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
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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
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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
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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,
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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].
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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
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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
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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
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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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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:
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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
-:27:-
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
CRP No.590/2010
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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
CRP No.590/2010
-:29:-
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
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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
CRP No.590/2010
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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
CRP No.590/2010
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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
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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
CRP No.590/2010
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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
CRP No.590/2010
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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
CRP No.590/2010
-: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
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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
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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
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
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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
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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
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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
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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
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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
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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
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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
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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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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:
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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
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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.
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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
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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
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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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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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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
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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
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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
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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