State of Kerala & Ors Vs.
Philomina & Ors [1976] INSC 185 (20 August 1976)
SHINGAL, P.N.
SHINGAL, P.N.
RAY, A.N. (CJ) BEG, M. HAMEEDULLAH
CITATION: 1976 AIR 2363 1977 SCR (1) 273 1976
SCC (4) 314
CITATOR INFO :
F 1977 SC 311 (14) RF 1979 SC1573 (17) RF
1992 SC1144 (9)
ACT:
Kerala Land Reforms Act, 1963-S. 84--Scope
of--Interpretation--When a statue could be read retrospectively.
HEADNOTE:
Section 84 of Kerala Land Reforms Act, 1963
declares that all voluntary transfers of land effected after the publication of
the Kerala Land Reforms Bill on September 15, 1963, shall be null and void.
Clause (ii) of this section while provided an exemption in respect of transfers
made on account of "natural love and affection" was omitted in 1972
with retrospective effect from August 16, 19'68. Section 81(1)(1) exempts kayal
padasakharams of Kuttanad area from the restrictions on ownership prescribed by
Chapter III of the Act. By an amendment of 1969, this exemption was withdrawn;
but the amending section was not brought into force until January 1, 1970.
There were two sets of petitions before the
High Court.
In one set the High Court held that (1)
voluntary transfers of kayal lands effected between September 15, 1963 and
January 1, 1970, were lawful and valid, and in the other (2) that certain
transfers by way of gift were invalid.
In the first set of appeals to this Court the
State contended that the 1969 amendment should be given retrospective effect
from April 1, 1964 i.e., the date on which s. 84 was brought into force and in
the second set the donees contended that the transfers were saved because they
were effected on account of natural love and affection.
Dismissing all the appeals,
HELD: (1)(a) Even though by virtue of s. 84
all voluntary transfers -effected after September 15, 1963 were invalid,
transfers made in respect of kayal lands could not be held to be invalid
because they were exempt from the provisions of Chapter Iii. Though that
exemption was withdrawn in 1969, that amendment was not brought into force
until January 1, 1970, Voluntary transfers made between September 15, 1963 and
January 1, 1970 were therefore valid. [278 B-C] (b) The 1969 amendment was
neither curative nor declaratory of the previous law. It merely omitted cl. (1)
from s.
81. A statute is not to be read
retrospectively except of necessity. There; is no such necessity in the instant
cases, for the legislature decided to exempt kayal lands from the operation of
the restrictions, and the 1969-amendment withdrawing the exemption was not
brought into force until January 1, 1970.. [278 E-F] Pritam Singh Chahil v.
State of Punjab and others, [1967] 2 S.C.R. 536 and Channan Singh and another
v. Jai Kaur [1970] 1 S.C.R. 803 held inapplicable.
(2) In the other set of cases the impugned
transfers were in favour of the donor's grand children by his daughter, who was
alive and were effected between January 1, 1970 and November 2, 1972. It was
held that it was futile to contend that s. 84 would not be attracted to the
transfers on the ground that they were effected on account of natural love and
affection within the meaning of the exemption provided by s. 84, because the
exemption was taken away by Act 17 of 1972 which specifically stated that, that
clause shall be, and shall be deemed to have been omitted with effect from the
16th August, 1968" and they could not be said to fall within the exempted
category because of the amendment made in s. 84 in 1972 restricting the
exemption to gifts made in favour of a donor's son or daughter or the son of a
daughter of his predeceased son or daughter. [279 A-C] 274
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 907-909/74.
Appeals by Special Leave from the Judgment
and Order dated 27-3-73 of the Kerala High Court in O.P. Nos. 375377/73
respectively.
CIVIL APPEAL No. 1354/75 Appeal by Special
Leave from the Judgment and Order dated 9-7-75 of the Kerala High Court in
C.R.P. No. 949/74.
CIVIL APPEAL No. 1355/75 Appeal by Special
Leave from the Judgment and Order dated 19-6-75 of the Kerala High Court in
C.R.P'. No. 611/74.
M.M. Abdul, Advocate Genera1 for the State of
Kerala, and K.M. K. Nair for the Appellants in CAs. 907-909/74 for rr. in CAs.
18541855/'75.
T.S. Krishnamoorthy lyer and P.K. Pillai; for
the Appellants in. CAs. 1354-1355/75.
Miss Lily Thomas for the Respondents in CAs.
908-909/74.
The Judgment of the Court was delivered by
SHINGHAL, J.--Civil Appeals Nos. 907, 908 and 909 of 1974 are by the State of
Kerala and the Land Board, Trivandrum. They are directed against a common
judgment of the Kerala High Court dated July 27, 1973. Civil Appeals Nos. 1354
and 1355 of-1975 are by petitioners who had. applied for revision of the orders
of the Taluk Land Board, Alathur, dated June 11, 1974 and April 27, 1974. The.
High Court dismissed the revision petitions by two separate judgments dated
July 9, 1975 and June 18, 1975. All the appeals are by special leave. We have
heard them together at the instance. of the learned counsel for the parties,
and will examine them in a common judgment.
The controversy in all the cases relates to
the. application of certain provisions of the KeraIa Land Reforms Act, 1963,
hereinafter referred to as the Act, to the impugned voluntary transfers of
Kayal lands. The State of Kerala feels aggrieved because the High Court has
taken the view that the transfers made between September 15, 1963 and January
1, 1970 had to be "recognised and Kayal lands comprised therein excluded
in reckoning the ceiling area and the excess lands to be surrendered after
January 1;, 1970." The grievance of the other two appellants is that their
revision petitions were dismissed even though the gift deeds in their favour
were valid and did not fall within the mischief of section 84(11) of the Act.
We shall examine these. Points of controversy but, before doing. so, it may be
mentioned that the validity of certain provisions. of the Act was also
challenged' in the High Court, in the three petitions which were disposed of by
the common judgment dated July 27, 1973, but the High Court upheld them.
There is no such controversy before us as the
Act, and the Acts which have amended it, have: been specified in the Ninth
Schedule to the Constitution. It may also be mentioned that we have' not had
the advantage; of hearing any one on behalf of the respondents 275 in Civil
Appeals Nos. 907 to. 909 of 1974 as Miss Lily Thomas,, who represented the
respondents in Civil Appeals Nos. 908 and 909, informed the Court, at the
commencement of the arguments, that they were not interested in the controversy.
While examining the petitions which are the
subject matter of appeals Nos. 907 to 909 of 1974, the High Court thought it
sufficient to refer only to the facts of original petition No. 283 of 1973.
That case is not before us, but that would not matter as the appeals can be
disposed of without reference to the details of that case. It will be
sufficient to say that the petitioner in that case was M.T.J. Joseph, and the
controversy centered round a settlement deed (Ex. P 8 made by him in favour of
his children on June 15, 1957. The appellants in the three appeals (Nos. 90.7-909)
are M.T.J. Joseph's children.
As has been stated, the High Court examined
the constitutional validity of the provisions of the Act and upheld them. It
next examined the question whether lands in excess of the ceiling area were in
the lawful or permissive occupation of the petitioners (in the petition before
the High Court), with reference to the argument that in view of the terms of
Ex. RI, by which some of the excess lands were assigned to the holder, the
occupation commenced with an implied permission on payment of the state dues.
The High Court did not however think it proper to. express its final views on
that aspect of the matter as it found that certain proceedings were pending
before the authorities concerned. It therefore left the matter after giving the
direction that the Land Board will no.t pursue the proceedings in respect of
those lands until the matter was finally decided in the pending proceedings. So
also, the High Court left the question regarding the ownership of the lands
which had been conveyed by the settlement deed of 1957, for investigation and
decision by the Land Board.
The High Court however proceeded to examine
the validity of certain transfers of lands between September 15, 1963 and
January 1, 1970 with reference to the relevant provisions of the Act and held
as follows :"Broadly stated;, the effect of section 84, is to invalidate
transfers effected by a person owning or holding land in excess of the ceiling
area, after the date of publication of the Land Reforms Bill (15-9-1963). That
being the object of the section, in order to determine whether the transfer was
in excess of the ceiling area, what is material is the law relating to ceiling
area on the date of the transfer, and not the law regarding celling area on the
date of the acquisition or any date subsequent to the transfer." It
therefore held that there was no justification for treating the alienations
effected after September 15, 1963 and before January 1, 1970 as having been
invalidated by reason of the subsequent amendments in the law, when they were
lawful and valid under the "law relating to ceiling area at the time when
they were made." The High Court also examined the questions relating to
the grant of compensation and improvements, but they do not arise for
consideration before us.
276 The only question which has been pressed
for our consideration by the Advocate General, on behalf of the appellants, is
that relating to the validity of the transfers of Kayal lands between September
15, 1963 and January 1, 1970.
The writ petitioners in the High Court urged
that they were exempt under section 81 (1 )(1) of the Act and could not be held
to be invalid with effect from January 1, 1970 because of the subsequent
amendment to the Act, and included in their ceiling area.
The term "ceiling area" has been
defined in section 2(3) of the Act to mean "the extent of land specified
in section 82 as the ceiling area", and there is no controversy about its
extent or content. Section 83 of the Act prohibits the holding of lands in
excess of the ceiling area with effect from January 1, 1970. which had been
notified by the government in the gazette as the date from which the
prohibition was to be effective. Section 84 declares certain voluntary
transfers to be null and void. The section as it stood before the amendments
road as follows.-Section 84. Certain voluntary transfers to be null and
void."Notwithstanding anything contained in any law for the time being in
force, all voluntary transfers effected after 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 (iii) in favour
of a person who was a tenant of the holding before the 27th July, 1960, and
continued to be so till the date of transfer: or (iv) in favour of a religious,
charitable or educational institution of a public nature solely for the purposes
of the institution, by a family or any member thereof or by an adult unmarried
person owning or holding land in excess of the ceiling area, shall be deemed to
be transfers calculated to defeat the provisions of this Act and shall be
invalid :" There is a proviso to the section with which we are not
concerned. The validity of the transfers had therefore to be examined with
reference to September 15, 1963 which was the date of publication of the Kerala
Land Reforms Bill, 1963, in the gazette. The section was amended by Act 35 of
1969 by which the existing section was renumbered as sub-section (1) and a
sub-section was added as subsection (2) which dealt with voluntary transfers
effected by any person "other than" a family or any member thereof or
by an adult unmarried person owning or holding land in excess of the ceiling
area. The amendment could not therefore be said to have any bearing on the
present controversy. The section was however again amended by section 15 of Act
17 of 1972. It, inter alia, omitted clause (ii) of 277 sub-section (1) and
provided that the omission shah be deemed to have been made with effect from
the 16th day of August, 1968. This had the effect of taking away the exception
in favour of voluntary transfers on account of natural love and affection. But
it is not the case of any one before us that there was any such transfer in
respect of Civil Appeals Nos. 907 to 909, so that amendment also could not be
said to have any material bearing on the controversy relating to these appeals.
The fact therefore remains that by virtue of
section 84 of the Act, all voluntary transfers of land effected after September
15, 1963 (date of publication of the Kerala Land Reforms Bill, 1963 in the
gazette) were invalid as they were to be deemed to be transfers calculated to
defeat the provisions of the Act. So even if a transfer was found to have been
made after September 15, 1963 but before January 1, 1970 (date notified under
section 83 prohibiting the owning or holding or to possessing under a mortgage
lands in the aggregate in excess of the ceiling area) the ceiling area for
purposes 'of section 83 and bringing about the surrender of the excess land
under section 85 had to be determined with reference to the position as on
January 1, 1970 as that was the date notified under section 83. The reason is
,that the prohibition of section 83 applied with reference, to that date and
that, in turn, required a surrender of the excess land as on that date.
Section 85 is therefore an important section.
It was amended by Act 35 of 1969, Act 25 of 1971 and Act 17 of 1972, but there
was no change in its basic provision that when a person owned or held land in
excess of the ceiling area "on the date notified under section 83"
namely, January 1, 1970, he had to surrender it in ,accordance with the other
provisions of the section. The crucial date for determining and surrendering
the surplus land was therefore January 1, 1970, and not any earlier date, but
the validity of any voluntary transfer effected after September 15, 1963 which
was the date of publication of the Kerala Land Reforms Bill, 1963, had still to
be examined with reference to September 15, 1963 in view of the clear
requirement of section 84. This was the scheme of the Act.
We have made a reference to section 84 which
clearly provides that all voluntary transfers of land effected after September
15, 1963 shall be deemed to be transfers calculated to defeat the provisions of
the Act and "shah be void".
It has not been urged that the impugned transfers
fell under any of the exceptions provided by section 84. There can be no doubt
that any transfer made after September 15, 1963 and before January 1, 1970
would be invalid unless it could be shown to have been saved by any other
provision of the Act.
In this connection section 81 of the Act is
important for it prescribes the exemptions to the provisions of Chapter III.
Clause (1) of subsection (1) of section 81
specifically provides that the provisions of the Chapter shall not apply to,"(1)
kayal padasakharams of Kuttanad area specified "in Schedule IV, so long as
such padasakharamas are used for the cultivation of paddy or such other crops
as the Government may, by notification in the Gazette, specify." 278 It is
not in controversy that the Kayal lands which are the subject matter of these
appeals are of the category mentioned in clause (1) of subsection (1) of
section 81. They were therefore exempt from the restriction on ownership prescribed
by the various sections of Chapter III referred to above. So even though by
virtue of section 84 of the Act all voluntary transfers effected after
September 15, 1963 (date of publication of the Kerala Land Reforms Bill, 1963
in the Gazette) were invalid, the transfers made in respect of Kayal padasakharams
in appeals Nos. 907909 could not be held to be invalid for the simple reason
that they were exempt from the provisions of Chapter III. That exemption was no
doubt withdrawn by section 65 of Act 35 of 1969 which amended the Act, but it
is not disputed before us that the section was not brought into force until
January 1, 1970. The voluntary transfers made between September 15, 1963 and
January 1, 1970 were therefore valid, and there is no force in the argument of
the Advocate General that the amendment brought about by section 65 of Act 35
of 1969 should be given retrospective effect from April 1, 1964 as sections 82
and 84 of the Act were brought into force from that date. There is also no
force in the other argument of the Advocate General that section 84 had the
effect of invalidating the transfers effected after September 15, 1963 for that
was the date of publication of the Kerala Land Reforms Bill in the gazette. The
argument overlooks the fact that, as has been mentioned, Kayal lands were exempt
from the provisions of Chapter III until as late as January 1, 1970. In this
view of the matter Pritam Singh Chahil v. State of Punjab and others(1) cannot
avail the appellants. The amendment cannot also be said to be curative or
merely declaratory of the previous law. The facts of Chanan Singh and another
v. Jai Kaur,(2) cited by the Advocate General, were quite different inasmuch as
in the appeals before us the amendment which was made by section 65 of Act 35
of 1969 was neither curative nor merely declaratory. As has been stated, it,
inter alia, omitted, clause (1) of section 81 of the Act which exempted the
Kayal padasakharams which are the subject matter of the present controversy
from the application of the provisions 'of Chapter III of the Act. It is well
settled that a statute is not to be read retrospectively except of necessity.
There is no such necessity in the cases before us, for the Legislature decided
to exempt the .aforesaid Kayal lands from the operation of the restrictions and
even though amending Act 35 of 1969 was promulgated'on December 17, 1969,
section 65 thereof, which withdrew the exemption, was not brought into force
until January 1, 1970.
Thus there is no force in Appeals Nos. 907,
908 and 909 and they are dismissed.
This leaves Civil Appeals Nos. 1354 and 1355
for consideration. The transfers of lands in these cases were admittedly made
during the period January 1, 1970 to November 2, 1972. As such they were not
exempt from the restrictions of the provisions of Chapter (1) [1967] 2 S.C.R.
536.
(2) [1970] 1 S.C.R. 803.
279 III of the Act. Section 84 of the Act
would be attracted to these transfers, and it is futile to contend that this
would not be so because the transfers were affected "on account of natural
love and affection" within the meaning of clause (ii) of the exceptions
provided by section 84 because the exemption to that effect was taken away by
Act 17 of 1972.
Section 15 of that Act specifically stated
that clause "shall be, and shall be deemed to have been omitted with
effect from the 16th day of August, 1968." Moreover, as the High Court has
pointed out, the impugned transfers were in favour of the donor's grand
children by his daughter who was alive, and could not be said to fall within
the exempted category because of the other amendment made in section 84 of the
Act by section 15 of Act 17 of 1972 with effect from the 16th day of August,
1968 which restricted the exemption to gifts made in favour of the donor's son
or daughter or the son of daughter of his predeceased son or daughter.
There is thus no 'force in these two appeals
also, and they are dismissed.
In view of the facts and circumstances of the
cases, we leave the parties to pay and bear their own costs.
P.B.R. Appeal dismissed.
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