Chettiam Veettil Ammad & ANR Vs. Taluk Land Board & Ors [1979] INSC 95 (2 May 1979)
SHINGAL, P.N.
SHINGAL, P.N.
REDDY, O. CHINNAPPA (J)
CITATION: 1979 AIR 1573 1979 SCR (3) 839 1980 SCC (1) 499
CITATOR INFO :
R 1984 SC 718 (22) RF 1992 SC1144 (10)
ACT:
Kerala Land Reforms Act, 1963, Sections 81, 82, 82(4), 84(3) & 84(5)-Scope of.
HEADNOTE:
The Kerala State Legislature felt the necessity of making comprehensive land reforms in the State. The Kerala Agrarian Relations Act, 1960 (Act IV of 1961) was accordingly passed and received the assent of the President on January 21, 1961. Some of its provisions were brought into force with effect from February 15, 1961. That Act was struck down as unconstitutional by this Court. The Kerala Ryotwari Tenants and Kudikidappukars Protection Act, 1962 was then passed for the temporary protection of tenants in those taluks. The Kerala High Court declared it null and void in its application to the ryotwari lands of the Malabar area and most of the lands of Travancore area. As an interim legislation, the Kerala Tenants and Kudikidappukars Protection Act 1963 was passed to provide some protection to the tenants. But it repealed the Kerala Ryotwari Tenants and Kudikidappukars Protection Act, 1962, and suspended the operation of the Kerala Agrarian Relations Act, 1960. After re-examining the requirements in the field of land reforms as a whole, the Kerala Land Reforms Bill, 1963 was published in the State Gazette on Sept. 15, 1963. It covered a wide field in the matter of land reforms and, inter alia, provided for the imposition of a ceiling on `holdings' of lands, the surrender of excess of lands, grant of compensation thereof, and the assignment of the surrendered lands in accordance with the order of priority mentioned in the Bill, collection of purchase price, constitution of Land Tribunals etc. The Land Reforms Act 1963 (Act 1 of 1964) received the assent of the President on Dec., 31, 1963. It was amended extensively, and in several material particulars by Act, 35 of 1969, Act 25 of 1971 and Act 17 of 1972.
The following three main points of controversy arose in the appeals :
1. Whether lands converted into plantations between April 1, 1964 and January 1, 1970 qualified for exemption under s. 81(1)(e) of the Act.
2. Whether a certificate of purchase issued by the Land Tribunal under s. 72K of the Act was binding on the Taluk Land Board in proceedings under Chapter III of the Act.
3. Whether the validity or invalidity of transfers effected by persons owning or holding lands exceeding the ceiling limit could be determined with reference to the ceiling area in force on the date of the transfer or in accordance with the ceiling area prescribed by Act 35 of 1969-whether sub-section (3) of s. 84 was retrospective in operation.
HELD : Point No. 1. The controversy is whether the restriction of sub. section (4) of section 82 came into force on January 1, 1970, because section 12 of the amending Act of 1971 was brought into force on that date, or 840 whether it came into force on April 1, 1964, when section 82 as originally enacted came into force. [853H, 854G] All the three Acts contain provisions about their "commencement". Subsection (3) of section 1 of the Act provides that : (i) Section 1 of the Act shall come into force at once, (ii) the other provisions of the Act shall come into force on such dates as the Government may appoint, (iii) different dates may be appointed for different provisions of the Act, and (iv) any reference in any such provision to the "commencement of this Act" shall be construed as a reference to the coming into force of that provision. The Act was published in the Gazette on January 14, 1964, and, by virtue of section 3 of the Kerala Interpretation and General Clauses Act, section 1 came into force on that date. Sec. 82, as has been stated, came into force on April 1, 1964, and the reference in sub-section (4) of that section to the "commencement of this Act" meant a reference to the coming into force of that provision with effect from April 1, 1964. It may be that the first three rules or directions contained in sub-section (3) were spent on the coming into force of sec. 1 of the Act or its other provisions on the dates appointed for them, but, for obvious reasons, rule (iv) continued to hold the field inasmuch as it laid down the rule of construction that any reference to the commencement of the Act shall be construed as a reference to the coming into force of that particular provision. It was therefore applicable as a general rule of construction whenever it became necessary to ascertain the date of commencement of a particular provision of the Act other than section 1. [854G, 855B-F] Sub-section (4) of section 82, as originally incorporated in the Act, came into force on April 1, 1964.
It was amended by section 66 of the Amending Act of 1969, which came into force on January 1, 1970, but that proved to be fortuitous and was supplanted by section 12 of the Amending Act of 1971 from the same date. The sub-section as amended by the Amending Act of 1971 also dealt with the conversion of land into any other class of land "after the commencement of this Act", but it added the words "or into a plantation" and provided that such conversion shall not be taken into consideration for determining the extent of the land to be surrendered. [855F-H] On the plain meaning of the proviso to sub-section 3 of section 1, it follows that when the provision of sub-section 4 of section 82 was brought into force on April 1, 1964, its amended version also came into force from that date. [856B, E] No particular significance attaches to the use of the expression "provisions" or "provision" in section 1(3) of the Act. A provision is a distinct rule or principle of law in a statute which governs the situation covered by it. So an incomplete idea, even though stated in the form of a section of a statute, cannot be said to be a provision for, by its incompleteness, it cannot really be said to provide a whole rule or principle for observance by those concerned. A provision of law cannot therefore be said to exist if it is incomplete, for then it provides nothing. [856G, 857C-D] The amended section 82 of the Act is a distinct rule or a clause for it provides the extent of the ceiling area in the cases mentioned in it, its effect on the lands owned or held individually by members of a family or jointly 841 by some or all the members of the family, the taking into account of the shares of the members of the family or an adult unmarried person, the effect of conversion of any class of land into any other class of land specified in the Schedule or into a plantation and the extent of land liable to be surrendered, lands covered by a private trust or a private institution and exemption of land covered by section 81(6). The section is therefore a "provision" by any standard as it states the law relating to the imposition of ceiling on land. It may well be stated that sub-section (4) of section 82 is also a provision of the law by itself, for it lays down a distinct rule relating to conversion of land for observance by all concerned. [857D-F, H, 858A] The view taken by the High Court in Ramunni Nair v. State of Kerala, (1976) KLT 632, in regard to the meaning to be attached to the words "the commencement of this Act" is substantially correct and does not call for interference.
[859B] There is no force in the other argument that a landholder is, in any event, entitled to the benefit of the exemption under section 81 as amended by the Act of 1969 in respect of the "extent of plantation within the ceiling area" even though it were converted into a plantation during the period April 1, 1964 to December 31, 1969. The argument is untenable because while sub-section (1) of section 81 provides that the provisions of Chapter III shall not apply to lands and plantations mentioned in it, that is overridden by, and is subject to the requirement of, sub-section (4) of section 82. [859D-F] Reference made to Saidu Muhammed v. Bhanukuitan (1967) KLT 947 State of Kerala & Ors. v. Philomina etc., [1977] 1 SCR 213, and State of Kerala & Ors. v. K. A. Gangadharan, [1977] 1 SCR 960.
Point No. 2.
The question for consideration is whether the certificate of purchase issued by the Land Tribunal under section 72K of the Act is binding on the Taluk Land Board in proceedings under Chapter III of the Act for the purpose of taking a decision in regard to the ceiling area under sub- section (5) of section 85. Sub-section (1) of that section shows that the question for examination by the Board is not that relating to the existence of the tenancy rights of the person who files the statement under sub-section (2), but that relating to the bona fides of his belief that the land sought to be excluded by him is liable to be purchased by a cultivation tenant. The Land Tribunal and the Taluk Land Board thus operate in their respective fields for the purpose of the Act. [860 B, E-G].
Sub-section (2) of section 72K merely declares that the certificate of purchase shall be conclusive proof of the "assignment" of the right, title and interest of the landowner and the intermediary (if any) to the tenant in respect of the holding concerned. There is nothing in the sub-section to require that the finding recorded by the Tribunal in those proceedings would be conclusive proof of any other matter so as to bind the Taluk Land Board or any authority. Sub-section (2) of section 72K therefore does not impinge on the authority of the Taluk Land Board to discharge its own functions under section 85(5). [860G-H, 861A-B] As such the Board is quite free to cause the particulars mentioned in the statement to be verified, and to ascertain whether the person filing it owns or holds any other land, and to determine the "extent" as well as the "identity" of the excess land which he is required to surrender. In that sphere of work, 842 the certificate of purchase is not required by law to be conclusive proof in regard to the surplus or any other land held by its holder so as to foreclose the decision of the Taluk Land Board under sub-section (5) of section 85. [861B- D] Moreover, although the certificate of purchase is conclusive proof in respect of the matters stated in section 72K(2), that only means that no contrary evidence shall be effective to displace it, unless the so called conclusive evidence is inaccurate on its face, or fraud can be shown (Halsbury's Laws of England, fourth edition, vol. 17, page 22 paragraph 28). "Inaccuracy on the face" of the certificate is not as wide in its connotation as an "error apparent on the face of the record". It will therefore not be permissible for the Board to disregard the evidentiary value of the certificate of purchase merely on the ground that it has not been issued on a proper appreciation or consideration of the evidence on record, or that the Tribunal's finding suffers from any procedural error. What sub-section (2) of section 72K provides is an irrebutable presumption of law, and it may well be regarded as a rule of substantive law. But even so, it thereby does not take away the jurisdiction of the Taluk Land Board to make an order under section 85(5) after taking into consideration the "conclusive" evidentiary value of the certificate as far as it goes. [861E-H, 862A] The view taken in Kunianujan Thampuran & Ors. v. Taluk Land Board, (1976) KLT 716 is thus not quite correct. [862B] Point No. 3.
Some of the persons who owned or held lands exceeding the ceiling prescribed by the Act, had voluntarily transferred some of their lands after the publication of the Kerala Land Reforms Bill, 1963, in the State Gazette on September 15, 1963. Section 84 of the Act therefore provides that, except for the transfers mentioned in the section, the transfers so made shall be deemed to be transfers calculated to defeat the provisions of the Act, and shall be invalid.
The section has thus been linked with section 82 which specifies the ceiling area, and has been so amended as to reduce that area considerably. The question is whether the validity of a voluntary transfer is to be determined with reference to the ceiling area in force on the date of the transfer, or the reduced ceiling area prescribed by the Amending Act of 1969. As has been observed by this Court in State of Kerala & Ors. v. K. A. Gangadharan, [1977] 1 SCR 960, section 84 has been enacted with a view to making the provisions of sections 83 and 85 effective. Section 15 of the Amending Act of 1972 (which inserted sub-section (3) in section 84) does not state that it has been made with retrospective effect, and sub-section (3) does not, in terms, state that it shall be deemed to have come into force from the date of the amendment which was made by the Amending Act of 1969. Even so, it is necessary to examine the true effect of the insertion and to decide whether it is retroactive. [862G-H, 863A, D, G, H, 864A-B] The primary rule of construction is that courts should be guided by the plain and clear language of the statute, for the legislature is intended to mean what it has expressed. It is an equally important rule of interpretation that a statute is not to be read retrospectively except for necessity. [864B] So construed, it is obvious that although the Act had not even come into force on September 15, 1963, it invalidated the transfers made after that date in excess of the ceiling area it prescribed. It follows therefore that so long as September 15, 1963 continues to remain the date with reference to which 843 the transfers are to be invalidated, the variation in the extent of the ceiling has necessarily to work back to that date. The legislature therefore inserted sub-section (3) of section 84 to clarify that the expression "ceiling area" in the earlier sub-sections would mean the ceiling area specified in section 82(1) as amended by the Amending Act of 1969, i.e. the reduced ceiling. [864D-F] In taking this view the Court made a reference to the notes on clauses to the Amending Bill of 1972 and observed that while it was true that the intention of the legislature cannot be ascertained from any statement by way of a note on the clauses of the Bill or, brevet, and the duty of the Court is to find the natural meaning of the words in a statute in the context in which they are used, it has always been considered permissible and even desirable to take note of the history of the statute and the circumstances in which it was passed or the mischief at which it was directed. The reason is that the meaning which is to be given to a statute should be such as will carry out its object. So viewed, it appears that, as has plainly been stated in it, the "ceiling area" referred to in sub-sections (1) and (2) of section 84 is the reduced ceiling area specified by the Amending Act of 1969. It is clearly retrospective, as it is meant to invalidate the transfers made after September 15, 1963 when the Bill of 1963 was published. [864F, 865G-H, 866A-B, C] The Court then examined some of the appeals separately and recorded its finding thereon. [866F-868 & 869, 879-877].
While examining civil appeal No. 1015 of 1976, the Court examined the question whether a child in the womb on January 1, 1970 was a member of the family for the purpose of section 82(1) (c) of the Act. It referred to the definition of the expression "family" in clause (14) of sec.
2 and of the expression "minor" as defined in clause (36A) and held that two postulates were necessary for obtaining the benefit of the increase of one standard acre for each member of the family in excess of five, namely, that the member should be in existence, and it should be possible to ascertain that he had not attained the age of 18 years on the appointed date. It was held that as both these conditions could not be said to exist in the case of a child en ventre sa mere, it would not be regarded as a member of the family for purposes of sec. 82 of the Act. [868D-F].
CIVIL APPELLATE JURISDICTION: CIVIL APPEAL NO. 1015 OF 1976 (Appeal by Special Leave from the Judgment and order dated 31-5-1976 of the Kerala High Court in CRP No.
1615/75).
CIVIL APPEAL NO. 1023 OF 1977 (Appeal by Special Leave from the Judgment and Order dated 3-1-1977 of the Kerala High Court in CRP No. 2879/76).
CIVIL APPEAL NO. 2811 OF 1977 (Appeal by Special Leave from the Judgment and Order dated 22-10-1976 of the Kerala High Court in CRP No. 1086/76).
CIVIL APPEAL NOS. 574-575 OF 1978 (Appeals by Special Leave from the Judgment and Orders dated 30-3-1976 and 11-10-76 of the Kerala High Court in CRP No. 1640 and Review Petition No. 73/76 respectively).
844 CIVIL APPEAL NO. 40 OF 1977 (Appeal by Special Leave from the Judgment and Order dated 25-11-1976 of the Kerala High Court in CRP No. 1880/76).
CIVIL APPEAL NO. 143 OF 1977 (Appeal by Special Leave from the Judgment and Order dated 28.9.1976 of the Kerala High Court in C.R.P. No. 599/76).
CIVIL APPEAL NO. 1309 OF 1977 (Appeal by Special Leave from the Judgment and Order dated 25-2-1977 of the Kerala High Court in CRP No. 4194/76).
CIVIL APPEAL NO. 1863 OF 1977 (Appeal by Special Leave from the Judgment and Order dated 26-5-77 of the Kerala High Court in CRP No. 1815/76A).
CIVIL APPEAL NO. 2070 OF 1977 (Appeal by Special Leave from the Judgment and order dated 18.8.1976 of the Kerala High Court in CRP No. 68/76).
CIVIL APPEAL NO. 2584 OF 1977 (Appeal by Special Leave from the Judgment and Order dated 2-9-1976 of the Kerala High Court in CRP No. 332/76- E).
CIVIL APPEAL NO. 2585 OF 1977 (Appeal by Special Leave from the Judgment and Order dated 12-10-1976 of the Kerala High Court in CRP No. 829/76).
CIVIL APPEAL NO. 2586 OF 1977 (Appeal by Special Leave from the Judgment and Order dated 12-10-1976 of the Kerala High Court in CRP No. 726 of 1976).
CIVIL APPEAL NO. 2587 OF 1977 (Appeal by Special Leave from the Judgment and Order dated 20.12.1976 of the Kerala High Court in CRP No. 3209/76).
CIVIL APPEAL NO. 2623 OF 1977 (Appeal by Special Leave from the Judgment and Order dated 10-12-1976 of the Kerala High Court in CRP No. 2626/75).
CIVIL APPEAL NO. 290 OF 1978 (Appeal by Special Leave from the Judgment and Order dated 3-1-1978 of the Kerala High Court in CRP No. 1977 of 76-A).
CIVIL APPEAL NO. 362 OF 1978 (Appeal by Special Leave from the Judgment and Order dated 29-7-1977 of the Kerala High Court in CRP No. 1553/77- D).
845 CIVIL APPEAL NO. 882 OF 1978 (Appeal by Special Leave from the Judgment and Order dated 29-11-1977 of the Kerala High Court in CRP No. 4574/78-G).
CIVIL APPEAL NO. 227 OF 1978 (Appeal by Special Leave from the Judgment and Order dated 15-3-1977 of the Kerala High Court in CRP No. 3028/76- E).
CIVIL APPEAL NO. 869 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 12-10-1977 of the Kerala High Court in CRP Nos. 635 and 859 of 1976).
CIVIL APPEAL NO. 870 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 25-7-1977 of the Kerala High Court in CRP No. 2333/77).
CIVIL APPEAL NO. 871 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 27-9-1976 of the Kerala High Court in CRP No. 128/76- B).
CIVIL APPEAL NO. 872 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 15-10-1976 of the Kerala High Court in CRP No. 465/76).
CIVIL APPEAL NOS. 873-874 OF 1979 (Appeals by Special Leave from the Judgment and Order dated 4-3-1977 of the Kerala High Court in CRP Nos. 1682 and 1706/76D).
CIVIL APPEAL NO. 875 OF 1979 (Appeal by Special Leave from the Judgment and order dated 2-2-1978 of the Kerala High Court in CRP No. 383/78- A).
CIVIL APPEAL NOS. 876-877 OF 1979 (Appeals by Special Leave from the Judgment and Order dated 17-3-1978 of the Kerala High Court in CRP Nos. 4977 and 4978 of 1976-A).
CIVIL APPEAL NO. 878 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 20-3-1978 of the Kerala High Court in CRP No. 4980 of 1976-B).
CIVIL APPEAL NO. 879 OF 1978 (Appeal by Special Leave from the Judgment and Order dated 20-3-1978 of the Kerala High Court in CRP No. 21/77- B).
CIVIL APPEAL NO. 881 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 26-7-1978 of the Kerala High Court in CRP No. 2098/78).
846 CIVIL APPEAL NO. 883 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 2-8-1978 of the Kerala High Court in CRP No. 2203/77- G).
CIVIL APPEAL NO. 884 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 1-9-1978 of the Kerala High Court in CRP No. 1978 of 78-F).
CIVIL APPEAL NO. 885 OF 1979 (Appeal by Special Leave from the Judgment and order dated 17-7-1978 of the Kerala High Court in CRP No. 146/77- C).
CIVIL APPEAL NO. 886 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 16-8-79 of the Kerala High Court in CRP No. 2351/78A).
CIVIL APPEAL NO. 889 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 23.11.1978 of the Kerala High Court in CRP No. 28 of 77-C).
CIVIL APPEAL NO. 890 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 3-11-1978 of the Kerala High Court in CRP No. 5358/76- E).
CIVIL APPEAL NO. 894 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 19-12-1977 of the Kerala High Court in CRP No. 3980/77E).
CIVIL APPEAL NO. 895 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 2-12-1977 of the Kerala High Court in CRP No. 2542/77B).
CIVIL APPEAL NO. 896 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 31-3-1978 of the Kerala High Court in CRP No. 3264/76- F).
CIVIL APPEAL NO. 897 OF 1979 (Appeal by Special Leave from the Judgment and order dated 27-5-1977 of the Kerala High Court in CRP No. 1978/76- A).
CIVIL APPEAL NO. 898 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 12-8-1977 of the Kerala High Court in CRP No. 2898/77- C).
CIVIL APPEAL NO. 899 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 3-8-1978 of the Kerala High Court in CRP No. 4686/76- A).
CIVIL APPEAL NO. 900 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 8-9-1978 of the Kerala High Court in CRP No. 3941/76).
847 CIVIL APPEAL NO. 901 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 28-2-1977 of the Kerala High Court in CRP No. 1665 of 1976).
CIVIL APPEAL NO. 902 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 2-3-1978 of the Kerala High Court in CRP No. 633/78- E).
CIVIL APPEAL NO. 903 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 26-7-1978 of the Kerala High Court in CRP No. 4762/76- F).
CIVIL APPEAL NO. 1019 OF 1979 (Appeal by Special Leave from the Judgment and Order dated 18-10-1978 of the Kerala High Court in CRP No. 1117/78-H).
CIVIL APPEAL NO. 1015/76 For the Appellants: T. R. G. Warriyar and A. S. Nambiar For the Respondents: P. A. Francis and N. Sudhakaran.
CIVIL APPEAL NO. 1723/77 For the Appellant: K. S. Ramamurthi, T. R. G. Warriyar, S. Balakrishnan, C. S. A. Iyer, M. K. D. Namboodari and C.
K. Bharthan.
For the Respondents: M. M. Abdul Khader, Advocate General, Kerala and K. M. K. Nair.
For the Intervener: K. K. Venugopal, Addl. Sol. Genl, and K. J. John.
CIVIL APPEAL NO. 2811 OF 1977 For the Appellant: K. N. Bhat and V. K. Verma, For the Respondents: Dr. V. A. Seiyed Mohammad and K. M. K. Nair.
CIVIL APPEAL NOS. 574-575/78 For the Appellants: G. B. Pai, K. J. John and J. B. Dadachanji.
For the Respondents: K. T. Harindra Nath and V. J. Francis.
CIVIL APPEAL NO. 40/77 For the Appellant: M. C. Bhandare, K. J. John, and J. B. Dadachanji.
For the Respondents: P. A. Francis and N. Sudhakaran.
CIVIL APPEAL NO. 143/77 For the Appellants: T. C. Raghavan and P. K. Pillai.
For Respondents 1-2: K. M. K. Nair.
848 CIVIL APPEAL NO. 1309/77 For the Appellant: T. C. Raghavan, and N. Sudhakaran, For the Respondents: K. M. K. Nair.
For the Intervener: Mathai M. Paikeday and N. Sudhakaran.
CIVIL APPEAL NO. 1863/77 For the Appellant: T. R. G. Warriyar and A. S. Nambiar, For the Respondents: K. R. Nambiar and V. J. Francis, CIVIL APPEAL NO. 2070/77 For the Appellant: T. C. Raghavan, N. Sudhakaran and P.
K. Pillai, For the Respondents: K. M. K. Nair, CIVIL APPEAL NO. 2584/77 For the Appellants: T. C. Raghavan, N. Sudhakaran and P. K. Pillai, For Respondents 1-3: P. A. Francis and K. M. K. Nair.
CIVIL APPEAL NO. 2585/77 For the Appellant: M. C. Bhandare, Mrs. S. Bhandare, P.
Santhalingam, A. N. Karhanis and Miss M. Poduval.
For the Respondents: K. M. K. Nair, CIVIL APPEAL NO. 2586/77 For the Appellant: P. K. Pillai.
For the Respondents: K. M. K. Nair.
CIVIL APPEAL NO. 2587/77 For the Appellant: K. T. Harindra Nath and N. Sudhakaran.
For the Repondents: V. J. Francis.
CIVIL APPEAL NO. 2623/77 For the Appellant: T. R. G. Warriyar and A. S. Nambiar.
For the Respondents: G. Govindan Nair and K. R. Nambiar.
CIVIL APPEAL NO. 290/78 For the Appellants: Anant Krishnan, S. Balakrishnan and M. K. D. Namboodri.
For the Respondents 1-3: P. Govindan Nair and K.M.K. Nair.
CIVIL APPEAL NO. 362/78 For the Appellants: K. T. Harindernath and Mrs. S. Gopala krishnan.
For the Respondents: K. M. K. Nair.
CIVIL APPEAL NO. 882/78 For the Appellants : T. C. Raghavan, S. Balakrishnan, C. K. Bharathan, CSA Iyer and M. K. D. Namboodri.
For the Respondents: P. Govindan Nair and K. R. Nambiar.
849 CIVIL APPEAL NO. 227/78 For the Appellants: Dr. V. A. Syed Mohd and K. R. Nambiar.
For the Respondent: F. S. Nariman, K. Joseph and K. J. John.
For the Intervener (Rubber Board): K. K. Venugopal, Addl. Sol. Genl. and K. J. John.
CIVIL APPEAL NO. 869/79 For the Appellants: N. Sudhakaran.
For the Respondents: K. M. K. Nair.
CIVIL APPEAL NO. 870/79 For the Appellant: N. Sudhakaran.
For the Respondents: K. M. K. Nair.
CIVIL APPEAL NO. 871/79 For the Appellant: A. S. Nambiar.
For the Respondent: K. M. K. Nair.
CIVIL APPEAL NO. 872/79 For the Appellant: P. K. Pillai.
For the Respondents: K. R. Nambiar.
CIVIL APPEAL NOS. 873-874/79 For the Appellant: N. Sudhakaran.
For the Respondents 1-3: V. J. Francis.
For the Respondents 4-5: A. S. Nambiar.
For the Respondent No. 6: S. B. Saharya.
CIVIL APPEAL NO. 875/79 For the Appellants: A. S. Nambiar.
For the Respondents: V. J. Francis.
CIVIL APPEAL NO. 876/79 For the Appellants: T. R. G. Warriyar and A. S. Nambiar.
For the Respondents 1-3: V. J. Francis.
CIVIL APPEAL NO. 877/79 For the Appellant: A. S. Nambiar.
For the Respondents 1-3: V. J. Francis.
CIVIL APPEAL NO. 878/79 For the Appellants: A. S. Nambiar.
For the Respondents 1-3: V. J. Francis.
CIVIL APPEAL NO. 879/78 For the Appellants: A. S. Nambiar.
For the Respondents 1-2: V. J. Francis.
CIVIL APPEAL NO. 881/79 For the Appellant: Saroja Goplakrishnan.
For the Respondents 1-3: V. J. Francis.
850 CIVIL APPEAL NO. 883/79 For the Appellants: S. Balakrishnan and M. K. D. Namboodri.
For the Respondents: K. M. K. Nair.
CIVIL APPEAL NO. 885/79 For the Appellants: A. S. Nambiar.
For the Respondents 1-3: V. J. Francis.
CIVIL APPEAL NO. 884/79 For the Appellant: P. K. Pillai, Sr.
For the Respondents: Mr. K. R. Nambiar.
CIVIL APPEAL NO. 886/79 For the Appellant: A. S. Nambiar.
For the Respondents: V. J. Francis.
CIVIL APPEAL NO. 889/79 For the Appellants: S. Balakrishnan and M. K. D. Namboodri.
For the Respondents: K. M. K. Nair.
CIVIL APPEAL NO. 890/79 For the Appellants: A. S. Nambiar.
For the Respondents: V. J. Francis.
CIVIL APPEAL NO. 894/79 For the Appellant: N. Sudhakaran.
For the Respondents: K. R. Nambiar.
CIVIL APPEAL NO. 895/79 For the Appellants: M. C. Bhandare, S. Bhandare, Miss M. Poduval and J. Santhalingam.
For the Respondents 1-3: K. R. Nambiar.
CIVIL APPEAL NO. 896/79 For the Appellant: N. Sudhakaran.
For the Respondents: V. J. Francis.
CIVIL APPEAL NO. 897/79 For the Appellants: P. K. Pillai.
For the Respondents: V. J. Francis.
CIVIL APPEAL NO. 898/79 For the Appellants: A. S. Nambiar.
For the Respondents: K. R. Nambiar.
CIVIL APPEAL NO. 899/79 For the Appellants: S. Balakrishnan and M. K. D. Namboodri.
For the Respondents: K. R. Nambiar.
CIVIL APPEAL NO. 900/79 For the Appellant: S. Balakrishnan and M. K. D.
Namboodri.
For the Respondents: 1-3: K. R. Nambiar.
851 CIVIL APPEAL NO. 901/79 For the Appellant: P. K. Pillai.
For the Respondents: K. M. K. Nair.
CIVIL APPEAL NO. 902/79 For the Appellant: S. Balakrishnan and M. K. D. Namboodri.
For the Respondents: K. R. Nambiar.
CIVIL APPEAL NO. 903/79 For the Appellant: S. B. Saharya.
For the Respondents: V. J. Frnacis.
CIVIL APPEAL NO. 1019/79 For the Appellant: T. T. Kunhikannan.
For the Respondents: V. J. Francis.
The Judgment of the Court was delivered by SHINGHAL, J. The learned counsel for the appellants have categorically stated at the Bar that no question relating to the validity of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), hereafter referred to as the Act, or any of its provisions, arises in these appeals by special leave. We have heard them together virtually as companion appeals at the instance of learned counsel for they arise out of several judgments of the High Court of Kerala in matters relating to the implementation of the provisions for the restriction on ownership and possession of land in excess of the ceiling area and the disposal of excess land.
These are the subject matter of Chapter III of the Act, as amended from time to time. It is not necessary to refer to the dates of all judgments of the High Court of Kerala, or to all the points of controversy there, as learned counsel have been able to channelise their arguments into three main points of controversy, which have been argued at length. It is true that all these points do not arise in all the cases before us, and some learned counsel have raised additional arguments in the peculiar facts and circumstances of their cases. It will therefore be convenient and proper to deal with the three main points first, and to take up the additional points for consideration with reference to the appeals in which they have been raised for our consideration. This, it is agreed, will be a proper and a fair course to adopt for the disposal of these appeals. It is also agreed by learned counsel that the other appeals in which such additional points have not been raised shall stand decided according to our decision on the three main points.
In order to understand the controversy in its proper perspective, it may be mentioned that, as in the other States in the country, the Kerala State legislature felt the necessity of making "comprehensive" 852 land reforms in the State. The Kerala Agrarian Relations Act, 1960 (Act 4 of 1961) was accordingly passed, and received the assent of the President on January 21, 1961.
Some of its provisions were brought into force with effect from February 15, 1961. This Court struck down that Act as unconstitutional in its application to the ryotwari lands of Hosdurg and Kasaragod taluka. The Kerala Ryotwari Tenants and Kudikidappukars Protection Act, 1962, was then passed for the temporary protection of tenants in those taluks. The State High Court declared it null and void in its application to the ryotwari lands of the Malabar area and most of the lands of Travancore area. So the Kerala Tenants and Kudikidappukars Protection Act, 1963, was passed to provide some protection to tenants. It was an interim legislation. Even so it repealed the Kerala Ryotwari Tenants and Kudikidappukars Protection Act, 1962, and suspended the operation of the Kerala Agrarian Relations Act, 1960.
After re-examining the requirements in the field of land reforms as a whole, the Kerala Land Reforms Bill, 1963, was published in State Gazette on September 15, 1963. It covered a wide field in the matter of land reforms and, inter alia, provided for the imposition of a ceiling on "holding" of lands, the surrender of excess lands grant of compensation therefor, and the assignment of the surrendered lands in accordance with the order of priority mentioned in the Bill, collection of purchase price, constitution of Land Tribunals and Land Board etc. The Bill was enacted as the Kerala Land Reforms Act, 1963 (Act 1 of 1964), and received the assent of the President on December 31, 1963. It was amended extensively, and in several material particulars, by Act 35 of 1969, and then by Act 25 of 1971 and Act 17 of 1972. There were other amendments also, but it is agreed that they do not bear on the controversy before us.
The three main points of controversy in these appeals have been formulated by learned counsel for the appellants as follows:-
1. Whether lands converted into plantations between April 1, 1964 and January 1, 1970 qualify for exemption under section 81(1)(e) of the Act.
2. Whether a certificate of purchase issued by the Land Tribunal under section 72K of the Act is binding on the Taluk Land Board in proceedings under Chapter III of the Act.
3. Whether the validity of invalidity of transfers effected by persons owning or holding lands exceeding the ceiling limit should be determined with reference to the ceiling area in force on the date of the transfer or in accordance with the ceiling area prescribed by Act 35 of 1969-whether sub-section (3) of section 84 is retrospective in operation.
853 We shall examine the three points one by one but before doing so it will advantageous to refer briefly to the substantive provisions of the Act which bear on the appeals before us.
It will be recalled that the Act came into existence when the other attempts to make legislative provision for land reforms did not work out satisfactorily for one reason or the other. The Act was therefore enacted by way of "a comprehensive legislation" to bring about land reforms in the Kerala State. While Chapter I of the Act contains provisions relating, inter alia, to its commencement and defines some of the important terms and expressions, Chapter II contains many provisions for the benefit of tenants and "deemed tenants", including restoration of lands and fixity of their tenure, purchase of landlords' rights by cultivating tenants and rent payable by certain categories of tenants etc. The provisions of the Chapter do not apply to the leases, tenancies and transferred lands and transactions mentioned in section 3. We are however primarily concerned with Chapter III under the general rubric "Restrictions on ownership and possession of land in excess of ceiling area and disposal of excess lands." Section 81 deals with "exemptions", including "plantations".
Section 82 prescribes the "ceiling area", section 83 prohibits the owning or holding or possessing under a mortgage lands in excess of the ceiling area. Section 84 declares what voluntary transfers shall be deemed to be invalid. Subsection (3) of the section has attracted much controversy and we shall deal with it in due course. Section 85 makes it obligatory to surrender the excess land, and section 86 vests such excess lands in the State Government free from all encumbrances. Section 87 makes provision for the surrender of excess land obtained by gift, purchase or mortgage, lease, surrender or any other transfer inter vivos or by bequest or inheritance or otherwise if the total extent of land thereby exceeds the ceiling area. These are the main provisions which bear on the three points which have been raised for our consideration.
Point No. 1 the question is whether lands converted into plantation between April 1, 1964 and January 1, 1970 are exempt from the operation of the provisions of Chapter III of the Act in regard to the restriction on ownership and possession of land in excess of the ceiling area prescribed by it. It will be recalled that while section 82 prescribes the ceiling area of the land, section 81 states what shall be exempted from its operation. Clause (e) of sub-section (1) of that section thus specifically provides that the provisions of Chapter III shall not be applicable to "plantations". That has been so from the inception of the Act, and the question therefore is whether those who felt tempted by the exemption in favour of plantations and converted their lands 854 into plantations after the commencement of the Act, would get the benefit of the exemption and, if so, from which date would the conversion be recognised ? This has been dealt with in sub-section (4) of section 82 of the Act which prescribes the ceiling. It is not in dispute before us that section came into force on April 1, 1964. The sub-section as originally enacted in Act I of 1964 therefore came into force on that date. It read as follows:- "82(4) Where, after the commencement of this Act, any class of land specified in Schedule II has been converted into any other class of land specified therein, the extent of land that may be owned or held by a family or adult unmarried person owning or holding such land at the time of the conversion shall be determined without taking into account such conversion." Section 82 was however substantially amended by section 66 of the Amending Act of 1969 which, inter alia, reduced the ceiling area of the land and amended the wordings of sub- section (4) also. That section came into force on January 1, 1970. It is not necessary to refer to it as the legislature amended sub-section (4) of section 82 once again, by section 12 of the Amending Act of 1971, which, by virtue of section 1 of that Act, also came into force on January 1, 1970 and thereby supplanted, from the very inception, the amendment which had been brought about by the Amending Act of 1969.
The amended sub-section, which is the subject matter of the point under consideration, reads as follows,- "82(4) Where, after the commencement of this Act, any class of land specified in Section II has been converted into any other class of land specified in that Schedule or into a plantation, the extent of land liable to be surrendered by a person owning or holding such land shall be determined without taking into consideration such conversion." The controversy therefore is whether the restriction of sub-section (4) of section 82 came into force from January 1, 1970 because section 12 of the Amending Act of 1971 was brought into force on that date, or whether it came into force on April 1, 1964, when section 82 as originally enacted by the Act came into force. As it happens, all the three Acts contain provisions about their "commencement" and it is these which have to be interpreted for the purpose of resolving the dispute.
Sub-section (3) of section 1 of the Act provides as follows,- "1(3). The provisions of this Act, except this section which shall come into force at once, shall come into force 855 on such date as the Government may, by notification in the Gazette, and appoint:
Provided that different dates may be appointed for different provisions of this Act, and any reference in any such provision to the commencement of this Act, shall be construed as reference to the coming into force of that provision." It therefore provides that: (i) section 1 of the Act shall come into force at once, (ii) the other provisions of the Act shall come into force on such dates as the Government may appoint, (iii) different dates may be appointed for different provisions of the Act, and (iv) any reference in any such provision to the "commencement of this Act" shall be construed as a reference to the coming into force of that provision. The Act was published in the Gazette on January 14, 1964, and, by virtue of section 3 of the Kerala Interpretation and General clauses Act, section 1 came into force on that date. Section 82 as has been stated, came into force on April 1, 1964, and the reference in sub-section (4) of that section to the "commencement of this Act" meant a reference to the coming into force of that provision with effect from April 1, 1964. It may be that the first three rules or directions contained in sub-section (3) (mentioned above) were spent on the coming into force of section 1 of the Act or its other provisions on the dates appointed for them, but, for obvious reasons, rule (iv) continued to hold the field in as much as it laid down the rule of construction that any reference to the "commencement of this Act" shall be construed as a reference to the coming into force of that particular provision. It was therefore applicable as a general rule of construction whenever it became necessary to ascertain the date of commencement of a particular provision of the Act other than section 1.
It will be recalled that sub-section (4) of section 82, as originally incorporated in the Act, came into force on April 1, 1964. As has been mentioned, sub-section (4) of section 82 was emended by section 66 of the Amending Act of 1969, which came into force on January 1, 1970, but that proved to be fortuitous because it was supplanted by section 12 of the Amending Act of 1971 from the same date.
The sub-section, as amended by the Amending Act of 1971, also dealt with the conversion of land into any other class of land "after the commencement of this Act", but it added the words "or into a plantation" and provided that such conversion shall not be taken into consideration for determining the extent of land liable to be surrendered. It has been argued that the expression "the commencement 856 of this Act" refers to January 1, 1970, on which date section 12 of the Amending Act of 1971 was brought into force, and not to April 1, 1964 when it was first brought into force as mentioned above. Reference in this connection has been made to sub-section (2) of section 1 of the Amending Act of 1971.
The argument is however untenable on the plain meaning of the proviso to sub-section (3) of section 1 of the Act which clearly states that any reference in any provision of the Act to the "commencement of this Act" shall be construed as a reference to the coming into force of that provision.
So when the "provision" of sub-section (4) of section 82 was brought into force on April 1, 1964, its amended version would also come into force from that date. And it will be a matter of no consequence that section 12 of the Amending Act of 1971, which amended the sub-section, came into force on January 1, 1970. It will be remembered that section 66 of the Amending Act of 1969 which amended section 82 came into force on January 1, 1970, and as the legislature decided to amend it once again by section 12 of the Act of 1971, with retrospective effect from the same date (January 1, 1970), it made a specific provision to that effect in section 1 of the Amending Act of 1971 and left the date of commencement of the Act for purposes of sub-section (4) of section 82 to be determined according to the proviso to sub-section (3) of section 1 of the Act which, as has been stated, was a subsisting provision. It would follow that sub-section (4) as amended by the Amending Act of 1971 came into force on April 1, 1964. It may be that, as has been argued by Mr. Venugopal, the expression "commencement of this Act" is a term of "art". We have interpreted it as it stands, without detracting from the value attributed to it by Mr. Venugopal.
Mr. Warriyar has however argued that particular significance attaches to the use of the expression "provisions" or "provision" in section 1(3) of the Act and that the High Court erred in presuming that "at all relevant times a 'provision' which resulted in certain consequences was in force from April 1, 1964 onwards." He has invited our attention to Saidu Muhammed v. Bhanukuitan(1) for the contention that the true meaning of "provision" is a section or series of sections forming a self-contained integral whole, that section 82 to 85 should be construed as a "composite provision" dealing with the ceiling area, and that the assumption that section 82(4) alone was brought into force as a distinct provision, when section 83 had not been brought into force, is not legally sustainable.
The Century Dictionary (which is an encyclopaedic lexicon of the English language) defines "provision" as follows,- 857 'In law, a stipulation; a rule provided; a distinct clause in an instrument or statute; a rule or principle to be referred for guidance; as, the provisions of law; the provisions of the Constitution." In "Words and Phrases" (Permanent Edition) the definition is as follows:- "As applied to legislation, the word "provision" has this well-understood meaning: "Actual expression in language"-the clothing of legislative ideas in words which can be pointed out on the page and read with the eye." A provision is therefore a distinct rule or principle of law in a statute which governs the situation covered by it. So an incomplete idea, even though stated in the form of a section of a statute, cannot be said to be a provision for, by its incompleteness, it cannot really be said to provide a whole rule or principle for observance by those concerned. A provision of law cannot therefore be said to exist if it is incomplete, for then it provides nothing.
Examined in this perspective, section 82 of the Act (as amended by section 12 of the Amending Act of 1971) is, to say the least, a distinct rule or clause for it provides the extent of the ceiling area in the cases mentioned in it (sub-section (1) ), its effect on the lands owned or held individually by the members of a family or jointly by some or all of the members of the family (sub-section (2) ), the taking into account of the shares of the members of the family or an adult unmarried person (sub-section (3)), the effect of conversion of any class of land specified in Schedule II into any other class of land specified in the schedule or into a plantation and the extent of land liable to be surrendered by a person owning or holding such land (sub-section (4) ), lands owned by a private trust or a private institution (sub-section (5) ) and exemption of lands covered by section 81 (sub-section (6) ). The section is therefore a "provision" by any standard, and it is futile to argue that this is not so merely because the provisions relating to the prohibition on the owning or holding or possessing under a mortgage lands in the aggregate in excess of the ceiling area and the surrender of excess land and its vesting in the State Government have been dealt with in the other sections (83, 85 and 86). Sections 83, 85 and 86 contain certain other provisions relating to the law of ceiling on land, but that cannot detract from the basic fact that section 82 contains a provision-in fact an important provision-of the law relating to the imposition of ceiling on land dealt with in Chapter III. It may well be said that sub-section (4) of section 82 is also a provision of the law by itself, for it lays down a distinct rule relating to conversion of lands for observance by all concerned.
We have gone through Saidu Muhammed v. Bhanukuitan,(1) but that was quite a different case where the section which authorised the launching of the prosecution of a defaulter was brought into force, but not the other provision which prescribed the period of limitation for the prosecution, and the High Court, was persuaded to take the view that it was the legislative intent that the prosecution should be governed by the limitation prescribed by the other section.
In the case before us, however, the application of section 82 is not dependent on any other section, so as to make it an incomplete provision by itself. It deals with "ceiling area" and is a provision by itself, so that it could be brought into force from a date different from section 83 which prohibited the holding of land in excess of the ceiling area. It may be pointed out, that the "ceiling" prescribed by section 82 was material not only for the purpose of Chapter III of the Act, but had a direct co- relation to some of the provisions of Chapter II e.g. sections 16 and 53.
It has next been argued by Mr. Warriyar that in view of the decisions of this Court in State of Kerala and others v. Philomina etc.(2) and State of Kerala and others v. K. A. Gangadharan,(3) the High Court erred in taking the view that section 82(4) came into force on April 1, 1964 because it has been held in both those cases that determination of the surplus land was to be on the basis of the situation existing on January 1, 1970, and that if any land had been converted into a plantation before that date, it had necessarily to be exempted from the operation of the ceiling law by virtue of section 81. But they were different cases.
Thus State of Kerala v. Philomina (supra) related to the transfer of "Kayal" lands between September 15, 1963 and January 1, 1970. As Chapter III of the Act was not applicable to those lands because of the exemption under section 81, and as that exemption continued until January 1, 1970 when section 65 of the Amending Act of 1969 came into force, it was held by this Court that as the exemption was not withdrawn until January 1, 1970, the transfers made between September 15, 1963 and January 1, 1970 were valid under the provisions of the Act. The decision in that case thus turned on the meaning of section 83 and 85. That view was noticed by this Court in State of Kerala and others v. K. A. Gangadharan (supra) and it was held that the dominant legislative intent was the imposition of the ceiling on lands and the consequential obligation to 859 surrender lands owned or held in excess of the ceiling area on the notified date, namely, January 1, 1970. The gifts of excess land made on March 28, 1974 were therefore ignored.
That was also, therefore, a different case and cannot avail the appellants.
The view taken by the High Court in Ramunni Nair v. State of Kerala(1) in regard to the meaning to be attached to the words "the commencement of this Act" is thus substantially correct and does not call for interference by us. It may be mentioned that learned Advocate General has pointed out that in the Act as it stands amended at present, the expression "commencement of this Act" refers to the commencement of the Act, and while referring to the commencement of the Amending. Act of 1969, the words used are "commencement of the Kerala Land Reforms (Amendment) Act, 1969" and that the Amending Act of 1971 has also been referred to as such. It is therefore futile to contend that the rule of interpretation mentioned in sub-section (3) of section 1 that any reference in a provision of the Act to the "commencement of this Act" shall be construed as a reference to the coming into force of that provision, shall not be construed as a reference to the coming into force of that provision as originally enacted.
Mr. Balakrishnan tried to raise the argument that a landholder is, in any event, entitled to the benefit of the exemption under section 81 as amended by the Act of 1969 in respect of the "extent of plantation within the ceiling area" even if it were converted into a plantation during the period April 1, 1964 to December 31, 1969. The argument is untenable because while sub-section (1) of section 81 provides that the provisions of Chapter III shall not apply to the lands and plantations mentioned in it, that is overridden by, and is subject to, the requirement of sub- section (4) of section 82.
Point No. 1 is decided against the appellants.
Point No. 2 The question is whether a certificate of purchase issued by the Land Tribunal under section 72K of the Act is binding on the Taluk Land Board in proceedings under Chapter III of the Act.
The provisions relating to the purchase of the landlord's rights by cultivating tenants appear under that heading, and are contained in sections 53 to 74 of the Act.
The Tribunal is competent to pass orders on the application for purchase, including the determination of the compensation and the purchase price under section 72F.
Section 72K 860 provides for the issue of the certificate of purchase sub- section (2) of that section reads as follows,- "(2) The certificate of purchase issued under sub- section (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the land- owner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates." The real question for consideration therefore is whether the certificate is binding on the Taluk Land Board for the purpose of taking a decision in regard to the ceiling area under sub-section (5) of section 85.
It may be mentioned in this connection that while the Land Tribunal deals with most of the matters relating to tenants and is constituted under section 99, the Taluk Land Board is constituted under section 100A and deals with statements filed under sub-section (2) of section 85 by persons owning or holding land in excess of the ceiling area. Sub-section (5) of section 85 provides further that the Taluk Land Board shall- (a) cause the particulars mentioned in the statement to be verified, (b) ascertain whether the person to whom the statement relates owns or holds any other lands, and (c) by order determine the extent and identity of the land to be surrendered.
A reading of sub-section (1) of section 85 shows that the question for examination is not that relating to the existence of the tenancy rights of the person who files the statement, but that relating to the bona fides of his belief that the land sought to be excluded by him is liable to be purchased by a cultivating tenant. The Land Tribunal and the Taluk Land Board thus operate in their respective fields and serve the purpose of the Act.
Now the certificate of purchase which the Land Tribunal issues (in the prescribed form) evidences the "assignment" of the assigned land to the purchaser. Sub-section (2) of section 72K of the Act mentioned above merely declares that the certificate shall be conclusive proof of that 'assignment' of the right, title and interest of the land- owner and the intermediaries (if any) to the tenant in respect of the holding concerned (or portion thereof). There is nothing in the sub-section which could be said to declare that the finding recorded 861 by the Tribunal in those proceedings would be conclusive proof of any other matter which it may determine so as to bind the Taluk and Board or any other authority. Sub-section (2) of section 72K therefore does not, in terms or in substance, impinge on the authority of the Taluk Land Board to discharge its own functions under section 85(5) of the Act.
The Board is thus quite free to cause the particulars mentioned in the statement filed under sub-section (2) of section 85 to be verified and to ascertain whether the person filing the statement owns or holds any other land, and to determine the "extent" as well as the "identity" of the excess land which he is required to surrender. If a certificate of purchase is issued by the Land Tribunal to any such person and he tenders it in proceedings before the Taluk Land Board, the Board is required by law to treat it as conclusive proof of the fact that the right, title and interest of the land owner (and intermediary) over the land mentioned in it has been assigned to him. It is however not the requirement of the law that the certificate of purchase shall be conclusive proof of the surplus or other land held by its holder so as to foreclose the decision of the Taluk Land Board under sub-section (5) of section 85.
Mr. Warriyar is not justified in arguing that the Taluk Land Board has power only to determine the "identity" of the surplus land, leaving every other matter to the Land Tribunal. The argument loses sight of requirement of sub- section (5) of section 85 that the Board shall, inter alia, by order, determine not only the "identity" of the land to be surrendered but also its "extent".
It would thus appear that even though the certificate of purchase issued under sub-section (1) of section 72K is conclusive proof of the assignment of the right, title and interest of the landowner in favour of the holder in respect of the holding concerned under sub-section (2), that only means that no contrary evidence shall be effective to displace it, unless the so-called conclusive effective is inaccurate on its face, or fraud can be shown (Halsbury's Laws of England, fourth edition, vol. 17, page 22 paragraph 28). It may be stated that "inaccuracy on the face" of the certificate is not as wide in its connotation as an "error apparent on the face of the record". It will not therefore be permissible for the Board to disregard the evidentiary value of the certificate of purchase merely on the ground that it has not been issued on a proper appreciation or consideration of the evidence on record, or that the Tribunal's finding suffers from any procedural error. What sub-section (2) of section 72K provides is an irrebutable presumption of law, and it may well be regarded as a rule 862 of substantive law. But even so, for reasons already stated, it does not thereby take away the jurisdiction of the Taluk Land Board to make an order under section 85(5) after taking into consideration the "conclusive" evidentiary value of the certificate of purchase according to section 72K (2) as far as it goes.
We are therefore of the opinion that the view taken in Kunjanujan Thampuran and others v. Taluk Land Board(1) is not quite correct. While the High Court was justified in taking the view that the scope of the enquiry in the Taluk Land Board is that relating to the surplus land with which the Land Tribunal is not concerned, the certificate of purchase has its own "conclusive" evedentiary value to the extent provided in section 72K (2) in proceedings before the Taluk Land Board. It will therefore be for the Board to arrive at its own decision under sub-section (5) of section 85, according to the law, and it will be permissible for it to examine, where necessary, whether the certificate is inaccurate on its face, or has been obtained by fraud or collusion.
Point No. 2 is decided accordingly.
Mr. Bhandare tried to raise an ancillary argument in C.A. No. 2585 of 1977 that if on the date on which the Taluk Land Board undertakes an enquiry for the determination of surplus land, a proceeding is pending before the Land Tribunal for the grant of a certificate of purchase, the Board will have no jurisdiction to examine a matter which falls within the jurisdiction of the Tribunal. We find, however, that no such question was raised for the consideration of the High Court, where the controversy was confined to the genuineness of the lease, and we are therefore not required to examine the abstract point of law set out by Mr. Bhandare. It will be sufficient for us to say that the ancillary argument can easily be answered in the light of our decision on point No. 2 if and when it arises for consideration in a given case, for the function of the Board is to determine the extent and the identity of the Land to be surrendered and not matters relating to the issue of a certificate of purchase. If a certificate of purchase has a bearing on what the Board is called upon to decide, we have no doubt that the Board will take it into consideration, if it is produced for its consideration, with due regard to the evidentiary value assigned to it under section 72K (2) in the light of our decision on point No. 2.
Point No. 3 Some of the persons who owned or held lands exceeding the ceiling prescribed by the Act, had voluntarily transferred some of their lands after the publication of the Kerala Land Reforms Bill, 1963, in the 863 State Gazette on September 15, 1963. Section 84 of the Act therefore provides that, except for the transfers mentioned in the section, the transfers so made shall be deemed to be transfers calculated to defeat the provisions of the Act, and shall be invalid. The section has thus been linked with section 82 which specifies the ceiling area. As has been stated, the ceiling area was considerably reduced by the amendment which was made in section 82 by the Amending Act of 1969. That Act amended section 84 also, with effect from January 1, 1970. It was again amended by Act 17 of 1972 (hereafter referred to as the Amending Act of 1972) with effect from November 2, 1972, when that Act came into force.
It, inter alia, inserted sub-section (3) in section 84 as follows,- "(3) For the removal of doubts, it is hereby clarified that the expression "ceiling area" in sub-sections (1) and (2) means the ceiling area specified in sub-section (1) of section 82 as amended by the Kerala Land Reforms (Amendment) Act, 1969, (35 of 1969)." The question therefore is whether the validity of the voluntary transfer is to be determined with reference to the ceiling area in force on the date of transfer, or the reduced ceiling area prescribed by the Amending Act of 1969.
As has been stated, sub-section (3) of section 84 was inserted on November 2, 1972, and the point for determination is whether it was retrospective or retroactive in operation so as to govern the transfers effected after September 15, 1963 (date of publication of the Bill of 1963) even though the original section 84, read with the original section 82, invalidated only those transfers which were in excess of the higher ceiling prescribed by the original section 82.
Section 84 follows section 82 which, it will be recalled, prescribes the ceiling area, and section 83, which prohibits the owning or holding or possession (under
