BALAKRISHNAN NAIR Vs. KUNHIKRISHNAN

JUDGEMENT

(1.) THIS revision petition has come up before the Full bench on an order of reference by a Division Bench of this Court. The question that arises for consideration has to be answered on the interpretation of Ss 6a and 13a of the Kerala Land Reforms Act, 1963, for short the Act. Before we refer to these sections and the corresponding provisions in the previous enactments, we shall briefly state the facts.

(2.) THE revision petitioner obtained a decree for redemption of the mortgagee, Ext. A-1 dated 4 31936, executed in favour of the father of the counter-petitioner in O. S. no. 428 of 1955. This decree was confirmed in appeal in A. S No. 44 of 1962, and on further appeal to the High court in S. A. No. 129 of 1963. In execution of the decree the civil revision petitioner recovered possession of the property on 17 7 1967. THE counter-petitioner's father, Raman was holding toe property on an oral lease from a period anterior to 1930. It was while he was so holding the property on an oral lease that the property was mortgaged to him on 4 31936 under Ext. A-1.

(3.) COUNSEL for the respondents contended that the words "such person shall, if he would have been a tenant under this Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession. . . " in S 13a clearly necessitated the reading of the section introduced by the Kerala Land Reforms (Amendment) Act, 1969 into the Act on the date of dispossession and se: whether under the provisions of the section relied on, the person dis-possessed would or would not have been a tenant. The compulsion to have to read the section at the time of dispossession clearly implied that it should be assumed that the section was in force at the time of dispossession. It was said that without the section being there at that time no question as to whether the person dispossessed would or would not be a tenant under the Act, as amended by the Amending Act would arise. By necessary implication therefore it has to be deemed, or taken, that the section was in force on the date of dispossession. If the section was so in force on the date of dispossession it must also necessarily mean that that provision had commenced. So in cases where S. 6a is relied on, by virtue of the necessity to have to imagine: that S. 6a was in operation on the date of dispossession it was also to be assumed that the provision had commenced. The words "the commencement of this Act" occur ring in S. 6a will have to be understood in the light of the proviso to S. 1 (3) of the Act as the commence-ment of the provision. The provision had commenced by the compulsion of S. I3a on the date of dispossession. It the words "the commencement of this Act" occurring in S. 6a have to be understood as the date of dispossession by virtue of the vigour of S. 13a read with the proviso to S,1 (3) of the Act, those words cannot be understood in a different sense for the purpose of determining the period of possession for what the provision really insists upon is possession till the date of commencement of the provision. The argument of course proceeds on the basis that by the terms of S 13a retrospective operation has been given to the definition of the term 'tenant' in the Act as also to those provisions in the statute which defined deemed tenants. It was submitted that the clear import of S. 13a spelt such a consequence. The legislature it was urged clearly intended that the benefit of altered definition as well as the benefit of the definitions creating deemed tenants must accrue to all those who have been dispossessed of the land in their possession on or after the 1st day of April 1964. As far as S. 13a is concern d, the only factors to be established are whether a person in occupation of the land had been dispossessed on or after the 1st day of April 1964 and whether such a person would have been a tenant on the date of such dispossession under the Act as amended by the amending Act 1969. If these two conditions are satisfied the benefit of the section must accrue to him. If the provisions in the sections which created "deemed tenants" are capable of the interpretation that possession till the date on which those provisions came into operation would be sufficient to create the deemed tenancy, it must be so understood. So it was emphasised that the words "till the commencement of this Act" in S. 6a should be read as till the commencement of the provision and the commencement of the provision must be taken to be the date of dispossession by virtue of the terms of S. 13a of the act read with proviso to S. 1 (3) of the Act. So ran the arguments of counsel for the respondents. The argument on the other side was that S. 13a did not introduce the various sections which defined deemed tenants from the date of dispossession. It was also argued that even it such sections are taken to have come into operation on the date of dispossession those sections must be read according to their terms and no alteration should be made to the words occurring in the sections S. 4a was particularly referred to and it was pointed out that the words in clause (a) of sub-s, (i) of S. 4a of the Act "for a continuous period of not less than 50 years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act 1969" can never be understood to be the commencement of the provision and that even if the section was taken to have been in operation or in force on the date of dispossession all that could be done was to read the section as if it was in force on the date of dispossession and see whether its terms had been satisfied.