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

Saji Koduvath, Advocate, Kottayam.

Introduction

Plantation Lands are exempted from the ceiling limit, under Sec. 81 of the Kerala Land Reforms Act, 1963. A planation tenant (who planted the crop) can also claim the exemption. He has the right of ‘fixity’ under Sec. 13 of the Act.

But, it is definite – in most cases, such a tenant cannot claim a Purchase Certificate, because it can be obtained below the ceiling limit alone. In such a situation, an interesting question comes –

Should such a plantation tenant (who is not legally entitled to a purchase Certificate) have filed an application or statement before the Land Tribunal under Sec. 72B?

It was Incumbent on the Tenant to Apply the Land Tribunal

It was Incumbent on the tenant to apply to the Land Tribunal even if he possessed maximum within the ceiling.

A cultivating tenant is permitted to obtain title by assignment of the right, title, and interest of the landlord (under a Purchase Certificate from the Land Tribunal) only up to the extent permissible under the ceiling limit prescribed by the KLR Act, he must have filed the application for Purchase Certificate under Sec. 72B.

For determining the ceiling area, the total extent of land held by a person or his family anywhere in the State or in India shall be taken into account.

Even if a tenant (already) holds land at or above the ceiling limit (and, for that reason, no purchase certificate could be received), still then proceedings are to be initiated by filing an application before the Land Tribunal.

Reasons: The law casts a duty on the tenant to make an application to the Land Tribunal, within the time prescribed, because every tenant seeks the right to hold property, invoking the ‘exemption’ provided in Sec. 81 (including Plantation) has –

to get the purchase price of the property fixed by the LT
to pay the purchase price to the landowner through LT
to pay rent to the land owner, pending proceedings, through LT
to get forwarded the orders to the Land Board by the LT.
and to get the purchase price, payable to the Government, fixed by the LT (after the Amendment Act No. 35 of 1969).

Relevant Provisions of the KLR Act

The Cultivating Tenants have to prove their claim of being a cultivating tenant, entitled to fixity of tenure, under the provisions of the KLR Act through the LT. The following are the relevant provisions of the KLR Act.

54(1). A cultivating tenant (to purchase the right) has to apply Land Tribunal.
55. Purchase price is to be fixed by LT (on fair rent u/s. 31) to be paid u/s. 59
57. The LT, after enquiries, has to pass orders determining the purchase price.
57(3). The Land Tribunal has to allow the purchase of the land it determines.
57(6). The Land Tribunal has to forward the orders to the Land Board.(On the basis of the Orders sent to the Land Board, the Land Board takes actions under S. 85(7) – whereon a person fails to file a statement under 85(2) or (3A), LB shall intimate that fact to TLB and thereon the TLB shall determine land to be surrendered.)
59. The purchase price _{(determined u/s. 57 by the LT)} has to be deposited with the Land Tribunal to the credit of the Land Board and issue of certificate.
61. Tenant has to pay rent (under orders of LT) pending proceedings.
72D. The cultivating tenant has to pay the purchase price to the Government (fixed by the LT) 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.)

Balanoor Plantations & Industries Ltd. v. State of Kerala

It is held in Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, as under:

“28. That apart, we notice that the specific claim of the petitioners is hinged solely on Exts. P1, P2 lease deeds in favour Sri. K. M. Cheriyan and on Exts. P3 and P4 letters of the Zamorin Raja, which as we have already said earlier is contended by the Zamorin Raja to be forged. However, nowhere do they say in their pleadings or in their submissions before us that the petitioners have even attempted, under the provisions of the Kerala Land Reforms Act, to claim right over the property as a cultivating tenant. This is pertinent because, under Section 72B(3) of the KLR Act, it is legally obligated on every cultivating tenant, entitled to assignment of right, title and interest in respect of any property, to apply to the Land Tribunal, within whose jurisdiction that the property is situated, within two years from the date of vesting of such title and interest. Of course, the period of limitation shown therein can be extended by the Government for sufficient reasons. The imperative mandate of this Section is inescapable and we, therefore, deem it necessary to extract it as under to facilitate a complete reading of it:
“72B(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 date of vesting 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.”

It is further held as under:

“29. From the factual factors in this case, it is rather obvious that even though the petitioners claim possession and ownership over the property on the strength of Exts. P1 to P4, asserting that they are cultivating tenants, they have conspicuously chosen never to make an application before Land Tribunal for assignment of the right, title or interest over the property in their favour until now. Therefore, all that the petitioners have done is to merely make a claim, solely based on the documents aforementioned and Ext. P5, to assert that they are cultivating tenants with respect to the property in question, however, consciously choosing not to make any application under the afore extracted Section 72B (3) to establish such claim, even when they are statutorily obligated to do so.”
“44. We are, of course, cognizant that Sri. Joseph Kodianthara, the learned senior counsel appearing for the petitioners, refutes with grate force the above submissions of Sri. R. Lakshmi Narayan by predicating that the Devaswom cannot even be heard to be the owner of the property, since by the automatic operation of Section 72 of the KLR Act, the property would become vested with the Government. This submission, we must say, is certainly ingenious in its nature but we refrain ourselves from answering it one way or the other, for the simple reason that whether the property belongs to the Government or to the Devaswom Board, it would be of no consequence or relevance to the petitioners since, in either case, they will have to first prove their claim of being a cultivating tenant, entitled to fixity of tenure, under the provisions of the KLR Act through a proper process of law. Unless and until they are able to do so, the attempted distinction drawn by Sri. Joseph Kodianthara would be nothing more than academic in its nature. We are firm in our mind of this because it is only if they are able to prove that they are a cultivating tenant, entitled to fixity of tenure, can the first petitioner obtain the locus to challenge action under the KLC Act, invoked on the strength of Section 94A of the HR & CE Act, on the ground that property does not belong to the Devaswom. As long as they have not established their claim over the property, adjudication as to if the property is owned by the Government or the Devaswom would not be of any relevance to the petitioners at this point of time.”

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

The Legal Principles

The legal principles that warrant the invocation of the Land Tribunal’s jurisdiction are the following:

It is for establishing and adjudicating the ‘tenancy right’.
The Land Tribunal is the only authority that can decide on the “tenancy right”.
Under Sec. 72A, the Landlord is entitled to compensation and under Sec. 72D, a tenant is bound to pay the Purchase Price. The compensation is to be decided by the Land Tribunal.
The Scheme of the KLR Act requires that there should be proceedings before the Land Tribunal under Sec. 72B or 72C.
Suo Motu proceedings may not be initiated by the Government for the benefit of a Plantation Tenant (entitled to purchase certificate within the ceiling limit, within the time allowed). It cannot be sought by a tenant, ‘as of right’.
- Note: A tenant cannot declare himself to be a cultivating-tenant and avail benefits – the competent statutory authority (for the same) under the KLR Act is the Land Tribunal.
Title to the property is not decided by the TLB (Harikumar v. State of Kerala, 2013 (2) KLT 44 (Para 9) Jagadeesachandran Nair v. Mamomohanan Pandarathil, 2013 (4) KLT 584 (para 11).
- Both decisions were referred to in Harrisons Malayalam Limited v. State of Kerala, Represented By The Chief Secretary, 2018-2 KHC 719; 2018-2 KLT 369 (para 54).
In Ganapathy Acharya v. Bhaskaran (TLV Iyer, J.), ILR 1993-3 (Ker) 736; 1993 2 KLT 962, it is pointed out:
- “If there is dispute on any of these points necessarily the Land Tribunal has to go into the question of possession and the alleged tenancy”.

Sec. 85(3) of the KLR Act

The legal basis of the decision, Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, can be derived from 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 not lawful to initiate Suo Motu proceedings (under Section 72C) by the Government for the benefit of a Plantation Tenant (entitled, within the time allowed, to purchase a certificate below the ceiling limit), because Explanation II to Section 87 disfavours the fragmentation of the plantation land.

Still, because of subsection (3) of Section 85, the tenant could have obtained a purchase certificate (under Section 72B) within the statutory period.

It is definite: If the claimant of Plantation Exemption (under Sec. 81) is a tenant, he must have approached the LT (with respect to each plantation, if he has more plantations under different landlords).

Because (i) this sub-section 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, and (ii) LT is the only authority to determine tenancy (Land Board cannot determine it).

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 rights.

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 (in any case, beyond the ceiling limit).

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. 72B or 72C). Still, he stood as a cultivating tenant, “entitled to assignment” of the right under Sec. 72B, within the statutory period.

Sec. 72B provides for cultivating tenant’s rights to get assignment by purchase certificate (through LT) – within ceiling area. A tenant was “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 (Balanoor Plantations) 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.”

Tenant has to pay Rent to the Government

In any case, the tenants who are found to be cultivating tenants entitled to hold the plantation tenancy land, under exemption, have to pay rent to the Government as provided under Sec. 72E (and the Land Tribunal has to fix the rent under subsection (5)(h) of Sec. 72F). If such land is acquired by the Government compensation for improvements alone need be paid to the tenant [and no land-value be given, under Sec. 112(5A)].

Reference to the Land Tribunal, under Section 125(3)

On the basis of the Full Bench decision in Lissy v. Kuttan, 1976 KLT 571, it was argued in Balanoor Plantations & Industries Ltd. v. State of Kerala that a person who claims to be a cultivating tenant, entitled to fixity of tenure under Section 13 of the KLR Act, the Civil Courts are prohibited from considering such issues and the matter has to be referred to the Land Tribunal, under Section 125(3) of the KLR Act. It is pointed out in this decision that the judgment in Lissy v. Kuttan had been overruled by a Larger Bench in Kesava Bhat v. Subraya Bhat, 1979 KLT 766. It was held in Balanoor Plantations as under:

“11…. Unless the question actually “arises” for consideration, there is no obligation under S. 125 (3) to make a reference to the Land Tribunal. The mere incorporation of an unnecessary or irrelevant plea of tenancy into the written statement which has no relation whatever to the material averments and the reliefs sought in plaint, cannot attract the bar of S. 125 (1), or the provisions of S. 125 (3 ). ….. It is only if the question arises for consideration that the obligation to refer under S. 125 (3) also arises. …..”

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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 E	Persons 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 .
13	Fixity: “Every tenant, shall have fixity of tenure in respect of his holding.”
22	*Landlord* desiring to *resume* any land shall apply to the Land Tribunal.
31	Fair 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.
59	When 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 72(4)	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 tenant entitled fixity under sec. 13 vest in govt. Sec. 72(4) states that a holding of a ”small holder” also vests in the Government and the application for resumption has to be preferred within the specified time.
72B	Cultivating-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.)
72D	The 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.)
72E	Such 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).
72C	Provides 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).
72K	LT shall issue purchase certificate. It shall be conclusive proof of assignment.
74	Prohibition 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.}
82	Ceiling area – 5/10 standard acres.
83	No 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.
84	Certain 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 *not* lawful to initiate Suo Motu proceedings (under Section 72C) by the Government for the benefit of a Plantation Tenant (entitled, within the time allowed, to purchase a certificate below the ceiling limit), because Explanation II to Section 87 disfavours the fragmentation of the plantation land. Still, because of subsection (3) of Section 85, the tenant could have obtained a purchase certificate (under Section 72B) within the statutory period. 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.]
85A	File 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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Plantation-Tenants Not Approached The Land Tribunal are Ineligible for Plantation-Exemption-Orders from the Land Board

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