Case: Kunjukutty Sahib &amp; Others Vs. State of Kerala &amp; Others

Provided that where any person bona fide believes that the ownership or possession of any land owned or held by such person or, where such person is a member of a family, by the members of such family, is liable to be purchased by the cultivating tenant or kudikidappukaran or to be resumed by the landowner or the intermediary under the provisions of this Act, the extent of the land so liable to be purchased or to be resumed shall not be taken into account in calculating the extent of the land to be surrendered under this subsection. Explanation: Where any land owned or held by a family or adult unmarried person owing or holding land in excess of the ceiling area was transferred by such family or any member thereof or by such adult unmarried person, as the case may be, after the 18th December, 1957, and on or before 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 18th December, 1957, 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, the extent of land owned or held by such family or adult unmarried person shall be calculated for purposes of fixing the extent of land to be surrendered under this section as if such transfer had not taken place, and such family or adult unmarried person shall be bound to surrender an extent of land which would be in excess of the ceiling area on such calculation, or, where such family or person does not own or hold such extent of land, the entire land owned or held by the family or person but nothing in this Explanation shall affect the rights of the transferee under the transfer." The High Court struck down this provision with the following observations:"Section 85 provides for the surrender of excess land, but sub-sec (1) thereof contains an explanation which we think cannot stand. Under the explanation, subject to certain exceptions, any land transferred by a person holding land in excess of the ceiling area between the 18th December, 1957 (the date of publication of the (Kerala Agrarian Relations Bill) and the date of the publication of the Keral Land Reforms Bill 1963 (here we think that ceiling means the ceiling area under the Act, for it does not appear there was any ceiling area during the period in question) is to be regarded as still held by him for the purpose of fixing the extent of land to be surrendered by him and such surrender is to be made out of the land still held by him. This can lead to absurd results. For example, supposing a person holding land just one cent in excess of the ceiling area had transferred some lands between the dates mentioned and bought the lands now held by him, possibly at a higher price, he will have to surrender all his land for the nominal compensation provided by section 88. No doubt, absurdities like this can only be attacked under Article 14, 19 or 31 which are not available in the case of a legislation protected by Art. 31-A, but, there is the second proviso to sub-clause (a) of clause (1) of the article which enjoins the payment of compensation not less than the market value for the acquisition of any land within the ceiling limit under the law for the time being in force. The effect of the explanation is to offend this proviso since it means that even land held by a person within the ceiling limit applicable to him under the Act (the law for the time being in force within the meaning of the article) can be taken away for the nominal compensation payable under section 88, by the fiction of regarding lands disposed of by him within the dates mentioned as if those lands were still held by him although the transfer remains untouched, in other words, as if the ceiling limit for such a person is different from the ceiling limits for persons who had not disposed of land between the relevant dates. That is not so. The ceiling limits imposed by the Act are the same for all, but, in the case of a person who has so disposed of land, that land is to be regard as still held by him (although, in fact, it is not) for the purpose of calculating the extent of the land to be surrendered by him, and the surrender is to be made out of the land still held, even if its effect be to leave him with land less than the ceiling limit, indeed with no land at all. If a fiction by which land not held by a person could be taken into account for the determination of the excess land to be surrendered by him, and he could be forced to surrender land actually held by him although it is within the ceiling limit without payment of the market value thereof, were permitted, the proviso in question could easily be rendered nugatory. That would be to mock the proviso." 12. This reasoning seems to us to be unexceptionable and the learned Advocate General was wholly unable to offer any serious criticism of these observations. It is clear that by virtue of the second proviso to Art. 31-A (1) land within the ceiling limit is expressly protected against acquisition by the State unless the law relating to such acquisition provides for compensation which is not less than its market value. No attempt was made to take the impugned explanation out of this constitution inhibition. We, therefore, do not find any reason to differ from the conclusions of the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]To reduce the indebtedness of the tenants appreciably is a reasonable restriction on the right of the creditors and the law thus providing for amelioration of indebtedness of tenants deserves to be upheld as constitutional. We grant that amelioration of indebtedness of tenants is a laudable and desirable object. But the person to whom the arrears of rent are due is also entitled to seek protection of his legitimate right and if the acquisition of arrears of rent is outside the protection of Art. 31-A then the impugned provision can not but be held invalid. It prima facie partakes of the character of forfeiture or confiscation of the discharged arrears. Article 39 of the Constitution to which reference was made can be implemented by other permissible means without violating or abridging the just and legitimate rights of those to whom the arrears of rents are due. Section 73, therefore, in our opinion, was rightly struck down by the majority opinionWe grant that amelioration of indebtedness of tenants is a laudable and desirable object. But the person to whom the arrears of rent are due is also entitled to seek protection of his legitimate right and if the acquisition of arrears of rent is outside the protection of Art. 31-A then the impugned provision can not but be held invalid. It prima facie partakes of the character of forfeiture or confiscation of the discharged arrears. Article 39 of the Constitution to which reference was made can be implemented by other permissible means without violating or abridging the just and legitimate rights of those to whom the arrears of rents are due. Section 73, therefore, in our opinion, was rightly struck down by the majority opinionIt is clear that by virtue of the second proviso to Art. 31-A (1) land within the ceiling limit is expressly protected against acquisition by the State unless the law relating to such acquisition provides for compensation which is not less than its market value. No attempt was made to take the impugned explanation out of this constitution inhibition. We, therefore, do not find any reason to differ from the conclusions of the High CourtIt was not disputed that the ceiling limit fixed by the amended Act was within the competence of the legislature to fix; nor was it contended that the ceiling fixed by the original unamended Act by itself debarred the legislature from further reducing the ceiling limit so fixed. Prior to the amendment undoubtedly no land within the personal cultivation of the holder under the unamended Act within the ceiling limit fixed thereby could be acquired without payment of compensation according to the market value, but once ceiling limit was changed by the amended Act the second Proviso to Art. 31-A (1) must be held to refer only to the new ceiling limit fixed by the amended Act. The ceiling limit originally fixed ceased to exist for future the moment it was replaced by the amended Act. The prohibition contained in the second proviso operates only within the ceiling limit fixed under the existing law at the given time. It is true that the new ceiling was fixed contemporaneously with the acquisition of the land in excess of that ceiling limit. But it was not contended that a law so fixing the ceiling limit and acquiring the land in excess would offend any provision of the Constitution. This submission must, therefore, be rejectedIt is agreed at the bar that there is no case before us on the facts and circumstances of which this rider can operate. It is also stated atTo encourage trespass by conferring rights on trespassers, even on trespassers against whom there is a decree for possession, cannot, it is said, be regarded as a measure of agrarian reform. That might well be so, but, we are not called upon to consider the validity of the proviso in question since, so far as the cases before us are concerned, the application of the proviso is a mere theoretical possibility. In none of the cases is it said that there is any person claiming the benefit of the proviso against the petitioner concerned, and the challenge to the proviso must be left to be decided in a case where the question actually arisesWe should, however, like to make it clear that we express no opinion where the provisions of this Act are utilised for lands which are not agricultural lands and do not constitute estates nor where the beneficiary happens to be a person not substantially connected with agriculture, occupying non-agricultural land or where the facts are not covered by the general test laid down in the case of Ranjit Singh (supra)This point was not canvassed even in the High Court. This Court, as a rule, does not decide questions which are not necessary for determining or resolving the actual controversy arising in the case.Such opinions partake of the nature of obiter. Without deciding any hypothetical question posed before us we consider it sufficient for our present purpose to point out that extinguishment or modification of landlords rights vis-a-vis the tenant would also be within the ambit of Article 31-A of the Constitution if otherwise it is related to agrarian reforms. Section 72 is accordingly not liable to be struck down on this ground.