THOMAS v. STATE OF KERALA — 1973 DIGILAW 64 (KER)

Judgment :- 1. These are revision petitions filed under S.103 of the Kerala Land Reforms Act. In view of the common question involved in the petitions, they are disposed of by this common judgment. 2. The revision petitions arise in pursuance to the statements filed by the revision petitioners under S.85(2) of Act I of 1964 as substituted by Act 35 of 1969. The question for consideration is whether in calculating the ceiling area for the purpose of S.83 of Act I of 1964, plantations claimed by the revision petitioners are to be exempted under S.81 (1) of Act 1 of 1964. 3. Chapter III of Act 1 of 1964 deals with restriction on ownership and possession of land in excess of ceiling area and disposal of excess lands. S. S3 which is in Chapter III of Act 1 of 1964 as substituted by Act 35 of 1969 provides that: "With effect from such date as may be notified by the Government in the Gazette, no person shall be entitled to own or held or to possess under a mortgage lands in the aggregate in excess of the ceiling area." It is admitted that the date notified by the Government for the purpose of S.83 of Act 1 of 1964 is 111970. S.83 as it stood in Act 1 of 1964 before it was amended by Act 35 of 1969 did not come into force. The said provision was substituted by Act 35 of 1969 and it was the substituted provision that came into force on 1 11970. 4. It is admitted that in respect of private forests owned and possessed by the revision petitioners on 14 1964 they obtained permits for clear-felling under S.3 (2) of the Madras Preservation of Private Forests Act XXVII of 1949 from the District Collector subject to the condition of their planting those areas with rubber, coffee and cardamom. It is further admitted that before 1-1-1970, all the areas from which trees have been felled were planted by the revision petitioners with rubber, coffee and cardamom so that on 11 1970 they were plantations as defined in S.2(44) of Act 1 of 1964. It is further admitted that before 1-1-1970, all the areas from which trees have been felled were planted by the revision petitioners with rubber, coffee and cardamom so that on 11 1970 they were plantations as defined in S.2(44) of Act 1 of 1964. The said definition reads: "'Plantation' means any land used by a person principally for the cultivation of tea, coffee, cocoa, 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 preparation of the same for the market; (b) (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 determined by the Land Board as necessary for the protection and efficient management of such cultivation. Explanation: Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and play grounds shall be deemed to be lands used for purposes of sub-clause (1)." It is thus the common case of the revision petitioners and Land Board that the claims of the revision petitioners for exemption under S.81 of Act 1 of 1964 are in respect of lands which were private forests on 141964 and converted into plantations as defined in S.2 (44) of Act 1 of 1964, subsequent to 141964 and prior to 111970. 5. The Land Board overruled the claim of the revision petitioner in CRP. 1200 of 1972 for the reason stated thus in the order sought to be revised: "The land was clear-felled after getting Kozhikode Collector's permit in 1967. In view of the clear-felling, the land became dry land other than private forests. Rubber has been planted only thereafter. The conversion is, therefore, not to be taken into account for fixing the identity and extent of land to be surrendered. Immediately before the planting of rubber, the area was dry land having ceased to be forest. The contentions of the petitioner are unacceptable." Almost the same reasoning is given in all the other orders of the Land Board, which are the subject of the revision petitions. It is rather difficult to appreciate the reasoning of the Land Board. Immediately before the planting of rubber, the area was dry land having ceased to be forest. The contentions of the petitioner are unacceptable." Almost the same reasoning is given in all the other orders of the Land Board, which are the subject of the revision petitions. It is rather difficult to appreciate the reasoning of the Land Board. If the state of land as on 1-4-1964 is the criterion then lands claimed by the revision petitioners are liable to be exempted since it is agreed that on 1-4-1964 all the lands in respect of which exemption is claimed were private forests. But in my view the relevant date on which the nature of land has to be ascertained for exemption under S.81 is the date on which S.83 of Act I of 1964 came into force. That date is only 1-1-1970. S.82 (4) of 'Act I of 1964 as it stood before it was amended by Act 35 of 1969 reads: "Where, after the commencement of this Act, any class of land specified in Schedule II has been converted into any other class of land specified therein, the extent of land that may be owned or held by a family or adult unmarried person owning or holding such land at the time of the conversion shall be determined without taking into account such conversion." S. 66 of Act 35 of 1969 amended S.82 of Act I of 1964. S.82 (4) as it stood in the original Act was substituted by the following provision: "Where, after the commencement of this Act, any class of land specified in Schedule II has been converted into any other class of land that may be owned or held by a person owning or holding such land at the time of the conversion shall be determined without taking into account such conversion." The above provision was again amended by Act 25 of 1971 and S.82 (4) as staled by that Act reads: "Where, after the commencement of this Act, any class of land specified in Schedule H has been converted into any other class of land specified in that Schedule or into a plantation, the extent of land liable to be surrendered by a person owning or holding such land shall be determined without taking into consideration such conversion." Though the amended Act 25 of 1971 received the assent of the President only on the 7th August, 1971, S.82 was given retrospective operation from 1-1-1970. 6. The plea of the learned Government Pleader who appeared for the Land Board was based on S.82 (4) of the Act. According to him, a land to be exempted must be of the category of exempted lands under S.81 (1) of the Act on 1-4-1964 when Act I of 1964 came into force and should continue to remain as such thereafter. 7. It is not necessary for the purpose of this case to go into the reason for giving retrospective operation to S.82 as amended by Act 25 of 1971. It is needless to say that this was for the reason that the amended schedule II brought into force by Act 35 of 1969 suffered from a lacuna in that it did not include plantations. To attract S.82 (4), it must be a class of land specified in Schedule II and the conversion of the same should have been to some other class of land specified in that schedule or into a plantation. I do not think that the respondent can derive any assistance in this case from S.82 (4) of Act I of 1964. That Section is concerned only with the question of calculating the extent of land for the purpose of ascertaining the ceiling area under S.83. I do not think that the respondent can derive any assistance in this case from S.82 (4) of Act I of 1964. That Section is concerned only with the question of calculating the extent of land for the purpose of ascertaining the ceiling area under S.83. In order to attract S.82 (4), there must be a land which is not exempted from the operation of Chapter III of Act 1 of 1964. Private forest is an item exempted from the provisions of Chapter III by virtue of S.81 of Act I of 1964. When private forests are converted into any other type of land, it is not a conversion of any land included in schedule II of the Act. If so, there is no scope for applying S.82 (4). 8. I cannot accept the very large contention advanced by the learned Government Pleader that the exemption will have to be decided with reference to the quality of the land as on 1-4-1964. This is not supported by the wording of S.83 of Act I of 1964. The ceiling area has to be determined only because of S.83 and the nature of the land as on 1-1-1970, is alone relevant for that purpose. The words 'after the commencement of the Act' in S.82 (3) will have to be interpreted in the light of the proviso to sub-section (4) of S.1 of Act I of 1964. If so done the words 'after the commencement of the Act' will only mean after 1-1-1970, when that provision came into force. On 1-1-1970 these private forests have already been converted into plantation. I cannot subscribe myself to the view of the Land Board that immediately after the removal of the trees from the private forests, they have become dry land as defined in Act 1 of 1964. It is admitted that clear-felling permits have been granted in all these cases for the purpose of planting the cleared area with rubber, coffee and cardamom. The clear felling was for the purpose of converting the private forests into plantations. The fact that at some particular stage before the completion of the process some portion was lying vacant cannot mean that that area is a dry land within the meaning of Act I of 1964. The clear felling was for the purpose of converting the private forests into plantations. The fact that at some particular stage before the completion of the process some portion was lying vacant cannot mean that that area is a dry land within the meaning of Act I of 1964. In view of the wording of S.82 (4) if a land is an exempted one on the date when Chapter III came into force any subsequent conversion of that land into a type even included in Schedule II will not be affected. The orders of the Land Board are set aside and these revision petitions are allowed. No costs.