Thursday, August 06, 2015

Read Judgement - Kerala HC Rules Against Land Reforms Act Dilution by Oommen Chandy Ministry

Read Judgement - Kerala HC Rules Against Land Reforms Act Dilution by Oommen Chandy Ministry

                         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                  PRESENT:

                THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
                                                        &
                          THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

             WEDNESDAY, THE 5TH DAY OF AUGUST 2015/14TH SRAVANA, 1937

                                            CRP.No. 590 of 2010 ( )
                                              ------------------------

     AGAINST THE ORDER/JUDGMENT IN TLB L- 4755/1978 of TALUK LAND BOARD,
                                      KANAYANNUR DATED 30-06-2009

CIVIL REVISION PETITIONER(S):
--------------------------------------------

            STATE OF KERALA, REP.BY SECRETARY,
            LAND BOARD, THIRUVANANTHAPURAM.

            BY ADV. SPL.GOVERNMENT PLEADER SMT.SUSHEELA BHAT (REVENUE)

RESPONDENT(S):
----------------------------

        1. FR.XAVIER KARUVALLIL
            S/O.JOSEPH KARUVALLIL, KARUVALLIL HOUSE
            EZHUPUNNA P.O., CHERTHALA.

        2. INNOCENT @ IGNATIOUS KARUVALLIL,
            EZHUPUNNA MURI, NEENDAKARA, KUTHIYATHODU VILLAGE
            CHERTHALA TALUK.

        3. MARY, W/O.INNOCENT KARUVALLIL,
            EZHUPUNNA MURI, CHERTHALA TALUK.

        4. INNOCENT PETER, KUNDARAPILLY,
            VYTTILA, POONITHURA VILLAGE.

            BY ADV. SRI.K.JAGADEESCHANDRAN NAIR
            BY ADV. SRI.P.R.AJITHKUMAR
            R4 BY ADV. SRI.B.RAMACHANDRAN
            R1 TO R3 BY SRI.R.VENKITARAMANI

              THIS CIVIL REVISION PETITION                     HAVING BEEN FINALLY HEARD ON
22/06/2015, THE COURT ON 05-08-2015 PASSED THE FOLLOWING:

CRP NO.590/10


                        APPENDIX


PETITIONER'S EXHIBITS

ANNEXURE P1:  ORDER DT 24.5.05 IN CRP 1979/99.

ANNEXURE P2:  THE JUDGMENT DT 13.8.2000 IN WPC
NO.14325/08.

ANNEXURE P3:  ORDERS DT 13.8.1987 IN CRP 1470/1982.

ANNEXURE P4:  ORDER DT 29.12.1980 OF TLB, KANAYANNUR.

RESPONDENTS' EXHIBITS


ANNEXURE R1(a):    TRUE COPY OF THE ORDER DT 2.5.1978.

ANNEXURE R1(b):    TRUE COPY OF THE LETTER DT 10.9.1978.

ANNEXURE R1(c):    TRUE COPY OF THE ORDER DT 7.4.1980.

ANNEXURE R1(d):    TRUE COPY OF THE ORDER DT 29.12.1980.

ANNEXURE R1(e):    TRUE COPY OF THE ORDER DT 2.11.1981.

ANNEXURE R1(f):    TRUE COPY OF THE ORDER DT 13.8.1987.

ANNEXURE R1(g):    TRUE   COPY   OF  THE   JUDGMENT   DT
10.1.1989 IN OP NO.142/1989.

ANNEXURE R1(h):    TRUE COPY OF THE ORDER DT 21.6.1999.

ANNEXURE R1(J):    TRUE COPY OF THE STATEMENT OF OBJECTS
AND REASONS.


                      //True Copy//


                   PS to Judge
Rp



                   ASHOK BHUSHAN, C.J.
                                &
                     A.M. SHAFFIQUE, J.
                  ================
                     C.R.P.No. 590 of 2010
                  =================

             Dated this, the 5th day of August, 2015


                           O R D E R


Shaffique, J

     This revision is filed by the State of Kerala challenging

the order dated 30/6/2009 of the Taluk Land Board (for short

'TLB') exempting an extent of 1 acre 02.750 cents of land

under Section 7E of the Kerala Land Reforms Act and

directing surrender of 49.250 cents.

     2.   Short facts involved in the above revision disclose

as under:

      The TLB initiated proceedings under the Kerala Land

Reforms Act, 1963 (hereinafter referred to as the Act)

against   Sri.Innocent,   the    4th  respondent    herein, for

determining the ceiling area in respect of the land held by

him. The TLB by order dated 2/5/1978 directed him to

surrender an extent of 1.52 acres. When attempts were

CRP No.590/2010

                            -:2:-

made to take possession of the premises, it was found that

the property was in the possession of Smt.Mary Gosmi,

mother of the 4th respondent, pursuant to which the TLB

issued a fresh notice to the declarant. As there was no

response from him, the earlier order was confirmed on

29/12/1980.    Thereafter, one Joseph staked a claim in

respect of the above property on 26/2/1981. It was noticed

that a gift deed had been executed by the declarant       in

favour of his mother Smt.Mary Gosmi and she had

conveyed/assigned properties to different persons. The TLB

found that the gift was invalid and direction was issued to

enforce the surrender from the property covered by the land

purchased and balance from the declarant. Though CRP

No.1470/82 was filed, the same came to be dismissed as per

order dated 13/8/1987.    Certain alienees of the property,

viz., respondents 1 to 3 herein, filed OP No.142/1989 before

CRP No.590/2010

                            -:3:-

this Court seeking for a declaration that they, being bona

fide purchasers of the property, were not liable to surrender

any land on behalf of the declarant. In the original petition it

was contended that they had filed an application under

Sec.85(8) of the Act before the TLB which was not disposed

of and hence they sought for direction to dispose of the said

application as well. By judgment dated 10/1/1989, this Court

disposed of the matter directing the TLB to pass final order

on their claim. By proceedings dated 21/6/1999, TLB formed

an opinion that the declarant had created a gift deed dated

10/11/1970 in favour of his mother in respect of land in

Sy.Nos.1036/3, 4, 5 of Punithura Village as per document

No.2610/70 during the pendency of the ceiling case.

Declarant's mother sold the properties to the petitioners

who had put in claim petitions under Section 85(8) of the

Act. Since the gift deed was not accepted by the TLB, the

CRP No.590/2010

                            -:4:-

claim petitions were rejected.    Accordingly, there was a

direction to take possession of 1 acre 52 cents of land in

Sy.No.1036/3, 4 & 5 in Punithura Village as specified in

proceedings No.K.2016/81 dated 2/11/1981.       The above

order came to be challenged before this Court by filing CRP

No. 1979/1999. It was contended that the declarant had

other properties and the transactions of the declarant were

binding on him. Therefore, a request was made to consider

whether the other properties of the declarant could be

surrendered and the properties held by the petitioners may

be exempted. By order dated 24/5/2005, this Court directed

the TLB to consider whether the properties held by the

petitioners, Joseph Karuvallil and Father Xavier Karuvallil,

can be exempted, by taking over other properties of the

declarant. The matter was remitted back to the TLB for fresh

consideration. While the matter was pending before the TLB,

CRP No.590/2010

                             -:5:-

the 1st respondent filed WP(C) No.14325/2008 seeking for a

direction to dispose of Ceiling Case No.2016/1981 on the

basis of the amended provision under Section 7E of the Act.

This Court by judgment dated 13/8/2008 disposed of the

matter with a direction to the TLB to consider his claim, if an

application is filed under Section 85(8) of the Act. It is

pursuant to the said direction that the impugned order came

to be passed.

     3.   In the impugned order, it is stated that Father

Xavier Karuvallil had obtained title in respect of 41 cents of

land in Sy.No.1036/5 as per sale deed No. 2932/1981 dated

10/6/1981 from Smt.Mary Gosmi, wife of Peter. Similarly,

Sri.Innocent @ Ignatious had acquired right in respect of 41

cents of land in Sy.No.1036/5 as per sale deed dated

18/1/1982 registered as document number 128/82 from

Smt.Mary Gosmi, wife of Peter. Another claimant Mary, wife

CRP No.590/2010

                              -:6:-

of Innocent, has obtained title in respect of 21.750 cents in

Sy.No.1036/4 as per sale deed dated 15/6/1981 registered

as document No.2933/1981 from Smt.Mary Gosmi. The prior

title referred is the gift deed dated 10/11/1970 in favour of

Mary Gosmi. What was considered was whether the said

persons are entitled for protection under Sec.7E of the Act. It

is found that an extent of 1 acre 2.750 cents in the

possession of Father Xavier Karuvallil, Sri.Innocent @

Ignatious and Smt.Mary Innocent are liable to be exempted

and the balance land alone has to be surrendered by the

declarant.

      4.   Impugning the above order, it is contended by the

State that the respondents were not entitled for any

exemption under section 7E of the Act on account of two

reasons. One is that the transferees, viz., respondents 1 to 3

herein, have not obtained the property from the declarant,

CRP No.590/2010

                             -:7:-

who is the 4th respondent herein whereas they have acquired

the property from Smt.Mary Gosmi, the declarant's mother,

who had assigned the property on the basis of a gift deed

which has already been found to be invalid by the TLB and

secondly, the claimants have not established their claim by

approaching the Land Tribunal as provided under Section

106B of the Act.     Hence, it was contended that the TLB

committed serious illegality and irregularity in the matter

relating to exercise of jurisdiction to exempt the aforesaid

land from ceiling proceedings.

     5.   Heard the learned special Government Pleader

Smt.Susheela Bhat appearing on behalf of the State,

Sri.R.Venkitaramani, Senior counsel assisted by Sri.P.R.Ajith

Kumar appearing on behalf of respondents 1 to 3.

     6.   The short question involved in the above Civil

Revision Petition is regarding the applicability of Section 7E

CRP No.590/2010

                                  -:8:-

of the Act. Section 7E was incorporated by way of an

amendment inserted by amending Act 21 of 2006, which

had come into effect on 18/10/2006. Sec.7E reads as under;

         "7E. Certain person who acquired lands to be
         deemed tenants - Notwithstanding anything to the

         contrary contained in Section 74 or Section 84 or in

         any other provisions of this Act, or in any other law

         for the time being in force or in any contract,

         custom or usage, or in any judgment, decree or

         order of any Court, Tribunal or other authority, a

         person who at the commencement of the Kerala

         Land Reforms (Amendment) Act, 2005, is in

         possession of any land, not exceeding four hectares

         in extent, acquired by him or his predecessor-in-

         interest by way of purchase or otherwise on

         payment of consideration from any person holding

         land in excess of the ceiling area, during the period

         between the date of the commencement of the

         Kerala Land Reforms Act, 1963 (1 of 1964), and the

         date of commencement of the Kerala land Reforms

         (Amendment) Act, 2005, shall be deemed to be a

         tenant".


    7.    By virtue of the above statutory provision, it is

CRP No.590/2010

                            -:9:-

declared that a person, who at the commencement of the

Kerala Land Reforms (Amendment) Act, 2005, is in

possession of any land, not exceeding 4 hectares (now

amended as 4 Acres) in extent either acquired by him or his

predecessor-in-interest, by way of purchase or otherwise on

payment of consideration from any person holding land in

excess of the ceiling area, during the period between the

Land Reforms Act, 1963 and the Kerala Land Reforms

(Amendment) Act, 2005, shall be deemed to be a tenant.

There is no dispute about the fact that the present claimants

have acquired the property in between the aforesaid two

dates.   The question is whether respondents 1 to 3 are

entitled for the benefit of Section 7E as they came into

possession of the property on the basis of sale deeds

executed by declarant's mother who obtained the property

by way of a gift deed which was treated as invalid by the

CRP No.590/2010

                                   -:10:-

TLB.   Therefore, this is an instance where respondents 1 to

3 came into possession of the property, not by way of a

transfer from the declarant, but from another person, who

did not have title to the property. The issue projected in the

case is simple, in the sense that, if the transfer was from the

declarant, the transferee could claim benefit under section

7E, whereas if the transfer is not from the declarant, can the

transferee make a claim as deemed tenant?

     8.   The learned Special Government Pleader referred

to the judgment in Chellappan Nair v. Taluk Land Board

(2008 (1) KLT 650), wherein, a learned Single Judge of this

Court held that a gift deed executed by the declarant would

not come within the purview of Sec.7E. While considering

the said case, learned Single Judge at paragraph 11 held as

under;

          "11. In order to attract S.7E and to hold that a person

CRP No.590/2010

                                  -:11:-

         is a deemed tenant, the following conditions must be

         satisfied:

         (a) At the commencement of the Amendment Act,

         2005, the person concerned is in possession of land

         not exceeding 4 acres in extent;

         (b) the said land was acquired by him or by his

         predecessor-in-interest from a person holding land in

         excess of ceiling area;

         (c) such acquisition by him was by way of purchase

         or otherwise;

         (d) such   acquisition   must   be   on   payment   of

         consideration; and

         (e) the acquisition must be between the date of

         commencement of the Kerala Land Reforms Act,

         1963 (Act 1 of 1964) and the date of commencement

         of Amendment Act, 2005 (Act 21 of 2006).

         A gift deed executed by the declarant would not

         come within the purview of S.7E. A specific condition

         stipulated in S. 7E is that the acquisition must be on

         payment of consideration. Learned counsel for the

         declarant submitted that a gift deed is supported by

         consideration and the consideration is love and

         affection; and therefore, even a gift deed is covered

         by S.7E. I am not inclined to accept this contention.

         The expression used is payment of consideration.

         Evidently, there cannot be any 'payment' in the

         matter of love and affection. The purpose sought to

CRP No.590/2010

                                  -:12:-

          be achieved by the introduction of S.7E is to protect

          bona fide transfers for consideration where a third

          party has come into possession of lands, acquired by

          him from a declarant/ assessee . It is not intended to

          protect donees of declarants/ assessees and to

          exclude the lands covered by such gift deeds from

          the purview of the ceiling provisions".


Clause (b) in para 11 of the aforesaid judgment gives an

indication that the land has to be acquired by the transferee

or his predecessor-in-interest from "a person holding land in

excess of ceiling area".         Whether Mrs.Mary Gosmi was a

person holding land in excess of ceiling area is the question?

     9.   The learned counsel appearing for respondents 1

to 3 in support of the order passed by the TLB contended

that "any persons holding land in excess of the ceiling area"

as mentioned in Section 7E of the Act includes the person

who was holding land in excess of the ceiling area even

though he/she was not the declarant. The said land at the

relevant time was in the possession of Smt.Mary Gosmi by

CRP No.590/2010

                             -:13:-

virtue of a gift deed executed by her son, the declarant.

When it is declared that the gift deed was bad in law and

invalid, the necessary presumption is that the declarant

becomes the owner of the property and when the transfer is

effected by the mother claiming to be the true owner of the

property, the said transfer has to be treated as one falling

within the parameters of Sec.7E of the Act. It is argued that

the legislative intention is to protect all purchasers of

property traceable to or belonging to the person liable to

give a declaration under Section 85 and the words "any

person" shall be read and understood to mean any person

belonging to the family and deriving title or authority to sell

or alienate properties belonging to the declarant or even an

ostensible owner in terms of Sec.41 of the Transfer of

Property Act. It is argued that for the purpose of Sec.7E, it is

immaterial from whom the property was purchased under

CRP No.590/2010

                                  -:14:-

the colour of title or otherwise. It is also argued that sub

sections (1) and (2) of Sec.84, are to be disregarded as of no

effect by reason of the non obstante clause both in sec.7E

and sub section (4) of Section 84. Learned counsel made

reference to the Statement of Objects and Reasons to Act 21

of 2006 and contended that the legislative intend is to give

the status of deemed tenant to all transferees who acquired

property for valid consideration.

     10. Statement of Objects and Reasons to Act 21 of

2006 reads as under;

                "Statement of Objects and Reasons

          As per the existing provisions under the Kerala Land

          Reforms Act, 1963 small holders or cultivating

          tenants who came into possession of the lands

          previously owned by excess land holders after Ist

          April 1964 are liable to be evicted. These occupants

          purchased    or   otherwise    acquired    land  for

          consideration evidenced by registered documents

          or otherwise are under threat of eviction or

          dispossession. It has been engaging the attention of

CRP No.590/2010

                                 -:15:-

         the Government for a pretty long time to protect

         these small holders and cultivating tenants from

         eviction or dispossession and these occupants are

         now covered by the Acts namely, the Kerala Stay of

         Eviction Proceedings Act, 1998, (5 of 1998), the

         Kerala Stay of Eviction Proceedings Act, 1999 (26 of

         1999) and the Kerala Stay of Eviction Proceedings

         Act, 2001 (11 of 2001) the duration of which has

         been extended from time to time, the latest was up

         to 31st March 2004.      There has been persistent

         demands from the general public and other

         organisations to safeguard the interests of these

         occupants who have acquired lands involved in

         ceiling cases    on   consideration   evidenced   by

         registered   documents.    The   Government    have

         examined the issue in detail and decided that those

         occupants of lands involved in ceiling cases who

         have acquired their lands for valuable consideration

         and under threat of eviction or dispossession shall

         be protected through appropriate legislation.

         2.    As per the proposed amendment these

         persons who possess lands not exceeding 4,

         hectares are considered as deemed tenants under

         section 7E.   In order to protect the rights of the

         deemed tenants section 84(4) is proposed to be

         inserted validating the transfers from 1.04.1964 to

         the date of coming into force of the amendment and

CRP No.590/2010

                                    -:16:-

          as per section 106(B), special provisions for issue of

          certificates of title are also being introduced.

          3.     The Bill seeks to achieve the above objects".


    11. Learned counsel for respondents 1 to 3 relied upon

the judgment of the Supreme Court in Siraj-Ul-Haq v.

Sunni Central Board of Waqf, U.P (AIR 1959 SC 198),

wherein, the Supreme Court held that where the literal

meaning of the words used in a statutory provision would

manifestly defeat its object by making a part of it

meaningless and ineffective, it is legitimate and even

necessary to adopt the rule of liberal construction so as to

give meaning to all parts of the provision and to make the

whole of it effective and operative.

    12. Several other judgments of the Supreme Court

were also referred to viz.,;

    (i)   Boddu Narayanamma v. Sri Venkataraman

Aluminium Co. [(1999) 7 SCC 589] [AIR 1999 SC 3549].

CRP No.590/2010

                               -:17:-

     In this case the question considered was, whether a

petition by a landlord seeking eviction of a tenant under

Section 10(3)(a)(i)(b) of the A. P. Act from the demised

building, let out under a composite lease for residential as

well as non-residential purposes, was maintainable? In the

Act, for purposes of eviction of tenants from residential and

non-residential premises, separate grounds are provided.

The ground of bona fide personal requirement of residence

for evicting from residential building was not available for

eviction of non-residential part of the building. It was held

that such a building has to fall within one or the other

category, namely, residential or non-residential - the

classification which is made in Section 2(iii) of the A.P. Act,

and it is difficult to infer that the legislature having brought

such a building within the ambit of the Act and having

provided for eviction of a tenant on the ground of personal

CRP No.590/2010

                                  -:18:-

requirement of the landlord from such a building when it is

let out for residential purposes or for non-residential

purposes or separately for residential and/or non-residential

purposes and having not taken away the right of the

landlord to eject the tenant from such a building, left him in

the lurch without providing the remedy of eviction of tenant

when let out under a composite lease.

     (ii) Mahadoeolal            Kanodia         v.      Administrator

General of West Bengal (AIR 1960 SC 936) it is held as

under:

         "8. The principles that have to be applied for
          interpretation of statutory provisions of this nature

          are well established. The first of these is that

          statutory provisions creating substantive rights or

          taking away substantive rights are ordinarily

          prospective; they are retrospective only if by

          express words or by necessary implication the

          Legislature has made them retrospective; and the

          retrospective operation will be limited only to the

          extent to which it has been so made by express

CRP No.590/2010

                                  -:19:-

         words, or necessary implication. The second rule is

         that the intention of the Legislature has always to

         be gathered from the words used by it, giving to

         the   words    their  plain,   normal,    grammatical

         meaning. The third rule is that if in any legislation

         the general object of which is to benefit a particular

         class of persons, any provision is ambiguous so

         that it is capable of two meanings, one which

         would preserve the benefit and another which

         would take it away, the meaning which preserves it

         should be adopted. The fourth rule is that if the

         strict grammatical interpretation gives rise to an

         absurdity or inconsistency such interpretation

         should be discarded and an interpretation which

         will give effect to the purpose the Legislature may

         reasonably be considered to have had will be put

         on the words, if necessary even by modification of

         the language used."


    (iii) New India Assurance Co. Ltd. v. Nusli Nerille

Wadia [(2008) 3 SCC 279] [AIR 2008 SC 876], the Apex

Court held as under:

         "50.xxxxxWith a view to read the provisions of the

         Act in a proper and effective manner, we are of the

         opinion that literal interpretation, if given, may give

CRP No.590/2010

                                   -:20:-

         rise to an anomaly or absurdity which must be

         avoided. So as to enable a superior court to

         interpret a statute in a reasonable manner, the

         court must place itself in the chair of a reasonable

         legislator/ author. So done, the rules of purposive

         construction have to be resorted to which would

         require the construction of the Act in such a manner

         so as to see that the object of the Act fulfilled;

         which in turn would lead the beneficiary under the

         statutory   scheme       to  fulfill its constitutional

         obligations as held by the court inter alia in Ashoka

         Marketing Ltd. (supra).

         51. Barak in his exhaustive work on 'Purposive

         Construction' explains various meanings attributed

         to the term "purpose". It would be in the fitness of

         discussion to refer to Purposive Construction in

         Barak's words : "Hart and Sachs also appear to treat

         "purpose" as a subjective concept. I say "appear"

         because, although Hart and Sachs claim that the

         interpreter should imagine himself or herself in the

         legislator's shoes, they introduce two elements of

         objectivity: First, the interpreter should assume that

         the legislature is composed of reasonable people

         seeking to achieve reasonable goals in a reasonable

         manner; and second, the interpreter should accept

         the non-rebuttable presumption that members of

         the   legislative    body    sought    to  fulfill their

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                                 -:21:-

         constitutional duties in good faith. This formulation

         allows the interpreter to inquire not into the

         subjective intent of the author, but rather the intent

         the author would have had, had he or she acted

         reasonably."(Aharon Barak, Purposive Interpretation

         in Law, (2007) at pg. 87)

         52. In Bharat Petroleum Corpn. Ltd. v. Maddula

         Ratnavalli and Ors., (2007) 6 SCC 81, this Court

         held :

         "The Parliament moreover is presumed to have

         enacted a reasonable statute (see Breyer, Stephen

         (2005): Active Liberty: Interpreting Our Democratic

         Constitution,    Knopf    (Chapter    on    Statutory

         Interpretation - pg. 99 for "Reasonable Legislator

         Presumption")."

         53. The provisions of the Act and the Rules in this

         case, are, thus required to be construed in the light

         of the action of the State as envisaged under Article

         14 of the Constitution of India. With a view to give

         effect   thereto,    the   doctrine   of    Purposive

         Construction may have to be taken recourse to.

         [See 2007 (7) Scale 753, Oriental Insurance Co. Ltd.

         vs. Brij Mohan and others.]"


    (iv) Tirath Singh v. Bachittar Singh (AIR 1955 SC

530) the Supreme Court held as under:

CRP No.590/2010

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           "But it is a rule of interpretation well-established

           that,"Where the language of a statute, in its

           ordinary meaning and grammatical construction,

           leads to a manifest contradiction of the apparent

           purpose     of  the    enactment,    or  to   some

           inconvenience or absurdity, hardship or injustice,

           presumably not intended, a construction may be

           put upon it which modifies the meaning of the

           words, and even the structure of the sentence."

           (Maxwell's Interpretation of Statutes, l0th Edition,

           p. 229). Reading the proviso along with cl. (b)

           thereto, and construing it in its setting in the

           section, we are of opinion that notwithstanding the

           wideness of the language used, the proviso

           contemplates notice only to persons who are not

           parties to the petition."


      (v)  Budhan Singh v. Babi Bux (AIR 1970 SC 1880),

it is held as under:

           "9.Before considering the meaning of the word

           "held" in Section 9, it is necessary to mention that

           it is proper to assume that the law-makers who are

           the representatives of the people enact laws which

           the society considers as honest, fair and equitable.

           The object of every legislation is to advance public

           welfare. In other words, as observed by Crawford in

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          his book on Statutory Constructions that the entire

          legislative process is influenced by considerations

          of  justice   and   reason.   Justice and   reasons

          constitute the great general legislative intent in

          every piece of legislation. Consequently, where the

          suggested      construction     operates    harshly,

          ridiculously or in any other manner contrary to

          prevailing conceptions of justice and reason, in

          most instances, it would seem that the apparent or

          suggested meaning of the statute was not the one

          intended by the law-makers. In the absence of

          some other indication that the harsh or ridiculous

          effect was actually intended by the Legislature,

          there is little reason to believe that it represents

          the legislative intent."


    (vi) Chief Justice of A.P v. L.V.A.Vikshitulu (AIR

1979 SC 193) is referred to emphasise the following:

         "63.The primary principle of interpretation is that a

         constitutional or statutory provision should be

         construed "according to the intent of they that

         made it" (Coke). Normally, such intent is gathered

         from the language of the provision. If the language

         or the phraseology employed by the legislation is

         precise and plain and thus by itself, proclaims the

         legislative intent in unequivocal terms, the same

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         must    be  given   effect   to, regardless  of the

         consequences that may follow. But if the words

         used in the provision are imprecise, protean, or

         evocative or can reasonably bear meaning more

         than one, the rule of strict grammatical construction

         ceases to be a sure guide to reach at the real

         legislative intent. In such a case, in order to

         ascertain the true meaning of the terms and

         phrases employed, it is legitimate for the Court to

         go beyond the arid literal confines of the provision

         and to call in aid other well-recognised rules of

         construction, such as its legislative history, the

         basic scheme and framework of the statute as a

         whole, each portion throwing light on the rest, the

         purpose of the legislation, the object sought to be

         achieved, and the consequences that may flow from

         the adoption of one in preference to the other

         possible interpretation.

         64.   Where   two    alternative  constructions  are

         possible, the Court must choose the one which will

         be in accord with the other parts of the statute and

         ensure its smooth, harmonious working, and eschew

         the other which leads to absurdity, confusion, or

         friction, contradiction and conflict between its

         various provisions, or undermines, or tends to

         defeat or destroy the basic scheme and purpose of

         the enactment. These canons of construction apply

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         to the interpretation of our Constitution with greater

         force, because the Constitution is a living integrated

         organism, having a soul and consciousness of its

         own. The pulse beats emanating from the spinal

         cord of the basic framework can be felt all over its

         body, even in the extremities of its limbs.

         Constitutional  exposition    is not mere      literary

         garniture, nor a mere exercise in grammar. As one

         of us (Chandrachud J. as he then was) put it in

         Kesavananda Bharati's case (AIR 1973 SC 1461)

         "while interpreting words in a solemn document like

         the Constitution, one must look at them not in a

         school-masterly fashion, not with the cold eye of a

         lexicographer, but with the realization that they

         occur in 'a single complex instrument in which one

         part may throw light on the others' so that the

         construction must hold a balance between all its

         parts"."


    13. Learned counsel also referred to following English

decisions: (i) East End Dwelling Co. Ltd v. Finsbury

Borough Council (1951(2) All.E.R.587) and (ii) Lister and

Ors. v. Forth Dry Dock & Engineering Co. Ltd. and

anr. {1989 (1) All.E.R 1134}. In Lister (supra), it is held

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that applying the purposive construction of a word person

"employed immediately before the transfer" should be

interpreted and read as including "a person who would have

been so employed if he had not been unfairly dismissed

before the transfer for a reason not connected with the

transfer". The argument therefore is that section 7E has to

be read as to include all property transactions and

acquisitions of title during the relevant period irrespective of

the question as to whether the purchase was made directly

from the declarant or otherwise and any other construction

would defeat the purpose of the Act.

     14. With reference to the contention based on section

106B, it is argued that it is only an enabling provision which

is not meant to convert the Land Tribunal into the Land

Board. It is also argued that Section 84(4) of the Act,

especially the 2nd proviso, clearly indicates that the subject

CRP No.590/2010

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matter of Section 7E is directly related to determination of

ceiling area and all consequences flowing therefrom is in the

domain of Land Board. Section 84(4) reads as under:

          "84(4) Notwithstanding anything contained in sub-

          sections (1), (1A) or (2), or in any judgment, decree,

          or order of any Court, Tribunal or other authority, no

          acquisition of land referred to in Section 7E shall be

          deemed to be invalid, or ever to have been invalid

          by reason only of the fact that the land so acquired

          was found included as, or forming part of, the land

          liable to be surrendered by the transferor as excess

          land under the provisions of this Act and no suit or

          other proceedings including proceedings for eviction

          relating to the said land shall be instituted,

          maintained or continued in any Court or Tribunal

          against any person who is a deemed tenant under

          Section 7E and every such suit or proceedings

          pending shall stand abated:

          Provided that no ceiling cases wherein excess land

          has been physically taken over and distributed to

          landless labourers or reserved for public purposes as

          provided in this Act shall be reopened:

          Provided further that if the Taluk Land Board is

          satisfied that the transfer of land made by a person

          in possession of excess land is calculated to defeat

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           the ceiling provisions, it may take into account the

           land so transferred in determining his ceiling area,

           and may direct him to surrender such extent of land

           held or possessed by him:

           Provided also that no ceiling cases or proceedings in

           which any land has already been surrendered by or

           assumed from, a person as excess land before the

           commencement       of  the    Kerala  Land  Reforms

           (Amendment) Act, 2005, shall be reopened".


     15. It is further argued that the purpose of section

106B is to facilitate a person deserving to obtain a purchase

certificate, which is document of title, by approaching the

Land Tribunal. But as far as the surrender of possession in a

ceiling case is concerned, any transferee is entitled to

approach the TLB and contend that his property shall be

exempted from the ceiling provisions as he becomes the

deemed tenant entitled for protection of tenancy which is

liable to be exempted from the ceiling provisions.

     16. It    is    a   well    settled      principle   of    statutory

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interpretation that if a literal construction would lead to an

anomalous situation, Court has to apply the rules of

purposive construction which would require construction of

the Act in such manner so as to see that the object of the

Act is fulfilled. In Tirath Singh (supra), it is held that where

the language of a statute in its ordinary meaning and

grammatical construction leads to a manifest contradiction

of the apparent purpose of the enactment or to some

inconvenience or absurdity, hardship or injustice, which

were not intended, construction may be put upon it, which

emphasise the meanings of the words and even structure of

the sentence. These principles are well settled, but what is

to be considered is whether the statute as it now stands

requires a purposive interpretation in order to encompass

persons like respondents 1 to 3 to be treated as deemed

tenant under Section 7E.

CRP No.590/2010

                            -:30:-

     17. Section 84(4) of the Act has been introduced by

way of an amendment as per Act 21 of 2006. Section 84(4)

starts with a non obstante clause and it is stated that

"anything contained in sub-sections (1), (1A) or (2), or in any

judgment, decree, or order of any Court, Tribunal or other

authority, no acquisition of land referred to in Section 7E

shall be deemed to be invalid, or ever to have been invalid

by reason only of the fact that the land so acquired was

found included as, or forming part of, the land liable to be

surrendered by the transferor as excess land under the

provisions of this Act and no suit or other proceedings

including proceedings for eviction relating to the said land

shall be instituted, maintained or continued in any Court or

Tribunal against any person who is a deemed tenant under

Section 7E and every such suit or proceedings pending shall

stand abated". The words "the land liable to be surrendered

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by the transferor as excess land under the provisions of this

Act", indicates the position that transferor has to be the

declarant. No other meaning can be attributed to the said

words. The same will be the position as far as Section 7E is

concerned where the words used as 'any persons" can only

be the declarant. That apart, Section 7E read with Section

84(4) has been brought into the statute book as an

exception, which is evident from the statement of objects

and reasons.    It is to enure to the benefit of cultivating

tenants, small farmers who had acquired land from persons

who were holding excess land in between the dates

specified under Section 7E.       However, such acquisition

cannot be from a person who never had title to the property

or was not entitled to surrender any excess land. For that

reason also, we cannot agree with the submissions of the

learned counsel for respondents 1 to 3. Section 7E is a

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special provision which has been enacted for the purpose of

giving benefit to certain persons who were transferees from

persons holding land in excess of the ceiling area within a

specified period. True that the transfer could be effected in

any form, but it has to be on payment of consideration. But

the transfer becomes effective only if the transfer is from

the true or original owner. If the transfer is from a person

who has no title at all, it is not a transfer which conveys any

right on the transferee. Section 7E apparently contemplates

a transfer from the declarant or his legal heirs who alone will

have title to the property.       Admittedly, the gift deed in

favour of the mother was held to be invalid, which decision

has attained finality. Even otherwise, a gift in favour of a

member of the family, being without consideration, cannot

be taken into consideration for the purpose of Section 7E as

held in Chellappan Nair (supra). Therefore, the legislative

CRP No.590/2010

                            -:33:-

intend is very clear from Section 7E itself that the transferor

should either be the declarant or persons who have derived

title under him and not from a person who had no title at all.

      18. It is apparent that Smt.Mary Gosmi was not the

declarant and there was no ceiling case against her.

Therefore, she does not come under the category of "any

persons holding land in excess of the ceiling area" as stated

in Section 7E of the Act. Hence, we do not think that the

arguments raised on behalf of the learned counsel for

respondents 1 to 3 are sustainable.

      19. Now coming to the next question relating to

section 106B of the Act, the learned Government Pleader

submits that Kerala Land Reforms (Tenancy) Amendment

Rules, 2015 has been promulgated as per SRO No.197/2015

and notified in the Gazette on 28/3/2015 by which the Kerala

Land Reforms (Tenancy) Rules, 1970 has been amended

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incorporating Rule 122A, by which any person claiming to be

a deemed tenant under Section 7E of the Act is entitled to

file an application before the Land Tribunal within six

months from the date of publication of such Rules.

Necessary format for obtaining certificate of title also forms

part of the said notification. She also relies upon judgment

dated 17/1/2012 of the learned Single Judge of this Court in

OP(C) No.47/2012 wherein it is held that the consideration of

the question as to whether the person is deemed tenant

under Section 7E of the Act is outside the domain of

consideration of the TLB as it has to be considered by the

Tribunal. The contention is that the TLB ought not have

considered the claim under section 7E, without there being a

purchase certificate issued by the       Land Tribunal under

section 106B of the Act. This issue, in fact is considered by a

learned Single Judge of this Court in Rajeev v. District

CRP No.590/2010

                                   -:35:-

Collector (2014 (4) KLT 209), wherein, after referring to

Section 7E read with Section 106B, learned Single Judge held

at para 10 as under;

         "10. I am not impressed by the argument of the

         State that a claim under S.7E of the Act would lie

         only after a certificate of title is issued under S.106B

         of the Act. S.106B of the Act is as follows:-

         "106B. Special provision for issue of certificate

         of title:--(1) Notwithstanding anything to the

         contrary contained in any other provisions of this Act

         or in any other law for the time being in force, a

         person claiming to be a deemed tenant under

         Section 7E may apply, within such time and in such

         manner as may be prescribed, to the Land Tribunal

         having jurisdiction over the area, for a certificate of

         title in respect of the land held by him.

         (2) On receipt of an application under sub-s. (1) the

         Land Tribunal shall within a period of six months

         from the date of application, pass orders thereon

         after verifying the records as it may deem fit and

         where the application is allowed, issue a certificate

         of title in such manner as may be prescribed."

         It is conceded by all that no rules have hitherto been

         framed prescribing the manner in which a land

         Tribunal could issue a certificate of title to a claimant

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                                   -:36:-

         under S.7E of the Act. Moreover S.106 B of the Act is

         only a provision which enables such claimant to

         obtain a certificate of title in respect of the land held

         by him. The grant of a certificate of title under

         S.106B of the Act by the Land Tribunal is not a sine

         qua non      to  claim    'deemed    tenancy'.    Equally

         fallacious is the argument of the State that the

         application of S.7E of the Act can be raised only by a

         claimant and not the declarant. The extent of land

         (in respect of which the claim under S.7E of the Act

         is upheld) would be deleted from the account of the

         declarant. This would bring down the surrenderable

         liability and therefore the declarant is as much

         concerned as the claimant when a claim under S.7E

         of the Act is made".


    20. Similarly another learned Single Judge of this Court

in reference order dated 19/11/2013 in CRP No.217/2010

while considering a conflict of opinion expressed by another

learned Single Judge (in OP(C) No.47/2012), held at para 12

as under;

         "12.    The second proviso to sub section (4) of

         section 84 of the Act does not in my opinion take

         away the effect of section 7(E) of the Act which

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                                   -:37:-

         recognises and validates transfers by a person

         holding lands in excess of the ceiling area not

         exceeding 4 acres in extent by way of purchase or

         otherwise on payment of consideration from any

         person holding land in excess of ceiling area, during

         the period between the date of commencement of

         the Kerala Land Reforms Act, 1963 (1 of 1964) from

         the date of commencement of the Kerala Land

         Reforms (Amendment) Act, 2005. In view of sub

         section (4) of section 84 of the Act, the Land Board

         cannot ignore a transfer covered by section 7(E) of

         the Act by a reason only of the fact that the land so

         acquired was found included as or forming part of,

         the land liable to be surrendered by the transferor

         as excess land held by him under the provisions of

         the Act. The Taluk Land Board will therefore

         necessarily have to determine whether the claimant

         before it is entitled to the benefit of section 7(E) of

         the Act. The second proviso to sub section (4) of

         section 84 of the Act does not in my opinion enable

         the Taluk Land Board to ignore a claim made under

         section 7(E) of the Act. The second proviso to sub

         section (4) of section 84 of the Act only enables the

         Taluk Land Board, if it is satisfied that transfer of

         lands by a person in possession of excess land is

         calculated to defeat the ceiling provisions, to take

         into account the lands thus transferred for the

CRP No.590/2010

                                  -:38:-

         purpose of determining the ceiling area of the

         transferor. In other words the second proviso to sub

         section (4) does not enable the Taluk Land Board to

         ignore transfers of the kind mentioned in sub

         section (4) of section 84 of the Act and to hold that

         the transferee cannot claim the benefit of section 7

         (E) of the Act.  In that view of the matter, I am not

         persuaded to agree with the view taken by a

         learned single Judge of this Court in O.P.(C) No.47 of

         2012 that the question whether a claimant before

         the Taluk Land Board is a deemed tenant under

         section 7(E) of the Act is outside the domain of

         consideration of the Taluk Land Board. Though

         section 106(B) of the Kerala Land Reforms Act

         entitles a deemed tenant under section 7(E) of the

         Act to apply for a certificate of purchase, the said

         provision operates in a different field and does not

         in my opinion enable the Taluk Land Board to refuse

         to consider whether the claimant before it is a

         deemed tenant under section 7(E) of the Act.

         Section 106(B) was introduced in the Act along with

         section 7(E) and section 84(4) of the Act. The mere

         fact that the law enables the deemed tenant to

         apply for a certificate of purchase, does not in my

         opinion stand in the way of the Taluk Land Board

         from considering the question whether the claimant

         before it is a deemed tenant under section 7(E) of

CRP No.590/2010

                            -:39:-

          the Act".


     21. Going by the statutory provision under section

106B and Section 7E, we are of the view that both the

provisions operate in different fields. In a ceiling case or in

an application filed under Section 85(8) of the Act before the

TLB, it is always open for the TLB to consider whether the

land is liable to be exempted, on the basis of the claim made

by a deemed tenant or declarant under Section 7E of the

Act. Similarly while defending a suit for possession, a claim

of deemed tenancy can be raised by such persons. For that

purpose, there is no requirement to obtain a purchase

certificate as contemplated under Section 106B. However if

a deemed tenant requires a purchase certificate, the remedy

is to approach the Land Tribunal. The very words of Section

106B starts with a non obstante clause which permits a

person claiming to be deemed tenant under section 7E to

CRP No.590/2010

                            -:40:-

apply to the Land Tribunal for a certificate of title in respect

of the land held by him. The concept of deemed tenancy

protects a deemed tenant from being evicted and claim

fixity of tenure in terms of Section 13 of the Act. Tenant

under section 13 includes a deemed tenant also, in view of

Section 2(57)(j), which indicates that the tenant includes

deemed tenant under Section 7E as well. Therefore, while

becoming a deemed tenant, he gets all the protection as

envisaged under Section 13 of the Act. Ceiling case excludes

lands held by tenants from considering the holding of the

declarant. Therefore, we are of the considered view that the

opinion expressed by the learned Single Judge in Rajeev's

case (supra) holds the field, and framing of Rule 122A does

not change the situation.

CRP No.590/2010

                            -:41:-




     In the light of the above opinion of ours, we are of the

view that the Civil Revision Petition is to be allowed.

Accordingly, we allow the Civil Revision Petition, set aside

order No.L-4755/78 dated 30/6/2009 passed by the TLB and

rejecting the claim of respondents 1 to 3.




                          ASHOK BHUSHAN, CHIEF JUSTICE




                               A.M. SHAFFIQUE, JUDGE

Rp