DUA - (1.) 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 challenged in the 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. The sole defence in sustaining the constitutional validity of the impugned Act was based on Article 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 Section 73 and explanation to Section 85 (1) of the impugned Act. The Judgment appealed from is reported as V. N. Narayanan Nair v. State of Kerala, AIR 1971 Ker 98 (FB). Raman Nair, C.J., and Raghavan, J., 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 as the application is pending, Section 50-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 Section 73 but on all other points he agreed with the majority.
(2.) IT may at the outset be pointed out that the Kerala Land Reforms Act, 1963 (Act No. 1 of 1964) as originally enacted was specified in the Ninth Schedule to the Constitution (ITem No. 39 in that Schedule) and is, therefore, immune from constitutional challenge founded on the ground that the provisions of the said Act are inconsistent with or take away or abridge any of the rights conferred by any provision of Part III of the Constitution; vide Art. 31-B. IT is only the subsequent amendment of the original Act which having not been 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 substituted for the old Section 73 of original Act reads: "73. Discharge of arrears of rent - (1) Notwithstanding anything to the contrary contained in any other law for the time being inforce, or in any contract, or in any judgment, decree or order of any Court or Tribunal, the landlord of a tenant specified in Column (1) of the Table below shall be entitled to recover towards arrears of rent accrued due before the 1st day of May, 1968 and 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: TABLE Class of tenantAmount of rent to be paid for discharge (1)(2) Tenant possessing not more than 5 acres of land in the aggregate, whethere as owner, mortgagee, lessee or otherwise.One year's rent or the actual amount in arrears, whichever is less Tenant possessing more than 5 acres but not more than 10 acres of land in the aggregate, whether as owner, mortgagee, lessee or otherwiseTwo year's rent or the actual amount in arrears, whichever is less. Tenant possessing more than 10 acres of land in the aggregate, whethere as owner, mortgagee, lessee or otherwise.Three years' rent or the actual amount in arrears, whichever is less 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, subject 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. JUDGEMENT_364_2_1972Html1.htm Provided that where the tenant is in possession of more than fifteen acres of land in the aggregate, whether as owner, mortgagee, lessee or otherwise, and the landlord is a small holder, the tenant shall be liable to pay the actual amount in arrears. Explanation:- For the purposes of this section, the rent for a 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, 1969 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 (1), (b) the costs, if any, awarded to the landlord in connection with the conduct of the proceeding after the commencement of the Kerala Land Reforms (Amendment) Act, 1969; (c) the costs, if any, awarded to the tenant in connection with the conduct of the proceeding after such commencement; and (d) where such costs are awarded to the tenant, the amount due to the landlord after deducting such costs. (3) Where any decree or order has been passed in favour of a landlord before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, by any court or Land Tribunal for the recovery 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 (1); and to determine such amount, any of the parties to the decree or order may apply to the court or the Land Tribunal, as the case may be, which passed the decree or order, to amend such decree or order in accordance with the provisions of subsection (1). (4) On receipt of an application under sub-section (3), the court or the Land Tribunal, as the case may be, 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 for recovery of arrears of rent accrued due prior to the 1st day of May, 1968, before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, may apply to the Land Tribunal under that section for recovery of the amount due to him under sub-section (1) of this section. (6) Notwithstanding anything contained in section 26, on receipt of an application referred to in sub-section (8), 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 sub-section (6) as due from him in the court or Land Tribunal which passed the order within a period of six months from the date of the order. (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 of 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 a 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." The majority opinion of the High Court, while striking down this section, observed: "Under Section 73, all arrears of rent accrued due before the 1/05/1968 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 land, of two year's rent in the case of a tenant possessing more than five acres but not more than ten acres of land, and three year's 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 Sec. 8 of the Transfer of Property Act - and the right to receive rent in the future might well be regarded as a right in the estate constituted 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. The effect of Section 73 is not merely to deprive the landlord of the charge conferred on 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 in so far as the acquisition, extinguishment or modification of rights in an estate are concerned. That is an essential element of agrarian reform and the so-called incidental or ancillary provision 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 cannot 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 landlord as a reasonable restriction on 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 so - and it cannot 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 proceeding 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 nothing 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 seem to us either a reasonable restriction on the rights of the landlord or something calculated to further the interests of the general public that persons 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 S. 73 has not the protection of Article 31-A and is violative of Article 19 (1) (f)."
(3.) THE dissenting opinion, upholding its validity, observed that in construing the reasonableness of the provisions of Section 73 it is legitimate to look to the provisions of Article 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 Advocate 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, (1967) 2 SCR 536 = (AIR 1967 SC 930) in support of his attack on the majority view of the High Court and in his submission this decision completely covers the present case. While 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 such 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 State of Gujarat v. Jetawat Lalsingh Amarsingh, AIR 1969 SC 270 where, while construing S. 14 (1) of the Bombay Merged Territories and Areas (Jagir 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. 234/12.00 annually from the Jagir is one of those rights that have got to be compensated under S. 14 (1). That liability 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." 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 property". Reliance in this connection was also placed by the learned Advocate-General on M. K. Subbachariar v. State of Madras, ILR (1967) 2 Mad 646, Ranjit Singh v. State of Punjab, (1965) 1 SCR 82 = (AIR 1965 SC 632); State of Bihar v. Umesh Jha, (1962) 2 SCR 687 = (AIR 1962 SC 50) and on the observations of S. R. Das J., (as he then was) on the question of legality of acquisition of arrears of rent in State of Bihar v. Kameshwar Singh, 1952 SCR 889 at pp. 1000-1002 = ( AIR 1952 SC 252). 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 decision cited by the learned Advocate General also do not support his submission. Ranjit Singh's case (supra) is an authority for the view that the expression "agrarian reform" calls for a wider meaning than was given to it by K. K. Kochunni v. State of Madras, (1960) 3 SCR 820 = (AIR 1960 SC 1080) and in Jha's case (supra) the validity of S. 4 (b) of the Bihar Land Reforms 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 by Art. 31-A of the Constitution. ;