Krishnankutty and others vs State and others

Jagannadha Rao, C.J.—The Writ Petitioner, Mr. KUNJU Warrier, since deceased, and now his legal representatives are seeking to get back possession of 3.90 acres of land which was taken over In. 1944 for the purposes of the Second World War under the Defence of India Act, 1939. On 21-7-1947 the Madras Government gave possession of the property along with other land to the Metal Industries Limited, Sharanur on lease. in 1958 the State of Kerala entered into a lease agreement with owners. Rent fell In arrear from the Government to the owners and likewise, the Company, which was in the position of a sub-lessee, failed to pay rent to the Government, as the company became sick and was declared as such under the Kerala Relief Undertakings (Special Provisions) Act, 1961 (Kerala Act 6/62). During the period from 1930 to 1970 the State of Madras and then the State of Kerala made various attempts to acquire the land under the Land Acquisition Act, 1894, but either the proceedings were allowed to lapse or were cancelled. So far as the title of the petitioners, successors of Mr. KUNJU Warrier for the property is concerned, the position is this. Originally the property belonged in jenm to Kavalappara Moopil Nayar but there was an outstanding kanom in favour of Mr. Kunju Warrier, the deceased writ petitioner. On the commencement of the Kerala Land Reforms Act 1963 (Act I, of 1964), the jenm rights of the said Kavalappara Moopil Nayar vested in the State of Kerala while the kanom rights of Mr. Kunju Warrier remained, subject to the provisions of the Kerala Land Reforms Act, 1963. A point has been raised in the counter affidavits of the State of Kerala and of the company (but not argued) that Mr. Kunju Warrier, the holder of the kanom rights, had not been in possession when Kerala Act 1/1964 came into force, but that the 2nd respondent company was in possession, and that hence the kanom rights of Mr. Kunju Warrier did not get enlarged.

The other aspect that falls for consideration is whether, in view of the written statement filed by the State of Kerala in O. S. No. 7 of 1983, Munsfff''s Court, Ottappalan, that being a suit filed by Mr. Kunju-Warrler for rent against, the State, and the State having admitted the relationship of landlord and tenant, it is open to the State to deny the title of Kunju Warrier. In fact, as stated earlier, between 1950 and 1971, the State of Kerala issued notifications to acquire the properly under the Kerala Land Acquisition Act, 1961 by notification dated 16-5-1967 and a notice was, issued to Kunju Warrier on 9-6-1967 as per Ext. P4 and the latter filed objections as per Ext. PS dated 27-6-1967. The proceedings lapsed and again fresh-notification & notice Issued to Kunju Warrler under Ext. P6 dated 4-5-1971. Question is whether the State of Kerala or its lessee can now deny the title of Kunju Warrier, the deceased writ petitioner, who was holding the kanom rights before the Kerala Land Reforms Act, 1963 (Act I of 1964).

Yet another question is whether, on the face of the decision of the Supreme Court in The Union of India (UOI) Vs. Ram Kanwar and Others, , the State of Kerala can resist to deliver back possession to the petitioners after the war purposes of.1944 ceased.

The company (2nd respondent) has raised a contention that it was in possession when the Kerala Land Reforms Act, 1963 (Act 1/64) came into force; may be, as lessee of the State of Kerala, and hence, it is entitled to remain in possession u/s 106 of the Kerala Land Reforms Act, 1963 as a body which had a lease in its favour (though from Government of Kerala) for ''commercial or Industrial purpose'' and as it is claiming to have constructed buildings for such commercial and industrial purposes before 20-5-1967 and is liable only to pay rent, the varied once in 12 years. This is the other aspect for consideration. Here, a question also arises whether the decision of the Appellate Land Tribunal (Ext. P 16) dated 31-8-1984 does not operate as re judicata against the company.

Summarising the points that arise for consideration, they are as follows:

(1) Whether Kunju Warrier (1st petitioner since deceased) and of his successors have title to the property in view of the fact that the State has accepted in its written statement in O.S, No 7 of 1983 that Mr. Kunju Warrier was its lesson, and the State has issued land acquisition notices on that basis?

(2) Whether, after the war purposes of 1944 ceased, and the 1958 lease to State was terminated in 1979, the State was not bound to restore possession to the owners In view of the Supreme Court''s decision in The Union of India (UOI) Vs. Ram Kanwar and Others, ?

(3) Whether the 2nd respondent - company can rely on Section 106 of the Kerala Land Reforms Act, 1963 and resist eviction by the owners, even though the company was not a lessee of the owners, but the State of Kerela was the main lessee and the company was only a lessee of the State and whether there is proof of any constructions by the company before 20-5-1967 and whether the decision of the Appellate Land Tribunal (Ext. P16) dated 31-8-1984, does not operate as re judicata against the company?

Point No. 1:- We have already stated that in 1944 when the State of Madras requisitioned this property of 3.90 acres for war purposes, the property belonged in jenm to Kavalappara Moopil Nayar while the.deceased 1st writ petitioner, Kunju Warrler held the kanom rights. The military admittedly constructed some buildings after 1944. In 1947, the State of Kerala leased out this property to the 2nd respondent - company and the said company purchased the structures for Rs. 65,000/-. Thus, admittedly the company held the land under lease from the State while if purchased the super-structures built by the military between 1944 and 1947.

The State of Kerala took the property on lease In 1958. This is clear from paragraph 5 of the State''s counter:

Under clause 2 of the agreement executed between the Government and the land owners, Government have undertaken to pay and the owners have agreed to accept the same specified therein as rent for the properties so long as Government remains in possession.

(emphasis supplied)

Paragraph 8 of the counter accepts that the Government was a lease from 1958. Rent was not in arrear upto 1970.

That there is no privity of lease between the owners and the company is also admitted in paragraph 5 of the counter affidavit of the State:

No agreement appears to have been executed by the company and the land owners.

The above averments are also accepted in paragraphs 5 and 9 of the counter of the company.

The pleadings In O. S. No. 7 of 1983, MunSiff''s Court, Ottappalam place this factual position beyond doubt. Ext. P12 plaint filed by Kunju Warner against both the State of Kerala and the Metal Industries. Ltd.,, is for recovery of.possession and, for, arrears of rent stating that the State of Kerala is his lessee and that it has, in its turn, leased out to the company, that the State has defaulted in payment of rent, and that he has terminated the lease by a notice issued on 25-10-1979 and therefore the lease has come to an end, and arrears of rent are to be paid.

In the written statement, Ext. P13 dated 15. 3. 1983, the State his not disputed the title of Kunju Warrier or his position as lessor. It merely agreed to pay up the arrears and also stated that the company, (which was obviously sick) was not paying rent to the State. In the written statement, Ext, p14, filed by the company dated 21-3-1983, they too accepted that Kunju Warrier was the landlord of the State, and that the State had leased out to the company. It raised a technical question that originally the property was requisitioned under the Defence of India Act, 1939 and therefore no suit lay in a civil court.

The above said pleadings leave no doubt that both respondent 1 (State) and respondent 2 (the company) have accepted the title of Kunju Warrier, the former owner of kanom rights and while Moopil Nair''s jenm rights vested In the State in 1964 under the Kerala Land Reforms Act, 1963, the State recognized Kurju Warrier as its landlord and the company which was a lessee of the State, also accepted the position. No doubt, the suit Was dismissed on the ground that Section 19 of the. Defence of India Act, 1939 was a bar to a civil suit. In fact, the Munsiff observed that the remedy of Kunju Warrier may be u/s 6 of the Act, to seek possession from the Government on the ground that the war purposes of Government have ceased.

Further between 1967 and 1971, the State proposed to acquire the property under the Kerala Land Acquisition Act, 1961 end issued Exts. P4 and P6 notices. This is also an acceptance of Kunju Warriers title.

13 The State did not dispute the validity of the termination of the lease of 1958 in its written statement: see P. 13.

Therefore, we have no hesitation to hold that the State, which became a lessee of the deceased writ petitioner, Kunju Warrier, and the company which was a lessee of the State, both accepted the title of the kanom rights holder Kunju Warrier, from 1958 and even after the Karala Land Reforms Act, 1963 (Act I/64) came into force and even in 1983 Therefore Kunju Warrier and now his legal representatives are the absolute owners of the property.

In fact, before us, the.learned Government Pleader and Learned Counsel for the company were fair and did not dispute the title of the writ petitioners. Point No. 1 is held in favour of the petitioners.

Point No. 2: In fact, when orce the war purpose of 1944 had ceased, the State was bound to restore the property to the owners. This is clea from the decision of the Supreme Court in The Union of India (UOI) Vs. Ram Kanwar and Others, . That was also a case of acquisition in 1943, There, the Supreme Court referred to the Requisitioned Land (Continuince of Powers) Act, 1947 and Section 6 of the Requisition and Acquisition of Immovable Property Act, 1952 and held that the property requisitioned in 1944 under the Defence of India Act, 1939 and the 1939 Rules, continued to. be subject to requisition till the 1952 Act came into force and once the property is not used for military purposes, the State was bound to restore possession to the owners under the proviso to Section 6(1) the Supreme Court affirmed the High Court''s orders of delivery of possession to the owners, in the writ jusisdiction under Article 226 of the Constitution of India. The observation of the learned Munsiff in his judgment in the suit, O. S. No. 7 of 1983 (Ext. P15) is also to a like effect, Therefore, the State ought to have delivered possession under the proviso to Section 6(1).

Of course, it took a lease in 1958 from the owners and it sub-leased to the company and failed to pay the rent The owners terminated the lease by notice dated 25-10-1979. The validity of termination of notice was not disputed in the State''s written statement, Ext. P13 dated 15-3-1983 It merely agreed to pay the arrears of rent., As the suit for possession in a civil court was dismissed in view of Section 19 of the Requisition and Acquisition of Immovable property Act, 1952, the present Writ Petition was filed in 1983 itself.

We hold, therefore, that neither the Requisition and Acquisition of Immovable Property Act, 1952 nor earlier statutes can be a bar for the petitioner''s getting possession, after the war purposes ceased and after the 1958 lease to the State stood terminated. Point No. 2 is held accordingly in favour: of the petitioners,

Point No. 3 :- From the facts as admitted by the respondents in the counter affidavits and as admitted by them in the written statement in OS. No. 7 of 1983, Munsiff''s Court, Ottappalam, it is clear that from 1958 the State was a lessee of the predecessor-In-title of the petitioners and the lease was determined in 1979 as stated earlier and so far as the company is concerned, it was only a, sub-lessee, in the sense,it was a lessee of the State. The State has further clearly admitted in its counter, paragraph 5. that there is no privity by way of lease between the owners and the company.

Before going into Section 106 of the Kerala Land Reforms Act, 1963, on which relience is placed by the company, it is necessary to refer to the earlier proceedings under the Kerala Land Reforms Act between the parties. Ext. P. 6 dated 31.8.1984 is the judgment of the Appellate Authority under that-Act in a batch of appeals. So far as 390 acres of land in this writ petition before us is concerned, that was the subject-matter of A. A.No. 144 of 1981. The appellant in that appeal was the metal Industries while the 2nd respondent In that appeal was, T. Kunju Warrier (the deceased 1st petitioner on this O.P. before us). That, appeal was preferred by the company against the orders dated 11.12;1980 of the Land Tribunal in S.M.No. 739 of 1979 dismissing the claim of the company u/s 72against Kunju Warrier, for the right to purchase of the landlord''s (Kunju Warrier''s) right in, 3.90 acres The Appellate Tribunal said that the claim of the company was to be rejected as the lease was one coming within Section 3(iii) of the Act and such a tenant cannot have a Claim u/s 72 to purchase the landlord''s right. The Appellate Tribunal adopted its reasoning given under A.A.No. 142 of 1981 in the same judgment. In paragraph 6 of the judgment (Ext.P16) the Appellate Authority observed that there is no lease arrangement by the company in favour of the landowners. There is nothing on record to deny the averments of the respondents that the land was handed over to the company instead of returning to the previous occupants. It was also stated that the Government leased the property to the company pending land acquisition proceedings, On this basis, the claim u/s 72 for purchase of the landowner''s interest was rejected.

It is, therefore, seen that, for the first time, in the counter in this writ Petition, the company has raised a plea that, it is entitled to the benefits of Section 106 of the Land Reforms Act. 1963 on the ground that it has a commercial or industrial lease in its favour and that it has built structures on this land before 20-5-1967.

Section 106 of the Kerala Laud Reforms Act, 1963, in so far as it is relevant, reads thus:

So 106. Special provisions relating to lease for commercial or industrial purpose: (1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of Court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years.

Now, admittedly, so far as the company is concerned, it was a lessee of the State and the State was a lessee of the petitioners'' predecessor-in-interest. This being admitted in the counters and in the written statements in OS. No. 7 of 1983, as also before the Land Tribunal as stated in Ext. P16 judgment of the Appellate. Authority, there is no privity between the landowners and the company.

It is settled law of this Court that Section 406 of the Kerala Land Reform Act, 1963 is not applicable to such sub lessees: Ramachandran Pillai v. John, 1978 K. L. T. 528: Parameswaran pilliai v. Venkiteswara Prabhu, 1974 K. L. T.. 2 0 = ILR 1974 (1) Ker 274: and Mammo v. Asya 1965 K. L. J. 176 = 1965 K. L.T. 126. Further the structures were constiucted by the military authorities after 1944 and the company purchased those structures in 1947 for Rs. 65,000/-. There was no.plea In O S No. 7 of 1983 that the company had made any new constructions. For the first time, there is stray allegation in the counter affidavit dated 25-2-1987 filed in this O.P. before us that the company put up several structures of its own. This contention is with reference to the 17 acres given to it by the State and there is no proof of any structures in this 390 acres. Even otherwise, not a scrap of paper is filed to substantiate that any structures were built by the company before 20-5-1967. But. even if it did, if it was only a sub-lessee, it cannot benefit from Section 106 in view of the above said rulings of this Court." Further, even if it has constructed, there is no proof that the landlord permitted such constructions. There is even no scope for such a plea because the company''s lessor was the State and not the landowners : Gopala piliai v. (sic) Pillai, 1970 K.L.J. 926 = 1970 KLT 1025.'' There is no scope for any presumption because the landowners never give any lease for any commercial or industrial purposes to the company, but the State which took the land for defence purposes in 1944 made over possession to the company in 1947.

Another aspect is that the lessee in the, case before us is the State, and the State, even if it could, has not claimed any right u/s 106 that it was a lessee for industrial or commercial purposes and that it had made any construction before 20-5-1967. If the State, the lessee has not made any such claim, its tenant (the company) cannot have a batter claim.

We are also of the view that the company not having raised any plea on the basis of Section 106 before the land Tribunal, it is stopped by principles of constructive res judicata in the present proceedings before us.

For all the aforesaid reasons, we hold that the company the sub-lessee, cannot avail of Section 1Q6 of the Kerala Land Reforms Act, 1963,'' In the result, the O. P. is allowed and the State of Kerala is hereby directed to put the petitioners in physical possession of 3.90 acres of land in S. Na. 7/1 in Chuduvalathur desom in Mundamuka amsom in Oltapalam Taluk. We are not passing any orders for payment of damages in this OP. It is unfortunate that the land which was taken over in 1944 under Defence of India Act, 1939 for defence purposes In the Second World war, has not so far been restored to the owners and was made over to the company by the State on a lease In 1947, and that the State allowed several land acquisition notifications from 1950 to 1971 to lapse and not even paid rent, though the State was a lessee of the petitioners and petitioners were driven from the civil court to the writ court in the last 10 years. O. P. is allowed as above. No costs.