- (1.) A rather interesting question has arisen for decision in this case. That concerns the construction of S. 87 of the Kerala Land Reforms act and may be of importance as a question of common occurrence in future. When any land is exempt from the provisions of Chapter III of the Kerala Land reforms Act, 1963, as land falling within the exempted categories specified in s. 81 (1) of the Act, whether a subsequent conversion of that land into a non-exempt category obliges the owner to surrender land as excess under S. 87 of the Act denning such land as a quired on the date of conversion? Private forest is a category of land exempted from the ceiling provisions of the Act. If on 1-1-1964 the land was private forest it is exempt from the ceiling provisions on 1-1-1970 and therefore irrespective of the extent of such private forest held by a person on 1-1-1970 he can hold other land to the extent of the maximum permissible ceiling area. If such a person subsequently acquires land other than that in the exempted category he is liable under S 87 of the Act to surrender the excess arising by reason of such acquisition. That is provided for in order to prevent accumulation of lands in the hands of a person after 1-1-1970 though on 1-1-1970 he is permitted to hold only the land within the ceiling area. But a person holding land within the ceiling area on 1-1-1970 may convert land in the exempted category such as private forest into a coconut garden after 1-1-1970 and thereby may come to hold land other than that in the exempted category at a subsequent point of time in excess of the ceiling area. Has he an obligation to surrender the excess land? Cases may arise where persons may hold exempted rubber estates and feeling that it may be uneconomic to continue to hold them as rubber estates may convert them into coconut gardens. In such a case will they have any obligation to surrender any excess land by reason of conversion of the rubber estates into coconut gardens? This is illustrative of the questions that may call for answer in this case.
(2.) I will now refer to the relevant provisions of the kerala Reforms Act (in short, the Act ). Chapter III starts with S. 81 which in sub-clause (1) enumerates various categories of lands saved from the operation of the provisions of Chapter III. Sub-section (3) of that section enables government to exempt any specific land from the provisions of Chapter III. The ceiling area of land is defined in S. 82 of the Act. The prohibition against owning or holding land in excess of the ceiling area is in S. 83 of the Act That prohibits any person owning or holding or possessing under a mortgage land in the aggregate in excess of the ceiling area with effect from such date as is notified in the Gazette. Though S. 81, 82 and 84 came into force on 1-4-1964 s. 83 came into force only on 1-1-1970. The date notified under S. 83 was also 1-1-1970. S 84 deals with certain voluntary transfers and provides for treating them as null and void for the purpose of the Act The obligation to surrender excess land arises by reason of the provision in S. 85 (1) of the Act. That obliges any person owning or holding land in excess of the ceiling area on the date notified under S. 83 to surrender such excess. Therefore S 85 creates only an obligation to surrender if excess is held on 1-1-1970 and holding of excess land after that date is not covered by that section. The procedure for surrender and other matters relating to such surrender are provided for in subsections (2) to (9) of S. 85, S. 85a deals with filing statement by certain persons and for the purpose of this case I am not concerned with that section. Vesting of excess land in Government on the determination of the extent and other particulars of land, ownership or possession or both of which is to be surrendered under S 85 is provided in S. 86 of the Act. S. 87 is relevant for our purpose and it is necessary to quote that section here. That section runs thus: "87. Excess land obtained by gift, etc. to be surrendered: - (1) Where any person acquires any land after the date notified under S. 83 by gift, purchase, mortgage with possession, lease, surrender or any other kind of transfer inter vivos or by bequest or inheritance or otherwise and in consequence (hereof, the total extent of land owned or held by such person exceeds the ceiling area, such excess shall be surrendered to such authority as may be prescribed. Explanation: - Where any land is exempted by or under s. 81 and such exemption is in force on the date notified under S. 83, such land shall with effect from the date on which it ceased to be exempted, be deemed to be land acquired after the date notified under S. 83 (IA) Any person referred to in sub-section (I) shall file a statement containing the particulars specified in sub-section (1) of S. 85a within a period of three months of the date of the acquisition. (2) The provisions of S. 85 and 86 shall, so far as may be apply to the vesting in the Government of the ownership or possession or both of the lands required to be surrendered under sub-section (1)". In terms Sub-section (1) applies only to a case where a person acquires any land after the date notified under S. 83 by transfer inter vivos, by bequest, inheritance or otherwise and in consequence thereof the total extent of land held or owned by such person exceeds the ceiling area. This court had occasion to consider the scope of the section in CRP. 1718 of 1975 short noted in Vasu v. Taluk Land Board (1976 KLN 49 ). That the section applies only to a case of acquisition and not to cases where there is change in the constitution of a family has been found in that decision In that case the family consisted of 2 members, a husband and a wife and that unit was entitled to hold more land than a sole surviving member of a family. In that case the taluk Land Board assumed that on the death of one of the 2 members of the family the extent of land held by the family till cannot be held thereafter and the ceiling area should be determined afresh under S. 87 as that of a sole surviving member of the family. That view was not countenanced by this court. That was because S. 87 applied only to a case of subsequent acquisition and such acquisition could not be assumed in that case. Plainly a case of conversion of one category of land into another cannot also be an acquisition in any sense of the term and therefore the main part of sub-section (I) of S. 87 will not apply to a case such as the one before me. On that counsel are agreed. But the real controversy concerns the scope of the explanation. That explanation specifically takes in a case where (1) a land is exempt under S. 81, (2) such exemption is in force on the date notified under S 83, and (3) such land ceases to be exempt with effect from a specific date. In that event the consequences provided for by the explanation is that such land shall be deemed to be land acquired after the date notified under S. 83 and that is for the limited purpose of applying S. 87 (1) of the Act. Since the explanation uses the term "the date on which it ceases to be exempted" it will be appropriate to scan the provision in S. 81 to see whether the said term has any reference to any date contemplated in S. 81. Evidently there is I will particularly refer to sub-clauses (b), (h) and (k ). S. 81 (b), (h) and (k) read thus: "81. Exemptions.- (1) The provisions of this chapter shall not apply to- (b) lands taken under the management of the Court of Wards. Provided that the exemption under this clause shall cease to apply at the end of three years from the commencement of this Act; x (h) lands mortgaged to the Government, or to a co-operative society (including a co-operative land mortgage bank) registered or deemed to be registered under the Co-operative Societies Act for the time being in force, or to the Kerala Financial Corporation, or to the Kerala industrial Development Corporation or to the State Small Industries corporation, as security for any loan advanced by the Government or by such society or Corporation, so long as the mortgage subsists: Provided that the exemption under this clause shall cease to apply at the end of three years from the commencement of this Act. x (k) lands belonging to or held by an industrial or commercial undertaking at the commencement of this Act, and set apart for use for the industrial or commercial purposes of the undertaking. 'provided that the exemption under this clause shall cease to apply if such land is not actually used for the purpose of which it has been set apart, within such time as the District Collector may, by notice to the undertaking, specify in that behalf. " The proviso to sub-clause (b) lifts the exemption in regard to lands taken under the management of the Court of Wards with effect from the date of expiry of 3 years from the commencement of "this act". The proviso to sub-clause (h) similarly lifts the exemption with effect from the date of expiry of the 3 years from the commencement of "this Act" in regard to lands mortgaged to the Government or to a co-operative Society or such bodies that are mentioned therein so long as the mortgage subsists. Sub-clause (k) provides for exemption for lands belonging to or held by an industrial or commercial undertaking at the commencement of "this Act" and set apart for use for the industrial or commercial purpose of the undertaking. The proviso to this sub clause concerns cessation of this exemption if such land is not actually used for the purpose for which it has been so set apart within such lime as the District Collector, may by notice to the undertaking, specify in that behalf. These are cases of cessation of the exemption with effect from specific dates, these dates being those particularly specified in the proviso to sub-clauses (b) and (h) and then left to the determination of the Collector in the case of sub-clause (k) Reference to the date on which land ceases to be exempt in the explanation to S. 87 of the act can directly be related to the dates contemplated in the proviso to clauses (b), (h) and (k) of S. 81 (1) of the Act. But the controversy is whether it should be limited to these dates or should be extended further. The cases for the Taluk Land Board here is that it could be so extended to conversions of land exempted by reason of the various clauses of S. 81 (1) of the Act into non-exempted category, for, according to counsel, as and when such conversions are made the lands will be deemed to have been acquired within the meaning of that term in S. 87 (1) of the Act. It may be profitable her to notice the possible consequences of adopting one or other of the two possible views. Taking the case of the petitioner, for instance, it could be said generally that the legislature could not have intended to bring within the ambit of the ceiling provisions cases of any change in the nature of lands held by a person from time to time. A family of 5 members is allowed to hold land upto 10 standard acres in extent subject to a minimum of 12 and a maximum of 15 in ordinary acres Taking, for instance, a case where such a family is in possession of more than 12 acres of coconut garden, the family will be allowed to hold only 12 acres of coconut garden. On the other hand if the same family is possessed of more than 1 acres of other dry land it will be allowed to bold 15 acres of such land In the latter event if the family, converts the land after 1-1-1970 into coconut garden it will come into possession of 15 acres of coconut garden Had there been the coconut garden in existence on 1-1-1970 only 12 acres would have been permitted to be held. Could it be said that the intention of the legislature was that subsequent conversion of the other dry land into coconut garden would result in any consequence penal to the owner? Of course this is not a case covered by S. 87, for this is not a case where there is a conversion of exempted land. But the illustration is intended to ascertain whether the intention could have been to take note of subsequent conversion in such a case. 1 may now illustrate with reference to conversion from exempted to non-exempted category. In a case where the person has obtained exemption for a house site and in due course of time the house having become dilapidated he decides to demolish the house and he chooses another item of property for cons ruction of a new house could it be said that the land which was exempt earlier having lost its character as house site must be taken as land to which the ceiling provision would apply and deemed as acquired after 1-1-1970. Could it be said that for that reason that land is liable to be surrendered to the Taluk land Board under S. 87? It seems to me rather strange to hold so. I will now notice the case of a land falling within one exempted category converted into another exempted category such as private forest into a land liable to exemption under S. 81 (1) (k ). In the process of conversion there must necessarily be an intervening moment, however short that may be, in which the land was neither private forest nor the one contemplated under S 81 (1) (k) If the explanation is to apply, then at that moment the land is deemed to have been acquired within the meaning of S. 87 (1) and therefore the excess over the ceiling area deemed as acquired at that moment has to be surrendered. According to the petitioner's counsel these results could not have been contemplated by the legislature Equally persuasive illustrations are drawn by counsel for the Taluk Land Board also Assuming that a land was private forest as on 1-1-1964 and the owner of such land thinks of converting the private forest soon after 1-1-1970 into a coconut garden and does so he comes into possession of large area of coconut garden much in excess of the ceiling area. What is sought to be achieved by the scheme of the Act would be nullified by treating such large extent as not liable to be surrendered. I need not multiply similar instances enumerated by the counsel appearing for the Taluk Land Board.
(3.) TO me it appears that in this state of things, the explanation must furnish the clue to the problem If the explanation will have no field to operate except by accepting the meaning given by the Taluk Land board I must necessarily accept that construction. But if on the other hand the explanation can be directly related to specific provisions in S. 81, as learned counsel for the petitioners attempted to do, it may be easy to accept that construction. That is why at the beginning of this order reference to sub-clauses (b), (h) and (k) of S. 81 has been made. These Clauses contemplate cessation of the exemption from the application of the provisions of the Act on a specific date. Had there been no explanation to S. 87 (1) the consequence would have been that notwithstanding the proviso to S. 81 (1), (b), (h) and (k) nothing would happen. That is because the obligation under S. 85 to surrender excess land will not apply notwithstanding the proviso, for S. 85 (1) obliges surrender of land held in excess only as on 1-1-1970 and not later. S. 87, if there was no explanation, would not apply because the case is not of one of subsequent acquisition of land unless it be deemed to be one such. Therefore a deeming provision was called for if the provisos were to have a meaning and content. The explanation serves specifically that purpose. It seems tome difficult to give to the explanation to s. 87 (1) a meaning beyond that of application to clauses (b), (h) and (k) of s. 81 of the Act. That is because in cases of conversion of land exempted under the Act from the exempted category into the non-exempted category the process, quite often, may be gradual and it will be inappropriate to refer to deeming of acquisition of land "with effect from the date" on which the land ceases to be exempt. Further there is an obligation under sub-section (1a) of s. 87 to file a statement containing the particulars specified in sub-section (1) of S. 87a by a person deemed to have so acquired land within three months of the acquisition. Since the date of cessation is deemed to be the date of acquisition, if the cessation is a gradual process it will be difficult to determine the date of cessation of exemption and consequently the date of deemed acquisition The only way to look at the matter then would be to consider each portion of the Estate as having been acquired on the date of conversion of that portion however snail it be. It will be difficult to say that exemption has ceased with reference to the whole land on any date. Supposing a private forest or a rubber plantation is converted into some other category and that process takes a long period of time the conversion date will be different for each small bit of land and to say that the acquisition should have been deemed to be with effect from the date of conversion in regard to each such small bit may not be exact or appropriate and it is difficult to conceive the obligation to file statement within the 3 months of such deemed acquisitions. I am only attempting to illustrate that the words used in the section cannot properly be understood so as to apply the explanation to cases beyond and besides those which are specifically covered by the explanation, namely, sub-clauses (b), (h)and (k) of S. 81 (1 ). In that view subsequent conversion of an exempted category of land into a non-exempted category does not attract the explanation to S. 87 and any excess cannot be assumed for that reason. Hence no proceedings for surrender of such excess land can be taken under S. 87 (1) in such a case.;