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PETITIONER: STATE OF KERALA AND ORS.

       Vs.

RESPONDENT: PHILOMINA, ETC. ETC. & ORS.

DATE OF JUDGMENT20/08/1976

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. RAY, A.N. (CJ) BEG, M. HAMEEDULLAH

CITATION:  1976 AIR 2363            1977 SCR  (1) 273  1976 SCC  (4) 314  CITATOR INFO :  F          1977 SC 311  (14)  RF         1979 SC1573  (17)  RF         1992 SC1144  (9)

ACT:             Kerala Land Reforms Act, 1963-- S. 84--Scope  of--Inter-         pretation--When a statue could be read retrospectively.

HEADNOTE:              Section  84 of Kerala Land Reforms Act,  1963  declares         that  all  voluntary transfers of land  effected  after  the         publication of the Kerala Land Reforms Bill on September 15,         1963,  shall be null and void.  Clause (ii) of this  section         while provided an exemption in respect of transfers made  on         account  of "natural love and affection" was omitted in 1972         with  retrospective effect from August 16,  19’68.   Section         81(1)(1)  exempts kayal padasakharams of Kuttanad area  from         the  restrictions on ownership prescribed.by Chapter III  of         the  Act. By an amendment of 1969, this exemption was  with-         drawn;  but the amending section was not brought into  force         until January 1, 1970.             There were two sets of petitions before the High  Court.         In one set the High Court held that (1) voluntary  transfers         of  kayal  lands  effected between September  15,  1963  and         January 1, 1970, were lawful and valid, and in the other (2)         that certain transfers by way of gift were invalid.             In  the  first set of appeals to this  Court  the  State         contended that the 1969 amendment should be given retrospec-         tive effect from April 1, 1964 i.e., the date on which s. 84         was  brought  into force and in the second  set  the  donees         contended  that the transfers were saved because  they  were         effected on account of natural love and affection.         Dismissing all the appeals,             HELD:  (1)(a) Even though by virtue of s. 84 all  volun-         tary   transfers  -effected after September  15,  1963  were         invalid,  transfers made in  respect  of kayal  lands  could         not be held to be invalid because they were exempt from  the         provisions of Chapter Iii.  Though that exemption was  with-         drawn  in  1969, that amendment was not brought  into  force         until  January  1, 1970,  Voluntary transfers  made  between         September  15,  1963  and January 1,  1970   were  therefore

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       valid. [278 B-C]             (b) The 1969 amendment was neither curative nor declara-         tory of the previous law.  It merely omitted cl. (1) from s.         81.   A statute is not to be read retrospectively except  of         necessity.   There;  is  no such necessity  in  the  instant         cases,  for  the legislature decided to exempt  kayal  lands         from the operation of the restrictions, and the  1969-amend-         ment  withdrawing the exemption was not brought  into  force         until January 1, 1970.. [278 E-F]             Pritam  Singh  Chahil  v. State of  Punjab  and  others,         [1967]  2  S.C.R.  536 and Channan Singh and another v.  Jai         Kaur [1970] 1 S.C.R. 803 held inapplicable.             (2)  In  the other set of cases the  impugned  transfers         were  in favour of the donor’s grand children by his  daugh-         ter, who was alive and were effected between January 1, 1970         and  November  2, 1972.  It was held that it was  futile  to         contend  that s. 84 would not be attracted to the  transfers         on the ground that they were effected on account of  natural         love  and  affection  within the meaning  of  the  exemption         provided  by s. 84, because the exemption was taken away  by         Act  17 of 1972 which specifically stated that, that  clause         shall  be,  and shall be deemed to have  been  omitted  with         effect  from  the 16th August, 1968" and they could  not  be         said  to  fall within the exempted category because  of  the         amendment made in s. 84 in 1972 restricting the exemption to         gifts made in favour of a donor’s son or daughter or the son         of a daughter of his predeceased son or daughter. [279 A-C]         274

JUDGMENT:         CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 907-909/74.             Appeals  by  Special Leave from the Judgment  and  Order         dated  27-3-73  of the Kerala High Court in O.P.  Nos.  375-         377/73 respectively.         CIVIL APPEAL No. 1354/75           Appeal  by  Special  Leave from the  Judgment  and   Order         dated 9-7-75 of the Kerala High Court in C.R.P. No. 949/74.         CIVIL APPEAL No. 1355/75              Appeal  by  Special Leave from the Judgment  and  Order         dated  19-6-75  of  the Kerala High  Court  in  C.R.P’.  No.         611/74.             M.M.  Abdul, Advocate Genera1 for the State  of  Kerala,         and  K.M. K. Nair for the Appellants in CAs. 907-909/74  for         rr. in CAs. 18541855/’75.             T.S. Krishnamoorthy lyer and P.K. Pillai; for the Appel-         lants in. CAs. 1354-1355/75.         Miss Lily Thomas for the Respondents in CAs. 908-909/74.         The Judgment of the Court was delivered by              SHINGHAL,  J.--Civil Appeals Nos. 907, 908 and  909  of         1974 are by the State of Kerala and the Land Board,  Trivan-         drum.   They are directed against a common judgment  of  the         Kerala  High Court dated July 27, 1973.  Civil Appeals  Nos.         1354  and 1355 of-1975 are by petitioners who  had.  applied         for  revision of the orders of  the  Taluk Land Board,  Ala-         thur,  dated  June 11, 1974 and April 27,  1974.  The.  High         Court  dismissed  the  revision petitions  by  two  separate         judgments  dated  July 9, 1975 and June 18, 1975.   All  the         appeals  are  by special leave.  We have heard them together         at the instance. of the learned counsel for the parties, and         will examine them in a common judgment.             The controversy in all the cases relates to the.  appli-         cation of certain provisions of the KeraIa Land Reforms Act,         1963,  hereinafter referred to as the Act, to  the  impugned

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       voluntary  transfers  of Kayal  lands. The State  of  Kerala         feels  aggrieved because the High Court has taken  the  view         that  the  transfers made between September  15,  1963   and         January  1,  1970  had to be  "recognised  and  Kayal  lands         comprised therein excluded in reckoning the ceiling area and         the excess lands to be surrendered after January 1;,  1970."         The  grievance  of the other two appellants  is  that  their         revision  petitions  were  dismissed  even though  the  gift         deeds in their favour were  valid and  did  not  fall within         the mischief of section 84(11) of the Act.  We shall examine         these.  points of controversy but, before doing. so, it  may         be mentioned that the validity of certain provisions. of the         Act  was  also challenged’ in the High Court, in  the  three         petitions  which  were disposed of by  the  common  judgment         dated  July  27, 1973, but  the  High   Court  upheld  them.         There is no such controversy before us as  the  Act, and the         Acts  which  have amended it, have: been  specified  in  the         Ninth  Schedule  to the Constitution.  It may also  be  men-         tioned  that we have’ not had the advantage; of hearing  any         one on behalf of the respondents         275         in  Civil  Appeals  Nos. 907 to. 909 of 1974  as  Miss  Lily         Thomas,,  who represented the respondents in  Civil  Appeals         Nos. 908 and 909, informed the Court, at the commencement of         the arguments, that they were not interested in the  contro-         versy.             While  examining  the petitions which  are  the  subject         matter   of appeals Nos. 907 to 909 of 1974, the High  Court         thought it sufficient to refer only to the facts of original         petition  No. 283 of 1973.  That case is not before us,  but         that  would not matter as the  appeals  can be  disposed  of         without  reference to the details of that case.  It will  be         sufficient  to  say  that the petitioner in  that  case  was         M.T.J. Joseph, and the controversy centered round a  settle-         ment deed (Ex. P 8 made by him in favour of his children  on         June  15, 1957.  The appellants in the three  appeals  (Nos.         90.7-909) are M.T.J.  Joseph’s  children.              As has been stated, the High Court examined the consti-         tutional validity of the provisions of  the Act and   upheld         them.   It   next  examined the question  whether  lands  in         excess of the ceiling area were in the lawful or  permissive         occupation  of the petitioners (in the petition  before  the         High Court), with reference to the argument that in view  of         the  terms  of Ex. RI, by which some of the   excess   lands         were  assigned to the holder, the occupation commenced  with         an  implied  permission on payment of the state  dues.   The         High  Court did not however think it proper to. express  its         final  views on that aspect  of the matter as it found  that         certain  proceedings  were pending  before  the  authorities         concerned.  It therefore left the matter after  giving   the         direction  that the Land Board will no.t pursue   the   pro-         ceedings     in respect of those lands until the matter  was         finally  decided  in     the pending proceedings.  So  also,         the High  Court  left  the  question regarding the ownership         of the lands which had been conveyed by the settlement  deed         of 1957, for investigation and decision by the  Land Board.              The High Court however proceeded to examine the  valid-         ity   of  certain transfers of lands between  September  15,         1963  and  January 1, 1970 with reference  to  the  relevant         provisions of the Act and held as follows :-                          "Broadly stated;, the effect of section 84,                  is  to  invalidate transfers effected by  a  person                  owning  or holding  land  in excess of the  ceiling                  area,  after  the date of publication of  the  Land                  Reforms Bill (15-9-1963).  That being the object of

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                the  section,  in order to  determine  whether  the                  transfer was in excess of the ceiling area, what is                  material is the law relating to ceiling area on the                  date  of  the transfer, and not the  law  regarding                  celling area on the date of the acquisition or  any                  date subsequent to the transfer."                  It  therefore held that there was no  justification                  for treating the alienations effected after Septem-                  ber  15, 1963 and before January 1, 1970 as  having                  been invalidated by reason of the subsequent amend-                  ments  in the law, when they were lawful and  valid                  under the "law relating to ceiling area at the time                  when they were made."  The High Court also examined                  the  questions relating to the grant of   compensa-                  tion   and improvements, but they do not arise  for                  consideration before us.         276             The only question which has been pressed for our consid-         eration  by  the Advocate General, on behalf of  the  appel-         lants, is that relating to the validity of the transfers  of         Kayal lands between September 15, 1963 and January 1,  1970.         The writ petitioners in the High Court urged that they  were         exempt under section 81 (1 )(1) of the Act and could not  be         held to be invalid with effect from January 1, 1970  because         of  the  subsequent amendment to the Act,  and  included  in         their ceiling area.             The term "ceiling area" has been defined in section 2(3)         of the Act to mean "the extent of land specified in  section         82  as the ceiling area", and there is no controversy  about         its extent or content.  Section 83 of the Act prohibits  the         holding  of lands in excess of the ceiling area with  effect         from January 1, 1970. which had been notified by the govern-         ment  in the gazette as the date from which the  prohibition         was to be effective.  Section 84 declares certain  voluntary         transfers  to be null and void.    The section as  it  stood         before the amendments road as follows.--                        Section  84. Certain voluntary  transfers  to                  be   null and void."Notwithstanding  anything  con-                  tained in any law for the time being in force,  all                  voluntary  transfers  effected after  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 27th July, 1960, and contin-                  ued 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,                  by  a family or any member thereof or by  an  adult                  unmarried  person owning or holding land in  excess                  of  the ceiling area, shall be deemed to be  trans-                  fers  calculated to defeat the provisions  of  this                  Act and shall be invalid :"         There  is  a proviso to the section with which  we  are  not         concerned. The validity of the transfers had therefore to be         examined with reference to September 15, 1963 which was  the         date  of publication of the Kerala Land Reforms Bill,  1963,         in  the gazette.  The section was amended by Act 35 of  1969         by which the existing section was renumbered as  sub-section         (1)  and  a sub-section was added as  subsection  (2)  which         dealt with voluntary transfers effected by any person "other         than"  a family or any member thereof or by an adult  unmar-         ried person owning or holding land in excess of the  ceiling

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       area. The amendment could not therefore be said to have  any         bearing on the present controversy.  The section was however         again  amended by section 15 of Act 17 of 1972.   It,  inter         alia, omitted clause (ii) of         277         sub-section  (1)  and  provided that the  omission  shah  be         deemed  to have been made with effect from the 16th  day  of         August, 1968.  This had the effect of taking away the excep-         tion in favour of  voluntary transfers on account of natural         love  and  affection.  But it is  not the case  of  any  one         before  us  that there was any such transfer in  respect  of         Civil Appeals Nos. 907 to 909, so that amendment also  could         not be said to have any material bearing on the  controversy         relating to these appeals.             The fact therefore remains that by virtue of section  84         of  the Act, all voluntary transfers of land effected  after         September  15, 1963 (date of publication of the Kerala  Land         Reforms Bill, 1963 in the gazette) were invalid as they were         to be deemed to be transfers calculated to defeat the provi-         sions  of the Act.  So even if a transfer was found to  have         been  made  after September 15, 1963 but before  January  1,         1970 (date notified under section 83 prohibiting the  owning         or  holding or to possessing under a mortgage lands  in  the         aggregate  in excess of the ceiling area) the  ceiling  area         for purposes ’of section 83 and bringing about the surrender         of  the excess land under section 85 had to   be  determined         with reference to the position as on January 1, 1970 as that         was the date notified under section 83. The reason is  ,that         the  prohibition  of section 83 applied with  reference,  to         that  date  and that, in turn, required a surrender  of  the         excess land as on that date.             Section  85 is therefore an important section.   It  was         amended  by  Act 35 of 1969, Act 25 of 1971 and  Act  17  of         1972,  but there was no change in its basic  provision  that         when  a person owned or held land in excess of  the  ceiling         area "on the date notified under section 83" namely, January         1,  1970,  he had to surrender it in  ,accordance  with  the         other  provisions  of  the section.  The  crucial  date  for         determining and surrendering the surplus land was  therefore         January 1, 1970, and not any earlier date, but the  validity         of any voluntary transfer effected after September 15,  1963         which was the date of publication of the Kerala Land Reforms         Bill,  1963,  had  still to be examined  with  reference  to         September  15,  1963  in view of the  clear  requirement  of         section 84.  This was the scheme of the Act.         We  have made a reference to section 84 which  clearly  pro-         vides  that all voluntary transfers of land  effected  after         September 15, 1963 shall be deemed to be transfers calculat-         ed  to defeat the provisions of the Act and "shah be  void".         It has not been urged that the impugned transfers fell under         any  of the exceptions provided by section 84. There can  be         no doubt that any transfer made after September 15, 1963 and         before  January 1, 1970 would be invalid unless it could  be         shown to have been saved by any other provision of the  Act.         In this connection section 81 of the Act is important for it         prescribes the exemptions to the provisions of Chapter  III.         Clause  (1)  of subsection (1) of  section  81  specifically         provides that the provisions of the Chapter shall not  apply         to,-                       "(1)  kayal  padasakharams  of  Kuttanad  area                  specified "in Schedule IV, so long as such padasak-                  haramas  are used for the cultivation of  paddy  or                  such other crops as  the Government may, by notifi-                  cation in the Gazette, specify."                  278

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                    It  is not in controversy that the Kayal  lands                  which  are the subject matter of these appeals  are                  of  the  category mentioned in clause (1)  of  sub-                  section  (1)  of section 81.  They  were  therefore                  exempt   from  the restriction  on  ownership  pre-                  scribed  by  the various sections  of  Chapter  III                  referred  to  above.  So even though by  virtue  of                  section  84  of  the Act  all  voluntary  transfers                  effected after September 15, 1963 (date of publica-                  tion of the Kerala Land Reforms Bill, 1963 in   the                  Gazette)  were invalid, the transfers made  in  re-                  spect  of Kayal padasakharams in appeals Nos.  907-                  909 could not be held to be  invalid for the simple                  reason that they were exempt from the provisions of                  Chapter III.  That exemption was no doubt withdrawn                  by  section 65 of Act 35 of 1969 which amended  the                  Act,  but  it is not disputed before  us  that  the                  section was not brought into force until January 1,                  1970.  The voluntary transfers made between Septem-                  ber  15,  1963 and January 1, 1970  were  therefore                  valid, and there is no force in the argument of the                  Advocate  General that the amendment brought  about                  by  section  65 of Act 35 of 1969 should  be  given                  retrospective effect from April 1, 1964 as sections                  82 and 84 of the  Act  were brought into force from                  that  date.  There is also no force  in  the  other                  argument  of the Advocate General that  section  84                  had   the  effect  of  invalidating  the  transfers                  effected after September 15, 1963 for that was  the                  date of publication of the Kerala Land Reforms Bill                  in  the gazette.  The argument overlooks  the  fact                  that,  as  has  been mentioned,  Kayal  lands  were                  exempt from the provisions of Chapter III until  as                  late  as  January  1, 1970.  In this  view  of  the                  matter  Pritam Singh Chahil v. State of Punjab  and                  others(1) cannot avail the appellants.  The  amend-                  ment cannot also be said to be curative  or  merely                  declaratory  of  the previous law.   The  facts  of                  Chanan  Singh and another v. Jai Kaur,(2) cited  by                  the Advocate General, were quite different inasmuch                  as in the appeals before us the amendment which was                  made  by section 65 of Act 35  of  1969  was   nei-                  ther curative nor merely declaratory.  As has  been                  stated,  it,   inter alia, omitted, clause  (1)  of                  section  81  of the Act which  exempted  the  Kayal                  padasakharams  which are the subject matter of  the                  present  controversy  from the application  of  the                  provisions ’of Chapter III of the Act.  It is  well                  settled that a statute is not to be read retrospec-                  tively  except  of  necessity.  There  is  no  such                  necessity in the  cases before us, for the Legisla-                  ture  decided to exempt the .aforesaid Kayal  lands                  from  the  operation of the restrictions  and  even                  though amending Act 35 of 1969 was   promulgated’on                  December  17,   1969,  section  65  thereof,  which                  withdrew the exemption, was not brought into  force                  until January 1, 1970.             Thus there is no force in Appeals Nos. 907, 908 and  909         and they are dismissed.             This leaves Civil Appeals Nos. 1354 and 1355 for consid-         eration.  The transfers of lands in these cases were  admit-         tedly made  during the period January 1, 1970 to November 2,         1972.   As such  they were not exempt from the  restrictions         of the provisions of Chapter         (1) [1967] 2 S.C.R. 536.

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       (2) [1970] 1 S.C.R. 803.         279         III of the Act.  Section 84 of the Act would be attracted to         these transfers, and it is futile to contend that this would         not be so because the transfers were affected "on account of         natural  love  and affection" within the meaning  of  clause         (ii) of the  exceptions  provided  by section 84 because the         exemption  to that effect was taken away by Act 17 of  1972.         Section  15 of that Act  specifically  stated   that  clause         "shall  be, and shall be deemed to have been  omitted   with         effect from the 16th day of August, 1968."  Moreover, as the         High  Court has pointed out, the impugned transfers were  in         favour of the donor’s grand children by his daughter who was         alive,   and  could not be said to fall within the  exempted         category  because of the other amendment made in section  84         of the Act by section 15 of Act 17 of 1972 with effect  from         the 16th day  of August,  1968  which restricted the  exemp-         tion to gifts made in favour of the donor’s son or  daughter         or  the son of daughter of his predeceased son or  daughter.         There is thus no ’force in these two appeals also, and  they         are dismissed.             In view of the facts and circumstances of the cases,  we         leave the parties to pay and bear their own costs.         P.B.R.                                                Appeal         dismissed.         280