# KUNJUKU'ITY SAHIB ETC. ETC v. STATE OF KERALA & ANR

- **Citation:** [1973] 1 S.C.R. 326
- **Court:** Supreme Court of India
- **Decided:** 1972-04-26
- **Bench:** S. M. S!Kri, J. M. Shelat, I. D. Dua, H. R. Khanna, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kunjuku-ity-sahib-etc-etc-v-state-of-kerala-anr-5790
- **Pages:** 24

## Headnote

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.
The Kcrala Land Reforms Act, 1963 (Act 1 of 1964) as originally
enacted was specified in the Ninth Schedule to the ConstitutiOn and was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 comoensation 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.
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
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KUNJUKUTTY v. KERALA (Dua,!.)
327
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
The amelioration of indebtedness of tenants is a

## Text

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326
KUNJUKU'ITY SAHIB ETC. ETC.
v.
STATE OF KERALA & ANR.
April 26, 1972
[S. M. S!KRI, C.J., J. M. SHELAT, I. D. DUA, H. R. KHANNA
AND G. K. MITTER, JJ.]
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.
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 comoensation 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.
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
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H
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KUNJUKUTTY v. KERALA (Dua,!.)
327
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
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
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
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
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.
(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
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]
(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-A11) 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
(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
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~
ing: !he land in execcss \.Vould offend any provision of he Constitution.
[341 C-El
(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-
328
SUPRBME COURl REPORlS
[1973] l S.C.R.
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
(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.
[343 BC, 348 Cl
Ranjit Singh \'· State of Punjab, [1960] I S. C.R. 82, applied.
/nder Singh v. Stat" of Punjab, [19671 3 S.C.R. 603, referred to.
[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
B
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0
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
(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
F
a .homestead etc., by the occupant.
Such erection can11ot deviate from
the. general agricultural purpose. [348 G-Hl
(vii) The ques~on 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
oprnm~s partak~ of. the nature. of obiter.. Without dealing with any hyG
po~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
C:IVIL APPELLATE JURISDICTION : Civil Appeals Nos. 143. 203
to 242, 27 4 and 309 of 1971.
Appeals from the judgment and order dated August 14 1970
H
of the Kerala High Court in Original Petitions Nos. 723 of 1970
etc. etc.
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KUNJUKUTTY v. KERALA (Dua, J,)
329
T. Subromania Iver and A. Sreedharan Nambiar. for the appellant (in C.A. No. 143 of 1971).
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
143, 274 and 309 of 1971).
T. Subramania Iyer, C. M. Devan, S. Balakrishnan and N. M.
Ghatate, for the appellants (in C.A. 274 of 1971 ).
G. S. Ananthakri.$hna Iyer, C. M. Devan, S. Balakrishnan and
N. M. Ghatate, for the appellant (in C.A. 309 of 1971).
N. Sudhakaran and P. Kesava Pillai, for respondent No. 8 (in
C.A. No. 203 of 1971).
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).
E
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G
H
C. S, Ananthakrishna Iyer, S, Balakrislman and N. M. Ghatatc,
for the respondents (in C.As. Nos. 210 and 216 of 1971).
T. Subramania Iyer, and P. Kesava Pillai, for the respondent
(in C.A. No. 214 of 1971).
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).
The Judgment of the Court was delivered by
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,
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
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
330
SUPREME COURT REPORTS
(1973] l S.C.R.
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 :
"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."
Mathew J., in a separate judgment upheld the validity of s. 7.1 but
on all other points he agreed with the majority.
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.
Section 73 of the impugned Act which was sul:lstituted for the
old s. 73 of the original Act reads :
"73. Discharge of arrears of rent.-
( 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 :
(I) A.l.R. 1971 Ker. 98.
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KUNJUKUTTY V. KERALA (Dua,. /,)
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 :
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,
Class of tenant
Amount of rent to be paid for
discharge
(!)
(2)
331
Tenant possessing not more than 5 acres One year's rent or the actual amount
of land in the aggregate, whether as owner in arreurs, whichever is less.
mortgage, lessee or otherwise.
D
Tenant possessing more than 5 acres but Two year's rent or the actual amount
not more than 10 acres of land in the ag~ in arrears, whichever is less.
E
. F
G
H
regate, whether as owner, mortgage, lessee
or otherwise.
Tenant possessing more than 10
acres Three years' rent or the actual amoti\llt
of land in the aggregate, whether as owner,
in arrears; whichever is less.
mortgage, lessee or otherwise.
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 .
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.
(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.
(a) the amount to which the landlord is entitled under
sub-section (I) ;
·
~-1286 S.1.> Cl/72
332
SUPREME COURT REPORTS
(1973] l S.C.R.
(b) the costs, if any, awarded to the h111dlord in conA
nection 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
B
(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
c
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 TriI)
'"!
bunal, 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).
( 4) On receipt of an application under· sub-section
( 3), the court or the Land Tribunal, as the case may
E
•
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).
( 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
F
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.
(6) Notwithstanding ooything contained in section
G
26, on receipt of an application referred to in sub-
,
section ( 5), the Land Tribunal may, after such enquiry
as it deems fit, pass an order containing the particulars
specified in sub-section (2).
(7) The tenant shall deposit the amount specified in
an order under sub-section (2) or sub-section ( 4) or
II
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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KUNJUKUTTY v. KERALA (Dua, J.)
( 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
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.
(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,
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
of the amount, shall not be liable to pay any amount
towards arrears of rent for that period.
( 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."
333
The majority opinion of the High Court, while striking down
this section, observed :
"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
334
SUPRllME COURT REPORTS
(1973] 1 S.C.R.
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.
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, !.)
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)."
335
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 Constitution 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.
The learned Advocati: General, in support of the 40 appeals
by the State of Kerala and the Land Board, heavily relied on Pritam
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
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:
"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
Jagir.
In other words it was a charge on the Jagir.
Therefore, it is an interest in property."
(I) [1967) 2 S.C.R. 536.
(2) A.I.R. 1969 S.C. 270.
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SUPREME COURT REPORTS
[1973] l S.C.R.
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.
·
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 :
"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.
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."
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.
(3) [1962] 2 S.C.R. 687.
(5) [1963] 3 S.C.R. 887,
(2) [1965] I S.C.R. 82.
(4) [1952] S.C.R. 889 't 1000-1002.
(6) A.l.R. 1971 S.C. 161.
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KUNJUKUTTY V. KERALA (Dua, J.)
337
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
questioned the competency of the legislature to make the law and
this was repelled with the observation :-
"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."
The precise question with which we are concerned was not canvassed there.
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
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
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.
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
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
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.
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SUPREME COURT REPORTS
[1973] 1 S.C.R.
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.
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.
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.
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"85. Surrender of excess lands.-
( 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 :
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.
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-
(i) by way of partition; or
(ii) on account of natural love and affection; or
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KUNJUKUTTY v. KERALA (Dua, J.)
339
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holding before the 18th December, 1957, and
continued to be so till the date of transfer; or
(iv) in favour of a religious, charitable or educational
institution o,f a public nature solely for the purposes of the institution,
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."
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The High Court struck down this provision with the following
observations :
"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,
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,
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
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
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
340
SUPREME COURT REPORTS
[1973] l S.C.R.
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 tak~n 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."
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.