[Kerala Land Reforms Act] Legal Fiction Of Section 7E Deems Purchasers As 'Tenants', Not 'Cultivating Tenants': High Court

The Kerala High Court on Thursday observed that the legal fiction created by Section 7E of the Kerala Land Reforms Act, 1963 (KLR Act) makes the purchaser a tenant, and the term 'tenant' has a wider definition, which includes a deemed tenant.

Justice T.R Ravi added that the Section starts with a non-obstante clause, which means it prevails over any other provision in the Act.

"As per Section 7E, the fiction created is to deem a purchaser as a tenant. The purchase can be of land of any nature. There is no requirement that the land should be paddy land where cultivation is being carried out. The fiction does not create a “cultivating tenant” as sought to be contended by the respondents based on the Certificate of Title."

The case involved two writ petitions concerning the rights of deemed tenants under Section 7E KLR Act.

The petitioners (deemed tenants) were planning to start commercial activities on their respective lands. To proceed with their plans, they required a survey plan countersigned by the Tahsildar to apply for a letter of intent for starting mining operations on the property. However, the authorities refused to provide it without prior government permission for commercial activity.

Advocates Alex M Scaria, V. Usha Nandini, A.J Riyas, Saritha Thomas and Alen J Cheruvil for the petitioners argued that Section 7E does not limit the use of land to cultivation and includes commercial and industrial tenancies. They submitted that as the transferees contemplated in Section 7E are deemed tenants, by issuing the Certificate of Title, the statute recognises such deemed tenants as the owners of the property.

Government Pleader Aswin Sethumadhavan submitted a counter-affidavit acknowledging the exemption under Section 7E. However, it was contended that the certificates of title treated the petitioners as cultivating tenants, which implies that they were not entitled to put the land to any other use.

The petitioners asserted that their interpretation of Section 7E was correct and that the authorities do not have the jurisdiction to decide on mining activities, which falls under the purview of the Central Government's MMDR Act. Thus the dispute in the case was regarding the rights available to a deemed tenant under Section 7E of the KLR Act.

The Court examined the purpose of Section 7E, which exempts certain lands from the ceiling provisions and validates transfers. It was noted that the purpose of the amendment to Section 7E was to protect smallholders and cultivating tenants who acquired lands through registered documents from those holding excess land.

Section 7E is an exemption validating certain transfers and deems purchasers as tenants, regardless of the nature of the land. 

It clarifies that the use of the term "cultivating tenant" in Form 26B is deemed to be a mistake, as it is not supported by the wording of Sections 7E, 84(4),106B and Rule 122A. The correct interpretation was that the term "tenant" includes deemed tenants, irrespective of whether they are cultivating the land or not.

Court said the use of "cultivating tenant" was a mistake and should not be relied upon to restrict the scope of Section 7E, as clarified in a previous decision in State of Kerala v. Fr.Xavier Karuvallil & Ors.

Justice Ravi also added that revenue authorities cannot deny survey plans or revenue certificates to landholders for the purpose of filing an application for a letter of intent under the MMDR Act, as it is their right to obtain such records on payment of the requisite fee.

"A survey plan is only a revenue record issued for the purpose of identifying the land belonging to the applicant and does not serve any other purpose. The respondents are not entitled to thwart even the filing of an application for a letter of intent by refusing to grant the revenue certificates or survey plans. A landholder is entitled to be issued with such records on payment of the requisite fee. The revenue authorities cannot arrogate to themselves the powers vested in the authorities under the MMDR Act."

The Court thus quashed the authorities' refusals to issue the survey plans. It directed the Tahsildar to provide countersigned survey plans within one month to enable the petitioners to proceed with their applications for mining operations.

However, the court clarified that its decision does not determine whether mining was permissible on the lands, as this was to be decided by the appropriate authorities in accordance with the law.

As such, the petitions were allowed. 

Case Title: Diamond Crushers v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 347

Click Here To Read/Download The Order