Kunjukutty Sahib vs State Of Kerala

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1972 Supreme(SC) 262

SUPREME COURT OF INDIA
S.M. SIKRI, C.J.I., J.M. SHELAT, I.D. DUA, H.R. KHANNA AND G.K. MITTER, JJ.
Kunjukutty Sahib and others, Appellants
Versus
The State of Kerala and others, Respondents.
Civil Appeals Nos. 143, 203 to 242, 274 and 309 of 1971, D/- 26-4-1972.
Advocates appeared
Mr. T. Subramania Iyer, Senior Advocate, (Mr. A. Sreedharan Nambiar Advocate, with him), for Appellant (In C. A. No. 143 of 1971); Mr. M. M. Abdul Khader, Advocate-General for the State of Kerala, (M/s. K. M. K. Nair and Varghese Kaliath, Advocates, with him), for Appellants (In C. As. Nos. 203 to 242 of 1971) and Respondent No. 1 (In C. A. Nos. 143, 274 and 309 of 1971); Mr. T. Subramania Iyer, Senior Advocate, (M/s. C. M. Devan, S. Balakrishnan and N. M. Ghatate, Advocates, with him), for Appellants (In C. A. No. 274 of 1971); M/s. C. S. Ananthakrishna Iyer, C. M. Devan, S. Balakrishnan and N. M. Ghatate, Advocates, for Appellant (In C. A. No. 309 of 1971); M/s. N. Sudhakaran and P. Kesava Pillai, Advocates, for Respondent No. 8 (In C. A. No. 203 of1971); Mr. A Sreedharan Nambiar, Advocate, for Respondents Nos. 1 and 5 (In C. A. No. 206 of 1971) and the Respondents (In C. As. Nos. 208, 219 and 235 of 1971); M/s. C. S. Ananthakrishna Iyer, S. Balakrishnan and N. M. Ghatate, Advocates, for Respondents (In C. A. Nos. 210 and 216 of 1971); Mr. T. Subramania Iyer Senior Advocate, (Mr. P. Kesava Pillai, Advocate, with him), for Respondent (In C. A. No. 214 of 1971); Mr. S. P. Nayar, Advocate, for Respondent No. 2 (In C. A. No. 221 of 1971); Mr. M. Veerappa, Advocate, for Respondents Nos. 1 to 4 (In C. A. No. 240 of 1971).

Advocates:
A.Sreedharan Nambiar, A.SRIDHARAN NAMBIAR, C.M.DEVAN, C.S.ANANTHAKRISHNA IYER, K.M.K.Nanand, M.M.ABDUL KHADER, M.M.Gharekhan, M.VIRAPPA, N.SUDHAKARAN, P.Kesava Pillai, S.BALAKRISHNAN, T.Subramania Iyer, VERGHESE KAILATH

Headnote:
Constitution of India,1950 – Article 14,19,25,26,31,19(1)(f) and 31-A - Kerala Land Reforms (Amendment) Act, 1969 - Kerala Agrarian Relations Act – Section 34 - Kerala Ryotwari Tenants and Kudikidappukars protection Act, 1962 – Section 5 – Payment of rent – Mortgagee - Tenant possessing more than 5 acres but not more than 10 acres of land in aggregate, whether as owner, mortgagee, lessee or otherwise Two years rent or the actual amount in arrears, whichever is less - Tenant possessing more than 10 acres of land in the aggregate - Provided that where an intermediary has collected rent from his tenant for any period and has not paid rent payable by him to his landlord for period for which he has so collected, he shall also be liable to pay rent payable by him for such period to his landlord – Held, counsel added that other rights of appellants as owners could not be adversely affected - By way of illustration reference was made to quarrying rights and it was suggested that right to quarry could not be affected by this vesting - Court do not consider it necessary to go into question of impact of impugned provision of act on the rights to quarry as there was no allegation to this effect in Writ petitions - This point was not canvassed even in High Court - This Court, as a rule, does not decide questions which are not necessary for determining or resolving actual controversy arising in the case - Such opinions partake of nature of obiter - Without deciding any hypothetical question posed before court - Court consider it sufficient for court present purpose to point out that extinguishment or modification of landlord s rights vis-à-vis tenant would also be within ambit of Article 31-A of Constitution if otherwise it is related to agrarian reforms - Section 72 is accordingly not liable to be struck down on this ground - With the foregoing observation these three appeals are also dismissed - Appeals dismissed.

Judgment

DUA, J.:- These are 43 appeals (C. As. Nos. 143, 274, 309 and 203 to 242 of 1971), 40 appeals (C. As. Nos. 203 to 242 of 1971) being by the State of Kerala and the Land Board and the remaining three by some of the writ petitioners in the High Court. Most of the material provisions of the amended Kerala Land Reforms Act, Act No. 1 of 1964 (hereinafter called the impugned Act) were challenged in the High Court as violative of Arts. 14, 19, 25, 26 and 31 of the Constitution. Quite a number of Writ petitions, however, assailed the entire impugned Act on that score. The sole defence in sustaining the constitutional validity of the impugned Act was based on Article 31-A of the Constitution. The High Court struck down several provisions of the impugned Act. In the State appeals (C. As. Nos. 203 to 242 of 1971) the judgment of the High Court is questioned only in so far as it struck down Section 73 and explanation to Section 85 (1) of the impugned Act. The Judgment appealed from is reported as V. N. Narayanan Nair v. State of Kerala, AIR 1971 Ker 98 (FB). Raman Nair, C.J., and Raghavan, J., expressed their conclusions through the Chief Justice thus:

"In the result we declare the following provisions of the Act void: Section 29-A, Section 32 in so far as (and only in so far as) it bars a Civil Court from prohibiting a person who has made an application for determination of fair rent from entering on the land to which the application relates so long as the as the application is pending, Section 50-A, sub-section (2) of Section 50-A Section 73, the Explanation to sub-section (1) of Section 85 and sub-section (7) of Section 125. For the rest we dismiss the petitions but make it clear that this dismissal involves no pronouncement regarding provisions which we have not expressly considered. We make no order as to costs."

Mathew, J., in a separate judgment upheld the validity of Section 73 but on all other points he agreed with the majority.

2. It may at the outset be pointed out that the Kerala Land Reforms Act, 1963 (Act No. 1 of 1964) as originally enacted was specified in the Ninth Schedule to the Constitution (Item No. 39 in that Schedule) and is, therefore, immune from constitutional challenge founded on the ground that the provisions of the said Act are inconsistent with or take away or abridge any of the rights conferred by any provision of Part III of the Constitution; vide Art. 31-B. It is only the subsequent amendment of the original Act which having not been specified in the Ninth Schedule is open to attack as violative of the fundamental rights guaranteed by Part III of the Constitution.

3. Section 73 of the impugned Act which was substituted for the old Section 73 of original Act reads:

"73. Discharge of arrears of rent -

(1) Notwithstanding anything to the contrary contained in any other law for the time being inforce, or in any contract, or in any judgment, decree or order of any Court or Tribunal, the landlord of a tenant specified in Column (1) of the Table below shall be entitled to recover towards arrears of rent accrued due before the 1st day of May, 1968 and outstanding at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, only the amount specified in the corresponding entry in Column (2) of the Table:

TABLE

Class of tenant Amount of rent to be paid for discharge

(1) (2)

Tenant possessing not more than 5 acres of land in the aggregate, whethere as owner, mortgagee, lessee or otherwise. One year s rent or the actual amount in arrears, whichever is less

Tenant possessing more than 5 acres but not more than 10 acres of land in the aggregate, whether as owner, mortgagee, lessee or otherwise Two year s rent or the actual amount in arrears, whichever is less.

Tenant possessing more than 10 acres of land in the aggregate, whethere as owner, mortgagee, lessee or otherwise. Three years rent or the actual amount in arrears, whichever is less

Provided that where an intermediary has collected rent from his tenant