The Kerala Stay of Eviction Proceedings (Amendment) Act, 1969 [1] Complete Act - Bare Act

ACT 5 OF 1969 THE KERALA STAY OF EVICTION PROCEEDINGS (AMENDMENT) ACT, 1969 [1]

An Act to amend the Kerala Stay of Eviction Proceedings Act, 1967.

Preamble ." WHEREAS it is expedient to amend the Kerala Stay of Eviction Proceedings Act, 1967, for the purposes hereinafter appearing;

Be it enacted in the Twentieth Year of the Republic of India as follows:" 1. Short title and commencement . " (1) This Act may be called the Kerala Stay of Eviction Proceedings (Amendment) Act, 1969.

(2) It shall come into force at once.

2. Amendment of section 1 ." In sub-section (3) of section 1 of the Kerala Stay of Eviction Proceedings Act, 1967 (9 of 1967) (herein after referred to as the principal Act), for the figures, letters and words "31st day of December 1968", the figures, letters and words "31st day of December 1969" shall be substituted.

3. Substitution of new sections for section 2 ." For section 2 of the principal Act, the following sections shall be substituted, namely: "

"2. Definition ." In this Act, unless the context otherwise requires,"

(i) the terms "jenmi", "jenmikaram" and "kanam tenant" shall have the meanings respectively assigned to them in the Kanam Tenancy Act, 1955 (24 of 1955);

(ii) the terms "Cochin", "court", "cultivate", "cultivating tenant", "customary Verumpattomdar". "eviction", "holder of a chalgeni lease", "kanamdar", "kudiyiruppu", "landlord", "Land Tribunal", "licensee", "Malabar", "mulgenidar", "punam or kumri cultivator", "rent", "resumption", "vaidageni lease", "varamdar". "vechupakuthidar" and "verumpattamdar" shall have the meanings respectively assigned to them in the Kerala Land Reforms Act. 1963 (1 of 1964);

(iii) "holding" means a parcel or parcels of land held under a single transaction by a tenant from a landlord and shall include any portion of a holding as above defined which the landlord and tenant have agreed or are bound to treat as a separate holding.

Explanation I ."Where by act of parties or by operation of law the interest of the tenant in his holding has been severed, splitting up the holding into two or more parts, or where a portion of the holding has been sub-leased, before the commencement of this Act each such part or, as the case may be, each of the portions retained by the tenant and sub-leased, shall be deemed to be a separate holding.

Explanation II ." Any land in respect of which a person is deemed to be a tenant under section 4, section 4A, section 5, section 8 or section 9 of the Kerala Land Reforms Act, 1963 (1 of 1964} or section 2A, section 2B, section 2C, section 2D, section 2E, or section 2F of this Act shall be a holding for the purposes of this Act;

(iv) "intermediary" means any person who, not being a landowner or mortgagee (other than a mortgagee deemed to be a tenant under section 4A, or section 5 of the Kerala Land Reforms Act, 1963 (1 of 1964) or under section 2A or section 2B of this Act), has an interest in the land and is entitled, by reason of such interest, to possession thereof, but has transferred such possession to any other person otherwise than by way of mortgage (other than a mortgage falling under any of the said sections).

Explanation ." Where such a person has transferred possession only of a portion of the land which he is so entitled to possess, shall be deemed to be an intermediary in respect of that portion;

(v) "kanam-kuzhikanam" means a transfer by a landlord to another person of garden lands or of other lands or of both"

(a) with the fruit-bearing trees, if any, standing thereon at the time of the transfer; or

(b) where the landlord reserves all or any one or more of such trees for his enjoyment or the enjoyment of any other person with the remaining fruit-bearing trees, if any, standing thereon at the time of the transfer;

for the enjoyment of those trees and for the purpose of planting such fruit-bearing trees thereon, the incidents of which transfer include"

(i) a right in the transferee to hold the said lands liable for the consideration paid by him or due to him. which consideration is called "Kanartham"; and

(ii) the liability of the transferor to pay to the transferee interest on the kanartham unless otherwise agreed to by the parties:

Provided that a usufructuary mortgage as defined in the Transfer of property Act, 1882 (Central Act 4 of 1882), shall not be deemed to be a kanam-kuzhikanam;

( vi) "karaima" means a transfer of land situate in the Kozhikode District in consideration of ground rent principally for the purpose of erecting a homestead and described as karaima in the document evidencing the transfer;

(vii) "kudikidappukaran" means a person who has neither a homestead nor any land exceeding five cents in extent, either as owner or as tenant in possession on which he could erect a home stead, and"

(a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or

(b) who has been permitted by a person in lawful occupa tion of land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land, but otherwise has no interest in the land, and '"kudikidappu" means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto: Provided that a person who, on the 1st day of April, 1967, was in occupation of any land and the homestead thereon, or in occupation of a hut belonging to any other person, and who con tinued to be in such occupation on the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette shall be deemed to be in occupation of such land and homestead, or hut as the case may be, with permission as required under this clause.

Explanation I . "For the purposes of this clause, "hut" means any dwelling house which was constructed at a cost not exceeding five hundred rupees, or could have, at the time of construction, y ielded a monthly rent not exceeding five rupees.

Explanation II . "Where any kudikidappukaran secures any mortgage with possession of the land in which the kudikidappu is situate, his kudikidappu right shall revive on the redemption of the mortgage, provided that he has at the time of the redemption no other homestead or any land exceeding five cents in extent, either a s owner or as tenant in possession on which he could erect a h omestead.

Explanation III.

"

Where a mortgagee with possession erects for his residence a homestead on the land to which the mortgage relates, he shall, notwithstanding the redemption of the mortgage, be deemed to be a kudikidappukaran in respect of such homestead, provided that at the time of the redemption,"

(a) he has no other homestead or any land exceeding five cents in extent, either as owner or as tenant in p ossession, on which he could erect a homestead; and

(b) his annual income does not exceed one thousand and five hundred rupees.

Explanation IV ."Where a kudikidappukaran transfers his right in the kudikidappu to another person, such person shall be deemed to be a kudikidappukaran, if"

(a) he has no other homestead or any land exceeding five cents in extent, either as owner or as tenant in possession, on which he could erect a homestead; and

(b) his annual income does not exceed one thousand and five hundred rupees;

Explanation V . "For the purposes of this clause, a person occupying any hut belonging to the owner of a plantation and situate in the plantation shall not be deemed to be a kudikidappukaran if such person was permitted to occupy that hut in connection with his employment in the plantation, unless"

(i) he was, immediately before the commencement of this Act, entitled to the rights of a kudikidappukaran or the holder of protected ulkudi or kudikidappu under any law then in force; or

(ii) he would have been entitled to the rights of a kudikidappukaran if the area in which that hut is situated had not been converted into a plantation subsequent to his occupation of that hut.

(viii) "kuzhichuvaipum kudiyirippum" means a transfer by; a landlord to another person of garden lands or of other lands or of both situate in Malabar, reserving the right to enjoy the fruit-bearing trees standing thereon at the time of the transfer, for the purpose of making improvements thereon, and described as such in the contract of tenancy;

(ix) "kuzhikanam" means a transfer by a landlord to another person of garden lands or of other lands or of both"

{a) with the fruit-bearing trees, if any, standing thereon at the time of the transfer; or

(b) where the landlord reserves all or any one or more of such trees for his enjoyment or the enjoyment of any other person, with the remaining fruit- bearing trees, if any, standing thereon at the time of the transfer; for the enjoyment of those trees and for the purpose of planting such fruit-bearing trees thereon, and includes an ottikuzhikanam but shall not include a usufructuary mortgage as defined in the Transfer of Property Act, 1882 (Central Act 4 of 1882);

(x) "possession" in relation to land includes occupation of land by a person deemed to be a tenant under section 4, section 4A, section 5, section 8 or section 9 of the Kerala Land Reforms Act, 1963 ( 1 of 1964) or under section 2A, section 2B, section 2C, section 2D, section 2E or section 2F of this Act;

(xi) "tenant" means any person who has paid or has agreed to pay rent or other consideration, for his being allowed by another to possess and to enjoy the land of the latter and includes "

(a) an intermediary,

(b) a kanamdar,

(c} a kanam-kuzhikanamdar.

(d) a kuzhikanamdar.

(e) a mulgenidar, (f) a verumpattamdar of any description (including a customary verumpattamdar),

(g) the holder of a chalgeni lease,

(h) the holder of a kudiyiruppu,

(i) a person holding land under a kuzhichuvaipum kudi yiruppum,

(j) the holder of a karaima,

(k) the holder of vaidageni lease,

(1) a person who is deemed to be a tenant under section 4, section 4A, section 5, section 8, or section 9 of the Kerala Land Reforms Act; 1963 (1 of 1964),

(m) a person who is deemed to be a tenant under section 2A, section 2B, section 2C, section 2D, section 2E or section 2F, or presumed to be a tenant under section 2G of this Act.

2A. Certain mortgagees who were holding land on verumpattam on or after 1st Chingam, 1111, to be deemed tenants. "Notwithstandin g anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, a mortgagee with possession of immovable property situate in Cochin shall be deemed to be a tenant, if"

(a) the property comprised in the mortgage consists of agricultural land;

(b) he was holding the property comprised in the mortgage as verumpattamdar on or after the first day of Chingam, 1111, and

(c) the verumpattam was terminated after the first day of Chi ngam. 1111 and before the commencement of Kerala Land Reform s Act, 1963 (1 of 1964), but he continued in possession of the property, without interruption, as a mortgagee with possession from the date of such termination till the commencement of the Kerala Land Reforms Act, 1963 (1 of 1964).

2B.

Certain persons who were holding land on or after 1st December, 1930, to be deemed tenants.

"

Notwithstanding anything to the con trary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, a person in possession of immovable property in any area in the State to which the Malabar Tenancy Act, 1929, extended, whether as mortgagee or otherwise shall be deemed to be a tenant, if"

(a) the property in his possession consists of agricultural land;

(b) he or any of his predecessors-in-interest was holding property as a tenant on or after the first day of December, 1930.

Explanation . "For the purposes of this clause, "tenant" means a tenant as defined in the Malabar Tenancy Act, 1929, as in force on the 1st day of November, 1956; and

(c) the tenancy was terminated after the 1st day of December, 1930 and before the commencement of the Kerala Land Reforms Act 1963 (1 of 1964), but his predecessors-in-interest or himself continued in possession of the property, without interruption, whether as a mortgagee with possession or otherwise, from the date of such termination till the commencement of the Kerala Land Reforms Act, 1963 (1 of 1964).

2C. Certain persons occupying land honestly believing to be tenants, to be deemed tenants

."

Notwithstanding anything to the contrary contained in any law or in any contract, custom or usage, or in any judgment, decree or order of court, any person who, on the llth day of April, 1957, was continuously in occupation of the land of another situate in Malabar, for not less than two years, honestly believing himself to be a tenant and continued to be in occupation of such land at the commencement of the Kerala Land Reforms Act, 1963 (1 of 1964), shall be deemed to be a tenant.

Explanation ." Notwithstanding anything contained in the Indian Evidence Act, 1872, where a person has been continuously in occupation of any such land for the said period, it shall be presumed, until the contrary is proved, that he has been in such occupation honestly believing himself to be a tenant.

2D. Certain persons who were in occupation for not less than twenty years to be deemed tenants ." Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage or in any judgment, decree or order of court, any person who occupied any land believing it to be the property of Government, but which has subsequently been declared to be the property of any other person by any judgment, decree or order of court, and was continuously in occupation of the land for a period of not less than twenty years preceding the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette shall be deemed to be a tenant.

2E. Certain persons occupying lands believing to be tenants to be deemed tenants.

"

Notwithstanding anything to the contrary con tained in any law, or in any contract, custom or usage or in any judgment, decree or order of court, any person who on the 11 th day of April, 1957 was continuously in occupation of the land of a nother for not less than two years on the basis of a registered lease deed and continued to be in occupation of such land on the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968 in the Gazette shall be deemed to be a tenant, notwithstanding th e fact that the tenancy was created by a person not competent to do so.

2F. Certain other persons to be deemed tenants ." Notwithstanding anything to the contrary contained in any law, or in any contract, cust om or usage, or in any judgment, decree or order of court, the following classes of persons shall be deemed to be tenants:"

(i) a punam or kumri cultivator;

(ii) a licensee;

(iii) a varamdar;

(iv) a vechupakuthidar; and

(v) a person holding land situate in any part of the Taluk . of Hosdurg or Kasaragod to which the Malabar Tenancy Act, 1929, did not extend, under a transaction described in the document evidencing it as bhogya, otti, nattotti, arwar, illidarwar or krithasartha illidarwar, but not being a usufructuary mortgage as defined in the Transfer of Property Act, 1882 (Central Act 4 of 1882).

2G. Sambalapattamdar, sambalachittudar, etc., in certain areas to be presumed tenants ." Where, in a document, a person is described as a sambalapattamdar, sambalachittudar or coolipattamdar in respect of any nilam situate in the Palghat or Trichur District or in the Kuttanad area, or as a, gaimakarardar in respect of any land situate in the Taluk of Hosdurg or Kasaragod in the Cannanore D istrict, he shall be presumed to be a tenant for all purposes of this Act:

Provided that such presumption shall stand rebutted if it is proved that the sambalapattamdar, sambalachittudar, coolipattamdar or gaimakarardar has not undertaken any risk of cultivation.".

4. Amendment of section 3."In section 3 of the principal Act after clause (a), the following

Explanation

shall be inserted, namely :"

"

Explanation . " For the purposes of this clause, lands belonging to or vested in the Government of Kerala shall have the same meaning as Government lands under sub-section (1) of section 2 of the Kerala Government Land Assignment Act, I960, but lands held under leases subsisting at the commencement of the Kerala Land Reforms Act, 1963, (1 of 1964) and escheated to Government shall not be deemed to be lands belonging to or vested in the Government of Kerala if the lessees or their predecessors-in-interest were possession of the land at the time of escheat as tenant under lease whether current or time expired.".

5. Amendment of section 4 . " In section 4 of the principal Act, for "the words "at such commencement" the words, brackets, and figures "at the commencement of the Kerala Stay of Eviction Proceedings (Amendment) Act, 1969" shall be substituted.

6. Substitution of new sections for section 5. " For section 5 of the principal Act, the following sections shall be substituted namely: "

"5. Arrears of rent payable by tenant.

"

Notwithstanding thing to the contrary contained in any other law, or in any contract custom or usage, or in any judgment, decree or order of any court, or Land Tribunal, no landlord or any person claiming under, shall initiate or proceed further with any proceedings, whether suit, application or otherwise, for the recovery of arrears of rent in respect of, or for damages for use and occupation of, a holding or part of a holding, or a kudikidappu, accrued due before the 1 st day of May, 1966 or any proceedings incidental or ancillary thereto, and any such proceedings pending at the commencement of the Kerala Stay of Eviction Proceedings (Amendment) Act, 1969, in courts or Land Tribunals shall be stayed.

5A. Arrears of Jenmikaram payable by kanam tenant . " Notwit standing anything to the contrary contained in the Kanam Tenancy Act, 1955 (24 of 1955). no jenmi or any person claiming under him shall initiate or proceed further with any proceedings, whether by suit, application or otherwise, for the recovery of arrears of jenmikaram accrued due before the 1st day of May, 1966 or any other proceedings incidental or ancillary thereto, and any such proceedings pending at the commencement of the Kerala Stay of Eviction Proceedings (Amendment) Act, 1969, in courts competent to entertain such proceedings or before the Tahsildar shall be stayed.

5B. Jenmikaram to be proportionately reduced ." Notwithstand ing anything to the contrary contained in any other law, where in respect of any holding held by a tenant, a kanam tenant is a landlord, and as a result of the determination of the fair rent under the Kerala Agrarian Relations Act, 1960 (4 of 1961) or under the Kerala Land Reforms Act, 1963 (1 of 1964), there has been a reduction in the rent payable to such landlord, the Jenmikaram payable by such landlord for that holding and accrued due after the 1st day of May, 1966, shall be reduced in the same proportion as the rent to which he was entitled was reduced. ".

7. Amendment of section 6 ."In section 6 of the principal Act, in sub-section (1), for the words, figures and brackets "the Kerala Stay of Eviction Proceedings Ordinance 1967 (4 of 1967)", the words, brackets and figures "the Kerala Stay of Eviction Proceedings (Amendment) Act, 1969" shall be substituted.

8. Amendment of section 7. "In section 7 of the principal Act, in sub-section (1), for the words, figures and brackets "the Kerala Stay of Eviction Proceedings Ordinance, 1967 (4 of 1967), the words, brackets and figures "the Kerala Stay of Eviction Proceed ings (Amendment) Act. 1969" shall be substituted.

9. Insertion of new sections 7A, 7B, 7C and ID ." After section 7 of the principal Act, the following sections shall be inserted, namely:"

"7A. Restoration to certain persons of their Land ." (1) Not withstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, where any person has been evicted from the land in his occupation on or after the 1st day of April, 1964 and such eviction would not have been made if the Kerala Stay of Eviction Proceedings (Amendment) Act, 1969 had been in force at the time, such person shall be entitled subject to the provisions of this section, to resto ration of possession of the land;

Provided that nothing in this sub-section shall apply in any case where the said land has been sold to a bona fide purchaser under a registered document for consideration on or before the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette.

(2) Any person entitled to restoration of possession under sub section (1) may within a period of sixty days from the commence ment of the Kerala Stay of Eviction Proceedings (Amendment) Act, 1969, apply to the court for restoration of possession of the land.

(3) The court shall, if satisfied after such summary enquiry as the court deems fit, restore the applicant to the possession of the land.

(4) The court may also order the applicant to deposit in court the compensation, if any, received by the applicant under any decree, or order of court towards value of improvements or other wise and the value of improvements, if any, effected on the land after the eviction as may be determined by the court.

7B. Restoration of possession of tenants dispossessed under Chapter XII of the Code of Criminal Procedure.

"

(1) Where any person claiming to be a tenant of any land has been actually dis possessed in any proceedings under Chapter XII of the Code of Criminal Procedure, 1898, after the determination of fair rent in respect of that land and a suit for setting aside the order in the proceedings under the said Chapter XII was pending in any civil court of competent jurisdiction on the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette, then notwithstanding such dispossession and notwithstanding anything contained in any judgment, decree or order of court or any record of dispossession the person claiming to be tenant shall, if he was actually in possession on the said date, be entitled to continue in possession of such land subject to the final decision in such suit and if he was not in possession on the said date be entitled to restoration of possession and to continue such possession till the decision in such suit.

(2) Any person who is entitled to be restored to possession of any land under sub-section (1) may make an application in writing within a period of sixty days from the commencement of the Kerala Stay of Eviction Proceedings (Amendment) Act, 1969, to the Revenue Divisional Officer having jurisdiction over the area in which the land is situate for the restoration of possession of such land.

(3) The Revenue Divisional Officer shall, on receipt of an application under sub-section (2) make or cause to be made necessary enquiries in respect of such application and if he is satisfied that the applicant is entitled to restoration of possession of the land to deliver possession of the same to the applicant within a period of thirty days from the date of service of the order:

Provided that no order under this sub-section shall be made unless the person who is in possession of the land has been given an opportunity of being heard in the matter.

(4) Any person aggrieved by an order of the Revenue Divisional Officer under sub-section (3) may, within a period of thirty days from the date of service of the order, prefer an appeal to the Collector of the District in which the land is situate, and the order of the Collector on such appeal shall be final.

(5) Where an order made under sub-section (3) has not been complied with, and"

(a) no appeal has been preferred within the time allowed for such appeal; or

(b) an appeal having been preferred has been dismissed, the Revenue Divisional Officer shall cause the land to be delivered to the applicant by putting him in possession of the land, and if need be, by removing any person who refuses to vacate the same.

7C.

Customary, Easement and other rights of Kudikidappukaran. "(l) Notwithstanding anything contained in any law or in any contract or in any judgment, decree or order of court, the kudikidappukaran shall be entitled to all rights accrued to him by custom, usage or agreement and which he was enjoying immediately before the commencement of the Kerala Stay of Eviction Proceedings (Amendment) Act, 1969.

( 2) Notwithstanding anything contained in any law, or in any judgment, decree or order of court, but without prejudice to any rights to which a kudikidappukaran may be entitled under any other law for the time being in force or under any custom, usage or contract, a kudikidappukaran shall have all the rights and privileges provided in the Indian Easements Act, 1882 (5 of 1882) had such Kudikidappukaran been the owner of the kudikidappu from the date from which it was erected or occupied, as the case may be, and he shall, for the purposes of supply of electrical energy or water from a pipe supply of water to the kudikidappu for domestic consumption and use, be deemed to be the owner or occupier or both, as the case may be, of the land in which the kudikidappu is situate.

7D. Penalty for disturbance of customary, easement and other rights of kudikidappukaran.

"

Any person who in any manner disturbs or interferes with the customary, easement or other rights to which a Kudikidappukaran is entitled under this Act shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to two thousand rupees or with both; and notwithstanding anything contained in section 123 of the Kerala Land Reforms Act, 1963 (1 of 1964), an offence under this section, shall be a c ognizable offence.".

10. Repeal and saving ."(l) The Kerala Stay of Eviction Proceedings (Amendment) Ordinance, 1968 (7 of 1968), is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the Kerala Stay of Eviction Proceedings Act, 1967 (9 of 196 7), as amended by the said Ordinance shall be deemed to have been done or taken under the said Act as amended by this Act as if this Act had come into force on the 30th day of December, 1968.