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Kuruvilla Vs. Taluk Land Board and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 5523 of 1976
Judge
Reported inAIR1980Ker102
ActsKerala Land Reforms Act, 1964 - Sections 1(3), 82, 82(1), 82(4) and 85(1); Kerala Land Reforms (Amendment) Act, 1969
AppellantKuruvilla
RespondentTaluk Land Board and ors.
Appellant Advocate Chandrasekharan and; Chandrasekhara Menon, Advs.
Respondent AdvocateGovernment Pleader
Cases ReferredVellappally Plantations v. State of Kerala
Excerpt:
.....land reforms act specifies different conversion values for different types of land such as wet land, land principally cultivated with cocoanut, other dry land and the like. the consequence is that irrespective of conversion of land into that of another nature subsequent to 1-4-1964 the determination has to be made of the excess land to be surrendered based on values reckoned as on 1-4-64. that this is so is now well settled by the decisions adverted to. in these circumstances there is no reason to exclude 'other persons' mentioned in section 82 (1) (d) from the operation of section 82 (4). the revision petition must therefore fail on this point. section 82 (4) of the act will not be attracted to a case like this for the reason that the ceiling provisions were not made applicable to..........land reforms act specifies different conversion values for different types of land such as wet land, land principally cultivated with cocoanut, other dry land and the like. a land may be land principally planted with cocoanut at one point of time and may have been a wet land earlier or it may be vice versa. unless a date is specified as that relevant for determining the nature of the land for determining ceiling area it may not be possible to work out the area to be surrendered in terms of standard acres. the legislature, in its wisdom has chosen the date of commencement of the principal act as the date to be so reckoned. the consequence is that irrespective of conversion of land into that of another nature subsequent to 1-4-1964 the determination has to be made of the excess land to.....
Judgment:

Subramonian Poti, J.

1. This revision has come up before the Division Bench on a reference by our learned brother Justice M. P. Menon. Since the learned Judge felt that the view expressed in the decision of this Court in Vellappally Plantations Private Ltd. v. State of Kerala, 1977 Ker LT 265, required further consideration reference was made to the Division Bench.

2. The revision was against an order passed by the Taluk Land Board, Talappally on 30-10-1976. The said order was passed in proceedings taken against a firm 'Desamangalam Estate' for surrender of excess land. The firm is represented by its Managing Partner who has filed this appeal on behalf of the firm. The objection to the draft statement (dated 11-10-76) was filed by the Managing Partner on 13-10-1976. It is said that at that time the Managing Partner assumed that proceedings were taken against him not in regard to the firm as such but in regard to his share of the properties of the firm and therefore he assumed that he was called upon to reply only as an individual in regard to his share. He filed an additional objection on 30-10-1976 raising certain contentions on behalf of the firm. He mentioned in the application moved by his counsel on 30-10-1976 that it was under impression that he was called upon to answer as a partner only that he had filed the earlier objection and now that it had turned out that the proceedings were being taken against him on behalf of the firm and as representing the firm additional objection was being filed. He also mentioned therein that he was filing the additional objection on that day, that he required time for adducing evidence, that the Managing Partner was out of station he having gone to Bangalore and a week's time may be given to him for adducing evidence, On this application an order 'not allowed' is seen passed on the same day. The matter was taken up by the Taluk Land Board and disposed of on the same day directing surrender of excess land the extent of which is seen to be 105.76 acres.

3. The main point urged by petitioner's counsel before us concerns the applicability of Section 82(4) of the Kerala Land Reforms Act to a firm. It is the case of the petitioner that Section 82 of the Act having been amended to bring in firms also within the scope of that Section only with effect from 1-1-1970 Section 82 (4) as amended would not operate in the case of firms in respect of any conversion made prior to 1-1-1970. There is the further argument that in any view of the matter 94.04 acres of land belonging to the firm in Ottappalam Taluk was a private forest even on 1-4-1964 and therefore was exempt from the provisions of Chapter III and if so the land would not be available for the purpose of determining the ceiling area of the firm even on 1-4-1964.

4. Section 82 (1) and (4) of the Kerala Land Reforms Act as it stands now read thus:

'82. Ceiling area.-- (1) The ceiling area of land shall be,

(a) in the case of an adult unmarried person or a family consisting of a sole surviving member, five standard acres, so however that the ceiling area shall not be less than six and more than seven and a half acres in extent;

(b) in the case of a family consisting of two or more, but not more than five members, ten standard acres, so however that the ceiling area shall not be less than twelve and more than fifteen acres in extent;

(c) in the case of a family consisting of more than five members, ten standard acres increased by one standard acre for each member in excess of five, so however that the ceiling area shall not be less than twelve and more than twenty acres in extent; and

(d) in the case of any other person, other than a joint family, ten standard acres, so however that the ceiling area shall not be less than twelve and more than fifteen acres in extent.

(2) & (3) ... ... ... ... ... ... ... ... ......

(4) Where, after the commencement of this Act, any class of land specified in Schedule II has been converted into any other class of land specified in that Schedule or into a plantation, the extent of land liable to be surrendered by a person owning or holding such land shall be determined without taking into consideration such conversion.' Sub-section (1) as it stands now was substituted by Section 66 of Act 35 of 1969 and prior to its amendment it stood thus:

'(1) The ceiling area of land shall be,--

(a) in the case of an adult unmarried person or a family consisting of not more than five members, twelve standard acres; and

(b) in the case of a family consisting of more than five members twelve standard acres increased by one standard acre for each member in excess of five, so how-ever that the total extent of the ceiling area shall not exceed twenty standard acres.

Provided that the ceiling area shall, in no case, be--

(i) less than fifteen acres in extent; or

(ii) more than thirty-six acres in extent.'

It is relevant to note that Sub-section (1) (d) did not find a place in Section 82 of the Act till 1-1-1970. Sub-section (1) (d) relates to fixation of ceiling in the case of 'any other person', namely any person other than those named in the other sub-clauses. A firm being not one of the persons dealt with in the other sub-clauses was outside the purview of the ceiling provision in Section 82 (1) till 1-1-1970. A 'person' has been defined in Section 2 (43) of the Act to include a company, family, joint family, association or other body of individuals, whether incorporated or not and any institution capable of holding property. Section 82 (1) was brought into operation only on 1-1-1970.

5. Sub-section (4) as it stands now is the result of an amendment by Kerala Land Reforms Amendment Act 25 of 1971 and it came into force with retrospective effect from 1-1-1970. That sub-section had been amended by Act 35 of 1969 which amendment was operative from 1-1-1970 but by reason of the retrospective operation by Act 25 of 1971 Section 82 (4) as amended by Act 35 of 1969 must be taken to have been never in operation. As amended by Act 35 of 1969 Section 82 (4) read thus:

'Where, after commencement of this Act, any class of land specified in Schedule II has been converted into any other class of land specified therein, the extent of land that may be owned or held by a person owning or holding such land at the time of the conversion shall be determined without taking into account such conversion.'

Prior to amendment by Act 35 of 1969 Sub-section (4) of Section read thus :

'Where, after the commencement of this Act, any class of land specified in Schedule II has been converted into any other class of land specified therein, the extent of land that may be owned or held by a family or adult unmarried person owning or holding such land at the time of the conversion shall be determined without taking into account such conversion.'

Prior to the amendment by Act 35 of 1969 Section 82 (4) referred to ceiling in terms of extent of land that could be owned or held. As it stood then it never became operative as the ceiling provisions were not brought into force till 1-1-70. As amended by Act 35 of 1969 the ceiling area was indicated by reference to the extent of land that had to be surrendered and not that could be owned or held. By the further amendment by Act 25 of 1971 which retrospectively came into operation thus obliterating the Section as amended by Act 35 of 1969 the section was extended to cases of conversion into plantations also. Earlier amendment referred only to conversion from one class specified in Schedule II to another class specified in that Schedule.

6. The plea raised before us by counsel for the petitioner may be summarised thus: Section 82 defined the ceiling area. As it stood until amendment by Act 35 of 1969 no ceiling area was fixed in respect of 'any other person' which term includes a firm also. Therefore there was no restriction concerning extent in the matter of holding land by firms till 1-1-1970. With effect from that date the ceiling provisions became applicable to firms also. The effect of Section 82 (4) was to ignore certain types of conversion of land effected after 1-4-1964. The consequence was that, notwithstanding such conversion of land, for the purpose of reckoning the area of land to be surrendered such lands had to be classed as they stood on 1-4-1964. This provision, it is said, would be inapplicable to a 'firm' for the reason that firms were not prohibited, at the risk of application of Section 82 (4) of the Act, from converting one class of land into another class. It is said that really the provision in Section 82 (4) is in the nature of a penalty and that should not be applied to firms, for, they were not subject to any ceiling provision till 1-1-1970 while that would not be the case with others who were brought within the ambit of Section 82 (1) from 1-4-1964 though the section itself came into operation later. To put it in other words, it is said that in the case of an individual or a family Section 82 (1) was in the Statute book all along though the section came into operation only on 1-1-1970. Therefore in their case Section 82 (4) may operate to ignore any conversions of land made after 1-4-1964.

That being not the case with a firm or any other body which would fall within the scope of the term 'any other person', in such a case any conversion prior to 1-1-1970 cannot be ignored. It is only the nature of the land as on 1-1-1970 that is to be taken into account for determining the ceiling area in such cases. In the case of the petitioner here the land is said to have been converted into plantation between 1-4-1964 and 1-1-1970. That is not a matter in dispute. The petitioner claims that if that be the case the land being plantation as on 1-1-1970 it would be exempt from the provision of Section 82 by reason of inclusion of 'plantation' in Section 81 of the Act. The answer to this by the counsel for the State, Sri Govindan Nair, is that the operation of Section 82 (4) is not dependent on the date on which Section 82 (1) brought within its scope firms also. Section 82 (4) is not in the nature of any penalty, but only specifies how ceiling area has to be determined and provides that for that purpose it is the nature of the land as on 1-4-1964 that is material.

7. A full Bench of this Court had occasion to consider the scope of Section 82 (4) of the Act as amended. The question the Full Bench had to deal with in that case concerned the interpretation of Sub-section (4) of Section 82. There was controversy at that time as to whether the words 'after the commencement of this Act' in Section 82 (4) as it stood amended by Act 35 of 1969 and Act 25 of 1971 referred to the date of commencement of the amended provision (1-1-1970) or whether it referred to the date of commencement of the principal Act (1-4-1964). The Full Bench in Ramunni Nair v. State of Kerala, 1976 Ker LT 632 considered Section 82 (4) as a provision which had undergone amendments on two occasions and in the light of the proviso to Sub-section (3) of Section 1 of the Act the reference to commencement of the Act in Section 82 (4) must be taken as reference to the coming into force of the provision in Section 82 (4). That provision came into force on 1-4-1964 and therefore the reference to the 'commencement of this Act' in Section 82 (4) must be understood as on 1-4-1964. This view taken by the Full Bench was challenged before the Supreme Court and that has been settled now by the recent decision of the Supreme Court in Mathew v. Taluk Land Board, 1979 Ker LT 601. The Supreme Court has affirmed the view expressed by the Full Bench on this question. Section 82 (4) has been held to be a 'provision'. The Supreme Court observed that 'it is futile to argue that this is not so merely because the provisions relating to the prohibition on the owning or holding or possessing under a mortgage lands in the aggregate in excess of the ceiling area and the surrender of excess land and its vesting in the State Government have been dealt with in the other Sections........'

8. It may be noticed that Section 82 (4) does not depend for its operation on the date on which Section 82 (1) was brought into force. It only lays down the rule as to what date should be material for reckoning the nature of the land. It may be noticed that Schedule II to the Kerala Land Reforms Act specifies different conversion values for different types of land such as wet land, land principally cultivated with cocoanut, other dry land and the like. A land may be land principally planted with cocoanut at one point of time and may have been a wet land earlier or it may be vice versa. Unless a date is specified as that relevant for determining the nature of the land for determining ceiling area it may not be possible to work out the area to be surrendered in terms of standard acres. The legislature, in its wisdom has chosen the date of commencement of the principal Act as the date to be so reckoned. The consequence is that irrespective of conversion of land into that of another nature subsequent to 1-4-1964 the determination has to be made of the excess land to be surrendered based on values reckoned as on 1-4-64. That this is so is now well settled by the decisions adverted to.

9. It is not as if any penalty has been imposed under Section 82 (4) of the Act. That approach, we are afraid, would not be correct. It is submitted that the legislature did not choose to give retrospective operation to Section 82 (1) (d) which provision resulted in 'any other person' also being brought within the ceiling restriction. There was no need to retrospectively incorporate Sub-section (d) of Section 82 (1), for, though other classes of persons were brought within Section 82 (1) earlier so long as the provision itself was not brought into operation by notification the ceiling provision did not affect them as such. Just as in their cases 1-1-1970 was the date from which ceiling provision would operate, in the case of other persons also the provision would operate from 1-1-1970. When once the provisions so commenced to operate the question of determining the excess which they were bound to surrender called for determination. The provisions therefor is contained in Section 82 (4) read with Section 82 (1). While the extent of the ceiling area is defined in Section 82 (1) and Section 89 (1) provides for surrender of land in excess of the ceiling area Section 82 (4) operates to ignore the conversions of certain categories of land effected after a specified date. The legislature was free to specify such date and that would have been a date even prior to 1-4-1964 or could have been a date subsequent to 1-4-1964. The legislature chose to specify the date as the date of commencement of the Principal Act. In these circumstances there is no reason to exclude 'other persons' mentioned in Section 82 (1) (d) from the operation of Section 82 (4). The revision petition must therefore fail on this point.

10. The decision of our learned brother Bhaskaran J. In Vellappally Plantations v. State of Kerala, 1977 Ker LT 265 has been referred to as supporting the view canvassed by the petitioner's counsel. It was contended before the learned Judge that the notification under Section 83 of the Land Reforms Act bringing into force the provision contained in Section 82 of the Act having operated to bring into force that provision only from 1-1-1970 and there being nothing to indicate that incorporation of Clause (d) into Sub-section (1) of Section 82 was with retrospective effect the ceiling provision applicable to the company would be that as it stood on 1-1-1970. This view seems to have appealed to the learned Judge. The learned Judge observed thus:

'In other words, revision petitioner-company, strictly speaking, was not concerned with the state of affairs of the land prior to 1-1-1970 so far as it relates to ceiling provisions, and the question of conversion did not arise at all in this case. Section 82 (4) of the Act will not be attracted to a case like this for the reason that the ceiling provisions were not made applicable to the company prior to 1-1-1970, and there had been no conversion after the ceiling provisions were made applicable to it'

11. It is not because of any retrospective operation of Section 82 (1) (d) that Section 82 (4) operates on 'any other person'. In fact even in the case of individual and family the ceiling provision actually operates only when it is brought into operation by notification under Section 83. To apply Section 82 (4) by ignoring conversions effected after 1-4-1964 is not to give retrospective operation either to Section 82 (4) or to Section 82 (1) or for that matter to any other Section. The section operates only prospectively. But Section 82 (4) provides that determination of the extent of the land to be surrendered shall be done without taking into consideration conversions after the specified date. Therefore it may not be correct to say, as observed by our learned brother that the company 'strictly speaking was not concerned with the state of affairs of the land prior to 1-1-1970'. With great respect we do not think that the law has been correctly laid down in Vellappally Plantations v. State of Kerala, 1977 Ker LT 265.

12. The further question for decision is whether the land in controversy was private forest on 1-4-1964 and as such outside the purview of Chapter III even on that date. This plea concerns only 94.04 acres of land in Ottappalam Taluk. Evidently the case is that if the land was private forest on 1-4-64 exempt from the operation of ceiling provisions because of Section 82 (1) (d) the question of conversion into another class of land which was also exempt under Section 81 (1) may not make any difference. Though the definition of 'private forest' in the Land Reforms Act as it stands today has no reference to the definition under the 'Madras Preservation of Private Forests Act', under the Act as it stood prior to amendment by Act 35 of 1969 the definition of 'private forest' was different. That had necessarily relation to the definition of private forest under the Madras Preservation of Private Forests Act in regard to the land to which the said Act applied. It has been found by the order under revision that evidence which would have been relevant to prove that the land was private forest was not made available by the party to the Taluk Land Board and in the absence of such evidence it must be assumed that the land was not one of the exempted categories. Evidently the case of the petitioner is that what was purchased by the firm was a private forest to which the definition in the Act as it stood on 1-4-1964 applied, that the trees in the private forest were felled down, the land was converted into a plantation after 1-4-1964 and if that be so the land was liable to be exempted from the ceiling provisions. Here speculation about the probabilities may not be of assistance to the petitioner in the absence of evidence to establish his case. It is not contended that there was sufficient material before the Taluk Land Board to accept the case that the land was private forest. If opportunity had been given to the revision petitioner to adduce evidence but such opportunity had not been availed of, possibly, in revision, this court may not be justified in showing any indulgence to the petitioner. But we find that on the additional objection filed by the party on 30-10-1976 there was no occasion at all for the party to adduce any evidence. It would have been a different matter if the land Board took the view that being belated the objection petition of 30-10-1976 need not be accepted. Then we would have gone into the propriety of such decision. In fact the application by counsel on 30-10-1.976 indicates the reason why such an additional objection happened to be filed and that had necessarily to be considered before the objection was accepted or rejected. Anyhow that question is not of any concern now because in the order which is challenged in this revision the contention raised in the additional objection has been considered and at the hearing learned counsel for the State has also taken the fair stand that the Taluk Land Board had not declined to entertain the additional objection. If the additional objection was entertained such objection having come into the records only on 30-10-1976 and the counsel having moved an application for a week's time for adducing evidence on the objection, any disposal without giving any time whatsoever would not be in accordance with law. It is not a case where evidence was not adduced by the party but where the party was not given reasonable time to adduce any evidence. Therefore on this point we are inclined to interfere so as to give an opportunity to the party to adduce such evidence as he may be in possession of.

13. The consequence is that we set aside the order of the Taluk Land Board in order to enable the petitioner to adduce evidence on his objection. We may indicate here that the decision on the question of applicability of Section 82 (4) is concluded by reason of this judgment of this court. It is only the question whether 94.04 acres was private forest as on 1-4-1964 that is directed to be examined. Reasonable opportunity is to be given to the petitioner to adduce evidence and fresh disposal shall be made in accordance with law. No costs.


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