N.K. RAJENDRA MOHANversusTHIRVAMADI RUBBER CO. LTD. & ORS.

                        [2015] 10 S.C.R. 626


A                     N.K. RAJENDRA MOHAN
                                   v.
             THIRVAMADI RUBBER CO. LTD. & ORS.
                   (CivilAppeal No.5163 of2012)
B                           JULY02, 2015
               [M.Y. EQBALANDAMITAVA ROY, JJ.]
          Kera/a Land Reforms Act 1963 - ss. 2(44), 3(1)(vii),
C   3(1)(viii), 13- Malabar Tenancy Act, 1929- s. 2- Transfer
    of Property Act, 1882 - s. 116 - Suit for eviction and damages
    - On facts, in 1918 the appellant leased out 963. 75 acres of
    land to original lessee for a period of 36 years on payment of
    annual rent- Finally, respondent-company inducted into the
    said land - Suit for eviction and damages by appellant-
0
    plaintiff and others against respondent no. 1 - Appellant's
    case that the suit land belongs to their tarwad and was a
    private forest; that neither the original lessee nor his
    successors derive fixity of tenure or right of ownership; and
E   that the lease lapsed with the efflux of time - Respondeht
    pleaded fixity of tenure under the 1929 Act and the 1963Act
    - Courts below held the respondent-company was entitled to
    fixity of tenure and dismissed the suit - Interference with -
    Held: Not called for - At the time of execution of the lease
F   deed, neither a private forest nor a plantation as defined in s.
    2(44)12(47) of the Act 1963 existed on the demised /and-
     There was no restriction or regulation on the nature of
    cultivation/plantation to be resorted to by lessee on the
    cultivable portion of the land leased out - Respondent-
G   company continued as lessee by holding over after 1954
    and lease rent was paid till 1978 as admitted by the appellant
    -Act of 1963 come into force prior thereto - Neither s. 3(1)(vii)
    nor 3(1)(viii) is applicable to the plantation involved, thus,
    respondent-company is entitled to fixity of tenure u/s. 13
H   thereof - s. 116 even if applicable, the lease originally
                                   626
 N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.               627
                    LTD.

entered into would not get transformed with time into one of A
tenancy in respect of plantation as defined ins. 2 (44) of Act
1963, in absence of any overt act of the parties, intending
the same on agreed upon terms.

    Dismissing the appeal, the Court                        B
     HELD: 1.1 The scheme of Kerala Land Reforms Act,
1963 would demonstrate, the statutory endeavour has
been to strike a fair and equitable balance of various
interests to be impacted thereby so as to facilitate        c
smooth implementation thereof, without casting undue
financial burden on the State. Conferment of fixity of
tenure on the tenants as well as the limited right of
resumption to the landlords are also the noticeable
features of the enactment with the emphasis thattheright o
of resumption would not be available against tenants,
who were entitled to fixity of tenure immediately prior to
21.1.1961 under the law then in force, unless such tenants
had in their possession land in excess of the ceiling area.
The statement of objects and reasons also refer to the E
provisions pertaining to determination of fair rent at
uniform rates and purchase of the rights of the
landowners and intermediaries of a holding by the
cultivating tenant. The Act 1963 did provide for imposition
of a ceiling on holdings and constitution of Land Tribunal F
and Land Board for the administration ofthe provisions,
with the remedy of appeal/revision from the decisions
of this fora. [Para 14] [642-F-H; 643-A-B]

    1.2 Section 13 of the enactment mandates that G
notwithstanding anything contrary to the law, custom,
usage or contract or any decree or order of Court, every
tenant shall have fixity of tenure in respect of his holding
and no land from the holding shall be resumed except
as provided in Sections 14 to 22. Section 72 proclaims H
628         SUPREME COURT REPORTS                [2015] 10 S.C.R.

A   that on a date to be notified by the Government in the
    official gazette, all right, title and interest of the
    landowners and intermediaries in respect of holdings
    held by cultivating tenants (including holders of
    Kudiyiruppus and holders of Karaimas) entitled to fixity
 B ·of tenure under Section 13 and in respect of which
    certificates of purchase under sub-Section (2) Section
    59 have not been issued, shall, subject to the provisions
    of that Section, be vested in the Government free from
    all encumbrances created by the landowners and ·
 C intermediaries and subsisting thereon on the said date.
    [Para 15.1] [645-8-D]

           1.3 The lease deed executed on 21.6.1918 between
      the Tarwad of the plaintiffs and CH would demonstrate
 D    that at the time of execution thereof, neither a private
      forest nor a plantation as defined in Section 2 (44)/2 (47)
      of the Act 1963 did exist on the demised land. The lease
      which was for a period of 36 years w.e.f. 01.4.1918,
      encompassed land ad measuring 963-112 acres· which
 E    included hills, water channels, poyils lands etc so much
      so that only 925 acres were comprehended to be fit for
      cultivation and not subject to any Government revenue,
      the lesi:.ee was left at liberty to raise coffee, tea, pepper,
 F    cinchona, rubber or any other produce at the latter's
      discretion. There were forests, jungles and trees on the
      land which the lessee was authorized to clear for the
      purpose of plantation and cultivation, to be decided by
      him. There was thus, no restriction or regulation on the
 G    nature of cultivation/plantation to be resorted to by the
      lessee on the cultivable portion of the land leased out.
      [Para 18] [646-G, H; 647-A-B]

       1.4 The remonstrance based on cessation of the
 H lease on the expiry of36 years also.does not commend
 N.K. RAJENDRAMOHAN v. -1 rllRVAMADI RUBBER CO.                   629
                            LTD.

for acceptance in the face of unreserved acceptance of            A
lease rent at the earlier rate of Rs. 693.75 paisa admittedly
till the year 1978. The assertion that in any view of the
matter, as the respondent-company in terms of Section
116 of the Transfer of Property Act 1882, ought to be
construed to be the lessee, holding over the demised              B
land on payment of rent and that the lease stood
renewed from year to year and that accordingly on the
date of the institution of the suit there was a subsisting
tenancy in respect of plantation exceeding 30 acres
cannot be sustained as well. Though admittedly, at the            C
institution of the suit, the rubber plantation of the
respondent-company did exist on the land, in the teeth
of Section 116 which comprehends renewal of the
expired lease, year after year or month after month it is
                                                                  0
essentially qua the purpose for which the property had
been originally leased which in the instant case is
traceable to the year 1918. As the lease deed dated
21.6.1918 proclaims in no uncertain terms that the
transaction evidenced thereby was by no means a                   E
tenancy in respect of plantation, the same with efflux of
time, cannot transfigure into the same merely because a
 plantation has been raised on the leasehold land in
 between by the lessee who had been left at its discretion
to grow the same. In absence of a conscious intervention          F
 of the parties to the lease, either to convert it into one for
 tenancy in respect of such plantation ad idem or to
 extend it thereto, an automatic transformation of the lease
 not for plantation cannot stand converted into one for
 plantation. As a transaction of this kind involving              G
 immovable property is essentially governed by the terms
 and conditions concurred upon by the parties thereto,
 no unilateral alteration or modification thereof, unless
 agreed to by both, in categorical terms, ought to be
 permitted to be pleaded or enforced by anyone of them            H
630         SUPREME COURT REPORTS               [2015] 10 S.C.R.


A to the disadvantage of the other. Neither the lease deed
  contains any stipulation sancti_oning such unilateral
  alteration of the stipulations contained therein nor do
  the materials on record testify such consensus based
  modification of the lease covenants. A plain perusal of
B the Section 116 also does endorse this deduction. [Para
  20] [648-C-H; 649-A-D]

            1.5 The issue of the applicability of Act 1963 to the
      lease of private forests and tenancies in respect of
C     plantations exceeding 30 acres not in existence as on
      21.6.1918, but standing/present on the date of its
      enforcement, is of decisive bearing and would assuredly
      involve a dialectical interpretation of Section 3 (1) (vii)
      and 3 (1) (viii) of Act 1963 to discern the true purport
 D    thereof as legislatively intended. In view of the
      abandonment of the plea based on private forests, in
      course of the a~guments, it is inessential thus, too dilate
      on the scope of Section 3 (vii). Tenancies in respect of
      plantations exceeding 30 acres in extent have been
 E    exempted from the purview of the Act vide Section 3 (1)
      (viii). That on the date of the execution of ttie lease deed
      i.e. 21.6.1918 there was no plantation on the leasehold
      land, is an admitted fact. Such plantation as defined in
 F    Section 2 (44) of the Act 1963 however did exist on the
      date on which the enactment was brought into force i.e.
      1.4.1964. [Para 22] [649-G-H; 650-A-D]

         1.6 The respondent-company in its written statement
   had pleaded that the lease created by the deed in 1918
 G was an agricultural tenancy entitling the lessee to fixity
   of tenure under the Malabar Tenancy Act 1929 and that
   the same benefit stood extended under the Act 1963. The
   trial court while dismissing the suit, recorded as well the
 H finding of the Land Tribunal, following an inquiry, that
  N.K. RAJENDRAMOHAN v. THIRVAMADI RUBBER CO.                     631
                    LTD.

· the respondent-company was entitled to fixity of tenure A
  in respect of the leasehold land bot.h under the Malabar
  Tenancy Act 1929 (as amended) and the Act 1963. This
  finding was upheld upon by the first appellate court and
  not dislodged by the High Court. Section 2 of the Malabar
  Tenancy Act 1929 has no application to the facts and B
  circumstances of the case, so as to warrant exemption
  from the applicability thereof. [Para 32) [658-B-E]

       1.7 The respondent-company continued as a lessee
  by holding over after 1954 and the lease rent at the            C
  agreed rate fixed at the first instance was paid till 1978
  as admitted by the appellant. The Act 1963 had come into
  force prior thereto. As neither Section 3 (1) (vii) nor 3 (1)
  (viii) is applicable to the plantation involved, the
  respondent-company is entitled to fixity of tenure under        D
. Section 13 thereof. Section 116 of the Transfer of
  Property Act, 1882 even if applicable, the lease originally
  entered into would not get transformed with time into
  one of tenancy in respect of plantation as defined in
  Section 2 (44) of Act 1963, in absence of any overt act of      E
  the parties, intending the same on agreed upon terms.
  The consequences of the applicability of the Act, vis-a-
  vis the plantation would be regulated by the provisions
  of the statute and the course to follow would witness           F
  the State and the tenant as the parties thereto. With the
  enforcement of the Act 1963, the appellant would be left
  with no role in that regard. Thus, no interference with
  the findings recorded by the forums below is called for.
  [Para 33-35) [658-F-H; 659-A-C]                                 G

       Rt., Rev. Dr. Jerome Fernandes Vs B. B. Rubber

                               .
       Estate Ltd 1972 KLT 613 - approved .

       Karimbil Kunhikoman vs State of Kera/a (1962)
       Suppl. 1 SCR 829 - distinguished. .                        H
632       SUPREME COURT REPORTS             [2015] 10.S.C.R.


A         Jacob Philip vs State Bank of Travancore 1972
          KLT 914; Malankara Rubber and Produce Co. &
          Ors vs The State of Kera/a & Ors. (1972) 2 SCC
          492; N. V. Srinivasa Murthy (2005) 10 SCC 566;
          K. V. Pathumma vs Taluk Land Board and Ors
 B        1997 (2) SCR 175 : (1997) 4 sec 114; State of
          Kera/a vs K Sarojini Amma and Ors 2003 (4 )
          Suppl. SCR 694 : (2003) 8 sec 526 ; Kai
          Khushroo Bezonjee Capadia Vs Bai Jerbai
          Hirjibhoy Warden & Anr 1949-50 FCR 262;
c         Bhawanji Lakhamshi & Ors Vs Himatlal
          Jamnadas Dani and Ors 1972 ( 2) SCR 890 :
          (1972) 1SCC388; State of UP VsJahoorAhmad
          & Anr AIR 1973 SC 2520: 1974 (1) SCR 344 -
          referred to.
 D
                       Case Law Reference

        (2005) 1o sec 566         Referred to.     Para 10

 E      1997 (2) SCR 175          Referred to.     Para 10

        2003 (4) Suppl. SCR 694   Referred to.     Para 10

        1949-50 FCR 262           Referred to.     Para 21

 F      1972 (2) SCR 890          Referred to.     Para 21

        1974 (1) SCR 344          Referred to.     Para 21

        (1962) Suppl. 1 SCR 829   Distinguished.   Para 28

 G      1972 KLT 914              Referred to.     Para 30

        1972 KLT 613              Approved.        Para 31

         CIVIL APPELLATE JURISDICTION: Civil Appeal No.
      5163 of2012
 H
 N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.                        633
                    LTD.

    From the Judgment and Order dated 26.07.2010 in S.A.             A
No. 193of1997 (F) of the High Court of Kerela at Ernakulam.

    A. S. Nambiar, P. K. Manohar, Shanta Vasudevan forthe
Appellant.
                                                                     B
     Dr. A. M. Singhvi, Amrendra Sharan, Padam Khaitan,
Gopal Sankaranarayana, Nitish Massey, Shikhar Srivastava
(for Khaitan & Co.) forthe Respondents.

    The Judgment of the Court was delivered by
                                                                     c
    AMITAVAROY, J. 1. The appellant, one of the plaintiffs in
the suit instituted before Munsif Court (II), Kozhikode along with
others against the respondent No. 1 herein, seeking eviction
of the latter from the land involved and damages for the use
and occupation thereof, in his relentless pursuit for redress is     D
before this penultimate institutional forum, having successively
failed at all the intermediate tiers. The procrastinated tussle
spanning over three decades eventually seeks a quietus at
this end.
                                                                     E
    2. We have heard Mr. A. S. Nambiar, Senior Advocate for
the appellant and Mr. A. M. Singhvi, Senior Advocate for the
respondent No.1. Incidentally, the co-plaintiffs have been
arrayed as other respondents in the instant appeal.
                                                                     F
      3. The salient facts, which make up the edifice of the
lingering contentious dissent, however lie in a short compass.
As adverted to hereinabove, the appellant alongwith others
did institute a suit, being OS 569/1982 before Munsif Court
(II), Kozhikode against the Respondent No. 1 praying for its G
eviction from the suit land and realization of arrear rent,
damages etc, the pleaded case being that the suit land had
belonged to their Tarwad and .was a private forest. On
21.6.1918, an area of963.75 acres was leased outto one Mr.
Campbell Hunt for a period of thirty six years vide Exh. A 1 H
634          SUPREME COURT REPORTS                      [2015) 10S.C.R.


A     whereunder, the lessee was liable to pay a sum of Rs. 693.75
      per annum towards annual rent. Eventually, through intervening
      transactions, the respondent-company stood inducted to the
      suit land with the same status. According to the plaintiffs, they
      were the joint owners of the property and asserted that neither
 B    the original lessee Mr. Campbell Hunt nor his successors did
      derive fixity of tenure or right of ownership either under the
      lease deed or the provisions of the Kera la Land Reforms Act
      1964 (hereinafter referred to as Act 1963), brought into force
      on and from 01.04.1964 or any other tenancy laws prior thereto.
C     The plaintiffs averred, that at the time of handing over the
      property to Mr. Campbell Hunt in the year 1948, the same was
      a private forest under the ownership and possession of their
      Tarwad. The lease which was for a period of 36 years with
      effect from 01.04.1918 lapsed with efflux of time and the
 0
      respondent-company had no rightto retain the possession
      thereof. The Plaintiffs admitted that it (respondent-company)
      had raised a rubber estate on the suit land. It was alleged that
      the respondent-company also did not pay the lease rent as
 E    fixed i.e. Rs. 693. 75 per annum for the year 1979, 1980 and
      thereafter. That in inspite of several requests, it did not vacate
      the land by removing its buildings etc. therefrom for which a
      notice was addressed on 1o~11.1980 to the respondent-
      company to vacate and deliver possession of the suit land was
 F    stated. According to the plaintiffs, in terms of the notice, the
      tenancy stood extinguished from 21.6.1981. However in
      response to the notice, the respondent-company claimed in
      its reply, that it had acquired the right of fixity of tenure on the
      suit land. In this factual premise, the plaintiffs instituted the suit,
 G    for the above reliefs claiming inter alia arrear lease rent at the
      rate of Rs. 693.75 per annum from 01.04.1979 to 20.06.1981
       and damages at the same rate for the period subsequent
      thereto for use and occupation thereof.

 H         4. The respondent-company in its written statement,
  N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.                    635
               LTD. [AMITAVAROY,J.]

resisted the suit. While admitting, the lease deed Exh. A 1, in A
favour of Mr. Campbell Hunt in the year 1918, it elaborated
that out of total land leased, the cultivable area was 925 acres
and that the lease was granted with the right to cultivate coffee,
tea, pepper, cinchona, rubber etc. and any other produce as
the lessee would consider proper, by cleaning the area. The B
respo~dent-company claimed fixity of tenure under the Malabar
Tenancy Act 1929 (for short hereinafter referred to as Act 1929)
as well as the Act 1963, and pleaded for the dismissal of the
suit.
                                                                  c
     5. The learned Trial Court in the face of the respondent-
company's claim of fixity of tenure, referred the issue to the
Land Tribunal, Kasargod which sustained this plea and
consequently the suit was dismissed. The appeal preferred
by the plaintiffs met the same fate. Being still aggrieved, they D
(appellants) did take the challenge before the High Court of
Kerala. By the judgment impugned, the High Court has
sustained the adjudication of the Courts below.

      6. As the decisions impugned would reveal, the High Court E
 negated the plaintiffs' assertion that the suit land.at the time of
 the initiation of the lease in the year 1918 was a private forest
 and thus stood excluded from the applicability of Act 1963 in
 terms of Section 3 (1) (vii) thereof, as it was granted to Mr.
 Campbell Hunt as per Exh. A 1 to cultivate rubber, cinchona, F
 coffee and any such crop as the lessee construed it to be
 proper. It was inter alia observed that the lease deed clearly
 disclosed that the land was Puramboke and not assessed to
 any revenue and that the lessee was permitted to cut and
 remove trees, shrubs etc. to prepare the same for the purpose G
 of cultivating rubber, tea, coffee etc. The High Court was also
 of the view that if the conveyed land was a forest, there would
·have been some stipulation in the lease deed to the effect.
 That the lease rent was fixed at the rate of the cultivable area H
 was also noted. The High Court did record as well, that the
636         SUPREME COURT REPORTS                     [2015] 10 S.C.R.


A     land was asses-sed to Government revenue on the basis of
      cultivations done which too belied the appellants' claim of the
      same being a private forest. Reference was also made to the
      relevant survey plan (Exh. A2), appended tothe lease deed,
      to endorse the conclusion against the existence of private
 B    forest on the land at the time of its demise on lease. It ruled
      further, that even if the land was a private forest at the time of
      the initial lease, cultivation of various other crops thereon, after
      the execution of the lease deed took it out of the ambit of
      Section 3 ( 1) (vii) of Act 1963.
c
          7. Vis-a-vis the next contention, namely, that the suit land
   contained a plantation on the date of enforcement of Act 1963
   and thus stood exempted from the ambit thereof, the High Court
   entered a finding, that the statutory provision i.e. Section 3 (1)
 D (viii), applied to cases where a plantation did exist at the time
   of the grant of lease and not on the date of commencement of
   the statute. Relying on the decision of a Full Bench of the Kerala
   High Court in Rt., Rev. Dr. Jerome Fernandes Vs B. B. Rubber
   Estate Ltd, 1972 KLT 613 dilating on the same issue, the High
 E Court thus concluded that the respondent-company was
   entitled to fixity of tenure. In these premise, the aspect of its
   entitlement to the value of improvements made by it on the
   land was left undecided. As a corollary, the appeal was
 F dismissed.

        8. Mr. Nambiar, the learned Senior Counsel for the
   appellant has assiduously argued, that having regard to the
   covenants of the lease deed and the attendant facts arid
   circumstances, the transaction was well within the purview of
 G Section 3 (1) (vii) and/or 3 (1) (viii) of the Act 1963 and was
   thus exempted from the applicability thereof and consequently
   the respondent-company was not entitled to any fixity of tenure
   as per the statute. Referring to the objects and reasons of the
 H enactment, the learned senior counsel insisted that the
   applicability of Section 3 (1) (vii) and 3 (1) (viii) thereof has to
 N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.                           637
              LTD. [AMITAVAROY,J.]

be essentially tested on the touchstone of the date of the              A
enforcement of the legislation. As admittedly, there was a
standing rubber plantation on ttie suit land on that date i.e.
01.04.1964, the respondent-company unmistakably had no
sustainable right of fixity of tenure and thus the deductions to
the contrary as recorded in the impugned decisions are                  B
patently non est in law. Mr. Nambiar urged that this issue having
been authoritatively settled by a Constitution Bench of this Court
in Karimbil Kunhikoman vs State of Kerala (1962) Suppl. 1
SCR 829, the decision to the contrary as recorded by the Full
Bench of the Kerala·High Court in Rt., Rev. Jerome Fernandes            C
(supra) is on the face of it per incuriam and consequently the
impugned verdict founded thereon is unsustainable in law and
on facts. The learned senior counsel pleaded, that as the Act
1963, enacted after the Kera la Agrarian Relations Act 1961,
                                                                        0
is one for implementing land reforms in the State, no
interpretation with regard to the applicability thereof ought to
be assigned that would ensue in fragmentation of plantations
existing on the date of the enforceability thereof and thus, the
plantations standing on the suit land, did come within the              E
exemption contemplated under Section 3 (1) (viii). No
exposition of Section 3 of Act 1963, incompatible with the
objects and reasons thereof being permissible in law, the
finding of the non-applicability thereof to the suit land is patently
erroneous, he urged. The learned senior counsel, to endorse             F
this contention, amongst others, placed reliance also on a
subsequent decision of the Full Bench of the Kerala High Court
in Jacob Philip vs State Bank of Travancore, 1972 KLT 914.
Contending that the Act 1963 is prospective in nature, Mr.
 Nambiar emphasised that the text of Section 3 (1) (viii) thereof,      G
clearly expressed the legislative intent of including tenancies
 in respect of plantation exceeding 30 acres existing on the
date of enforcement thereof. In addition, the learned senior
 counsel asserted, that with the expiry of the initial period of
 lease in the year 1954, there was no formal renewal thereof            H
638         SUPREME COURT REPORTS                    [2015] 10 S.C.R.


A     and in terms of Section 116 of the Transfer of Property Act
      1882, the respondent continued in possession of the land by
      holding over, signifying at the best a lease, on year to year
      basis and in that view of the matter, in the face of admitted
      plantation on the suit land, the respondent-company was drawn
 B    within the coils of Section 3 (1) (viii) of the Act 1963 and thus
      was disentitled to claim fixity of tenure. In the alternative, Mr.
      Nambiar insisted that the respondent~company is not a tenant
      in respect of the land after 1954 and thus in any case, is not
      entitled to the protection offixity of tenure under Section 13 (1)
C     of the Act 1963. The learned senior counsel placed on reliance
      as well on the decision of this Court in Malankara Rubber and
      Produce Co. & Ors vs The State of Kerala & Ors. (1972) 2
      sec 492.
 D      9. A contrario sensu, Mr. Singhvi, the learned senior
   counsel for the respondent-company, maintained that as
   neither Section 3 ( 1) (vii) northe Section 3 ( 1) (viii) is attracted
   in the present factual setting, the concurrent findings to this
   effect are assuredly unassailable and thL•s the instant challenge
 E deserves to be dismissed in limine. The learned senior counsel
   insistently urged that as the pleaded case of the appellant in
   the plaint was limited to the existence of private forest at the
   time of lease and that there was no whisper whatsoever of any
 F plantation thereon, the plea based on Section 3 (1) (viii) of Act
    1963 ought not have been entertained by High Court and by
   no means should be taken cognizance of by this Court. Mr.
   Singhvi contended that in the face of the concession on behalf
   of the appellant that neither at the initiation of the lease nor at
 G the enforcement of Act 1963 there did exist a reserve forest or
   the land, Section 3 (1) (vii) was decisively inapplicable. The
   plea founded of Section 3 (1) (viii) relatable to plantation, in
   absence of any pleading to the effect ou~ht to have been
   summarily rejected, he asserted. This is more so as this plea
 H was not raised either before the Trial Court or the Land Tribunal,
 N.K. RAJENDRAMOHAN v. THIRVAMADI RUBBER CO.                           639
              LTD. [AMITAVAROY,J.]

or the First Appellate Court. The decision of the Kera la High         A
Court in Jerome Fernandes (supra) being a determination
clearly answering the issue vis-a-vis Section 3 (1) (viii) of the
Act 1963 and as the ruling of this Court in Karimbil Kunhikoman
(supra) pertains to a distinctively different sphere of scrutiny,
the contention that the former is per incuriam the latter is wholly    B
misplaced, he maintained. According to Mr. Singhvi, the
decision in Karimbil Kunhikoman (supra) dwelt upon the aspect
of discrimination stemming from classification of plantations
under the Kera la Agrarian Relations Act 1961 and is wholly
unrelated to the challenge in Jerome Fernandes (supra). The            C
learned senior counsel urged as well, that the decision of this
court in Malankara Rubber and Produce Co. and Ors supra
being on a different issue does not render the adjudication in
Jerome Fernandes (supra) per incuriam. Mr. Singhvi pleaded
                                                                       0
that having regard to the doctrine of stare decisis, the verdict
in Jerome Fernandes (supra) having held the field, over the
years, the same was rightly applied by the cou.rts below. He
urged that not only the materials on record, do unequivocally
demonstrate that neither the land was a private forest nor did         E
contain any plantation on the date of the lease and thus the
same is beyond the scope of Section 3 (vii) and 3 (viii) of Act
 1963 as has been consistently held by the Trial Court and the
higher forums, and thus this Court in the exercise of its
jurisdiction under Article 136 of Constitution of India would not,     F
even otherwise, lightly dislodge the same. Mr. Singhvi
maintained, that the factum of existence of private forest and
of plantation for the applicability of Section 3 (1) (vii) and 3 (1)
(viii) of the Act 1963 would be assuredly relevant as on the
date of the lease end not on one of the enforcement of the             G
enactment and judged by that benchmark, the suit land is beyond
the said exemption clauses, entitling the respondent-company
to the right of fixity of tenure under the legislation.

     10. In responding to the plea raised on behalf of the             H
640 .       SUPREME COURT REPORTS                    [2015] 10 S.C.R.


A appellant in reply that in any view of the matter, the provisions
  of the Act 1963 pertaining to ceiling on the area of land that
  can be held by the respondent-company would apply, Mr.
  Singhvi maintained that the same at the first place having been
  raised for the first time in this Court, it ought to be readily
B dismissed. Further, as there is a plantation on the suit land on
  the date of enforcement of the Act, it is exempted from ceiling
  as per the Section 81 (1) (e) thereof. In any case, it being an
  issue between State Government and the respondent-
  company, the appellant has no locus standi to even refer
C thereto, the learned senior counsel urged. Mr. Singhvi did argue
  as well, that in the face of Section 72 of the enactment, there
  was no equity in favour of the appellant, he having been reduced
  to a non-entity by the statutory investiture of the landlord's right
  in the Government. The following decisions amongst others
0
  too were referred to.

          N. V. Srinivasa Murthy (2005) 10 SCC 566, K. V.
     Pathumma vs Ta/uk Land Board and Ors (1997) 4 SCC 114,
     State of Kera/a vs K Sarojini Amma and Ors (2003) 8 SCC
 E   526.

          11. We have extended our thoughtful consideration to the
   recorded materials and the competing arguments. Whereas
   the appellant seeks the ouster of the respondent-company from
 F the land involved contending that it is not entitled to the
   protection of fixity of tenure under the Act 1963, the latter pleads
   to the contrary by taking refuge of the enactment, asserting
   that the exemption clauses contained in Section 3 ( 1) (viii) and
   3 ( 1) (viii) are inapplicable to it. A correct exposition of Section
 G 3 (1) (vii) and 3 ( 1) (viii) of Act 1963 would, as a corollary, be of
   definitive significance. Necessarily thus, the instant
   adjudicative exercise, ought to be preceded by an adequate
   reference to the relevant legal provisions.

 H        12. As the flow of events attest, the enactment earliest in
 N.K. RAJENDRAMOHANv. THIRVAMADI RUBBER CO.                            641
              LTD. [AMITAVAROY,J.]

point of time qua the present lis, is the Malabar Tenancy Act A
1929. As the preamble of this statute would reveal, it was one
to define, declare, alter and amend, the law relating to landlord
and tenant in the Gudalur Taluk of the Nilgiris District. Section
2 thereof, which exempted lands from its application being of
relevance is quoted hereunder.                                    B

"2. Exception:

Nothing in this Act shall apply to-

   (1) Lands transferred by a landlord for filling timber or for C
       planting tea, coffee, rubber, cinchona or anv other
       special crop prescribed bv a rule made by the State
       Government or the erection of any building for the
       purpose of or, ancillary to the cultivation of such crop,
                                                                 0
       or the preparation of the same for the market or land
       let only for fugitive cultivation:

       Provided that no rule under this clause shall affect
       any land in respect of which any tenant has a right of
       fixity of tenure under this Act, so long as such right E
       subsists.

   (2) any transaction relating only to the usufruct of trees.

   (3) any building owned by a landlord including a house,             F
       shop or warehous~, f;!nd the site thereof, together with
       the garden or land appurtenant thereto but not
       including a hut belonging to a landlord, in any ulkudi.

   Apart from defining inter alia the expressions "landlord'' and      G
   "tenant", the legislation did confer right of fixity of tenure on
   certain classes of tenants as set outunder Section 21.

    13. A plain reading of Section 2 would authenticate
exclusion of the applicability of the Act 1929 to lands transferred    H
by the landlord for felling timber or for planting tea, coffee,
642         SUPREME COURT REPORTS                     [2015) 10 S.C.R.


A  rubber, cinchona or any other special crop prescribed by a
   rule made by the State Government or the erection of a building
   for the purpose of or ancillary to the cultivation of such crop, or
   the preparation of the same for the market or land let only for
   fugitive cultivation. The proviso of Section 2 (1) clarifies that
 B no rule thereunder would affect any land, in respe,ct of which
   any tenant did have right of fixity of tenure so long as such right
   did subsist. Sub-Sections (2) and (3) being not of relevance
   are not being adverted to ..

 C         14. The legislative backdrop of the Act 1963 portrays, that
      it was amongst. others preceded by the Kerala Agrarian
      Relations Act 1960 (hereinafter referred to as Act 1960) which
      sought to introduce comprehensive land reforms in the State
      of Kerala and did receive the assent of the President on
 D    21.1.1961. The statement of objects and reasons of the
      enactment i.e. Act 1963 disclose that this Court had declared
      unconstitutional the Act 1960 in its application to ryotwari lands
      of Hosdurg and Kasargod Taluks, whereafter eventually the
      Act 1963 was enacted to provide an uniform legislation in the
 E    State, by keeping in view the broad objectives of land reforms
      as laid down by the Planning Commission and the basic
      objectives of the Act 1960. As the scheme of Act 1963 would
      dominantly demonstrate, the statutory endeavour has been to
 F    strike a fair and equitable balance of various interests to be
      impacted thereby so as to facilitate smooth implementation
      thereof, without casting undue financial burden on the State.
      Conferment of fixity of tenure on the tenants as well as the limited
      right of resumption to the landlords are also the noticeable
 G    features of the enactment with the emphasis thatthe right of
      resumption would not be available against tenants, who were
      entitled to fixity of tenure immediately prior to 21.1.1961 under
      the law then in force, unless such tenants had in their
      possession land in excess of the ceiling area. The statement
 H    of objects and reasons do refer to as well, the provisions
.N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.                    643
              LTD. [AMITAVAROY,J.]

pertaining to determination of fair rent at uniform rates and A
purchase of the rights of the landowners and intermediaries of
a holding by the cultivating tenant. The Act 1963 as
contemplated, did provide for imposition of a ceiling on
holdings and constitution of Land Tribunal and Land Board for
the administration of the provisions, with the remedy of appeal/ B
revision from the decisions of this fora. The legislation received
the assent of the President on 31.12.1963 and some of the
provisions thereof which concern the present pursuit were
enforced with effect from 1.4.1964.
                                                                 c
   Sections 2 (44) and 2(47) which define "plantation" and
   "private forest" are extracted hereunder:

       " "Plantation" means any land used by a person
       principally for the cultivation of tea, coffee, cocoa,    D
       rubber. cardamom or cinnamon (hereinafter in this
       clause referred to as 'plantation crops) and includes -

 (a) land used by the said person for any purpose ancillary
     ·to the cultivation of plantation crops or for the E
      preparation of the same for the market;

 (b) land contiguous to, or in the vicinity of, or within the
     boundaries of, the area cultivated with plantation crops,
     not exceeding twenty per cent of the area so cultivated     F
     and reserved by the said person and fit for the
     expansion of .such cultivation;

 (c)   agricultural lands interspersed within the boundaries
       of the area cultivated by the said person with plantation
       crops, not exceeding such extent as may be G
       determined by the Land Board [or the Taluk Land
       Board, as the case may be] as necessary for the
       protection and efficient management of such cultivation.

       Explanation- Lands used for the construction of office    H
644         SUPREME COURT REPORTS                     [2015] 10S.C.R..


A           buildings, godowns, factories, quarters for workmen,
            hospitals, schools and play grounds shall be deemed
            to be lands used for the purposes of sub-clauses (a);

            "private forest" means a forest which is not owned by
 B          the Government, but does not include-

         (i) · areas which are waste and are not enclaves within
               wooded areas;

         (ii) areas which are gardens or nilams;
c
         (iii) areas which are planted with tea, coffee, cocoa, robber,
               cardamom or cinnamon; and

         (iv) other areas which are cultivated with pepper, arecanut,
 o            coconut, cashew or other fruit-bearing trees or are
              cultivated with any other agricultural crop;"

           15. Chapter II of the enactment deals with provisions
      regarding tenancies. Section 3 exempts the transactions, as
 E    referred to therein subject to the stipulations enjoined, from
      the application thereof. Section 3 (1) (vii) and 3 ( 1) (viii) being
      the focal point of scrutiny demand extraction as well;

             3 (vii) leases of private forests:

 F          [Provided that nothing in clauses (i) to (vii) shail apply
            in the cases of persons who were entitled to fixity of
            tenure immediately before the 21•t January, 1961, under
            any law then in force or persons claiming under such
            persons; or]
 G
            3(viii) 'tenancies in respect of plantations exceeding
            thirty acres in extent;

            Provided that the provisions of this Chapter, other than
 H          Sections 53 to shall apply to tenancies in respect of
  N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.                       645
               LTD. [AMITAVAROY,J.]

       agricultural lands which are treated as plantations under A
       sub-clause© of clause (44) of Section 2;

       15.1 Section 13 of the enactment mandates that
· notwithstanding anything contrary to the law, custom, usage or
  contract or any decree or order of Court, every tenant shall B
  have fixity of tenure in respec~ of his holding and no land from
  the holding shall be resumed except as provided in Sections
  14 to 22. Section 72 proclaims that on a date to be notified by
  the Government in the official gazette, all right, title and interest
  of the landowners and intermediaries in respect of holdings C
  held by cultivating tenants (including holders of Kudiyiruppus
  and holders of Karaimas) entitled to fixity of tenure under
  Section 13 and in respect of which certificates of purchase
  under sub-Section (2) Section 59 have not been issued, shall,
  subject to the provisions of that Section, be vested in the D
  Government free from all encumbrances created by the
  landowners and intermediaries and subsisting thereon on the
  said date. Whereas Section 72 B confers cultivating tenants'
  right to assignments, Section 81 as well do cull out exemptions
  from the applicability of Chapter Ill captioned "Restriction on E
  ownership and possession of land in excess of ceiling area
  and disposal of excess lands."

      16. Bar of jurisdiction of Civil Courts to settle, decide or
 deal with any question or to determine any matter which is F
 required by or under the enactment to be decided, dealt with
 or determined by the Land Tribunal or Board Authority or the
 Land Board or Taluk Land Board or the Government or an
 Officer of the Government as contained under Section 125
 and the repeal amongst others of the Malabar Tenancy Act G
 1929 and Kerala Agrarian Relations Act 1960 vide Section
 132 deserve a passing reference to complete the fringe survey
 of the legislative scheme of Act 1963.

      17. The lease deed Exh. A 1, the fundamental instrument        H
646         SUPREME COURT REPORTS                    [2015) 10 S.C.R.


A     having a decisive bearing on the course of the present
      determination next commands attention. It was executed on
      21.6.1918 between the Tarwad of the plaintiffs and Mr.
      Campbell Hunt, featuring an area of land measuring 963- 112
      acres of which 925 acres was fit for cultivation and not subject
 B    to any Government revenue. Thereby, the lessor accorded a
      lease of the said 963- 112 acres of land to the lessee i.e. Mr.
      Campbell Hunt for a period of 36 years on and from 01.4.1918
      on payment of premium of Rs. 693.12 anna calculated at the
      rate of 12 annas per acre of the cultivable portion. that is 925
C     acres. The lease deed evidenced, that pursuant to the payment
      of premium of Rs. 693.12 annas, the lessor, his heirs,
      successors, legal representatives and assigns did lease unto
      the lessee, his heirs, successors, legal representatives and
 D    assigns, the property for a period of 36 years. The land involved
      was delineated in the appended plan along with 25 hills, water
      channels, poyils lands etc. totaling 963- y,acres of which 925
      acres were alone fit for cultivation for the purpose of plantation
      and cultivation with a right to cultivate coffee. tea. pepper.
 E    cinchona, rubber and any other produce which the lessee would
      think fit and proper to cultivate, with full right of access to the
      premises, with all ways, watercourse, privileges, easements,
      advantages and other appurtenances therewith and to cut, till
      and remove all forests, jungles and trees for the purpose of
 F    planting and cultivating without any let or interruption from the
      lessor.

          18. The lease deed, reading between the lines, would
   demonstrate irrefutably, that at the time of execution thereof,
 G neither a private forest nor a plantation as defined in Section
   2 (44)/2 (47) of the Act 1963 did exist on the demised land.
   The lease which was for a period of 36 years w.e.f. 01.4.1918,
   encompassed land ad measuring 963· 112 acres which included
   hills, water channels, poyils lands etc so much so that only 925
 H acres were comprehended to be fit for cultivation and the
 N.K. RAJENDRAMOr IAN·:. Tfi,,1VAMADI RUBBER CO.                  647
              LTD. [AMITAVAROY,J.]

lessee was left at liberty to raise coffee, tea, pepper, cinchona, A
rubber or any other produce at the latter's discretion. It is
apparent as well on the face of the lease deed, that there were
forests, jungles and trees on the land which the lessee was
authorized to clear for the purpose of plantation and cultivation,
to be decided by him. There was thus no restriction or B
regulation on the nature of cultivation/plantation to be resorted
to by the lessee on the cultivable portion of the land leased
out. To reiterate, on the date of creation of the lease there was
neither any plantation nor a private forest on the leasehold land
within the meaning of Section 2 (44) and 2 (47) of Act 1963 C
respectively.

     19. Significantly, the above notwithstanding, in the plaint,
the plaintiffs while acknowledging the rubber plantation on the
suit land raised by the respondent-company, the assignee/ D
transferee, in possession in place of the original lessee, did
assert that from prior to the initiation of the lease in the year
1918, there was a private forest on the suit land. They
contended, to reiterate, that as the lease period had expired
after 36 years, the company had no right to retain the E
possession of the suit land and claim fixity of tenure. Noticeably
however, the plaintiffs complained of non-payment of lease rent
at the rate of 693.75 paisa per annum by the respondent-
company from the year 1979 for which a decree for arrear rent F
was also prayed for. Axiomatically thus, the plaintiffs
acknowledged and approved the possession of the leasehold
land by the respondent-company even after the expiry of the
period of lease in 1954 and did receive the annual rent at the
same rate, even on their admission up to the year 1978. In G
course of the arguments before this Court, however, the learned
senior counsel for the appellant has not pursued the plea based
on private forest and has confined the assailment qua
"plantation" as per clause 3 (1) (viii) of Act 1963. The parties
 are also not at issue that on the date of the lease, no plantation H
648        SUPREME COURT REPORTS                  [2015] 10 S.C.R.


A  as defined in Section 2 (44) did exist on the demised land.
   The plaint, to reiterate does not refer to such plantation on the
   date of the lease, as well. In that view of the matter, the
   appellant's plea based on Section 3 (1) (viii) lacks foundation
   in the plaint and in the strict sense of the term as the debate
 B has its genesis in a suit. ought not to have been entertained by
   the High Court. This is more so, as the records substantiate
   that the contention based on "plantation" was raised for the
   first time before that forum .
            .. ,.,,-
 C      20. The remonstrance based on cessation of the lease
   on the expiry of 36 years also does not commend for
   acceptance in the face of unreserved acceptance of lease rent
   at the earlier rate of Rs. 693. 75 paisa admittedly till the year
   1978. The assertion that in any view of the matter, as the
 D respondent-company in terms of Section 116 of the Transfer
   of Property Act 1882, ought to be construed to be the lessee,
   holding over the demised land on payment of rent and that the
   lease stood renewed from year to year and that accordingly
   on the date of the institution of the suit there was a subsisting
 E tenancy in respect of plantation exceeding 30 acres cannot
   be sustained as well. Though admittedly, at the institution of
   the suit, the rubber plantation of the respondent-company did
   exist on the land, in the teeth of Section 116 of the Transfer of
 F Property Act 1882, which comprehends renewal of the expired
   lease, year after year or month after month it is essentially qua
   the purpose for which the property had been originally leased
   which in the instant case is traceable to the year 1918. As the
   lease deed dated 21.6.1918 proclaims in no uncertain terms
 G that the transaction evidenced thereby was by no means a
   tenancy in respect of plantation, the same with efflux of time, in
   our estimate cannot transfigure into the same merely because
   a plantation has been raised on the leasehold land in between
   by the lessee who had been left at its discretion to grow the
 H same. In absence of a conscious intervention of the parties to
  N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.                        649
               LTD. [AMITAVAROY,J.]

  the lease, either to·convert it into one for tenancy in respect of A
  such plantation ad idem or to extend it thereto, an automatic
  transformation of the lease not for plantation cannot stand
  converted into on·e for plantation. As a transaction of this kind
  involving immovable property is essentially governed by the
  terms and conditions concurred upon by the parties thereto, B
. no unilateral alteration or modification thereof, unless agreed
  to by both, in categorical terms, ought to be permitted to be
  pleaded or enforced by anyone of them to the disadvantage
  of the other. Neither the lease deed contains any stipulation
  sanctioning such unilateral alteration of the stipulations C
  contained therein nor do the materials on record testify such
  consensus based modification of the lease covenants. A plain
  perusal of the Section 116 of the Transfer of Property Act 1882
  also does endorse this deduction.
                                                                     D
       21. This conclusion of ours is founded amongst others on
  the enunciations of the Federal Court in Kai Khushroo Bezonjee
  Capadia Vs Bai Jerbai HirjibhoyWarden &Anr 1949-50 FCR
  262 and referred to and relied upon by this Court in Bhawanji
  Lakhamshi & Ors Vs Himatlal Jamnadas Dani and Ors (1972) E
  1 SCC 388 and State of UP Vs Jahoor Ahmad and Anr AIR
  1973 SC 2520, dwelling on the question of tlie nature of the
  tenancy created under Section 116 of the Transfer of Property
  Act 1882.

      21.1 Further, this cavil having been expressed before this
 Court for the first time, we are not inclined to sustain the same,
 on that count as well.

      22. In the factual conspectus unfolded hereinabove, the G
 issue of the applicability of Act 1963 to the lease of private
 forests and tenancies in respect of plantations exceeding 30
 acres not in existence as on 21.6.1918, but standing/present
 on the date of its enforcement deserves to be addressed. This
 indeed is of decisive bearing and would assuredly involve a H
650        SUPREME COURT REPORTS                   [2015) 10 S.C.R.


A dialectical interpretation of Section 3 (1) (vii) and 3 (1) (viii) of
  Act 1963 to discern the true purport thereof as legislatively
  intended. In view of the abandonment of th~ plea based on
  private forests, in course of the arguments, as noted
  hereinabove, it is inessential thus too dilate on the scope of
B Section 3 (vi~. .

       22.1 As alluded hereinbefore, tenancies in respect of
  plantations exceeding 30 acres in extent have been exempted
  from the purview oftheActvide Section 3 (1) (viii). That on the
C date of the execution of the lease deed i.e. 21.6.1918 there
  was no plantation on the leasehold land, is an admitted fact.
  Such plantation as defined in Section 2 (44) of the Act 1963
  however did exist on the date on which the enactment was
  brought into force i.e. 1.4.1964. To clinch the issue in favour of
D the appellant, reliance has been placed on the ruling of the
  Constitution Bench of this Court, in Karimbil Kunhikoman
  (supra) purportedly buttressed by the Malankara Rubber and
  Produce Company and Ors etc. supra, Per contra, the verdict
  of a Full Bench of the Kerala High Court in Jerome Fernandes
E supra has been pressed into service on behalf of the
  respondent-company.

        23. In Karimbil Kunhikoman (supra), a Constitution Bench
   of this Court was seized with the impugnment of the vires of
 F the Kerala Agrarian Relations Act 1960 (for short Act 1960)
   on the following counts to be violative of Articles 14, 19 and 31
   of the Constitution of India.
        1. The Bill which became the Act had lapsed before it
 G         was assented to by the President and therefore the
           assent of the President to a lapsed bill was of no avail
           to turn it into law.

        2. The Act is a piece of colourable legislation as it has
 H         made certain deductions from the compensation
 N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO.                   651
              LTD. [AMITAVAROY,J.]

      payable to landholders under Chap. II and to others A
      who held excess land under Chap. Ill and this amounts
      to acquisition of money by the State which it is not
      competent to do under the power conferred on it in Lists
      II and Ill of the Seventh Schedule to the Constitution.
                                                                 B
   3. The properties of the petitioners who are ryotwari
      pattadars are not estates within the meaning ofArt. 31
      A of the Constitution and therefore the Act is not
      protected under that Article so far as it applies to lands
      of ryotwari pattadars like the petitioners.                c
   4. The Act exempts plantation of tea, coffee, rubber and
      cardamom from certain provisions thereof, but no such
      exemption has been granted to plantations of areca
      and pepper, and this is clearly discriminatory and is     D
      violative of Art. 14.

   5. The manner in which ceiling is fix.,ed under the Act
      results in discrimination and is therefore violative of
      Art 14.                                                 E
   6. The compensation which is payable under Chapters
      II and ff/ of the Act has been reduced by progressive
      cuts as the amount of compensation increases and
      this amounts to discrimination between persons
                                                               F
      similarly situate and is therefore violative of Art. 14.

     24. While repelling the impeachment of the statute qua
the grounds enumerated in serial No. 1 and 2 as above, it was
ruled that the lands held by the ryotwari pattadars as referred
to therein and which had come to the State of Kera la by virtue G
of the States Re-organisation Act 1956 from the State of Madras
were not estates within the meaning of Article 31 A (2) (a) of
the Constitution and therefore the legislation under attack was
not protected from the assailment under Articles 14, 19 and H
652         SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A     31. Vis-a-vis the discord that the Act 1960 did effect a
      discrimination between areca and pepper plantations on one
      hand and certain other plantations on the other by not including
      these (areca and pepper plantations) in the definition of
      "plantation" provided by Section 2 (39) thereof, by totally
 B    disregarding the existing large number of areca and pepper
      plantations as comparable to tea and coffee and rubber
      plantations, this court sustained the same and being of the
      view that as the provisions relating to plantation contained in
      the assailed legislation were inseverable, adjudged the
C     legislation as a whole to be unconstitutional. In concluding thus,
      this Court did explore the reasons impelling the legislature to
      treat these two categories of plantations as class different and
      observed that the objective of land reforms, including
      imposition of ceiling on land holdings as manifested by the ·
 0
      statute under scrutiny, was to remove impediments arising from
      the agrarian structure inherited from the past, in order to
      increase agricultural production and create conditions, for
      evolving as speedily as possible an agrarian economy with a
 E    high level of efficiency and productivity as was underlined in
      the Second Five Year Plan. That thereunder, it was recognized
      that some exemptions would have to be granted from the
      ~iling, to ensure that the productions may not suffer, was taken
      note of as well. While referring to the Third Five Year Plan,
 F    dealing with land reforms and ceiling on agricultural holdings,
      this Court on an audit of the materials available, concluded
      that there was no appreciable difference between the
      economics of tea, coffee and rubber plantations and areca
      and pepper plantations so as to justify the differential treatment.
 G    The report of the concerned committee, that if areca gardens
      were brought under the ceiling, it.would hamper production
      and would be against national economy and that it had
      recommended to the Planning Commission, the Central
      Government and the State Government that at par with tea,
 H    coffee and rubber plantations, orchards, areca nut gardens
  N.K. RAJENDRAMOHAN v:THIRVAMADI RUBBER CO.                       653
               LTD. [AMITAVAROY,J.]

should also be similarly exempted from ceiling and that the        A
result of the application of the ceiling and other provisions of
Act 1960 would occasion breakup of the plantations with a
likely result in fall in production, was also noted. While
concluding that the same considerations as extended to tea,
coffee and rubber plantations, were available as well to areca     B
and pepper plantations, the omission of the respondent State,
to set out adequate justification for exclusion of pepper and
areca nut from the benefit of exemption granted to tea, coffee
and rubber plantation was recorded. Adverting to the object
and purpose of the Act 1960, and the basis on which exemption      C
was granted thereunder to the plantations as defined thereby,
it was held that there was no reason for making any distinction
between tea, coffee and rubber plantations on one hand and
areca and pepper plantations on the other, in the facts of the
                                                                   0
case. The contentions listed in serial No. 5 and 6 though,
beyond the framework of the instant inquisition, suffice it to
state, were answered in the affirmative in favour of the
appellant.

       25. This pronouncement, though had taken note of the E
  recommendations of the Planning Commission against
  disintegration of plantations as a measure of land reforms in
  the State and to promote national economy, it was in the context
. of evaluation of the plea of discrimination between the existing F
  plantations vying for equal treatment for exemption. The issue
  which seeks adjudication in the present appeal did not fall for
  scrutiny in this decision and therefore, we are of the
  comprehension that it does not advance the case of the
  appellant.                                                       G

     26. The assertion on behalf of the appellant that the
 decision in Karimbil Kunhikoman (supra) does essentially
 enjoin, that under all circumstances, tenancies in respect of
 plantation as contemplated in Section 3 (1) (viii), as existing   H
654         SUPREME COURT REPORTS                   [2015) 10 S.C.R.


A     on the date of the commencement of the Act, would stand
      exempted from the purview thereof, irrespective of whether or
      not such the plantation did exist on the date of the lease, cannot
      be countenanced. Not only this pronouncement is not an
      authority on this proposition, having regard to the scope of the
 B    analysis undertaken therein as well as issues addressed, it
      would be wholly inferential to draw this conclusion only on the
      basis of the recommendations of the Planning Commission
      against disintegration of plantations as a measure of
      economic policy. Such a presumptive approach according to
C     1:1s would not a _safe and expedient guide for the interpretation
      required.

       27. The constitutionality of the Kera la Land Reforms Act
  1963 (also referred to as Act 1963) as amended (inter alia by
D Act 1964) was questioned in Malankara Rubber and Produce
  Co. & Ors (supra) on the grounds that (i) Chapter Ill thereof
  was not aimed exclusively at agrarian reform and was thus not
  saved by Article 31 A. (ii), it was violative of Article 14 due to
E d_eletion of clause (a) and{g) of Section 81 (1) caused by the
  amendment of Act 1969 thereby withdrawing the exemption
  extended to cashew estates, pepper gardens and areca
  gardens of the areas as mentioned therein.(iii) lands which
  were not then under rubber plantation but had been set apart
F for expansion of existing plantations or were likely to be taken
  up therefor in future could not be acquired and diverted to other
  purposes as the rubber industry had been declared to be one
  of national importance vide Rubber Act of 1947.

      28. Following an exhaustive reference to the decision in
G Karimbil Kunhikoman (supra), it was held that the petitioners
  had failed to demonstrate that their lands were not estates
  and thus were beyond the purview of the Kerala Land Reforms
  Act 1964 as amended in 1969. It was declared as well, that
H the provisions of the 1964 Act were immune from challenge
  under Article 31 Aby reason of its inclusion in the Ninth Schedule
 N.K. RAJENDRAMOHAN v. THIRV.l\MADI RUBBER CO.                      655
              LTD. [AMITAVAROY,J.]

of the Constitution. It was held that the reduction of ceiling limit A
by the amending Act 1969 did not attract the operation of the
second proviso to Article 31 A( 1). It was propou.nded thatthe
provisions of the Act 1963 withdrawing protection to pepper
anq areca plantations could not be challenged under Article
 14, ifthe lands were estates within the meaning of Article 31 A B
(2) (a). That forest and jungles would be exempted from the
operation of the Act was underlined as well. It would be patent
from the contextual text of this decision that the questions
posed and the contours of the judicial survey were distinctively
different from those in hand and thus is of no avail to the C
appellant.

      29. A Full Bench of the Kerala High Court in Jerome
Fernandes (supra) however encountered the same issue qua
Section 3 (1) (viii) of Act 1963 in an identical fact situation. D
The appellant therein, had filed a suit for recovery of possession
of the scheduled property with arrears of rent and mesne profits.
The suit land had been leased out to the predecessor in interest
of the respondent-company therein, which eventually under an
assignment stepped into the position of the original lessee. E
As on the expiry of the lease, the respondent-company did not
surrender possession of the land, the suit was instituted. The
respondent-company pleaded fixity of tenure in respect of the
holding under the Act 1963. The lower forums concurrently held F
that the respondent-company was entitled to the benefit of fixity
of tenure under Section 13 of Act 1963 as the transaction of
lease did not attract the exemptions under Chapter II of the
statute. The query that fell for scrutiny, was whether the
transaction of lease did entitle the respondent-company to the G
fixity of tenure. That it was a tenant in terms of Section 2 (57)
of the Act 1963 was admittedly beyond doubt. Referring to
Section 3 (1) of the statute, which listed the categories of
transactions exempted from the purview thereof, the High Court
while noticing that the leasehold property had been described H
656         SUPREME COURT REPORTS                    [2015] 10 S ..C.R.


A     in the lease deed as consisting of garden land, and wet lands,
      negated the appellant's contention based on clause (iii). Qua
      clause (viii), the High Court examined the definition of the word
      "plantation" provided in Section 2 (44) and entered a finding,
      that undoubtedly on the date of the execution of the lease deed,
B     the land covered thereby had not been put to any use as
      expressly mentioned in the definition. Responding to the plea
      of the appellant, that the determinative factor for the
      applicability of clause (viii) was the character of the land or the
      use thereof at the commencement of the Act, the High Court
C     on a comparison of the text amongst others of clause (v) and
      (ix) of Section 3 (1) and Section 2 of the Malabar Tenancy Act
      1929 dealing with exemption and Section 3 (1) (viii), of the
      Kerala Agrarian Relations Act 1960 enunciated that the
D     legislature did consciously, as a matter of policy, in relation to
      the grant of exemption for plantations, restrict the scope thereof.
      The High Court in categorical terms referred to the language
      used in Section 3 (1) (viii) and the definition of the expression
      "plantation" in both the statutes, and was of the view that the
E     object behind the constricted sweep of "plantation", was to
      confine the scope of exemption from the applicability of the
      Act. The High Court entertained the notion, that the legislature
      had construed it to be unfair and improper to deny the benefit
      of the fixity of tenure to a lessee who might have taken the
 F    lease of extensive parambos or waste lands and in course of
      time by hard toil had developed those into plantations. That
      under the provisions of the Malabar Tenancy Act 1929, such a
      tenant was entitled to fixity of tenure, unless the lease had been
      one granted specifically for the purpose of raising plantation
G     as mentioned therein was also emphasised. The High Court
      thus rejected the appellant's plea based on Section 3 (1) (viii)
      and held that in view of the clues furnished by the statutory
      history preceding the legislation involved, and also the express
      language used in Section 3 (1), the lease transaction was
 H    beyond the ambitthereof. It held as welllhat ifthe interpretation
  N.K. RAJENDRAMOHAN v. THIRVAMADI RUBBER CO.                         657
               LTD. [AMITAVAROY,J.]

of Section 3 ( 1) (viii) as sought to be projected by the appellant   A
was accepted, it would divest the tenants of their pre-existing
right of fixity under the Malabar Tenancy Act 1929 was
underlined as well.

      30. Another Full Bench of the Kerala High Court, B
comprising amongst others of Hon'ble Mr. Justice T. C.
Raghavan C.J., as the common member, in Jacob Philip
(supra) also had the occasion to examine the aspect of the
fixity of tenure under Section 13 of the Act 1963. A lease of
land, covered by Section 3 (1) (i) was involved in a suit instituted C
against the appellant therein. It was contended on behalf of
the appellant, that this exemption provision ought to be applied
qua the point of time, when the lease was granted and not at
the commencement of the Act or of any subsequent date, as
on the date of the execution of the lease neither the Government D
nor any corporation owned or controlled by the Government
was in the picture. The attention of the High Court was drawn
amongst others to the decision in Jerome Fernandes (supra).
On an analysis of the contents of the Section 3 (1) (i), the High E
Court negatived this plea. Drawing sustenance from the text
of the Explanations appended to the clause, it returned a finding
thatthe requirements under Section 3 (1) (i) would be satisfied,
even if the leased land happened to belong to or become
vested in the Government or a corporation under or controlled F
by the Government etc, subsequent to the grant of the lease.

     31. The rendering in Jacob Philip (supra) turns on its own
facts and by no means, in our opinion neuters the determination
made in Jerome Fernandes (supra). Jacob Phiiip (supra) G
proceeded on an interpretation of Section 3 (1) (i).of Act 1963
which is distinctively different in language and content from
Section 3 (1) (viii) and no analogy, therefore, can be drawn to
make it applicable to the case in hand. In our considered
opinion, the decision of the Full Bench, in Jerome Fernandes H
658         SUPREME COURT REPORTS                    [2015] 1OS.C.R.


A     (supra), having regard to the scheme of Act 1963 with particular
      reference to Chapter II and Section 3 (1) (viii) thereof, correctly
      states the law on the issue. We endorse the view taken in
      Jerome Fernandes (supra) on the applicability or otherwise of
      Section 3 ( 1) (viii) to the leasehold land of the present appeal.
 B
            32. Noticeably, the respondent-company in its written
      statement had pleaded that the lease created by the deed
      dated 26.6.1918 was an agricu.ltural tenancy entitling the lessee
      to fixity of tenure under the Malabar Tenancy Act 1929 and that
C     the same benefit stood extended under the Act 1963. The
      learned Trial Court while dismissing the suit, recorded as well
      the finding of the Land Tribunal, following an inquiry, that the
      respondent-company was entitled to fixity of tenure in respect
      of the leasehold land both under the Malabar Tenancy Act 1929
 D    (as amended) and the Act 1963. This finding was upheld upon
      by the First Appellate Court and not dislodged by the High
      Court. We notice as well that Section 2 of the Malabar Tenancy
      Act 1929 has no application to the facts a;-id circumstances of
      the case, so as to warrant exemption from the applicability
 E    thereof.

         33. As determined hereinbefore, the respondent-company,
  continued as a lessee by holding over after 1954 and the lease
  rent a+. the agreed rate fixed at the first instance was paid till
F 1978 as admitted by the appellant. The Act 1963 had come·
  into force prior thereto. As neither Section 3 (1) (vii) nor 3 (1)
  (viii) is applicable to the plantation involved, the respondent-
  company is entitled to fixity oftenure under Section 13 thereof.
  To reiterate, Section 116 of the Transfer of Property Act, 1882
G even if applicable, the lease originally entered into would not
  get transformed with time into one of tenancy in respect of
  plantation as defined in Section 2 (L\4) of Act 1963, in absence
  of any overt act of the parties, intending the same on agreed
H upon terms.
 N.K. RAJENDRAMOHANv. THIRVAMADI RUBBER CO.                       659
              LTD. [AMITAVAROY,J.]

     34. The consequences of the applicability of the Act, vis- A
a-vis the plantation need not detain us, as the same would be
regulated by the provisions of the statute and as rightly
asserted on behalf of the respondent-company, the course to
follow would witness the State and the tenant as the parties
thereto. With the enforcement of the Act 1963, the appellant B
would be left with no role in that regard.

    35. On a totality of the consideration of all aspects, factual
and legal as detailed hereinabove, we are of the unhesitant
opinion that no interference with the findings recorded by the C
forums below is called for. The appeal lacks in merit and is
thus dismissed.

     36. No Costs.
                                                                  D
Nidhi Jain                                    Appeal dismissed: