JANAKI AMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) IN this revision under S. 103 of the Kerala Land reforms Act, Act 1 of 1964 as amended by Act XXXV of 1969, hereinafter called the Act, the important question of law involved is whether the legal heirs of one who was, as on 1-1-1970, the date notified under S. 83 of the Act, an adult unmarried person holding land in excess of the ceiling limit specified under S. 82 of the Act, are under a legal liability, on his death, after the filing of the statement under S. 85 (2) of the Act, but before the passing of the vesting order under S. 86 (1) of the Act, to surrender the excess land as might have been determined had he lived till such time as the Taluk Land Board could have determined the extent and identity of the excess land, and passed an order vesting it in the Government. The Taluk Land Board has, by casting the burden on the legal heirs, in effect, answered the question in the affirmative, though this question of law, as such, was not specifically raised before it. Revision petitioner No. 1 is one of the legal heirs of the person who had filed the statement under S. 85 (2), hereinafter, for the sake of convenience, referred to as the 'declarant'. Revision petitioners Nos. 2 and 3 are persons who took assignment from the declarant 19 cents of land included in Part-D of the final order for surrender to the Government.

(2.) SRI O. V. Radhakrishnan, the counsel for the revision petitioners, submitted that the inhibition under S. 83 of the Act against holding land in excess of the ceiling area is against a person, and with the death of that person that disability ceases to exist. According to him, the very caption of Chapter ill (which comprises S. 81 to 98) of the Act indicates that the scheme of the Act with respect to the ceiling provisions is to impose restriction on ownership and possession of land in excess of the ceiling area held by persons, and to distribute the excess land available among the landless. He also emphasised that there is no provision in the whole of Chapter iii suggesting any disability cast on the land owned by a person who was holding land in excess of the ceiling area. In this context the following observation of Narayana Pillai J, in Idicula v. "taluk Land Board (1976 KLT. 550) has been cited by him: ". . . The ceiling limit fixed in S. 83 of the Act is as on 1-1-1970. It is open to persons holding lands within the ceiling limit to make valid transfers of them after 1-1-1970. As a result of such transfers there was the possibility of lands in excess of the ceiling area getting accumulated in the hands of a new class of people after 1-1-1970 also. That is sought to be prevented by S. 87 of the Act. These provisions show that merely because a land was not excess land at some time in the past or in the possession of a particular person it need not be so on a later occasion or in the possession of another. Even in the possession of the same person it can be excess land on a later occasion To accept the argument of counsel for the revision petitioner would be to hold that if at some time in the pass a land was not excess land in the possession of one person it should remain exempted from the operation of the ceiling provisions of the Act for all time to come. That is not what is intended by and provided for in the Act. " He proceeded to argue that this decision would indicate that the excess land is correlated to a person, and what is excess land in the hands of one person may not be excess land in the hands of another; in other words, in accordance with the scheme of the Chapter, there is no such class of land as excess land absolutely without reference to a person in relation to whom it is excess.

(3.) ACCORDING to the learned Advocate General, a combined reading of S. 83, 85 (1), 85 (8) and 85 (9) would lead to the conclusion that it would be more reasonable to hold that it is the land that is proceeded against, not the person. He also pointed out that the Legislature has while enacting s. 85 (1), guardedly employed the expression "such land shall be surrendered" avoiding to state as to who was liable to surrender the land. ACCORDING to him, the use of passive voice in the section, instead of stating that the person who filed the statement under S. 85 (2) shall surrender the excess land is purposeful and pregnant with meaning; the Legislature wanted to emphasise that when once the declarant had incurred an obligation to surrender the excess land held by him as on 1-1-1970, irrespective of the person in whose hand it is found it has to be surrendered as required by S. 85 (1) and 86 (2) of the Act. The learned Advocate General has also made reference to r. 10,12 (2),13,17 and 19 of the Kerala Land Reforms (Celing) Rules, 1970. ACCORDING to him, R. 10 only relates to the preparation of the draft statement of the lands to be surrendered without any emphasis being given to the person who is to make the surrender; R. 12 (2) is comprehensive enough to bring in the legal heirs also in case the declarant dies; R. 13 deals with the enquiry to be made in connection with the determination of the extent and identity of the lands to be surrendered, without mention being made as to who is to surrender the land so determined; R. 17 deals with demand for surrender, and R. 19 deals with the manner of surrender and taking possession and assumption of ownership. In all these Rules, it is submitted by the learned Advocate General, the emphasis is on the land to be surrendered, and the reference is only to the person who is hound to make the surrender without any specific reference being made to the person who filed the statement under S. 85 (2) or under S. 85a (1), as the case may be To support his argument that when a liability was cast on a person to surrender excess land, to effectuate the intention of the Legislature, in the absence of special procedure being laid down to cope up with the situation on the death of the person, legal heirs should be construed to be the persons liable to make the Surrender of the excess land, reliance was also placed by the learned Advocate General on the decision of the Supreme Court in Assistant collector of Central Excise v. National Tobacco Co. of India Ltd, (AIR. 1972 sc. 2563) wherein (in Para. 31) it is observed as follows: "the question whether there was or was not an implied power to hold an enquiry in the circumstances of the case before us. in view of the provisions of S. 4 of the Act read with R. 10-A of the Central Excise rules, was not examined by the Calcutta High Court because it erroneously shut out consideration of the meaning and applicability of R. 10-A. The High Court's view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law it must be performed in that mode or not at all. This rule flows from the maxim: 'expressio unius est exclusio alterius. ' But, as was pointed out by Wills, J;, in Colquhoun v. Brooks, (1888)21 QBD 52 at p. 62, this maxim'is often a valuable servant, but a dangerous master '. The rule is subservient to the basic principle that Courts must endeavour, to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. Moreover, the rule of prohibition by necessary implication could be applied only where a specified procedure is laid down for the performance of a duty. Although R. 52 makes an assessment obligatory before goods are removed by a manufacturer, yet, neither that rule nor any other rule, as already indicated above, has specified the detailed procedure for an assessment. There is no express prohibition anywhere against an assessment at any other time in the circumstances of a case like the one before us where no 'assessment', as it is understood in law, took place at all. On the other hand. R. 10a indicates that there are residuary powers of making a demand in special circumstances not foreseen by the framers of the Act or the rules. If the assessee disputes the correctness of the demand ah assessment becomes necessary to protect the interests of the assessee. A case like the one before vis falls more properly within the residuary class unforeseen cases, We think that, from the provisions of S. 4 of the Act read with R. 10a, an implied power to carry out or complete an assessment, not specifically provided for by the rules, can be inferred. " The following passage from (1976) 3 Weekly Law Reports, 235 (House of Lords-Attorney-General for Northern Ireland's Reference-No. I of 1975) is also relied on by the learned Advocate General (at pages 240 and 241): "where a statute confers upon an existing court of law a new or extended jurisdiction and does not itself contain detailed provisions as to the practice and procedure to be followed by the court when exercising the new or extended jurisdiction, there is a necessary implication that power to regulate that practice and procedure must rest somewhere: either in the court itself as part of its inherent powers or in some separately constituted rule-making authority. S. 14 of the Interpretation Act 1889 provides that where the expression 'rules of court' is used in relation to any court it means 'rules made by the authority having for the time being power to make rules or orders regulating the practice and procedure of such court;' and the second paragraph of the same section provides: The power of the said authority to make rules of court as above defined shall include a power to make rules of court for the purpose of any Act passed after the commencement of this Act, and directing or authorising anything to be done by rules of court. '