[Kerala Land Reforms Act] “Tenant” has a wider and inclusive definition and includes a deemed tenant under Section 7E: Kerala HC [Read Judgment]
The Single Bench of the Kerala High Court in the case of Diamond Crushers vs State of Kerala & Ors. consisting of Justice T.R. Ravi held that the word “tenant” has a wider and inclusive definition and also includes a deemed tenant under Section 7E. According to Section 7E, a buyer can be considered a tenant, regardless of the type of land they are purchasing. It is not necessary for the land to be used for cultivation. The fiction does not create a “cultivating tenant”.
Facts
The case revolved around two writ petitions that dealt with the rights of individuals recognized as tenants under Section 7E of the Kerala Land Reforms Act, 1963 ('KLR Act'). The individuals who were identified as tenants, also the petitioners, planned to engage in commercial activities on their individual plots of land. To proceed with their plans and fulfil the necessary requirements, they needed to obtain a survey plan that had been officially endorsed by the Tahsildar. This particular document was crucial for them to apply for a letter of intent, which would enable them to commence mining operations on their property. Unfortunately, the authorities in charge were unwilling to grant them the survey plan unless they first obtained government authorization for their proposed commercial activities.
Contentions Made
Petitioner: It was contended that Section 7E neither specifically mentions “cultivating tenant” nor places any restrictions on land use. Therefore, it can apply to commercial and industrial tenancy as well, and permission for mining activities cannot be denied. Additionally, it was argued that mining activities are regulated by the Mines and Minerals (Development and Regulation) Act, 1957 ('MMDR Act'), a Central Legislation, to develop the country through mineral extraction, and the Act governs subsoil rights regardless of ownership. The State Legislature can neither override its provisions nor stop mining activity on land assigned under the KLR Act. It was also argued that the KLR Act and KLR (Tenancy) Rules do not limit the use of lands exempted u/s 7E for purposes other than cultivation.
Respondent: The petitioner's claim about being exempt from Section 7E was not disputed. However, it argued that the petitioner's Certificates of Title showed that they were only allowed to use the land for cultivation and not for any other purpose. The counter affidavit did not address the petitioner's arguments about the MMDR Act and the claim that Section 7E applies to more than just cultivating tenants.
Observations by the Court
The Bench determined that the issue was only regarding the rights that were available to a deemed tenant u/s 7E of the KLR Act.
Section 7E of the KLR Act was amended to protect small holders and tenants who purchased land through registered documents from those holding excess land. This section includes a non-obstante clause that specifically mentions Sections 74 and 84 of the KLR Act. Section 84 deals with voluntary transfers after the KLR Act came into force that aim to bypass the land ceiling provisions. Section 7E provides an exemption and validates these transfers. Section 74 pertains to the creation of future tenancies. Sections 106B and 84(4) were introduced alongside Section 7E to fully implement its purpose. Section 106B allows for the issuance of a certificate of title, which acts as a record of ownership for those who bought excess land.
Reliance was placed on State of Kerala v. Fr. Xavier Karuvallil & Ors. to opine that the benefit of Section 7E does not require obtaining a certificate of title u/s 106B. The certificate of title is issued in a specific form according to Rule 122A of the KLR (Tenancy) Rules. Section 7E deems a purchaser as a tenant, regardless of the type of land being purchased. The fiction does not create a “cultivating tenant” as argued by the respondents based on the Certificate of Title. This was an apparent mistake because neither sections 7E, 84(4), and 106B nor Rule 122A specifically mentioned a “cultivating tenant”, but rather just a “tenant”. The word “tenant” has a broader definition and includes a deemed tenant under Section 7E. The argument that a deemed tenant under Section 7E should be understood as a “deemed cultivating tenant” was seen as legally unfounded. The use of the term “cultivating tenant” in Form 26B was a mistake and was declared as such.
Decision:
The Bench allowed the writ petitions. It directed the 3rd Respondent to provide the petitioners with approved survey plans within one month. This would allow the petitioners to apply for a Letter of Intent to conduct mining operations. However, it specified that it did not have an opinion on whether mining could be allowed on the lands in question, as that decision would be made by the appropriate authorities as per law.
Case: Diamond Crushers vs State of Kerala & Ors.
Citation: W.P.(C)No.22695/2022 & W.P.(C)No.23121/2022, on 20th July 2023
Bench: Justice T.R. Ravi
For Petitioner: Sri Alex. M. Scaria, Ms. V. Usha Nandini, Sri A. J. Riyas, Ms. Saritha Thomas, Sri Alen J. Cheruvil, Advs.
For Respondents: Secretary to Government, Department of Revenue (R-1), Sri Aswin Sethumadhavan, Govt. Pleader (R-6).
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