Law on Acquisition of Private (Leasehold) Plantation Land in Kerala

Government Need Not Pay ‘Land-Value‘, as such, if (Leasehold) Plantation Land Acquired.

Exemption does not Confer any vested Right or Ownership

Tenant cannot ‘Sell’ Plantation Land as his absolute property.

Saji Koduvath, Advocate, Kottayam.

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

It is the Government itself. Reasons:

  • 1. Plantation (lease) lands VEST in GOVT, under S. 72  automatically
  • 2.  ‘Vesting’ in Govt. is ‘Vesting of Ownership‘
    • Sec. 72 speaks about ‘Vesting of landlord s fights its Government’. It pertains to –
      • “all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants”.
  • 3. Tenant to Pay Rent to the Govt.
    • Sec. 72E directs – such a cultivating tenant is liable to pay ‘Rent ’ to the Government.
  • 4. Government Need Not Pay ‘Land-Value‘, as such, if Acquired
    • Sec. 112(5A) provides that the Government need not pay ‘Land-Value‘, as such, to the tenant, or the former owner, if such Lands are Acquired. (It is for the reason that such plantation-land vest in Govt.)
  • 5. Proviso to Article 31A(1) of the Constitution of India
  • Proviso to Article 31A(1) reads as under:
    • “Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.”

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.

‘Exemption’ in Chapter III Cannot be read into Sec. 72B(2)

  • The provision of law for giving Purchase-Certificate under Sec. 72B specifies that the provisions of Sec. 82 (as to ceiling limit) shall apply for the calculation of the ceiling area alone. Sec. 72B(2) 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)”
  • The exemption provision (that exempts plantation lands etc. from ceiling limit) in Sec. 81 (Chapter III) cannot be brought-forth or read-into Sec. 72B (provision for giving/assignment of purchase-certificate) in Chapter II.
  • Because,
    • Sec. 72B(1), in Chapter II shows – Sec. 72B(1) is an an independent provision (though the Proviso says –  no cultivating tenant shall be entitled to assignment of the right, title and interest … (more than) … the ceiling area, mentioned in Sec. 82 in Chapter III)
    • When a provision in a latter Chapter of an Act (here, Sec. 81 that deals with exemption to ceiling limit, in Chapter III) is referred to in a section in an independent provision in an earlier Chapter (here, Sec. 72B, as regards issuing purchase certificate, in Chapter II), for a limited purpose (here, to state the limit in area alone), it cannot be said – the colour or smell of the provision in the latter chapter (here, Sec. 81), will be reflected on the provision in the earlier chapter (here, Sec. 72B).
  • 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 legitimately 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.
    • Note: Proceedings initiated by Taluk Land Board under Chapter III (in respect of plantation) do not confer title.

Is there Fixity (Rights to Remain) for the ‘Plantation-Tenants‘

  • Sec. 3(1)(viii) of the KLR Act (in Chapter II – Provisions regarding tenancies), says as to Plantation exemption.
  • By virtue of this provision if the landlord leased a plantation-land (already a plantation leased) and the extent is above 30 years, it is exempted. There will be no fixity (and other protections) to such tenants. If the extent of such plantation land is below 30 years provisions of Chapter II (which says as to fixity and purchase certificate) apply.
  • Chapter III is relating to ceiling area. Section 81(1)(e) exempts plantation from ceiling restrictions.
  • Therefore, if the extent of property is more than 15 acres (ceiling limit) no purchase certificate can be issued. It is because,
    •   (i) by virtue of Sec. 72B & C (under which a cultivating tenant can obtain purchase certificate) the maximum extent is 15 acres, below the ceiling limit.
    •  (ii) under Sec. 13, fixity of tenure is given to the tenant (that is, he can continue)
    • (iii) as regards plantations above 7.5 or 15 acres, a tenant has fixity, but is not entitled to a purchase certificate.
  • Note: 1. Section 81(1) exempts Government lands from the provisions of Chapter III. The Proviso says that the following Government lands will not stand exempted. 
    • 1. Government-lease-lands
    • 2. Lands that fall under Section 13 (Fixity) and
    • 3. Lands that fall under Section 72 (Lease lands vest in Government).
  • 2. The effect of Chapter III on Government-lease-lands and on the lands that fall under Section 13 (Fixity) and 72 (vest in Government) is that the tenants (both Government’s tenants and the erstwhile Private landholders’ tenants) have to pay ‘rent‘ to the Government under Sec. 72F(h).
  • 3. Section 81(4) “permits” use of the land not exceeding 5% of the extent of such holding for floriculture, dairy farms, hotels, restaurants, etc.
  • 4. Under Sec. 112 (5A) of the KLR Act, on acquisition, the cultivating tenants are entitled to compensation for improvements (only) for the land vested in the Government under Sec. 72.
    Sec. 112 (5A)(a) says that the compensation for any building or other improvements belonging to the landowner shall be awarded to the Government; and clause (b) says that 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.

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

  • 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“, that is, the KLR Act.
  • What are the Stipulations attached to that “Legal Right conferred by Statute” to tenants (of Plantation land) having fixity?
    • 1. Liable to pay ‘Rent’ (under Sec.72E)
    • 2. Subject to the condition – not to “convert” it for any other use, other than the specific plantation (Sec. 87).
    • 3. From Sec. 112(5A)(b) it is clear that the tenant will be entitled (on acquisition of the land) for the compensation for his homestead or hut, if any, and the value of his improvements (alone).

Sec. 72A – Compensation to land owner for vesting under Sec. 72 in Govt. – No right remains with (erstwhile owner) thereafter.

It is 16 times fare rent for land plus (+) value of structures of land owner plus (+) half value of timber trees. Note: Same rate under Sec. 55 & 72D(2) Land above ceiling limit payment is only under Sec. 88 – on surrendering land. (It is paid by Govt.)

  • Sec. 72D – Cultivating tenant to pay purchase price (for getting assignment).
  • Sec. 72D(1A)- No purchase price is land below One Hect.
  • Sec. 72D(2)  – Purchase price to Govt. – 16 times fare rent for land plus (+) value of structures of land owner plus (+) half value of timber trees) Note: Same rate under Sec. 72A & 55

When Such a land (Vested In Govt. under S. 72) is Required for Govt., Should it be Acquired? Is the landowner Entitled for any Compensation? What is the Compensation Entitled to by the Tenant?

  • When Such a land (Vested In Govt. under S. 72) is Required for Govt., Should it be Acquired?
    • The ownership being vested in Govt. it need not be ‘strictly’ “acquired”. But no specific provision in Sec. 72 for ‘resuming’, if and when Govt. needs it. Sec. 112 (5A) of the KLR Act uses the term ‘acquisition’ itself (for the possessory rights remain with the tenant).
  • Is the landowner Entitled for any Compensation?
    • Sec. 112(5A) deals with the land acquired that has been vested in the Government under Section 72. From the sub section (5A) it is clear that the entire rights of the (former) landowner is vested with the Govt. and he cannot claim any right over the land (when it is acquired).
  • What is the Compensation Entitled to by the Tenant?
    • Sec. 112(5A)(a) says that the compensation for any building or other improvements belonged to such land owner and intermediaries shall be awarded (?) to the Government ; and
    • from Sec. 112(5A)(b) it is clear that the tenant will be entitled for the compensation for his homestead or hut, if any, and the value of his improvements (alone).

Apportionment of land value in cases of Acquisition

Sec. 112 of the KLR Act reads –

  • “112. Apportionment 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, –
  • (a) the compensation for any building or other improvements belonging to such land owner and intermediaries shall be awarded to the Government ; and
  • (b) 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.”

Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-4 Ker LT 121

In Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-4 Ker LT 121, 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 is 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. needed 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, especially pointing out Section 72BB) that the landlord may have right for compensation.

Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-4 Ker LT 121 Not Correctly Decided

It is held as under:

  • “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.“

In this decision the Division Bench failed to note –

  • The right, title and interest of the land (above ceiling limit) ‘vest’ with the Government under Sec. 72. It is absolute. It is not a ‘fiction‘; but, it is real and actual (as seen from Sec. 72E and Sec. 112(5A).
  •  The nature of this statutory ‘vesting in Govt’ (under Sec. 72) is further clear from – Sec. 72E (tenant has to pay rent for the unassigned land – that is, no purchase certificate is given) .
  • Sec. 112(5A) deals with unassigned land (that is, no purchase certificate is given). Under this sub section land-value need not be given (even) to the land-owner or the tenant (tenant has no right above that of land owner in this regard) over and above the “value of the land occupied by the homestead or hut” – that is, the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
  • This provision is applied to lease-lands vested in Govt. under Sec. 72 and no purchase certificate is given (to the tenant)., in case of acquisition).
  • Sec. 72B(2) KLR Act spells-out that a cultivating tenant will get Purchase Certificate for the extent below the ‘ceiling limit’ alone. That is, the tenant has no “absolute rights” above the ceiling limit.
  • Plantation-lands, usually, involve Hundreds or Thousands of Acres of “excess” land. The assignment-possible-land (within ceiling limit) may be miniscule (7.5 acres or 15 acres). Therefore, the analogy drawn by the Bench (tenant has a right seek assignment) is not apt at all.
  • When land vested in Govt. under Sec. 72 is acquired, in the light of Sec. 112(5A) land-value need not be given to the land-owner or the tenant, over and above the “value of the land occupied by the homestead or hut” – that is, the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
  • The aforesaid provision of law in the KLR Act is legislated following Proviso to Article 31A(1) of the Constitution which says that the State need not pay compensation to the land owners (when land is acquired) above the ‘ceiling limit‘.
  • The rights of ‘tenants’ of Plantations, to continue in the land till the plantation exists, after vesting the land with Govt., is a ‘Legal Right conferred by Statute’. It is not Tenancy – for no landlord-tenant relation with the Govt. It is not a Grant or Licence/Permission – for such rights arise from a contract (express or implied). Therefore, it can be termed only as a “Legal Right conferred by Statute“, the KLR Act.
  • It goes without saying – If no compensation is payable to the land-owners above the ceiling limit, it need not be given to tenants.
  • It is most unjustifiable to confer undue rights or benefits to the plantation-tenants (majority are BIG Companies) which had not been given to Maharaja of Travancore (whose 191 acres of lands in Thiruvananthapuram – above the ceiling limit, 15 acres – in the City was ‘mercilessly’ taken under the Orders of the Land Board Trivandrum, No. LB(B)2-18919/70, dated 15.01.1972). It is a sheer fact that lands of thousands of middleclass property owners was also harshly taken by under the provisions of the Act. (Note: Only limited right to continue the specified plantation-crop alone is given by the ‘exemption’; and, according to law, in case the land is ‘converted’, the exemption-benefit would be lost.)

No Land value to be given for the “excess” land (Beyond Ceiling Limit)

From the following words in Sect. 112, it is beyond doubt that no Land value to be given for the “excess” land (Beyond Ceiling Limit).

  • “building or other improvements“
  • “land occupied by the homestead or hut”
  • “any building or other improvements“.

It is true, “exemption” is given to plantation, to hold land over and above ceiling limit. It is only a statutory permission to continue, subject to conditions. It will be lost when it is “fragmented” or the crop is abandoned. As stated elsewhere, it is also most unjustifiable to confer undue rights or benefits to the plantation owners or tenants (majority are BIG Companies) which had not been given to thousands of middleclass property owners whose property had been harshly sized or expropriated under the provisions of the KLR Act.

Effect of Travancore Govt. Leases after Royal Pattom Proclamations of 1040 and 1061

Now a question arises: What is the impact of ‘Government Land Leases’ (with strict conditions) after 1061 (1886)? Do such leased lands qualify as “estate” under Article 31A of the Constitution?

The legitimate answer is that the lands leased out after 1061 (1886) do not inherit the rights granted by the Pattom Proclamations of 1040 and 1061. If we look at it differently it would mean, or tantamount to say, that the Government cannot ‘lease’ lands after the Proclamations (for, by virtue of the Proclamations it would lose the lease-character at the moment it is made).

In Rev. Fr. Victor Fernandez v. Albert Fernandez (five Judge Bench), 1971 Ker LT 1, AIR 1971 Ker 168 (Per PT Raman Nayar, CJ, T Krishnamoorthy Iyer, P Unnikrishna Kurup, JJ.), concluded that the land covered by the Royal Proclamations of 1040 and 1061 were “estates” falling under Art. 31A of the Constitution. It was on the finding that the Proclamation “secured permanency of tenure”, and “proprietary interest” in the soil. It was observed as under:

  • “7. It is impossible to accept the contention advanced on behalf of the plaintiff in this case that,even after the Proclamation of 1040, the holders of these lands had no proprietary interest whatsoever in the soil and remained tenants in the strict sense of that term, with only the right of enjoyment, the only difference being that they secured permanency of tenure, the Government still remaining the full and absolute proprietor of the soil.”

Therefore, there is a clear difference between leases made before and after the Proclamations, and the rights conferred by the Proclamations do not apply to leases made after them.

CAN AN EXEMPTED PLANTATION LAND BE SOLD AS AN ABSOLUTE PRIVATE PROPERTY?Exemption does not Confer any vested Right or Ownership

No.

  • Sec. 82 deals with ceiling area. Sec. 83 mandates surrender of excess land. Sec. 85 directs that excess land shall be surrendered to government (accepting the compensation fixed under Sec. 88).
  • But it is not made applicable to the plantations.
  • Nevertheless, Sec. 87 mandates that the protection of plantation is available only so long as the plantation subsists.
  • Therefore, if no plantation, plantation lands would also have been treated in the same way – as any other excess land that had been (forcibly) got surrendered by virtue of the KLR Act. The law has given only a sanction to the planters to continue because of the existence of the plantation. Therefore ‘exemption’ does not confer a vested right or ownership.

ACQUISITION OF PLANTATION-LANDS OWNED BY PRIVATE PERSONS

1. Proviso to Article 31A(1) of the Constitution of India

It is plain – No compensation is payable to the land-owners, for the lands ‘above the ceiling limit’, according to the Constitution of India. If any authority gives it, it will be sheer unscrupulous act.

  • The provisions of the KLR Act as regards ‘vesting’, ‘excess land’ etc. are legislated predicating upon Proviso to Article 31A(1) of the Constitution which states that the State need not pay compensation to the former land owners (when land is acquired) above the ‘ceiling limit‘.
  • Proviso to Article 31A(1) of the Constitution of India reads as under:
    • “Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limitapplicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.”.

2. Exemption of ‘Plantation’ Does Not Cover Exemption of ‘Plantation LAND’

It is for the following reasons –

  • 1. The exemption is to the ‘plantation’, and not to the ‘LAND‘.
  • 2. Exemption is conditional – for it exists (only) as long as the plantation exists or continues;
  • Because,
    • (a) S. 2(44) defines ‘plantation’ as land used principally for the cultivation of a specific ‘plantation crop‘ like tea, coffee, cocoa, rubber etc.
    • (b) Section 87, Explanation II states that if a plantation for which exemption is given on recognition of a specific ‘plantation-crop’ is converted into any other ‘plantation-crop’ or the plantation activity is not continued, the exemption may be lost; and the land will be taken for considering the ceiling limit.

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.

Also Read: Plantation-Tenants Not Approached The Land Tribunal are Ineligible for Plantation-Exemption-Orders from the Land Board

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.”

Purport of Sec. 87 and the Explanations in S.87(1)

Section 87 reflects the legislative intention in protecting plantations. The protection is on economic grounds. That is, certain crops and cultivations that made the land of Kerala renowned from ancient times were to be protected. Section 87 and the Explanations are to be read and interpreted in the light of their intentions. The Kerala High Court aptly appreciated these provisions in this background in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985.

In State Human Rights Protection Centre, Thrissur v. State of Kerala, 2009(3)KLJ 110, it is held as under:

  • “19.There is no restriction on alienation of lands exempted under Section 81 (1)(a) of the Land Reforms Act ,since such lands are exempted from the operation of Chapter III of the Kerala Land Reforms Act dealing with ceiling on holding. It is not the excess land that is alienated but the exempted land………”

It was further held in para 21-  

  • ”……Any exemption from ceiling provision under the Kerala Land Reforms Act has a purpose and the purpose in the present case is public interest and that public interest is the use of land for industrial purpose. Since under the Kerala Land Reforms Act there is no restriction on alienation of the exempted category of lands and since the transferee is subjected to the acid test of eligibility and entitlement for exemption in terms of use of the land, the transfer made by the HMT will also be subjected to the same test, namely use of the transferred land for industrial purpose. In other words, HMT is legally entitled to transfer 100 acres of land notified under Ext.R1(i) notification, but the transferee will have to use that land for industrial purpose and that purpose only. Therefore, the transfer is not vitiated in any way; but the transferee will have to use the land only for industrial purpose. That is a covenant on the land.” (Quoted in: One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985)

In Everest Stone Crusher and Granites v. District Collector, District Collectorate, Kannur, 2020-6 KHC 289, it is held as under:

  • “Therefore, Ext.P13 prohibitory order issued by the 1st respondent District Collector, during the pendency of suo motu proceedings under Section 87 of the Act, cannot be said to be one issued without reasonable grounds to believe that any document relating to transfer of land of the land owned by the petitioner, which may be presented before the 3rd respondent registering officer, is intended to defeat the provisions of the said Act. The said order warrants no interference in this writ petition, invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India.”

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End Notes

Relevant provisions of KLR Act, in a Nutshell

Section Provisions in a Nutshell
Chap. II 
3(1)		Exemptions – (i) Nothing in this Chapter shall apply to – (viii) Tenancies of plantations exceeding 30 acres.
“Provided that the provisions of this chapter, other than sections 53 to 72S, shall apply to tenancies in respect of agricultural lands which are treated as plantations under sub clause (c) of clause (44) of Section 2”.
7 EPersons acquired lands (before 2005 amendment in KLR Act) for consideration below 1 Ha. 61 Are 87 Sq.m. (4 acre) will be deemed to be tenants .
13Fixity: “Every tenant, shall have fixity of tenure in respect of his holding.”
22Landlord desiring to resume any land shall apply to the Land Tribunal.
31Fair rent determined by Land Tribunal.
51B. Landlord not to enter on land surrendered or abandoned by the tenant. 
Contravention is made punishable.
54(1)
55
57
57 (3)
57 (6)
61		54(1). A cultivating tenant (to purchase the right) has to apply Land Tribunal.
55. Purchase price is fixed by LT (on fair rent u/s. 31) to be paid u/s. 59
57. The LT after enquiries, pass orders determining purchase price.
(3). The Land Tribunal allows the purchase of the land it determines.
(6). The Land Tribunal forwards  orders to the Land Board.
61. Tenant to pay rent (under orders of LT) pending proceedings.
59When Sec. 54 application is allowed (by the LT), the purchase price (determined u/s. 57 by the LT) shall be deposited with the Land Tribunal to the credit of the Land Board and issue of certificate – to cultivating tenant.
72
Sec. 72 provides for automatic vesting of lease-properties held by cultivating tenants in Govt.  ILR 2010(2) Ker. 845. 
72(1) says: Holdings upon which tenanat entilted fixity under sec. 13 vest in govt.
72BCultivating-tenant “shall be entitled to assignment” of land vested in Govt. under Sec. 72 –within ceiling area and get purchase certificate (through LT) (2 years from 1-1-1970). Effect of non-filing (See Balanoor Plantations case. 2018(3) KLT 283.)
72DThe cultivating tenant has to pay the purchase price to the Government on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.)
72ESuch a tenant is liable to pay rent to the Govt. for the unassigned land – under Purchase Certificate (E.g., exempted-plantation-land). The Land Tribunal fixes the rent under Sec. 72F(5)(h).
72CProvides for suo moto action by LT. (No time limit). Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See  S.72C also). 
72KLT shall issue purchase certificate.  It shall be conclusive proof of assignment.
74Prohibition of future tenancies.
Chap. III 
81		Exemption from ceiling and excess for Govt. lands, private forests, plantations, industrial or commercial undertakings, etc.
Proviso – There will be an exemption (as plantation, land given to educational institution, trust, etc.) on Government lands, given under grant, lease, etc.
See: HMT (Machine Tools) Limited v. Taluk Land Board, 2009 (3) KLJ 110; MT Joseph v.  State of Kerala, AIR 1974 Ker 28.
82Ceiling area – 5/10 standard acres.
83No person can hold or possess excess of ceiling area. (Holding is by tenant.)  It is a total bar. (Note:  plantations, industrial area etc. are exempted.)
Apply to tenant also. 1980 KLT 259 (Gopalan Nair Vs. State), 1976 KLT 306  (Thomas Mariamma Vs. TLB), Raghunath Laxman Wani v. The State of Maharashtra (AIR 1971 SC 2137)
The policy of the Act – no person –“be permitted to hold any land in excess of the ceiling area.” Raghunath Laxman Wani v. State of Maharashtra, 1971-3 SCC 391, Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tatbed, 1982-1 SCC 680, State of U.P v. Civil Judge, Nainital, AIR 1987 SC 16, State Vs. Puliyangattu, 2008(1) KLJ 571.
84Certain transfers – void.
85(1)Surrender excess.
85(2)Owners and Tenants (having land in excess of the ceiling area) should furnish ceiling return to Land Board before March31, 1971, before the Land Board (including lands exempted under S. 81).
Note: Effect of non-filing: See – Balanoor Plantations case – 2018(3) KLT 283.State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009.
 According to S. 3(1) (viii), “tenancies of plantations exceeding 30 acres” is exempted from Chapter II. Therefore, the landlord can recover such plantation lands after the period of tenancy. Such landlords also had to file a ceiling return within the time stipulated.
85(3)Excess shall be surrendered.
Note: Tenant must have approached the LT (with respect to each plantation, if he has more plantations) (He cannot declare himself a tenant) It is clear from the following provisions: 54(1) – A cultivating tenant has to apply to LT (or the purchase of right, title and interest.)
55 – Purchase price and fair rent fixed by LT
57 – LT after giving notice and enquiries, pass orders (on the application for the purchase of right, title and interest).
57(3) – LT allots the purchase land it determines.
57(6) – The Land Tribunal forwards a copy of orders to the Land Board. 61 – Cultivating tenant to pay rent (under orders of LT) 59 – The purchase price shall be deposited with the LT (to the credit of the Land Board) and issue of certificate – to cultivating tenant.
It is the principle applied in the Balanoor case. Note: (i) The sub-section (3) itself says as to the settlement of claims for resumption and purchase of the right, title, and interest of the landowner by the cultivating tenant, (ii) LT is the only authority to determine tenancy (Land Board cannot determine it), and (iii) it is clear that even if it is a plantation-exemption-land (beyond ceiling limit), the tenant has to file petition under Section 54 – for fixing Purchase price and fair rent fixed by LT and for allotting the land under section 57(3) and for effecting the payments of ‘rent’ and ‘purchase price’(to the credit of the Land Board)  under sec. 61 and 59.
85(3A)The person bound to file a statement under sub-section (2) (that is, Owners and Tenants – having land in excess of the ceiling area)  shall, within a period of three months from the date of final settlement or purchase, file a statement before the Land Board, and the provisions of the said Sub-section shall, as far as may he, apply in regard to the particulars to be contained in such statement, the calculation of the excess land and for the procedure for the surrender of the same.
85(5)On receipt of the statement under Sub-section (2) or Sub-section (3A), the Land Board shall transfer the statement to such Taluk Land Board and such Taluk LandBoard shall determine the extent and identity of the land to be surrendered.
85(7)Whereon a person fails to file statement under 85(2) or (3A), LB shall intimate that fact to TLB  –  TLB shall determine land to be surrendered. It is obvious – The LB can intimate TLB as to non-filing, on the basis of the records it obtained under Sec. 57(6) and 59. That is, those tenants who are not entitled to get a purchase certificate also has to file an application under Sec. 54(1) and 85(2) or (3A). Effect of non-filing: See – Balanur Plantations case (With respect to Sec. 72B application) – 2018(3) KLT 283. Statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit to file statement:  State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009.
[TLB not to do, suo motu, without direction from LB. 1980 KLT 120, referred to in 2019(1) KLT 985.]
85AFile ceiling return within March  2, 1973 before Land Board..
86(1)On determination of the extent to be surrendered under S. 85- Excess vests in Govt. and Taluk Land Board shall issue an order accordingly.
86(3)Where any person fails to surrender as demanded, the TLB may order an officer to take possession
86(4)Where any land, vests in the Govt, under s. 86(1) (including that of cultivating tenant) the ownership of such land shall vest in the Govt.
86(6)Nothing applies to property of Govt. under KLC Act.
87
Exp. II		If a person converts any portion of exempted land for any other class, that converted extent will be added to his account in determining his ceiling limit. That is, the exemption will be lost for the portion that exceeds the ceiling limit. (Mathew K Jacob v. District Environmental Impact Assessment Authority, 2018-4 KLT 913)

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