# N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO. LTD. & ORS

- **Citation:** [2015] 10 S.C.R. 626
- **Court:** Supreme Court of India
- **Decided:** 2015
- **Case number:** CivilAppeal No.5163 of2012
- **Bench:** M.Y. Eqbalandamitava Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-k-rajendra-mohan-v-thirvamadi-rubber-co-ltd-ors-30249
- **Pages:** 34

## Headnote

Kera/a Land Reforms Act 1963 - ss. 2(44), 3(1)(vii),
C 3(1)(viii), 13- Malabar Tenancy Act, 1929- s. 2- Transfer
of Property Act, 1882 - s. 116 - Suit for eviction and damages
- On facts, in 1918 the appellant leased out 963. 75 acres of
land to original lessee for a period of 36 years on payment of
annual rent- Finally, respondent-company inducted into the
0
said land - Suit for eviction and damages by appellantplaintiff and others against respondent no. 1 - Appellant's
case that the suit land belongs to their tarwad and was a
private forest; that neither the original lessee nor his
successors derive fixity of tenure or right of ownership; and
E that the lease lapsed with the efflux of time - Respondeht
pleaded fixity of tenure under the 1929 Act and the 1963Act
- Courts below held the respondent-company was entitled to
fixity of tenure and dismissed the suit - Interference with -
Held: Not called for - At the time of execution of the lease
F deed, neither a private forest nor a plantation as defined in s.
2(44)12(47) of the Act 1963 existed on the demised /andThere was no restriction or regulation on the nature of
cultivation/plantation to be resorted to by lessee on the
cultivable portion of the land leased out - RespondentG company continued as lessee by holding over after 1954
and lease rent was paid till 1978 as admitted by the appellant
-Act of 1963 come into force prior thereto - Neither s. 3(1 )(vii)
nor 3(1)(viii) is applicable to the plantation involved, thus,
respondent-company is entitled to fixity of tenure u/s. 13
H thereof - s. 116 even if applicable, the lease originally
626
N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.
627
LTD.
entered into would not get transformed with time into one of A
tenancy in respect of plantation as defined ins. 2 (44) of Act
1963, in absence of any overt act of the parties, intending
the same on agreed upon terms.
Dismissing the appeal, the Court
B
HELD: 1.1 The scheme of Kerala Land Reforms Act,
1963 would demonstrate, the statutory endeavour has
been to strike a fair and equitable balance of various
interests to be impacted thereby so as to facilitate c
smooth implementation thereof, without casting undue
financial burden on the State. Conferment of fixity of
tenure on the tenants as well as the limited right of
resumption to the landlords are also the noticeable
features of the enactment with the emphasis thattheright o
of resumption would not be available against tenants,
who were entitled to fixity of tenure immediately prior to
21.1.1961 under the law then in force, unless such tenants
had in their possession land in excess of the ceiling area.
The statement of objects and reasons also refer to the E
provisions pertaining to determination of fair rent at
uniform rates and purchase of the rights of the
landowners and intermediaries of a holding by the
cultivating tenant. The Act 1963 did provide for imposition
of a ceiling on holdings and constitution of Land Tribunal
F
and Land Board for the administration ofthe provisions,
with the remedy of appeal/revision from the decisions
of this fora. [Para 14] [642-F-H; 643-A-B]
1.2 Section 13 of the enactment mandates that G
notwithstanding anything contrary to the law, custom,
usage or contract or any decree or order of Court, every
tenant shall have fixity of tenure in respect of his holding
and no land from the holding shall be resumed except
as provided in Sections 14 to 22. Section 72 proclaims H
628
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A that on a date to be notified by the Government in the
official gazette, all right, title and interest of the
landowners and intermediaries in respect of holdings
held by cultivating tenants (including holders of
Kudiyiruppus and holders of Karaimas) entitled to fixity
B ·of tenure under Section 13 and in respect of which
certificates of purchase under sub-Section (2) Section
59 have not been issued, shall, subject to the provisions
of that Section, be vested in the Government free from
all enc

## Text

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A
B
[2015] 10 S.C.R. 626
N.K. RAJENDRA MOHAN
v.
THIRVAMADI RUBBER CO. LTD. & ORS.
(CivilAppeal No.5163 of2012)
JULY02, 2015
[M.Y. EQBALANDAMITAVA ROY, JJ.]
Kera/a Land Reforms Act 1963 - ss. 2(44), 3(1)(vii),
C 3(1)(viii), 13- Malabar Tenancy Act, 1929- s. 2- Transfer
of Property Act, 1882 - s. 116 - Suit for eviction and damages
- On facts, in 1918 the appellant leased out 963. 75 acres of
land to original lessee for a period of 36 years on payment of
annual rent- Finally, respondent-company inducted into the
0
said land - Suit for eviction and damages by appellantplaintiff and others against respondent no. 1 - Appellant's
case that the suit land belongs to their tarwad and was a
private forest; that neither the original lessee nor his
successors derive fixity of tenure or right of ownership; and
E that the lease lapsed with the efflux of time - Respondeht
pleaded fixity of tenure under the 1929 Act and the 1963Act
- Courts below held the respondent-company was entitled to
fixity of tenure and dismissed the suit - Interference with -
Held: Not called for - At the time of execution of the lease
F deed, neither a private forest nor a plantation as defined in s.
2(44)12(47) of the Act 1963 existed on the demised /andThere was no restriction or regulation on the nature of
cultivation/plantation to be resorted to by lessee on the
cultivable portion of the land leased out - RespondentG company continued as lessee by holding over after 1954
and lease rent was paid till 1978 as admitted by the appellant
-Act of 1963 come into force prior thereto - Neither s. 3(1 )(vii)
nor 3(1)(viii) is applicable to the plantation involved, thus,
respondent-company is entitled to fixity of tenure u/s. 13
H thereof - s. 116 even if applicable, the lease originally
626
N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.
627
LTD.
entered into would not get transformed with time into one of A
tenancy in respect of plantation as defined ins. 2 (44) of Act
1963, in absence of any overt act of the parties, intending
the same on agreed upon terms.
Dismissing the appeal, the Court
B
HELD: 1.1 The scheme of Kerala Land Reforms Act,
1963 would demonstrate, the statutory endeavour has
been to strike a fair and equitable balance of various
interests to be impacted thereby so as to facilitate c
smooth implementation thereof, without casting undue
financial burden on the State. Conferment of fixity of
tenure on the tenants as well as the limited right of
resumption to the landlords are also the noticeable
features of the enactment with the emphasis thattheright o
of resumption would not be available against tenants,
who were entitled to fixity of tenure immediately prior to
21.1.1961 under the law then in force, unless such tenants
had in their possession land in excess of the ceiling area.
The statement of objects and reasons also refer to the E
provisions pertaining to determination of fair rent at
uniform rates and purchase of the rights of the
landowners and intermediaries of a holding by the
cultivating tenant. The Act 1963 did provide for imposition
of a ceiling on holdings and constitution of Land Tribunal
F
and Land Board for the administration ofthe provisions,
with the remedy of appeal/revision from the decisions
of this fora. [Para 14] [642-F-H; 643-A-B]
1.2 Section 13 of the enactment mandates that G
notwithstanding anything contrary to the law, custom,
usage or contract or any decree or order of Court, every
tenant shall have fixity of tenure in respect of his holding
and no land from the holding shall be resumed except
as provided in Sections 14 to 22. Section 72 proclaims H
628
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A that on a date to be notified by the Government in the
official gazette, all right, title and interest of the
landowners and intermediaries in respect of holdings
held by cultivating tenants (including holders of
Kudiyiruppus and holders of Karaimas) entitled to fixity
B ·of tenure under Section 13 and in respect of which
certificates of purchase under sub-Section (2) Section
59 have not been issued, shall, subject to the provisions
of that Section, be vested in the Government free from
all encumbrances created by the landowners and ·
C intermediaries and subsisting thereon on the said date.
[Para 15.1] [645-8-D]
1.3 The lease deed executed on 21.6.1918 between
the Tarwad of the plaintiffs and CH would demonstrate
D that at the time of execution thereof, neither a private
forest nor a plantation as defined in Section 2 (44)/2 (47)
of the Act 1963 did exist on the demised land. The lease
which was for a period of 36 years w.e.f. 01.4.1918,
encompassed land ad measuring 963-112 acres· which
E included hills, water channels, poyils lands etc so much
so that only 925 acres were comprehended to be fit for
cultivation and not subject to any Government revenue,
the lesi:.ee was left at liberty to raise coffee, tea, pepper,
F cinchona, rubber or any other produce at the latter's
discretion. There were forests, jungles and trees on the
land which the lessee was authorized to clear for the
purpose of plantation and cultivation, to be decided by
him. There was thus, no restriction or regulation on the
G nature of cultivation/plantation to be resorted to by the
lessee on the cultivable portion of the land leased out.
[Para 18] [646-G, H; 647-A-B]
1.4 The remonstrance based on cessation of the
H lease on the expiry of36 years also.does not commend
N.K. RAJENDRAMOHAN v. -1 rllRVAMADI RUBBER CO.
629
LTD.
for acceptance in the face of unreserved acceptance of A
lease rent at the earlier rate of Rs. 693.75 paisa admittedly
till the year 1978. The assertion that in any view of the
matter, as the respondent-company in terms of Section
116 of the Transfer of Property Act 1882, ought to be
construed to be the lessee, holding over the demised B
land on payment of rent and that the lease stood
renewed from year to year and that accordingly on the
date of the institution of the suit there was a subsisting
tenancy in respect of plantation exceeding 30 acres
cannot be sustained as well. Though admittedly, at the C
institution of the suit, the rubber plantation of the
respondent-company did exist on the land, in the teeth
of Section 116 which comprehends renewal of the
expired lease, year after year or month after month it is 0
essentially qua the purpose for which the property had
been originally leased which in the instant case is
traceable to the year 1918. As the lease deed dated
21.6.1918 proclaims in no uncertain terms that the
transaction evidenced thereby was by no means a E
tenancy in respect of plantation, the same with efflux of
time, cannot transfigure into the same merely because a
plantation has been raised on the leasehold land in
between by the lessee who had been left at its discretion
to grow the same. In absence of a conscious intervention F
of the parties to the lease, either to convert it into one for
tenancy in respect of such plantation ad idem or to
extend it thereto, an automatic transformation of the lease
not for plantation cannot stand converted into one for
plantation. As a transaction of this kind involving G
immovable property is essentially governed by the terms
and conditions concurred upon by the parties thereto,
no unilateral alteration or modification thereof, unless
agreed to by both, in categorical terms, ought to be
permitted to be pleaded or enforced by anyone of them H
630
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A to the disadvantage of the other. Neither the lease deed
contains any stipulation sancti_oning such unilateral
alteration of the stipulations contained therein nor do
the materials on record testify such consensus based
modification of the lease covenants. A plain perusal of
B the Section 116 also does endorse this deduction. [Para
20] [648-C-H; 649-A-D]
1.5 The issue of the applicability of Act 1963 to the
lease of private forests and tenancies in respect of
C plantations exceeding 30 acres not in existence as on
21.6.1918, but standing/present on the date of its
enforcement, is of decisive bearing and would assuredly
involve a dialectical interpretation of Section 3 (1) (vii)
and 3 (1) (viii) of Act 1963 to discern the true purport
D thereof as legislatively intended. In view of the
abandonment of the plea based on private forests, in
course of the a~guments, it is inessential thus, too dilate
on the scope of Section 3 (vii). Tenancies in respect of
plantations exceeding 30 acres in extent have been
E exempted from the purview of the Act vide Section 3 (1)
(viii). That on the date of the execution of ttie lease deed
i.e. 21.6.1918 there was no plantation on the leasehold
land, is an admitted fact. Such plantation as defined in
F Section 2 (44) of the Act 1963 however did exist on the
date on which the enactment was brought into force i.e.
1.4.1964. [Para 22] [649-G-H; 650-A-D]
1.6 The respondent-company in its written statement
had pleaded that the lease created by the deed in 1918
G was an agricultural tenancy entitling the lessee to fixity
of tenure under the Malabar Tenancy Act 1929 and that
the same benefit stood extended under the Act 1963. The
trial court while dismissing the suit, recorded as well the
H finding of the Land Tribunal, following an inquiry, that
N.K. RAJENDRAMOHAN v. THIRVAMADI RUBBER CO.
631
LTD.
· the respondent-company was entitled to fixity of tenure A
in respect of the leasehold land bot.h under the Malabar
Tenancy Act 1929 (as amended) and the Act 1963. This
finding was upheld upon by the first appellate court and
not dislodged by the High Court. Section 2 of the Malabar
Tenancy Act 1929 has no application to the facts and B
circumstances of the case, so as to warrant exemption
from the applicability thereof. [Para 32) [658-B-E]
1. 7 The respondent-company continued as a lessee
by holding over after 1954 and the lease rent at the C
agreed rate fixed at the first instance was paid till 1978
as admitted by the appellant. The Act 1963 had come into
force prior thereto. As neither Section 3 (1) (vii) nor 3 (1)
(viii) is applicable to the plantation involved, the
respondent-company is entitled to fixity of tenure under D
. Section 13 thereof. Section 116 of the Transfer of
Property Act, 1882 even if applicable, the lease originally
entered into would not get transformed with time into
one of tenancy in respect of plantation as defined in
Section 2 (44) of Act 1963, in absence of any overt act of E
the parties, intending the same on agreed upon terms.
The consequences of the applicability of the Act, vis-avis the plantation would be regulated by the provisions
of the statute and the course to follow would witness F
the State and the tenant as the parties thereto. With the
enforcement of the Act 1963, the appellant would be left
with no role in that regard. Thus, no interference with
the findings recorded by the forums below is called for.
[Para 33-35) [658-F-H; 659-A-C]
G
Rt., Rev. Dr. Jerome Fernandes Vs B. B. Rubber
Estate Ltd 1972 KLT 613 - approved .
.
Karimbil Kunhikoman vs State of Kera/a (1962)
Suppl. 1 SCR 829 - distinguished. .
H
632
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2015] 10.S.C.R.
Jacob Philip vs State Bank of Travancore 1972
KLT 914; Malankara Rubber and Produce Co. &
Ors vs The State of Kera/a & Ors. (1972) 2 SCC
492; N. V. Srinivasa Murthy (2005) 10 SCC 566;
K. V. Pathumma vs Taluk Land Board and Ors
1997 (2) SCR 175 : (1997) 4 sec 114; State of
Kera/a vs K Sarojini Amma and Ors 2003 (4 )
Suppl. SCR 694 : (2003) 8 sec 526 ; Kai
Khushroo Bezonjee Capadia Vs Bai Jerbai
Hirjibhoy Warden & Anr 1949-50 FCR 262;
Bhawanji Lakhamshi & Ors Vs Himatlal
Jamnadas Dani and Ors 1972 ( 2) SCR 890 :
(1972) 1SCC388; State of UP VsJahoorAhmad
& Anr AIR 1973 SC 2520: 1974 (1) SCR 344 -
referred to.
Case Law Reference
(2005) 1 o sec 566
Referred to.
Para 10
1997 (2) SCR 175
Referred to.
Para 10
2003 (4) Suppl. SCR 694
Referred to.
Para 10
1949-50 FCR 262
Referred to.
Para 21
1972 (2) SCR 890
Referred to.
Para 21
1974 (1) SCR 344
Referred to.
Para 21
(1962) Suppl. 1 SCR 829
Distinguished. Para 28
1972 KLT 914
Referred to.
Para 30
1972 KLT 613
Approved.
Para 31
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
5163 of2012
N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.
633
LTD.
From the Judgment and Order dated 26.07.2010 in S.A. A
No. 193of1997 (F) of the High Court of Kerela at Ernakulam.
A. S. Nambiar, P. K. Manohar, Shanta Vasudevan forthe
Appellant.
B
Dr. A. M. Singhvi, Amrendra Sharan, Padam Khaitan,
Gopal Sankaranarayana, Nitish Massey, Shikhar Srivastava
(for Khaitan & Co.) forthe Respondents.
The Judgment of the Court was delivered by
AMITAVAROY, J. 1. The appellant, one of the plaintiffs in
the suit instituted before Munsif Court (II), Kozhikode along with
others against the respondent No. 1 herein, seeking eviction
c
of the latter from the land involved and damages for the use
and occupation thereof, in his relentless pursuit for redress is D
before this penultimate institutional forum, having successively
failed at all the intermediate tiers. The procrastinated tussle
spanning over three decades eventually seeks a quietus at
this end.
2. We have heard Mr. A. S. Nambiar, Senior Advocate for
the appellant and Mr. A. M. Singhvi, Senior Advocate for the
respondent No.1. Incidentally, the co-plaintiffs have been
arrayed as other respondents in the instant appeal.
3. The salient facts, which make up the edifice of the
lingering contentious dissent, however lie in a short compass.
As adverted to hereinabove, the appellant alongwith others
did institute a suit, being OS 569/1982 before Munsif Court
E
F
(II), Kozhikode against the Respondent No. 1 praying for its G
eviction from the suit land and realization of arrear rent,
damages etc, the pleaded case being that the suit land had
belonged to their Tarwad and . was a private forest. On
21.6.1918, an area of963.75 acres was leased outto one Mr.
Campbell Hunt for a period of thirty six years vide Exh. A 1 H
634
SUPREME COURT REPORTS
[2015) 10S.C.R.
A whereunder, the lessee was liable to pay a sum of Rs. 693.75
per annum towards annual rent. Eventually, through intervening
transactions, the respondent-company stood inducted to the
suit land with the same status. According to the plaintiffs, they
were the joint owners of the property and asserted that neither
B the original lessee Mr. Campbell Hunt nor his successors did
derive fixity of tenure or right of ownership either under the
lease deed or the provisions of the Kera la Land Reforms Act
1964 (hereinafter referred to as Act 1963), brought into force
on and from 01.04.1964 or any other tenancy laws prior thereto.
C The plaintiffs averred, that at the time of handing over the
property to Mr. Campbell Hunt in the year 1948, the same was
a private forest under the ownership and possession of their
Tarwad. The lease which was for a period of 36 years with
0
effect from 01.04.1918 lapsed with efflux of time and the
respondent-company had no rightto retain the possession
thereof. The Plaintiffs admitted that it (respondent-company)
had raised a rubber estate on the suit land. It was alleged that
the respondent-company also did not pay the lease rent as
E fixed i.e. Rs. 693. 75 per annum for the year 1979, 1980 and
thereafter. That in inspite of several requests, it did not vacate
the land by removing its buildings etc. therefrom for which a
notice was addressed on 1o~11.1980 to the respondentcompany to vacate and deliver possession of the suit land was
F stated. According to the plaintiffs, in terms of the notice, the
tenancy stood extinguished from 21.6.1981. However in
response to the notice, the respondent-company claimed in
its reply, that it had acquired the right of fixity of tenure on the
suit land. In this factual premise, the plaintiffs instituted the suit,
G for the above reliefs claiming inter alia arrear lease rent at the
rate of Rs. 693.75 per annum from 01.04.1979 to 20.06.1981
and damages at the same rate for the period subsequent
thereto for use and occupation thereof.
H
4. The respondent-company in its written statement,
N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.
635
LTD. [AMITAVAROY,J.]
resisted the suit. While admitting, the lease deed Exh. A 1, in
A
favour of Mr. Campbell Hunt in the year 1918, it elaborated
that out of total land leased, the cultivable area was 925 acres
and that the lease was granted with the right to cultivate coffee,
tea, pepper, cinchona, rubber etc. and any other produce as
the lessee would consider proper, by cleaning the area. The B
respo~dent-company claimed fixity of tenure under the Malabar
Tenancy Act 1929 (for short hereinafter referred to as Act 1929)
as well as the Act 1963, and pleaded for the dismissal of the
suit.
5. The learned Trial Court in the face of the respondentcompany's claim of fixity of tenure, referred the issue to the
Land Tribunal, Kasargod which sustained this plea and
consequently the suit was dismissed. The appeal preferred
c
by the plaintiffs met the same fate. Being still aggrieved, they D
(appellants) did take the challenge before the High Court of
Kerala. By the judgment impugned, the High Court has
sustained the adjudication of the Courts below.
6. As the decisions impugned would reveal, the High Court E
negated the plaintiffs' assertion that the suit land.at the time of
the initiation of the lease in the year 1918 was a private forest
and thus stood excluded from the applicability of Act 1963 in
terms of Section 3 (1) (vii) thereof, as it was granted to Mr.
Campbell Hunt as per Exh. A 1 to cultivate rubber, cinchona,
F
coffee and any such crop as the lessee construed it to be
proper. It was inter alia observed that the lease deed clearly
disclosed that the land was Puramboke and not assessed to
any revenue and that the lessee was permitted to cut and
remove trees, shrubs etc. to prepare the same for the purpose G
of cultivating rubber, tea, coffee etc. The High Court was also
of the view that if the conveyed land was a forest, there would
·have been some stipulation in the lease deed to the effect.
That the lease rent was fixed at the rate of the cultivable area H
was also noted. The High Court did record as well, that the
636
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A
land was asses-sed to Government revenue on the basis of
cultivations done which too belied the appellants' claim of the
same being a private forest. Reference was also made to the
relevant survey plan (Exh. A2), appended tothe lease deed,
to endorse the conclusion against the existence of private
B forest on the land at the time of its demise on lease. It ruled
further, that even if the land was a private forest at the time of
the initial lease, cultivation of various other crops thereon, after
the execution of the lease deed took it out of the ambit of
Section 3 ( 1) (vii) of Act 1963.
c
7. Vis-a-vis the next contention, namely, that the suit land
contained a plantation on the date of enforcement of Act 1963
and thus stood exempted from the ambit thereof, the High Court
entered a finding, that the statutory provision i.e. Section 3 (1)
D (viii), applied to cases where a plantation did exist at the time
of the grant of lease and not on the date of commencement of
the statute. Relying on the decision of a Full Bench of the Kerala
High Court in Rt., Rev. Dr. Jerome Fernandes Vs B. B. Rubber
Estate Ltd, 1972 KLT 613 dilating on the same issue, the High
E Court thus concluded that the respondent-company was
entitled to fixity of tenure. In these premise, the aspect of its
entitlement to the value of improvements made by it on the
land was left undecided. As a corollary, the appeal was
F dismissed.
8. Mr. Nambiar, the learned Senior Counsel for the
appellant has assiduously argued, that having regard to the
covenants of the lease deed and the attendant facts arid
circumstances, the transaction was well within the purview of
G Section 3 (1) (vii) and/or 3 (1) (viii) of the Act 1963 and was
thus exempted from the applicability thereof and consequently
the respondent-company was not entitled to any fixity of tenure
as per the statute. Referring to the objects and reasons of the
H enactment, the learned senior counsel insisted that the
applicability of Section 3 (1) (vii) and 3 (1) (viii) thereof has to
N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.
637
LTD. [AMITAVAROY,J.]
be essentially tested on the touchstone of the date of the A
enforcement of the legislation. As admittedly, there was a
standing rubber plantation on ttie suit land on that date i.e.
01.04.1964, the respondent-company unmistakably had no
sustainable right of fixity of tenure and thus the deductions to
the contrary as recorded in the impugned decisions are B
patently non est in law. Mr. Nambiar urged that this issue having
been authoritatively settled by a Constitution Bench of this Court
in Karimbil Kunhikoman vs State of Kerala (1962) Suppl. 1
SCR 829, the decision to the contrary as recorded by the Full
Bench of the Kerala·High Court in Rt., Rev. Jerome Fernandes C
(supra) is on the face of it per incuriam and consequently the
impugned verdict founded thereon is unsustainable in law and
on facts. The learned senior counsel pleaded, that as the Act
1963, enacted after the Kera la Agrarian Relations Act 1961, 0
is one for implementing land reforms in the State, no
interpretation with regard to the applicability thereof ought to
be assigned that would ensue in fragmentation of plantations
existing on the date of the enforceability thereof and thus, the
plantations standing on the suit land, did come within the
E
exemption contemplated under Section 3 (1) (viii). No
exposition of Section 3 of Act 1963, incompatible with the
objects and reasons thereof being permissible in law, the
finding of the non-applicability thereof to the suit land is patently
erroneous, he urged. The learned senior counsel, to endorse
F
this contention, amongst others, placed reliance also on a
subsequent decision of the Full Bench of the Kerala High Court
in Jacob Philip vs State Bank of Travancore, 1972 KL T 914.
Contending that the Act 1963 is prospective in nature, Mr.
Nambiar emphasised that the text of Section 3 ( 1) (viii) thereof,
G
clearly expressed the legislative intent of including tenancies
in respect of plantation exceeding 30 acres existing on the
date of enforcement thereof. In addition, the learned senior
counsel asserted, that with the expiry of the initial period of
lease in the year 1954, there was no formal renewal thereof H
638
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A
and in terms of Section 116 of the Transfer of Property Act
1882, the respondent continued in possession of the land by
holding over, signifying at the best a lease, on year to year
basis and in that view of the matter, in the face of admitted
plantation on the suit land, the respondent-company was drawn
B within the coils of Section 3 (1) (viii) of the Act 1963 and thus
was disentitled to claim fixity of tenure. In the alternative, Mr.
Nambiar insisted that the respondent~company is not a tenant
in respect of the land after 1954 and thus in any case, is not
entitled to the protection offixity of tenure under Section 13 (1)
C
of the Act 1963. The learned senior counsel placed on reliance
as well on the decision of this Court in Malankara Rubber and
Produce Co. & Ors vs The State of Kerala & Ors. (1972) 2
sec 492.
D
9. A contrario sensu, Mr. Singhvi, the learned senior
counsel for the respondent-company, maintained that as
neither Section 3 ( 1) (vii) northe Section 3 ( 1) (viii) is attracted
in the present factual setting, the concurrent findings to this
effect are assuredly unassailable and thL•s the instant challenge
E deserves to be dismissed in limine. The learned senior counsel
insistently urged that as the pleaded case of the appellant in
the plaint was limited to the existence of private forest at the
time of lease and that there was no whisper whatsoever of any
F
plantation thereon, the plea based on Section 3 (1) (viii) of Act
1963 ought not have been entertained by High Court and by
no means should be taken cognizance of by this Court. Mr.
Singhvi contended that in the face of the concession on behalf
of the appellant that neither at the initiation of the lease nor at
G the enforcement of Act 1963 there did exist a reserve forest or
the land, Section 3 (1) (vii) was decisively inapplicable. The
plea founded of Section 3 (1) (viii) relatable to plantation, in
absence of any pleading to the effect ou~ht to have been
summarily rejected, he asserted. This is more so as this plea
H was not raised either before the Trial Court or the Land Tribunal,
N.K. RAJENDRAMOHAN v. THIRVAMADI RUBBER CO.
639
LTD. [AMITAVAROY,J.]
or the First Appellate Court. The decision of the Kera la High A
Court in Jerome Fernandes (supra) being a determination
clearly answering the issue vis-a-vis Section 3 (1) (viii) of the
Act 1963 and as the ruling of this Court in Karimbil Kunhikoman
(supra) pertains to a distinctively different sphere of scrutiny,
the contention that the former is per incuriam the latter is wholly B
misplaced, he maintained. According to Mr. Singhvi, the
decision in Karimbil Kunhikoman (supra) dwelt upon the aspect
of discrimination stemming from classification of plantations
under the Kera la Agrarian Relations Act 1961 and is wholly
unrelated to the challenge in Jerome Fernandes (supra). The C
learned senior counsel urged as well, that the decision of this
court in Malankara Rubber and Produce Co. and Ors supra
being on a different issue does not render the adjudication in
Jerome Fernandes (supra) per incuriam. Mr. Singhvi pleaded 0
that having regard to the doctrine of stare decisis, the verdict
in Jerome Fernandes (supra) having held the field, over the
years, the same was rightly applied by the cou.rts below. He
urged that not only the materials on record, do unequivocally
demonstrate that neither the land was a private forest nor did
E
contain any plantation on the date of the lease and thus the
same is beyond the scope of Section 3 (vii) and 3 (viii) of Act
1963 as has been consistently held by the Trial Court and the
higher forums, and thus this Court in the exercise of its
jurisdiction under Article 136 of Constitution of India would not,
F
even otherwise, lightly dislodge the same. Mr. Singhvi
maintained, that the factum of existence of private forest and
of plantation for the applicability of Section 3 (1) (vii) and 3 (1)
(viii) of the Act 1963 would be assuredly relevant as on the
date of the lease end not on one of the enforcement of the G
enactment and judged by that benchmark, the suit land is beyond
the said exemption clauses, entitling the respondent-company
to the right of fixity of tenure under the legislation.
10. In responding to the plea raised on behalf of the
H
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SUPREME COURT REPORTS
[2015] 10 S.C.R.
A
appellant in reply that in any view of the matter, the provisions
of the Act 1963 pertaining to ceiling on the area of land that
can be held by the respondent-company would apply, Mr.
Singhvi maintained that the same at the first place having been
raised for the first time in this Court, it ought to be readily
B dismissed. Further, as there is a plantation on the suit land on
the date of enforcement of the Act, it is exempted from ceiling
as per the Section 81 (1) (e) thereof. In any case, it being an
issue between State Government and the respondentcompany, the appellant has no locus standi to even refer
C thereto, the learned senior counsel urged. Mr. Singhvi did argue
as well, that in the face of Section 72 of the enactment, there
was no equity in favour of the appellant, he having been reduced
to a non-entity by the statutory investiture of the landlord's right
0
in the Government. The following decisions amongst others
too were referred to.
N. V. Srinivasa Murthy (2005) 10 SCC 566, K. V.
Pathumma vs Ta/uk Land Board and Ors (1997) 4 SCC 114,
State of Kera/a vs K Sarojini Amma and Ors (2003) 8 SCC
E 526.
11. We have extended our thoughtful consideration to the
recorded materials and the competing arguments. Whereas
the appellant seeks the ouster of the respondent-company from
F the land involved contending that it is not entitled to the
protection of fixity of tenure under the Act 1963, the latter pleads
to the contrary by taking refuge of the enactment, asserting
that the exemption clauses contained in Section 3 ( 1) (viii) and
3 ( 1) (viii) are inapplicable to it. A correct exposition of Section
G 3 ( 1) (vii) and 3 ( 1) (viii) of Act 1963 would, as a corollary, be of
definitive significance. Necessarily thus, the instant
adjudicative exercise, ought to be preceded by an adequate
reference to the relevant legal provisions.
H
12. As the flow of events attest, the enactment earliest in
N.K. RAJENDRAMOHANv. THIRVAMADI RUBBER CO.
641
LTD. [AMITAVAROY,J.]
point of time qua the present lis, is the Malabar Tenancy Act A
1929. As the preamble of this statute would reveal, it was one
to define, declare, alter and amend, the law relating to landlord
and tenant in the Gudalur Taluk of the Nilgiris District. Section
2 thereof, which exempted lands from its application being of
relevance is quoted hereunder.
B
"2. Exception:
Nothing in this Act shall apply to-
(1) Lands transferred by a landlord for filling timber or for C
planting tea, coffee, rubber, cinchona or anv other
special crop prescribed bv a rule made by the State
Government or the erection of any building for the
purpose of or, ancillary to the cultivation of such crop, 0
or the preparation of the same for the market or land
let only for fugitive cultivation:
Provided that no rule under this clause shall affect
any land in respect of which any tenant has a right of
fixity of tenure under this Act, so long as such right E
subsists.
(2) any transaction relating only to the usufruct of trees.
(3) any building owned by a landlord including a house, F
shop or warehous~, f;!nd the site thereof, together with
the garden or land appurtenant thereto but not
including a hut belonging to a landlord, in any ulkudi.
Apart from defining inter alia the expressions "landlord'' and G
"tenant", the legislation did confer right of fixity of tenure on
certain classes of tenants as set outunder Section 21.
13. A plain reading of Section 2 would authenticate
exclusion of the applicability of the Act 1929 to lands transferred
H
by the landlord for felling timber or for planting tea, coffee,
642
SUPREME COURT REPORTS
[2015) 10 S.C.R.
A
rubber, cinchona or any other special crop prescribed by a
rule made by the State Government or the erection of a building
for the purpose of or ancillary to the cultivation of such crop, or
the preparation of the same for the market or land let only for
fugitive cultivation. The proviso of Section 2 (1) clarifies that
B no rule thereunder would affect any land, in respe,ct of which
any tenant did have right of fixity of tenure so long as such right
did subsist. Sub-Sections (2) and (3) being not of relevance
are not being adverted to ..
C
14. The legislative backdrop of the Act 1963 portrays, that
it was amongst. others preceded by the Kerala Agrarian
Relations Act 1960 (hereinafter referred to as Act 1960) which
sought to introduce comprehensive land reforms in the State
of Kerala and did receive the assent of the President on
D 21.1.1961. The statement of objects and reasons of the
enactment i.e. Act 1963 disclose that this Court had declared
unconstitutional the Act 1960 in its application to ryotwari lands
of Hosdurg and Kasargod Taluks, whereafter eventually the
Act 1963 was enacted to provide an uniform legislation in the
E State, by keeping in view the broad objectives of land reforms
as laid down by the Planning Commission and the basic
objectives of the Act 1960. As the scheme of Act 1963 would
dominantly demonstrate, the statutory endeavour has been to
F strike a fair and equitable balance of various interests to be
impacted thereby so as to facilitate smooth implementation
thereof, without casting undue financial burden on the State.
Conferment of fixity of tenure on the tenants as well as the limited
right of resumption to the landlords are also the noticeable
G features of the enactment with the emphasis thatthe right of
resumption would not be available against tenants, who were
entitled to fixity of tenure immediately prior to 21.1.1961 under
the law then in force, unless such tenants had in their
possession land in excess of the ceiling area. The statement
H of objects and reasons do refer to as well, the provisions
. N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.
643
LTD. [AMITAVAROY,J.]
pertaining to determination of fair rent at uniform rates and A
purchase of the rights of the landowners and intermediaries of
a holding by the cultivating tenant. The Act 1963 as
contemplated, did provide for imposition of a ceiling on
holdings and constitution of Land Tribunal and Land Board for
the administration of the provisions, with the remedy of appeal/ B
revision from the decisions of this fora. The legislation received
the assent of the President on 31.12.1963 and some of the
provisions thereof which concern the present pursuit were
enforced with effect from 1.4.1964.
Sections 2 (44) and 2(47) which define "plantation" and
"private forest" are extracted hereunder:
c
" "Plantation" means any land used by a person
principally for the cultivation of tea, coffee, cocoa,
D
rubber. cardamom or cinnamon (hereinafter in this
clause referred to as 'plantation crops) and includes -
(a) land used by the said person for any purpose ancillary
·to the cultivation of plantation crops or for the E
preparation of the same for the market;
(b) land contiguous to, or in the vicinity of, or within the
boundaries of, the area cultivated with plantation crops,
not exceeding twenty per cent of the area so cultivated F
and reserved by the said person and fit for the
expansion of .such cultivation;
(c)
agricultural lands interspersed within the boundaries
of the area cultivated by the said person with plantation
crops, not exceeding such extent as may be G
determined by the Land Board [or the Taluk Land
Board, as the case may be] as necessary for the
protection and efficient management of such cultivation.
Explanation- Lands used for the construction of office H
644
SUPREME COURT REPORTS
[2015] 10S.C.R..
A
buildings, godowns, factories, quarters for workmen,
hospitals, schools and play grounds shall be deemed
to be lands used for the purposes of sub-clauses (a);
"private forest" means a forest which is not owned by
B
the Government, but does not includec
(i) · areas which are waste and are not enclaves within
wooded areas;
(ii) areas which are gardens or nilams;
(iii) areas which are planted with tea, coffee, cocoa, robber,
cardamom or cinnamon; and
(iv) other areas which are cultivated with pepper, arecanut,
o
coconut, cashew or other fruit-bearing trees or are
cultivated with any other agricultural crop;"
15. Chapter II of the enactment deals with provisions
regarding tenancies. Section 3 exempts the transactions, as
E referred to therein subject to the stipulations enjoined, from
the application thereof. Section 3 ( 1) (vii) and 3 ( 1) (viii) being
the focal point of scrutiny demand extraction as well;
F
G
3 (vii) leases of private forests:
[Provided that nothing in clauses (i) to (vii) shail apply
in the cases of persons who were entitled to fixity of
tenure immediately before the 21•t January, 1961, under
any law then in force or persons claiming under such
persons; or]
3(viii)
'tenancies in respect of plantations exceeding
thirty acres in extent;
Provided that the provisions of this Chapter, other than
H
Sections 53 to shall apply to tenancies in respect of
N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.
645
LTD. [AMITAVAROY,J.]
agricultural lands which are treated as plantations under A
sub-clause© of clause (44) of Section 2;
15.1 Section 13 of the enactment mandates that
· notwithstanding anything contrary to the law, custom, usage or
contract or any decree or order of Court, every tenant shall B
have fixity of tenure in respec~ of his holding and no land from
the holding shall be resumed except as provided in Sections
14 to 22. Section 72 proclaims that on a date to be notified by
the Government in the official gazette, all right, title and interest
of the landowners and intermediaries in respect of holdings C
held by cultivating tenants (including holders of Kudiyiruppus
and holders of Karaimas) entitled to fixity of tenure under
Section 13 and in respect of which certificates of purchase
under sub-Section (2) Section 59 have not been issued, shall,
subject to the provisions of that Section, be vested in the D
Government free from all encumbrances created by the
landowners and intermediaries and subsisting thereon on the
said date. Whereas Section 72 B confers cultivating tenants'
right to assignments, Section 81 as well do cull out exemptions
from the applicability of Chapter Ill captioned "Restriction on
E
ownership and possession of land in excess of ceiling area
and disposal of excess lands."
16. Bar of jurisdiction of Civil Courts to settle, decide or
deal with any question or to determine any matter which is
F
required by or under the enactment to be decided, dealt with
or determined by the Land Tribunal or Board Authority or the
Land Board or Taluk Land Board or the Government or an
Officer of the Government as contained under Section 125
and the repeal amongst others of the Malabar Tenancy Act G
1929 and Kerala Agrarian Relations Act 1960 vide Section
132 deserve a passing reference to complete the fringe survey
of the legislative scheme of Act 1963.
17. The lease deed Exh. A 1, the fundamental instrument H
646
SUPREME COURT REPORTS
[2015) 10 S.C.R.
A
having a decisive bearing on the course of the present
determination next commands attention. It was executed on
21.6.1918 between the Tarwad of the plaintiffs and Mr.
Campbell Hunt, featuring an area of land measuring 963-112
acres of which 925 acres was fit for cultivation and not subject
B to any Government revenue. Thereby, the lessor accorded a
lease of the said 963-112 acres of land to the lessee i.e. Mr.
Campbell Hunt for a period of 36 years on and from 01.4.1918
on payment of premium of Rs. 693.12 anna calculated at the
rate of 12 annas per acre of the cultivable portion. that is 925
C acres. The lease deed evidenced, that pursuant to the payment
of premium of Rs. 693.12 annas, the lessor, his heirs,
successors, legal representatives and assigns did lease unto
the lessee, his heirs, successors, legal representatives and
D assigns, the property for a period of 36 years. The land involved
was delineated in the appended plan along with 25 hills, water
channels, poyils lands etc. totaling 963- y,acres of which 925
acres were alone fit for cultivation for the purpose of plantation
and cultivation with a right to cultivate coffee. tea. pepper.
E cinchona, rubber and any other produce which the lessee would
think fit and proper to cultivate, with full right of access to the
premises, with all ways, watercourse, privileges, easements,
advantages and other appurtenances therewith and to cut, till
and remove all forests, jungles and trees for the purpose of
F
planting and cultivating without any let or interruption from the
lessor.
18. The lease deed, reading between the lines, would
demonstrate irrefutably, that at the time of execution thereof,
G neither a private forest nor a plantation as defined in Section
2 (44)/2 (47) of the Act 1963 did exist on the demised land.
The lease which was for a period of 36 years w.e.f. 01.4.1918,
encompassed land ad measuring 963·112 acres which included
hills, water channels, poyils lands etc so much so that only 925
H acres were comprehended to be fit for cultivation and the
N.K. RAJENDRAMOr IAN·:. Tfi,,1VAMADI RUBBER CO.
647
LTD. [AMITAVAROY,J.]
lessee was left at liberty to raise coffee, tea, pepper, cinchona, A
rubber or any other produce at the latter's discretion.