SUPREME COURT OF INDIA

Before:- K.T. Thomas and D.P. Mohapatra, JJ.

Civil Appeal No. 8401 of 1995. D/d. 23.2.1999.

Emur Bhagavathy Devaswom - Appellant

Versus

State of Kerala and another - Respondents

A. Tamil Nadu Hindu Religious and Charitable Endowments Act, 1951, Sections 29 and 99 - Kerala Land Reforms Act, 1963, Section 7D - Right to deemed tenancy under Section 7D - Grant of - Right to deemed tenancy cannot be granted unless a specific finding is recorded that the claimant was in occupation "of the land of another" at the commencement of Kerala Land Reforms (Amendment) Act, 1969 - In Instant case, High Court declaring that second respondent was a "deemed tenant" without entering a finding about whether he was in occupation on the relevant date - Held not proper.

[Para ]

B. Kerala Land Reforms Act, 1963, Section 7D - Certain persons occupying private forests or unsurveyed land to be deemed tenants - Person claiming benefit under Section 7D, held, has to establish following three facts :

(i) that he was in occupation of the land of another at the commencement of Kerala Land Reforms (Amendment) Act, 1969;

(ii) that the land is located in Malabar to which the provisions of Madras Preservation of Private Forest Act, 1949 were applicable on 11.4.1955; and

(iii) that he or his predecessor-in-interest was continuously in occupation of such land for not less than two years within a period of 12 years immediately preceding 11.4.1967.

[Para ]

Cases Referred :-

K.M. Mathew v. Hamsa Haji, (1987) 3 SCC 326.

ORDER

K.T. Thomas, J. - The appellant Emur Bhagavathy Devaswom is aggrieved by the finding of a learned Single Judge of the High Court of Kerala that the second respondent is entitled to a fixity of tenure in respect of 300 acres of private forest by virtue of Section 7D of the Kerala Land Reforms Act. Hence this appeal by special leave.

2. Pursuant to an application for sanction under Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (for short "the Madras Act") the second respondent was given a lease of the aforesaid 300 acres of land as per a lease deed executed on 21-2-1964 in which the sanction granted by the Commissioner under the Madras Act on 3-4-1961 has been referred to. But subsequently, the Government of Kerala while exercising revisional powers under Section 99 of the Madras Act set aside the order of sanction dated 3-4-1961 by holding that granting of sanction was improper and illegal and remanded the case to the Commissioner for a decision afresh.

3. This happened on 15-3-1968. A writ petition was filed by the second respondent challenging the aforesaid order of the Government dated 15-3-1968 but it was dismissed by the High Court on 9-11-1970.

4. A Land Tribunal at Ottappalam (Kerala) initiated suo motu proceedings under Section 72C of the Kerala Land Reforms Act (KLR Act) in respect of the aforesaid 300 acres of land. A claim was made before the Land Tribunal on behalf of the second respondent that it is a "deemed tenant" as per Section 7D of the KLR Act. But the Land Tribunal did not uphold the said claim and consequently it dropped the suo motu proceedings initiated in respect of the said land. The order of the Land Tribunal was confirmed in appeal by the appellate authority as per its order dated 25-8-1987. The second respondent moved the High Court of Kerala in revision under Section 103 of the KLR Act and in that revision the learned Single Judge upset the orders of the Land Tribunal and the appellate authority and declared that the second respondent is a "deemed tenant" under Section 7D of the KLR Act and directed the authorities concerned to issue the "certificate of purchase". It is that judgment which is being assailed now.

5. Section 7D of the KLR Act reads thus:

"7-D. Certain persons occupying private forests or unsurveyed lands to be deemed tenants.'Notwithstanding anything to the contrary contained in Section 52 or any other provision of the Transfer of Property Act, 1882, or any other law, or in any contract, custom or usage, or in any judgment, decree or order of court, any person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, of the land of another situate in Malabar, to which the provisions of the Madras Preservation of Private Forests Act, 1949 (XXVII of 1949), were applicable on the 11th day of April, 1955 or which was unsurveyed on that date, shall be deemed to be a tenant if he or his predecessor-in-interest was continuously in occupation of such land for not less than two years within a period of twelve years immediately preceding the 11th day of April, 1967."

6. In order to fall within the ambit of the said provision a person claiming its benefit has to establish three postulates. Learned Single Judge, in the impugned judgment, has enumerated those postulates correctly as follows:

(i) he must be a person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969 of the land of another;

(ii) the said land shall be situated in Malabar to which the provisions of the Madras Preservation of Private Forests Act, 1949 were applicable on the 11th day of April, 1955; and

(iii) he or his predecessor-in-interest should have been continuously in occupation of such land for not less than two years within a period of 12 years immediately preceding the 11th day of April, 1967.

7. While considering whether the second respondent succeeded in establishing the aforesaid three postulates learned Single Judge made a reference to the decision of this Court in K.M. Mathew v. Hamsa Haji, (1987) 3 SCC 326, wherein it has been held that the "occupation" should be lawful occupation. Learned Single Judge then proceeded to consider whether the occupation claimed by the second respondent was lawful. He entered upon a finding that the second respondent was in lawful occupation for the required period of two years within a period of 12 years immediately preceding 11-4-1967.

8. Shri P. Krishnamurthy, learned Senior Counsel who argued for the appellant assailed the aforesaid finding and contended that once the Government set aside the sanction granted by the Commissioner under the Act the occupation at any time cannot be said to be lawful occupation. Revocation of the sanction would render even the entry unlawful, according to the Senior Counsel.

9. Shri T.L.V. Iyer, learned Senior Counsel arguing for the second respondent contended that the nature of occupation will be determined on the strength of how the claimant entered the land and if at the time of entry he had an authority to do so he must be treated as a person who continued to be in lawful occupation, no matter that subsequently the authority under which he was permitted to enter has been cancelled.

10. We do not think it necessary to go into the aforesaid contentious issues for the reason that learned Single Judge has not entered upon any finding regarding the first postulate namely "he must be a person in occupation at the commencement of the KLR (Amendment) Act, 1969 of the land of another".

11. Of course a contention has been raised that if the original entry is held to be lawful then he must be deemed to be in lawful occupation, if he continued to be in possession of the land as on 1-1-1970 which is the date of commencement of the Kerala Land Reforms (Amendment) Act, 1969.

12. It is also contended that occupation envisaged in the first postulate only means the factual possession and not anything more. The aforesaid contention is also very seriously disputed by the learned counsel for the appellant.

13. We are of the view that the High Court should necessarily have entered upon a specific finding regarding the first postulate mentioned above, without which no right under Section 7D can be granted in any proceedings under the KLR Act. As the High Court has not adverted to that aspect at all, we think, in the interest of justice to send the case back to the High Court for a decision of the revision afresh on all the points involved. We refrain from expressing any opinion on the contentious issues raised before us. We make it clear that the High Court is expected to enter upon a finding on all the postulates afresh. Both sides agree that if new points are to be raised this remand should not prevent the parties from doing so and it is open to the High Court to enter upon a finding of such points also.

14. In the result we allow this appeal and set aside the impugned judgment. We remit the case back to the High Court for disposal of the revision afresh in accordance with law and in the light of the observations made above. We would appreciate if the High Court would dispose of the revision as expeditiously as possible as this matter was pending for a long time. In view of the importance of the questions involved it would be appropriate that a Division Bench of the High Court would hear the revision. The Registrar of the High Court will bring the aforesaid observation to the notice of the Chief Justice for boarding the revision before a Division Bench.