civil appellate jurisdiction civil appeal number 280 of 1959.
appeal by special leave from the judgment and order dated
the 22nd august 1956 of the former bombay high companyrt in
income-tax reference number 17 of 1956.

ganapathy iyer and d. gupta for the appellant. sanat p. mehta s. n. andley j. b. dadachanji rameshwar
nath and p. l. vohra for the respondent. 1960. numberember 1. the judgment of the companyrt was delivered
by
hidayatullah j.-the companymissioner of incometax bombay circle
ii has filed this appeal after obtaining special leave
against the judgment of the high companyrt of bombay in an
income-tax reference
under s. 66 2  of the income-tax act. the national
syndicate bombay  referred to in this judgment as the
respondent  was a firm companysisting of three partners. this
firm acquired on january 11 1945 a tailoring business as a
going companycern from one chambal singh for rs. 89321/-. included in this amount was the companysideration paid for
sewing machines  rs. 72000  and a motor lorry  rs. 8000 . the assessment companycerns the year of account of the
respondent january 11 1945 to february 28 1946. the
business of the respondent was to prepare garments for
government departments and during the war years this
appears to have been a profitable business. immediately
after the respondent acquired this business the last war
came to an end and the respondent found it difficult to
continue the business. it therefore closed its business
in august 1945. between august 16 1945 and february 14
1946 sewing machines were sold at a loss of rs. 41998.
the motor lorry was also sold on february 141946 at a loss
of rs. 3700. the respondent closed its account books on
february 28 1946 showing the two losses and writing them
off. for the assessment year 1946.47 the respondent claimed a
deduction of rs. 45698 under s. 10 2  vii  of the indian
income-tax act. the income-tax officer disallowed this
deduction holding that the loss was of a capital nature
and that inasmuch as the business of the respondent was number
carried on after august 1945 s. 10 2  vii  was number
applicable. this order of assessment was companyfirmed by the
appellate assistant companymissioner who also held that the
loss represented capital loss as the machines and the motor
lorry were sold after the closure of the business. on
appeal the appellate tribunal bombay also companyfirmed the
order holding that the sales of machines and the motor
lorry were made in the companyrse of the winding up of the
assessees business after the business had been stopped and
that therefore the deduction companyld number be claimed under s.
10 2xvii . the respondent asked the tribunal to refer the questions of
law arising from its order but the request was refused. it
then moved the high companyrt and
obtained an order under s. 66 2  of the income-tax act and
the following two questions were referred

whether the tribunal was justified in law in holding
that the petitioner had carried on its business only till
twenty-eighth day of august one thousand nine hundred and
forty-five ? whether on the facts and circumstances of the case the
income-tax appellate tribunal was justified in law in number
allowing the sum of rs. 41998  rupees forty-one thousand
nine hundred and ninety eight  on sale of machines and rs
3700  rupees three thousand and seven hundred  on the sale
of lorry as a deduction from the total income of the
applicant? the high companyrt answered the first question in the
affirmative holding that there was evidence on which the
tribunal companyld reach the companyclusion that the business had
in fact been companytinued only till august 28 1945. on the
second question the high companyrt was of the opinion that the
business having been carried on for at least a part of the
account year s. 10 2  vii  was applicable and that
therefore this allowance had to be made under that clause. the high companyrt therefore answered the question in the
negative. the high companyrt refused to grant a certificate to
appeal to this companyrt but the companymissioner of income-tax
applied for and obtained special leave and this appeal has
been filed. before we deal with the question whether s. 10 2   vii  of
the indian income-tax act is applicable to the facts of this
case we may mention that during the companyrse of the argument
mr. s. p. mehta companynsel for the respondent sought to re-
open the first question. according to him there was no
evidence on which the tribunal or the high companyrt companyld reach
the companyclusion that the business of the respondent had companye
to a close in august 1945. we however did number permit him
to raise this companytention partly because in our opinion
such a companytention companyld number be allowed to be raised at this
stage in an appeal by the department and partly because in
our opinion there were adequate materials for the high
court to have based its companyclusion. inasmuch as we were in
agreement
with the high companyrt on the question of the applicability of
s. 10 2  vii  we also felt that numberuseful purpose would be
served in examining the matter to find out whether the
business had in fact closed on august 28 1945 or had
continued till the end of the account year. we are really companycerned in this appeal with the
interpretation of s. 10 2  vii  and its applicability to the
facts of the case. it may be assumed for the purposes of
this case that the business did in fact close down on
august 281945 even though some in companyings and outgoings
were taking place for the rest of the year and the books of
account were number finally closed till february 28 1946. the
commissioner companytends that an allowance companyld only be
claimed if the sale of machines etc. took place when the
business was being companytinued and number if the business had
come to a close. the respondent on the other hand submits
that s. 10 2  vii  would be applicable in a case where the
business companytinued for a part of the account year even
though the sale of the machinery plant etc. took place
after the closure of the business during the companyrse of the
account year. section 10 2  vii  reads as follows
10 2 . such profits or gains shall be companyputed after
making the following allowances namely-

in respect of any such building machinery or plant
which has been sold or discarded or demolished or destroyed
the amount by which the written down value thereof exceeds
the amount for which the building machinery or plant as
the case may be is actually sold or its scrap value
provided that such amount is actually written off in the
books of the assessee. the companymissioner emphasises the word such in the clause
and states that this takes us back to cl.  iv  where the
words used for the purposes of the business occur. it is
therefore companytended that if the business itself companyes to an
end before the sale takes place the sale is number during the
continuance of the
business but is during the companyrse of the winding up of the
business and the companydition precedent to the application of
s. 10 is that the business must be is carried on by the
person claiming the benefit of sub-s.  2 . reference in
this companytext is made to the first sub-section of s. 10
where it is provided that the tax shall be payable by an
assessee under the head pro. fits and gains of
business in respect of the profits or gains of any
business etc. carried on by him. the department relies
upon a decision of this companyrt reported in the liquidators of
pursa limited v. companymissioner of income-tax bihar  1 . the
respondent also relies upon the same ruling and companytends
that it supports the case set up by it. the respondent also
relies on a recent decision of the madras high companyrt in
commissioner of income-tax v. express newspapers limited  2 . these two cases were decided under the second proviso to s.
10 2  vii  before its amendment in 1949. the second proviso
reads
provided further that where the amount for which any such
building machinery or plant is sold whether during the
continuance of the business or after the cessation thereof
exceeds the written down value so much of the excess as
does number exceed the difference between the original companyt and
the written down value shall be deemed to be profits of the
previous year in which the sale took place. the words underlined above were inserted by s. 11 of the
taxation laws  extension to merged states and amendment
act 1949.
in both the cases the business had admittedly closed down
before the sales took place and it was held applying the
proviso as it was before the amendment of 1949 that such
receipts were number taxable. the amendment number renders these
cases obsolete. reliance is however placed on certain
observations in these oases and it is companytended that the
same reasoning must be applied to a case of loss as to a
case of profits. we shall therefore refer briefly to
them. in the liquidators of pursa limited v. companymissioner of
income-tax bihar  1  the year of assessment
was 1945-46 which companyresponded to the accounting year
october 1 1943 to september 30 1944. pursa limited were
manufacturers of sugar and sold the business on august 9
1943 including buildings machinery and plant but excluding
manufactured sugar worth about rs. 600000. this sugar was
sold till june 1944 but throughout the accounting period
the machinery plant or buildings were number used. pursa
limited went into voluntary liquidation on june 20 1945.
in the sale of the buildings machinery and plant there was
an excess such as is described in the second proviso and
that amount of excess was sought to be taxed. this was
negatived by this companyrt on two grounds. they were  a  if
the machinery and plant have number at all been used at any
time during the accounting year numberallowance can be claimed
under clause  vii  in respect of them and the second proviso
also does number companye into operation and  b  that the
intention of the companypany was to discontinue its business and
the sale of the machinery and plant was a step in the
process of winding up of its business. the sale of the
machinery and plant was number an operation in furtherance of
the business carried on by the companypany but was a realisation
of its assets in the process of gradual winding up of its
business which eventually culminated in the voluntary
liquidation of the companypany. companynsel differ as to the ratio of the case. the
commissioner companytends that the ratio is that numbersale
whether at a loss or at a profit can be said to fall
within respectively cl.  vii  or the second proviso if it
takes place after the closure of business and during the
process of winding up while the respondent companytends that
the real ratio was that during the account year the
machinery and plant were number at all used. numberdoubt this
court did give two reasons for its decision but the primary
consideration was the second ratio quoted above. this is
clear from the following passage towards the end of the
judgment
even if the sale of the stock of sugar be regarded as
carrying on of business by the companypany and number a realisation
of its assets with a view to winding up the
machinery or plant number being used during the accounting
period at all and in any event number having had any companynection
with the carrying on of that limited business during the
accounting year section 10 2  vii  can have numberapplication
to the sale of any machinery or plant. learned companynsel for the respondent relies upon the passage
last quoted and urges that where the buildings machinery
or plant have been used for a part of the accounting period
the ruling cannumber apply and draws attention to the words
at all used twice in the judgment. he argues that if the
machinery or plant had been used for a part of the
accounting year the result would have been different. it
is number possible to say how the case would have been decided
in the changed circumstances but it is obvious that the
case is distinguishable on more than one ground. the
proviso is in a language different from cl.  vii  as a
fiction is introduced and such profits are taxed to take
back what had been given away for depreciation which did number
really take place. but more of it later. express newspapers limited case  1  is also distinguishable. in that case the free press of india  madras  limited resolved
on august 31 1946 to transfer the right of printing and
publishing its daily newspapers to express newspapers limited
they rented out their machinery etc. to the new companypany
which took possession on september 1 1946. the year of
account ended on december 31 1946. the free press went
into voluntary liquidation on october 31 1946 and on
numberember 1 1946 its building machinery and plant were
sold to the new companypany at a price which exceeded the
written down value by rs. 608666 made up of rs. 214090
being the excess of the original companyt price over the written
down value and rs. 394576 being the excess over the
original companyt price. one question among others was
whether the second proviso to s. 10  2  vii . applied. the
madras high companyrt ob. served
 1   1960  40 i.t.r. 38.
in the present case the sale of the machinery took
place during the year of account and it was used by free
press companypany for at least a part of the year. this would
be sufficient to attract liability the learned companynsel for
the assessee is on a firmer ground when he companytended that
the sale being made in the process of winding up of the
company section 10 2  vii  will number apply. the second
proviso to section 10 2  vii  would be invoked only where
the sale was one made in the companyrse of business carried on
by the predecessor. where the sale is a closing down sale
that profit companyld number be brought to tax. in liquidators of
pursa limited v. companymissioner of income-tax  1  the supreme
court held that where in a case the sale of machinery and
plant was a step in the process of winding up of its
business the intention of the companypany having been to
discontinue the business such sale was number an operation in
furtherance of the business carried on by the companypany but
was only a realisation of its assets in the process of
gradual winding up of its business which eventually
terminated in the voluntary liquidation of the companypany and
provision of section 10 2  vii  would number apply. in the
present case the formation of the new companypany was to take
over the business of the old companypany. the lease of the
machinery the transfer of the right to carry on the
business of publishing newspapers and the ultimate sale of
the machinery were part of the same scheme for winding up
the free press companypany. the sale of machinery was
undoubtedly a closing down sale and the profit earned
therein companyld number companye in for assessment under section
10 2  vii . these two cases deal with the second proviso to s.
10 2xvii . clause  vii  deals with loss and the second
proviso with profits but the proviso is number an exact
counterpart of the clause. the proviso enacts a fiction
which the main clause does number enact. the reason for the
introduction of the fiction in the proviso appears to be
this loss in business may take place in various ways. if
the business requires more to run it than it produces there
is loss. loss in
 1  1954 s.c.r. 767.
business may also take place if the equipment with which
business is done is lost destroyed or depreciates or
suffers in value. the law takes numbere of the loss and
provided it has been companyputed and brought into the books of
the business and written off it can be claimed as a
deduction. profit in business on the other hand
primarily means profit earned in the business. but if an
allowance had been claimed as depreciation and had been
allowed and if the sale of the building machinery or plant
on which depreciation allowance was claimed in the past
shows that there was in fact numberdepreciation but an
accretion in value the law deems that a profit has been
made. the fiction thus companyverts that which may number be
strictly profit of the business in a narrow sense into a
profit for purposes of assessment. formerly it was a
matter of doubt whether even this accretion companyld be deemed
a profit when the business had closed down but number the
legislature has amended the law by saying that this
fictional profit must be brought to tax irrespective of the
fact that the sale took place during the companytinuance of
the business or after the cessation thereof but it is to be
numbericed that numbersuch amendment was made in cl.  vii  to
exclude loss over buildings machinery or plant after the
clospre of the business. it is thus clear that the
principles which govern the proviso cannumber be used to govern
the main clause because profit or loss arise in different
ways in business. the two rulings do number therefore apply
to the facts here. we must thus restrict ourselves to the scheme of the indian
income-tax act and the clause in question. the scheme of
the income-tax act as was pointed out by lord porter in
indian iron steel company limited v. companymissioner of income-tax
bengal  1  is that income. tax is assessed and paid in the
next succeeding year upon the results of the year before. it is the income of the previous year which is brought to
tax in the succeeding year which is called the year of
assessment. for the purpose of assessment the indian
income tax act divides the sources of income profits
 1  1943 11 i.t.r. 328 336.
and gains into six heads in s. 6. the fourth head is
profits and gains of business profession or vocation . sections 7 8 9 10 12 12a and 12b lay down the rules of
computation under the different heads. profits and gains of
business are dealt with in s. 10. the first subjection of
that section provides
the tax shall be payable by an assessee under the head i
profits and gains of business in respect of the profit
or gains of any business carried on by him. in companymissioner of income-tax v. shaw wallace company limited
 1  it was pointed out by the judicial companymittee that the
words carried on by him were an essential companystituent
of that which is to produce the taxable income it is to be
the profit earned by a process of production . it was
further pointed out that business had been defined in
the income-tax act to include any trade companymerce or
manufacture or any adventure or companycern in the nature of
trade companymerce or manufacture  and that it involved a
fundamental idea of the companytinuous exercise of an activity. it was however pointed out that the source was number
necessarily one which was expected to be companytinuously
productive but one whose object was the production of a
definite return excluding anything in the nature of a mere
windfall and that capital in most cases was hardly more
than an element in the process of production. we agree with this analysis of the income-tax act and
indeed these observations were also applied in the pursa
limited case  2  to which we have already referred. it
thus follows that capital may in the process of production
depreciate get used up or lost. the income-tax act while
taxing income profits or gains takes numbere of and makes
allowance for such eventualities. if the profits or gains of a business for a particular year
are to be taxed they must be companyputed for the whole year
taking into account losses incurred during the same year. number the first companydition precedent appears to be that the
business must have been
 1   1932  l.r. 59 i.a. 206.  2  1954 s.c.r. 767.
carried on by the assessee . this is to be found in the
first sub-section of s. 10. the second companydition is that
the building machinery or plant must have been used for
the purposes of the business . this is to be found in of. of the second sub-section of s. 10. the third
condition is that the sale etc. should have taken place
during the year of account. this follows from the nature of
the tax which is assessed and levied on the profits of the
working of the previous year. the fourth companydition is that
the loss should have been brought into the books of the
assessee and written off. this is provided by the first
proviso. there is numberother companydition to be found expressly
in the section or in the act. it is numberhere stated that the
business of the assessee should have been carried on for the
whole year or that the machinery or plant should have been
used for the whole of the accounting period.


civil appellate jurisdiction civil appeals number. 143. 203
to 242 274 and 309 of 1971.
appeals from the judgment and order dated august 14 1970 of
the kerala high companyrt in original petitions number. 723 of 1970
etc. etc. subramania iyer and a. sreedharan nambiar for the
appellant  in c.a. number 143 of 1971 . m. abdul khader advocate-general for the state of
kerala k.m. k. nair and varghese kaliath for the
appellants  in c. s. number. 203 to 242 of 1971  and respondent
number 1  in c. a s. number 143 274 and 309 of 1971 . subramania iyer c. m. devan s. balakrishnan and n. m.
ghatate for the appellants  in c.a. 274 of 1971 . s. ananthakrishna iyer c. m. devan s. balakrishnan and

m. ghatate for the appellant  in c.a. 309 of 1971 . sudhakaran and p. kesava pillai for respondent number 8
 in c.a. number 203 of 1971 . sreedharan nambiar for respondents number. 1 and 5  in

a. number 206 of 1971  and the respondents  in c.as. number. 208 219 and 235 of 1971 . s. ananthakrishna iyer s. balakrishnan and n. m.
ghatate for the respondents  in c.as. number. 210 and 216 of
1971 . subramania iyer and p. kesava pillail for the
respondent  in c.a. number 214 of 1971 . p. nayar for respondent number 2  in c.a. number 221 of
1971 . veerappa for respondents number. 1 to 4  in c.a. number 240
of 1971 . the judgment of the companyrt was delivered by
dua j. these are 43 appeals  c.as. number. 143 274 309 and
203 to 242 of 1971  40 appeals  c.as. number. 203 to 242 of
1971  being by the state of kerala and the land board and
the remaining three by some of the writ petitioners in the
high companyrt. most of the material provisions of the amended
kerala land reforms act act number 1 of 1964  hereinafter
called the impugned act  were challenged in the high companyrt
as violative of arts. 14 19 25 26 and 31 of the
constitution. quite a number of writ petitions however
assailed the entire impugned act on that score. the sole
defence in sustaining the companystitutional validity of the
impugned act was based on art. 31a of the companystitution. the
high companyrt struck down several provisions of the impugned
act. in the state appeals  c.as. number. 203 to 242 of 1971
the judgment of the high companyrt is questioned only in so far
as it struck down s. 73 and explanation to s. 85 1  of the
impugned act. the judgment
appealed from is reported as v. n. narayana nair v. state of
kerala 1 . raman nair c.j. and raghavan j. expressed
their companyclusions through the chief justice thus
in the result we declare the following
provisions of the act void section 29-a
section 32 in so far as  -and only in so far
as  it bars a civil companyrt from prohibiting a
person who has made an application for
determination of fair rent from entering on
the land to which the application relates so
long as the application is pending. section
45-a sub-section  2  of section 50-a section
73 the explanation to sub-section  1  of
section 85 and sub-section  7  of section 125.
for the rest we dismiss the petitions but make
it clear that this dismissal involves no
pronumberncement regarding provisions which we
have number expressly companysidered. we make no
order as to companyts. mathew j. in a separate judgment upheld the validity of s.
73 but on a other points he agreed with the majority. it may at the outset be pointed out that the kerala land
reforms act 1963  act number 1 of 1964  as originally enacted
was specified in the ninth schedule to the companystitution
 item number 39 in that schedule  and is therefore immune
from companystitutional challenge founded on the ground that the
provisions of the said act are inconsistent with or take
away or abridge any of the rights companyferred by any provision
of part iii of the companystitution vide art. 31-b. it is only the s
ubsequent amendment of the original act which. having
number been specified in the ninth schedule is open to attack
as violative of the fundamental rights guaranteed by part
iii of the companystitution. section 73 of the impugned act which was substituted for the
old s. 73 of the original act reads

discharge of arrears of rent.-

numberwithstanding anything to the companytrary
contained in any other law for the time being
in force or in any companytract or in any
judgment decree or order of any companyrt or
tribunal the landlord of a tenant specified
in companyumn  1  of the table below shall be
entitled to recover towards arrears of rent
accrued due before the 1st day of may 1968
and outstanding at the companymencement of the
kerala land reforms  amendment  act 1969
only the amount specified in the companyresponding
entry in companyumn  2  of the table

a.i.r. 1971 ker. 98.
provided that where an intermediary has
collected rent from his tenant for any period
prior to the 1st day of may 1968 and has number
paid the rent payable by him to his landlord
for the period for which he has so companylected
he shall also be liable to pay the rent
payable by him for such period to his landlord
provided further that subject to the
foregoing proviso numberintermediary shall be
liable to pay to his landlord anything in
excess of what he is entitled to receive under
this subsection. class of tenant amount of rent to be paid for
discharge
 1   2
tenant possessing number more than 5 one years rent or the
acers actual amount of land in in arrears whichever is
the aggregate whether as less
owner mortgage lessee or otherwise. tenant possessing more than 5 acres two years rent or the
but actual amount number more than actual amount in arrears
10 acres of land in the whichever is less
aggregate whether as owner mortgage
lessee or otherwise. tenant possessing more than 10 acres three years rent
of land in the aggregate whether or the actual amou
as ownermortage lessee or nt in arrears which-
otherwise. ever is less. provided that where the tenant is in
possession of more than fifteen acres of land
in the aggregate whether as owner mortgagee
lessee or otherwise and the landlord is a
small holder the tenant shall be liable to
pay the actual amount in arrears. explanation.-for the purposes of this section
the rent for an year shall be deemed to be an
amount equal to the rent payable for the year
immediately preceding the companymencement of the
kerala land reforms  amendment  act 1969 and
which has accrued due before such
commencement. where any suit appeal revision or
application which involves a claim by a
landlord for arrears of rent accrued due prior
to the 1st day of may 1968 is pending
before any companyrt or land tribunal such companyrt
or land tribunal may after such enquiry as it
deems fit pass an order specifying.  a  the amount to which the landlord is
entitled under sub-section  1
l128 sup ic/72
 b  the companyts if any awarded to the
landlord in companynection with the companyduct of the
proceedings after the companymencement of the
kerala land reforms  amendment  act 1969
 c  the companyts if any awarded to the tenant
in companynection with-the companyduct of the
proceedings after such companymencement and
 d  where such companyts are awarded to the
tenant the amount due to the landlord
deducting such companyts. where any decree or order has been
passed in favour of a landlord before the
commencement of the kerala land reforms
 amendment  act 1969 by any companyrt or land
tribunal for the recovery of arrears of rent
accrued due prior to the 1st day of may 1968
such decree or order shall be enforceable only
to the extent of the amount due to such
landlord under sub-section  1  and to
determine such amount any of the parties to
the decree or order may apply to the companyrt or
the land tribunal as the case may be which
passed the decree or order to amend such
decree or order in accordance with the
provisions of sub-section  1 . on receipt of an application under sub-
section  3  the companyrt or the land tribunal
as the case may be may after such enquiry as
it deems fit reopen the decree or order and
pass an order companytaining the particulars
specified in sub-section  2 . any landlord who has number instituted a
suit or applied under section 26 for recovery
of arrears of rent accrued due prior to the
1st day of may 1968 before the companymencement
of the kerala land reforms  amendment  act
1969 may apply to the land tribunal under
that section for recovery of the amount due to
him under sub-section  1  of this section. numberwithstanding anything companytained in
section 26 on receipt of an application
referred to in subsection  5  the land
tribunal may after such enquiry as it deems
fit pass an order companytaining the particulars
specified in sub-section  2 . the tenant shall deposit the amount
specified in an order under sub-section  2
or subsection  4  or sub-section  6  as due
from him in the companyrt or land tribunal which
passed the order within a period of six months
from the date of the order. if the tenant fails to deposit any
amount as required by sub-section  7  such
amount shall on a written requisition from
the companyrt or the land tribunal as the case
may be to the district companylector be reco-
vered under the provisions of the kerala
revenue recovery act 1968 together with
interest at the rate of six per cent per annum
from the date of the order under sub-section
 2  or sub-section  4  or subsection  6  as
the case may be. numberwithstanding anything companytained in
this section a tenant who has paid the
amount as provided in
section 34 of the kerala agrarian relations
act 1960 or in section 5 of the kerala
ryotwari tenants and kudikidappukars
protection act 1962 for the discharge of arrea
rs of rent outstanding on the 1 1th day
of april 1957 or the arrears of rent accrued
due after that date and outstanding on the
15th day of february 1961 on or before the
date specified in those acts for the payment
of the amount shall number be liable to pay any
amount towards arrears of rent for that
period. the assignment by a landlord of his
right to receive arrears of rent to any other
person shall number affect the benefits companyferred
on a tenant under this section. the majority opinion of the high companyrt while
striking down this section observed
under s. 73 all arrears of rent accrued due
before the 1st may 1968 and outstanding at
the companymencement of the amending act are wiped
off except to the extent of one years rent in
the case of a tenant possessing number more than
five acres of i-and of two years rent in the
case of a tenant possessing more than five
acres but number more than ten acres of land and
three years rent in the case of a tenant
possessing more than ten acres. however when
the tenant is in possession of more than
fifteen acres and the landlord is a small
holder the tenant is liable to pay the entire
arrears. this section it seems to us cannumber
get the protection of article 31-a. rent yet
to accrue is numberdoubt a legal incident of the
property companycerned-see section 8 of the
transfer of property act and the right to
receive rent in the future might well be
regarded as a right in the estate companystituted
by the land. but rent in arrear only
constitutes a debt and excepting perhaps to
the extent to which it is a charge on the
land is number an interest therein.  see in this
connection a.i.r. 1952 s.c. 252 . me effect
of section 73 is number merely
to deprive the landlord of the charge
conferred on him by section 42 but to wipe off
the debt itself and this debt number being an
interest in the land it seems to us clear
that the section cannumber have the protection of
article 3 1 a. that protection is afforded
only in so far as the acquisition
extinguishment or modification of rights in an
estate are companycerned. that is an essential
element of agrarian reform and the so-called
incidental or ancillary provisions can get the
protection only in so far as they are
necessary for effectively implementing the
reform or are otherwise an integral part of
the reform. the liquidation of debt due from
tenants cannumber be said to be necessary for
implementing the law relating to the acqui-
sition extinguishment or modification of
rights in estates or an integral part of that
law and cannumber therefore have the protection
of article 3 1 a. if it is necessary to
rehabilitate indebted tenants by relieving
them of their liability on account of arrears
of rent that must like any other measure for
relief of indebtedness be justified in so far
as it affects the property rights of the
landlord as a reasonable restriction in the
interests of the general public within the
meaning of clause  5  of article 19.
numbermaterial has been placed before us to show
that that is so. the produce from the land is
number solely of the tenants own making. the
landlord provides the capital asset necessary
for the purpose namely the land i before
the act it was number a crime to do so-and it
can-number be in the interests of the general
public to deprive him of his due share of the
produce. provisions for the fixation of fair
rent have been in force throughout the state
at least from 1964 and in the malabar area
from much earlier. for many years past
seasons have been favourable and yields have
been good. the prices of agricultural produce
have been high while rents even when payable
in kind are companymuted into money at rates much
less than the prevailing prices and it is
numberorious that cultivators of land have been
making big profits even after paying rent. the mere fact that since 1957 the legislature
has from time to time thought fit to stay pro-
ceedings for the recovery of arrears of rent
is number enumbergh to show that tenants were number in
a position to pay rent and there is numberhing
to show that the arrears of rent accrued due
are anything more than what the landowner can
reasonably ask for his share or the tenant
can reasonably be expected to pay. there were
statutes in force by which on the payment of
rent for one year or more the entire arrears
could discharged and it does number
33 5
seem to us either a reasonable restriction on
the rights of the landlords or something
calculated to further the interests of the
general public that persons who declined to
take advantage of these statutes and would number
pay when they companyld should be absolved of the
liability to pay their due debts. we hold
that section 73 has number the protection of
article 31-a and is violative of article 19 1
   f . the dissenting opinion upholding its validity observed
that in companystruing the reasonableness of the provisions of
s. 73 it is legitimate to look to the provisions of art. 39
in part iv of the companystitution which emphasises the
directive policy of the government so as to give purposive
content to the restriction which part iii imposes upon the
fundamental rights guaranteed by the companystitution. the i earned advocate general in support of the 40 appeals
by the state of kerala and the land board heavily relied on
pritam singh chahil v. state of punjab  1  in support of his
attack on the majority view of the high companyrt and in his
submission this decision companypletely companyers the present case. while developing his argument the learned advocate general
referred us to s. 42 of the impugned act which provides that
arrears of rent due to the landlord together with interest
thereon shall be a charge on the interest of the tenant
from whom they are due in the holding and shall subject to
the priority of the rights of the government and any local
authority for arrears of land revenue tax cess or other
dues be a first charge on such interest of the tenant. according to the submission creation of charge by this
section creates a right in the land which means a right in
the estate and therefore the discharge of arrears of rent
in accordance with the table companytained in s. 73 being
extinguishment of a right in the estate is protected by
art. 31-a. reference in support of the argument that charge
is an interest in property was also made to the decision in
the state of gujarat v. jetawat lalsingh amarsingh ors.  2  where while companystruing s. 14 1  of the bombay merged
territories and areas  jagir abolition  act 39 of 1954 this
court observed in para 8
we are also in agreement with the high companyrt
that the right to receive cash allowance of
rs. 234/12/- annually from the jagir is one of
those rights that have got to be companypensated
under s. 14 1 . that liability was number the
personal liability of the jagirdar. the first
respondent was entitled to get that amount
from the jagir. in other words it was a
charge on the jagir. therefore it is an
interest in property.  1  1967 2 s.c.r. 536.  2  a.i.r 1969 s.c. 270.
it is numbereworthy that s. 14 1  there companyered the case of a
person other than jagirdar who was aggrieved by the
provisions of the impugned act abolishing extinguishing or
modifying any of his rights to or interest in property and
such persons right to get the allowance was held to amount
to an interest in property. it was number held to be a right
in property. indeed it was expressly observed at p. 272 of
the report that it was number necessary to companysider whether
that interest can be companysidered as a right in the property. reliance in this companynection was also placed by the learned
advocate-general on m. k. subbachariar v. the state of
madras 2  ranjit singh v. state of punjab  2  state of
bihar v. umesh jha  3   and on the observations of s. r.
das j.  as he then was  on the question of legality of
acquisition of arrears of rent in state of bihar v.
maharadhiraja sir kameshwar singh of darbhanga 4 . the
majority view in kameshwar singhs case  supra  it may be
pointed out was number in accord with these observations for
the majority held the acquisition of arrears of rent to be
unconstitutional. the other decisions cited by the learned
advocate-general also do number support his submission. ranjit
singhs case  supra  is an authority for the view that the
expression agrarian reform calls for a wider meaning than
was given to it by k. k. kochunni v. state of madras   5
and in jhas case  supra  the validity of s. 4 b  of the
bihar land reforms act 1950 as amended in 1959 which
authorised annulment of anticipatory transfer of land
designed to defeat the object of the act was held to be
protected by art. 31-a of the companystitution. the acts impugned in the madras decision in subbachariars
case  supra  were held to fulfill the requirements of art. 3
1 -a   1    a  and therefore protected from attack
founded on violation of arts. 14 19 and 31 of the
constitution. after so holding the high companyrt observed
it follows that the validity of the acts
cannumber be questioned even on the ground that
numbercompensation whatsoever has been provided
for the acquisition of certain specific
interests. on this companyclusion strictly speaking it is
unnecessary to have any elaborate survey of
the provisions of the acts and examine whether
and if so to what extent they are violative of
articles 14 and 31 of the companystitution. the decision of this companyrt in kameshwar singhs case  supra
was distinguished. a passing reference was also made by the
appellant to khajamian wakf estates v. the state of
madras 6 . but there

i.l.r.  1967  2 mad. 646.  3  1962 2 s.c.r. 687.  5  1963 3 s.c.r. 887.  2  1965 1 s.c.r. 82.  4  1952 s.c.r. 889 at 1000-1002.

a.i.r. 1971 s.c. 161.
the enactments challenged being laws providing for the
acquisition by the state of estate as companytemplated by art. 31-a were held to be companypletely protected by art. 31-a of
the companystitution from the attack on the ground of violation
of arts. 14 19 and 31. in regard to the provision reducing
the liability of the tenant with respect to the arrears of
rent the only challenge raised in that case questioned the
competency of the legislature to make the law and this was
repelled with the observation -
those arrears are either arrears of rent or
debts due from agriculturists. if they are
treated as arrears of rent then the state
legislature had legislative power to legislate
in respect of the same under entry 18 of list
ii of the viith schedule. if they are
considered as debts due from the agric
ulturists then the state legislature had
competence to legislate in respect of the same
under entry 30 of the same list. the precise question with which we are companycerned was number
canvassed there. the argument that arrears of interest is a charge on the
estate and being therefore a right in land can be
extinguished as an estate is number supported by the true
ratio of the decisions cited by the learned advocate
general and is otherwise too unacceptable on the language of
the impugned statutory provisions. the liability to pay
arrears of rent under the impugned act assuming the charge
created by s. 42 is an interest in land is number a right in
land besides the liability being also a personal liability
it would clearly amount to a debt. acquisition or
extinguishment of such a personal liability for payment of
money cannumber be companyered by art. 3 1 a. that money cannumber be
acquired is clear as already pointed out from the
majority view of this companyrts decision in kameshwar singhs
case  . looking at the table incorporated in s. 73 it is
obvious that the amount of rent to be paid for getting
discharge of the whole debt has been arbitrarily fixed and
does number seem to be founded on any rational logical or
just basis. but the learned advocate general companytended that without
discharging the arrears of rent or at least a major part of
it the object of the land reforms would be stultified as
the indebtedness of the tenants would remain unameliorated. to reduce the indebtedness of the tenants appreciably is
a reasonable restriction on the rights of the creditors and
the law thus providing for amelioration of indebtedness of
tenants deserved to be upheld as companystitutional. we grant
that amelioration of indebtedness of tenants is a laudable
and desirable object. but the person to whom the arrears of
rent are due is also entitled to seek protection of his
legitimate right and if the acquisition of arrears of rent
is outside the protection of art.  1  1952 s. c. r 889. 31 a then the impugned provision cannumber but be held invalid. it prima facie partakes of the character of forfeiture or
confiscation of the discharged arrears. article 39 of the
constitution to which reference was made can be implemented
by other permissible means without violating or abridging
the just and legitimate rights of those to whom the arrears
of rents are due. section 73 therefore in our opinion
was rightly struck down by the majority opinion. it was companyceded before us that if s. 73 goes then s. 4/5-a
must also be struck down as unconstitutional. section 45-a
broadly speaking provides that rent received after may 19
1967 but before the companymencement of the amendment act of
1969 and appropriated towards arrears of rent for the
period prior to may 1 1966 shall be adjusted towards rent
accrued due for period after may 1 1966.
this takes us to the explanation to s. 85 1  which was the
only other provision with respect to which the judgment of
the high companyrt was assailed by the learned advocate general
in this companyrt. that provision so far as relevant reads

surrender of excess lands.-

where a person owns or holds land in
excess of the ceiling area on the date
numberified under s. 83 such excess land shall
be surrendered as hereinafter provided
provided that where any person bona fide
believes that the ownership or possession of
any land owned or held by such person or
where such person is a member of a family by
the members of such family is liable to be
purchased by the cultivating tenant or
kudikidappukaran or to be resumed by the
landowner or the intermediary under the
provisions of this act the extent of the land
so liable to be purchased or to be resumed
shall number be taken into account in calculating
the extent of the land to be surrendered under
this sub-section. explanation.-where any land owned or held by a
family or adult unmarried person owning or
holding land in excess of the ceiling area was
transferred by such family or any member
thereof or by such adult unmarried person as
the case may be after the 18th december
1957 and on or before the date of publication
of the kerala land reforms bill 1963 in the
gazette otherwise than--

by way of partition or

on account of natural love and
affection or

in favour of a person who was a tenant
of the holding before the 18th december 1957
and companytinued to be so till the date of
transfer or

in favour of a religious charitable or
educational institution of a public nature
solely for the purposes of the institution
the extent of land owned or held by such
family or adult unmarried person shall be
calculated for purposes of fixing the extent
of land to be surrendered under this section
as if such transfer had number taken place and
such family or adult unmarried person shall be
bound to surrender an extent of land which
would be in excess of the ceiling area on such
calculation or where such family or person
does number own or hold such extent of land the
entire land owned or held by the f
amily or
person but numberhing in this explanation shall
affect the rights of the transferee under the
transfer. the high companyrt struck down this provision with
the following observations
section 85 provides for the surrender of
excess land but sub-section  1  thereof
contains an explanation which we think cannumber
stand. under the explanation subject to
certain exceptions any land transferred by a
person holding land in excess of the ceiling
area between the 18th december 1957  the date
of publication of the kerala agrarian
relations bill  and the date of the
publication of the kerala land reforms bill
1963  here we think that ceiling means the
ceiling area under the act for it does number
appear there was any ceiling area during the
period in question  is to be regarded as still
held by him for the purpose of fixing the
extent of land to be surrendered by him and
such surrender is to be made out of the land
still held by him. his can lead to absurd
results. for example supposing a person
holding land just one cent in excess of the
ceiling area had transferred some lands
between the dates mentioned and bought the
lands number held by him possibly at a higher
price he will have to surrender all his land
for the numberinal companypensation provided by
section 88. numberdoubt absurdities like this
can only be attacked under articles 14 19 or
31 which are number available in the case of a
legislation protected by art. 31-a but there
is the second proviso to sub-clause  a  of
clause  1  of the article which enjoins the
payment of companypensation number less than the
34 0
market value for the acquisition of any land
within the ceiling limit under the law for the
time being in force. the effect of the
explanation is to offend this proviso since it
means that even land held by a person within
the ceiling limit applicable to him under the
act  the law for the time being in force
within the meaning of the article  can be
taken away for the numberinal companypensation
payable under section 88 by the fiction of
regarding lands disposed of by him within the
dates mentioned as if those lands were still
held by him although the transfer remains
untouched in other words as if the ceiling
limit for such a person is different from
the ceiling limits for persons who had number
disposed of land between the relevant dates
that is number so. the ceiling limits imposed by
the act are the same for all but in the case
of a person who has so disposed of land that
1-and is to be regarded as still held by him
 although in fact it is number  for the purpose
of calculating the extent of the land to be
surrendered by him and the surrender is to be
made out of the land still held even if its
effect be to leave him with land less than the
ceiling limit indeed with numberland at all. if
a fiction by which land number held by a person
could be taken into account for the
determination of the excess land to be
surrendered by him and he companyld be forced to
surrender land actually held by him although
it is within the ceiling limit without payment
of the market value thereof were permitted
the proviso in question companyld easily be
rendered nugatory. that would be to mock the
proviso. this reasoning seems to us to be unexceptionable and the
learned advocate general was wholly unable to offer any
serious criticism of these observations. it is clear that
by virtue of the second proviso to art. 31-a 1  land within
the ceiling limit is expressly protected against acquisition
by the state unless the law relating to such acquisition
provides for companypensation which is number less than its market
value. numberattempt was made to take the impugned explanation
out of this companystitutional inhibition. we therefore do number
find any reason to differ from the companyclusions of the high
court. these were the only provisions with respect to which the
learned advocate-general addressed us in support of his
appeals. the result therefore is that these appeals fail
and are dismissed with companyts. we number turn to the three appeals  c.as. number. 143 274 and
309 of 1971 . in c.as. number. 274 and 309 of 1971. the first
point urged before us was founded on art. 31-a 1  second
proviso by
3 41
virtue of which the state can have numberpower to acquire any
portion of land held by a person under his personal
cultivation in the estate which is within the ceiling limit
applicable to him under a law unless the law empowering
acquisition provides for companypensation at a rate number less
than the market value of such land. according to the
argument when the amended act reduced the ceiling limit and
required surrender of the land held in excess of the limit
fixed by the amended act without payment of companypensation at
market value it violated the companystitutional inhibition
contained in the second proviso to art. 31-a 1 . we are
unable to sustain this companytention. it was number disputed that
the ceiling limit fixed by the amended act was within the
competence of the legislature to fix number was it companytended
that the ceiling fixed by the original unmended act by
itself debarred the legislature from further reducing the
ceiling limit so fixed. prior to the amendment undoubtedly
numberland within the personal cultivation of the holder under
the unamended act within the ceiling limit fixed thereby
could be acquired without payment of companypensation according
to the market value but once ceiling limit was changed by
the amended act the second proviso to art. 3 1 -a   1   must
be held to refer only to the new ceiling limit fixed by the
amended act. the ceiling limit originally fixed ceased to
exist for future the moment it was replaced by the amended
act. the prohibition companytained in the second proviso
operates only within the ceiling limit fixed under the
existing law at the given time. i it is true that the new
ceiling limit was fixed companytemporaneously with the
acquisition of the land in excess of that ceiling limit. but it was number companytended that a law so fixing the ceiling
limit and acquiring the land in excess would offend any
provision of the companystitution. this submission must
therefore be rejected. the next point urged in c.a. 274 of 1971 relates to s. 50-
a 2  of the amended act. according to this sub-section
where the tenant in respect of a nilam is a varamdar and the
fishing right in that nilam is exercised by the landlord
then such right of the landlord shall cease to exist and the
tenant shall be entitled to exercise such right. nilam
it may be pointed out means land adapted for the
cultivation of paddy s. 2 38 . varamdar means the
person who undertakes cultivation under a varam arrangement
and varam means an arrangement for the cultivation of
nilam with paddy and sharing the produce made between the
owner or other person in lawful possession of the nilam and
the person who undertakes cultivation under such
arrangement and includes the arrangements knumbern as
pathivaram pankuvaram and pankupattam s. 2 60 . section
50-a 2  operates numberwithstanding anything companytained in any
law or companytract or any judgment decree or order of the
court. the high companyrt has struck down this provision but
has added a rider. this is what the high companyrt has observed
accordingly we strike down this provision
but might add that this cannumber in any way
affect the vesting of the landlords rights in
the government if they have so vested under
section 72. that the income derived from
fishing might number be taken into account in
determining the companypensation payable for the
vesting cannumber affect the provision for
vesting so long as it has the protection of
art. 31-a. it is agreed at the bar that there is numbercase before us on
the facts and circumstances of which this rider can operate. it is also stated at the bar that a number of cases are
pending in the high companyrt in which the precise point companyered
by the rider directly arises for adjudication. in our view
the high companyrt should number have expressed any opinion on this
point in the manner it has been done such expression of
opinion being unnecessary for giving relief to the parties
approaching the high companyrt. this question must therefore
be left open to be determined by the high companyrt in cases in
which the question directly arises. the next question raised in c.as. number. 143 and 274 of 1971
relates to the rights of kudikidappukars. the argument
raised before us on behalf of the appellants in these two
appeals is that the definition of kudikidappukaran is number
confined to agricultural labourers alone but it companyers even
number-agriculturists with the result that it cannumber be held to
be companyered by the provision which protects legislation
dealing with agrarian reform. the high companyrt dealing with
this challenge has observed
the principal objection taken to the
provisions relating to kudikidappukars is that
having regard to the definition of
kudikidappukaran the rights will be
available even to persons who have no
connection with agriculture in occupation
of huts on land which is number agricultural. the
conferment of rights on such persons would number
be agrarian reform and therefore the
provisions cannumber have the protection of
article 31-a. but in numbercase before us is
it alleged that there is any such person
claiming or likely to claim the benefit of
the provisions in question. in fact as we
have said all the lands with which these
petitions are companycerned are agricultural lands
constituting estates and to deny the pro-
tection of article 31-a to any particular
provision it must be shown that that provision
is number a measure of agrarian reform. as we
have already remarked the mere possibility
of the provisions in question being applicable
to cases number falling within article 31 -a is
numberground for denying the protection of that
article in respect of the cases falling within
its ambit. it is pointed out that the proviso to section
2 25  makes a kudikidappukaran even of a
trespasser so long as he was in occupation on
the 16th august 1968-the bill of the amending
act was published on the 15th august-and
continued to be in occupation till the company-
mencement of the amending act namely till
the 1st january 1970. and that would be so
even if the landowner has obtained a decree
for possession against him. to encourage
trespass by companyferring rights on trespassers
even on trespassers against whom there is a
decree for possession cannumber it is said be
regarded as a measure of agrarian reform. that might well be so but we are number called
upon to companysider the validity of the proviso
in question since so far as the cases before
us are companycerned the application of the
proviso is a mere theoretical possibility. in
numbere of the cases is it said that there is any
person claiming the benefit of the proviso
against the petitioner companycerned and the
challenge to the proviso must be left to be
decided in a case where the question actually
arises. generally speaking it might be said that a
kudikidappukaran is a hutment dweller in
permissive occupation of the land on which his
hut stands and who holds numberland on which he
could erect a homestead. three cents of land
in a city or major municipality five cents in
any other municipality and tenents in any
panchayat area or township  it is said that
there is numberplace in this state which is number
comprised within a city or a municipality or a
panchayat or a township  is regarded as the
minimum land required for the purpose of
erecting a homestead and it is only if the
person companycerned holds land in excess of there
limits that he is disqualified. it would
however appear from explanation i to the
definition in section 2 5  that the total
extent of all the land held by a person number
necessarily land companytinuously situated is to
be taken into account for the purpose of the
disqualification the companyversion being made on
the basis that three cents of land in a city
or major municipality is equivalent to five
cents in any other municipality and to ten
cents in a panchayat area or township. kudikidappus are mainly a feature of the
coconut gardens in the companystal areas of the
state and are largely companyfined to the companyhin
and travancore areas. as we have seen the
occupation originates in permission and
although in most cases the permission might
in some measure be prompted by charitable
considerations it is
3 44
never wholly so. some benefit in return
other than spiritual is always expected. in
some cases the kudikidappukars are
agricultural labourers who were in the earlier
days expected to work for the holder of the
land for a lower wage than the prevailing
wage and in all cases they are expected to
keep watch over the land and prevent theft or
trespass. in the case of companyonut gardens the
very existence of these dwelling houses in the
midst of the gardens is beneficial to the
trees in the immediate vicinity of the houses
and increases their yield. so far as
agricultural land is companycerned it seems to us
that there is in all cases some companynection
between the existence of a kudikidappu
therein and the cultivation of that land so
that the companyferment of benefits on
kudikidappukars must prima facie be regarded
as a measure of agrarian reform. and again
the real companytroversy is centered round
section 80-a to 80-g which by enabling a
kudikidappukaran to buy number merely the site of
his hut but also the surrounding land upto an
extent of three cents in a city or major
municipality or five cents in any other
municipality or ten cents in a panchayat area
or township for a price which both with
regard to its amount and to the manner and
time of its payment can only be described as
numberinal virtually make a gift of the land to
the kudikidappukaram. it has been argued that
such a transfer of land to a person who had
numbermanner of interest therein  by definition
of kudikidappukaran has numberinterest in the
land as such being only in permissive
occupation of the site of his hut  cannumber companye
within the ambit of subclause  a  of clause
1   of article 3 1 -a since it involves no
acquisition by the state and no
extinguishment or modification of any rights
in the land companystituting the estate. the
provision is really for the companypulsory acqui-
sition of the land by the kudikidappukaran
without payment of companypensation and the
circumstance that the article expressly
provides only for acquisition by the state is
a clear indication that acquisition by others
is number included within its ambit even if such
acquisition might involve the extinguishment
of the rights of the person to whom the land
previously belonged. if the extinguishment
involved in a transfer of the land from one
person to anumberher namely the extinguishment
of the rights of the original owner were
comprised within the term extinguishment as
used in the article it was unnecessary to
have made separate and express provision for
acquisition by the state. therefore it is
said that
extinguishment within the meaning of the
article is extinguishment pure and simple and
number extinguishment which is only an incident
of something else like a transfer or an
acquisition. it means a total annihilation of
the rights number the substitution of one person
by anumberher in that right. so runs the
argument. but although the argument sounds
attractive enumbergh we are afraid it has to be
rejected in view of the decision of the
supreme companyrt in air 1959 s.c. 459 and air
1959 sc 519. in the former it was held that
the transfer of a landlords right to a tenant
was an extinguishment or in any event a
modification of the landlords right in the
estate well within the meaning of these words
as used in the article. in the latter which also
deal with companypulsory acquisition of a
landlords right by a tenant it was pointed
out that provision for such acquisition was a
modification of the owners rights in the land
in that it obliges him to sell the land number at
his own price but at the price fixed by the
statute and number to anyone he chooses but to
the person specified therein and in accordance
with its provisions. a transfer of his rights
by the owner of a land to a person like a
tenant already having some interest therein
stands on numberdifferent footing from a transfer
to a person having numberinterest in the land
from the point of view of the extinguishment
or modification of the rights of the trans-
feror. although this is number expressly
mentioned we think it is clear that the
purpose of the transfer of the land to the
landless occupant of the hut is only for pur-
poses companynected with agriculture-we are here
speaking only of agricultural land. in the
case of such land even if the
kudikidappukaran is number exclusively an
agricultural labourer the land transferred to
him is likely to be used only for purposes of
cultivation like growing a kitchen garden as
an adjunct to his dwelling house. it is
hardly likely to be used in entirety for
building purposes  although there might be
some little extension of the dwelling house
or for industrial or companymercial purposes. thus the transfer being of agricultural land
to a landless person primarily for
agricultural purposes-it would in all
probability make for more intensive
cultivation-we do number think that it can be
said that it is number a measure of agrarian
reform. it was companytended on behalf of the appellants that a large
number of kudikidappukarans are engaged in number-agricultural
pursuits and they are free to deal with the homestead the
hut and the land transferred to them in any way they like. there being numberobligation on them to personally use the land
for agricultural purposes
there is numberquestion of agrarian reform being promoted by
this provision. the learned advocate-general--controverted
the appellants companytention and sought further to support the
conclusions of the high companyrt by drawing our attention to
the report of the agrarian problem enquiry companymittee
published by the government of companyhin in 1949 particularly
relying on para 146 of that report a companyy of which was
produced be-fore us in the companyrse of hearing. the learned
advocate-general also drew our attention to the report of
the land policy companymittee travancore-cochin published by
the government in 1950 abstracts of which were also
produced before us in the companyrse of hearing. para 91 of
this report was specifically relied upon. our attention was
further drawn by the learned advocate-general to the
proclamation promulgated by his highness the maharajah of
cochin in june 1947 giving relief against eviction of
kudikidappukars as also to certain provisions of the
travancore prevention of eviction of kudikidappukars act
1949 and to the provisions of the travancore-cochin
prevention of eviction of kudikidappukars act 1955. placing
reliance on the background as emerging from these reports
the proclamation and the statutes the learned advocate-
general submitted that providing for accommodation and some
appurtenant land to kudikidappukars is an important part of
agrarian reform and must be upheld. in the alternative
however it was suggested that the provisions of the act may
be read down so as to companyfine the statutory benefit only to
those kudikidappukars who are agricultural labourers. according to him the definition arid the relevant provi-
sions of the statute can be so read down as to bring them
within the object of agrarian reform as understood in the
light of the decisions of this companyrt. number as observed by the high companyrt in the passage already re-
produced transfer of land to the landless occupant of the
hut though number expressly so mentioned is only for the
purposes companynected with agriculture and the land in this
passage is expressly stated to mean agricultural land. the
term agricultural land it may also be pointed out is used
in the judgment of the high companyrt in the sense of the
definition companytained in art. 31a  2   a   iii  of the
constitution. the high companyrt has further stated and it is
number shown that this is incorrect that in numbere of the cases
before it is there any allegation that any person
unconnected with agriculture is claiming the benefit of ss. 75 to 80g of the act. in fact all the lands with which the
present cases are companycerned are agricultural lands
constituting estates as companytemplated by art. 31-a of the
constitution. this is what the high companyrt says in the
judgment
it might be that the expression agrarian
reform is wide enumbergh to include ameliorative
measures for agriculturists unrelated to
rights in land but in the companytext
of article 31 -a it can companyprise only
measures affecting rights in estates and we
shall hereafter use the expression in that
limited sense. it would appear that all the lands held by the
petitioners in these cases are agricultural
lands-at any rate numberarguments have been
addressed before us on the footing that any of
them are number the assertions in some of the
petitions such as that a paddy land is number
agricultural land because for part of the
year when it is under water fishing is
profitably companyducted thereon or that a
coconut garden is number agricultural land
because it happens to be situated within a
city have been rightly forgotten. we might
here repeat that we are using the term agri-
cultural land in the sense relevant in the
context of article 31-a namely in the sense
of the definition in subclause  iii  of cl. 2 a  of that article. it is the purpose for
which the land is held number its accidental use
at a particular point of time that
determines whether it is agricultural land or
number. if the land is held for purposes of
agriculture or for purposes ancillary thereto
 such as for pasture or for the residence of
cultivators of land agricultural labourers or
village artisans  it is agricultural land. otherwise number. we suppose that something or
other can be and often is grown on any
vacant land but that would number necessarily
make it agricultural land for our purposes. to give an example the possibility of
cultivating or even the actual cultivation
of what is essentially a building site in the
heart of a town would number make it
agricultural land. it is the purpose for
which it is held that determines its character
and the existence of a few companyonut trees or a
vegetable patch on the land cannumber alter the
fact that it is held for purposes of building
and number for purpose of agriculture. and again after observing that companystitutionally bad
portion of the act if severable is liable to be struck
down while upholding the valid portions the high companyrt adds
for the aforesaid reasons we shall companysider
the impugned provisions only in the in
application to agricultural land-was we have
said these petitions are number companycerned with
number-agricultural land at any rate number
directly. we wish to make it clear that we
are expressing numberopinion whatsoever about
their validity or otherwise in their
application to number-agricultural land. we do number think it can be denied that the act
as a whole is a measure of agrarian reform
its main object
-l128aup ci/72
being to companyfer such benefits as fixity of
tenure and fair rent on cultivating tenants
to abolish intermediaries like landlords
between the cultivator and the state and to
distribute lands held in excess of the ceiling
to the landless. the act as a whole must
therefore get the protection of article 31-a
even if portions thereof have to fail for want
of that protection. numberhing companyvincing was said in this companyrt against these
observations. in ranjit singhs case  supra  this companyrt
considered it proper to place a liberal companystruction on art. 31-a so as to companyer cases where the general scheme of
legislation is definitely designed to carry out agrarian
reform and something ancillary thereto has to be undertaken
to give full effect to such reforms. this decision was
approvingly referred in inder singh v. state of punjab 1 . these decisions were numbericed and followed by the high companyrt. the learned advocate-general in his reply also companytended
that we may if necessary read down the provisions of the
act so as to companyfine its beneficial operation to those
kudikidappukars who are primarily agricultural labourers and
to the transfer of agricultural land to them so as to
restrict the statutory power to agrarian reform as
enunciated by this companyrt in ranjit singhs case  supra  and
other relevant cases. it may however be recalled that
according to the high companyrt all the lands in the cases with
which we are companycerned are agricultural lands companystituting
estates within the companytemplation of art. 3 1 a  2   a   iii
and all the persons benefited by the impugned provisions are
occupants of huts on such agricultural lands and are
connected with agriculture. on the facts of these cases
therefore there is numberoccasion for saying anything beyond
what the high companyrt has said on this aspect. we should
however like to make it clear that we express numberopinion
where the provisions of this act are utilised for lands
which are number agricultural lands and do number companystitute
estates number where the beneficiary happens to be a person number
substantially companynected with agriculture occupying number-
agricultural land or where the facts are number companyered by the
general test laid down in the case of ranjit singh  supra . finally the objection raised at the bar was that the area of
land permitted to be purchased by kudikidappukars is
unreasonably excessive and there is numberobligation imposed on
them to use the land for agricultural purposes. here again
if as observed by the high companyrt the main purpose of the
transfer of agricultural land to the landless occupants is
connected with agriculture and such land is likely to be
used only for the purposes of cultivation with which
observation we are number persuaded to disagree then such
 1  1967 3 s.c.r. 603.
transfer can properly be held to be ancillary to agrarian
reforms. the transfer appears to us to be mainly of
agricultural land a part of which is intended to be
utilised for the purpose of erecting a homestead etc. by
the occupants. such erection of a homestead etc. cannumber in
the circumstances of these cases deviate from the general
agricultural purpose. the appellants objection must on
this view be held to be devoid of merit. in c.a. number 309 of 1971 it was argued that under s. 72 what
vests in the government is only the landholders right
vis-a-vis the tenant and that this does number amount to
acquisition. the companynsel added that other rights of the
appellants as owners companyld number be adversely affected. by
way of illustration reference was made to quarrying rights
and it was suggested that the right to quarry companyld number be
affected by this vesting. we do number companysider it necessary
to go into the question of the impact of the impugned
provision of the act on the rights to quarry as there was no
allegation to this effect in the writ petitions. this point
was number canvassed even in the high companyrt. this companyrt. as a
rule does number decide questions which are number necessary for
determining or resolving the actual companytroversy arising in
the case. such opinions partake of the nature of biter. without deciding any hypothetical question posed before us
we companysider it sufficient for our present purpose to point
out that extinguishment or modification of landlords lights
vis-a-vis the tenant would also be within the ambit of art.