PETITIONER: THE TALUK LAND BOARD, KOZHIKODE & ORS Vs. RESPONDENT: DR. BABUCOMMEN THOMAS DATE OF JUDGMENT17/08/1995 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) CITATION: 1996 AIR 97 1995 SCC (6) 155 JT 1995 (6) 290 1995 SCALE (5)138 ACT: HEADNOTE: JUDGMENT:
O R D E R
Leave granted.
Respondent admittedly had purchased cashew nut estate
on April 16, 1969. The State Government of Kerala introduced
the Land Reforms Bill, 1963 on April 1, 1964. One of the
clauses relates to taking away exemption of cashew nut
estate or its conversion from the purview of the Kerala Land
Reforms Act, 1963 [for short, ‘the Act’]. The Bill was made
Act 35 of 1969 with effect from January 1, 1970. Section
82(4) of the Act declares that where after the commencement
of the Act, any class of land specified in Schedule II has
been converted into any other class of land specified in
that Schedule or into a plantation, the extent of land
liable to surrendered by a person owning or holding such
land shall be determined without taking into consideration
such conversion. Section 84 (1) reads thus :
“84. Certain voluntary transfers to be
null and void. – (1) Notwithstanding
anything contained 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
x x x x x
(iii) in favour of a person who was
a tenant of the holding before the
27th July, 1960, and continued to
be so till the date of transfer;
x x x x x
by a family or any member thereof or by
an adult unmarried person owning or
holding land in excess of the ceiling
area or otherwise than by way of gift in
favour of his son or daughter or the son
or daughter of his pre-deceased son or
daughter by any person owning or holding
land in excess of the ceiling area shall
be deemed to be transfers calculated to
defeat the provisions of this Act and
shall be invalid. “
(Emphasis supplied )
The voluntary sale is not one of the exempted transfers
mentioned in Section 84(1). On the other hand, all voluntary
transfers other than those excepted, should be deemed to be
transfers calculated to defeat the provisions of the Act and
should be invalid. The question, therefore, is whether the
land purchased by the respondent was intended to defeat the
purposes of the Act and is invalid.
This Court P.J. Thomas vs. Taluk Land Board and Others.
[(1993 ) Supp. (1) SCC 300 ] considered the question of
transfer and conversion under Section 82(4) and held that
the conversion of cashew estate also will not be saved and
it will come squarely within the mischief of Section 84(1)
of Act. This is what the Court held : “The transfer falling
under Section 84 cannot be equated to the conversion falling
under Section 82(4). The ceiling provisions contained in
Sections 82 and 83 came into force on January 1, 1970. The
computation of the ceiling area has to be made in accordance
with the provisions contained under Section 82 as it stood
on January 1, 1970. Under Section 82(4) where any class of
land specified in Schedule II has been converted into a
plantation after the commencement of the Act, the extent of
the land liable to be surrendered by a person owning or
holding such land has to be determined without taking into
consideration such conversion. Cashew estate is a land
specified in Schedule II as on April 1, 1964 as well as on
January 1, 1970. Therefor, the conversion of cashew estate
after April 1, 1964 and before January 1, 1970 into
plantation would squarely come under the mischief of this
sub-section”.
The facts of this case stand on a higher footing than
the facts therein. In this case, section 84(1) specifically
declares such voluntary transfers to be invalid. In other
words, such transfers are void and of no effect. Admittedly,
the transfer was effected within the prohibited period
namely between April 1, 1964 and January 1, 1970. Therefore,
the sale is a void sale. Thereby the respondents cannot save
the cashew land purchased under the void sale from the
purview of the Act.
Mr. Balakrishnan, learned counsel for the respondent,
then sought to rely on Section 85 (1) explanation (a) and
contended that the respondent having purchased the land was
transferee under the transfer and, therefore, his rights in
the land were not affected but the extent of land purchased
can be calculated for fixing the extent of land to be
surrendered and the company should be directed to surrender
excess land excluding the land under the sale. We fail to
appreciate the contention. The purpose of Section 85(1),
clause (a) to the Explanation seems to be that such of the
transfers effected within the prohibited period and saved by
sub-s. (1) of Section 84 were treated to be valid transfers
and to that extent they cannot have any effect while
directing surrender of the excess land. But voluntary
transfers which are void, cannot be saved in computing the
excess land under Section 85 of the Act. Therefore, the High
Court was clearly in error in its judgment dated June 27,
1989 in C.R.P. No. 879/89 that the lands get exempted by
clause (a) to the Explanation to Section 85 (1) of the Act.
Mr. Balakrishnan also seeks to place reliance on State
of Kerala vs. Philomina etc. etc. & Ors., [(1977 ) 1 SCR 273
]. The ratio therein was also considered and explained by
this Court in P.J. Thomas’s case (supra). We respectfully
agree with the reasoning in Thomas case.
The appeal is accordingly allowed. No costs.