Case: Nk Rajendra Mohan Vs. Thirvamadi Rubber Co. Ltd

(1) and Section 2 of the Malabar Tenancy Act 1929 dealing with exemption and Section 3 (1) (viii), of the Kerala Agrarian Relations Act 1960 enunciated that the legislature did consciously, as a matter of policy, in relation to the grant of exemption for plantations, restrict the scope thereof. The High Court in categorical terms referred to the language used in Section 3 (1) (viii) and the definition of the expression “plantation” in both the statutes, and was of the view that the object behind the constricted sweep of “plantation”, was to confine the scope of exemption from the applicability of the Act. The High Court entertained the notion, that the legislature had construed it to be unfair and improper to deny the benefit of the fixity of tenure to a lessee who might have taken the lease of extensive parambos or waste lands and in course of time by hard toil had developed those into plantations. That under the provisions of the Malabar Tenancy Act 1929, such a tenant was entitled to fixity of tenure, unless the lease had been one granted specifically for the purpose of raising plantation as mentioned therein was also emphasised. The High Court thus rejected the appellant’s plea based on Section 3 (1) (viii) and held that in view of the clues furnished by the statutory history preceding the legislation involved, and also the express language used in Section 3 (1), the lease transaction was beyond the ambit thereof. It held as well that if the interpretation of Section 3 (1) (viii) as sought to be projected by the appellant was accepted, it would divest the tenants of their pre-existing right of fixity under the Malabar Tenancy Act 1929 was underlined as well. 30. Another Full Bench of the Kerala High Court, comprising amongst others of Hon’ble Mr. Justice T. C. Raghavan C.J., as the common member, in Jacob Philip (supra) also had the occasion to examine the aspect of the fixity of tenure under Section 13 of the Act 1963. A lease of land, covered by Section 3 (1) (i) was involved in a suit instituted against the appellant therein. It was contended on behalf of the appellant, that this exemption provision ought to be applied qua the point of time, when the lease was granted and not at the commencement of the Act or of any subsequent date, as on the date of the execution of the lease neither the Government nor any corporation owned or controlled by the Government was in the picture. The attention of the High Court was drawn amongst others to the decision in Jerome Fernandes (supra). On an analysis of the contents of the Section 3 (1) (i), the High Court negatived this plea. Drawing sustenance from the text of the Explanations appended to the clause, it returned a finding that the requirements under Section 3 (1) (i) would be satisfied, even if the leased land happened to belong to or become vested in the Government or a corporation under or controlled by the Government etc, subsequent to the grant of the lease. 31. The rendering in Jacob Philip (supra) turns on its own facts and by no means, in our opinion neuters the determination made in Jerome Fernandes (supra). Jacob Philip (supra) proceeded on an interpretation of Section 3 (1) (i) of Act 1963 which is distinctively different in language and content from Section 3 (1) (viii) and no analogy, therefore, can be drawn to make it applicable to the case in hand. In our considered opinion, the decision of the Full Bench, in Jerome Fernandes (supra), having regard to the scheme of Act 1963 with particular reference to Chapter II and Section 3 (1) (viii) thereof, correctly states the law on the issue. We endorse the view taken in Jerome Fernandes (supra) on the applicability or otherwise of Section 3 (1) (viii) to the leasehold land of the present appeal. 32. Noticeably, the respondent-company in its written statement had pleaded that the lease created by the deed dated 26.6.1918 was an agricultural tenancy entitling the lessee to fixity of tenure under the Malabar Tenancy Act 1929 and that the same benefit stood extended under the Act 1963. The learned Trial Court while dismissing the suit, recorded as well the finding of the Land Tribunal, following an inquiry, that the respondent-company was entitled to fixity of tenure in respect of the leasehold land both under the Malabar Tenancy Act 1929 (as amended) and the Act 1963. This finding was upheld upon by the First Appellate Court and not dislodged by the High Court. We notice as well that Section 2 of the Malabar Tenancy Act 1929 has no application to the facts and circumstances of the case, so as to warrant exemption from the applicability thereof.33. As determined hereinbefore, the respondent-company, continued as a lessee by holding over after 1954 and the lease rent at the agreed rate fixed at the first instance was paid till 1978 as admitted by the appellant. The Act 1963 had come into force prior thereto. As neither Section 3 (1) (vii) nor 3 (1) (viii) is applicable to the plantation involved, the respondent-company is entitled to fixity of tenure under Section 13 thereof. To reiterate, Section 116 of the Transfer of Property Act ,1882 even if applicable, the lease originally entered into would not get transformed with time into one of tenancy in respect of plantation as defined in Section 2 (44) of Act 1963, in absence of any overt act of the parties, intending the same on agreed upon terms.34. The consequences of the applicability of the Act, vis-a-vis the plantation need not detain us, as the same would be regulated by the provisions of the statute and as rightly asserted on behalf of the respondent-company, the course to follow would witness the State and the tenant as the parties thereto. With the enforcement of the Act 1963, the appellant would be left with no role in that regard.

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

Explanation:
0[ds]18. The lease deed, reading between the lines, would demonstrate irrefutably, that at the time of execution thereof, neither a private forest nor a plantation as defined in Section 2 (44)/2 (47) of the Act 1963 did exist on the demised land. The lease which was for a period of 36 years w.e.f. 01.4.1918, encompassed land admeasuringacres which included hills, water channels, poyils lands etc so much so that only 925 acres were comprehended to be fit for cultivation and the lessee was left at liberty to raise coffee, tea, pepper, cinchona, rubber or any other produce at thediscretion. It is apparent as well on the face of the lease deed, that there were forests, jungles and trees on the land which the lessee was authorized to clear for the purpose of plantation and cultivation, to be decided by him. There was thus no restriction or regulation on the nature of cultivation/plantation to be resorted to by the lessee on the cultivable portion of the land leased out. To reiterate, on the date of creation of the lease there was neither any plantation nor a private forest on the leasehold land within the meaning of Section 2 (44) and 2 (47) of Act 1963 respectively.19. Significantly, the above notwithstanding, in the plaint, the plaintiffs while acknowledging the rubber plantation on the suit land raised by thethe assignee/transferee, in possession in place of the original lessee, did assert that from prior to the initiation of the lease in the year 1918, there was a private forest on the suit land. They contended, to reiterate, that as the lease period had expired after 36 years, the company had no right to retain the possession of the suit land and claim fixity of tenure. Noticeably however, the plaintiffs complained ofof lease rent at the rate of 693.75 paisa per annum by thefrom the year 1979 for which a decree for arrear rent was also prayed for. Axiomatically thus, the plaintiffs acknowledged and approved the possession of the leasehold land by theeven after the expiry of the period of lease in 1954 and did receive the annual rent at the same rate, even on their admission up to the year 1978. In course of the arguments before this Court, however, the learned senior counsel for the appellant has not pursued the plea based on private forest and has confined the assailment quaas per clause 3 (1) (viii) of Act 1963. The parties are also not at issue that on the date of the lease, no plantation as defined in Section 2 (44) did exist on the demised land. The plaint, to reiterate does not refer to such plantation on the date of the lease, as well. In that view of the matter, theplea based on Section 3 (1) (viii) lacks foundation in the plaint and in the strict sense of the term as the debate has its genesis in a suit, ought not to have been entertained by the High Court. This is more so, as the records substantiate that the contention based onwas raised for the first time before thatadmittedly, at the institution of the suit, the rubber plantation of thedid exist on the land, in the teeth of Section 116 of the Transfer of Property Act 1882, which comprehends renewal of the expired lease, year after year or month after month it is essentially qua the purpose for which the property had been originally leased which in the instant case is traceable to the year 1918. As the lease deed dated 21.6.1918 proclaims in no uncertain terms that the transaction evidenced thereby was by no means a tenancy in respect of plantation, the same with efflux of time, in our estimate cannot transfigure into the same merely because a plantation has been raised on the leasehold land in between by the lessee who had been left at its discretion to grow the same. In absence of a conscious intervention of the parties to the lease, either to convert it into one for tenancy in respect of such plantation ad idem or to extend it thereto, an automatic transformation of the lease not for plantation cannot stand converted into one for plantation. As a transaction of this kind involving immovable property is essentially governed by the terms and conditions concurred upon by the parties thereto, no unilateral alteration or modification thereof, unless agreed to by both, in categorical terms, ought to be permitted to be pleaded or enforced by anyone of them to the disadvantage of the other. Neither the lease deed contains any stipulation sanctioning such unilateral alteration of the stipulations contained therein nor do the materials on record testify such consensus based modification of the lease covenants. A plain perusal of the Section 116 of the Transfer of Property Act 1882 also does endorse thisreferring to the Third Five Year Plan, dealing with land reforms and ceiling on agricultural holdings, this Court on an audit of the materials available, concluded that there was no appreciable difference between the economics of tea, coffee and rubber plantations and areca and pepper plantations so as to justify the differential treatment. The report of the concerned committee, that if areca gardens were brought under the ceiling, it would hamper production and would be against national economy and that it had recommended to the Planning Commission, the Central Government and the State Government that at par with tea, coffee and rubber plantations, orchards, areca nut gardens should also be similarly exempted from ceiling and that the result of the application of the ceiling and other provisions of Act 1960 would occasion breakup of the plantations with a likely result in fall in production, was also noted. While concluding that the same considerations as extended to tea, coffee and rubber plantations, were available as well to areca and pepper plantations, the omission of the respondent State, to set out adequate justification for exclusion of pepper and areca nut from the benefit of exemption granted to tea, coffee and rubber plantation was recorded. Adverting to the object and purpose of the Act 1960, and the basis on which exemption was granted thereunder to the plantations as defined thereby, it was held that there was no reason for making any distinction between tea, coffee and rubber plantations on one hand and areca and pepper plantations on the other, in the facts of the case. The contentions listed in serial No. 5 and 6 though, beyond the framework of the instant inquisition, suffice it to state, were answered in the affirmative in favour of the appellant.any in its written statement had pleaded that the lease created by the deed dated 26.6.1918 was an agricultural tenancy entitling the lessee to fixity of tenure under the Malabar Tenancy Act 1929 and that the same benefit stood extended under the Act 1963. The learned Trial Court while dismissing the suit, recorded as well the finding of the Land Tribunal, following an inquiry, that thewas entitled to fixity of tenure in respect of the leasehold land both under the Malabar Tenancy Act 1929 (as amended) and the Act 1963. This finding was upheld upon by the First Appellate Court and not dislodged by the High Court. We notice as well that Section 2 of the Malabar Tenancy Act 1929 has no application to the facts and circumstances of the case, so as to warrant exemption from the applicability thereof.33. As determined hereinbefore, thecontinued as a lessee by holding over after 1954 and the lease rent at the agreed rate fixed at the first instance was paid till 1978 as admitted by the appellant. The Act 1963 had come into force prior thereto. As neither Section 3 (1) (vii) nor 3 (1) (viii) is applicable to the plantation involved, theis entitled to fixity of tenure under Section 13 thereof. To reiterate, Section 116 of the Transfer of Property Act ,1882 even if applicable, the lease originally entered into would not get transformed with time into one of tenancy in respect of plantation as defined in Section 2 (44) of Act 1963, in absence of any overt act of the parties, intending the same on agreed upon terms.34. The consequences of the applicability of the Act, vis-a-vis the plantation need not detain us, as the same would be regulated by the provisions of the statute and as rightly asserted on behalf of the respondent-company, the course to follow would witness the State and the tenant as the parties thereto. With the enforcement of the Act 1963, the appellant would be left with no role in that regard.