Kunjuku'Tty Sahib etc. etc. versus State of Kerala & Anr.

¶1

326

¶2

A

¶3

KUNJUKU'ITY SAHIB ETC. ETC.

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v.

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STATE OF KERALA & ANR.

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April 26, 1972

¶7

[S. M. S!KRI, C.J., J. M. SHELAT, I. D. DUA, H. R. KHANNA AND G. K. MITTER, JJ.]

¶8

Kemln land Reforms Act 1963 (Act 1 of 1964) a,· amended by . the Kera/a !.and Reforms (Amendment) Act 1969-Amending Act not put in 9th Schedule to the Constitution-Whether protected by Art. 31-A 01 Constitution-Validity of s. 73 providing for liquidation of arrears of redt--Such arrears ivhether interest in land-JVhetlier 'estate' lVithin meaning of Art. 31-A-Validity of s.. 45-A, and of explanation to s. 85(1 )-Reduction of ceilinR lin1it under Act-Land above nc1v ceiling hut under original ceiling acquired ll'ithout paynient of 11uirket value l'Ompe1tration-Validity-Ri1d1ts Rivt'n to Kudikidapp11kars-Validiy of1?.iRhts· of landlords vis-a-vfa the tenant, such as quarr_ying ri1:hts, whether t:t'SI in Govern1nent under s. 72.

¶9

The Kcrala Land Reforms Act, 1963 (Act 1 of 1964) as originally enacted was specified in the Ninth Schedule to the ConstitutiOn and was thus protected under Art. 31-B of the Constitution.. However the subsequent amending act namely the Kerala Land Reforms (Amendment) Act, 1969, was not placed in the Ninth Schedule. The validity of the Act as amended was challenged in the High Court in the writ petitions out of which the present allJleals arose. T~e State relied on Art. 31-A of the Constitution. The High Court help some of the provisions of the Act to be unconstitutional. Jn appeal by the State and by so1Pe o[ the writ petitioners the questions that fell for determination by this Court were : (i) whether arrears of rent being a charge on the interest of the tenant under s. 42 of the Act constituted an interest in Jan·a within the 1neanin!! of'the word 'estate' as defined ins. 31-A, and consequently whether s. 73-; of the Act w,hich provided for the liquidation of arrears of rent was pro!ccted by Art. 31-A although held violative of Art. 19(l)(f) of the Constitution by the High Court; (ii) whether s. 45-A of the Act was valid it being conceded by the parties that its validity depended on that of s. 73; (iii) whether the explanation to s. 85 (1) of the, Act was violative of the second proviso to Art. 31-A (l); (iv) whether the amended Act when it reduced the ceiling limit and xequired surrender of the land held in excess of the limit fixed by the amended Act, without paym«Jt of com- oensation at market value, violated the constitutional inhibition containeU in the second proviso to Art. 31-A(l); (v) whether the High Court after striking down s .. 50-A(2) of the Act was justified in adding the rider that the finding would not affect the vesting of the landlord's rights in the Government if they had so vested under s. 72; (vi) whether the righls given to the Kudikidappukars under the Act \Vere a measure of agrarian reform even though the definition of 'Kudikidappukaran' in s. 2(25) of the Act was not confined to agricultural labourers: and (vii) whether the extinguishment or modification of Jand-Jord's rights vis-a-vis the tcnan! would also be within the ambit of Art. 31-A of the Constitution.

¶10

HELD-: (i) The argument that arrears of interest is a charge on the estate and, being, therefore a right in land, can be extinguished as an estate was unacceptable on the language of the impugned statutory provisions. The liability to pay arrears of rent under the impugned Act, assuming the charge created by s. 42 is an interest in land, is not a

B

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H

KUNJUKUTTY v. KERALA (Dua,!.)

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327

¶20

A right in land; besides the liability being also a personal liability it would clearly amount to a debt, Acquisition or extinguishment of such a personal liability for payment of money cannot be covered by Art. 31-A. That money cannot be acquired is clear 'from the majority view of this Court's decision in Kameshwar Singh's case. Looking at the table incorporated in s. 73 it is obvious that the amount of rent to be paid for getting discharge of the whole debt has been arbitrarily fixed and does not seem to be founded on any rational, logical or just basis. [337 E-FJ

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B

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The amelioration of indebtedness of tenants is a laudable and desirable object. But the person to whom the arrears of rerit lire· due to also entitled to seek protection of his legitimate right and if the acquisition Of arrears of rent is outside the protection of Art. 31-A then the provisions cannot but be held invalid .. It prima fade partakes of the character of forfeiture of confiscation of the discharged arrears. Art 39 of the Constitution to which reference was made can be implemented by other c permissible means wilhout violation or abridging the just and legitimate rights of those to whom the arrears of rents are due. Section 73. was, therefore, rightly struck down by the majority opinion. [337 H-338 Bl

¶23

Pritam Singh C/whil v. State of Punjab, [1.967] 2 S.C.R. 536, State of Gujllrat v. Jetawat lalsingh Amarsingh & Ors.. A.I.R. 1969 S.C. 270, M. K. Subbachariar v. The State of Madras, 1.L.R. [1967] 2 Mad. 646, Ranjit Singlt v. State of Punjab, [1966] 1 S.C.R. 82, State D of Bilwr v. Umesh .Iha, [1962] 2 S.C.R. 687, State of Bilzar v. Malwradhimja Sir Kameshwar Singlt of Darbharlga, [1952] S.C.R. 889 at lll00-1002, K. K. Koc/1un11i v. State of Madras, [1963] 3 S.C.R. 887 and Khaja1nian Wak/ Estates v. The State of Madras. A.I.R. 1971 S.C'. 161. rcr rred to.

¶24

(ii) On the above finding s. 45-A which broadly speaking provides that rent received after May 19, 1967 but before the commencement of the amendment Act of 1969, and appropriated towards arrears of rent for E the period prior to May 1. 1966 shall be adjusted towards rent accrued due for period after Mav 1. 1966, must also be struck down as unconstitutional. [338 B-C]

¶25

(ii;i) The explanation to s. 85 (I) was rightly struck down by the High Court. It is clear th~t by virtue of the second proviso to Art. 31-A 1 1) land within the ceiling limit is expressly protected against acquir sition by the State unless the law relating to such acquisition provides for compensation which is not less than its market value. No attempt was made to take the impugned explanation out of this constitutional Jinutation. [340 F-Gl

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(iv J Prior to the amendment undoubtedly no land within the personal cultivation of the holder under the unamended Act within the ceiling limit fixed thereby could· be acquired without payment of compensation according to market value, but once the ceiling limit was changed by the G amended Act the second proviso to Art. 31-A(l) must be held to refer only to the new ceiling limit fixed by the amended Act. The ceiling limit originally fixed ceased to exist for 'future the moment it was replaced by the amended Act. The prohibition contained in the second proviso operates only within the ceiling limit fixed under the existing law, at the given time. It is true that the new ceiling limit was fixed contemporaneously with the acquisition of the land in excess of the ceiling limit. But it was not contended that a law so fixing the ceiling limit and acquir~ H ing: !he land in execcss .Vould offend any provision of he Constitution.

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H

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[341 C-El

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(v) The High Cottrr while holding s. 50-A(Z) invalid should not have added rhc rider that the finding would not affect the vesting of the land-

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[1973] l S.C.R.

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SUPRBME COURl REPORlS

328

B

0

lord's rights in the Government if they had so vestoo under s. 72. In n~ of theoe <.ases are there facts and circumstances on which the rider could operate. The precise point covered by the rider directly arises for determination in a number of either cases pending before the High Court. Expression of opinion on the· rider was not necessary for giving relief to the parties approaching the High Court in these cases. The question must, therefore, be left open to be determined by the High Court in cases in which the question directly arises. [341 H, 342 CJ

¶37

(vi) (a) The mere fact that the definition of 'kudikidappukaran' in s. 2(25) of the Act was not confined to agricultural labourers did not make the provisions relating to the rights a; Kudikidappukaro invalid, Jn Raniit Singh's case this Court considered it proper to place a liberal construction on Art. 31-A so as to cover cases where the general scheme of le$islation is definitely designed to carry out agrarian reform and somethmg ancillary thereto has to be undertaken to give full effect to such reforms. According to lhe High Court all the lands in the present cases were agricultural lands constituting estates within the conremp!ation of Art. 3 IA(2) (a) (iii) and all the persons benefited by the impugned provisions were occupants of huts on such agricultural lands and were connected with agriculture. The erection of · a homestead etc. cannot in the circumstances of these cases deviate from the general agricultural purpose.

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c

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[343 BC, 348 Cl

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Ranjit Singh '· State of Punjab, [1960] I S. C.R. 82, applied.

¶41

/nder Singh v. Stat" of Punjab, [19671 3 S.C.R. 603, referred to.

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[The Court, however, made it clear that it was not ex-iressing any opinion where the provisions of the Act were utilised for land' which are not agricultural lands and do not constitute estates nor where the beneficiary happens to be a person not substantially connected with agriculture, oecupyitig non.,agricultural land or where the facts are not covered by the general test laid down 'in the case of Ranjit Singh.] [34~ :-;j

¶43

(b) The objection that the area df land permitted to be purchased by Kudikidappukars is unreasonably excessive and there is no obligation oo them to use the land for agricultural purposes is without merit. The transfer is mainly of agricultural land to the landless occupant and it is likely to be used only for PllfPoses of cultiva'ion. This is ancillary to agrarian reforms. A part of the land is intended to be used for· erecting a .homestead etc., by the occupant. Such erection can11ot deviate from the. general agricultural purpose. [348 G-Hl

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(vii) The queson whe'her .a landlord's :right to quarry would be affected by the vesting prov1s1on 1n s. 72 could not be considered because th (jUestion was ·not raised in the writ petition or the High Court. Such oprnms partak of. the nature. of obiter.. Without dealing with any hypo~llca1. question 1t was ~ffi.c1ent to point out that extinguishment or modifica!ton of landlord's nghts vis-a-vis the tenant would also be within the ambit of Art. 31-A of the Constitution if otherwise it was related to agrarian reforms. [349 C-El

.,, "

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C:IVIL APPELLATE JURISDICTION : Civil Appeals Nos. 143. 203 to 242, 27 4 and 309 of 1971.

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Appeals from the judgment and order dated August 14 1970 of the Kerala High Court in Original Petitions Nos. 723 of 1970 etc. etc.

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H

¶51

KUNJUKUTTY v. KERALA (Dua, J,)

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329

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A

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T. Subromania Iver and A. Sreedharan Nambiar. for the appellant (in C.A. No. 143 of 1971).

¶55

M. M. Abdul Khader, Advocate-General for the State of Kerala, K. M. K. Nair and Varghese Kaliath, for the appellants (in C.As. Nos. 203 to 242 of 1971) and Respondent No. 1 (in C.As. Nos 8 143, 274 and 309 of 1971).

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T. Subramania Iyer, C. M. Devan, S. Balakrishnan and N. M. Ghatate, for the appellants (in C.A. 274 of 1971 ).

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G. S. Ananthakri.$hna Iyer, C. M. Devan, S. Balakrishnan and c N. M. Ghatate, for the appellant (in C.A. 309 of 1971).

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N. Sudhakaran and P. Kesava Pillai, for respondent No. 8 (in C.A. No. 203 of 1971).

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A. Sreedharan Nambiar, for respondents Nos. l 'and 5 (in C.A. No. 206 of 1971) and the respondents (in C.As. Nos, 208, 219 D and 235 of 1971).

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C. S, Ananthakrishna Iyer, S, Balakrislman and N. M. Ghatatc, for the respondents (in C.As. Nos. 210 and 216 of 1971).

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E

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T. Subramania Iyer, and P. Kesava Pillai, for the respondent (in C.A. No. 214 of 1971).

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S. P. Na.var, for respondent No. 2 (in C.A. No. 221of1971). M. Veerappa, for respondents Nos. 1 to 4 (in C.A. No, 240 of 1971).

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F

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The Judgment of the Court was delivered by

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Dua, .J. These are 43 appeals (C.As. Nos. 143, 274, 309 and 203 to 242 of 1971), 40 appeals (C.As. Nos. 203 to 242 of 1971) being by the State of Kerala and the Land Board and the remaining three by some of the writ petitioners in the High Court. Most of the material provisions of the amended Kerala Land Reforms Act, G Act No. 1 of 1964 (hereinafter called the impugned Act) were challemged in die High Court as violative of Arts. 14, 19, 25, 26 and 31 of the Constitution. Quite a number of writ petitions, however, assailed the entire impugned Act on that score. 'fht- sole defence in sustaining the constitutiOillal validity of the impugned Act was based oo Art. 31-A of the Constitution. The High Court struck down several provisions ,of the impugned Act. In the State H appeals ( C.As. Nos. 203 to 242 of 1971) the judgment of the High Court is questioned only in -so far as it ,struck down s. 73 and explanation to s. 85 (1) of the impugned Act. The judgment

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(1973] l S.C.R.

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330

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SUPREME COURT REPORTS

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appealed from is reported as V. N. Narayana Nair v. State oj Kerala('¹ ). Raman Nair, C.J., and Raghavan .T., expressed their conclusions through the Chief Justice thus :

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"In the result we declare the following provisions of the Act void; Section 29-A, Section 32 in so far as (and only in so far as) it bars a Civil Court from prohibiting a person who has made an application for determination of fair rent from entering on the land to which the application relates so long as the application is pending. Section 45-A, sub-section (2) of Section 50-A, section 73, the Explanation to sub-section ( 1) of Section 85 and sub-section (7) of section 125. For the rest we dismiss the petitions but make it clear that this dismissal involves no pronouncement regarding provisions which we have not expressly considered. We make no order as to costs."

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B

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c

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Mathew J., in a separate judgment upheld the validity of s. 7.1 but on all other points he agreed with the majority.

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It may at the outset be pointed out that the Kerala Land Reforms Act, 1963 (Act No. I of 1964) as originally enacted wa' ';pecified in the Ninth Schedule to the Constitution (item No. 39 in that Schedule) and is, therefore, immune from comtitutional challenge founded on the ground that the provisions of ·the said Act arc inconsistent with or take away or abridge any of the rights conferred by any provision of Part III of the Cons'iitution : vide A't. 31-B. lt is only the subsequent amendment of the original rlCt which. having :1ot beein specified in the Ninth Schedule, is open to attack as violative of the fundamental rights guaranteed by Part III of the Constitution.

¶77

Section 73 of the impugned Act which was sul:lstituted for the old s. 73 of the original Act reads :

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"73. Discharge of arrears of rent.-

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( I) Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any contract, or in any .iudgment, decree or order of any court or tribunal. the landlord of a tenant specified in column (I) of the Table below shall be entitled to recover towards arrears of rent accrued due before the !st day of May, 1968 a:nd outstanding at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, only the amount specified in the corresponding entry in column (2) of the Table :

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(I) A.l.R. 1971 Ker. 98.

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KUNJUKUTTY V. KERALA (Dua,. /,)

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331

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A

¶88

Provided that where an intermediary has collected rent from his tenant for any period prior to the 1st day of May, 1968 and has not paid the rent payable by him to his landlord for the period for which he has so collected, he shall also be liable to pay the rent payable by him for such period to his landlord :

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B

¶90

Provided further that, sub~ect to the foregoing proviso, no intermediary shall be liable to pay to his landlord anything in excess of what he is entitled to receive under this sub-section,

¶91

c	Classof tenant	Amountofrenttobepaidfor discharge
	(!)	(2)
	Tenantpossessingnotmorethan_5_acres oflandintheaggregate,whetherasowner mortgage,lesseeorotherwise.	Oneyear'srentortheactualamount inarreurs,whicheverisless.
D	Tenantpossessingmorethan_5_acresbut not morethan10acresoflandintheag~ regate,whetherasowner,mortgage,lessee orotherwise.	Twoyear'srentorthe actual amount inarrears,whicheverisless.
	Tenant possessingmorethan10 acres oflandintheaggregate,whetherasowner, mortgage,lesseeorotherwise.	Threeyears'rentortheactualamoti\llt _in_arrears;whicheverisless.

¶92

c

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Provided that where the tenant is in possession of more than fifteen acres of land in the aggregate, whether as ow[J.er, mortgagee, lessee or otherwise, and the landlord is a small holder, the tenant shall be liable to pay the actual amount in arrears .

¶95

. F

¶96

Exp/anation.-For the purposes of this section, the rent for an year shall be deemed to be an amount equal to the rent payable .for the year immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1.969 and which has accrued due before such commencement.

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(2) Where any suit, appeal, revision or application which involves a claim by a landlord for arrears of rent accrued due prior to the 1st day of May, 1968, is pending before any court or Land Tribunal, such court or Land Tribunal may, after such enquiry as it deems fit, pass an order specifying.

¶100

(a) the amount to which the landlord is entitled under sub-section (I) ; ·

~-1286 S.1.> Cl/72

(1973] l S.C.R.

332

SUPREME COURT REPORTS

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A

¶106

.. ~ I) '"!

¶107

(b) the costs, if any, awarded to the h111dlord in connection with the conduct of the proceedings after the commencement of the Kerala Land Reforms (Amendment) Act, 1969; (c) the costs, if any, awarded to the tenant iin connection with the conduct of the proceedings after such commencement; and (d) where such· costs are awarded to the tenant, the amount due to the landlord deducting such costs. ( 3) Where any decree or order has been passed in favour of a landlord before the commencement of the Kerala Laind Reforms (Amendment) Act, 1969, by any court or Land Tril unal for the recove.:y of arrears of rent accrued due prior to the 1st day of May, 1968, such decree or order shall be enforceable only to the extent of the amount due to such landlord under sub-section (I); and to determine such amount, 'lllny of the parties to the decree or order may apply to the court or the Land Tribunal, as the case may be, which passed the decree or order, to amend such decree or order in accordance with the provisions of sub-section ( 1).

¶108

( 4) On receipt of an application under· sub-section ( 3), the court or the Land Tribunal, as the case may b~, may, after such enquiry as it deems fit, reopen the decree or order and pass an order containing the particulars specified in sub-section (2).

¶109

( 5) Any landlord who has not instituted a. suit or applied under section 26 fot ree<ivery of arrears of rent accrued due prior to the 1st day of May, 1968, before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, may apply to the Land Tribunal under that section for recovery oJ' the amount due to him under sub-section ( 1) of this section.

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(6) Notwithstanding ooything contained in section 26, on receipt of an application referred to in subsection ( 5), the Land Tribunal may, after such enquiry as it deems fit, pass an order containing the particulars specified in sub-section (2).

¶111

(7) The tenant shall deposit the amount specified in an order under sub-section (2) or sub-section ( 4) or sub-section ~ 6) as due from him in the court or Land Tribunal which passed the order within ir period of six months from the date of the order.

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II

KUNJUKUTTY v. KERALA (Dua, J.)

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333

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A ( 8) If the tenant fails to deposit any amount as required by sub-section ( 7), such amount shall, on a written requisition from the court or the Land Tribunal, as the case may be, to the District Collector, be recovered under the provisions of the Kerala Revenue Recovery Act, 1968, together with interest at the rate of six 8 per cent per annum from the date of the order under sub-section (2) or sub-section (4) or sub-section (6) as the case may be.

¶123

(9) Notwithstanding anything contained in this section a tenant who has paid the amount as provided in section 34 of the Kerala Agrarian Relations Act, 1960, c or in section 5 of the Kerala Ryotwari Tenants and Kudikidappukars Protection Act, 1962, for the discharge of arrears of rent outstanding on the 11th day oi April, 1957, or the arrears of rent accrued due after that date and outstanding on the 15th day of February, 1961, on or before the date specified in those Acts for the payment l) of the amount, shall not be liable to pay any amount towards arrears of rent for that period.

¶124

l)

¶125

( 10) The assignment by JI landlord of his right to receive arrears of rent to any other person shall not affect the benefits conferred on a tenant under this section."

¶126

E The majority opinion of the High Court, while striking down this section, observed :

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"Under s. 73, all arrears of rent accrued due before the 1st May, 1968 and outstanding at the commencement of the amending Act are wiped off except to the extent of one year's rent in the case of a tenant possessing not more than five acres of fand, of two years' rent in the case of a tenant possessing more than five acres but not more than ten acres of land, and three years' rent in the case of a tenant possessing more than ten acres. However, when the tenant is in possession of more than fifteen acres and the landlord is a small holder the tenant is liable to pay the entire arrears. This section, it seems to us, cannot get the protection of Article 31-A. Rent yet to accrue is no doubt a legal incident of the property concerned-see Section 8 of the Transfer of Property Actand the right to receive rent in the future might well be regarded as a right in the estate coqstituted by the land. But rent in arrear only constitutes a debt, and excepting perhaps to the extent to which it is a charge on the land, is not an interest therein. (See in this connection A.I:R. 1952 S.C. 252). The effect of Section 73 is not merelv

¶131

(1973] 1 S.C.R.

¶132

334

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SUPRllME COURT REPORTS

¶134

A

¶135

...

¶136

to deprive the landlord of the charge conferred Oil him by Section 42 but to wipe off the debt itself and this debt not being an interest in the land, it seems to us clear that the section cannot have the protection of Article 31-A. That protection is afforded only i:n so far as the acquisition, extinguishment or modification of rights in an estate are concerned. That is an esse,ntial element of agraria,n reform and the so-called incidental or anciilary provisions can get the protection only in so far as they are necessary for effectively implementing the reform or are otherwise an integral part of the reform. The liquidation of debt due from tenants ca,nnot be said to be necessary for implementing the law relating to the acquisition, extinguishment or modification of rights in estates or an integral part of that law and cannot therefore have the protection of Article 31-A. If it is necessary to rehabilitate indebted tenants by relieving them of their liability on account of arrears of rent, that must, like any other measure for relief of indebtedness, be justified in so far as it affects the property rights of the land,ord as a reasonable restriction in the interests of the general public within the meaning of Clause (5) of Article 19.

¶137

No material has been placed before us to show that that is so. The produce from the land is not solely of the tenant's own making. The landlord provides the capital asset necessary for the purpose, namely, the land, -before the Act it was not a crime to do sQ-.,and it carui.ot be in the interests of the general public to deprive him of his due share of the produce. Provisions for the fixation of fair rent have been in force throughout the State at least from 1964, and, in the Malabar area, from much earlier. For many years past, seasons have been favourable and yields have been good. The prices of agricultural produce have been high, while rents, even when payable in kind, are commuted into money at rates much less than the prevailing prices, and it is notorious that cultivators of land have been making big profits even after paying rent. The mere fact that since 1957 the legislature has from time to time thought fit to stay proceedings for the recovery of arrears of rent is not enough to show that tenants were not in a position to pay rent, and there is nothin11: to show that the arrears of rent accrued due are anything more than what the landowner can reasonably ask for his share or the tenant can reasonably be expected to pay. There were statutes in force by which, on the payment of rent for one year or more, the entire arrears could be discharged, and it does not

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KUNJUKUTTY V. KERALA (Dua, !.)

335

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seem to us ei'.her a reasonable restriction on the rights of the landlords, or something calculated to further the interests of the general public that persmis who declined to take advantage of these statutes and would not pay when they could, should be absolved of the liability to pay their due debts. We hold that Section 73 has not the protection of Article 31-A and is violative of Article 19(1)(f)."

¶150

The. dissenting opinion, upholding its validity, observed that in construmg the reasonableness of the provisions of s. 73 it is legitimate to look to the provisions of Art. 39 in Part IV of the Conc stitution which emphasises the Directive Policy of the Government so as to give purposive content to the restriction which Part III imposes upon the fundamental rights guaranteed by the Constitution.

¶151

The learned Advocati: General, in support of the 40 appeals by the State of Kerala and the Land Board, heavily relied on Pritam D Singh Chahil v. State of Punjab(1) in support of his attack on the majority view of the High Court and in his submission this decision completely covers the present case. Whiie developing his argument the learned Advocate General referred us to s. 42 of the impugned Act which provides that arrears of rent due to the landlord together with interest thereon shall be a charge on the interest of the tenant, from whom they are due, in the holding and shall, subject to the priority of the rights of the Government and any local authority for arrears of land revenue, tax, cess or other dues, be a first charge on sucli interest of the tenant. According to the submission, creation of charge by this section creates a right in the land which means a right in the estate and, therefore, the discharge of arrears of rent in accordance with the table contained in s. 73 F being extinguishment of a right in the estate, is protected by Art. 31-A. Reference in support of the argument that charge is an interest in property was also made to the decision in the Statt of Gujarat v. Jetawat Lalsingh Amarsingh & ors.(² ) where, while construing s. 14(1) of the Bombay Merged Territories and Areas (fagir Abolition) Act, 39 of 1954 this Court observed in para 8:

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G

¶153

G "We are also in agreement with the High Court that the right to receive cash allowance of Rs. 234/12/- annually from the J agir is one of those rights that have got to be compensated under s. 14( 1). That liabilit:r was not the personal liability of the Jagirdar. The first respondent was entitled to get that amount from the H. Jagir. In other words it was a charge on the Jagir. Therefore, it is an interest in property."

¶154

(I) [1967) 2 S.C.R. 536.

¶155

(2) A.I.R. 1969 S.C. 270.

¶156

[1973] l S.C.R.

¶157

SUPREME COURT REPORTS

¶158

336

¶159

A.

¶160

It is noteworthy that s. 14(1) there covered the case of a person other than Jagirdar who, was aggrieved by the provisions of the impugned Act abolishing, extinguishing, or modifying "any of his rights to or interest in property" and such person's right to get the allowance was held to amount to an interest in property. It was not held to be a right in property. Indeed, it was expressly observed at p. 272 of the report that it was "not necessary to consider whether that interest can be considered as a right in the pr9perty". Reliance in this connection was also placed 1:fy the learned Advocate-General on M. K. Subbachariar v. The State of Madras('), Ranjit Singh v. State of Punjab('), State of Bihar v. Umesh Jha(') and on the observations of S. R. Das, J., (as he then was) on the question cf legality of acquisition of arrears of rent in State of Bihar v. Maharadhiraja Sir Kameshwar Singh of Darbhanga('). The majority view in Kameshwar Singh's case (supra), it may be pointed out, was not in accord with these observations, for the. majority held the acquisition of arrears of rent to be unconstitutional. The other decisions cited by the learned Advocate-General also do not support his submission. Ran/it Singh's case (supra) is an authority for the view th~t the expression "agrarian reform" calls for a wider meaning than was given to it by K. K. Kochunni v. State of Madras(') and in Jha's case (supra) the validity of s. 4(b) of the Bihar Land Re.forms Act, 1950 as amended in 1959 which authorised annulment of anticipatory transfer of land designed to defeat the object of the Act, was held to be protected biy Art. 31-A of the Constitutior1. ·

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The Acts impugned in the Madras decision in Subbachariar's case (supra) were held to fulfil the requirements of Art. 31-A(l)(a), and, therefore, protected from attack founded on violation of Arts. 14, 19 and 31 of the Constitution; After so holding the High Court observed :

¶166

"It follows that the validity of the Acts cannot be questioned even on the ground that no compensation whatsoever has been provided for the acquisition of certain specific interests.

¶167

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¶168

On this conclusion strictly speaking it is unnecessary to have any elaborate survey of the provisions of the Acts am;! eicamine whether and if so to what extent they a'e violative cf Articles 14 and 31 of the Constitution."

¶169

The decision of this Court in Kameshwdr Singh's case (supra) was distinguished. A passing reference was also made. by the appellant to Khajam:an Wakf Estates v. The State of Madras(⁶ ). But there (1) I.L.R. (1967) 2 Mad. 646. (2) [1965] I S.C.R. 82. (3) [1962] 2 S.C.R. 687. (4) [1952] S.C.R. 889 't 1000-1002. (5) [1963] 3 S.C.R. 887, (6) A.l.R. 1971 S.C. 161.

¶170

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¶171

KUNJUKUTTY V. KERALA (Dua, J.)

¶172

337

¶173

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the enactments challenged being laws providing for the acquisition by the State of "estate" as contemplated by Art. 31-A were held to be completely protected by Art. 31-A of the Constitution from the attack on the ground of violation of Arts. 14 19 and 31. In regard to the provision. reducing the liability of the tenant with respect to the arrears o.f rent the only challenge raised in that case B questioned the competency of the legislature to make the law and this was repelled with the observation :-

¶175

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"Those arrears are either arrears of rent or debts due from agriculturists. If they are treated as arrears of rent then. the State legislature had legislative power to legis. late m respect of the same under Entry 18 of List II of the VIIth Schedule. If they are considered as debts due from the agriculturists then the State legislature had competence to legislate in resp1~ct of the same under Entry 30 of the same list."

¶177

The precise question with which we are concerned was not canvassed there.

¶178

D

¶179

D The argument that arrears of interest is a charge on the estate and, being, therefore, a right in land, can be extinguiShed as an estate, is not supported by the true ratio of the decisions cited by the learned Advocate General and is otherwise too unacceptable on the language cf the impugned statutory provisions. The liability to pay arrears of rent under the impugned Act, assuming the charge E created by s. 42 is an interest in land, is not a right in land : besides the liability being also a personal liability it would clearly amount to a debt. Acquisition or extinguishment of such a personal liability for payment cf money cannot be covered by Ait. 31-A. That money cannot be acquired is clear, as already pointed out, from the majority view of this Court's decision in Kameshwar Singh's F case(1). Looking at the table incorporated in s. 73 it is obvious that the amount of rent to be paid for getting discharge of the whole debt has been arbitrarily fixed and does not seem to be founded on any rational, logical or jug! basis.

¶180

But the learned Advocate General contended that without discharging tb arrears of rent or at least a major part of it,' the obuect of the land reforms would be stultified as the indebtedness of the G tenants would remain unameliorated. To reduce the indebtedness of the tenants appreciably is a reasonable restriction on the rights of the creditors and the law thus providing for amelioration of indebtedness of tenants deserved to b~ upheld as constitutional. We grant that amelioration of indebtedness of tenants is a laudable and desirable object. But the person to whom the arrears of rent are H due is also entitled to seek protection of his legitimate right and il the acquisition of arrears of rent is outside the protection of Art. (I) [1952] S.C.R. 889.

¶181

[1973] 1 S.C.R.

¶182

338

¶183

SUPREME COURT REPORTS

¶184

31-A then the impugned provision cannot but be held invalid. It prima facie partakes of the character of forfeiture or confiscation of the discharged arrears. Article 39 of tqe Constitution tc, which re.ference was made can be implemented b~ other permissible means without violating or abridging the just and legitimate rights of those to whom the arrean of rents are due. Section 73, therefore, in our opinion, was rightly struck down by the majority opinion.

¶185

It was conceded before us that ifs. 73 goes, then, s. 4/ 5-A must also be struck down as unconstitutional. Section 45-A, broadly speaking, provides that rent received after May 19, 1967 but before the commencement of the amendment Act of 1969, and appropriated towards arrears of rent for the period prior to May 1, 1966 shall be adjusted towards rent accrued due for period after May l, 1966.

¶186

This takes us to the explanation to s. 85 (1) which was the only other provision with respect to which the judgment of the High Court was assailed by the learned Advocate General in this Court. That provision, so far as relevant, reads :

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"85. Surrender of excess lands.-

¶192

( 1) Where a person owns or holds land in excess of the ceiling area on the date notified under s. 83, such excess land shall be surrendered as hereinafter provided :

¶193

Provided that where any person bona fide believes that the ownership or possession of any land owned or held by such person or, where such person is a member of a family, by the members of such family, is liable to be purchased by the cultivating tenant or kudikidappukaran or to be resumecl by the landowner or the intermediary under the proyisions of this Act, the extent of the land so liable to be purchased or to be resumed shall not be taken into account in calculating the extent of the land to be surrendered under this sub-section.

¶194

Explanation.-Whe'e any land owned or held by a family or adult unmarried person owning or holding land in excess of the ceiling area was transferred by such family or any member there~f or by such adult unmarried person, as the case may be, after the 18th December, 1957, and on or before the date of publication of the Kerala Land Reforms Bill, 1963, in the Gazette, otherwise than-

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(i) by way of partition; or

¶200

(ii) on account of natural love and affection; or

¶201

KUNJUKUTTY v. KERALA (Dua, J.)

¶202

339

¶203

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¶204

(iii) in favour of a person who was a tenant of the holding before the 18th December, 1957, and continued to be so till the date of transfer; or

¶205

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(iv) in favour of a religious, charitable or educational institution o,f a public nature solely for the purposes of the institution,

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the extent of land owned or held by such family or adult unmarried person shall ble calculated for purposes of fixing the extent of land to be surrendered under this section as if such transfer had not taken place, and such family or adult unmarried person shall be bound to surrender an extent of land· which would be in excess of tht" ceiling area on such calculation, or, where .such family or person does not own or hold such extent of land, the entire land owned or held by the family or person; but nothing in this Explanation shall affect the rights of the transferee under the transfer."

¶210

'{

¶211

The High Court struck down this provision with the following observations :

¶212

"Section 85 provides for the surrender. of excess land, but sub-section ( 1) thereof contains an explanation which we think cannot stand. Under the explanation, E subject to certain exceptions, any land transferred by a person holding land in excess of the ceiling area between the 18th December, 1957 (the date of publication of the Kerala Agrarian Relations Bill) and the date of the publication of the Kerala Land Reforms Bill, 1963 (here we think that ceiling means the ceiling area under the Act, F for it does not appear there was any ceiling area during the period in question) is to be regarded as still held by him for the purpose of fixing the extent of land to be surrendered by. him and such surrender is to be made out of the land still held by him. 'This can lead to absurd results. For example, supposing a person holding land G just one cent in excess of the ceiling area ha~ transferred some lands between the dates mentioned and bought the lands now held by him, possibly at a higher price, he will have to surrender all his laud for the nominal compensation prqvided by section 88. N() doubt, a~surdities like this can only be attacked under Articles 14, 19 or 31 which are not available in the case of a legislatinn H protected by Art. 31-A, bui, the:e is the second proviso tn sub-clause (a) of clause (1 ) ol' the article which enjoins the payment of compensation not less than the

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SUPREME COURT REPORTS

¶218

[1973] l S.C.R.

¶219

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¶220

m';ll:ket ".al~e for the acquisition of any land within the ceiling lnn1t under the law for the time being in force. '.J'he effect of the explanation is to. offend this proviso since 1t means at even land held by a person within the ceiling lllillt applicable to him under the Act (the law for the time being in force within the meaning of the article) can be takn away for the nominal compensation payable under section 88, by the fiction of regarding lands disposed of by him within the dates mentioned as if those lands were still held by him although the transfer remains untouched, in other words, as if the ceiling limit for such a person is different from the ceilin_g limits for persons who had not disposed of land between the relevant dates, That 1s not so. The ceiling limits imposed by the Act are the same for all, but, in the cese of a person who has so disposed of land, that land is to be regarded as still held by him (although, in fact, it is not) for the purpose of calculating the extent of the land to be surrendered by him, and the surrender is to be made out of the land still held, even if its effect be to leave him with land less than the ceiling limit, indeed with no land at all. If a fiction by which land not held by a person could be taken into account for the determination of the excess land to be surrendered by him, and he could be forced to surrender land actually held tty him although it is within the ceiling limit without payment of the market value thereof, were permitted, the proviso in question could easily be rendered nugatory. That would be to mock the proviso."

¶221

This reasoning ,eems to us to be unexceJ;donable and the learned Advocate General was wholly unable to offer any serious criticism of these observations. It is clear that by virtue of the second proviso to Art. 31-A(l) land within the ceiling limit is expressly protected against acquisition by the State unless the law relating to such acquisition provides for compe1,1Sation which is not less than its market value. No attempt was made to take the impugned eJEplanation out of this constitutional inhibition. We therefore, do not find any reason to differ from the conclusions of the High Court.

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These were the only provisions with respect to which the learned Advocate-Qeneral addressed us in support of his appeals. The result, therefore, is that these appeals fail and are dismissed with costs.

¶229

We now turn to the three appeals (C.As. Nos. 143, 274 and 309 of 1971). In C.As. Nos. 274 and 309 of 1971 the first point urged before us was founded on Art. 31-A (1), second proviso by

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KUNJUKUTTY v. KERALA (Dua, !.)

¶232

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A virtue of which the State can have no power to acquire any poi1ion of land held by a person under his personal cultivation in the estate, which is within the ceiling limit applicable to him under a law unless the law empowering acquisition provides for compensation at a rate not less than the market value of such land. According to the argument when the amended Act reduced the ceiling limit

¶234

B and required surrender of the land held in excess of the limit fixed · by the amended Act, without payment of compensation at market value, it violated the constitutional inhibition contained in the second proviso to Art. 31-A (I). We are unable to sustain this contention. It was not disputed that the ceiling limit fixed by the amended Act was within the competence of the legislature to fix;

¶235

c nor was it contended that the ceiling fixed by the original unamended Act by itself debarred the legislature from further reducing the ceiling limit so fixed. Prior to the amendment undoubtedly no land within the personal cultivation of the holder under the unamended Act within the ceiling limit fixed thereby ~ould be acquired without payment of compensation according to the market value, but once ceiling limit was changed by the amended Act the

¶236

D £econd Proviso to Art. 31-A(l) must be held to re~er only to the new ceiling limit fixed by the amended Act. The ceiling limit originally fixed ceased to exist for future the moment it was re- placed by the amended Act. The prohibition contained in the second proviso operates only within the ceiling limit fixed under the existing law, at the given time. It is true that the new ceiling

¶237

E limit was fixed contemporaneously with the acquisition oE the land in excess of that ceiling limit. But it was not contended that a law so fixing the ceiling limit and acquiring the !and in excess would offend any provision of the Constitution. This submission must, therefore, be rejected.

¶238

The r.ext point urged in C.A. 274 of 1971 relates to s. 50-A(2)

¶239

of the amended Act. According to this sub-section where the tenant in respect of a nilam is a varamdar and the fishing right in that nilam is exercised by the landlord then such right gf the landlord shall cease to exist and the tenam shall be entitled to exercise such right. "Nilam". it may be pointed out, means land adapted for the cultivaticn of paddy: s. 2(38). "Varamdar" means the

¶240

G person who unde;takes cultivation under a varam arrangement and "varam" means an arrangement for the cultivation of nilc;m with paddy and sharing the produce, made between the owner or other person in lawful pcssession of the nilam and the person who undertakes cult.ivation under such arrangement, and includes the arrangements known as pathiyaram, pankuvaram and pankupattam:

¶241

H s. 2(60). Section 50-A(2) operates notwithstanding anyt!iing contained in any law or contract or any judgment, decree or order of the court. The High Court has struck down this provision but has added a rider. This is what the High Court has observed :

¶242

[1973] l S.C.R.

¶243

342

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SUPREME COURT REPORTS

¶245

"Accordingly, we strike down this provision, but might add that this cannot in any way affect the vesting of the landlord's rights in the Government if they have so vested under Section 72. That the income derived from fishing might not be taken into account in determining the compensation payable for the vesting cannot affect the provision for vesting so long as it has the protection of Art. 31-A".

¶246

1t is agreed at the bar that there is no case before us on the facts and circumstances of which this rider can operate. It is also stated .at the bar that a numbler of cases are pending in the High Court in which the precise point covered by the rider directly arises for adjudication. In our view, the High Court should not have expressed any opinion on this point in the manner it has been done, .such expression of opinion being unnecessary for giving relief to the parties approaching the High Court. This que,tion must, therefore, be left open to be determined by the High Court in cases in which the question directly arises.

¶247

The next question raise-\ in C.As. Nos. 143 and 274 of 1971 relates to the rights of kudikidappukars. The argument raised before us on behalf of the appellants in these two appeals is that the definition of "kudikidappukaran" is not confined to agricultural labourers alone but it covers even non-agriculturists with the result that it cannot be held to be covered by the provision which protects legislation dealing with agrarian reform. The High Court, dealing with this challenge has observed :-

¶248

"The principal objection taken to the provisions relating to kudikidappukars is that having regard to the definition of "kudikidappukaran", the rights will be available even to persons who have no connection with agriculture, in occupation of buts on land which is not agricultural. The conferment of rights on such persons would not be agrarian reform, and, therefore, the provisions cannot have the protection .of Article 31-A. But, in no case before us is it alleged that there is any such person claiming or likely to claim the benefit of the provisions in question. In fact, as we have said, all the lands with which these petitions are concerned are agricultural lands constituting estates, and, to deny the protection of Article 31-A to any particular provision it must be shown that that provision is not a measure of agrarian reform. As we have already remarked, the mere possibility of the provisions in question being applicable to cases not falling within. Article 31-A is no ground for denying the protection of that article in respect of the cases falling within its ambit.

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KUNJUKUTTY V, KERALA (Dua, J.)

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¶258

It is pointed out that the. proviso to Section 2(25) makes a kudikidappukaran even of a trespasser so 1ong as he was in occupation on the 16th August, 1968-the Bill of the amending Act was published on the 15th August-and continued to be in occupation till the commencement of the Amending Act, nan1ely, till the I st B January, 1970. A,nd that would be so even if the landowner has obtained a decree for possession against him. To encourage trespass by conferring rights on trespassers, even on trespas5ers against whom there is a decree for possessioD, cannot, it is said, be regarded as a measure of agrarian reform. That might well be so, c but, we are not called upon to consider the validity of the proviso in question since, so far as the cases before us are concerned, the application of the proviso is a mere theoretical possibility. In none of the cases is it said that there is any person claiming the benefit of the proviso against the petitioner concerned, and the challenge to the proviso must be left to be decided in a case where D the question actuaJly arises.

¶259

Generally speaking, it might be said that a kudikidappukaran is a hutment dwelfor in permissive occupation or the land on which his hut stands and who holds no land on which he could erect a homestead. Three cents of land in a city or major munici1>ality, five cents E in any other municipality and tenents in any panchayat area or township (it is said that there is no place in this State which is not comprised within a city or a municipality or a panchayat or a township) is regarded as the minimum land required for the purpose of erecting a homestead and it is only if the person concerned holds F land in excess of these limits that he is disqualified. It would, however; appear from Explanation I to the definition in Section 2(25) that the total extent Of all the land held by a person, not necessarily land continuously situated, is t-> '• taken into account for the purpose of the disquali. ,: .n, the conversion being made on the G blasis that the e cents of land in a city or major municipality is equivalent to ffve cents in any other municipality and to ten cents in ·a panchayat: area or township.

¶260

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¶261

Kudikidappus are mainly a feature or the coconut gardens in the coastal areas of the State and are largely confined to the Cochin and Travancore areas. As we H hP.ve seen, the occupation origin.ates in permission, and, although in most cases the permission might, in some measure, be prompted by charitable considerations, it is.

¶262

( 1973] l S.C.R

¶263

SUPREME COURT REPORTS

¶264

never wholly so. Some benefit in return, other than spiritual, is always expected. In some cases the kudikidappukars are agricultural labourers who were in the earlier days, expected to work for the holder of the land for a lower wage than the prevailing wage, and in all cases they are expected to keep watch over the land and prevent theft or trespas5. In the case of coconut gardens, the very existence of these dwelling houses in the midst of the gardens is beneficial to the trees in the immediate vicinity of the houses and increases their yield. So far as agricultural land is concerned, it seems to us that there is in all cases some connection between the existence of a kudikidappu therein and the cultivation of that land so that the conferment of benefits on kudikidappukars must prima facie be regarded as a measure of agrarian reform."

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And again,

"The real controversy is centered round Section 80-A to 80-G which by enabling a kudikidappukaran to buy not merely the site of his hut but also the surrounding land upto an extent of three cents in a city or major municipality or five cents in any other municipality dr ten cents in a panchayat area or township for a price which, both with regard to its amount and to the manner and time of its payment, can only be described as nomi-, nal, virtually make a gitft of the land to the kudikidappukaram. It has been argued that such a transfer of land to a person who had no manner of interest therein (by definition of kudikidappukaran has no interest in the land as such being only in permissive occupation of the site of his hut) cannot come within the ambit of subclause (a) of clause ( 1.) of Article 31-A since it involves no acquisition by · the State and no extinguishment or modification of any rights ir. the land constituting the estate. The provision is really for the compulsory acquisiti..m of the land by the kudikidappukaran without payment otf compensation and the circumstance that the article expressly provides only for acquisition by th~ State is a clear indication that acquisition by others is not included within its ambit, even if such acquisition might involve the extinguishment of the rights of the person to whom the land previously belonged. If the extinguishment involved in a transfer of the land from one person to another, namely, the extinguishment of the rights of the original owner, were comprised within the term, "extinguishment" as used in the article, it was unnecessary to have made separate and expr~ss. prov!sion for . ·acquisition by the State. Therefore, 1t 1s said, that

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345

KUNJUKUTTY v. KERALA. {Dua, J.)

¶276

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extinguishment within the meaningofthe articleis
extinguishment pure and simple and not extinguishment
whichisonly an incident of something else like a transfer
oran acquisition.
Itmeans a total annihilation of the
rights, not the substitution of one personbyanother in
that right.
Soruns the argument.
But, although the
argument sounds attractive enough,weare afraidithas
toberejected inviewof the decision of the Supreme
Court inAIR1959 S.C. 459 andAIR1959SC519.
Inthe fonner, itwasheld that the transfer of a landlord's
right to a tenant was an extinguishment, or, in any event,
a modification of the landlord's right in the estate,well
within the meaningofthese wordsasused in the article.
In.the latter, which also deal withcompuloryacquisition
of a landlord's right by a tenant,itwaspointed out that
provision for such acquisitionwasa modification of the
owner's rights in the land in that it obliges him to sell the
land notathis own price but at the price fixed by the
statute, and not to anyone he choosesbutto the person
specified therein, and in accordance with its provisions.
A transferofhisrights by theown1rof a land to a person
like a tenant already having some interest therein stands
onnodifferent footing from a transfer to a person having
no interest in the land from the pointofviewofthe
extinguishment or modification of the rights of the trans-
feror.
Although thisisnot expressly mentioned,we
thin'.•itisclear that the purpose of the transfer of the
land to the landless occupant of the hutisonly for pur-
poses .connectedwithagriculture-weare here speaking
only of agricultural land.
In the case of such land. even
if the_kudikidappukaran_isnot exclusively an agricultural
labourer, the land transferredtohimislikely tobeused
only for purposes of cultivation like growing a kitchen
gardenasan adjuncttohis dwelling house.
Itishardly
likelytobeused in entirety for building purposes
(although there mightbesome little extension of the
dwelling house) or for industrial or commercial purposes.
Thus, the transfer being of agricultural land to a landless
person primarily for agriculturalpurposes-itwould in
all probability make for more intensivecultivation-we
do not think that it canbesaid that itisnot a measure
of agrarian reform."

¶277

It was contended on behalf of the appellants that a large num-

¶278

H ber of kudikidappukarans are engaged in non-agricultural pursuits and they are free to deal with the homestead, the hut and the land tran~ferred to them in any way they like. There being no obligation on them to personally use the land for agricultural purpQSes,

¶279

346

¶280

[1973] 1 s.c.R.

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SUPREME COURT REPORTS

¶282

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there is no question of agrarian reform being promoted by this prov1s1on. The learned Advocate-General controverted the appellants' contention and sought further to support the conclusions of the High Court by drawing our attention to the report of the Agrarian Problem Enquiry Committee published by the Government of Cochin in 1949, particularly relying on para 146 of that report, a copy of which was produced before us in the course of hearing. The learned Advocate-General also drew our attention to the report of the Land Policy Committee, Travancore-Cochin published by the Government in 1950, abstracts of which were also produced before us in the course of hearing. Para 91 of this report was specifically relied upon. Our attention was further drawn by the learned Advocate-General to the proclamation promulgated by His Highness the Maharajah of Cochin in June, 194 7, giving relief against eviction of kudikidappukars, ·as also to certain provisions of the Travancore Prevention of Eviction of Kudikidappukars Act, 1949 and to the provisions of the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act, 1955. Placing reliance on the background as emerging from these reports the proclamation and the statutes, the learned Advocate-General submitted that providing for accommodation and some appurtenant land to kudikidappukars is an important part of agrarian reform and muiit be upheld. In the alternative, however, it -·as suggested that the provisions of the Act may be read down so as to confine the statutory benefit only to those kudikidappukars who are agricultural labourers. According to him the definition and the relevant provisions of the statute can be so read down as to bring them within the object of agrarian reform as understood in the light of the decisions of this Court.

¶284

Now as observed by the High Court in the passage already re~ produced, transfer of land to fue landless occupant of the hut, though not expressly so mentioned is only for the purposes connected with agriculture and the land in this passage is expresslv stated to mean agricultural land. The term agricultural land, it may also be pointed out, is used in the judgment of the High Court in the sense of the definition contained in Art. 31A(2) (a) (iii) of the Constitution. The· High Court has further stated, and it is not sho,yn that this is incorrect, that in none of the cases before it, is there any allegation that any person unconnected with agriculture is claiming the benefit of ss. 75 to SOG of the Act. In fact all the lands, with which the present cases are concerned, are agricultural lands con.stituting estates as contemplated by Art. 31-A of the Constitution. This is what the High Court says in the judgment :

¶285

"It might be that the expression, 'agrarian reform' is wide enough to include ameliorative measures for agriculturists, unrelated to rights in land, but, in the context

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KUNJUKUT1Y V. 'KBRALA (Dua, J,)

¶294

34V

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~ Ar~cle 31-A, it can comprise only measures affecting rights m estates and we ehall hereafter use the eJ1;pression in that limited sense.

¶297

It would appear that all the lands held by the petitioners in these caSes are agricultural lands-at any rate, B no arguments !1ave been addressed before us on ·the footing that any of them are not; the assertions in some of the petitions, such as that a pad<ly land is not agricultural land because for part. of the year, when it is under water, fishing is profitably conducted thereon, or that a coconut garden is not agricultural land because it happens to be situated within a city, have been rightly forgotten. c We might here repeat that we are' using the term, 'agricultural land' in the sense relevant in the context of Article 31-A, namely,. in the sense of the definition in subclause (lii) of cl. 2(a) of that article. It is the purpose for which the land is held, not its accidental use at a particlllar point of time, that detennines whether it is D agricultural land or not. If the land is held for purposes of agriculture or for purposes ancillary thereto (such as, for pasture or for the residence of. cultivators of land, agricultural labourers or village artisans), it is agricultural land. Otherwise not. We suppose that something or other can be, and often is, grown on any vacant land, E but that would not necessarily make it agricultural land for our purposes. To give an example the possibility of cultivating, or even lhe actual cultivation of, what is essentially a building 1ite in the heart. of a town wouW not make it agricultural land. It is the purpose for which it is held that determines its character and the existence of a few coconut trees or a vege.table patch on the land cannot alter 1he fact that it is held for purposes Of1>Uilding and not for puqt:>ses of agriculture."

¶298

And again, .after observing that constitutionally !JOO pprtion of the Act, if severable, is liable to be struck down while uphol.dlng the valid portions, the High Court adds :

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"For the aforesaid reasons, we: shall conside: the impugned provisions only in their application to agricultural land--as we have said, these petitions are not con0rned with non-agricultural land, at any rate, not directly. We wish to make it clear that we are expressing no opinion whatsoever about .their validity or otherwise in .their application to non-agricultural land.

¶302

We do not th!hk it &R be 1!eud that the Aot ""' a whole is a measure of agrarian reform, its main .object

¶303

S-Ll286 SupCI/72

¶304

(1973] l S.C.R.

¶305

SUPREME COURT REPORTS

¶306

348

¶307

A

¶308

being to confer such benefits as fixity of tenure and fair rent on cultivating tenants, to abolish intermediaries like landlords, beween the cultivator and the State, and to distribute lands held in excess of the ceiling to the landless. The Act as a whole must, therefore, get the protection of Article 31-A even if portions thereof have to fail for want of that protection."

¶309

Nothing convincing was said in this Court against these observations. In Ranjit Singh's case (supra) this Court considered it proper to place a liberal construction on Art. 31-A rn as to cover c<ises where the general scheme of legislation is definitely designed to carry out agrarian reform and something ancillary thereto has to be undertaken to give full effect to such reforms. This decision was approving'.y referred in Inder Singh v. State of Punjab('). Tnese decisions were noticed and followed by the High Court.

¶310

The learned Advocate-General in his reply also contended that we may, if necessary, read down the provisions of. the Act so as to confine its beneficial operation to those kudikidappukars who are primarily agricultural labourers and to the transfer of a cultural land to them so as to restrict the statutory>power to agrarian reform as enunciated by this Court in Ranjit Singh's case (supra) and other relevant cases. It may, however, be recalled that according to the High Court all the lands in the cases with which we are concerned are agricultural lands constituting estate> within the contemplation of Art. 31A(2) (a) (iii) and all the persons benefited by the impugned provisions are occupants of huts on such agricultural lands and are connected with agriculture. On the facts of these cases, therefore, there is no occasion for saying anything . beyond what the High Court has said on this aspect. We should, however, like to make it clear that we express no opinion where the provisions of this Act are utilised for lands which are not agricultural lands and do not constitute estates nor where the beneficiary happens to be a person not substanti::illy connected with agri·culture, occupying non-agricultural land or where the facts are not covered by the general test laid down in the case of Ranji Singh (supra)'. ·

¶311

Finally the objection raised at the bar was that the area of land permitted to be purchased by kudikidappukars is unreasonaDiy excessive and there is no obligation imposed on them to ·use the land for agricultural purposes. Here again, if as observed by the High Court, the main purpose of the transfer of agricultural land to the landless occupants is connected with agriculture and such land is likely to be used only for the purposes of cultivation, with which observation we are not persuaded to d~agree, then. such (I) [1967] 3 S.C.R 603.

B

c

D

F

E

G

H

KUNJUKUTTY v. KERALA (Dua, J.)

¶320

349

¶321

A transfer can properly be held to be .ancillary to agrarian reforms. The transfer appears to us. to be mainly of agricultural land, a part of which is intended to be utilis.ed for the purpose of erecting a homestead etc., by the cccupants. Such erection of a homestead etc., cannot in the circumstances of these cases deviate from the general agricultural purpose. The appellants' objection must on B this view be held to be devoid of merit.

¶322

In C.A. No. 309 of 1971 it was argued that under s. 72 what vests in the Government is only the landholder's right vis-a-vis the tenant and that this does not amount to acquisition. The counsel added that other rights of the appellants as OWl.ers could not be adversely affected. By way of illustration reference was made to c quarrying rights and it was suggested that the right to quarry could not be affected by this vesting. We do not consider it necessary to go into the question of the impact of the impugned provision of the Act on the rights to quarry as there was no allegation to this effect in the writ petitions. This point was not canvassed even in the High Court. This Court. as a rule, does not decide questions D which are not necessary for determining: or resolving the actual controversy arisinJ!: in the case. Such opinions partake of the nature of obiter. Without deciding ~ny hypothetical question posed before us we consider it sufficient for our present µurpose to point out that extinguishment or modification of .landlord's rights vis-a.vis the tenant would also be wit)lin the ambit of Art. 31-A of the Constitution if otherwJse it k related to agrarian reforms. E Section 72 is accordingly not liable tel be struck down on this ground.

¶323

With the foregoing observations th1~se three appeals are. also dismissed; but without any order a5 to costs.

¶324

F V.P.S.

¶325

Appeals dismissed.

¶326

I I'

Kunjuku'Tty Sahib etc. etc. v. State of Kerala & Anr.

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Kunjuku'Tty Sahib etc. etc. v. State of Kerala & Anr.

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