@JUDGMENTTAG-ORDER
S. Padmanabhan, J.@mdashTenant seeks to revise the order of the Land Tribunal confirmed by the appellate authority rejecting his application u/s 72 B of the Kerala Land Reforms Act. Second respondent land-owner is a Devaswom and the property in question is the premises of a temple owned by the Devaswom, Revision Petitioner claimed tenancy on the basis of an oral lease of 1950 evidenced by a letter given by one of the trustees. That was followed by Ext. B 1 registered lease deed of 1956 in which prior possession was recognised. The tease transaction of 1950 and the competency of the alleged trustee who gave the letter were denied Both the Land Tribunal and the Appellate Authority negatived the lease transaction of 1950 and found that the person who gave the letter was not a trustee.
2. Though the lease deed of 1956 (Ext B 1) was admitted, the contentions were (1) It was not followed by possession (2) Ext B 1 is invalid and inoperative as it offends sec. 29of Hindu Religious and Charitable Endowment Act and Rules framed u/s 100thereof, and (3) the petitioner is not entitled to the relief because the tenancy is exempted from the operation of Chapter II under sec. 3(1) (x) of the Kerala Land Reforms Act.
3. On the evidence the Land Tribunal found possession with the petitioner. The appellate authority did not consider that aspect at all. The Devaswom accepted possession of the revision petitioner and got back a portion of the property from him under Ext B 6. Therefore it is not now open to them to contend that he was not in possession. That finding is concluded.
4. The Land Tribunal negatived the contention of the Devaswom based on sec. 29of the Hindu Religious and Charitable Endowment Act and the rules, but found that the transaction is exempted from the provisions of the Kerala Land Reforms Act under sec. 3 (1) (x) and dismissed the application. Both sides filed appeals. The appellate authority confirmed the finding that the transaction is exempted from tenancy under section3(1) (x) and dismissed the appeal filed by the tenant. Without making any reference to the finding of the Land Tribunal rejecting the contention under sec. 29of the Hindu Religious and Charitable Endowment Act, the appellate authority found that the transaction is invalid on the basis of the rules framed under the authority of sec. 100. The further finding was negativing even the tenancy. The finding of tenancy accepting Ext B 1 was criticised thus: "The Land Tribunal seems to have forgotten the fact that a person setting up specific lease failing to establish it cannot contend to set up another case of lease during trial". Probably the appellate authority meant that when the oral lease of 1950 was found against, the revision petitioner was not entitled to claim under Ext B I. It was the appellate authority who lost sight of the fact that Ext B I is not a new lease set up, but it is one alleged in the original application itself in continuation of the oral lease of 1950. It was really illegal on the part of the appellate authority to have taken such a stand without even considering the merits of the lease pleaded under Ext B1. It has to be remembered that Ext.BI. was not even denied and its validity alone was questioned. On these findings the appellate authority allowed the appeal filed by the Devaswom. That means the original application was dismissed. That was even without considering whether Ext. B1 was followed by possession.
5. The fact that Ext B 1 was executed and it was followed by possession cannot now be denied at least-in view of Ext B 6 which is binding on the Devaswom and which admits possession as well as leasehold right of the petitioner. The questions for further consideration are only the validity of Ext Bl and whether the transaction is exempted under sec. 3 (1) (x) of the Kerala Land Reforms Act.
6. Statutory provisions normally take effect only prospectively. That is the case with amendments also. Retrospective operation is something to be provided. Otherwise operation is only prospective. Validity or invalidity of a transaction in relation to a statutory provision will have to be decided on the basis of the legal provision as it stood at the time of the transaction. Otherwise bona fide transactions are likely to be affected to the detriment of individuals and even the society. On the date of Ext Bl in 1956, the legal position according to sec. 29of the Hindu Religious and Charitable. Endowment Act was that in the case of a lease sanction of the Commissioner on the basis that the transaction was necessary or beneficial to the institution was required only if it was for a term exceeding five years. Ext B 1 is only if it was for a term of one year. Term of five years was omitted and sanction made necessary for all leases only by the amending Act 13 of 1967. The amended provision is not applicable to Ext B1. Hence the invalidity on the basis of sec. 29 cannot stand.
7. Sec. 100 of the Hindu Religious and Charitable Endowment Act gives the rule making power. Sub sec. (2) indicates the areas to which the rules could extend. Sec. 100 (2) (m) provides that rules could specify the manner in which and the period for which leases of properties of religious institutions shall be made. Rule (1) framed under sec. 100 (2) (m) has provided that leases of lands, buildings, sites and other immovable properties and rights belonging to a religious institution shall be made by public auction held in places in which the properties are situate or the rights exist. This provision is made in the interest of the institution to secure proper bid so that interested persons may participate and the institution may get the highest amount by way of rent price. In appropriate cases the Deputy Commissioner is given the direction to sanction auction in other places if he is satisfied that it will not be detrimental to securing a proper bid-Rule 9(1) says that lease otherwise than by public auction shall not be resorted except with the previous sanction of the Deputy Commissioner. There is nothing to show that these provisions were not complied with Hence the appellate authority found that the lease was not to the benefit of the Devaswom and hence not valid.
8. The finding is really unfortunate. The above provisions are concerning the procedure in leasing out properties. The object is to secure the interest of the Devaswom and not to invalidate leases. Lease without auction or in places other than those where the properties lie or the rights exist are also contemplated. Neither the Act. nor the rules provide any penalty for violation or say that contravention will make the lease invalid and inoperative. Non compliance may be good grounds to avoid a lease prejudice to the Devaswom is established. But by itself it is not a reason to invalidate the lease. The lease was in 1956 and the Devaswom received rent and allowed the lessee to continue in possession, A portion of the leasehold premises was also purchased from him accepting that he is the lessee. Non-compliance of the procedural provisions, especially in such a situation, cannot have the effect of invalidating the lease. The lease must be held to be valid because want of authority to lease out is not even alleged. Such a provision cannot come to the rescue of the Devaswom to get out of its own actions and deny the fixity otherwise available to a tenant Compliance of the rules was the duty of the Devaswom and not the tenant. As against the tenant the Devaswom cannot put forward its own inactions as a ground for invalidation. These grounds could have been considered only in a proceeding for invalidating the lease.
9. Then the only remaining question is the claim for exemption under sec. 3 (1) (x) of the Kerala Land Reforms Act. In this respect, both the Land Tribunal and the Appellate Authority did not consider the provisions properly. It is true that tenancies in respect of premises of temples are exempted from. Chapter II under that provision. But in considering the exemption the provision had to be read as a whole. There is a proviso to that clause which will have to be read as part of that clause as an exception to it. Exemption under sec. 3(1) (x), according to the proviso, is not applicable to the rights of tenants to which they were entitled immediately before the commencement of the Act either under the contract of tenancy or under any law then in force. In as much as this case is concerned, the'' law in force at the time was the Malabar Tenancy Act which conferred fixity of tenure on tenants. The lease in question is not one exempted under sec. 2or any other provision thereof. Therefore the revision petitioner was entitled to fixity of tenure under Ext. B 1 on the basis of the Malabar Tenancy Act. That fixity of tenure is a right which he was entitled to immediately before commencement of Act 1 of 1964. The proviso preserves and reiterates that right and takes the right out of the exemption under sec. 3 (1) (x). That means the tenancy is not exempted and fixity is available. This aspect was not considered by the Land Tribunal or the appellate authority. That means the decisions are erroneous OD a question of law and they omitted to consider the legal effect of the proviso read along with the Malabar Tenancy Act.
10. The revision petitioner is a tenant entitled to fixity of tenure and he was continuously paying rent and revenue as evidenced by Exts A1 to 10. He was entitled to get an order of purchase on the basis of his tenancy right and possession. The Civil Revision Petition is allowed and the orders of the Land Tribunal and the Appellate Authority are set aside.
The revision petitioner is found to be a tenant entitled to fixity of tenure under the Kerala Land Reforms Act and therefore entitled to purchase the right, title and interest of the landlord under sec. 72B. The prayer in that respect is allowed. No costs. The Land Tribunal will proceed to issue purchase certificate according to law after observing the legal formalities.
