Civil Court to Adjudicate Title; Land Tribunal to Fix Tenancy; Taluk Land Board to Determine Plantation Exemption

Abstract

• Civil court alone to find disputes on title.
• A tenant cannot declare himself to be tenant.
• Land Tribunal is the sole authority to determine Tenancy.
• The TLB alone deals with exemption and land to be surrendered.

Civil court alone to find disputes on title

It is observed in M/S Radha Krishan Industries v. The State of Himachal Pradesh, 2021 SCC OnLine SC 334, that where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition (Art. 226); and it is pointed out that this principle have been consistently upheld by the Apex Court in

• Seth Chand Ratan v Pandit Durga Prasad, (2003) 5 SCC 399,
• Babubhai Muljibhai Patel v Nandlal Khodidas Barot, (1974) 2 SCC 706 , and
• Rajasthan SEB v. Union of India, (2008) 5 SCC 632, etc.

The Division Bench of the Kerala High Court in Harrisions Malayalam Ltd. v. State of Kerala, 2018(2) KLT 369, held that even the High Court cannot adjudicate on title. It is held as under:

• “141. …Title, we reiterate, in this context, we have not found on the petitioners, which we are incompetent to do in the present (Writ) proceedings……”.

In K. Jagadeesachandran v. E.K. Mamomohanan Pandarathil, OP(C) No. 2989/2011 (Thottathil B. Radhakrishnan and A.V. Ramakrishna Pillai, JJ) – (CaseMine), it was held with respect to title of a plantation property as under:

• As rightly argued by the learned Senior counsel appearing for the company such issue is wholly outside the realm of the TLB proceedings … . Nor did the TLB have the jurisdiction to enter a finding on any such contention.” (Also in W.P. No. 213/2013 dt. 28.02.2013)

A Tenant Cannot Declare Himself to be a Tenant and Avail Benefits under KLR Act

• The competent statutory authority to determine tenancy under the KLR Act is the Land Tribunal.
• Land Board or Taluk Land Board deals with exemption on the ground of plantation, excess land issues etc. It cannot adjudicate on tenancy right or title.

Title to the Property is not Ajudicated 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).  

Land Tribunal to go into the question of tenancy

In Ganapathy Acharya v. Bhaskaran (TLV Iyer, J.), ILR 1993-3 (Ker) 736

• “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”.

Balanoor Plantations Case – Based on the Principle LT to fix Tenancy’; TLB to Fix Plantation Exemption.  

In Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it is pronounced that the tenants who have not approached the Land  Tribunal and established rights as “cultivating tenant” are not entitled to avail benefits on “Fixity of Tenure”, under Kerala Land Reforms Act, 1963.

It is pointed out – when a title claim is raised by the Government or the Devaswom, the person who claims to be a cultivating tenant –

• “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.“

It is held as under:

• “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.”

It is based upon the following principles of law:

• 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 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.
• Land Board or Taluk Land Board (deals with exemption on the ground of plantation, excess land issues etc.) cannot adjudicate on tenancy right.

Cultivating Tenants (‘Entitled to Assignment’) are Obligated to Apply LT

Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it was laid down that only cultivating tenants, entitled to fixity of tenure under Section 13 of the Kerala Land Reforms Act, 1963, would be “entitled to hold possession over the property and to resist action under the KLC Act”.

Sec. 72B provides for cultivating tenant’s rights to get an assignment by purchase certificate (through LT) – within the ceiling area. A Tenant was “obligated to apply” for the purchase certificate within 2 years from 1-1-1970.

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.”

Referrence 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. …..”