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1996 DIGILAW 451 (KER)

V. R. Prasad v. State of Kerala

1996-10-24

K.S.MOHAMED SHAFI

body1996
ORDER :- The order dated 22-8-1991 passed by the Taluk Land Board, Cherthala is challenged by the revision petitioners in this revision petition. 2. By the impugned order the Taluk Land Board directed the partnership firm, of which the petitioners are partners, to surrender 148.43.22 acres of land as excess land. The petitioners challenge the legality of the order passed against the partnership firm considering the partnership as a person under the Land Reforms Act, and the validity and propriety of the order directing them to surrender that extent of land overruling the contentions raised by them with regard to the exemption of various items of properties. 3. The counsel for the petitioners vehemently argued that the definition of "person" in Section 2(43) of the Land Reforms Act (hereinafter referred to as "the Act") does not take in a partnership firm within its ambit. Section 2(43) of the Act reads as follows : "person" shall include a company, family, joint family, association or other body of individuals, whether incorporated or not, and any institution capable of holding property." The Taluk Land Board negatived that contention of the petitioners relying upon a decision of this Court in A. C. Bopanna v. State of Kerala, 1975 Ker LT 126, wherein a single Judge of this Court observed as follows : "Even so, counsel contended, the Board was wrong in dealing with the case under Section 85(1)(d) for two reasons - one that the firm is not a person and second that the property although a partnership property really belongs to the partners in severality or co-ownership and cannot be treated as one unit. Taking the first point, Section 2(43) of the Land Reforms Act defines "person" to include, among others, association or body of individuals, whether incorporated or not. The definition appears to be designed to cover not only incorporated bodies but also such associations like partnerships but counsel contended that it should be limited to a body that has at least unity of title like a registered society or Co-operative Society. The expression "association or body of individuals" is very wide and is comprehensive enough to take in firms and I find it difficult to accept the contention which limits its ambit. The expression "association or body of individuals" is very wide and is comprehensive enough to take in firms and I find it difficult to accept the contention which limits its ambit. In C.I.T. Madras v. Angidi Chiettiar, AIR 1962 SC 970 : (1963) 2 SCJ 81 in construing Section 3(42) of the General Clauses Act which defines that a "person includes any company or association or body of individuals whether incorporated or not" the Supreme Court held that 'a firm is manifestly a body of individuals and would therefore fall within the definition of "person". In a subsequent case M. M. Ipoh v. C.I.T. Madras, AIR 1968 SC 317 : (1968) 1 SCJ 106 the Supreme Court applied the above definition to the inclusive definition of the expression "person" in the Income-tax Act, 1922 and held that a firm is therefore a 'person' within the meaning of the latter Act. On the terms of the definition of person in Section 2(43) of the Land Reforms Act and these decisions, the petitioner's contention that a firm is excluded from the definition has only to be rejected." 4. The counsel for the petitioners argued that since company and partnership firm are the two known entitles which can hold and possess properties, it is clear from the definition of person given in Section 2(43) of the Act that the legislature intentionally omitted partnership firm from the purview of 'person' while including company as a person within the ambit of 'person' defined under the Act. It is clear from Section 2(43) of the Act that the inclusive definition takes in within its ambit a company, family, joint family, association or other body of individuals whether incorporated or not and any institution capable of holding property. Therefore, the contention raised by the petitioners that the definition of person in Section 2(43) of the Act takes in Co-operative Society, Joint Lessees, Clubs etc. which are ejusdem generis to the persons contemplated under the Act enumerated in that Section, is not sustainable. The clause 'other body of individuals, whether incorporated or not, and any institution capable of holding property' certainly take in a partnership firm also within its fold. 5. which are ejusdem generis to the persons contemplated under the Act enumerated in that Section, is not sustainable. The clause 'other body of individuals, whether incorporated or not, and any institution capable of holding property' certainly take in a partnership firm also within its fold. 5. The counsel for the petitioners vehemently contended that the observation made by the single Judge in the above decision 1975 Ker LT 126 that firm is included in the definition of person in the Act, is erroneous since it was made relying upon two decisions of the Supreme Court in Commr. of Income-tax v. Angidi Chettiar, AIR 1962 SC 970 : (1962) 44 ITR 739 and M. N. Ipoh v. I. T. Commr., Madras, AIR 1968 SC 317. According to him those two decisions of the apex Court are regarding the definition of person as given under the Income-tax Act which includes a firm also, and since the definition of person in the K.L.R. Act does not include a firm within its ambit, those decisions have no relevance at all. 6. In the decision in Commr. of Income tax v. Angidi Chettiar, AIR 1962 SC 970 the Supreme Court observed as follows: "The expression 'person' is defined in Section 2(a) of the Act as including 'a Hindu undivided family and a local authority'. That evidently is not an exhaustive definition and recourse is permissible to the General Clauses Act which says in Section 3(42) that a 'person' includes' any company or association or body of individuals whether incorporated or not". A firm is manifestly a body of individuals and would therefore fall within the definition of `person', and may be exposed to an order for payment of penalty in the circumstances set out in clauses (a), (b) and (c) of Section 28 of the Income-tax Act." 7. In the decision in M. M. Ipoh v. I. T. Commr. Madras, AIR 1968 SC 317 the apex Court observed as follows : "The expression 'person' is defined in Section 2(9) of the Indian Income-tax Act, 1922 as including "a Hindu undivided family and a local authority". The definition is inclusive and resort may appropriately be had to the General Clauses Act to ascertain the meaning of the expression, "person". Madras, AIR 1968 SC 317 the apex Court observed as follows : "The expression 'person' is defined in Section 2(9) of the Indian Income-tax Act, 1922 as including "a Hindu undivided family and a local authority". The definition is inclusive and resort may appropriately be had to the General Clauses Act to ascertain the meaning of the expression, "person". Clause (42) of S. 3 of the General Clauses Act defines a "person" as inclusive of any company, association or body of individuals whether incorporated or not, and that inclusive definition in the General Clauses Act would also apply under the Income-tax Act. A firm is therefore a 'person' within the meaning of the Income-tax Act, and a firm and an individual or group of individuals may form an association of persons within the meaning of S.3 of the Indian Income-tax Act." 8. Therefore, it is clear from the above decisions that the Supreme Court has construed the inclusive definition of 'person' in Section 2(9) of the Income-tax Act" and after resorting to the definition of 'person' in Section 3(42) of the General Clauses Act, held that a partnership firm comes within the ambit of 'person' under the Income-tax Act. Hence the contention of the petitioners that partnership firm is a person as defined under the Income-tax Act and therefore, the above two decisions relied upon by the single Judge in the decision reported in 1475 Ker LT 126 has no application in construing the term 'person' as defined in the K.L.R. Act, is absolutely unsustainable. Therefore, the vehement argument advanced by the learned Counsel for the petitioners that the observations made by the learned single Judge of this Court in 1475 Ker LT 126 regarding person as defined in the K.L.R. Act as including partnership firm requires reconsideration, is also of no substance. I am in respectful agreement with the above observations made by the learned single Judge and I find that the inclusive definition of person in Section 2(43) of the Act takes in partnership firm also within its ambit. Therefore, the Taluk Land Board has rightly repelled the contention raised by the petitioners that a firm does not come within the ambit of 'person' as defined under the K.L.R. Act. 9. Therefore, the Taluk Land Board has rightly repelled the contention raised by the petitioners that a firm does not come within the ambit of 'person' as defined under the K.L.R. Act. 9. The further contention of the petitioners that since the partnership firm is not a person as defined under the Kerala Land Reforms Act, each partner of the partnership firm is entitled to possess the property belonging to the partnership firm up to the ceiling area provided under the Act, is also not sustainable, in view of my finding that the partnership constituted by the petitioners is a person as defined under the Kerala Land Reforms Act. Therefore, the contention of the petitioners that the property belonging to the partnership firm should be treated as the individual property of the petitioners who are partners of the firm and as such excess property, if any, after deduction of the extent of land entitled to each of the partners who is entitled to possess under the Land Reforms Act, along is liable to be surrendered, was rightly rejected by the Taluk Land Board. 10. The petitioners contended that 38 acres of land comprised in Sy. Nos. 1101 and 1102 of Venganallur Village, Talappally taluk included in the original draft and subsequently added to the properties to be surrendered is liable to be exempted being a rubber plantation. According to the petitioners, it was a rubber plantation even prior to the year 1964 and the Rubber Board had issued new planting licence on 1-10-1960. According to them, even though they adduced clinching documentary evidence to prove the contention with regard to the exemption of that extent of property, the Taluk Land Board rejected their claim on absolutely untenable and flimsy grounds. They also contended that 34.49 acres of land in Sy. No. 4/192 of Alwaye Village was also a rubber plantation long before 1964 and even though they produced documents including the Rubber Board registration for the year 1948, slaughter tapping agreement of the year 1967 and replanting subsidy permit, the Taluk Land Board rejected their contention for exemption of the property on absolutely untenable grounds. According to the petitioners, though the property was originally a kadaparambu, it was subsequently converted into a rubber plantation and the Rubber Board had granted licence as early as on 1-10-1960. 11. According to the petitioners, though the property was originally a kadaparambu, it was subsequently converted into a rubber plantation and the Rubber Board had granted licence as early as on 1-10-1960. 11. Even though it is seen from the impugned order that the Taluk Land Board considered the various contentions raised by the petitioners with regard to the exemption of several items of properties in detail, after hearing both sides and perusing the various documents produced by the petitioners before the Taluk Land Board, I feel that there is necessity to consider the contentions raised by the petitioners with regard to the various items of properties sought to be exempted afresh in detail with reference to the title deeds and documents produced by the petitioners and also the nature add character of the properties on the date of transfer and pass appropriate orders, since the consideration of various aspects of the contentions raised by the petitioners and the documents produced by them in the impugned order appears to be not proper and correct and therefore, the findings are erroneous. Hence the impugned order is set aside and the case is remanded to the Taluk Land Board for fresh consideration of the contentions raised by the firm of the petitioners with regard to the claim for exemption of several items of properties from the ceiling limit afresh and to pass appropriate orders in accordance with law treating the partnership firm of the petitioners as a person defined under the Kerala Land Reforms Act. The matter being very old, the Taluk Land Board is directed to dispose of the case within two months from the date of receipt of a copy of this order. The petitioners are directed to appear before the Taluk Land Board on 25-11-1996. Petitioners are at liberty to adduce further evidence, if they so desire. Order accordingly.