TaxTMI 
TaxTMI 
1979 (5) TMI 149
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.... III of the Act, as amended from time to time. It is not necessary to refer to the dates of all judgments of the High Court of Kerala, or to all the points of controversy there, as learned counsel have been able to channelise their arguments into three main points of controversy, which have been argued at length. It is true that all these points do not arise in all the cases before us, and some learned counsel have raised additional arguments in the peculiar facts and circumstances of their cases. It will therefore be convenient and proper to deal with the three main points first, and to take up the additional points for consideration with reference to the appeals in which they have been raised for our consideration. This, it is agreed, will be a proper and a fair course to adopt for the disposal of these appeals. It is also agreed by learned counsel that the other appeals in which such additional points have not been raised shall stand decided according to our decision on the three main points. 2. In order to understand the controversy in its proper perspective, it may be mentioned that, as in the other States in the country, the Kerala State legislature felt the necessity of m....
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.... 3. Whether the validity or invalidity of transfers effected by persons owning or holding lands exceeding the ceiling limit should be determined with reference to the ceiling area in force on the date of the transfer or in accordance with the ceiling area prescribed by Act 35 of 1969-whether sub-section (3) of section 84 is retrospective in operation. We shall examine the three points one by one but before doing so it will advantageous to refer briefly to the substantive provisions of the Act which bear on the appeals before us. 5. It will be recalled that the Act came into existence when the other attempts to make legislative provision for land reforms did not work out satisfactorily for one reason or the other. The Act was therefore enacted by way of "a comprehensive legislation" to bring about land reforms in the Kerala State. While Chapter I of the Act contains provisions relating, inter alia, to its commencement and defines some of the important terms and expressions, Chapter II contains many provisions for the benefit of tenants and "deemed tenants", including restoration of lands and fixity of their tenure, purchase of landlords' rights by cultivating tenants....
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....ginally enacted in Act I of 1964 therefore came into force on that date. It read as follows:- "82(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 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." Section 82 was however substantially amended by section 66 of the Amending Act of 1969 which, inter alia, reduced the ceiling area of the land and amended the wordings of sub- section (4) also. That section came into force on January 1, 1970. It is not necessary to refer to it as the legislature amended sub-section (4) of section 82 once again, by section 12 of the Amending Act of 1971, which, by virtue of section 1 of that Act, also came into force on January 1, 1970 and thereby supplanted, from the very inception, the amendment which had been brought about by the Amending Act of 1969. The amended sub-section, which is the subject matter of the point under consideration, reads as follows,- "82(4) Where, afte....
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....for them, but, for obvious reasons, rule (iv) continued to hold the field in as much as it laid down the rule of construction that any reference to the "commencement of this Act" shall be construed as a reference to the coming into force of that particular provision. It was therefore applicable as a general rule of construction whenever it became necessary to ascertain the date of commencement of a particular provision of the Act other than section 1. 11. It will be recalled that sub-section (4) of section 82, as originally incorporated in the Act, came into force on April 1, 1964. As has been mentioned, sub-section (4) of section 82 was emended by section 66 of the Amending Act of 1969, which came into force on January 1, 1970, but that proved to be fortuitous because it was supplanted by section 12 of the Amending Act of 1971 from the same date. 12. The sub-section, as amended by the Amending Act of 1971, also dealt with the conversion of land into any other class of land "after the commencement of this Act", but it added the words "or into a plantation" and provided that such conversion shall not be taken into consideration for determining the extent of land liable to be s....
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....ons forming a self-contained integral whole, that section 82 to 85 should be construed as a "composite provision" dealing with the ceiling area, and that the assumption that section 82(4) alone was brought into force as a distinct provision, when section 83 had not been brought into force, is not legally sustainable. 15. The Century Dictionary (which is an encyclopaedic lexicon of the English language) defines "provision" as follows,- 'In law, a stipulation; a rule provided; a distinct clause in an instrument or statute; a rule or principle to be referred for guidance; as, the provisions of law; the provisions of the Constitution." In "Words and Phrases" (Permanent Edition) the definition is as follows:- "As applied to legislation, the word "provision" has this well-understood meaning: "Actual expression in language"-the clothing of legislative ideas in words which can be pointed out on the page and read with the eye." A provision is therefore a distinct rule or principle of law in a statute which governs the situation covered by it. So an incomplete idea, even though stated in the form of a section of a statute, cannot be said to be a provision ....
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....at it was the legislative intent that the prosecution should be governed by the limitation prescribed by the other section. In the case before us, however, the application of section 82 is not dependent on any other section, so as to make it an incomplete provision by itself. It deals with "ceiling area" and is a provision by itself, so that it could be brought into force from a date different from section 83 which prohibited the holding of land in excess of the ceiling area. It may be pointed out, that the "ceiling" prescribed by section 82 was material not only for the purpose of Chapter III of the Act, but had a direct co- relation to some of the provisions of Chapter II e.g. sections 16 and 53. 18. It has next been argued by Mr. Warriyar that in view of the decisions of this Court in State of Kerala and others v. Philomina etc.(2) and State of Kerala and others v. K. A. Gangadharan,(3) the High Court erred in taking the view that section 82(4) came into force on April 1, 1964 because it has been held in both those cases that determination of the surplus land was to be on the basis of the situation existing on January 1, 1970, and that if any land had been converted into a pl....
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....exemption under section 81 as amended by the Act of 1969 in respect of the "extent of plantation within the ceiling area" even if it were converted into a plantation during the period April 1, 1964 to December 31, 1969. The argument is untenable because while sub-section (1) of section 81 provides that the provisions of Chapter III shall not apply to the lands and plantations mentioned in it, that is overridden by, and is subject to, the requirement of sub- section (4) of section 82. 21. Point No. 1 is decided against the appellants. 22. The question is whether a certificate of purchase issued by the Land Tribunal under section 72K of the Act is binding on the Taluk Land Board in proceedings under Chapter III of the Act. 23. The provisions relating to the purchase of the landlord's rights by cultivating tenants appear under that heading, and are contained in sections 53 to 74 of the Act. The Tribunal is competent to pass orders on the application for purchase, including the determination of the compensation and the purchase price under section 72F. Section 72K provides for the issue of the certificate of purchase sub- section (2) of that section reads as follows,- ....
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....herefore does not, in terms or in substance, impinge on the authority of the Taluk Land Board to discharge its own functions under section 85(5) of the Act. 26. The Board is thus quite free to cause the particulars mentioned in the statement filed under sub-section (2) of section 85 to be verified and to ascertain whether the person filing the statement owns or holds any other land, and to determine the "extent" as well as the "identity" of the excess land which he is required to surrender. If a certificate of purchase is issued by the Land Tribunal to any such person and he tenders it in proceedings before the Taluk Land Board, the Board is required by law to treat it as conclusive proof of the fact that the right, title and interest of the land owner (and intermediary) over the land mentioned in it has been assigned to him. It is however not the requirement of the law that the certificate of purchase shall be conclusive proof of the surplus or other land held by its holder so as to foreclose the decision of the Taluk Land Board under sub-section (5) of section 85. 27. Mr. Warriyar is not justified in arguing that the Taluk Land Board has power only to determine the "identit....
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....ificate is inaccurate on its face, or has been obtained by fraud or collusion. 30. Point No. 2 is decided accordingly. 31. Mr. Bhandare tried to raise an ancillary argument in C.A. No. 2585 of 1977 that if on the date on which the Taluk Land Board undertakes an enquiry for the determination of surplus land, a proceeding is pending before the Land Tribunal for the grant of a certificate of purchase, the Board will have no jurisdiction to examine a matter which falls within the jurisdiction of the Tribunal. We find, however, that no such question was raised for the consideration of the High Court, where the controversy was confined to the genuineness of the lease, and we are therefore not required to examine the abstract point of law set out by Mr. Bhandare. It will be sufficient for us to say that the ancillary argument can easily be answered in the light of our decision on point No. 2 if and when it arises for consideration in a given case, for the function of the Board is to determine the extent and the identity of the Land to be surrendered and not matters relating to the issue of a certificate of purchase. If a certificate of purchase has a bearing on what the Board is cal....
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....of the ceiling area. As has been observed by this Court in Gangadharan's case, section 84 has been enacted with a view to making the provisions of section 83 and 85 effective. It makes references to "ceiling area" in sub-sections (1) and (2), and sub-section (3) states what exactly is meant thereby. 34. The sub-section clarifies that the expression "ceiling area" in sub-sections (1) and (2) of section 84 means the area specified in sub-section (1) of section 82 "as amended by the Kerala Land Reforms (Amendment) Act, 1969 (35 of 1969)". As has been mentioned, that amendment was made by section 66 which came into force on January 1, 1970. It is true that section 15 of the Amending Act of 1972 (which inserted sub-section (3) in section 84 of the Act) does not state that it has been made with retrospective effect, and sub-section (3) does not, in terms, state that it shall be deemed to have come into force from the date of the amendment which was made by the Amending Act of 1969. Even so, it is necessary to examine the true effect of the insertion of the sub-section and to decide whether it is retroactive. 35. In doing so, we shall be guided by the plain and clear language of....
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....y. Section 84 therefore provided from the very beginning that such transfers shall be deemed to be calculated to defeat the provisions of the Act and shall be invalid. When the ceiling fixed by the original section 82 was considerably reduced by the Amending Act of 1969, and when the reduced ceiling was to govern the liability to surrender the excess land, it was only natural that provision should have been made to invalidate voluntary transfers effected after September 15, 1963 with reference to that reduced ceiling. It has to be appreciated that even those who did not want to defeat the provisions of the Act by voluntary transfers after September 15, 1963 and retained the lands themselves, were affected by the amendment which was made by the Amending Act of 1969 and were not entitled to claim that this should not be so merely because the Amending Act came into force later. A doubt was however raised about the matter in V. N. Narayanan Nair and others v. State of Kerala and others(1). It was therefore considered necessary to introduce the Kerala Land Reforms (Amendment) Bill, 1972, clause 15 of which, inter alia, provided for the insertion of the following as sub-section (3) of se....
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...., 1963 when the Bill of 1963 was published. 40. We are therefore satisfied that the view taken in Narayana Patar v. State of Kerala and others in this respect is quite correct and point No. 3 is decided accordingly. 41. In the result, the appeals in which only points Nos. 1 and 3 have been raised for our consideration fail and are dismissed. 42. We shall now examine those appeals in which point No. 2 and/or additional points have been raised for our consideration. C.A. No. 869 of 1979 Issac Joseph and another vs. State of Kerala and others 43. As we have taken a different view on point No. 2, and as the purchase certificate came up for consideration in the High Court, the appeal is allowed to the extent that the High Court shall re-examine the matter in the light of our decision on that point. C.A. No. 876 of 1979 P. Kunhukutta Tharakan and others vs. State of Kerala and others 44. Mr. Warriyar has argued that the High Court has committed an error of law in taking the view that the certificate of purchase was not conclusive proof of the assignment of the right, title or interest of the landowner and the intermediaries over the holding. In view of our d....
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....y the clause. The expression "family" has been defined in clause (14) of section 2 as follows:- "family' means husband, wife and their unmarried minor children or such of them as exist". And the expression "minor" has been defined by clause (36A) to mean "a person who has not attained the age of eighteen years." So two postulates are necessary for obtaining the benefit of the increase of one standard acre for each member of the family in excess of five, namely, that the member should be in existence, and it should be possible to ascertain that he had not attained the age of eighteen years on the appointed date. Both these conditions cannot be said to exist in the case of a child en ventre sa mere and it will not therefore be regarded as a member of the family for purposes of section 82. We are aware that a child en ventre sa mere has been regarded in some legal systems as a person "in being" for the purpose of acquisition of property by the child itself, particularly in regard to gifts, but section 82 of the Act with which we are concerned does not deal with any such contingency or benefit to the unborn child. The view taken by the High Court in Balakrishna Karup ca....
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....ould not possibly prove that a lease was in existence before September 15, 1963. There is nothing on the record to show that a certificate of purchase was produced for the Board's consideration, and it is futile to argue that its evidentiary value was ignored by the Board. No such argument was advanced for the consideration of the High Court. The other argument regarding exclusion of 1.75 acres, on the basis of an alleged gift to the appellant's son, was not urged for the consideration of the High Court; and does not require consideration by us. The appeal is dismissed. C.A. No. 2811 of 1977 Jaya Shree Tea and Industries Ltd. vs. Taluk Land Board, Nedumangad and others 54. Mr. Bhatt has argued that the High Court erred in not granting the exemption for the entire area as a coffee plantation; but the finding of fact in this respect is against the appellant. The conversion of the land has also been held to be illegal. On the claim that the land used for growing fuel was exempt as it fell within the definition of "plantation" under section 2(44) (a) as it was an "ancillary purpose" also, there is a finding of fact against the Company. The appeal has no merit and is dismi....
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....r. The appeal is without merit and is dismissed. C.A. No. 143 of 1977 P. A. Sivasubramaniam vs. The State of Kerala and others 58. Mr. Raghavan has argued that the High Court has erred in rejecting the contention that as the appellant had two unmarried daughters who had attained majority before January 1, 1970, they were entitled to 6 acres each under section 82(1) of the Act. But the two daughters did not have any share in the property under their personal law, and the Act did not give it to them. The High Court cannot be blamed for rejecting the claim, and the appeal is dismissed. C.A. No. 882 of 1978 Dr. T. R. Chandrasekhar vs. The Taluk Land Board and others 59. The High Court has remanded the case in some respects, but the grievance here is that although the appellant's unmarried daughter Sheela became a major in 1969 and was given a share in the partition held on December 15, 1969, that has not been excluded from the appellant's holding. We find that there was no satisfactory evidence to prove the partition and separate possession of the daughter. The finding of fact is therefore against the appellant and does not call for reconsideration here. The appeal ....
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....ablished, and there is nothing wrong if the plea to that effect has been rejected. The appeal is dismissed. C.A. No. 895 of 1979 Kuttikrishnan and another vs. The State of Kerala and others 64. We have dealt with the evidentiary value of the purchase certificate while examining point No. 2 which has a bearing on this appeal. The appeal is therefore allowed and the case is sent back to the High Court for fresh disposal in this respect, according to the law. C.A. No. 894 of 1979 K. Kesava Pillai vs. The State of Kerala and another 65. The only argument which has been advanced before us relates to the question whether the finding about unculturable waste land is correct. That is a finding of fact which has not been shown to have been vitiated for any reason. The appeal is dismissed. C.A. No. 870 of 1979 Kurian Thomas vs. The State of Kerala and others 66. It has been argued by Mr. Sudhakaran that although certificates of purchase had been obtained by some of the tenants, they were not taken into consideration by the Land Board and the High Court. We find that no such argument was advanced in the Board or before the High Court and, as it happens, there is nothing to s....
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....ent of 1963. In view of that finding of fact, there is no merit in this appeal and it is dismissed. C.A. No. 890 of 1979 K. C. Thomas v. The Taluk Land Board, Vaikam and others 70. Mr. Nambiyar has argued that the High Court erred in upholding the finding of the Taluk Land Board that the land in question was not forest but "paramba" and its conversion into "plantation" after April 1, 1964 had to be ignored under section 82(4) of the Act. But that is a finding of fact, which has not been shown to have been vitiated, and does not call for interference here. The appeal is dismissed. C.A. No. 885 of 1979 K. P. Mohammad and others vs. Taluk Land Board, Perinthalmanna and others 71. The Taluk Land Board made its order on November 21, 1975 determining the extent of the land to be surrendered by the appellant. He applied to the Board much after the period of 60 days prescribed in sub-section (8) of section 85 to have that order set aside. No real attempt was made to explain the delay and the High Court therefore rightly upheld the Board's decision that the application was barred by limitation. The appeal fails and is dismissed. C. A. No. 886 of 1979 P. M. Kunhammed and a....