the present pursuit were
enforced with effect from 1.4.1964.
Sections 2 (44) and 2(47) which define “plantation” and “private
forest” are extracted hereunder:
“ “Plantation” means any land used by a person principally for
the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon
(hereinafter in this clause referred to as ‘plantation crops’) and
includes –
(a)land used by the said person for any purpose ancillary to the
cultivation of plantation crops or for the preparation of the
same for the market;
(b)land contiguous to, or in the vicinity of, or within the
boundaries of, the area cultivated with plantation crops, not
exceeding twenty per cent of the area so cultivated andPage 18
18
reserved by the said person and fit for the expansion of such
cultivation;
(c) agricultural lands interspersed within the boundaries of the
area cultivated by the said person with plantation crops, not
exceeding such extent as may be determined by the Land
Board [or the Taluk Land Board, as the case may be] as
necessary for the protection and efficient management of
such cultivation.
Explanation- Lands used for the construction of office
buildings, godowns, factories, quarters for workmen,
hospitals, schools and play grounds shall be deemed to be
lands used for the purposes of sub-clauses (a);
“private forest” means a forest which is not owned by the
Government, but does not include-
(i) areas which are waste and are not enclaves within
wooded areas;
(ii) areas which are gardens or nilams;
(iii) areas which are planted with tea, coffee, cocoa,
rubber, cardamom or cinnamon; and
(iv) other areas which are cultivated with pepper,
arecanut, coconut, cashew or other fruit-bearing trees
or are cultivated with any other agricultural crop;”
15. Chapter II of the enactment deals with provisions regarding
tenancies. Section 3 exempts the transactions, as referred to
therein subject to the stipulations enjoined, from the application
thereof. Section 3 (1) (vii) and 3 (1) (viii) being the focal point of
scrutiny demand extraction as well;
3 (vii) leases of private forests:
[Provided that nothing in clauses (i) to (vii) shall apply in
the cases of persons who were entitled to fixity of
tenure immediately before the 21st January, 1961,Page 19
19
under any law then in force or persons claiming under
such persons; or]
3(viii) tenancies in respect of plantations exceeding thirty
acres in extent;
Provided that the provisions of this Chapter, other than
Sections 53 to shall apply to tenancies in respect of
agricultural lands which are treated as plantations
under sub-clause © of clause (44) of Section 2;
15.1 Section 13 of the enactment mandates that notwithstanding
anything contrary to the law, custom, usage or contract or any
decree or order of Court, every tenant shall have fixity of tenure in
respect of his holding and no land from the holding shall be
resumed except as provided in Sections 14 to 22. Section 72
proclaims that on a date to be notified by the Government in the
official gazette, all right, title and interest of the landowners and
intermediaries in respect of holdings held by cultivating tenants
(including holders of Kudiyiruppus and holders of Karaimas)
entitled to fixity of tenure under Section 13 and in respect of which
certificates of purchase under sub-Section (2) Section 59 have not
been issued, shall, subject to the provisions of that Section, be
vested in the Government free from all encumbrances created by
the landowners and intermediaries and subsisting thereon on thePage 20
20
said date. Whereas Section 72 B confers cultivating tenants’ right
to assignments, Section 81 as well do cull out exemptions from the
applicability of Chapter III captioned “Restriction on ownership and
possession of land in excess of ceiling area and disposal of excess
lands.”
16. Bar of jurisdiction of Civil Courts to settle, decide or deal with
any question or to determine any matter which is required by or
under the enactment to be decided, dealt with or determined by the
Land Tribunal or Board Authority or the Land Board or Taluk Land
Board or the Government or an Officer of the Government as
contained under Section 125 and the repeal amongst others of the
Malabar Tenancy Act 1929 and Kerala Agrarian Relations Act 1960
vide Section 132 deserve a passing reference to complete the fringe
survey of the legislative scheme of Act 1963.
17. The lease deed Exh. A 1, the fundamental instrument having a
decisive bearing on the course of the present determination next
commands attention. It was executed on 21.6.1918 between the
Tarwad of the plaintiffs and Mr. Campbell Hunt, featuring an area
of land measuring 963-1/2 acres of which 925 acres was fit forPage 21
21
cultivation and not subject to any Government revenue. Thereby,
the lessor accorded a lease of the said 963-1/2 acres of land to the
lessee i.e. Mr. Campbell Hunt for a period of 36 years on and from
01.4.1918 on payment of premium of Rs. 693.12 anna calculated at
the rate of 12 annas per acre of the cultivable portion, that is 925
acres. The lease deed evidenced, that pursuant to the payment of
premium of Rs. 693.12 annas, the lessor, his heirs, successors,
legal representatives and assigns did lease unto the lessee, his
heirs, successors, legal representatives and assigns, the property
for a period of 36 years. The land involved was delineated in the
appended plan along with 25 hills, water channels, poyils lands etc.
totaling 963– ½ acres of which 925 acres were alone fit for
cultivation for the purpose of plantation and cultivation with a right
to cultivate coffee, tea, pepper, cinchona, rubber and any other
produce which the lessee would think fit and proper to cultivate,
with full right of access to the premises, with all ways, watercourse,
privileges, easements, advantages and other appurtenances
therewith and to cut, till and remove all forests, jungles and trees
for the purpose of planting and cultivating without any let or
interruption from the lessor.Page 22
22
18. The lease deed, reading between the lines, would demonstrate
irrefutably, that at the time of execution thereof, neither a private
forest nor a plantation as defined in Section 2 (44)/2 (47) of the Act
1963 did exist on the demised land. The lease which was for a
period of 36 years w.e.f. 01.4.1918, encompassed land admeasuring
963-1/2 acres which included hills, water channels, poyils lands etc
so much so that only 925 acres were comprehended to be fit for
cultivation and the lessee was left at liberty to raise coffee, tea,
pepper, cinchona, rubber or any other produce at the latter’s
discretion. It is apparent as well on the face of the lease deed, that
there were forests, jungles and trees on the land which the lessee
was authorized to clear for the purpose of plantation and
cultivation, to be decided by him. There was thus no restriction or
regulation on the nature of cultivation/plantation to be resorted to
by the lessee on the cultivable portion of the land leased out. To
reiterate, on the date of creation of the lease there was neither any
plantation nor a private forest on the leasehold land within the
meaning of Section 2 (44) and 2 (47) of Act 1963 respectively.Page 23
23
19. Significantly, the above notwithstanding, in the plaint, the
plaintiffs while acknowledging the rubber plantation on the suit
land raised by the respondent-company, the assignee/transferee, in
possession in place of the original lessee, did assert that from prior
to the initiation of the lease in the year 1918, there was a private
forest on the suit land. They contended, to reiterate, that as the
lease period had expired after 36 years, the company had no right
to retain the possession of the suit land and claim fixity of tenure.
Noticeably however, the plaintiffs complained of non-payment of
lease rent at the rate of 693.75 paisa per annum by the
respondent-company from the year 1979 for which a decree for
arrear rent was also prayed for. Axiomatically thus, the plaintiffs
acknowledged and approved the possession of the leasehold land by
the respondent-company even after the expiry of the period of lease
in 1954 and did receive the annual rent at the same rate, even on
their admission up to the year 1978. In course of the arguments
before this Court, however, the learned senior counsel for the
appellant has not pursued the plea based on private forest and has
confined the assailment qua “plantation” as per clause 3 (1) (viii) of
Act 1963. The parties are also not at issue that on the date of the
lease, no plantation as defined in Section 2 (44) did exist on the
demised land. The plaint, to reiterate does not refer to such
plantation on the date of the lease, as well. In that view of the
matter, the appellant’s plea based on Section 3 (1) (viii) lacks
foundation in the plaint and in the strict sense of the term as the
debate has its genesis in a suit, ought not to have been entertained
by the High Court. This is more so, as the records substantiate that
the contention based on “plantation” was raised for the first time
before that forum.
20. The remonstrance based on cessation of the lease on the
expiry of 36 years also does not commend for acceptance in the face
of unreserved acceptance of lease rent at the earlier rate of Rs.
693.75 paisa admittedly till the year 1978. The assertion that in
any view of the matter, as the respondent-company in terms of
Section 116 of the Transfer of Property Act 1882, ought to be
construed to be the lessee, holding over the demised land on
payment of rent and that the lease stood renewed from year to year
and that accordingly on the date of the institution of the suit there
was a subsisting tenancy in respect of plantation exceeding 30
acres cannot be sustained as well. Though admittedly, at the
institution of the suit, the rubber plantation of the
respondent-company did exist on the land, in the teeth of Section
116 of the Transfer of Property Act 1882, which comprehends
renewal of the expired lease, year after year or month after month it
is essentially qua the purpose for which the property had been
originally leased which in the instant case is traceable to the year
1918. As the lease deed dated 21.6.1918 proclaims in no uncertain
terms that the transaction evidenced thereby was by no means a
tenancy in respect of plantation, the same with efflux of time, in our
estimate cannot transfigure into the same merely because a
plantation has been raised on the leasehold land in between by the
lessee who had been left at its discretion to grow the same. In
absence of a conscious intervention of the parties to the lease,
either to convert it into one for tenancy in respect of such
plantation ad idem or to extend it thereto, an automatic
transformation of the lease not for plantation cannot stand
converted into one for plantation. As a transaction of this kind
involving immovable property is essentially governed by the terms
and conditions concurred upon by the parties thereto, no unilateral
alteration or modification thereof, unless agreed to by both, in
categorical terms, ought to be permitted to be pleaded or enforced
by anyone of them to the disadvantage of the other. Neither the
lease deed contains any stipulation sanctioning such unilateral
alteration of the stipulations contained therein nor do the materials
on record testify such consensus based modification of the lease
covenants. A plain perusal of the Section 116 of the Transfer of
Property Act 1882 also does endorse this deduction.
21. This conclusion of ours is founded amongst others on the
enunciations of the Federal Court in Kai Khushroo Bezonjee
Capadia Vs Bai Jerbai Hirjibhoy Warden & Anr 1949-50 FCR 262
and referred to and relied upon by this Court in Bhawanji
Lakhamshi & Ors Vs Himatlal Jamnadas Dani and Ors (1972) 1
SCC 388 and State of UP Vs Jahoor Ahmad and Anr AIR 1973 SC
2520, dwelling on the question of the nature of the tenancy created
under Section 116 of the Transfer of Property Act 1882.
21.1 Further, this cavil having been expressed before this Court for
the first time, we are not inclined to sustain the same, on that
count as well. Page 27
27
22. In the factual conspectus unfolded hereinabove, the issue of
the applicability of Act 1963 to the lease of private forests and
tenancies in respect of plantations exceeding 30 acres not in
existence as on 21.6.1918, but standing/present on the date of its
enforcement deserves to be addressed. This indeed is of decisive
bearing and would assuredly involve a dialectical interpretation of
Section 3 (1) (vii) and 3 (1) (viii) of Act 1963 to discern the true
purport thereof as legislatively intended. In view of the
abandonment of the plea based on private forests, in course of the
arguments, as noted hereinabove, it is inessential thus too dilate on
the scope of Section 3 (vii).
22.1 As alluded hereinbefore, tenancies in respect of plantations
exceeding 30 acres in extent have been exempted from the purview
of the Act vide Section 3 (1) (viii). That on the date of the execution
of the lease deed i.e. 21.6.1918 there was no plantation on the
leasehold land, is an admitted fact. Such plantation as defined in
Section 2 (44) of the Act 1963 however did exist on the date on
which the enactment was brought into force i.e. 1.4.1964. To clinch
the issue in favour of the appellant, reliance has been placed on thePage 28
28
ruling of the Constitution Bench of this Court, in Karimbil
Kunhikoman (supra) purportedly buttressed by the Malankara
Rubber and Produce Company and Ors etc. supra, Per contra, the
verdict of a Full Bench of the Kerala High Court in Jerome
Fernandes supra has been pressed into service on behalf of the
respondent-company.
23. In Karimbil Kunhikoman (supra), a Constitution Bench of this
Court was seized with the impugnment of the vires of the Kerala
Agrarian Relations Act 1960 (for short Act 1960) on the following
counts to be violative of Articles 14, 19 and 31 of the Constitution of
India.
1. The Bill which became the Act had lapsed before it was
assented to by the President and therefore the assent of
the President to a lapsed bill was of no avail to turn it
into law.
2. The Act is a piece of colourable legislation as it has
made certain deductions from the compensation
payable to landholders under Chap. II and to others
who held excess land under Chap. III and this amounts
to acquisition of money by the State which it is not
competent to do under the power conferred on it in Lists
II and III of the Seventh Schedule to the Constitution.
3. The properties of the petitioners who are ryotwari
pattadars are not estates within the meaning of Art. 31
A of the Constitution and therefore the Act is not
protected under that Article so far as it applies to lands
of ryotwari pattadars like the petitioners. Page 29
29
4. The Act exempts plantation of tea, coffee, rubber and
cardamom from certain provisions thereof, but no such
exemption has been granted to plantations of areca and
pepper, and this is clearly discriminatory and is
violative of Art. 14.
5. The manner in which ceiling is fixed under the Act
results in discrimination and is therefore violative of Art
14.
6. The compensation which is payable under Chapters II
and III of the Act has been reduced by progressive cuts
as the amount of compensation increases and this
amounts to discrimination between persons similarly
situate and is therefore violative of Art. 14.
24. While repelling the impeachment of the statute qua the
grounds enumerated in serial No. 1 and 2 as above, it was ruled
that the lands held by the ryotwari pattadars as referred to therein
and which had come to the State of Kerala by virtue of the States
Re-organisation Act 1956 from the State of Madras were not estates
within the meaning of Article 31 A (2) (a) of the Constitution and
therefore the legislation under attack was not protected from the
assailment under Articles 14, 19 and 31. Vis-a-vis the discord that
the Act 1960 did effect a discrimination between areca and pepper
plantations on one hand and certain other plantations on the other
by not including these (areca and pepper plantations) in the
definition of “plantation” provided by Section 2 (39) thereof, byPage 30
30
totally disregarding the existing large number of areca and pepper
plantations as comparable to tea and coffee and rubber plantations,
this court sustained the same and being of the view that as the
provisions relating to plantation contained in the assailed
legislation were inseverable, adjudged the legislation as a whole to
be unconstitutional. In concluding thus, this Court did explore the
reasons impelling the legislature to treat these two categories of
plantations as class different and observed that the objective of land
reforms, including imposition of ceiling on land holdings as
manifested by the statute under scrutiny, was to remove
impediments arising from the agrarian structure inherited from the
past, in order to increase agricultural production and create
conditions, for evolving as speedily as possible an agrarian economy
with a high level of efficiency and productivity as was underlined in
the Second Five Year Plan. That thereunder, it was recognized that
some exemptions would have to be granted from the ceiling, to
ensure that the productions may not suffer, was taken note of as
well. While referring to the Third Five Year Plan, dealing with land
reforms and ceiling on agricultural holdings, this Court on an audit
of the materials available, concluded that there was no appreciablePage 31
31
difference between the economics of tea, coffee and rubber
plantations and areca and pepper plantations so as to justify the
differential treatment. The report of the concerned committee, that
if areca gardens were brought under the ceiling, it would hamper
production and would be against national economy and that it had
recommended to the Planning Commission, the Central
Government and the State Government that at par with tea, coffee
and rubber plantations, orchards, areca nut gardens should also be
similarly exempted from ceiling and that the result of the
application of the ceiling and other provisions of Act 1960 would
occasion breakup of the plantations with a likely result in fall in
production, was also noted. While concluding that the same
considerations as extended to tea, coffee and rubber plantations,
were available as well to areca and pepper plantations, the omission
of the respondent State, to set out adequate justification for
exclusion of pepper and areca nut from the benefit of exemption
granted to tea, coffee and rubber plantation was recorded. Adverting
to the object and purpose of the Act 1960, and the basis on which
exemption was granted thereunder to the plantations as defined
thereby, it was held that there was no reason for making anyPage 32
32
distinction between tea, coffee and rubber plantations on one hand
and areca and pepper plantations on the other, in the facts of the
case. The contentions listed in serial No. 5 and 6 though, beyond
the framework of the instant inquisition, suffice it to state, were
answered in the affirmative in favour of the appellant.
25. This pronouncement, though had taken note of the
recommendations of the Planning Commission against
disintegration of plantations as a measure of land reforms in the
State and to promote national economy, it was in the context of
evaluation of the plea of discrimination between the existing
plantations vying for equal treatment for exemption. The issue
which seeks adjudication in the present appeal did not fall for
scrutiny in this decision and therefore, we are of the comprehension
that it does not advance the case of the appellant.
26. The assertion on behalf of the appellant that the decision in
Karimbil Kunhikoman (supra) does essentially enjoin, that under all
circumstances, tenancies in respect of plantation as contemplated
in Section 3 (1) (viii), as existing on the date of the commencement
of the Act, would stand exempted from the purview thereof,Page 33
33
irrespective of whether or not such the plantation did exist on the
date of the lease, cannot be countenanced. Not only this
pronouncement is not an authority on this proposition, having
regard to the scope of the analysis undertaken therein as well as
issues addressed, it would be wholly inferential to draw this
conclusion only on the basis of the recommendations of the
Planning Commission against disintegration of plantations as a
measure of economic policy. Such a presumptive approach
according to us would not a safe and expedient guide for the
interpretation required.
27. The constitutionality of the Kerala Land Reforms Act 1963
(also referred to as Act 1963) as amended (inter alia by Act 1964)
was questioned in Malankara Rubber and Produce Co. & Ors
(supra) on the grounds that (i) Chapter III thereof was not aimed
exclusively at agrarian reform and was thus not saved by Article 31
A. (ii), it was violative of Article 14 due to deletion of clause (a) and
(g) of Section 81 (1) caused by the amendment of Act 1969 thereby
withdrawing the exemption extended to cashew estates, pepper
gardens and areca gardens of the areas as mentioned therein.(iii)Page 34
34
lands which were not then under rubber plantation but had been
set apart for expansion of existing plantations or were likely to be
taken up therefor in future could not be acquired and diverted to
other purposes as the rubber industry had been declared to be one
of national importance vide Rubber Act of 1947.
28. Following an exhaustive reference to the decision in Karimbil
Kunhikoman (supra), it was held that the petitioners had failed to
demonstrate that their lands were not estates and thus were
beyond the purview of the Kerala Land Reforms Act 1964 as
amended in 1969. It was declared as well, that the provisions of the
1964 Act were immune from challenge under Article 31 A by reason
of its inclusion in the Ninth Schedule of the Constitution. It was
held that the reduction of ceiling limit by the amending Act 1969
did not attract the operation of the second proviso to Article 31 A(1).
It was propounded that the provisions of the Act 1963 withdrawing
protection to pepper and areca plantations could not be challenged
under Article 14, if the lands were estates within the meaning of
Article 31 A (2) (a). That forest and jungles would be exempted from
the operation of the Act was underlined as well. It would be patentPage 35
35
from the contextual text of this decision that the questions posed
and the contours of the judicial survey were distinctively different
from those in hand and thus is of no avail to the appellant.
29. A Full Bench of the Kerala High Court in Jerome Fernandes
(supra) however encountered the same issue qua Section 3 (1) (viii)
of Act 1963 in an identical fact situation. The appellant therein,
had filed a suit for recovery of possession of the scheduled property
with arrears of rent and mesne profits. The suit land had been
leased out to the predecessor in interest of the respondent-company
therein, which eventually under an assignment stepped into the
position of the original lessee. As on the expiry of the lease, the
respondent-company did not surrender possession of the land, the
suit was instituted. The respondent-company pleaded fixity of
tenure in respect of the holding under the Act 1963. The lower
forums concurrently held that the respondent-company was
entitled to the benefit of fixity of tenure under Section 13 of Act
1963 as the transaction of lease did not attract the exemptions
under Chapter II of the statute. The query that fell for scrutiny, was
whether the transaction of lease did entitle thePage 36
36
respondent-company to the fixity of tenure. That it was a tenant in
terms of Section 2 (57) of the Act 1963 was admittedly beyond
doubt. Referring to Section 3 (1) of the statute, which listed the
categories of transactions exempted from the purview thereof, the
High Court while noticing that the leasehold property had been
described in the lease deed as consisting of garden land, and wet
lands, negated the appellant’s contention based on clause (iii). Qua
clause (viii), the High Court examined the definition of the word
“plantation” provided in Section 2 (44) and entered a finding, that
undoubtedly on the date of the execution of the lease deed, the land
covered thereby had not been put to any use as expressly
mentioned in the definition. Responding to the plea of the
appellant, that the determinative factor for the applicability of
clause (viii) was the character of the land or the use thereof at the
commencement of the Act, the High Court on a comparison of the
text amongst others of clause (v) and (ix) of Section 3 (1) and
Section 2 of the Malabar Tenancy Act 1929 dealing with exemption
and Section 3 (1) (viii), of the Kerala Agrarian Relations Act 1960
enunciated that the legislature did consciously, as a matter of
policy, in relation to the grant of exemption for plantations, restrictPage 37
37
the scope thereof. The High Court in categorical terms referred to
the language used in Section 3 (1) (viii) and the definition of the
expression “plantation” in both the statutes, and was of the view
that the object behind the constricted sweep of “plantation”, was to
confine the scope of exemption from the applicability of the Act. The
High Court entertained the notion, that the legislature had
construed it to be unfair and improper to deny the benefit of the
fixity of tenure to a lessee who might have taken the lease of
extensive parambos or waste lands and in course of time by hard
toil had developed those into plantations. That under the provisions
of the Malabar Tenancy Act 1929, such a tenant was entitled to
fixity of tenure, unless the lease had been one granted specifically
for the purpose of raising plantation as mentioned therein was also
emphasised. The High Court thus rejected the appellant’s plea
based on Section 3 (1) (viii) and held that in view of the clues
furnished by the statutory history preceding the legislation
involved, and also the express language used in Section 3 (1), the
lease transaction was beyond the ambit thereof. It held as well that
if the interpretation of Section 3 (1) (viii) as sought to be projected
by the appellant was accepted, it would divest the tenants of theirPage 38
38
pre-existing right of fixity under the Malabar Tenancy Act 1929 was
underlined as well.
30. Another Full Bench of the Kerala High Court, comprising
amongst others of Hon’ble Mr. Justice T. C. Raghavan C.J., as the
common member, in Jacob Philip (supra) also had the occasion to
examine the aspect of the fixity of tenure under Section 13 of the
Act 1963. A lease of land, covered by Section 3 (1) (i) was involved
in a suit instituted against the appellant therein. It was contended
on behalf of the appellant, that this exemption provision ought to be
applied qua the point of time, when the lease was granted and not
at the commencement of the Act or of any subsequent date, as on
the date of the execution of the lease neither the Government nor
any corporation owned or controlled by the Government was in the
picture. The attention of the High Court was drawn amongst others
to the decision in Jerome Fernandes (supra). On an analysis of the
contents of the Section 3 (1) (i), the High Court negatived this plea.
Drawing sustenance from the text of the Explanations appended to
the clause, it returned a finding that the requirements under
Section 3 (1) (i) would be satisfied, even if the leased land happenedPage 39
39
to belong to or become vested in the Government or a corporation
under or controlled by the Government etc, subsequent to the grant
of the lease.
31. The rendering in Jacob Philip (supra) turns on its own facts
and by no means, in our opinion neuters the determination made in
Jerome Fernandes (supra). Jacob Philip (supra) proceeded on an
interpretation of Section 3 (1) (i) of Act 1963 which is distinctively
different in language and content from Section 3 (1) (viii) and no
analogy, therefore, can be drawn to make it applicable to the case in
hand. In our considered opinion, the decision of the Full Bench, in
Jerome Fernandes (supra), having regard to the scheme of Act 1963
with particular reference to Chapter II and Section 3 (1) (viii)
thereof, correctly states the law on the issue. We endorse the view
taken in Jerome Fernandes (supra) on the applicability or otherwise
of Section 3 (1) (viii) to the leasehold land of the present appeal.
32. Noticeably, the respondent-company in its written statement
had pleaded that the lease created by the deed dated 26.6.1918 was
an agricultural tenancy entitling the lessee to fixity of tenure under
the Malabar Tenancy Act 1929 and that the same benefit stoodPage 40
40
extended under the Act 1963. The learned Trial Court while
dismissing the suit, recorded as well the finding of the Land
Tribunal, following an inquiry, that the respondent-company was
entitled to fixity of tenure in respect of the leasehold land both
under the Malabar Tenancy Act 1929 (as amended) and the Act
1963. This finding was upheld upon by the First Appellate Court
and not dislodged by the High Court. We notice as well that Section
2 of the Malabar Tenancy Act 1929 has no application to the facts
and circumstances of the case, so as to warrant exemption from the
applicability thereof.
33. As determined hereinbefore, the respondent-company,
continued as a lessee by holding over after 1954 and the lease rent
at the agreed rate fixed at the first instance was paid till 1978 as
admitted by the appellant. The Act 1963 had come into force prior
thereto. As neither Section 3 (1) (vii) nor 3 (1) (viii) is applicable to
the plantation involved, the respondent-company is entitled to fixity
of tenure under Section 13 thereof. To reiterate, Section 116 of the
Transfer of Property Act ,1882 even if applicable, the lease originally
entered into would not get transformed with time into one of
tenancy in respect of plantation as defined in Section 2 (44) of Act
1963, in absence of any overt act of the parties, intending the same
on agreed upon terms.
34. The consequences of the applicability of the Act, vis-a-vis the
plantation need not detain us, as the same would be regulated by
the provisions of the statute and as rightly asserted on behalf of the
respondent-company, the course to follow would witness the State
and the tenant as the parties thereto. With the enforcement of the
Act 1963, the appellant would be left with no role in that regard.
35. On a totality of the consideration of all aspects, factual and
legal as detailed hereinabove, we are of the unhesitant opinion that
no interference with the findings recorded by the forums below is
called for. The appeal lacks in merit and is thus dismissed.
36. No Costs.
……………………..J.
(M.Y. EQBAL)
……………………..J.
(AMITAVA ROY)
New Delhi
Dated: 02 July, 2015
Print Page
expiry of 36 years also does not commend for acceptance in the face
of unreserved acceptance of lease rent at the earlier rate of Rs.
693.75 paisa admittedly till the year 1978. The assertion that in
any view of the matter, as the respondent-company in terms of
Section 116 of the Transfer of Property Act 1882, ought to be
construed to be the lessee, holding over the demised land on
payment of rent and that the lease stood renewed from year to year
and that accordingly on the date of the institution of the suit there
was a subsisting tenancy in respect of plantation exceeding 30
acres cannot be sustained as well. Though admittedly, at the
institution of the suit, the rubber plantation of the
respondent-company did exist on the land, in the teeth of Section
116 of the Transfer of Property Act 1882, which comprehends
renewal of the expired lease, year after year or month after month it
is essentially qua the purpose for which the property had been
originally leased which in the instant case is traceable to the year
1918. As the lease deed dated 21.6.1918 proclaims in no uncertain
terms that the transaction evidenced thereby was by no means a
tenancy in respect of plantation, the same with efflux of time, in our
estimate cannot transfigure into the same merely because a
plantation has been raised on the leasehold land in between by the
lessee who had been left at its discretion to grow the same. In
absence of a conscious intervention of the parties to the lease,
either to convert it into one for tenancy in respect of such
plantation ad idem or to extend it thereto, an automatic
transformation of the lease not for plantation cannot stand
converted into one for plantation. As a transaction of this kind
involving immovable property is essentially governed by the terms
and conditions concurred upon by the parties thereto, no unilateral
alteration or modification thereof, unless agreed to by both, in
categorical terms, ought to be permitted to be pleaded or enforced
by anyone of them to the disadvantage of the other. Neither the
lease deed contains any stipulation sanctioning such unilateral
alteration of the stipulations contained therein nor do the materials
on record testify such consensus based modification of the lease
covenants. A plain perusal of the Section 116 of the Transfer of
Property Act 1882 also does endorse this deduction.
{REPORTABLE}
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5163/2012
N K RAJENDRA MOHAN ...….APPELLANT
Vs.
THIRVAMADI RUBBER CO. LTD & ORS …..RESPONDENTS
Dated: 02 July, 2015
Amitava Roy,J.
Citation;(2015) 9 SC326
The appellant, one of the plaintiffs in the suit instituted before
Munsif Court (II), Kozhikode along with others against the
respondent No. 1 herein, seeking eviction of the latter from the land
involved and damages for the use and occupation thereof, in his
relentless pursuit for redress is before this penultimate institutional
forum, having successively failed at all the intermediate tiers. The
procrastinated tussle spanning over three decades eventually seeks
a quietus at this end. Page 2
2
2. We have heard Mr. A. S. Nambiar, Senior Advocate for the
appellant and Mr. A. M. Singhvi, Senior Advocate for the respondent
No.1. Incidentally, the co-plaintiffs have been arrayed as other
respondents in the instant appeal.
3. The salient facts, which make up the edifice of the lingering
contentious dissent, however lie in a short compass. As adverted to
hereinabove, the appellant alongwith others did institute a suit,
being OS 569/1982 before Munsif Court (II), Kozhikode against the
Respondent No. 1 praying for its eviction from the suit land and
realization of arrear rent, damages etc, the pleaded case being that
the suit land had belonged to their Tarwad and was a private forest.
On 21.6.1918, an area of 963.75 acres was leased out to one Mr.
Campbell Hunt for a period of thirty six years vide Exh. A 1
whereunder, the lessee was liable to pay a sum of Rs. 693.75 per
annum towards annual rent. Eventually, through intervening
transactions, the respondent-company stood inducted to the suit
land with the same status. According to the plaintiffs, they were
the joint owners of the property and asserted that neither the
original lessee Mr. Campbell Hunt nor his successors did derivePage 3
3
fixity of tenure or right of ownership either under the lease deed or
the provisions of the Kerala Land Reforms Act 1964 (hereinafter
referred to as Act 1963), brought into force on and from 01.04.1964
or any other tenancy laws prior thereto. The plaintiffs averred, that
at the time of handing over the property to Mr. Campbell Hunt in
the year 1948, the same was a private forest under the ownership
and possession of their Tarwad. The lease which was for a period of
36 years with effect from 01.04.1918 lapsed with efflux of time and
the respondent-company had no right to retain the possession
thereof. The Plaintiffs admitted that it (respondent-company) had
raised a rubber estate on the suit land. It was alleged that the
respondent-company also did not pay the lease rent as fixed i.e. Rs.
693.75 per annum for the year 1979, 1980 and thereafter. That in
inspite of several requests, it did not vacate the land by removing its
buildings etc. therefrom for which a notice was addressed on
10.11.1980 to the respondent-company to vacate and deliver
possession of the suit land was stated. According to the plaintiffs,
in terms of the notice, the tenancy stood extinguished from
21.6.1981. However in response to the notice, the
respondent-company claimed in its reply, that it had acquired the
right of fixity of tenure on the suit land. In this factual premise, the
plaintiffs instituted the suit, for the above reliefs claiming inter alia
arrear lease rent at the rate of Rs. 693.75 per annum from
01.04.1979 to 20.06.1981 and damages at the same rate for the
period subsequent thereto for use and occupation thereof.
4. The respondent-company in its written statement, resisted the
suit. While admitting, the lease deed Exh. A 1, in favour of Mr.
Campbell Hunt in the year 1918, it elaborated that out of total land
leased, the cultivable area was 925 acres and that the lease was
granted with the right to cultivate coffee, tea, pepper, cinchona,
rubber etc. and any other produce as the lessee would consider
proper, by cleaning the area. The respondent-company claimed
fixity of tenure under the Malabar Tenancy Act 1929 (for short
hereinafter referred to as Act 1929) as well as the Act 1963, and
pleaded for the dismissal of the suit.
5. The learned Trial Court in the face of the
respondent-company’s claim of fixity of tenure, referred the issue to
the Land Tribunal, Kasargod which sustained this plea and
consequently the suit was dismissed. The appeal preferred by the
plaintiffs met the same fate. Being still aggrieved, they (appellants)
did take the challenge before the High Court of Kerala. By the
judgment impugned, the High Court has sustained the adjudication
of the Courts below.
6. As the decisions impugned would reveal, the High Court
negated the plaintiffs’ assertion that the suit land at the time of the
initiation of the lease in the year 1918 was a private forest and thus
stood excluded from the applicability of Act 1963 in terms of
Section 3 (1) (vii) thereof, as it was granted to Mr. Campbell Hunt as
per Exh. A 1 to cultivate rubber, cinchona, coffee and any such
crop as the lessee construed it to be proper. It was inter alia
observed that the lease deed clearly disclosed that the land was
Puramboke and not assessed to any revenue and that the lessee
was permitted to cut and remove trees, shrubs etc. to prepare the
same for the purpose of cultivating rubber, tea, coffee etc. The High
Court was also of the view that if the conveyed land was a forest,
there would have been some stipulation in the lease deed to the
effect. That the lease rent was fixed at the rate of the cultivable area
was also noted. The High Court did record as well, that the landPage 6
6
was assessed to Government revenue on the basis of cultivations
done which too belied the appellants’ claim of the same being a
private forest. Reference was also made to the relevant survey plan
(Exh. A 2), appended to the lease deed, to endorse the conclusion
against the existence of private forest on the land at the time of its
demise on lease. It ruled further, that even if the land was a private
forest at the time of the initial lease, cultivation of various other
crops thereon, after the execution of the lease deed took it out of the
ambit of Section 3 (1) (vii) of Act 1963.
7. Vis-a-vis the next contention, namely, that the suit land
contained a plantation on the date of enforcement of Act 1963 and
thus stood exempted from the ambit thereof, the High Court
entered a finding, that the statutory provision i.e. Section 3 (1) (viii),
applied to cases where a plantation did exist at the time of the grant
of lease and not on the date of commencement of the statute.
Relying on the decision of a Full Bench of the Kerala High Court in
Rt., Rev. Dr. Jerome Fernandes Vs B. B. Rubber Estate Ltd, 1972
KLT 613 dilating on the same issue, the High Court thus concluded
that the respondent-company was entitled to fixity of tenure. InPage 7
7
these premise, the aspect of its entitlement to the value of
improvements made by it on the land was left undecided. As a
corollary, the appeal was dismissed.
8. Mr. Nambiar, the learned Senior Counsel for the appellant has
assiduously argued, that having regard to the covenants of the lease
deed and the attendant facts and circumstances, the transaction
was well within the purview of Section 3 (1) (vii) and/or 3 (1) (viii) of
the Act 1963 and was thus exempted from the applicability thereof
and consequently the respondent-company was not entitled to any
fixity of tenure as per the statute. Referring to the objects and
reasons of the enactment, the learned senior counsel insisted that
the applicability of Section 3 (1) (vii) and 3 (1) (viii) thereof has to be
essentially tested on the touchstone of the date of the enforcement
of the legislation. As admittedly, there was a standing rubber
plantation on the suit land on that date i.e. 01.04.1964, the
respondent-company unmistakably had no sustainable right of
fixity of tenure and thus the deductions to the contrary as recorded
in the impugned decisions are patently non est in law. Mr. Nambiar
urged that this issue having been authoritatively settled by aPage 8
8
Constitution Bench of this Court in Karimbil Kunhikoman vs State
of Kerala (1962) Suppl. 1 SCR 829, the decision to the contrary as
recorded by the Full Bench of the Kerala High Court in Rt., Rev.
Jerome Fernandes (supra) is on the face of it per incuriam and
consequently the impugned verdict founded thereon is
unsustainable in law and on facts. The learned senior counsel
pleaded, that as the Act 1963, enacted after the Kerala Agrarian
Relations Act 1961, is one for implementing land reforms in the
State, no interpretation with regard to the applicability thereof
ought to be assigned that would ensue in fragmentation of
plantations existing on the date of the enforceability thereof and
thus, the plantations standing on the suit land, did come within the
exemption contemplated under Section 3 (1) (viii). No exposition of
Section 3 of Act 1963, incompatible with the objects and reasons
thereof being permissible in law, the finding of the non-applicability
thereof to the suit land is patently erroneous, he urged. The learned
senior counsel, to endorse this contention, amongst others, placed
reliance also on a subsequent decision of the Full Bench of the
Kerala High Court in Jacob Philip vs State Bank of Travancore,
1972 KLT 914. Contending that the Act 1963 is prospective inPage 9
9
nature, Mr. Nambiar emphasised that the text of Section 3 (1) (viii)
thereof, clearly expressed the legislative intent of including
tenancies in respect of plantation exceeding 30 acres existing on the
date of enforcement thereof. In addition, the learned senior counsel
asserted, that with the expiry of the initial period of lease in the
year 1954, there was no formal renewal thereof and in terms of
Section 116 of the Transfer of Property Act 1882, the respondent
continued in possession of the land by holding over, signifying at
the best a lease, on year to year basis and in that view of the
matter, in the face of admitted plantation on the suit land, the
respondent-company was drawn within the coils of Section 3 (1)
(viii) of the Act 1963 and thus was disentitled to claim fixity of
tenure. In the alternative, Mr. Nambiar insisted that the
respondent-company is not a tenant in respect of the land after
1954 and thus in any case, is not entitled to the protection of fixity
of tenure under Section 13 (1) of the Act 1963. The learned senior
counsel placed on reliance as well on the decision of this Court in
Malankara Rubber and Produce Co. & Ors vs The State of Kerala &
Ors. (1972) 2 SCC 492.Page 10
10
9. A contrario sensu, Mr. Singhvi, the learned senior counsel for
the respondent-company, maintained that as neither Section 3 (1)
(vii) nor the Section 3 (1) (viii) is attracted in the present factual
setting, the concurrent findings to this effect are assuredly
unassailable and thus the instant challenge deserves to be
dismissed in limine. The learned senior counsel insistently urged
that as the pleaded case of the appellant in the plaint was limited to
the existence of private forest at the time of lease and that there
was no whisper whatsoever of any plantation thereon, the plea
based on Section 3 (1) (viii) of Act 1963 ought not have been
entertained by High Court and by no means should be taken
cognizance of by this Court. Mr. Singhvi contended that in the face
of the concession on behalf of the appellant that neither at the
initiation of the lease nor at the enforcement of Act 1963 there did
exist a reserve forest or the land, Section 3 (1) (vii) was decisively
inapplicable. The plea founded of Section 3 (1) (viii) relatable to
plantation, in absence of any pleading to the effect ought to have
been summarily rejected, he asserted. This is more so as this plea
was not raised either before the Trial Court or the Land Tribunal, or
the First Appellate Court. The decision of the Kerala High Court inPage 11
11
Jerome Fernandes (supra) being a determination clearly answering
the issue vis-a-vis Section 3 (1) (viii) of the Act 1963 and as the
ruling of this Court in Karimbil Kunhikoman (supra) pertains to a
distinctively different sphere of scrutiny, the contention that the
former is per incuriam the latter is wholly misplaced, he maintained.
According to Mr. Singhvi, the decision in Karimbil Kunhikoman
(supra) dwelt upon the aspect of discrimination stemming from
classification of plantations under the Kerala Agrarian Relations Act
1961 and is wholly unrelated to the challenge in Jerome Fernandes
(supra). The learned senior counsel urged as well, that the decision
of this court in Malankara Rubber and Produce Co. and Ors supra
being on a different issue does not render the adjudication in
Jerome Fernandes (supra) per incuriam. Mr. Singhvi pleaded that
having regard to the doctrine of stare decisis, the verdict in Jerome
Fernandes (supra) having held the field, over the years, the same
was rightly applied by the courts below. He urged that not only the
materials on record, do unequivocally demonstrate that neither the
land was a private forest nor did contain any plantation on the date
of the lease and thus the same is beyond the scope of Section 3 (vii)
and 3 (viii) of Act 1963 as has been consistently held by the TrialPage 12
12
Court and the higher forums, and thus this Court in the exercise of
its jurisdiction under Article 136 of Constitution of India would not,
even otherwise, lightly dislodge the same. Mr. Singhvi maintained,
that the factum of existence of private forest and of plantation for
the applicability of Section 3 (1) (vii) and 3 (1) (viii) of the Act 1963
would be assuredly relevant as on the date of the lease and not on
one of the enforcement of the enactment and judged by that
benchmark, the suit land is beyond the said exemption clauses,
entitling the respondent-company to the right of fixity of tenure
under the legislation.
10. In responding to the plea raised on behalf of the appellant in
reply that in any view of the matter, the provisions of the Act 1963
pertaining to ceiling on the area of land that can be held by the
respondent-company would apply, Mr. Singhvi maintained that the
same at the first place having been raised for the first time in this
Court, it ought to be readily dismissed. Further, as there is a
plantation on the suit land on the date of enforcement of the Act, it
is exempted from ceiling as per the Section 81 (1) (e) thereof. In any
case, it being an issue between State Government and thePage 13
13
respondent-company, the appellant has no locus standi to even
refer thereto, the learned senior counsel urged. Mr. Singhvi did
argue as well, that in the face of Section 72 of the enactment, there
was no equity in favour of the appellant, he having been reduced to
a non-entity by the statutory investiture of the landlord’s right in
the Government. The following decisions amongst others too were
referred to.
N. V. Srinivasa Murthy (2005) 10 SCC 566, K. V. Pathumma vs
Taluk Land Board and Ors (1997) 4 SCC 114, State of Kerala vs K
Sarojini Amma and Ors (2003) 8 SCC 526.
11. We have extended our thoughtful consideration to the
recorded materials and the competing arguments. Whereas the
appellant seeks the ouster of the respondent-company from the
land involved contending that it is not entitled to the protection of
fixity of tenure under the Act 1963, the latter pleads to the contrary
by taking refuge of the enactment, asserting that the exemption
clauses contained in Section 3 (1) (viii) and 3 (1) (viii) are
inapplicable to it. A correct exposition of Section 3 (1) (vii) and 3 (1)
(viii) of Act 1963 would, as a corollary, be of definitive significance.Page 14
14
Necessarily thus, the instant adjudicative exercise, ought to be
preceded by an adequate reference to the relevant legal provisions.
12. As the flow of events attest, the enactment earliest in point of
time qua the present lis, is the Malabar Tenancy Act 1929. As the
preamble of this statute would reveal, it was one to define, declare,
alter and amend, the law relating to landlord and tenant in the
Gudalur Taluk of the Nilgiris District. Section 2 thereof, which
exempted lands from its application being of relevance is quoted
hereunder.
“ 2. Exception:
Nothing in this Act shall apply to-
(1)Lands transferred by a landlord for filling timber or for planting
tea, coffee, rubber, cinchona or any other special crop
prescribed by a rule made by the State Government or the
erection of any building for the purpose of or, ancillary to the
cultivation of such crop, or the preparation of the same for the
market or land let only for fugitive cultivation:
Provided that no rule under this clause shall affect any land in
respect of which any tenant has a right of fixity of tenure under
this Act, so long as such right subsists.
(2)any transaction relating only to the usufruct of trees.
(3)any building owned by a landlord including a house, shop or
warehouse, and the site thereof, together with the garden orPage 15
15
land appurtenant thereto but not including a hut belonging to a
landlord, in any ulkudi.
Apart from defining inter alia the expressions “landlord” and
“tenant”, the legislation did confer right of fixity of tenure on
certain classes of tenants as set out under Section 21.
13. A plain reading of Section 2 would authenticate exclusion
of the applicability of the Act 1929 to lands transferred by the
landlord for felling timber or for planting tea, coffee, rubber,
cinchona or any other special crop prescribed by a rule made by
the State Government or the erection of a building for the
purpose of or ancillary to the cultivation of such crop, or the
preparation of the same for the market or land let only for
fugitive cultivation. The proviso of Section 2 (1) clarifies that no
rule thereunder would affect any land, in respect of which any
tenant did have right of fixity of tenure so long as such right did
subsist. Sub-Sections (2) and (3) being not of relevance are not
being adverted to.
14. The legislative backdrop of the Act 1963 portrays, that it
was amongst others preceded by the Kerala Agrarian Relations
Act 1960 (hereinafter referred to as Act 1960) which sought toPage 16
16
introduce comprehensive land reforms in the State of Kerala and
did receive the assent of the President on 21.1.1961. The
statement of objects and reasons of the enactment i.e. Act 1963
disclose that this Court had declared unconstitutional the Act
1960 in its application to ryotwari lands of Hosdurg and
Kasargod Taluks, whereafter eventually the Act 1963 was
enacted to provide an uniform legislation in the State, by keeping
in view the broad objectives of land reforms as laid down by the
Planning Commission and the basic objectives of the Act 1960.
As the scheme of Act 1963 would dominantly demonstrate, the
statutory endeavour has been to strike a fair and equitable
balance of various interests to be impacted thereby so as to
facilitate smooth implementation thereof, without casting undue
financial burden on the State. Conferment of fixity of tenure on
the tenants as well as the limited right of resumption to the
landlords are also the noticeable features of the enactment with
the emphasis that the right of resumption would not be available
against tenants, who were entitled to fixity of tenure immediately
prior to 21.1.1961 under the law then in force, unless such
tenants had in their possession land in excess of the ceiling area.Page 17
17
The statement of objects and reasons do refer to as well, the
provisions pertaining to determination of fair rent at uniform
rates and purchase of the rights of the landowners and
intermediaries of a holding by the cultivating tenant. The Act
1963 as contemplated, did provide for imposition of a ceiling on
holdings and constitution of Land Tribunal and Land Board for
the administration of the provisions, with the remedy of
appeal/revision from the decisions of this fora. The legislation
received the assent of the President on 31.12.1963 and some of
the provisions thereof which concern the present pursuit were
enforced with effect from 1.4.1964.
Sections 2 (44) and 2(47) which define “plantation” and “private
forest” are extracted hereunder:
“ “Plantation” means any land used by a person principally for
the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon
(hereinafter in this clause referred to as ‘plantation crops’) and
includes –
(a)land used by the said person for any purpose ancillary to the
cultivation of plantation crops or for the preparation of the
same for the market;
(b)land contiguous to, or in the vicinity of, or within the
boundaries of, the area cultivated with plantation crops, not
exceeding twenty per cent of the area so cultivated andPage 18
18
reserved by the said person and fit for the expansion of such
cultivation;
(c) agricultural lands interspersed within the boundaries of the
area cultivated by the said person with plantation crops, not
exceeding such extent as may be determined by the Land
Board [or the Taluk Land Board, as the case may be] as
necessary for the protection and efficient management of
such cultivation.
Explanation- Lands used for the construction of office
buildings, godowns, factories, quarters for workmen,
hospitals, schools and play grounds shall be deemed to be
lands used for the purposes of sub-clauses (a);
“private forest” means a forest which is not owned by the
Government, but does not include-
(i) areas which are waste and are not enclaves within
wooded areas;
(ii) areas which are gardens or nilams;
(iii) areas which are planted with tea, coffee, cocoa,
rubber, cardamom or cinnamon; and
(iv) other areas which are cultivated with pepper,
arecanut, coconut, cashew or other fruit-bearing trees
or are cultivated with any other agricultural crop;”
15. Chapter II of the enactment deals with provisions regarding
tenancies. Section 3 exempts the transactions, as referred to
therein subject to the stipulations enjoined, from the application
thereof. Section 3 (1) (vii) and 3 (1) (viii) being the focal point of
scrutiny demand extraction as well;
3 (vii) leases of private forests:
[Provided that nothing in clauses (i) to (vii) shall apply in
the cases of persons who were entitled to fixity of
tenure immediately before the 21st January, 1961,Page 19
19
under any law then in force or persons claiming under
such persons; or]
3(viii) tenancies in respect of plantations exceeding thirty
acres in extent;
Provided that the provisions of this Chapter, other than
Sections 53 to shall apply to tenancies in respect of
agricultural lands which are treated as plantations
under sub-clause © of clause (44) of Section 2;
15.1 Section 13 of the enactment mandates that notwithstanding
anything contrary to the law, custom, usage or contract or any
decree or order of Court, every tenant shall have fixity of tenure in
respect of his holding and no land from the holding shall be
resumed except as provided in Sections 14 to 22. Section 72
proclaims that on a date to be notified by the Government in the
official gazette, all right, title and interest of the landowners and
intermediaries in respect of holdings held by cultivating tenants
(including holders of Kudiyiruppus and holders of Karaimas)
entitled to fixity of tenure under Section 13 and in respect of which
certificates of purchase under sub-Section (2) Section 59 have not
been issued, shall, subject to the provisions of that Section, be
vested in the Government free from all encumbrances created by
the landowners and intermediaries and subsisting thereon on thePage 20
20
said date. Whereas Section 72 B confers cultivating tenants’ right
to assignments, Section 81 as well do cull out exemptions from the
applicability of Chapter III captioned “Restriction on ownership and
possession of land in excess of ceiling area and disposal of excess
lands.”
16. Bar of jurisdiction of Civil Courts to settle, decide or deal with
any question or to determine any matter which is required by or
under the enactment to be decided, dealt with or determined by the
Land Tribunal or Board Authority or the Land Board or Taluk Land
Board or the Government or an Officer of the Government as
contained under Section 125 and the repeal amongst others of the
Malabar Tenancy Act 1929 and Kerala Agrarian Relations Act 1960
vide Section 132 deserve a passing reference to complete the fringe
survey of the legislative scheme of Act 1963.
17. The lease deed Exh. A 1, the fundamental instrument having a
decisive bearing on the course of the present determination next
commands attention. It was executed on 21.6.1918 between the
Tarwad of the plaintiffs and Mr. Campbell Hunt, featuring an area
of land measuring 963-1/2 acres of which 925 acres was fit forPage 21
21
cultivation and not subject to any Government revenue. Thereby,
the lessor accorded a lease of the said 963-1/2 acres of land to the
lessee i.e. Mr. Campbell Hunt for a period of 36 years on and from
01.4.1918 on payment of premium of Rs. 693.12 anna calculated at
the rate of 12 annas per acre of the cultivable portion, that is 925
acres. The lease deed evidenced, that pursuant to the payment of
premium of Rs. 693.12 annas, the lessor, his heirs, successors,
legal representatives and assigns did lease unto the lessee, his
heirs, successors, legal representatives and assigns, the property
for a period of 36 years. The land involved was delineated in the
appended plan along with 25 hills, water channels, poyils lands etc.
totaling 963– ½ acres of which 925 acres were alone fit for
cultivation for the purpose of plantation and cultivation with a right
to cultivate coffee, tea, pepper, cinchona, rubber and any other
produce which the lessee would think fit and proper to cultivate,
with full right of access to the premises, with all ways, watercourse,
privileges, easements, advantages and other appurtenances
therewith and to cut, till and remove all forests, jungles and trees
for the purpose of planting and cultivating without any let or
interruption from the lessor.Page 22
22
18. The lease deed, reading between the lines, would demonstrate
irrefutably, that at the time of execution thereof, neither a private
forest nor a plantation as defined in Section 2 (44)/2 (47) of the Act
1963 did exist on the demised land. The lease which was for a
period of 36 years w.e.f. 01.4.1918, encompassed land admeasuring
963-1/2 acres which included hills, water channels, poyils lands etc
so much so that only 925 acres were comprehended to be fit for
cultivation and the lessee was left at liberty to raise coffee, tea,
pepper, cinchona, rubber or any other produce at the latter’s
discretion. It is apparent as well on the face of the lease deed, that
there were forests, jungles and trees on the land which the lessee
was authorized to clear for the purpose of plantation and
cultivation, to be decided by him. There was thus no restriction or
regulation on the nature of cultivation/plantation to be resorted to
by the lessee on the cultivable portion of the land leased out. To
reiterate, on the date of creation of the lease there was neither any
plantation nor a private forest on the leasehold land within the
meaning of Section 2 (44) and 2 (47) of Act 1963 respectively.Page 23
23
19. Significantly, the above notwithstanding, in the plaint, the
plaintiffs while acknowledging the rubber plantation on the suit
land raised by the respondent-company, the assignee/transferee, in
possession in place of the original lessee, did assert that from prior
to the initiation of the lease in the year 1918, there was a private
forest on the suit land. They contended, to reiterate, that as the
lease period had expired after 36 years, the company had no right
to retain the possession of the suit land and claim fixity of tenure.
Noticeably however, the plaintiffs complained of non-payment of
lease rent at the rate of 693.75 paisa per annum by the
respondent-company from the year 1979 for which a decree for
arrear rent was also prayed for. Axiomatically thus, the plaintiffs
acknowledged and approved the possession of the leasehold land by
the respondent-company even after the expiry of the period of lease
in 1954 and did receive the annual rent at the same rate, even on
their admission up to the year 1978. In course of the arguments
before this Court, however, the learned senior counsel for the
appellant has not pursued the plea based on private forest and has
confined the assailment qua “plantation” as per clause 3 (1) (viii) of
Act 1963. The parties are also not at issue that on the date of the
lease, no plantation as defined in Section 2 (44) did exist on the
demised land. The plaint, to reiterate does not refer to such
plantation on the date of the lease, as well. In that view of the
matter, the appellant’s plea based on Section 3 (1) (viii) lacks
foundation in the plaint and in the strict sense of the term as the
debate has its genesis in a suit, ought not to have been entertained
by the High Court. This is more so, as the records substantiate that
the contention based on “plantation” was raised for the first time
before that forum.
20. The remonstrance based on cessation of the lease on the
expiry of 36 years also does not commend for acceptance in the face
of unreserved acceptance of lease rent at the earlier rate of Rs.
693.75 paisa admittedly till the year 1978. The assertion that in
any view of the matter, as the respondent-company in terms of
Section 116 of the Transfer of Property Act 1882, ought to be
construed to be the lessee, holding over the demised land on
payment of rent and that the lease stood renewed from year to year
and that accordingly on the date of the institution of the suit there
was a subsisting tenancy in respect of plantation exceeding 30
acres cannot be sustained as well. Though admittedly, at the
institution of the suit, the rubber plantation of the
respondent-company did exist on the land, in the teeth of Section
116 of the Transfer of Property Act 1882, which comprehends
renewal of the expired lease, year after year or month after month it
is essentially qua the purpose for which the property had been
originally leased which in the instant case is traceable to the year
1918. As the lease deed dated 21.6.1918 proclaims in no uncertain
terms that the transaction evidenced thereby was by no means a
tenancy in respect of plantation, the same with efflux of time, in our
estimate cannot transfigure into the same merely because a
plantation has been raised on the leasehold land in between by the
lessee who had been left at its discretion to grow the same. In
absence of a conscious intervention of the parties to the lease,
either to convert it into one for tenancy in respect of such
plantation ad idem or to extend it thereto, an automatic
transformation of the lease not for plantation cannot stand
converted into one for plantation. As a transaction of this kind
involving immovable property is essentially governed by the terms
and conditions concurred upon by the parties thereto, no unilateral
alteration or modification thereof, unless agreed to by both, in
categorical terms, ought to be permitted to be pleaded or enforced
by anyone of them to the disadvantage of the other. Neither the
lease deed contains any stipulation sanctioning such unilateral
alteration of the stipulations contained therein nor do the materials
on record testify such consensus based modification of the lease
covenants. A plain perusal of the Section 116 of the Transfer of
Property Act 1882 also does endorse this deduction.
21. This conclusion of ours is founded amongst others on the
enunciations of the Federal Court in Kai Khushroo Bezonjee
Capadia Vs Bai Jerbai Hirjibhoy Warden & Anr 1949-50 FCR 262
and referred to and relied upon by this Court in Bhawanji
Lakhamshi & Ors Vs Himatlal Jamnadas Dani and Ors (1972) 1
SCC 388 and State of UP Vs Jahoor Ahmad and Anr AIR 1973 SC
2520, dwelling on the question of the nature of the tenancy created
under Section 116 of the Transfer of Property Act 1882.
21.1 Further, this cavil having been expressed before this Court for
the first time, we are not inclined to sustain the same, on that
count as well. Page 27
27
22. In the factual conspectus unfolded hereinabove, the issue of
the applicability of Act 1963 to the lease of private forests and
tenancies in respect of plantations exceeding 30 acres not in
existence as on 21.6.1918, but standing/present on the date of its
enforcement deserves to be addressed. This indeed is of decisive
bearing and would assuredly involve a dialectical interpretation of
Section 3 (1) (vii) and 3 (1) (viii) of Act 1963 to discern the true
purport thereof as legislatively intended. In view of the
abandonment of the plea based on private forests, in course of the
arguments, as noted hereinabove, it is inessential thus too dilate on
the scope of Section 3 (vii).
22.1 As alluded hereinbefore, tenancies in respect of plantations
exceeding 30 acres in extent have been exempted from the purview
of the Act vide Section 3 (1) (viii). That on the date of the execution
of the lease deed i.e. 21.6.1918 there was no plantation on the
leasehold land, is an admitted fact. Such plantation as defined in
Section 2 (44) of the Act 1963 however did exist on the date on
which the enactment was brought into force i.e. 1.4.1964. To clinch
the issue in favour of the appellant, reliance has been placed on thePage 28
28
ruling of the Constitution Bench of this Court, in Karimbil
Kunhikoman (supra) purportedly buttressed by the Malankara
Rubber and Produce Company and Ors etc. supra, Per contra, the
verdict of a Full Bench of the Kerala High Court in Jerome
Fernandes supra has been pressed into service on behalf of the
respondent-company.
23. In Karimbil Kunhikoman (supra), a Constitution Bench of this
Court was seized with the impugnment of the vires of the Kerala
Agrarian Relations Act 1960 (for short Act 1960) on the following
counts to be violative of Articles 14, 19 and 31 of the Constitution of
India.
1. The Bill which became the Act had lapsed before it was
assented to by the President and therefore the assent of
the President to a lapsed bill was of no avail to turn it
into law.
2. The Act is a piece of colourable legislation as it has
made certain deductions from the compensation
payable to landholders under Chap. II and to others
who held excess land under Chap. III and this amounts
to acquisition of money by the State which it is not
competent to do under the power conferred on it in Lists
II and III of the Seventh Schedule to the Constitution.
3. The properties of the petitioners who are ryotwari
pattadars are not estates within the meaning of Art. 31
A of the Constitution and therefore the Act is not
protected under that Article so far as it applies to lands
of ryotwari pattadars like the petitioners. Page 29
29
4. The Act exempts plantation of tea, coffee, rubber and
cardamom from certain provisions thereof, but no such
exemption has been granted to plantations of areca and
pepper, and this is clearly discriminatory and is
violative of Art. 14.
5. The manner in which ceiling is fixed under the Act
results in discrimination and is therefore violative of Art
14.
6. The compensation which is payable under Chapters II
and III of the Act has been reduced by progressive cuts
as the amount of compensation increases and this
amounts to discrimination between persons similarly
situate and is therefore violative of Art. 14.
24. While repelling the impeachment of the statute qua the
grounds enumerated in serial No. 1 and 2 as above, it was ruled
that the lands held by the ryotwari pattadars as referred to therein
and which had come to the State of Kerala by virtue of the States
Re-organisation Act 1956 from the State of Madras were not estates
within the meaning of Article 31 A (2) (a) of the Constitution and
therefore the legislation under attack was not protected from the
assailment under Articles 14, 19 and 31. Vis-a-vis the discord that
the Act 1960 did effect a discrimination between areca and pepper
plantations on one hand and certain other plantations on the other
by not including these (areca and pepper plantations) in the
definition of “plantation” provided by Section 2 (39) thereof, byPage 30
30
totally disregarding the existing large number of areca and pepper
plantations as comparable to tea and coffee and rubber plantations,
this court sustained the same and being of the view that as the
provisions relating to plantation contained in the assailed
legislation were inseverable, adjudged the legislation as a whole to
be unconstitutional. In concluding thus, this Court did explore the
reasons impelling the legislature to treat these two categories of
plantations as class different and observed that the objective of land
reforms, including imposition of ceiling on land holdings as
manifested by the statute under scrutiny, was to remove
impediments arising from the agrarian structure inherited from the
past, in order to increase agricultural production and create
conditions, for evolving as speedily as possible an agrarian economy
with a high level of efficiency and productivity as was underlined in
the Second Five Year Plan. That thereunder, it was recognized that
some exemptions would have to be granted from the ceiling, to
ensure that the productions may not suffer, was taken note of as
well. While referring to the Third Five Year Plan, dealing with land
reforms and ceiling on agricultural holdings, this Court on an audit
of the materials available, concluded that there was no appreciablePage 31
31
difference between the economics of tea, coffee and rubber
plantations and areca and pepper plantations so as to justify the
differential treatment. The report of the concerned committee, that
if areca gardens were brought under the ceiling, it would hamper
production and would be against national economy and that it had
recommended to the Planning Commission, the Central
Government and the State Government that at par with tea, coffee
and rubber plantations, orchards, areca nut gardens should also be
similarly exempted from ceiling and that the result of the
application of the ceiling and other provisions of Act 1960 would
occasion breakup of the plantations with a likely result in fall in
production, was also noted. While concluding that the same
considerations as extended to tea, coffee and rubber plantations,
were available as well to areca and pepper plantations, the omission
of the respondent State, to set out adequate justification for
exclusion of pepper and areca nut from the benefit of exemption
granted to tea, coffee and rubber plantation was recorded. Adverting
to the object and purpose of the Act 1960, and the basis on which
exemption was granted thereunder to the plantations as defined
thereby, it was held that there was no reason for making anyPage 32
32
distinction between tea, coffee and rubber plantations on one hand
and areca and pepper plantations on the other, in the facts of the
case. The contentions listed in serial No. 5 and 6 though, beyond
the framework of the instant inquisition, suffice it to state, were
answered in the affirmative in favour of the appellant.
25. This pronouncement, though had taken note of the
recommendations of the Planning Commission against
disintegration of plantations as a measure of land reforms in the
State and to promote national economy, it was in the context of
evaluation of the plea of discrimination between the existing
plantations vying for equal treatment for exemption. The issue
which seeks adjudication in the present appeal did not fall for
scrutiny in this decision and therefore, we are of the comprehension
that it does not advance the case of the appellant.
26. The assertion on behalf of the appellant that the decision in
Karimbil Kunhikoman (supra) does essentially enjoin, that under all
circumstances, tenancies in respect of plantation as contemplated
in Section 3 (1) (viii), as existing on the date of the commencement
of the Act, would stand exempted from the purview thereof,Page 33
33
irrespective of whether or not such the plantation did exist on the
date of the lease, cannot be countenanced. Not only this
pronouncement is not an authority on this proposition, having
regard to the scope of the analysis undertaken therein as well as
issues addressed, it would be wholly inferential to draw this
conclusion only on the basis of the recommendations of the
Planning Commission against disintegration of plantations as a
measure of economic policy. Such a presumptive approach
according to us would not a safe and expedient guide for the
interpretation required.
27. The constitutionality of the Kerala Land Reforms Act 1963
(also referred to as Act 1963) as amended (inter alia by Act 1964)
was questioned in Malankara Rubber and Produce Co. & Ors
(supra) on the grounds that (i) Chapter III thereof was not aimed
exclusively at agrarian reform and was thus not saved by Article 31
A. (ii), it was violative of Article 14 due to deletion of clause (a) and
(g) of Section 81 (1) caused by the amendment of Act 1969 thereby
withdrawing the exemption extended to cashew estates, pepper
gardens and areca gardens of the areas as mentioned therein.(iii)Page 34
34
lands which were not then under rubber plantation but had been
set apart for expansion of existing plantations or were likely to be
taken up therefor in future could not be acquired and diverted to
other purposes as the rubber industry had been declared to be one
of national importance vide Rubber Act of 1947.
28. Following an exhaustive reference to the decision in Karimbil
Kunhikoman (supra), it was held that the petitioners had failed to
demonstrate that their lands were not estates and thus were
beyond the purview of the Kerala Land Reforms Act 1964 as
amended in 1969. It was declared as well, that the provisions of the
1964 Act were immune from challenge under Article 31 A by reason
of its inclusion in the Ninth Schedule of the Constitution. It was
held that the reduction of ceiling limit by the amending Act 1969
did not attract the operation of the second proviso to Article 31 A(1).
It was propounded that the provisions of the Act 1963 withdrawing
protection to pepper and areca plantations could not be challenged
under Article 14, if the lands were estates within the meaning of
Article 31 A (2) (a). That forest and jungles would be exempted from
the operation of the Act was underlined as well. It would be patentPage 35
35
from the contextual text of this decision that the questions posed
and the contours of the judicial survey were distinctively different
from those in hand and thus is of no avail to the appellant.
29. A Full Bench of the Kerala High Court in Jerome Fernandes
(supra) however encountered the same issue qua Section 3 (1) (viii)
of Act 1963 in an identical fact situation. The appellant therein,
had filed a suit for recovery of possession of the scheduled property
with arrears of rent and mesne profits. The suit land had been
leased out to the predecessor in interest of the respondent-company
therein, which eventually under an assignment stepped into the
position of the original lessee. As on the expiry of the lease, the
respondent-company did not surrender possession of the land, the
suit was instituted. The respondent-company pleaded fixity of
tenure in respect of the holding under the Act 1963. The lower
forums concurrently held that the respondent-company was
entitled to the benefit of fixity of tenure under Section 13 of Act
1963 as the transaction of lease did not attract the exemptions
under Chapter II of the statute. The query that fell for scrutiny, was
whether the transaction of lease did entitle thePage 36
36
respondent-company to the fixity of tenure. That it was a tenant in
terms of Section 2 (57) of the Act 1963 was admittedly beyond
doubt. Referring to Section 3 (1) of the statute, which listed the
categories of transactions exempted from the purview thereof, the
High Court while noticing that the leasehold property had been
described in the lease deed as consisting of garden land, and wet
lands, negated the appellant’s contention based on clause (iii). Qua
clause (viii), the High Court examined the definition of the word
“plantation” provided in Section 2 (44) and entered a finding, that
undoubtedly on the date of the execution of the lease deed, the land
covered thereby had not been put to any use as expressly
mentioned in the definition. Responding to the plea of the
appellant, that the determinative factor for the applicability of
clause (viii) was the character of the land or the use thereof at the
commencement of the Act, the High Court on a comparison of the
text amongst others of clause (v) and (ix) of Section 3 (1) and
Section 2 of the Malabar Tenancy Act 1929 dealing with exemption
and Section 3 (1) (viii), of the Kerala Agrarian Relations Act 1960
enunciated that the legislature did consciously, as a matter of
policy, in relation to the grant of exemption for plantations, restrictPage 37
37
the scope thereof. The High Court in categorical terms referred to
the language used in Section 3 (1) (viii) and the definition of the
expression “plantation” in both the statutes, and was of the view
that the object behind the constricted sweep of “plantation”, was to
confine the scope of exemption from the applicability of the Act. The
High Court entertained the notion, that the legislature had
construed it to be unfair and improper to deny the benefit of the
fixity of tenure to a lessee who might have taken the lease of
extensive parambos or waste lands and in course of time by hard
toil had developed those into plantations. That under the provisions
of the Malabar Tenancy Act 1929, such a tenant was entitled to
fixity of tenure, unless the lease had been one granted specifically
for the purpose of raising plantation as mentioned therein was also
emphasised. The High Court thus rejected the appellant’s plea
based on Section 3 (1) (viii) and held that in view of the clues
furnished by the statutory history preceding the legislation
involved, and also the express language used in Section 3 (1), the
lease transaction was beyond the ambit thereof. It held as well that
if the interpretation of Section 3 (1) (viii) as sought to be projected
by the appellant was accepted, it would divest the tenants of theirPage 38
38
pre-existing right of fixity under the Malabar Tenancy Act 1929 was
underlined as well.
30. Another Full Bench of the Kerala High Court, comprising
amongst others of Hon’ble Mr. Justice T. C. Raghavan C.J., as the
common member, in Jacob Philip (supra) also had the occasion to
examine the aspect of the fixity of tenure under Section 13 of the
Act 1963. A lease of land, covered by Section 3 (1) (i) was involved
in a suit instituted against the appellant therein. It was contended
on behalf of the appellant, that this exemption provision ought to be
applied qua the point of time, when the lease was granted and not
at the commencement of the Act or of any subsequent date, as on
the date of the execution of the lease neither the Government nor
any corporation owned or controlled by the Government was in the
picture. The attention of the High Court was drawn amongst others
to the decision in Jerome Fernandes (supra). On an analysis of the
contents of the Section 3 (1) (i), the High Court negatived this plea.
Drawing sustenance from the text of the Explanations appended to
the clause, it returned a finding that the requirements under
Section 3 (1) (i) would be satisfied, even if the leased land happenedPage 39
39
to belong to or become vested in the Government or a corporation
under or controlled by the Government etc, subsequent to the grant
of the lease.
31. The rendering in Jacob Philip (supra) turns on its own facts
and by no means, in our opinion neuters the determination made in
Jerome Fernandes (supra). Jacob Philip (supra) proceeded on an
interpretation of Section 3 (1) (i) of Act 1963 which is distinctively
different in language and content from Section 3 (1) (viii) and no
analogy, therefore, can be drawn to make it applicable to the case in
hand. In our considered opinion, the decision of the Full Bench, in
Jerome Fernandes (supra), having regard to the scheme of Act 1963
with particular reference to Chapter II and Section 3 (1) (viii)
thereof, correctly states the law on the issue. We endorse the view
taken in Jerome Fernandes (supra) on the applicability or otherwise
of Section 3 (1) (viii) to the leasehold land of the present appeal.
32. Noticeably, the respondent-company in its written statement
had pleaded that the lease created by the deed dated 26.6.1918 was
an agricultural tenancy entitling the lessee to fixity of tenure under
the Malabar Tenancy Act 1929 and that the same benefit stoodPage 40
40
extended under the Act 1963. The learned Trial Court while
dismissing the suit, recorded as well the finding of the Land
Tribunal, following an inquiry, that the respondent-company was
entitled to fixity of tenure in respect of the leasehold land both
under the Malabar Tenancy Act 1929 (as amended) and the Act
1963. This finding was upheld upon by the First Appellate Court
and not dislodged by the High Court. We notice as well that Section
2 of the Malabar Tenancy Act 1929 has no application to the facts
and circumstances of the case, so as to warrant exemption from the
applicability thereof.
33. As determined hereinbefore, the respondent-company,
continued as a lessee by holding over after 1954 and the lease rent
at the agreed rate fixed at the first instance was paid till 1978 as
admitted by the appellant. The Act 1963 had come into force prior
thereto. As neither Section 3 (1) (vii) nor 3 (1) (viii) is applicable to
the plantation involved, the respondent-company is entitled to fixity
of tenure under Section 13 thereof. To reiterate, Section 116 of the
Transfer of Property Act ,1882 even if applicable, the lease originally
entered into would not get transformed with time into one of
tenancy in respect of plantation as defined in Section 2 (44) of Act
1963, in absence of any overt act of the parties, intending the same
on agreed upon terms.
34. The consequences of the applicability of the Act, vis-a-vis the
plantation need not detain us, as the same would be regulated by
the provisions of the statute and as rightly asserted on behalf of the
respondent-company, the course to follow would witness the State
and the tenant as the parties thereto. With the enforcement of the
Act 1963, the appellant would be left with no role in that regard.
35. On a totality of the consideration of all aspects, factual and
legal as detailed hereinabove, we are of the unhesitant opinion that
no interference with the findings recorded by the forums below is
called for. The appeal lacks in merit and is thus dismissed.
36. No Costs.
……………………..J.
(M.Y. EQBAL)
……………………..J.
(AMITAVA ROY)
New Delhi
Dated: 02 July, 2015
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