VARKEY Vs. STATE

JUDGEMENT

(1.) THE petitioners in all the cases are admittedly lessees of lands under the various Devaswoms. THE period of the lease having terminated action was taken and in some cases proposed to be taken against them under the Travancore Land Conservancy Act, IV of 1091. THE authority for that action is stated to have been derived under S. 50 of Act XV of 1950 which enacted that all unassigned lands belonging to any Devaswom under the sole management of the Board shall be deemed to be the property of the Government for purposes of the Land Conservancy Act (IV of 1091) and all provisions of that Act so far as they are applicable apply to such lands. THE contention urged on behalf of the petitioners is that the lands in their respective possession are assigned lands and not unassigned lands within the meaning of the said section. THE respondents urged that all those lands are unassigned lands because though they had once been assigned lands the period for which the assignment was to operate having expired became unassigned by virtue of the explanation to S. 6 of the Travancore Land Conservancy Act, IV of 1091, which provides: "a tenant unauthorisedly holding over at the expiry of his term of lease is liable to a fine within the meaning of this section". THE argument based on the explanation is that on the expiry of the term of the lease the possession of the tenant becomes unauthorised. We do not agree. THE expression "unassigned" is not used in the Land Conservancy Act and the Explanation to S. 6 cannot be used for construing that expression in S. 50 of Act, XV of 1950.

(2.) IT has not been nor can it be disputed that a lease does not constitute an assignment within the meaning of this Section because if the word "assignment" is given the ordinary meaning of an out-right assignment the assigned lands can no more belong to the Devaswom. Assignment, therefore, for purposes of this section must connote the creation of an interest smaller than by way of absolute assignment. The question then is whether an assigned land would cease to be such while it continues to be in the possession of the assignee on account of the determination of the period. IT is true that in these cases the leases were for specific periods. IT would, however, appear that in certain instances, though not in all, after the expiration of the term rent had been paid and received the result of which would be to convert the tenancy into one from year to year, the leases being of agricultural lands. In everyone of the cases a claim is made by the tenants-petitioners that they have effected improvements upon the properties in their respective possession. That fact is proved by them by their affidavits accompanying the applications. There is no counter-affidavit presented on behalf of the respondents in any of the cases except in O. P. No. 78 where the counter-affidavit presented admits that the improvement authorised to be effected by the lessee in the lease deed has been partly done. The result is that we have to proceed with the cases on the basis that the petitioners are lessees who have effected improvements upon the lease-hold. According to the law in this State a tenant who effects improvements in the property though in the absence of a provision in that behalf contained in the lease deed but if the making of such improvements be not prohibited is entitled to claim value therefor and retain possession of the property until such value is paid. A Full bench of this Court held so in 1951 KLT 7. In the Cochin area of the State the matter would stand even upon a stronger footing. Under the Tenancy Act there, a contract against effecting improvements and claiming value therefor subsequent to Kumbhom 1087 would be invalid and a tenant if he effects improvement upon the property will be deemed to continue as a tenant under the old terms notwithstanding the determination of the tenancy. Such a statutory provision does not obtain in the Travancore area but the common law in that area has recognised the right of a tenant to improve lease hold and, as already stated, to get value therefor and retain possession until such value is paid. Lease deeds in all except O. P. 78 and 111 contain a provision that if rent be allowed to fall into arrears during the currency of the lease which was for a period of 12 years then the tenant would forfeit his term as also his claim in respect of the improvements made by him. There is no question in these cases of the tenant not having paid rent promptly, and the question of the legality of the covenant for forfeiture of the rights to improvements does not fall to be decided. The provision, however, indicates the right of the tenant to improve the property and to claim value therefor should that right be not forfeited according to the aforesaid clause. These are cases, therefore, where there is no prohibition against the effecting of improvements upon the leasehold. In O. P. 78 and 111, as already stated, there are improvements made. We do not, however, rest our decision in these cases on the fact that there are improvements effected by the lessees. In our view, an assigned land under S. 50 will continue to retain its character as such so long as it continues to be in the possession of the assignee and it will not be metamorphised into unassigned land for purposes of s. 50 during the period of such continuance in the possession of the tenant. If the landlord Devaswom has to recover possession of property leased to a tenant resort to the ordinary civil courts according to law is the remedy to be pursued. Resort to the Land Conservancy Act is not authorised. S. 50 which applies only to unassigned lands would, therefore, apply only to cases where the land has not left the possession of the Devaswom into other hands with the right for them to retain possession until evicted in due course of law. In our judgment, therefore, even on the assumption that Act XV of 1950 and S. 50 thereof are intra vires the action impeached in the various petitions are unauthorised and the orders complained of should be quashed.