Wild Landscape

Government is the OWNER of (All Leasehold) Plantation Lands in Kerala.

Created: 07 Jul 2024 at 23:29

Saji Koduvath, Advocate, Kottayam.

Key takeaways

  • Plantation-tenancy-lands (plantation, developed by the landlord) above 30 acres are exempted from Chapter II. Therefore, tenants of such Plantation-tenancy-lands are not entitled for benefits under Chapter II, such as – Fixity of Tenure (to the tenants), purchase certificate within ceiling limit etc.
  • Tenancy-lands where Plantation is developed by the tenant, (above or below 30 acres) are not exempted from Chapter II. Therefore, tenants of such Plantation lands are entitled for benefits under Chapter II, such as – Fixity of Tenure (to the tenants), purchase certificate within ceiling limit etc.
  • Both such Plantation lands (plantation, developed by the landlord or tenant) vest in Govt. under Sec. 72.
  • Both such Plantation lands are exempted from provisions as to ceiling limit (under Sec. 81, in Chapter III)
  • Government Need Not Pay ‘Land-Value’, as such, if such Lands are Acquired.
  • A tenant who got ‘fixity’ over such land cannot ‘sell’ it as his absolute property.
  • Purchase certificate cannot be given by the LT for land beyond ceiling limit.

Abstract

Analysis of Exemption under S. 3(1)(viii), KLR Act

  • If tenant raised plantation on bare land leased –
  • Such tenants are not excluded (from Chapter II) by the ‘Exemption’ clause under S. 3(1)(viii).
    • Therefore, tenants of such tenancy-land are entitled for benefits under Chapter II, such as
      • Fixity under Sec. 13,
      • purchase certificate within ceiling limit.
    • Such lands vest in Govt. under Sec. 72 also.

Chapter I , KLR Act

  • Chapter II of the Kerala Land Reforms Act, 1963 pertains (mainly) to
    • ‘fixity’ (to tenants),
    • vesting of property in Govt.,
    • purchase of landlord’s rights by cultivating tenants,
    • issuance of ‘certificate of purchase’,
    • rights and liabilities of Kudikidappukars etc.; and
  • Chapter II shall not apply [under Sec. 3(1) ] to
    • leases-lands belonging to or vested in the Govt,
    • Leases of private forests,
    • tenancies of plantations exceeding 30 acres, etc.

Chapter III, KLR Act

  • Chapter III pertains, inter alia, to
    • ceiling limit,
    • surrender,
    • vesting of excess land in Govt. etc.; and
  • Chapter III shall not apply [under Sec. 81(1) ] to
    • lands owned or held by the Government,
    • private forests,
    • plantations, etc.

1. S. 3(1)(viii) deals with exemption of ‘Plantation-Tenancy’ (plantation, developed by the landlord), above 30 acres.

  • S. 3(1)(viii), exempt from Chapter II –
    • plantation-tenancy (plantation, developed by the landlord) above 30 acres.
    • That is, such plantation-tenancy-land, above 30 acres, should have been a plantation when it was leased.
    • In other words, such plantation-tenancy-land, above 30 acres, must have been developed as plantation by the landlord.

Thus, if tenant has raised plantation on bare land leased, it is not excluded (from the benefits under Chapter II offered to Tenants) by the Exemption under S. 3(1)(viii).

  • The tenants (who put up plantation on the bare land) have the rights and benefits provided under Chapter II – such as
    • fixity under Sec. 13 and
    • vesting in Government under Sec. 72.
    • (But not purchase certificate under Sec. 72B, for it is not allowable above ceiling limit.)

2. S. 3(1)(viii) provides benefit (fixity under Sec. 13) to

  • plantation-tenancy-land below 30 acres.
  • See: Rev. Fr. Jerome Fernandes v. Be Be Rubber Estate, 1972 KLT 613; Poddar Plan. Ltd v. Thekkemariveettil Madhavi Amma, 2014 1 ILR(Ker) 813; 2013 4 KLJ 781; 2014 1 KLT 439 .
  • Therefore:
    • Contract applies to termination of tenancy, above 30 acre  plantation-tenancy-land (land must have been a plantation when it was leased).
    • Land lord is entitled Sec. 81 exemption over such plantation.

Who is the OWNER of the (exempted) Leasehold-Plantation Lands in Kerala

  • Sec. 13 of the KLR Act, 1963 proclaims that every tenant shall have fixity of tenure in respect of his holding.
  • Sec. 72 of the Act declares that the title of a land is vested in Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon, if-
    • (i) it is held by a cultivating tenant and
    • (ii) the tenant is entitled to fixity of tenure.
  • Sec. 72B enables ‘cultivating tenants’ to get the assignment of leasehold land within ceiling area (by purchase certificate provided in Sec. 72K).
  • Sec. 81 exempts plantation from ceiling limits.

Plantation Land Cannot be Assigned to a Tenant

  • From the above, it is clear:
    1. Plantation-tenancy-lands above 30 acre are not exempted from Chapter II; and are exempted from ceiling limit (under Chapter III).
    2. Tenants who hold the plantation-tenancy-lands are entitled to fixity of tenure under Sec. 13.
    3. As the tenants who hold the plantation land are cultivating tenants, such lands are vested in Government [according to Sec. 72].
    4. The plantation land, above ceiling limit [under Sec. 72B], cannot be assigned (by the Land Tribunal) to a tenant. (Note: No rider to Sec. 72B and 72C, by way of proviso or otherwise, exempting plantation.)
  • Therefore, the answer to the question – who is the OWNER of the (exempted) Leasehold-Plantation Lands in Kerala – is that the Government of Kerala is the OWNER. (See: Perumal Smaraka Nidhi vs M/S Harrisons Malayalam Ltd., 31. 01. 2013)

2. Provisions as to Fixity, Purchase Certificate,  Plantation-Exemption, Ceiling Area, etc.

  • Tenant & Fixity –
    • Section 13(1) reads as under:
    • 13. Right of tenants to fixity of tenure.  (1) Notwithstanding any thing to the contrary contained in any law, custom, usage or contract or in any decree or order of court, every tenant, shall have fixity of tenure in respect of his holding, and no land from the holding shall be Limited except as provided in Sections 14 to 22.”
    • Tenant is defined in Sec 2 (57) as under:
    • (57) “tenant“ moans any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land, and includes- …. ….. ….. “
  • Cultivating Tenant & Vesting of land in Government –
    • Section 72(1) reads:
    • “72. Vesting of landlord’s rights in Government: (1) On a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders karaimas) entitled to fixity of tenure under Section 13, and in respect of which certificates of purchase under Sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the government free from all encumbrances created by the landowners and intermediaries and subsisting thereon the said date”
    • It provides (automatic) vesting of leasehold properties in Govt. Conditions thereof are:
      • (i) the land must be held by cultivating tenants;
      • (ii) they should be entitled to fixity of tenure under Sec. 13.
    • Sec. 2(8) defines cultivating tenant as under:
    • “cultivating tenant“ means a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding.”
  • Issue of Purchase Certificate
    • Section 72B, 72C and 72K(1) & (2) read as under:
    • “72B. Cultivating tenants right to assignment. – (1) The cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest:
    • Provided that
    • (a) no cultivating tenant shall be entitled to assignment of the right, title and interest in respect of any holding or part of a holding under this Section if he, or if he is a member of a family, such family, owns an extent of land not less than-the ceiling area.
    • (b) where the cultivating tenant or, if he is a member of a family, such family, does not own any land or owns an extent of land which is less than the ceiling area, he shall be entitled to the assignment of the right, title and interest in respect of only such extent of land as will, together with the land, if any, owned by him or his family, as the case may be, be equal to the ceiling area.
    • Explanation. – In calculating the extent of land owned by the cultivating tenant or, where he is a member of a family, by such family, for the purposes of clauses (a) and (b) of the foregoing proviso, the portion of the land owned by such cultivating tenant or by the family, which is liable to be assigned to the cultivating tenants holding under him or such family, shall not be taken into account.
    • (2) The provisions of Section 82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of the proviso to Sub-section (1);
    • Provided that if no date has been notified under Section 83, the date notified under Section 72 shall be deemed to be the date notified under Section 83.
    • (3) Any cultivating tenant entitled to assignment of the right, title and interest in respect of a holding or part of a holding under Sub-section (1) may apply to the Land Tribunal within whose jurisdiction such holding or part is situate within two years from the dote of vesting of such right, title and interest in the Government under Section 72, or such further time as may be allowed by the Government in this behalf, for such assignment to him.
    • (4) An application under Sub-section (3) shall contain the following particulars, namely:(a) the village, survey number and extent of the holding or part to which the assignment relates.(b) the name and address of the landowner and intermediaries and also of every other person interested in the land and the nature of their interest so far as they arc known to him;(c) the particulars regarding the other lands owned or held by him or if he is a member of a family; by such family; and(d) such other particulars as may be prescribed.
    • (5) Where a cultivating tenant is entitled to the assignment of the right, title and interest in respect of only a portion of the holding held by him, he may indicate in the application under Sub-section (3) his choice of the portion to which the assignment shall relate.”
    • “72C. Assignment where application is not made by cultivating tenant.  Notwithstanding anything contained in Sub-section (3) of Section 72B [or Section 72BB], the Land tribunal may, subject to such rules as may be made by the Government in this behalf, at any time after the vesting of the right, title and interest of the landowners and intermediaries in tile Government under Section 72, assign such right, title and interest to the cultivating tenants entitled thereto, and the cultivating tenants shall be bound to accept such assignment.”
    • “72K. Issue of certificate of purchase. – (1) As soon as may be after the determination of the purchase price under Section 72F [or the passing of an order under Sub-section (3) of Section 72MM] the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries, if any.
    • (2) The certificate of purchase issued under Sub-section (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates.”
    • Note: Sec. 72F speaks as to ‘Land Tribunal to issue notices and determine the compensation and purchase price; and Sec. 72MM provides for jointly applying, by the cultivating tenant, the landowner, the intermediary, the holders of encumbrances, etc, to the Land Tribunal, for an order for ‘assignment by mutual agreement’ to the cultivating tenant.

3. The Tenants are Liable to pay ‘Rent‘ and Land Tax

The land being vest in Govt. under Sec. 72, Sec. 72E casts duty on the ‘cultivating tenant’ to pay ‘rent‘ to the Government.

In Jagannath Temple Managing Committee v. Siddha Math,  (2015) 16 SCC 542, while dealing with the ‘vesting’ under Land Acquisition Act,1894, it is held that ‘it is a settled principle of law that once a property is vested by an Act of legislature, to achieve the laudable object, the same cannot be divested by the enactment of any subsequent general law and vest such property under such law.’

  • (LA Act, 1894, Sec. 16 reads as under: Power to take possession. When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.)

The concept of ‘vesting’ was also considered in The Fruit & Vegetable Merchants Union v. The Delhi Improvement Trust, AIR 1957 SC 344. In this decision it is held as under:

  • “(19) That the word “vest” is a word of variable import is shown by provisions of Indian statutes also. For example, S. 56 of the Provincial Insolvency Act (5 of 1920) empowers the Court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that “such property shall thereupon vest in such receiver”. The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Ss. 16 and 17 of the Land Acquisition Act (Act 1 of LA), provide that the property so acquired, upon the happening of certain events, shall “vest absolutely in the Government free from all encumbrances”. In the cases contemplated by Ss. 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word “vest” has not got a fixed connotation meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Ss. 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them.” [Quoted in Indore Development Authority vs Manoharlal (Arun Mishra, J.), (2020) 8 SCC 129.]

Sec. 72E reads as under:

  • 72E. Rent of holdings vested in Government but not assigned to cultivating tenants. – Where in respect of any holding or part thereof, the right, title and interest of the landowner and intermediaries have vested in the Government under Section 72 and the cultivating tenant is not entitled to the assignment of such right, title and interest by virtue of Sub-section (1) of Section 72, the cultivating tenant shall be liable to pay to the Government the rent payable under this Act from the date of vesting under Section 72.

With respect to payment of tax it is stated as under in Sec. 72S:

  • 72S. Liability for assessment alter the date of vesting under Section 72. (1)] Notwithstanding anything contained in the Kerala Land Tax Act, 1961, or in any other law for the time being in force, or in any contract, where the right, title and interest of the landowner and the intermediaries, if any, in respect of a holding have vested in the Government under Section 72, the cultivating tenant of that holding shall be liable to pay the basic tax payable in respect of that holding under the said Act and other taxes and cesses due in respect of that holding.
  • (2) In the case of a holding or part of a holding in respect of which an application for resumption under the provisions of this Act is rejected, the cultivating tenant shall be liable to pay the basic tax and other taxes and cesses in respect of such holding or part of the holding, as the case may be, with effect on and from the date notified under Sub-section (1) of Section 72.

4. Provisions as to Excess, Ceiling Return, Surrender, Exemption, Etc.

  • Section 81 – exemptions:
    • S. 81, the first Section in Chapter III deals with exemption from ceiling limit of plantation, industrial land, etc. Sec. 81(1)(e) reads as under:
    • “Exemptions: (1) The provisions of this Chapter shall not apply to–
      • (a) lands owned or held by the Government ….
      • …. …..
      • (e) plantations;
      • …………”
    • Plantation: Under Sec. 2, clause (44), plantation means any land used by a person principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon.
  • Section 82 & 83 – ceiling area:
    • S. 82 & 83 deal with ceiling area and bars holding land excess of ceiling fixed.
    • Sec. 83 reads as under:
    • “83. No person to hold land in excess of the ceiling area. With effect from such dates as may be notified by the Government in the Gazette, no person shall be entitled to own or hold or to possess under a mortgage lands in the aggregate in excess of the ceiling area.”
  • Section 85(1) – surrender of excess land:
    • 85. Surrender of excess land. (1) Where a person owns or holds land excess of the ceiling area on the date notified under Section 83, such excess land shall be surrendered as hereinafter provided: …. ….”

Read Blog: Relevant provisions of Kerala Land Reforms Act in a Nutshell

5. Effect of Conversion or Sale of A Portion of Exempted Land

Section 87 reads as under:

  • “S.87. Excess land obtained by gift, etc. to be surrendered – (1) Where any person acquires any land dafter the date notified under Section 83 by gift, purchase, mortgage with possession, lease, surrender or any other kind of transfer inter vivos or by bequest or inheritance or otherwise and in consequence thereof the total extent of land owned or held by such person exceeds the ceiling area, such excess shall be surrendered to such authority as may be prescribed.
  •        Explanation 1 – Where any land is exempted by or under Section 81 and such exemption is in force on the date notified under Section 83, such land shall, with effect from the date on which it ceases to be exempted, be deemed to be land acquired after the date notified under Section 83.
  •        Explanation II – Where, after the date notified under Section 83, any class of land specified in Schedule II has been converted into any other class of land specified in that Schedule or any land exempt under Section 81 from the provisions of this Chapter is converted into any class of land not so exempt and in consequence thereof the total extent of land owned or held by a person exceeds the ceiling area, so much extent of land as is in excess of the ceiling area, shall be deemed to be land acquired after the said date.

Explanation II is explained by the Full Bench of the Kerala High Court in Mathew K. Jacob v. District Environmental Impact Assessment Authority,2018-4 KLT 913, as under:

  • “The consequence is that the benefit of the exemption would be lost and the extent added to the account of the assessee or the declarant in determination of his ceiling area.”

That is, if a person converts any portion of his exempted land to any other class, that converted extent will be added to his account in determining his ceiling limit; and the Taluk Land Board can proceed upon that (excess) land. In short, the exemption will be lost for that portion.

6. Fragmentation has to be Treated as Conversion for Non-exempted Category

The decision in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985, arose from the Writ Petition filed for a declaration that the fragmentation and sale of a Rubber Plantation for non-plantation purposes was illegal as it defeated the purpose of the Kerala Land Reforms Act. When the matter was placed before the Taluk Land Board under Sec 87, KLR Act, it found that there was no change in classification of the land and therefore dropped the proceedings. The High Court held as under:

  • “34. Section 81 of the KLR Act is in pith and substance a special provision, with its main objective of giving exemption to certain lands including the lands maintained as plantations is to prevent fragmentation of the land and to keep it as plantation itself to improve the economy of the state for welfare of people as a whole while the Act creates a regime, the State is under an obligation to safeguard, the intended purpose of the provisions of the Act in its spirit. ….. …… It could be gathered from the records that the proposal to transfer 1.03 acres of land to each workers in discharge of their service or retrenchment benefits will definitely divide the plantation into separate slots and that would definitely change the character/nature of the plantation, which could be termed as ‘conversion’ and that will be against the provisions of the Act.”
  • “37. …. Fragmentation of the estate and transfer of it has to be treated as a case of conversion of plantation into some other category of land. Such being the scenario, fragmentation amounts to serious violation of the provisions of KLR Act. Hence, we are not impressed by the argument of the learned counsel for the respondent No.18 that the fragmented plots will be maintained as plantation by the transferees, so as to extend/avail the benefit of HMT’s case (supra). Taking into account of all the relevant aspects, we have no hesitation in holding that dropping of the suo motu proceedings initiated under Section 87 of KLR Act by the TLB in a cursory manner, is not at all reasonable or justifiable when tested on the touchstone of the object and intention, which the legislation seeks to achieve and beyond what is required, in the interest of the public.”

7. Can a Tenant of Plantation Transfer his Rights, Fragmenting the Plantation

Possession by itself is a substantive right recognised by law. It is heritable and transferable. (Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179; Phirayalal Kapur Vs. Jia Rani, AIR 1973 Delhi 186; Nallammal Vs. Ayisha Beevi, 2017-5 Mad LJ 864). 

See Blog: POSSESSION is a Substantive Right in Indian Law

Therefore, a tenant of plantation having rights of fixity (Sec. 13) may have the right to transfer it to another. In any case, the change of character or nature of the plantation by fragmentation being amount to ‘conversion’ that will be against the provisions of the Act, as pointed out in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985.

9. Balanoor Case – Cultivating Tenant Entitled to Assignment, were Obliged to Apply

A cultivating tenant, “entitled to assignment” of the right under Sec. 72B, if failed to apply the same, will not have ‘vested right to continue’, as a cultivating tenant and he will not be entitled to the benefit of fixity under Sec. 13 of the KLR Act.

  • Note: The tenant who opts to avail benefits of plantation-exemption, under Sec. 81, cannot seek fragmentation (Sec. 87, Explanation II) of the plantation land and obtain purchase-certificate (under Sec. 72A, 72B or 72C). Still, he stands as a cultivating tenant, “entitled to assignment” of the right under Sec. 72B. As shown elsewhere, there is an option for the tenant – either to obtain purchase-certificate or to avail plantation-exemption.

Sec. 72B provides for cultivating tenant’s rights to get assignment by purchase certificate (through LT) – within ceiling area. Tenant is “obliged to apply” for it within 2 years from 1-1-1970. Therefore, the cultivating tenants entitled to assignment of the right, title and interest were “obliged to apply” to the Land Tribunal within the time fixed for asserting the claim as cultivating tenants. This decision also says that tenants having ‘no bona fide claim’ as to cultivating-tenancy will not have the benefit of fixity under Sec. 13 of the KLR Act, and they will have ‘no vested right to continue’.

Sec. 73B(3) reads as under:

  • “(3) Any cultivating tenant entitled to assignment of the right, title and interest in respect of a holding or part of a holding under Sub­section (1) may apply to the Land Tribunal within whose jurisdiction such holding or part is situate within two years from the date of vesting of such right, title and interest in the Government under Section 72, or such further time as may be allowed by the Government in this behalf, for such assignment to him.”

10. Who is the OWNER of Exempted (Leasehold) Plantation (Private) Lands in Kerala?

It is Government itself, though by virtue of Chapter II (Sec. 13) the tenant has ‘Fixity’. 

  • 1. Plantation (lease) lands VEST in GOVT, automatically
  • Because,
  • Sec. 72 provides for 
    • mandatory and involuntary vesting in Government–
    • of leasehold lands that is held by cultivating tenants entitled to fixity of tenure under Sec. 13 (even if the extent exceeds ceiling limit).
    • See: Perumal Smaraka Nidhi vs M/S Harrisons Malayalam Ltd., 31. 01. 2013.
  • 2.  ‘Vesting’ in Govt. is ‘Vesting of Ownership‘
  • It is for the reasons –
    • Declared to be ‘vested’ in Government (Sec. 72).
    • Plantation land cannot be fragmented (Sec. 87, Explanation II); and, therefore (if the tenant opts to avail benefits of plantation- exemption, under Sec. 81) no part of plantation land can be assigned, or purchase-certificate can be issued, to the tenants (under Sec. 72A, 72B or 72C), even within ceiling limit. (Note: No rider to Sec. 72B and 72C, by way of proviso or otherwise, exempting plantation.)
    • Such a tenant is liable to pay ‘rent’ to the Government (Sec. 72E).
  • 3. ‘Exemption’ in Chapter III Cannot be read into Sec. 72B(2)
  • Sec. 72B(2) specifies that the provisions of Section 82 (as to ceiling limit) shall apply (when assignment is made; that is, purchase certificate is issued). It reads-“
    • (2) The provisions of Section 82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of the proviso to Sub-section (1).”
  • As per Section 82, the “ceiling area” in the case of an adult unmarried person or a family consisting of a sole surviving member shall be five standard acres, so however, the ceiling area shall not be less than six and more than seven and a half acres in extent. Sub-section (2) of Section 82 provides that for the purposes of Chapter III, all the lands owned or held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be owned or held by the family. In calculating the extent of land owned or held by a family or an adult unmarried person, Sub-section (3) of Section 82 provides for taking into account the share held by a member or members of the family or adult unmarried person jointly with other persons. Sub-section (4) of Section 82 provides for ignoring conversion of any class of land in Schedule II to any other class of land in that Schedule after the commencement of the Act. Explanation II to Section 82 provides that for the purposes of the said Section, an adult unmarried person shall included a divorced husband or divorced wife who has not remarried. (State of Kerala v. Puliyangattu Krishnan Master, ILR 2008-1 Ker 563) 
  • The exemption provision in Sec. 81 (Chapter III) cannot be brought-forth or read-into Sec. 72B (provision for assignment/purchase-certificate) in Chapter II.
  • Because,
    • The scheme of the KLR Act is not to confer ‘title’ on the planters in large area (KLR Act is, inter alia, to confer ‘title’ to cultivating tenants).
    • Proviso to Sec. 72B(1) shows – Sec. 72B(1) is an an independent provision. (It says as to assignment to a cultivating tenant within the ceiling limits.)
    • Sec. 72B(2) refers Section 82 (as to ceiling limit) as an independent provision – only to make clear the ‘limit’ or area; that is – “so far as may be, apply to the calculation of the ceiling area“.
    • When a provision (here, ceiling limit in Sec. 82) in Chapter III is referred in a section in another Chapter (here, Sec. 72B), to state the limit in area, it cannot be said – the colour or smell reflected on the first provision (here, Sec. 82), by virtue of another section (here, Sec. 81, the exemption provision) is reflected also on the latter section (here, Sec. 72B).
    • Note: No rider to Sec. 72B and 72C, by way of proviso or otherwise, exempting plantation.
  • Further:
    • Chapter II of the KLR Act (dealing with ‘Tenancy’) is exclusive and exhaustive as to ‘fixity’, and ‘vesting’ of land in Government.
    • It is not stated anywhere in the Act – the right and title of the (leased-plantation) land vested in Government under Sec. 72, will be divested in any manner (to the previous owner, or to the tenant or to anybody else), in any circumstance.
    • Sec. 72E provides for collection of ‘rent‘ from the holders of the plantation. It is for the reason that (ownership of) the land vests in Govt.
    • Proceedings initiated by Taluk Land Board under Chapter III (in respect of plantation) do not confer title.
  • 4. Government Need Not Pay ‘Land-Value‘, as such, if Acquired
    • For the above (plantation land vest in Govt.), the Government Need Not Pay ‘Land-Value‘, as such, to the tenant, or the former owner, if such Lands are Acquired.
  • 5. Tenant cannot ‘Sell’ Plantation Land as his absolute property
    • A tenant who got ‘fixity’ over such land cannot ‘sell’ this land as his absolute (ownership) property.

What is the legal right attached to former ‘tenants’ of Plantations, after vesting the land with Govt. under Sec. 72?

  • Though the tenant has fixity (Sec. 13), it is not Tenancy – For no landlord-tenant relation with the Govt.
  • Not Grant or Licence/Permission – For Grant as well as Licence/Permission arise from a contract (express or implied).
  • Therefore, it can termed only as a “Legal Right conferred by Statute“, the KLR Act.
  • What are the Stipulations attached to that “Legal Right”?
    • 2. Subject to the condition – not to “convert” it for any other use, other than the specific plantation (Sec. 87).
  • When Such a land is Required for Govt., Should it be Acquired?
    • The ownership being vested in Govt. it need not be ‘strictly’ “acquired”.
    • But no provision In Sec. 72 for ‘resuming’, if and when Govt. needs it.
  • Sec. 112 of the KLR Act
    • But, Sec. 112 of the KLR Act says as to ‘Apportionment of land value in cases of acquisition’.
    • Because of the “Legal Right conferred by Statute“ upon the former tenants of the plantation, they are entitled for certain compensation, when that land is required for the Govt..
    • In cases falling under Chapter II (pertaining to, tenants entitled for fixity, issuance of purchase certificate etc.) Section 72 deals with the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants; and says -the land will be free from encumbrances created by the land-owners and intermediaries.
    • However, insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment (within ceiling limit) subject to the payment of purchase price – as stated in Section 72D. (See: Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439.)
    • No ‘authority’ is also named in any law to fix the compensation to be given to the former tenants, when the Govt. requires it.
  • Therefore, it is said – Apportionment of land value in cases of ‘acquisition’.
    • Note:  It makes no difference (SUBSTANTIALLY, IN DETERMINING COMPENSATION) whether such a plantation land is “acquired” or not. Because, even if the land is not ‘acquired’, Govt. has to pay compensation for improvements to the former tenants (who holds the land by virtue of the “Legal Right conferred by Statute“, the KLR Act).

Who is the OWNER of Exempted (Leasehold/Granted) Govt. (Plantation) Lands ?

  • It is Govt. itself.
  • Chapter II pertaining to fixity, issuance of Purchase Certificate etc. do not apply to Government lands. Therefore the Provisions as to the Grant or Lease in the Grant-Deeds and that in the Lease-Deeds fully continues to apply.
  • Chapter III grants exemption from ceiling limit on Plantations in Government-lands also.
  • Therefore, it is clear that the OWNERSIP of Exempted (Leasehold) Plantation (Govt.) Lands continues with the Government (in spite of the exemption from ceiling limit on Plantations in Chapter III).
  • Further, the Government Grants Act, 1895 and Government Lands Grants Act, 1940 apply to Malabar and Cochin areas, respectively. These Acts made restrictions in the “grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever”.  By virtue of Section 2, Transfer of Property Act and Tenancy Acts did not to apply to lands given as grant by the Government.

Apportionment’s of land value in cases of Acquisition

Sec. 112 of the KLR Act reads –

  • “112. Apportionment’s of land value in cases of acquisition – (1) Where any land is acquired under the law for the time being in force providing for the compulsory acquisition of land for public purposes, the compensation awarded under such law in respect of the land acquired shall be apportioned among the landowner, intermediaries, cultivating tenant and the kudikidappukaran in the manner specified in this Section.
  • (2) The compensation for any building or other improvements shall be awarded to the person entitled to such building or other improvements.
  • (3) The kudikidappukaran shall be entitled to the value of the land occupied by his homestead or hut subject to a minimum of-
    • three cents in a city or major municipality; or
    • five cents in any other municipally; or
    • ten cents in a panchayat area or township.
  • (4) The difference between the value of three cents or five cents or ten cents, as the case may be, and the value of the extent of the land occupied by the homestead or hut shall, notwithstanding anything contained in the Kerala Land Acquisition Act, 1961, be borne by the Government or the local authority or the company or other person on whose behalf the land is acquired.
  • (5) The balance remaining after deducting the compensation referred to in Sub-section (2) and the value of the land occupied by the homestead or hut shall he apportioned among the landowner, the intermediaries and the cultivating tenant in proportion to the profits derivable by them from the land acquired immediately before such acquisition.
    • Explanation. – “Profits derivable from the land” shall be deemed to be equal to (i) in the case of a landowner, the rent which he was entitled to get from the tenant holding immediately under him; (ii) in the case of an intermediary, the difference between the rent which he was entitled to get from his tenant and the rent for which he was liable to his landlord; and (iii) in the case of a cultivating tenant, the difference between the net income and the rent payable by him; and the rent payable by the cultivating tenant and the intermediary for the purposes of this Explanation shall be as calculated under the provisions of this Act.
  • (5A) Notwithstanding anything contained in Sub-sections (2) and (5), where there the right, title and interest of the landowner and the intermediaries in respect of the land acquired have vested in the Government under Section 72, –
    • the compensation for any building or other improvements belonging to such landowner and intermediaries shall be awarded to the Government; and
    • the balance remaining after deducting the compensation referred to in clause (a) and the value of the land occupied by the homestead or hut, if any, shall be apportioned between the cultivating tenant and the Government in proportion to the profits derivable by them from the land.
  • Explanation. – “Profits derivable from the land” shall be deemed to be equal to-
    • in the case of the cultivating tenant, the difference between the net income immediately before the acquisition and the rent which he was liable to pay immediately before the date on which the right, title and interest of the landowner and the intermediaries have vested in the Government; and
    • in the case of the Government, such rent.
  • (7) In this Section, “homestead” includes a dwelling house occupied by a person who is deemed to be a kudikidappukaran under Explanation IIA to clause (25) of Section 2.”

Apportionment depends upon rights on the date of acquisition

  • Valia Raja v. Veeraraghava Iyer, 1961 Ker LT 103, it was held that the question of apportionment of compensation has to depend upon the rights of the parties on the date of the acquisition. Referrd to in: Varkey Thomas Vs. Annamma Abraham,  1969 Ker LT 903.

Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439

  • In Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439, the question as to ‘rival claims raised by the cultivating tenant and landlord for compensation on acquisition’ arose. The land was leased out by landlords. The lease-rights came in the cultivating tenants by transfer. The Government contended that the tenant was a cultivating tenant and the land vested upon the Govt. under Sec. 72 KLR Act. Hence tenant alone would be entitled to get compensation for the improvements to be determined under the Kerala Compensation for Tenants Improvements Act, 1958, in view of Section 20(1) of the KLR Act.
  • The landlords argued that the land was a plantation (over 30 acres) when it was (originally) leased, and therefore, they are entitled to claim exemption and benefits in the light of the exemption under clause (viii)  of Section 3 (1) of the KLR Act. Since there would be no fixity of tenure, it being a plantation, there would not be vesting of rights of the land owner in the Government. Hence, there should be the apportionment of the compensation between the lessor and the lessee and it should be decided in the acquisition proceedings.
  • The single Judge dismissed the writ petition, ‘leaving open the liberty of the lessee as well as the landlords, to approach the civil court seeking relief against the Government, and also to resolve the inter se dispute by and between the tenant and the landlords’.
  • The Division Bench, in appeal held that ‘land acquisition’ proceedings are to be initiated. It is pointed out that (even if it is a land vested in Govt.) there is no provision in Sec. 72 for ‘resuming’ if and when Govt. need it. The court also observed as under –
    • “31. On an analysis of the provisions of Section 72(1) of the Act, 1963, it is clear that when the Government notified the said provision with effect from 01.01.1970, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders karaimas) entitled to fixity of tenure under Section 13, and in respect of which certificates of purchase under sub-Section (2) of Section 59 have not been issued, vested in the Government.
    • 32. Therefore, it is clear from Section 72 that what is vested with the Government is the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants. It is nothing but a legal fiction by which the interest held by a cultivating tenant in a property of a landlord or intermediary is protected from 01.01.1970 .
    • 34. On a conjoint reading of Sections 72 and 72A, it can be seen that vesting of rights in the Government contained under Section 72 is the rights held by the landlord and the intermediary in respect of holdings held by the cultivating tenants. However, the same will not, in any manner, interfere with the rights enjoyed by a cultivating tenant in contemplation of the provisions of the Act, 1963.”
    • 42. Therefore, we have no doubt in our mind to hold that Section 72 of Act, 1963 would only deal with the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants free from encumbrances created by the land owners and intermediaries. However, the legal provisions discussed above would make it clear that insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment subject to the payment of purchase price in contemplation of Section 72D of the Act, 1963.
  • While considering the right of landlord, it is pointed out (basing on the principle, or scheme of the KLR Act**) that the landlord may have right for compensation under Section 72BB. The Division Bench said-
    • “36. So also, sub-Section (1) of Section 72BB dealing with ‘the right of landlord to apply for assignment and compensation’ specifies that any landowner or intermediary, whose right, title and interest in respect of any holding have vested in the Government, may apply to the Land Tribunal for the assignment of such right, title and interest to the cultivating tenant and for the payment of the compensation due to him under Section 72A.”
  • **Note: 1. If plantation-lease-(leasing a land when plantation existed)-above-30-acre-
    • Sec. 72, 72 BB etc. will not apply (such land being excluded from Chapter II, under Sec. 3(1)(viii), KLR Act).
  • 2. In case of a plantation-lease-above-30-Acre-
    • on termination of the lease period, the land lord can resume the land, on the basis of his title; for, the tenant will not have fixity in such case, the land being exempted from the benefits of Chapter II (as per Sec. 3(1)(viii) of the KLR Act).
  • 3. The landlords of such plantation will get the benefits (under Sec. 81) and protection from ceiling limit that is stipulated under the provisions of Sec. 82, 83 etc. (that is, there will be no ceiling limit).
  • 4. In such a case, the right of landlord may be on a higher level or footing than the tenant (to get compensation).
  • 5. It cannot be compared with a plantation that is put up by the tenant. The tenants of such plantation will-
    • get fixity under Sec. 13 (though they will not get Purchase Certificate)
    • get the benefits and protection (under Sec. 81) from ceiling limit that is stipulated under the provisions of Sec. 82, 83 etc. (that is, there will be no ceiling limit).
    • In such a case, the right for compensation, if any, of the landlord will be nil or negligible.
      • The Division Bench, inter alia, on the above observations directed ‘the State and its officials to take proceedings for the acquisition of the land’.

End Notes:

How to deal with Govt. property upon which title is claimed by plaintiffs dealt with in Union of India v. Ibrahim Uddin, : (2012) 8 SCC 148.

Facts, in a nutshell, were this –

  • Plaintiff Ibrahim Uddin filed the Suit for declaration that he was the owner of the suit property originally had been with the Maratha Government.
  • The ancestors of the plaintiff having close association with the Maratha Government, were made a grant in respect of the suit land in the year 1800.
  • The land was partitioned between the ancestors in 1819.
  • The Union of India claimed title over the suit land, thus the suit.
  • UoI averred that the land belonged to it, a part of which has been leased out to several persons for agriculture work and their lease has been renewed from time to time.
  • As they became unauthorised occupants, proceedings had been initiated in accordance with law and eviction order had been passed against the occupants/tenants.
  • The trial Court came to the conclusion that the plaintiff could not prove any kind of grant by the Maratha Government to his ancestors in 1800.
  • Plaintiff failed to prove the partition between his ancestors in 1819.
  • The lease deed alleged to have been executed in favour of the Military Estate Officer under the Union of India, was not successfully proved.
  • In view of the above, the suit was dismissed.
  • The first appeal before the District Judge, Agra.
  • In appeal, under Order XLI Rule 27 CPC the Will executed by his maternal grandfather dated 1.3.1929 in his favour bequeathing the suit property was marked.
  • The First Appeal was allowed on conclusion that Maratha Government had made the gift of land in favour of plaintiff’s forefathers which was subsequently partitioned.
  • The registered partition deed stood duly proved and it was the proof of the title of the plaintiff.
  • The appellant UoI did not produce any document to show its title and failed to produce the original record, thus, adverse inference was drawn under Section 114 clause(g) of the Indian Evidence Act, 1872.
  • The Second Appeal was dismissed. Hence, the appeal before the Supreme Court.

The Apex Court held –

  • It is not permissible to claim the relief of declaration without seeking consequential relief by virtue of the proviso of Section 34 of Specific Relief Act, 1963  (Relying on: Ram Saran v. Ganga Devi, AIR 1972 SC 2685, Vinay Krishna v. Keshav Chandra, AIR 1993 SC 957, Gian Kaur v. Raghubir Singh, (2011) 4 SCC 567).
  • There was nothing on record to show that Maratha Government had made a gift to the ancestors of the plaintiff.
  • A case not specifically pleaded can be considered by the court. The pleadings in substance contain the necessary averments to make out a particular case and issue has been framed on the point. In absence of pleadings, the court cannot make out a case not pleaded, suo motu (Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103 relied on). Hence the claim of title by virtue of the Will cannot be taken note of being not based on pleadings.
  • The Will had been executed prior to the birth of the plaintiff.  it could not have been taken into consideration without proper scrutiny of facts and, that too, without any pleading.
  • The rent note allegedly executed by the fore-fathers of the plaintiff. The said rent note does not provide any description of the property nor does it bear any date. The rent note does not provide any period at all. It could not be linked to prove the title.
  • UoI produced the certified copies of the Extract from General Land Register prepared on 15.3.1948 in support of its case and denying title of the plaintiff/respondent No.1.
  • The High Court rejected the same on the ground that the partition among the ancestors of the plaintiff had taken place prior to enactment of the Cantonment Land Administration Rules, 1925, though there is nothing on record to prove the said partition.
  • More so, the partition would not be a conclusive factor to determine the title of ownership.
  • The General Land Register maintained under the Cantonment Act, 1924 and the Rules made thereunder are public documents and the certified copies of the same are admissible in evidence in view of the provisions of Section 65 read with Section 74 of the Evidence Act.
  • It is settled legal position that the entries made in General Land Register maintained under Cantonment Land Administration Rules is conclusive evidence of title. (Vide: Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999 SC 2294; and Union of India & Ors. v. Kamla Verma, (2010) 13 SCC 511). The title of government cannot be disputed.

The Apex Court allowed the appeal and held –

  • There was nothing on record to prove the grant/gift by the Maratha Government in favour of ancestors of plaintiff/respondent No.1 in the year 1800.
  • The alleged partition in the year 1819 even if had taken place, cannot be a proof of title.
  • Presumption under Section 90 of the Evidence Act in respect of 30 years’ old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it.
  • If the Will was ignored, there was nothing on record to show as how the plaintiff  could claim the title. The truth of contents of a document have to be proved like any other fact.
  • The rent note did not prove anything.
  • The Will in absence of any pleading could not be taken on record. More so, the Will was not proved in accordance with law i.e. Section 68 of the Evidence Act.
  • The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored.
  • Though it may be a different case where in spite of specific pleadings, a particular issue is not framed and parties having full knowledge of the issue in controversy lead the evidence and the court records a finding on it.
  • The first appellate court as well as the High Court recorded a finding that the Union of India failed to prove its title over the suit land. The said courts did not realise that this was not the issue to be determined, rather the issue had been as to whether the plaintiff was the owner of the suit land.

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