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

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.

Saji Koduvath, Advocate, Kottayam.

1. Abstract

Chapter II

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 of lands belonging to or vested in the Govt,
- Leases of private forests,
- tenancies of plantations exceeding 30 acres, etc.

Chapter III

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.

Fixity of Tenants and Assignment of land to Tenants

Sec. 13 of the KLR Act, 1963 proclaims that every tenant shall have fixity of tenure in respect of his holding.
Sec. 72of 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 thereonif
- (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. Tenants who hold the plantation lands are entitled to fixity of tenure under Sec. 13.
2. As the tenants who hold the plantation land are cultivating tenants, such lands are vested in Government.
3. The plantation land, above ceiling limit [under Sec. 72B], cannot be assigned (by the Land Tribunal) to a tenant.

Therefore, the OWNER of the (exempted) Leasehold-Plantation-Lands in Kerala is the Government of Kerala.

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 Tenant is 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. Conclusion

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

It is Government itself. Because,

1. Plantation (lease) lands VEST in GOVT, automatically
- For the reason – Sec. 72 provides for mandatory and involuntary vesting of leasehold lands in Govt., if the conditions in Sec. 72 are satisfied; that is,
  - (i) held by cultivating tenants;
  - (ii) tenants thereof are entitled to fixity of tenure under Sec. 13.
2. Govt. is the Owner
- For the reasons –
  - Title is declared to be vested in Government (Sec. 72).
  - The plantation land cannot be assigned to the tenants for the area being above ceiling limit [Sec. 72B(2)]; and no purchase certificate can be issued.
  - Plantation land cannot be fragmented (Sec. 87 Explanation II).
  - Such 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 given).
- The exemption provision in Sec. 81 (Chapter III) cannot be brought-forth or read-into Sec. 72B.
- Because:
  - Sec. 82 (ceiling limit) itself is not applicable to plantation lands (as Sec. 81 exempts plantation from the provisions of Chapter III).
  - That is, Sec. 82 is an independent provision, not controlled by the exemption provision in Sec. 81.
  - When an independent provision in a Chapter is relied on (or read) in a section of another Chapter, it cannot be said – the colour, light or smell of the entire Chapter of the invitee section is reflected.
Further:
- Chapter II of the KLR Act is exclusive and exhaustive as to ‘fixity’ and ‘vesting’ of land in Government.
- Proviso to Sec. 72B(1) also show it is an an independent provision.
- 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).
- Sec. 72E provides for collection of ‘rent‘ from the holders of the plantation, for the reason that the land vests in Govt.
- In other words, under the KLR Act, the holders of such ‘Plantation-Lease-Lands’ are only ‘Tenants of Government’.
- Proceedings initiated by Taluk Land Board under Chapter III do not confer title.
- Therefore,
  1. The Government Need Not Pay ‘Land-Value‘, as such, if such Lands are Acquired.
  2. A tenant who got ‘fixity’ over such land cannot ‘sell’ this land as his absolute property.
  3. Purchase certificate cannot be given by the Land Tribunal for land beyond ceiling limit.

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

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