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Kathirath Velu Vs. State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 438 of 1976
Judge
Reported inAIR1980Ker25
ActsKerala Land Reforms (Amendment) Act, 1969 - Sections 7B, 7B(1) and 13A;
AppellantKathirath Velu
RespondentState of Kerala and anr.
Appellant Advocate T.R.G. Warrier and; K. Rama Kumar, Advs.
Respondent Advocate Government Pleader,; T.C. Mohan Das and; S.P. Soman,
DispositionRevision dismissed
Cases ReferredDevaki Amma v. Ramakrishna Pillai
Excerpt:
.....01.01.1970 the day on which section 7 b came into force - petitioner was not a tenant on date of dispossession - petitioner not entitled for restoration of possession. - - what is contended for is that if a person who would have been a tenant under the amended act is dispossessed after 1964 he is entitled to restoration and for this the qualification to be a tenant under the amended act has to be deemed satisfied on the date of dispossession. the above, section, requires two conditions to be satisfied by a person who asks for restoration of possession. in this case the first condition is satisfied because he was dispossessed only on 21-7-1966. but would he have been a tenant on that date under the amended act? --the argument was that the words 'if he would have been a tenant under..........the qualification to be a tenant under the amended act has to be deemed satisfied on the date of dispossession. 3. uninhibited by the decisions to which our attention has been invitedthe matter may be examined in the light of the relevant provisions of the kerala land reforms act to find out whether this contention is right. section 13a of the land reforms act provides that where any person has been dispossessed of the land in his occupation on or after the 1st of april, 1964, such person shall, if he would have been a tenant under this act as amended by the kerala land reforms (amendment) act, 1969, at the time of such dispossession, be entitled to restoration of possession of the land. the forum for granting relief is, under section 13a (2) the land tribunal. the above, section,.....
Judgment:

Viswanatha Iyer, J.

1. This case has been referred to a larger Full Bench as the correctness of the Full Bench decision in Vengalath Madathil Taxazhi Karnavan v. T. Kunhikrishnan (1977 Ker LT 180) has come up for consideration in this case. The simple facts are these: In 1952 the karnavan of the second respondent herein, executed a registered lease deed in favour of the petitioner and put him in possession of the property comprised in it. But this lease deed was in contravention of the provisions of the Madras Marumakkathayam Act and was held to be invalid and without bona fides in a suit filed by the second respondent and others for partition of this property and other properties of the tarwad. Following this the second respondent to whom the property was allotted in the final decree for partition applied for and took delivery of the property on 21-7-1966. After the passing of the Kerala Land Reforms (Amendment) Act (Act 35 of 1969) the petitioner filed an application under Section 13A of the Act before the Land Tribunal alleging that he is a deemed tenant under Section 7B of the Act and entitled to restoration of possession from the second respondent. That application was dismissed by the Land Tribunal upholding the objection of the second respondent that the petitioner does not satisfy the requirements of Section 7B to become a deemed tenant. On appeal by the petitioner this order of the Land Tribunal was confirmed by the Appellate Authority. It is against this the revision petition has been filed.

2. On behalf of the revision petitioner it is contended that the subordinate tribunals have gone wrong in their view that the petitioner, not having had possession on 1-1-1970, the date of the amendment of Act 35 of 1969, is not a tenant under Section 7B to get restoration of possession under Section 13A of the Act. What is contended for is that if a person who would have been a tenant under the amended Act is dispossessed after 1964 he is entitled to restoration and for this the qualification to be a tenant under the Amended Act has to be deemed satisfied on the date of dispossession.

3. Uninhibited by the decisions to which our attention has been invitedthe matter may be examined in the light of the relevant provisions of the Kerala Land Reforms Act to find out whether this contention is right. Section 13A of the Land Reforms Act provides that where any person has been dispossessed of the land in his occupation on or after the 1st of April, 1964, such person shall, if he would have been a tenant under this Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession, be entitled to restoration of possession of the land. The forum for granting relief is, under Section 13A (2) the Land Tribunal. The above, section, requires two conditions to be satisfied by a person who asks for restoration of possession. Firstly he must have been dispossessed of the land in his occupation on or after 1st April 1964 and secondly such person should have been a tenant under the Act as amended at the time of such dispossession. In this case the first condition is satisfied because he was dispossessed only on 21-7-1966. But would he have been a tenant on that date under the Amended Act? The only provision relied on in this respect is Section 7B (1) which is in the following terms:--

'7B. Certain persons occupying lands under leases granted by incompetent persons to be deemed tenants. -- (1) Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, any person in occupation of the land of another at the commencement of the Kerala Land Reforms (Amendment) Act, 1969 on the basis of a registered deed purporting to be a lease deed, shall be deemed to be a tenant if he or his predecessor-in-interest was in occupation of such land on the 11th day of April, 1957, on the basis of that deed, notwithstanding the fact that the lease was granted by a person who had no right over the land or who was not competent to lease the land.'

Under, this provision a person will be a deemed tenant if he satisfies three conditions, namely (a) he was having occupation on the date of the commencement of the Kerala Land Reforms (Amendment) Act, (b) the occupationmust be on the basis of a registered deed purporting to be a lease deed granted by a person who was not competent to lease the land or had no right over the land and (c) he or his predecessor was in occupation on the 11th April, 1957 on the basis of that deed. All these three conditions are cumulative, the absence of any one being fatal to the claim for deemed tenancy. It is not enough that the person claiming the benefit came into possession on the basis of a registered lease deed from a person not competent to execute it and that he was in occupation of such land on 11th April 1957, He must continue to be in occupation and be in occupation on the date of the commencement of the Kerala Land Reforms Act, 1969, i.e. 1-1-1970. If he is not in occupation on 1-1-1970 he does not satisfy the qualification for a deemed tenancy.

4. Section 13A does not provide forreading the definition of a tenant in a way different from what it plainly means. What it says is only that if the set of facts, which would make a person a tenant under the Act as amended by Act 35 of 1969 exists on the date of the dispossession then that person is entitled to restoration of possession. To put it in another way in considering whether a person is entitled to relief under Section 13A, one is not entitled to understand the definition of tenant in a different way; or to make a person a deemed tenant reckon the commencement of the provision or the Amending Act with reference to a date earlier than the date on which the provision or Act actually came into force. Occupation as on a later date which alone will make a person a deemed tenant, is not allowed to be dispensed with in considering whether Section 13A will apply. The object and purpose of the Act is only to give relief to those persons who would be tenants under the Amending Act (on the date of dispossession). Various types of relationship with certain incidents have been declared to constitute a tenancy under the Amending Act. For instance the definition of Kanam, Kanam-Kuzhikanam, Kuzhichuvaippum Kudiyiruppum, Ottikuzhikanam, etc. have all undergone change or have been newly introduced by the Amending Act 35 of 1969 and declared as tenancies. Those definitions do not require possession on the date of the Amending Act as a condition to make a person a tenant. Possibly such tenants will all be entitled to relief under Section 13A but not those who are to be deemed tenants only by being in possession till and on the date of the commencement of the provision or the Act. To understand Section 13A in any other way will be doing violence to that section and also sections defining tenancies and deemed tenancies.

5. Now we will refer to the decisions cited before us. Section 13A came up for consideration in Devaki Amma v. Ramakrishna Pillai (1974 Ker LT 787). That was a case where a person claiming to be a deemed tenant under Section 4A (1) (a) claimed relief under Section 13A. He was out of possession on the date of the commencement of the Amending Act. In rejecting his claim the Division Bench stated as follows:--

'The argument was that the words 'if he would have been a tenant under this Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession' clearly introduces a fiction which extends to the Amending Act being made retroactively operative so as to commence from the various dates of dispossession of the persons seeking relief under Section 13A. If that was the intention of the legislature there would have been no difficulty whatever in stating simply that the Amending Act should be deemed to haw come into operation on the dates of dispossession for the purpose of granting relief under Section 13A. Such words are significantly absent in Section 13A. Section 13A enables restoration of possession of the properties of persons who are tenants under the Act. So the question whether a person dispossessed was a tenant under the Act or not will have to be determined. In cases to which Section 7A is attracted there will be no difficulty in granting relief under Section 13A even if there had been dispossession before the date of commencement to the Amending Act because of Explanation II to Section 7A which provides that a person shall be deemed to be in possession notwithstanding any court record of dispossession. But when we come to Section 4A (1) (a), we thinkthe elements of the section would not be satisfied even when the section in read with Section 13A, for all that Section 13A requires is to apply Section 4A (1) (a) to the facts of a case and then determine whether the person dispossessed was a tenant at the time of his dispossession. If the condition that a mortgagee should have been in possession at the time of the commencement of the Amending Act is not satisfied, no relief can be granted under Section 13A, for the person dispossessed was not a tenant under Section 4A (1) (a). One might think that there is anomaly in that in certain cases restoration is possible while in other cases by the very terms of the section on such restoration is possible. This may not be an anomaly for we must attribute to the legislature a 'purpose in making the distinction. The type of tenancy created by Section 4A (1) (a) is somewhat peculiar. A person who cannot be considered to be a tenant according to the ordinary concept has been made a tenant under that sub-section and so the legislature in its wisdom might have restricted its application only to such cases where a mortgagee continued to hold the property at the date of the commencement of the Amending Act. Certainly we cannot assume that the purport of the section as it is worded had not been fully grasped by the legislature. So it seems to us to be clear that the legislature intended that this new provision must have effect only from the date of commencement of the Act. This view is fortified by the fact that the provision in Section 4A (1) (a) has not been made retroactive by any express words in Section 13A. The words occurring in Section 13A cannot be construed as extending the operation of the Amending Act to an earlier date than the the date on which it came into operation or the date from which it commenced, for, to give such a meaning to those words would have the effect of altering the very words of Section 4A (1) (a). If that was what was intended there must be much clearer provision. In the absence of any such provision we have to hold that the first counter-petitioner in each of these cases was not a tenant within the meaning of Section 4A (1) (a) in the Act at the commencement of Act. Norestoration could therefore have been ordered'.

With respect we agree that this is the correct interpretation to be put on Section 13A in applying to cases where possession on the date of the Amending Act is a condition to be satisfied by a person claiming a deemed tenancy. But later in another case, when a person claiming to be a deemed tenant under Section 6A applied for relief under Section 13A, the scope of Section 13A, was considered by a Full Bench in Vengalath Madathil Tavazhi Karnavam v. T. Kunhikrishnan (1977 Ker LT 180). In that case a person who was dispossessed on 17-7-1967 claimed that he satisfies the terms of Section 6A and therefore he is entitled to restoration of possession. Section 6A reads as follows:

'6A. Certain persons who were holding land on or after 1st December 1930, to be deemed tenants. -- Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, a person in possession of immovable property in any area in the State to which the Malabar Tenancy Act, 1929, extended, whether as mortgagee or otherwise, shall be deemed to be a tenant if:--

(a) the property in his possession consists of agricultural land;

(b) he or any of his predecessor-in-interest was holding the property as a tenant on or after the 1st day of December, 1930; and

(c) the tenancy was terminated after the 1st day of December 1930 and before the commencement of this Act, but his predecessors-in-interest or himself continued in possession of the property, without interruption, whether as a mortgagee with possession or otherwise, from the date of such termination till the commencement of this Act.

Explanation I:-- For the purposes of clause (b), 'tenant' means a tenant as defined in the Malabar Tenancy Act, 1929, as in force on the 1st day of November 1956.

Explanation II.:-- An interruption for a period not exceeding an agricultural year immediately following the termination of the tenancy shall not be deemed to be an interruption for the purposes of clause (c)'.

A similar provision with some more clauses had been incorporated into the parent Act with effect from 30-7-1967 by Act 9 of 1967. It is in substitution of that section the present Section 6A was incorporated in the Act by amending Act 35 of 1969. This section also came into force on 1-1-1970. It will be seen that this section also requires continuous possession till the commencement of this provision to make the person claiming relief a deemed tenant. In other words the person claiming to be a deemed tenant under this section should have been in possession of the property on 1-1-1970. But he contended that in applying Section 13A to his case he must be deemed to have satisfied the condition of possession till 1-1-1970 with his possession till the date of his dispossession, namely, 17-7-1967. In other words possession till 17-7-1967 was contended to be possession sufficient to make him a tenant under Section 6A and for relief under Section 13A. This contention was accepted by the Full Bench overruling the view earlier taken by a Division Bench in the case referred to above. Govindan Nair, C. J. who spoke for the earlier Division Bench case now speaking for the Full Bench observed as follows:--

'This court in Devaki Amma v. Ramakrishna Pillai (1974 Ker LT 787) proceeded on the basis that Section 13A does not by necessary implication introduce the new sections enacted and incorporated into the Act by Act 35 of 1969 defining tenants and deemed tenants from the date of dispossession of the persons in occupation. With respect we think that this view does not recognise or respect the full import of Section 13A. Section 13A has to be read and understood bearing in mind its purpose and object. It appears to use (to me also who spoke for the Court in Devaki Amma v. Ramakrishna Pillai ( (1974) Ker LT 787)) that the section had not been construed by bearing in mind the purpose and object sought to be achieved by the section and by understanding the words of the section in a manner that will be conducive to achieving that purpose and object. No doubt the above construction was induced by the ambiguous words of the section. But if the purpose and object of the section is highlighted the section is capable of a meaning different from that given to it in Devaki Amma v. Ramakrishna Pillai (1974 Ker LT 787). The purpose and object of the section is obvious, and that is, that all persons who would have been tenants on the date of dispossession according to the new definitions introduced by the amending Act of 1969 must get the benefit of these amended definitions and thus obtain recovery of possession. If this is the cardinal purpose behind the section we think we have to read the section as providing the legal fiction that the new definitions introduced by Act 35 of 1969 were available on the dates of dispossession. If they were not available then there was no question of applying them. The fact that the section insists that it should be examined whether the person claiming the benefit of the new sections would have been a tenant under the new section on the date of dispossession is certainly capable of being understood as necessarily implying that it should be imagined that these amended provisions were in force on the date of dispossession. So we have to take it that these provisions were in existence on the date of dispossession and therefore in force or in operation. To this extent with respect the observation in Devaki Amma v. Ramakrishna Pillai (1974 Ker LT 787) that the new Section introduced by Act 35 of 1969 cannot be deemed to have come into operation on the dates of dispossession by virtue of the operation of Section 13A cannot be accepted.'

Later, on pointing out the difference between the expression in Section 4A (1) (a) and the expression used in Section 6A regarding the date of commencement of the respective provisions it was observed thus:--

'But when we come to Section 6A the position seems to us to be different because the words used in the section are 'till the commencement of the Act'. We are asked to imagine or to suppose or to proceed on the basis that the provision in which those words are contained were in force on the date of dispossession by virtue of Section 13A. 'Till the commencement of this Act' occurring in the provision read with proviso to Section 1 (3) of the Act willhave to be understood as a reference to the coming into force of that provision. Because of Section 13A of the Act, that provision must be deemed to have been in operation on the date of dispossession. This means that the provision must be deemed to have commenced on the date of dispossession. If those words are to be so understood, we think it would not be proper to give to those words a different meaning for the purpose of determining the duration of continuous possession insisted by the provision. The same meaning must be attributed and the question will have to be examined whether a person was in continuous possession till the date of coming into force of the particular provision, which will be till the date of dispossession- The combined effect of the proviso to Section 1 (3) and Section 13A is thus to give a specific meaning to the words 'till the commencement of this Act' which will mean till the commencement of the provision. The dates of the commencement of the provision would be the various dates of dispossession in view of Section 13A which insisted that we should imagine whenever Section 6A is relied on that that was in existence and was therefore in operation on the date of dispossession. So we have to proceed on the basis that on 17-7-1967 when the counter-petitioner was dispossessed, Section 6-A was available and the question whether Section 6A has been satisfied must be decided by finding out whether the person was in continuous possession till the date of dispossession, i.e. 17-7-1967. There is no case that the counter-petitioner was not so in possession. Of course the other terms of Section 6A will also have to be satisfied. It has not been contended that any of the other conditions of Section 6A have not been satisfied.'

With utmost respect to the view expressed in that case we are unable to agree with it. The purpose and object of Section 13A is not give relief to all persons who would be tenants under the Act as amended by Act 35 of 1969. Certain transactions having certain characteristics or incidents are treated or declared as tenancies under the Act as amended. Such tenants would have been tenants on the date of dispossession and they may get relief. But certain other transactions followed by possession during a specified period and/or continuing till the commencement of the Act or Amending Act or its provisions alone are declared as deemed tenancies. In the latter class of cases possession till the commencement of the Act is part of the qualification required to make a person a tenant, The legislature or the Government under the delegated power has notified when the Act or the particular provision is to come into force. This date is definite and certain, and does not change from case to case. Possession till that date is part of the qualification of such deemed tenants. In other words, possession for a period stretching beyond the date of dispossession and extending till 1-1-1970 alone will qualify to make deemed tenants. Section 13A does not require or warrant a fictional advancement of the date of commencement of the Act to the date of dispossession. The expression 'if he would have been a tenant under Act as amended by the Kerala Land Reforms (Amendment) Act 1969 on the date of dispossession' contained in Section 13A is not capable of that meaning. Section 13A only provides that if on the set of facts that existed on the date of dispossession, on applying the provisions of the Act as amended by Act 35 of 1969, the person dispossessed would be a tenant he will be entitled to relief. The definition provisions of the Act as amended are not directed to be ignored to make the set of facts as existed on the date of dispossession constitute a tenancy. The same conditions which would make a person a tenant under the Amended Act should exist on the date of dispossession. The legal fiction in Section 13A goes only to this extent. Section 13A is not capable of being understood in the manner stated in the Full Bench decision. A person dispossessed before 1-1-1970 will not be a deemed tenant at all under Section 7B and so there is no question of treating him as a tenant on the date of dispossession. In this view the observations in the Full Bench decision quoted above, with utmost respect, cannot be accepted as correct. That decision has to be overruled. We do so.

In this case the petitioner was dispossessed on 21-7-1967 and he being out of possession on 1-1-1970 the dayon which Section 7B came into force, he is not a tenant under that Section. Hence he would not be a tenant on the date of dispossession. The lower tribunals are therefore right in dismissing the application for restoration of possession. The Civil Revision Petition is hence dismissed, but we make no order as to costs.


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