Glen Leven Estate v. State of Kerala: Not Correctly Decided?

Saji Koduvath, Advocate, Kottayam.

1. Introspection

It is held in Glen Leven Estate (P) Ltd. v. State of Kerala–
            •➧The “vesting” in Government under Sec. 72, KLR Act, is a “legal fiction”.
            •➧The cultivating tenant has an “absolute right” to seek assignment. 

The Division Bench failed to consider –
            •➧1. Sec. 72. It reads: “… the right, title and interest of the landowner and all other persons… shall cease, and the land shall vest in the Government, free from all encumbrances…” The right, title and interest of the lease-land (above ceiling limit) ‘vests’ with the Government under Sec. 72. It is absolute.
The cultivating tenant has an “absolute right” to seek assignment only within the ceiling limit.
Hence, the “vesting” in Government under Sec. 72, KLR Act (over and above the ceiling limit) is not a ‘fiction‘. It is real and actual. It is final and irrevocable. It is not theoretical or symbolic.

           •➧2. Sec. 72B(2). It spells out that a cultivating tenant will get a Purchase Certificate for the extent below the ‘ceiling limit’ alone. Lease-lands above the ceiling limit definitely ‘vests’ with the Government under Sec. 72.

            •➧3. Sec. 72E. A tenant (under Government) is liable to pay rent to the Government for the unassigned land – under a Purchase Certificate (E.g., exempted-plantation-land). The Land Tribunal fixes the rent under Sec. 72F(5)(h). Therefore, the “vesting” in Government under Sec. 72, KLR Act, is not a “legal fiction”.

           •➧4. Sec. 81(4): “permits” use of the land not exceeding 5% of the extent of such holding for floriculture, dairy farms, hotels, restaurants, etc.

            •➧5. Sec. 112 (5A): 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.
 
            •➧6. Proviso to Article 31A(1) of the Constitution says that the State need not pay compensation to the land owners (when land is acquired) above the‘ceiling limit‘. (The provisions of the KLR Act, in this regard, are legislated following this proviso)
            •➧It goes without saying – If no compensation is payable to the land-owners above the ceiling limit, it need not be given to tenants.

From the above, the land allowed to be held by the tenant under Sec. 72 can be termed as a “Legal Right conferred by Statute“, the KLR Act.

Benevolence to Planters is Illogical and Unjustifiable
            •➧ Under Sec. 72A and Sec. 88, meagre compensation is paid to the land owner on vesting landlords’ rights in the Govt. and on surrendering land. It is most unjustifiable to confer undue rights or benefits on the plantation-tenants when (or if) their lease-lands are acquired  (the majority of such lessees are BIG Companies). It is apposite to remember that the lands of the Maharaja of Travancore (191 acres of land in Thiruvananthapuram – above the ceiling limit, 15 acres – in the City) were ‘mercilessly’ taken under the Orders of the Land Board Trivandrum under No. LB(B)2-18919/70, dated 15.01.1972. It is a sheer fact that the lands of thousands of middle-class property owners were also harshly taken under the provisions of the Act.
(Note: Only a 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.)

Sec. 72, KLR Act – ‘Vesting of Ownership’ in Govt.

Sec. 72 reads:

  • “… the right, title and interest of the landowner and all other persons… shall cease, and the land shall vest in the Government, free from all encumbrances…”

Sec. 72 of the Kerala Land Reforms Act speaks about ‘Vesting of landlord’s rights in Government’.

It pertains to –

  • “all right, title and interest of the landowners and intermediaries … and in respect of which certificates of purchase … have not been issued”.

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”

Vesting in Govt. ‘Fictional’ as regards Land within Ceiling Limit; for it is to be Transferred to Tenant. But, the vesting in Govt. is real, as regards lands above ceiling limit.

Reasons:

  • (i). Lease lands Statutorily VEST in GOVT, under S. 72.
    • Sec. 72 of the Kerala Land Reforms Act, 1963, provides for absolutevesting (of lease-land) in Government.
    • It is vesting of all right, title and interest. Sec. 72 reads: “… the right, title and interest of the landowner and all other persons… shall cease, and the land shall vest in the Government, free from all encumbrances…”
    • There cannot be any further right or interest in anybody (Aru v. Nakkunni, 1987 -1 KLT 177).
  • (ii). Tenant has no “absolute rights”
  • (a) 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.
    • Tenants of leasehold-exempted-plantation lands (above ceiling-limit) are entitled only to ‘fixity of tenure’ (that is, right to continue as tenant) by virtue of Sec. 13, Chapter II (and they are not entitled for Purchase Certificate, over and above ‘ceiling limit’).
    • Plantation-lands, usually, involve Hundreds or Thousands of Acres of “excess” land (above ceiling limit). The assignment-possible-land (within ceiling limit) may be miniscule (7.5 acres or 15 acres).
    • Note: 1. ‘Tenure’ is derived from the Latin term, “tenere“; means “to hold” or “to keep”.
    • 2. The holding of plantation land on the basis of ‘exemption’ provision under Sec. 81, is only a “right” conferred by the law just like the ‘right’ of easement – which does not bestow any ‘interest’ in the land.
  • (b) Tenant to Pay Rent to the Govt.: Sec. 72E directs – such a cultivating tenant is liable to pay ‘Rent’ to the Government (obviously over and above ‘ceiling limit’, if purchase certificate has been obtained for the same).
  • (c) Sec. 72F(5)(h) authorises the Land Tribunal to fix the rent.
  • (d) 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 land owner, if such Lands (above ceiling limit) are Acquired. (It is for the reason that ownership of such plantation-land vest in Govt., absolutely.)
  • (e) Proviso to Article 31A(1) of the Constitution of India
    • 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‘.
    • It goes without saying – If no compensation is payable to the land-owners above the ceiling limit, it need not be given to tenants.
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 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.”

iii. Tenant or Former Owner cannot ‘Sell’ Plantation Land (above ceiling limit) as his Absolute Property

  • An owner, or a tenant who got ‘fixity’ over such land, cannot ‘sell’ this land as his absolute (ownership) property.

iv. ‘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).
    • Note: That is why it is specifically stated in Sec. 72B and in all places wherever Purchase Certificate is mentioned in Chapter II that the extent of land in Purchase Certificate should be limited to the ‘ceiling area’.
  • 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 in Sec. 81 (Chapter III), which excludes plantation lands from the ceiling limit, cannot be brought-forth or read-into Sec. 72B (provision for assignment of purchase-certificate) in Chapter II.
  • Because,
    • Sec. 72B(1), in Chapter II denotes – Sec. 72B(1) is an independent provision (that is why the Proviso says –  no cultivating tenant shall be entitled to assignment of the right, title and interest … (exceeding) … the ceiling limit, mentioned in Sec. 82 in Chapter III).
    • When a provision in a latter Chapter of an Act (here, Sec. 82 that deals with extent of ceiling limit, in Chapter III) is referred to in an independent provision in an earlier Chapter (here, Sec. 72B, as regards issuing purchase certificate, in Chapter II), for a specific purpose (here, to state the limit in area alone), it cannot be said – the attributed colour or smell of the provision in the latter chapter would stand reflected on the earlier provision (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, title and interest of the (leased-plantation) land legitimately vested in Government under Sec. 72, will be divested in any manner (in favour of the previous owner, or of the tenant or anybody else), in any circumstance.
    • Sec. 72E provides for collection of ‘rent‘ from the holders of the plantation (for the unassigned land(e.g. exempted plantation land) vested in Government under Sec. 72); and Sec. 72F(5) authorises the Land Tribunal to fix the rent. (It goes without saying saying that it is for the reason that the ownership of the land vests in Govt.)
    • Section 81(4) “permits” use of the land not exceeding 5% of the extent of such holding for floriculture, dairy farms, hotels, restaurants, etc.
    • Note: Proceedings initiated by Taluk Land Board under Chapter III (in respect of plantation) do not divest title vested in Govt.

v. In State of Kerala v. Gwalior Rayon Silk, AIR 1973 SC 2734, while considering similar [Kerala Private Forests (Vesting and Assignment) Act 26 of 1971] “vesting”, similar to that in the KLR Act, it was observed as under:

  • “Section 3 of the impugned Act vests the ownership and possession of all private forests in the State.”
  • “As to its constitutionality we have shown that the Act purports to vest the janmam rights to the forests in the Government as a step in the implementation of agrarian reform.”
    • Note: Section 3 Kerala Private Forests (Vesting and Assignment) Act, 1971 reads as under:
    • “3. Private forests to vest in Government
    • (1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub- sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall, by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any, private forest shall stand extinguished. …”

vi. Section 82 KLR Act – Bar on Civil Courts & Finality of Vesting

  • Section 82 of the KLR Act bars civil courts from questioning orders made under Chapter III.

This includes the finality of orders determining excess land and vesting.

What is the legal right attached to former ‘plantation-tenants’, 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 Conditions attached to that “Legal Right conferred by Statute” to tenants (of Plantation land) having fixity?

  • 1. Liable to pay ‘Rent’ (under Sec. 72E) for the unassigned land(e.g. exempted plantation land) vested in Government under Sec. 72.
  • 2. Subject to the condition – not to “convert” it for any other use, other than the specific plantation (Sec. 87).
  • 3. If no purchase certificate is given to the tenant, from Sec. 112(5A)(b) it is clear that the tenant will be entitled (on acquisition of the land) for the compensation for the actual area where his homestead or hut, if any, is situated (whatever may be the area of land outside it).

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.”

Acquisition of land Vested In Govt. under S. 72

  • When Such a land (Vested In Govt. under S. 72) is Required for Govt. (Public Purpose), it need not 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 (obviously for the possessory rights remain with the tenant).
  • No Compensation to the landowner
    • Sec. 112(5A) deals with the land acquired that has been vested in the Government under Section 72. If no purchase certificate is given to the tenant, 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 any fixed portion of 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
    • If no purchase certificate is given to the tenant, from Sec. 112(5A)(b) it is clear that the tenant will be entitled for the compensation for the land where his homestead or hut, if any, is situated (whatever may be the area of land outside it).

8. 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,*fn* 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.”
  • *fn* 1. “Value of the land occupied by the homestead or hut” says as to the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
  • 2. This provision is applied to lease-lands vested in Govt. under Sec. 72 and no purchase certificate is given (to the tenant).

Sec. 72A – Compensation to land owner; No right remains with him 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 to be paid if extent of land is land below One Hectare.
  • Sec. 72D(2)  – Purchase price to Govt. by Cultivating Tenant – 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

Surrendering SURPLUS LAND: Land Owners’s Right for Compensation

Relevant provisions are Sec. 82, 83, 85 & 88 of the KLR Act.

  • Sec. 82 – Ceiling area is fixed (for an adult unmarried person – 5 standard acres; family of 2 or more persons – 10 standard acres; more than 5 persons – 10 standard acres increased by one standard acre for each member).
    Sec. 83 – No person to own or hold land in excess of ceiling area.
    Sec. 85(1): Surrender excess lands. 
    Sec. 85 (2) File a Statement before the Land Board including lands exempted under Sec. 81 indicating the land proposed to be surrendered.
    Sec. 85 (3) Special duty on tenant – Final settlement of claims under Sec. 72(4). (Right, title and interest of the land owner vest in Govt.  But claims for resumption can be filed within six months.)   After purchasing the land under Sec. 72B or 72C (by the cultivating tenant), excess with the tenant shall be surrendered. 

Sec. 88 – Persons surrendering land entitled compensation. 

No right remains with (erstwhile owner) thereafter.

  • Compensation is calculated at the rates specified in Schedule IV. Note: Maximum compensation is Rs. 2 Lakh.

Implied Declaration as “Excess Land” When Land Board Fixes Exempted Plantation-Land

  • When Land Board fixes land as exempted plantation-land, there is an implied declaration as regards “excess land”; and implied “liability to surrender” (by land holder to Govt.) if plantation is not continued or there is fragmentation.
    Similarly, if it is a lease-land there is implied finding on “vesting” under Sec. 72.

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

As stated above, under Sec. 112(5A) the claimants will not be entitled (on acquisition of the land) for the compensation for the entire area he possessed. It is limited to the following –

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

Only Statutory Permission or Right

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.

Vesting in  Government u/s. 72 is independent of issuance of Purchase Certificate

The rights of the landlord would vest in the Government, under Sec. 72 KLR Act. A tenant is free to apply for and obtain Purchase Certificate within the Ceiling Limit under Sect. 59(2) and 72B or 72C from such property. Vesting of lease property in Government under Sec. 72 is independent of issuance of Purchase Certificate.

In Perumal Smaraka Nidhi v. Harrisons Malayalam Limited (RFA No. 336/2011; dt. 31 Jan, 2010, K.M. Joseph, J.) held-

  • The rights of the landlord would vest in the Government, under Sec. 72 KLR Act.
  •  Sec. 72 would appear to contemplate vesting when there is no certificate of purchase issued under Sec. 59 (2).
  • If no certificate of purchase has been issued under sub Sec. (2) of Sect. 59 (irrespective of whether the tenants have applied), under Section 72, there will be vesting, if other conditions are satisfied.

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

Following were the basic factual situation in Glen Leven Estate (P) Ltd. v. State of Kerala (supra)  –

  • The land was leased out by landlords.
  • The lease-rights came in the cultivating tenants by transfer.

Following were the rival claims raised by the parties.

1. Contention of the Govt.

  • The tenant was a cultivating tenant. The land (absolutely) vested in the Govt. under Sec. 72 KLR Act.
    • Hence, tenant would be entitled to get compensation for the improvements (alone) to be determined under the Kerala Compensation for Tenants Improvements Act, 1958, in view of Section 20(1) of the KLR Act.

2. Contention of the Tenants

  • A cultivating tenant has absolute right to seek assignment (subject to the payment of purchase price in contemplation of Sec. 72D). Therefore, vesting of rights in the Government under Sec. 72 is a legal fiction.

3. Claim of Land Owners

  • In view of Sec. 3(i)(viii), if the extent of the plantation is above 30 acres, and if the land was a plantation (put up by the land owner) when it was leased, the tenant will not be entitled for ‘fixity’; and the land will return to the land owner after the lease-period. Therefore, the land owners in one Writ Appeal claimed that the land involved therein was such a land entitled to by them (after the lease period).
  • Land owners also claimed that Sec. 72BB(1) gives them a right (i) to apply for assignment to the tenant and (ii) for the payment of the compensation due to him under Section 72A (as regards the property within ceiling limit).

4. The Division Bench Finding on Vesting Under Sec. 72

  • The contention of the Govt. that the land was (absolutely) vested upon it was rejected and held –
    • 1. the vesting in Govt. ‘is a legal fiction‘.
    • 2. cultivating tenant ‘has an absolute right to seek assignment‘ subject to the payment of purchase price.

5. The Division Bench 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.”
  • “41. On an indepth analysis of the aforesaid provision, we find that when Section 72 came into force on 01.01.1970, the cultivating tenant is entitled for the assignment of the land for possession, subject to the liabilities fixed under Section 72 of the Act, 1963 to pay the purchase price. As per Section 72C, if no application is filed by the cultivating tenant, the Land Tribunal shall subject to the Rules made by the Government ensure that the assignment is granted to the cultivating tenant, assigning such title and interest to the cultivating tenant entitled thereto, which rights, title and interest are vested with the Government by virtue of the legal fiction created under Section 72 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.”

6. The following logic put forwarded by the Bench is inappropriate.  

  • “… 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″.

Because–

  • Sec. 72B spells out that the Purchase-Certificate can be given within the ceiling limit alone.
  • Note: Plantation-lands usually involve Hundreds or Thousands of Acres of “excess” land. The assignment-possible-land (within ceiling limit) may be minuscule (7.5 acres or 15 acres). Therefore, the analogy that a tenant has a right to seek assignment is not apt at all.

Also Read: Balanoor Plantations & Industries Ltd. v. State of Kerala – Based on the Principle: LT to fix Tenancy’; TLB to Fix Plantation Exemption.  

7. The Division Bench failed to consider the following as regards Vesting Under S. 72

  • “All right, title and interest of the landowners and intermediaries … and in respect of which certificates of purchase … have not been issued ‘vest’ with the Government under Sec. 72. It is absolute. It is not a ‘fiction’; but, it is real and actual.
  • In K. Jayaprakashan v. State of Kerala, 2023-3 KLT 541, it is observed as under:
    • “Section 72 of the Act deals with vesting of landlord’s rights in Government. As per sub-section (1) of Section 72 ….  all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure under Section 13 … 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 on the said date”.
  • In V.N. Narayanan Nair v. State of Kerala (P.T. Raman Nayar, T.C.Raghavan, K.K.Mathew, JJ.) , AIR 1971 Ker 98, it is held as under:
    • “By Section 72 the rights of landlords whose rights have not been purchased by cultivating tenants vest in the Government free of all encumbrances on a date to be notified by the Government in that behalf -the date has been notified as the 1st January, 1970”
  • The absolute nature of vesting is further clear 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(e.g. exempted plantation land) vested in Government under Sec. 72). Such payments are required in two occasions – (i) after vesting in Government (for there is cultivating tenant and fixity of tenure) the tenant has not got his rights purchased under ‘Purchase Certificate’ and (ii) holding exempted-plantation land excess of ceiling limit.
  • In Lakshmi v. Rama Iyer, 1992-1 ILR-Ker 398; 1991-2 KLT 897it is pointed out: “Consequently the title and interest of the land-lord would vest in the Government on the appointed day that is, on 1-1-1970. Then as per S. 72Q the land owner would be entitled to recover rent accrued till 1-1-1970 only”.
  • In Aru v. Nakunni (Padmanabhan, J.), 1987-1 KLT 177, it is held as under:
    • “Under S.72 of the Act all the right, title and interest of the land owners and intermediaries in respect of a holding held by a cultivating tenant entitled to fixity of tenure under S.13 shall, subject to the various provisions of S.72, vest in the Government free of all encumbrances created by the land owners and intermediaries and subsisting on the date notified by the Government. ….. When once vesting has taken place there cannot be any further rights in any body. …. By assignment all such rights vest in the tenant”.
  •  Sec. 112(5A) deals with unassaigned land (that is, no purchase certificate is given). Under this sub section land-value need not be given (even to) 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.
  • Note: Plantation-lands usually involve Hundreds or Thousands of Acres of “excess” land. The assignment-possible-land (within ceiling limit) may be minuscule (7.5 acres or 15 acres). Therefore, the analogy that a tenant has a right to 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.
  • Under Sec. 72A and Sec. 88, meagre compensation is paid to land owner on vesting landlords’ rights in Govt. and on surrendering land. It is most unjustifiable to confer undue rights or benefits to the plantation-tenants when their lease-lands are acquired  (majority are BIG Companies). It is apposite to remember that the lands of Maharaja of Travancore (191 acres of lands in Thiruvananthapuram – above the ceiling limit, 15 acres – in the City) were ‘mercilessly’ taken under the Orders of the Land Board Trivandrum under 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.)

Land Reform wearied Middle Class landlords and tenants

When Land Reform Measures were implemented in the State of Kerala, it jaded and wearied small and moderate landlords and tenants, on the bedrock of “ceiling limit”. But, the Plantations were not “touched” taking “economy” into consideration. Still, the well-visioned legislators were particular to see that the ownership of this large extent of plantations (otherwise thick forest of the Western Ghats) was remained with the State. It was based on the principles in 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’.

Therefore, it can be stated with certainty –

  • For (even) the landowner has no vested right on land beyond the ceiling limit, a tenant can never claim such a right; and, it is too illogical and irrational for the tenant to have such a right.
  • Interpretation of law, especially when Constitutional principles are involved, should subserve the interests of the nation and future generations, and not that of a few ones.
  • 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.  191 acres of lands owned by Maharaja in Thiruvananthapuram City – above the ceiling limit, 15 acres – 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 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.)

Conclusion

In short, the juridical status of the ‘plantation land’ (beyond the ceiling limit), vested in Govt. under Sec. 72, can be placed as under –

  • 1. Title and ownership of the same is vested with the Govt.
  • 2. Because of the Exemption (Sec. 81) and Fixity (Sec. 13) the tenant can continue the plantation activity therein.
  • 3. But the tenant has to pay the ‘Rent’ to the Govt. (Sec. 72E) for the unassigned land (e.g. exempted plantation land) vested in Government under Sec. 72. The rent is fixed by the Land Tribunal (Sec. 72F).
  • 4. Because of the restrictions in Sec. 72B and 72C, a tenant cannot obtain Purchase Certificate (and become the land-owner) for more extent than the ceiling limit.
  • 5. 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.
  • 6. The exemption for plantation will be lost when it is “fragmented” or the crop is abandoned.

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

End Notes:

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

Now a question arises: What is the impact of 1040 and 1061 (1886) Proclamations over the ‘Government Land Leases’ made 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 (by the Government) after 1061 (1886) do not acquire the rights of ‘permanency of tenure’ or attain the ‘proprietary interest’ conferred by the Pattom Proclamations of 1040 and 1061. If such rights are axiomatically conferred as a matter of course, the result would be that the Government cannot ‘lease’ lands (after the Proclamations), for, the lease character would be lost 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.

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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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