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2001 DIGILAW 430 (KER)

Athura Seva Sanghom v. The State of Kerala

2001-08-08

P.K.BALASUBRAMANYAN, T.M.HASSAN PILLAI

body2001
Judgment :- P.K. Balasubramanyan Ag.C. J. This Revision under Section 103 of the Kerala Land Reforms Act arises from Suo Motu Proceeding S.M.1464 of 1982 initiated by the Land Tribunal, Ottapalam purporting to exercise jurisdiction under Section 72C of the Act. The land owner appeared on receipt of notice and disputed the claim and of the revision petitioner who got the proceeding initiated. The Land Tribunal held that the revision petitioner was not a cultivating tenant as defined in the Act and hence was not entitled to an order of assignament in terms of Section 72B or Section 72C of the Act. Thus the Land Tribunal dropped the proceedings initiated. The Land Tribunal held that the revision petitioner was not a cultribvating tenant as defined in the Act and hence was not entitled to an order of assignment in terms of Section 72B or Section 72C of the Act. Thus the Land tribunal deopped the proceedings. The revision petitioner filed an appeal A.A.49 of invoking Section 1984 invoking Section 102 of the Act. The Appellate Authority confirmed the decision of the Land Tribunal and dismissed the appeal. The Revision Petitioner filed this Revision before this court invoking section 103 of the Act. A Single Judge of this court by order dated 24.7.1989 allowed the Revision and upheld the claim of the revision petitioner. The land owner went up in appeal to the Supreme Court as C.A. No.8401 of 1995. The Supreme Court allowed that appeal and setting aside the the decision of the Single Judge in Revision remanded the Revision for a fresh hearing and decision in accordance with law and in the light of the observations contained in the judgment of the Supreme Court. The Supremes Court also suggested that it would be appropriated if a Division Bench were to hear the revision thus remanded. That is how, this revision has been posted before us for hearing as directed the Hon'ble Chief Justice. 2. The land in question belongs to a Devaswom, a Hindu Religious Institution governed by the Madras Hindu Religious and Charitable Endowments Act. The land belonging to the Devaswom could be sold or leased out only on the basis of sanction to be obtained from the Commissioner, Hindu Religious and charitable Endowments. The sanction was granted by the commissioner on 3.4.1961 for leasing out 300 acres of land and the lease was granted on 21.2.1964. The land belonging to the Devaswom could be sold or leased out only on the basis of sanction to be obtained from the Commissioner, Hindu Religious and charitable Endowments. The sanction was granted by the commissioner on 3.4.1961 for leasing out 300 acres of land and the lease was granted on 21.2.1964. According to the revision petitioner he entered the property based on the lease dt. 21.2.1964 which in turn was based on the order of sanction dt.3.4.1961. Meanwhile the Government exercised its power under Section 99 of the madras Hindu Religious and Charitable Endowments Act and in exercise of its revisional power set aside the order of sanction granted by the Commissioner on 3.4.1961 and directed the Commissioner to reconsider the question of sanction. The revision petitioner filed O.P. 1877 of 1968 before this court challenging the revisional order passed by the Government. There were other leases also granted pursuant to such sanction by the same Commissioner and in those cases also the Government had interfered in exercise of its jurisdiction under Section99 of the Hindu Religious and Charitable Endowments Act. The Writ Petitions filed in those cases ultimately came up for hearing before a Full Bench of this Court. The full by the judgment dt.19.8.1970 reported as Ayyappan Pillai v.State of Kerala (1970 K.L.T. 838) dismissed the Original Petitions finding that the circumstances clearly justified interference in revision by the Government. Since the case of the revision petitioner stood on an identical footing, the learned Judge before whom O.P.1877 of 1968 came up for hearing dismissed that Original Petition in the light of the decision of the Full Bench in Ayyappan Pillai v. State of Kerala (1970 K.L.T. 838). Thus the cancellation of the sanction to lease stood confirmed. Thereafter the sanction was denied with the result that the lease in favour of the revision petitioner became ineffective or void as against the land owner Devaswom. There was also a formal cancellation of the lease in the light of the subsequent developments. 3. According to the revision petitioner the lease granted was of forest land to which the Madras preservation of Private Forests Act applied. The revision petitioner was in occupation of the land on the basic of a lease granted by the Devaswom for a period of two years within twelve years immediately preceding 11.4.1967. 3. According to the revision petitioner the lease granted was of forest land to which the Madras preservation of Private Forests Act applied. The revision petitioner was in occupation of the land on the basic of a lease granted by the Devaswom for a period of two years within twelve years immediately preceding 11.4.1967. Hence the revision petitioner was a deemed tenant within the meaning of Section 7D of the Kerala Land Reforms Act. The revision petitioner was hence entitled to fixity of tenure under Section 13 of the Act and consequently entitled to an assignment of the rights, title and interest of the land owner in terms of Section 72 and Section 72B of the Act. It may be noted that the suo motu proceedings was initiated on the basis that the revision petitioner was holding the land under a lease granted by the Devasom and the lease is valid. But before the Land Tribunal, in the face of the objection raised by the Devaswom which brought the relevant facts to the notice of the Land Tribunal, the revision petitioner adopted the stand that it was entitled to claim right based on Section 7D of the Act. In other words the revision petitioner sought to pitch its case only on Section 7D of the Act. The Land Tribunal took the view that having set up a case of specific lease which was found void, it was not open to the revision petitioner to raise a claim based on Section 7D of the Act. The Appellate Authority also agreed with that conclusion. It was thus that the proceeding for assignment of the right, title and interest of the land owner to the revision petitioner was dropped by the authorities below. It is this decision that is questioned in this revision by the revision petitioner. Under Section 103 of the Act, this court is entitled to interfere with the decision of the Appellate Authority if the Appellate Authority has failed to decide or has erroneously decided a question of law. 4. It is this decision that is questioned in this revision by the revision petitioner. Under Section 103 of the Act, this court is entitled to interfere with the decision of the Appellate Authority if the Appellate Authority has failed to decide or has erroneously decided a question of law. 4. What is argued on behalf of the revision petitioner is that when the revision petitioner went into possession on the basis of the lease deed dt.21.2.1964, commencement of the occupation of the revision petitioner was lawful and since that lawful occupation continued until 1.1.1970 when the Kerala Land Reforms (Amendment) Act, Act 35 of 1969 came into force conferring rights on cultivating tenants to purchase the lands held by them on tenancy and since the land was one to which Madras Preservation of Private Forests Act applied, the revision petitioner was entitled to the protection of Section 7D of the Act.The case of the land owner is that since no lease could be granted by the Devaswom without a valid sanction and since the sanction originally granted pursuant to which the lease was granted was subsequently set aside in exercise of the revisional power available to the Government. It must be taken that there was no sanction at any point of time for the grand of a lease by the Devasom to the revisional petitioner. In that situation the lease granted by the Devasom to the revision petitioner could not confer any right on the revision petitioner pursuant to such a lease lawful occupation within the meaning of Section 7D of the Act.In other words the revision petitioner having entered the property on the basis of the void lease, could not claim the protection Section7D of the Act. It is pointed out that the lease was also cancelled and the cancellation became final. It was further pointed out that the grant of the lease was of private forest and neither Section 13 nor Section 72 applied to leases of private forests and hence there was no question of the revision petitioner seeking any assignment in terms of Section 72B of the Act and the Land Tribunal had no judisdiction to initiate proceeding under Section 72C of the Act. It was also pointed out that even according to the revision petitioner, immediately after obtaining the lease, the revision petitioner, had concerted the land into a plantation and if that case be true, again, no assignment could be granted since the land again fell under an exempted category, under Section 3(1) of the Act, and hence neither the provision relating to fixity nor the provision relating to vesting applied in this case. It was further submitted that in the light of the order of remand passed by the Supreme Court, the main question to be decided was whether at any time the occupation of the revision petitioner could be considered to be lawful occupation and on the facts and in the circumstances of the case, the occupation was clearly not lawful. 5. Learned counsel for the revision petitioner, in the light of the order of remand passed by the Supreme Court accepted the position that to qualify for protection under Section 7D of the Act the revision petitioner had to show that the revision petitioner was in lawful occupation of the property for a period of two years within twelve years immediately preceding 11.4.1967. The only argument attempted by learned counsel for the revision petitioner was that when the lease was granted on 21.2.1964, the lease was valid because the Commissioner had granted sanction on 3.4.1961 purportedly under Section 29 of the Hindu Religious and Charitable Endowments Act and even though that sanction was subsequently cancelled and the lease was also subsequently cancelled, it could not be held that the occupation at its inception was not lawful. In other words, according to counsel, even though the sanction was found to be illegal and the lease void by a subsequent decision, by the Government in exercise of revisional power, initial entry was base on a transaction which had the trappings of validity and hence the revision petitioner must be held to be entry of the lawful and the occupation pursuant thereto, lawful occupation. 6. When an original authority grants sanction to lease and that order of sanction is subsequently set aside in exercise of appellate or revisional power by the appellate authority competent to do so, the legal effect of the same is that there was no sanction at all at any point of time. 6. When an original authority grants sanction to lease and that order of sanction is subsequently set aside in exercise of appellate or revisional power by the appellate authority competent to do so, the legal effect of the same is that there was no sanction at all at any point of time. It could not be postulated that between the date of grant of sanction by the original authority and the date of cancellation of that sanction by the appellate authority or the revisional authority there was an interrugnum during which there was a valid lease or a valide sanction. When an original order is set aside in appeal or revision it is as if the original order never came into existence because the order that prevails is the order passed in appeal or revision. Therefore it is not possible to accept the argument that between the date of the lease and the date of setting aside the order grating sanction to lease, the occupation of the revision petitioner must be deemed to be lawful occupation being one under a lease. In the light of the revisional order under Section 99 of the Hindu Religious and Charitable Endowments Act which was affirmed by this court when this court when it dismissed the Original Petition filed under Article 226 of the Constitution of India challenging the said decision, the position was that the Devaswom was never given sanction to lease the land in question. The lease deed purported to be executed on the basis of the grant of sanction by the original authority in the circumstances cannot be recognized as a valid transaction. In fact, once the order of sanction is set aside, the position would be that the very transaction would became void and not merely voidable, because the grant of sanction was a condition precedent for the grant of a lease by the Devaswom. We are therefore satisfied that the so-called occupation of the revision petitioner pursuant to the lease deed dt.21.2.1964 could not be recognized as lawful occupation. 7. We are therefore satisfied that the so-called occupation of the revision petitioner pursuant to the lease deed dt.21.2.1964 could not be recognized as lawful occupation. 7. The arguments that the revision petitioner may be a tenant in terms of the Kerala Compensation for Tenants Improvements Act, Act 29of 1958 or that the revision petitioner may be entitled to compensation in terms of Section 65 of the Contract Act does not have any impact on the question whether the occupation of the revision petitioner could be deemed to be lawful occupation within the meaning of Section7D of the Act especially in the context of the order of remand passed by the Supreme Court. 8. Section 7D of the Act also stipulates that the person must be in occupation at the commencement of Act 35 of 1969 which was 1.1.1970. Obviously that occupation must be lawful occupation as held by the Supreme Court in Mathew v. Hamsa Haji (1987(3) SCC 326) and followed by the Supreme Court in the order of remand. Here the sanction was granted on 3.4.1961 and the same was set aside on 15.3.1968. On the setting aside of the sanction, in any event, the occupation of the revision petitioner cases to be lawful occupation. The revision petitioner was not holding under any valid transaction or under any color of right since the lease in favour of the revision petitioner was one which could not have been granted by the Devaswom since there was no sanction for it in terms of Sanction 29 of the Madras Hindu Religious and Charitable Endowments Act. Therefore as on 1.1.1970, the date of the coming into force of the Kerala Land Reforms (Amendment) Act, 1969, the occupation of the revision petitioner was not lawful occupation. In other words, the revision petitioner was not in lawful occupation as on 1.1.1970. Only a person who is in lawful occupation as on 1.1.1970 and who was in occupation for a period of two years within a period of twelve years prior to 11.4.1967 could claim the benefit of section 7D of the Act. Since the occupation of the revision petitioner as on 1.1.1970 was not lawful occupation in any view of the matter, it is clear that the revision petitioner is not entitled to the protection of Section 7D of the Act. Since the occupation of the revision petitioner as on 1.1.1970 was not lawful occupation in any view of the matter, it is clear that the revision petitioner is not entitled to the protection of Section 7D of the Act. Thus in our view the revision petitioner could not be deed to be in lawful occupation either when it entered possession of the property or on 1.1.1970 the relevant date under the Act. This must be considered to be a case where possession was never lawful in the light of the decision in Mohanlal(dead) by LRs v. Kartar Singh and Others(1987 Supp. SCC 485). 9. There is also considerable doubt whether Section 72 or Section 72B or Section 72C will have any application to the case on hand. According to the revision petitioner what was leased out was private forest governed by the Madras Preservation of Private Forests Act. Under Section 3(1) (vii) of the Act lease of private forests were exempted from the purview of Chapter II of the Kerala Land Reforms Act. The lease was granted here on 21.2.1964 and hence there was no question of the lessee being entitled to fixity of tenure immediately before 21.1.1961 within the meaning of the proviso occurring after Section 3(1) (vii) of the Act. Section 13 of the Act conferring fixity of tenure and Section 72 of the Act providing for vesting of the rights of the landlord in the Government are both in Chapter II of the Act. Hence a lessee of private forest is not entitled to claim fixity of tenure under Section 13 of the Act or to claim that he is entitled to an assignment of the right, title and interest of the land owner under Section 72 B of the Act. In a case where there is no vesting and Section 72B of the Act has no application, the Land Tribunal has no authority or jurisdiction to initiates action under Section 72 C of the Act as was attempted to be done in this case. It is therefore clear that the revision petitioner is not entitled to an assignment in any view of the matter. 10. It is therefore clear that the revision petitioner is not entitled to an assignment in any view of the matter. 10. What is argued is that Section 7D was introduced into the Act by Amending Act 35 of 1969 with effect from 1.1.1970 and Section 7D has a non obstante clause to the effect that the Section will have application notwithstanding anything to the contrary contained in Section 52 or any other provision of the Transfer of Property Act or any other law or in any other contract, custom or usage or in any judgment, decree or order of court and hence it must be taken the Section 7D will have application notwithstanding Section 3(1) (vii)of the Act. We cannot agree with this submission. Though the non-obstante clause in Section 7D of the Act makes it applicable notwithstanding anything to the contrary contained in any other law, contract or custom, the non-obstance clause does not provide that the Section would apply notwithstanding anything else contaied in the Act itself. If one were to contract Section 7D with Section 6C of the Act it will be noticed that in section 6C the non-obstante clause excluded the operation of Section 74 of the Land Reforms Act itself whereas Section 7D does not exclude the operation of any other provision in the Land Reforms Act. It is therefore clear that in the face of Section 3(1) (vii) it could not be held that Section 7D will have application. We cannot agree with the contrary view expressed by a Single Judge of this court on that aspect. Since the lease is one that is exempt from the provisions of the Act, we hold Section 7D of the Act cannot have operation in this case. It may be noted that private forest as defined in the act introduced with effect from 1.1.1970 while amending Act 35 of 1969 excludes from its perview areas which are vest lands and which are not enclaims within woded area, areas, which are garderns or Nilams, areas which are plant with plantion corps and areas which are cultivated with paper, arecanut etc. It may be noted that even such exculded lands could come with in the purview of the Madras oservation of private forest Act. It may be noted that even such exculded lands could come with in the purview of the Madras oservation of private forest Act. There is nothing to show that the lease in the case on hand included any land which would stand outside the definition of the private forest occuring the Act. In fact the revision petitioner adduced no evidence before the land tribunal in support of this claim.Therefore nothing turns on the definition of private forest and the exclusion mentioned therein in Section 3 (47) of the Act. 11. There was no argument before us that occupation envisaged bythe Section only means factual possession and not anything more, at it appears to have been argued before the Supreme Court. The argument before us was only to the effect that the occupation of the revision petitioner on the relevant dates must be considered to be lawful occupation in the circumstances of the case. 12. In this court, after the remand from the Supreme Court, the petitioner has filed C.M.P. 4897 of 1999 producing along with it the previous orders and the correspondence relating to the land. Those documents only show the origin of the occupation of the revision petitioner and the subsequent activities carried on by the revision petitioner. It also includes the cancellation of the sanction by the Government under Section 99 of the Hindu Religious and Charitable Endowments Act and the judgment in O.P. 1877 of 1968 filed by the revision petitioner which was dismissed. Those documents have been scrutinized by us while considering the claim of the revision petitioner. Those documents by themselves do not advance the case of the revision petitioner and it was submitted that they have been produced only to enable this court to properly appreciate the contentions sought to be raised by the revision petitioner. In the view we have taken, we find that neither the Land Tribunal nor the Appellate Authority have committed any error of law or have failed to decide any question of law warranting our interference in Revision under Section 103 of the Act. On the materials it is clear that the revision petitioner is not entitled to claim rights under Section 7D of the Act, which was the only claim put forward on behalf of the revision petitioner. In that situation, we confirm the decision of the Land Tribunal and the Appellate Authority and dismiss this Revision.