Purushotham G. Plywood Co. v. Hamsa Kutty — 1992 DIGILAW 391 (KER)

Judgment :- The defendants are the appellants. The suit was filed by the respondent for recovery of possession of the plaint schedule property after terminating the tenancy created by Ext.A1 dated 14-11-1959. According to the respondent the suit transaction Ext.A1 though a registered lease deed for a term of 12 years and under which forty seers of paddy per annum was payable as rent was not a tenancy protected by the Kerala Land Reforms Act, the Act for short, and that therefore the respondent is entitled to recover possession after termination of the tenancy. The appellants resisted the suit contending inter alia that the lease transaction Ext.A1 confers fixity of tenure on them under S.13 of the Act and that therefore they cannot be evicted. The trial court on the basis of the finding by the Land Tribunal held that Ext. A1 though a lease is not an agricultural lease and that therefore the appellants are not entitled to claim fixity of tenure under S.13 of the Act. The trial court decreed the suit. On appeal by the appellant the Lower appellate Court agreed with the view of the trial court that only leases in respect of lands which are used for agricultural purposes qualify for protection under the Act and that therefore the decree for eviction passed by the trial court was correct. It is challenging this decree of the Lower appellate Court that the appellants have come up with this Second Appeal. 2. The suit transaction Ext.A1 is named by the parties as a lease deed (pattadharam). It provides for payment of forty seers of paddy per year as rent. The lessee is a company. The document says that the lessee is entitled to hold the property for a period of twelve years and use the land. There are other clauses which are consistant with a lease. In fact the stand adopted by the respondent himself is that this transaction is a lease. Therefore there is no difficulty in holding that Exl.A1 is a lease of land in favour of a company There is no mention in Ext. A1 of any specific purpose for which the land was being given and taken on lease. The subject matter of the lease is a strip of land in the middle of the paddy fields belonging to the respondent. A1 of any specific purpose for which the land was being given and taken on lease. The subject matter of the lease is a strip of land in the middle of the paddy fields belonging to the respondent. It is the respondent's case that this strip of land was taken on lease by the appellants for the purpose of creating a way to their commercial premises. This object is not specified in Ext.A1. But this stand of the respondent finds support from the report of the commissioner who has reported that this strip is being used by the appellants as a road leading to their premises. 3. The view essentially taken by the courts below is that since this strip of land was taken on lease by a company-not an agriculturist-- and the lease was connected with its commercial activity the appellants the lessees are disentitled to claim protection of the Kerala Land Reforms Act. The question is as to whether this view expressed by the Lower appellate Court is correct and is justified by anything contained in the Kerala Land Reforms Act. 4. Section 13 of the Kerala Land Reforms Act confers fixity of tenure on a tenant in respect of his holding. The essential question therefore will be whether the lessee of a strip of land lying in the middle of agricultural fields who uses the land for a non-agricultural purpose would be taken out of the protection provided by S.13 of the Act. S.2(57) of the Act defines a tenant as a person who has agreed to pay rent for being allowed to possess and enjoy any land by a person entitled to lease that land. S.2(43) says that a person includes a company. It cannot be therefore doubted that the appellants would satisfy the definition of tenant in S.2(57) of the Act in so far as they have been allowed to possess and enjoy a land belonging to the respondent on an agreement to pay rent. A holding is defined in S.2(17) of the Act to mean a parcel of land held under a single transaction by a tenant from a landlord and a landlord is defined in S.2(29) of the Act as a person under whom a tenant holds including a land owner. A holding is defined in S.2(17) of the Act to mean a parcel of land held under a single transaction by a tenant from a landlord and a landlord is defined in S.2(29) of the Act as a person under whom a tenant holds including a land owner. On a reference to these definitions contained in the Act it appears to me that there cannot be any doubt that the appellants qualify for protection under S.13 of the Act in view of the fact that the appellant is a person who is holding a parcel of land belonging to another on an agreement to pay rent. It is to be noticed that none of these provisions insist or stipulate that the land, which is so held, should be used for agricultural purpose. 5. Section 13 of the Act is contained in Chapter II of the Act. There are certain exemptions provided in S.3 of the Act and only if a particular transaction qualifies for an exemption as provided in S.3 of the Act could it be taken out of the mantle of protection drawn over the transaction by S.13 of the Act. It is submitted by the learned counsel for the respondent that the transaction in this case would come under the exemption contained in S.3(1)(iii) of the Act. But S.3(1)(iii) of the Act deals with leases of land specifically granted for industrial or commercial purposes. Obviously in this case Ext. A1 does not indicate that it was granted specifically for a commercial or industrial purpose. On the other hand there is no particular purpose mentioned in Ext.A1. What is contended by the learned counsel for the respondent is that it has turned out that the lessee has used this land in connection with his commercial purpose of having an access to his commercial premises and that therefore this will qualify for exemption under S.3(1)(iii) of the Act. With respect to the learned counsel this argument cannot be accepted because S.3(1)(iii) contemplates cases where the lease is granted specifically for a commercial purpose and so long as on the face of Ext.A1 it is not shown that it was specifically for a commercial purpose the exemption cannot be applied to this case. With respect to the learned counsel this argument cannot be accepted because S.3(1)(iii) contemplates cases where the lease is granted specifically for a commercial purpose and so long as on the face of Ext.A1 it is not shown that it was specifically for a commercial purpose the exemption cannot be applied to this case. I must also observe that there is no other evidence in this case which would qualify or demonstrate- if it was otherwise permissible in law-that the lease was granted specifically for a commercial purpose. 6. The Lower appellate Court has proceeded on the basis that only a cultivating tenant as defined in S.2(8) of the Act would be entitled to the protection of S.13 of the Act and that since the appellants are not cultivating the land they could not be treated as cultivating tenants. Firstly Section 13 of the Act does not use the expression 'cultivating tenant'. It throws the mantle of protection on a tenant. Moreover a cultivating tenant as defined in S.2(8) of the Act means a tenant who is in actual possession of the land and is entitled to cultivate the land. It must be noted that the definition in S.2(8) does not confine the status to a person who continues to cultivate the land or who is actually cultivating the land. All that it contemplates is that he must be entitled to cultivate the land. There is nothing in Ext.A1, which disentitles the lessee from cultivating the land. Therefore in my view the lessee in this case would even satisfy the definition of a cultivating tenant under S.2(8) of the Act. 7. The learned counsel for the respondent strongly submitted that the object of the Kerala Land Reforms Act should not be forgotten that the intention thereunder was to grant protection only to tenants of lands who carry on agricultural operations and is not intended to cover cases where the lands leased are being put to purposes other than agriculture and that therefore the Lower appellate Court was justified in holding that the appellants in this case are not en titled to the protection of S.13 of the Act. There is nothing in the Act, unless it be one of those cases covered by the exemption contained in S:3(1) of the Act which insists on the user of the land solely for agricultural purpose before the lessee of that land could qualify for protection under S.13 of the Act. In fact this aspect of the applicability of the Act had come up for consideration before this court in connection with S.4A of the Act. At a time when the Kerala Land Reforms (Amendment) Act, Act 35 of 1969 had not been included in the Ninth Schedule to the Constitution of India and did not have the protection of Art.31B of the Constitution of India this court had held that the said Section was unconstitutional since the said section could be saved only if it was confined in its operation to agriculturists, village artisans and the like. (See Damodaran v, Parameswara Panicker, 1971 KLT 484 (FB). Following this decision it was held in Sankaran Nambisan v. Sarvothama Rao (1972 KLT 891) that the Act could apply only to agricultural land in the sense of Art.31A(2) of the Constitution of India. It was held that a piece of land within the Calicut city will not qualify for the protection of the Act. The Supreme Court in Malankara Rubber and Produce Co. and others v. State of Kerala (1972 KLT 411) held that the Act would apply to agricultural lands in the sense of Art.31A(2) of the Constitution of India and lands used for building and other purposes would be outside the purview of Art.31A(2) of the Constitution of India. These decisions were noticed and followed by Mr Justice G. Viswanatha Iyer in Madhavan Thampi v. Padmavathy (1974 KLT 310) to hold that S.4A of the Act would apply only with reference to agricultural lands. 8. The Kerala Land Reforms (Amendment) Act, Act 35 of 1969 was included in the Ninth Schedule to the Constitution of India by the Constitution (Twenty-ninth Amendment) Act, 1972. The question of the applicability of S.4A of the Act to non-agricultural lands came up for consideration before a Full Bench of this court in the decision reported in Parameswaran Pillai v. Narayanan Nair (1976 KLT 341). The question of the applicability of S.4A of the Act to non-agricultural lands came up for consideration before a Full Bench of this court in the decision reported in Parameswaran Pillai v. Narayanan Nair (1976 KLT 341). The said decision held: "If we look at the whole of the statute, it is clear that the Act applies at least in some respects to land situate within the corporations or municipalities. We have only to read S.4A,S.106 and the provisions relating to kudikidappukars to understand that the wording on a plain reading of atleast certain of the sections indicate that the provisions were applicable not merely to agricultural lands. In these circumstances it will be difficult, if not possible, to construe the Act as a whole as applicable only to lands which are agricultural in nature This is particularly so as far as the applicability of S.4A of the Act is concerned. The expression'land herein must normally take in all land irrespective of its nature. It is clear that S.4A, as it stood then and it stands now, takes in not only agricultural, but also non-agricultural lands as well. Therefore, S.4A of the Act applies to the land in question notwithstanding the fact that it is situate in an important part, almost in the heart, of a city, and may not reasonably be expected to be used for agricultural purposes now or in the near future by any reasonable person. To read the Act, particularly S.4A as limited in its ambit and application to agricultural land alone is not possible". 9. The position therefore in this court is that the applicability of the Act cannot be confined to lands used for agriculture alone. 10. As noticed, the land involved in this case was part of agricultural lands at the time of Ext. A1 demise in the year 1959. The fact that the lessee subsequently did not put it to agricultural use but used it as a way to go to his commercial establishment would not m my view take the land demised out of operation of the Act. I therefore hold that the lessee in this case is entitled to fixity of tenure under S.13 of the Act. The decree for eviction passed by the courts below is therefore liable to be set aside. I therefore hold that the lessee in this case is entitled to fixity of tenure under S.13 of the Act. The decree for eviction passed by the courts below is therefore liable to be set aside. Since the tenant is not liable to pay rent after the appointed day, namely 1-1-1970 the decree for arrears of rent for three years prior to the suit filed in 1979 is also liable to be set aside and the suit is liable to be dismissed. In the result the Second Appeal is allowed, the decrees of the courts below are set aside and the suit O.S.509 of 1979 is dismissed.