Liability of Certain Plantation Tenants to Pay Rent To the Government: New Rules can be Made for its Effective Implementation

Jojy George Koduvath

Abstract

1. As per the Kerala Land Reforms Act, following Tenants are liable to pay rent to the Government.

  • (1) Tenants in Govt. land.
    • Because, no provision in the KLR Act affects the liability of the tenants of the Govt. lands to pay rent; and such Govt. lands are exempted from Chapter II (that deals with ‘fixity’, Purchase Certificate, vesting, etc..
  • (2) Tenants who have taken the lease of extensive parambus or waste-lands and in course of time by hard toil had developed those into plantations.
    • Because, the legislature had conferred the benefit of the fixity of tenure (Sec. 13, KLR Act) to such tenants; and such lands (over and above the land to which purchase certificate is given) vest in Govt., under Sec. 72, KLR Act.

2. Following Plantation-Tenants are liable to pay rent to the Land-owner (or the Land-lord) according to the KLR Act.

  • The tenants of those Plantations (i) above 30 acres and (ii) the land-owner had put up the plantation before leasing (that is, plantation existed when land was leased).
    • Because, no provision in the KLR Act affects the liability of the tenants of such lands to pay rent to the land owners; and such lands are exempted from Chapter II (that deals with ‘fixity’, Purchase Certificate, vesting, etc..                            

Part I

Relevant provisions in the KLR Act:

Section 3(1)(viii):

  • Provisions of Chapter II (that deals with fixity, Purchase Certificate, vesting of leased land in Govt., etc.) of the KLR Act do not apply to tenements of Plantation above 30 acres where the land-owner had put up the plantation before leasing (that is, plantation existed when land was leased).

Section 13:

  • There will be fixity to cultivating tenants.
  • But, (1) Plantation-tenants in Govt. land and (2) The tenants of Plantation above 30 acres, where the plantation existed when land was leased, do not have the right of fixity – for the provisions of Chapter II do not apply to such tenements.

Section 72:

  • It provides – automatic vesting of lease-properties held by ‘cultivating-tenants’, in Govt.
  • But, (1) Plantation-tenants in Govt. land and (2) The tenants of Plantation above 30 acres, , where the plantation existed when land was leased, do not vest in Govt. – for the provisions of Chapter II do not apply to such tenements.

Section 72E:

  • The cultivating tenant shall be liable to pay to the Government the rent payable under this Act from the date of vesting under Section 72.

Section 72F(h): 

  • Land Tribunal to fix the rent stated in Sec. 72E.

Section 81:

  • S. 81 (the first Section in Chapter III) deals with exemption from ceiling limit of plantation, industrial land, etc.

Section 82 & 83:

  • S.82 deals with ceiling area. Sec. 83 mandates that no person shall be entitled to own or hold lands in excess of the ceiling area. But it is not applicable to the plantations. (If no plantation, that would also have been treated in the same way – as excess land.)

Section 85:

  • S. 85 directs that excess land shall be surrendered to government (accepting the compensation fixed under Sec. 88).

Can the Govt. enact new Act (or Make Rules) for ensuring ‘Proper Rent’ (if it finds The Kerala Grants and Leases (Modification of Rights) Act, 1980 not effective)?

Yes; because,

  1. the KLR Act does not affect rights of such land-owners/landlord  (including Govt.) for rent.
  2. The matter of fixation of rent is a State subject. 

The State Legislature is free, therefore, to make a proper enactment on public interest.  Here, it may also be noted that a large extent of Govt. land is in the possession of mighty and wealthy planters: and they do not pay any amount as rent (and, if paid, only a small amount). 

New ‘Rules’ or ‘Guidelines’ can also be made by the State in the light of Sec. 72F(h) [Land Tribunal to fix the rent stated in Sec. 72E] for ensuring ‘Proper Rent’.

In N. K. RAJENDRA MOHAN Vs. THIRVAMADI RUBBER CO.  LTD, AIR 2015 SC 2556; 2015-4 KLT 6, it is held as under:

  • “That the legislature had construed it to be unfair and improper to deny the benefit of the fixity of tenure to a lessee who might have taken the lease of extensive parambus or waste lands and in course of time by hard toil had developed those into plantations.

Analysis

Plantation leased
(Plantation existed when land was leased).		Land leased
Tenant made plantation.
Sec. 81 (exemption from ceiling limit) applies.
Plantation above 30 Acres. 
Will there be fixity to tenant?
No. 

Sec. 3 (1)(viii) (reversely) applies. (Poddar Plan. Ltd v. Thekkemariveettil Madhavi Amma, 2014 1 ILR(Ker) 813; 2013 4 KLJ 781; 2014 1 KLT 439,)		Yes. (Note: Ceiling limit (in Sec. 82) is not mentioned in Sec. 13 – as given in Sec. 72B and 72C.)
(Sec. 13 fixity is there for every tenant, if tenant toiled a plantation – See: Rev. Fr. Jerome Fernandes Vs. Be Be Rubber Estate, 1972 KLT 613.)
Such tenants should pay rent to Govt. under Sec. 72E & 72F
Plantation below 30 Acres.  Can a tenant get purchase certificate for 5 or 10 acres?
May be.
No specific provision. So, by virtue of Chapter II, a tenant can get Purchase Certificate; but, within ceiling limit – Sec. 13 – under Sec. 72B, 72C.
(See notes just below also)		No. 
No specific provision.
Fragmentation of plantation will not be allowed so as to get pur. certi. within ceiling limit (Sec. 87).
Plantation below 30 Acres. Will there be fixity to tenant?
Yes.
By virtue of S. 3(1)(viii), a Tenant has fixity (Sec.13). It is reasonable to say, a tenant cannot claim fixity and Purchase Certificate, simultaneously.
Such tenants should pay rent to Govt. under Sec. 72E & 72F(h)		Yes.
(Because what is exempted is Plantation-Tenancies exceeding 30 acres)

Sec. 13 fixity, applies.
Such tenants should pay rent to Govt. under Sec. 72E & 72F(h)
Who gets Sec. 81 exemption – land-owner or tenant – above 30 acres.
Land owner – For, plantation itself was leased.Tenant
Can landlord recover possession –
above 30 acres – from the tenant?		.
Yes.
No express provision.
But, contract holds the field (because no protection to tenant, under Chapter II).		No. (Because Plantation-Tenancies exceeding 30 acres is exempted, and therefore no protection to tenant)
Sec. 13 fixity, applies. See:
N. K. Rajendra Mohan Vs Thirvamadi Rubber Co.  Ltd.: AIR 2015 SC 2556; 2015-4 KLT 6
Will a tenant get Fixity (S. 13) or Purchase Certificate (S. 72) on “tenancies…”, ‘interspersed within the plantation’ S. 3(1)(viii)

(Not applicable)		Yes. But, within ceiling limit – Sec. 13 – under Sec. 72B, 72C.
Proviso refers to a special category on independent-tenancy [from the plantation-tenancy, mentioned in the main Section, S. 3(1)(viii)].
Will there be vesting of land below 30 acres in Govt?
Yes.
Then what is the relation between Govt. and the original tenant?
Relation that is recognised by the Statute. That is, fixity in the land vested in Government.
Such tenants should pay rent to Govt. under Sec. 72E & 72F(h)		Yes (for both above and below 30 acres).
Then what is the relation between Govt. and the original tenant?
Relation that is recognised by the Statute. That is, fixity in the land vested in Government.
Such tenants should pay rent to Govt. under Sec. 72E & 72F(h)

Part II

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

It is the Government. 

Reasons:

  • (i). Plantation (lease) lands Statutorily VEST in GOVT, under S. 72.
    • Sec. 72 of the Kerala Land Reforms Act, 1964, provides for absolute vesting (of lease-land) in Government.
    • Tenants of leasehold-exempted-plantation lands (above ceiling-limit) are entitled only to ‘fixity of tenure‘ by virtue of Chapter II, Sec. 13 (and they are not entitled for Purchase Certificate, over and above ‘ceiling limit’).
    • Note: ‘Tenure’ is derived from the Latin term, “tenere“;  means “to hold” or “to keep”.
  • (ii). ‘Vesting’ in Govt. is ‘Vesting of Ownership‘
    • Sec. 72 speaks about ‘Vesting of landlord’s rights in Government’.
    • It pertains to –
      • “all right, title and interest” of the landowners and intermediaries in respect of holdings held by cultivating tenants”.
  • (iii). Tenant has no “absolute rights” (above the ceiling limit)
    • 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. (It is limited to the improvements made, in case of acquisition, under Sec. 112(5A), as stated below.)
    • 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).
    • 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’).
    • Sec. 72F(5) authorises Land Tribunal to fix the rent.
  • (iv). 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.)
  • (v). Art. 31A(1), Constitution (no compensation even to owners)
    • 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 (even) to the former land owners (when land is acquired) above the ‘ceiling limit‘.
Proviso to Art. 31A(1), Constitution (no compensation even to owners) 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.”

2. 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.

3. ‘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 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.
    • In other words, purchase-certificates cannot be given for land above ceiling-limit, rigging the exemption provisions (for plantations etc.).
  • Because,
    • Sec. 72B(1), in Chapter II shows – Sec. 72B(1) is 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. 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 (by virtue of other provisions, i.e., entire characteristics or attributions added to Sec. 82 by virtue of other provisions in Chapter III), 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 and title 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 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.)
    • Note: Proceedings initiated by Taluk Land Board under Chapter III (in respect of plantation) do not confer title.

4. What is the legal right attached to former ‘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.

5. 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).

6. When Such a land (Vested In Govt. under S. 72) is Required for Govt. (Public Purpose), 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. (Public Purpose), 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).

7. 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.”

Part III

Vesting in  Govt. 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. 01. 2013; 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.

Plantation Land Cannot be Assigned to a Tenant

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

“Vesting” in Law

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

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

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

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

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

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

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

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

See Blog: POSSESSION is a Substantive Right in Indian Law

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

What are the Stipulations attached to that “Legal Right” of Transfer?

  • Subject to the condition – not to “convert” it for any other use, other than the specific plantation (Sec. 87).

When Such a land is Required for Govt., Should it be Acquired?

  • The ownership being vested in Govt. it need not be ‘strictly’ “acquired”.
  • But no provision In Sec. 72 for ‘resuming’, if and when Govt. needs it.
  • But, it is said in Sec. 112 – Apportionment of land value in cases of ‘acquisition’.
    • Note:  It makes no difference (SUBSTANTIALLY, IN DETERMINING COMPENSATION) whether such a plantation land is “acquired” or not. Because, even if the land is not ‘acquired’, Govt. has to pay compensation for improvements to the former tenants (who holds the land by virtue of the “Legal Right conferred by Statute“, the KLR Act).

End Notes I

CAN AN EXEMPTED PLANTATION LAND BE SOLD AS AN ABSOLUTE PRIVATE PROPERTY?

No.

  • Sec. 82 deals with ceiling area. Sec. 83 mandates that no person shall be entitled to own or hold lands in excess of the ceiling area. 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. (If no plantation, that would also have been treated in the same way – as excess land.)
  • Sec. 87 directs that the protection of plantation is available only so long as the plantation subsists.

Exemption does not Confer a vested right or ownership

  • 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.

End Notes II

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.

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.”

End Notes III

Kannan Devan Hills Produce Co. Ltd. v.  The State of Kerala, AIR 1972 SC 2301

The Supreme Court, in Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301 (Sikri (Cj), Shelat, A.N. Ray, I.D. Dua, , H.R.  Khanna, JJ.) held that Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested with Sircar. The State of Kerala made an Act – the Kannan Devan Hills (Resumption of Lands) Act, 1971, to “vest” the possession of the land remained in the possession of the Kannan Devan Hills Produce Co. Ltd.

According to the petitioner Company, ‘it has at all times been holding, cultivating, enjoying and dealing with the Concession Land as the absolute, owner thereof’.

According to the State, this land is dealt with under this heading – Pandaravaka Lands, i.e. lands belonging to the Sircar. and that it was only “granted” to the company for ‘coffee cultivation’. The State asserted in this case –

  • that the petitioner Company was not an absolute owner, but only a lessee under the Government, especially since the 1899 Proclamation issued by H.H. the Maharaja declaring that Kannan Devan Hills was ‘an integral part’ of the ‘territory’.
  • that the petitioner’s predecessor-in-title was John Danial Munro, who obtained, the first Pooniat Concession from Punjar Valiya Raja, on July 11, 1877. This Concession recited that an, application was made for the grant of the above property to the Raja for coffee cultivation.
  • It was further stipulated in the Concession that
    •  “you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees.”
  • H.H. the Maharaja executed a deed of ratification, dated November 28, 1878, by which the Government ratified the First Pooniat Concession dated July 11, 1877.
  • This deed of ratification laid down –  the Government permitted the grantee to hold the land. (it is similar to the ‘Grant/Title’ deeds executed by the State in all other ‘Grants’ – under the ‘Grant Rules’).
  • Clause 5 of the Deed of Ratification, is important. It provides, inter alia, that
    • “The grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved namely, Teak, Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood; should he carry any timber without the limits of the grant it will be subject to the payment of Kooteekanom, or Customs Duty……….
  • The eleventh clause reads – “The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer of the grant by the grantee shall be immediately made known to the Sircar, who shall have the right of apportioning the tax, if a portion of the holding is transferred.”
  • The twelfth clause stipulates – “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, and the grantee shall in respect to such mines and treasures, abide by the decision of the Sircar.”
  • The sixteenth clause provides – “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams running through the tract to the extent of fifty yards in breadth on each side of the stream, the Underwood only being permitted to be cleared and coffee planted instead. Similarly he shall also be bound to preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”
  • A Royal Proclamation was made on September 24, 1899 provided that ‘Anjanad and Kannan Devan Hills is an integral portion of our territory and that the inhabitants of the said tract are ‘hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief.

Points came for consideration in this decision were the following:

  • Whether the Kannan Devan Hills (Resumption of Lands) Act, 1971 was protected from challenge under Art. 31A of the Constitution. That is, whether these lands fall within expression ‘Janmam right’ or “estate”  in art. 31A of the Constitution.
  • If the lands acquired were an “estate”, or with ‘Janmam right’ owned by the Company, the land reform enactment did not have stood valid. (Note: Kesavananda Bharathi Case came in 1973.)

The Apex Court found the following:

  • The janmam rights (even if remained with the Poonjar Chief, H.H. the Maharaja became the janmi by the Royal proclamation of 1899.
  • The nature of ‘janmam right’ has been examined by this Court previously in Kavalappara Kottarathil Kochuni v. State of Madras [1960] 3 S.C.R. 887 Subba Rao, J., observed that janmam right in Kerala is an “estate and it is the freehold interest.
  • The Sircar itself is one of these janmis and it was the largest Janmi. It came to possess janmam lands by gift, purchase, escheat, confiscation and other ways
  • If any person wants land in Travancore, he must obtain it from, some one of the body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other Janmi.

The Apex Court observed as under:

  • “… On the material placed before us it is difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right”.
  • If, as stated in Travancore Land Revenue Manual Volume IV, there are no lands that do not belong to a Janmi and the Sircar becomes a janmi by gift, escheat confiscation or otherwise, the effect of the Royal Proclamation of 1899 must be that the Sircar became the Janmi.”

The Apex Court further found –

  • The Registered Lands included inter alia, (a) Pandaravaka lands and (b) Janmam lands.
  • Regarding Pandaravaka lands it is stated : “Pandaravaka or Sircar lands are, lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”
  • Kenan Devan Hills Concession is dealt with under this heading, i.e. Pandaravaka Lands.
  • It thus appears that the State grants like Kanan Devan Hills Concession and Ten Square Miles Concession, and Munro Lands, were treated under the heading ‘Pandaravaka Lands, i.e. lands belonging to the Sircar (that is, such Grant-lands were not ‘owned’ by the holders thereof).

On these findings The Apex Court upheld the Kannan Devan Hills (Resumption of Lands) Act, 1971 and dismissed the challenge of the Company.

State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272

With respect to the same property  it was held in State of Kerala v. Kannan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272, as under:

  • “The Trial Court in a detailed and well-reasoned judgment dismissed the suit of the company. The Trial Court on the interpretation of First Concession (Exhibit P- 1), Second Concession (Exhibit P-2), deed of ratification (Exhibit P-62) and the Government agreement with the Society dated August 2, 1866 (Exhibit P-64) came to the conclusion that the company did not acquire absolute proprietary rights over the Concession Area or the trees and timber in the said area. It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee. It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyance/ratification.”

It is observed:

  • “An identical clause in another grant entered into by the Travancore Government came for consideration before a Full Bench of the Kerala High Court in George A Leslie v. State of Kerala, [1969] K. L.T. 378, K. K. Mathew, J. (as the learned Judge then was) interpreted the clause as under:
    • “ We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”
  • “We agree with the interpretation given to the clause by Mathew, J. and hold that the respondent- company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.”

It is observed further:

  • “It was further held by Mathew, J. (in George A. Leslie v. State of Kerala, 1969 KLT 378) that kuttikanam being the governments share of the value of the trees owned by the government it has the power to fix the value of the trees. We agree with the reasoning and conclusions reached by Mathew, J.”

The Apex Court upheld and approved “the judgment and findings” of the Trial Court.

End Notes IV

Cultivating Tenants, were Obliged to Apply LT & The Legal Basis of Balanoor Plantations case

The legal basis of the decision, Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, can be derived from Sec. Sec. 85(3) of the KLR Act.

Sec. 85(3) and (3A) of the KLR Act read as under:

  • (3). Where, after the final settlement of claims for resumption of lands held by a person as tenant, such person holds land in excess of the ceiling area, or where after the purchase of the right, title and interest of the landowner** and the intermediary by the cultivating tenant in respect of lands owned by a person, such person owns land in excess of the ceiling area, such excess land shall be surrendered as hereinafter provided.
  • (3A). The person bound to file a statement under Sub-section (2) 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. [Substituted by Act No. 35 of 1969.]

**Why the Words “After The Purchase of the Right, Title And Interest of the Landowner” Included?

It is definite: It is for adjudicating the ‘tenancy right’, by the Land Tribunal – for, the Land Tribunal is the only authority that can decide on the “tenancy right.” (It is the principle applied in the Balanoor case.)

  • Note: A tenant cannot avail benefits declaring himself to be a cultivating-tenant; on the contrary, he has to approach the competent statutory authority (for the same) under the KLR Act; that is, the Land Tribunal.
  • Land Board or Taluk Land Board (deals with exemption on the ground of plantation, excess land issues etc.) cannot adjudicate on tenancy right.

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

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

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

Sec. 73B(3) reads as under:

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

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