Kerala High Court
Ayanikkadan Nuzrath vs The Taluk Land Board on 1 January, 2013
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 1ST DAY OF JANUARY 2013/11TH POUSHA 1934
CRP(LR).NO. 577 OF 2012 ()
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CR.785/1973 OF TALUK LAND BOARD, ERNAD
PETITIONER(S):
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AYANIKKADAN NUZRATH,, AGED 29 YEARS
D/O.MOHAMMED
CHEAKODU AMSOM OMANUR DESOM OF ERNAD TALUK
OMANUR(PO),MALAPPURAM DISTRICT,PIN-673645.
BY ADVS.SRI.T.K.AJITH KUMAR
SRI.P.VINODKUMAR
SRI.K.S.ARUNDAS
RESPONDENT(S):
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1. THE TALUK LAND BOARD,
ERNAD TALUK,MANJERI(PO),MALAPPURAM(DT)
PIN-676121.
2. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,SECRETARIAT
THIRUVANANTHAPURAM,PIN-695001.
BY SPECIAL GOVERNMENT PLEADER (REVENUE) SMT. SUSHEELA R.BHAT
THIS CRP (LAND REFORMS ACT) HAVING COME UP FOR ADMISSION
ALONG WITH C.R.P(LR) NO.579 OF 2012 AND CONNECTED CASES ON
01.01.2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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C.R.P(LR) No.577 of 2012,
C.R.P(LR) No.579 of 2012,
C.R.P(LR) No.580 of 2012,
C.R.P(LR) No.581 of 2012
&
C.R.P(LR) No.582 of 2012,
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Dated this the 01st day of January, 2013
O R D E R
Admit.
2. The learned Special Government Pleader (Revenue) takes notice for the respondents.
3. These Civil Revision arise from the common order dated 06.11.2012 of the Taluk Land Board, Ernad (for short, "the TLB") deciding the claims made by the petitioners. Petitioners in C.R.P. Nos.577, 579, 580 and 581 of 2012 claimed protection of Section 7E of the Kerala Land Reforms Act (for short, "the Act") concerning the property in their possession. The TLB took the view that in view of the decision of this Court in O.P(C) No.47 of 2012, question whether those petitioners are entitled to the protection of the said provision is to be decided by the Land Tribunal (for short, "the Tribunal) concerned.
4. So far as C.R.P. No.582 of 2012 is concerned, the TLB has taken the view that of the 4.34 acres in respect of which one C.R.P(L.R.) No.577 of 2012, etc. -: 2 :- Abdul Rasheed who claimed under the declarant obtained purchase certificate from Land Tribunal-III, Malappuram, what is available after excluding the portions already deleted with respect to certain other claimants is only 1.56 Acres as against the claim made by the petitioner in C.R.P. No.582 of 2012 for exemption of 2.54 acres. The TLB exempted 1.56 acres from the 2.54 Acres claimed by the by the petitioner in C.R.P. No.582 of 2012 and an order was passed accordingly. The common order is under challenge in these Civil Revisions.
5. Since in view of the dispute involved and the contentions raised, the Civil Revisions could be disposed of on a perusal of the impugned order, I have not called for the records of the case.
C.R.P. No.577 of 2012
6. Petitioner claims right, title, interest and possession of 1.05 Acres in Sy. No.475/3 as per document No.1349 of 2006 executed by one Mammadkutty Haji, son of the declarant. The said Mammadkutty Haji claimed right over the property as per partition deed No.692 of 1999. The TLB has pointed out that the documents of title relied on by the petitioner are executed after 01.01.1970 and hence the petitioner is not entitled to get C.R.P(L.R.) No.577 of 2012, etc. -: 3 :- exemption.
7. So far as the claim under Sec.7E of the Act is concerned, the TLB has taken the view that the said question has to be decided by the Tribunal.
C.R.P. No.579 of 2012
8. Claim is with respect of 80 cents in Sy. No.464 as per document No.1120 of 2005 executed by one Fathima who claimed right over the property as per partition deed No.686 of 1999 and document No.1553 of 2001. There also, the claim for exemption was not allowed for the reason that the documents were executed after 01.01.1970.
9. With respect to the claim made under Sec.7E of the Act, the TLB has taken the similar view as in C.R.P. No.577 of 2012.
C.R.P.No.580 of 2012
10. The claim is with respect to 76.8 cents in Sy.Nos.464 and 465/1 as per document Nos.87 of 2003 and 1105 of 2005 executed by one Sankaran who claimed right as per document No.1812 of 2002 executed by the legal heirs of the declarant. There also the documents being executed after 01.01.1970, exemption was not allowed.
C.R.P(L.R.) No.577 of 2012, etc. -: 4 :-
11. With respect to the claim under Sec.7E of the Act the TLB has taken the same view as in C.R.P. No.577 of 2012. C.R.P. No.581 of 2012
12. The claim is with respect to 41.87 cents in Sy. Nos.466/2 and 467/2. Petitioner claimed right, title, interest and possession as per document Nos.1941 of 2004 and that being after 01.01.1970, was not taken into account.
13. With respect to the claim under Sec.7E of the Act, the TLB has taken the same view as in C.R.P. No.577 of 2012.
14. So far as the above Civil Revisions are concerned, the documents having come into existence after 01.01.1970, exemption prayed for cannot be allowed.
15. What survives for a decision is only whether those petitioners are entitled to the protection under Sec.7E of the Act?
16. The TLB has pointed out with respect to claim under Sec.7E of the Act that this Court by judgment dated 17.01.2012 in O.P(C) No.47 of 2012 has taken the view that the claim has to be agitated in the Tribunal and it cannot be agitated in the TLB.
17. I have obtained a copy of judgment in O.P(C) No.47 of 2012. I have also heard the learned counsel for petitioners and the learned Special Government Pleader (Revenue). C.R.P(L.R.) No.577 of 2012, etc. -: 5 :-
18. In the aforesaid judgment, learned Judge of this Court has taken the view that "deemed tenancy" under Sec.7E of the Act is a question falling outside the domain of consideration by the TLB as it has to be decided by the Tribunal. It was observed that the petitioner in that case was entitled to canvass the status of a deemed tenant (obviously) before the Tribunal concerned.
19. Having heard the learned counsel and the Special Government Pleader (Revenue), I do not find reason to take a different view of the matter. Therefore the TLB is correct in its view that so far as the claim made by the petitioners in C.R.P. Nos. 577, 579, 580 and 581 of 2012 under Sec.7E of the Act is concerned, that is not a matter to be decided by the TLB. It is made clear that it is open to the petitioners in the above Civil Revisions to agitate their right under Sec.7E of the Act before the Tribunal concerned.
C.R.P. No.582 of 2012.
20. What remains is the challenge in this Civil Revision. Claim is with respect to 2.54 Acres in Sy. No.464 as per document No.1124 of 2004 executed by one Sulaikha who claimed title and possession of the said 2.54 Acres as per document No.1329 of 1993 executed by one Abdul Rasheed. C.R.P(L.R.) No.577 of 2012, etc. -: 6 :- The said Abdul Rasheed obtained purchase certificate No.495 of 1984 from Land Tribunal-III, Malappuram with respect to 4.34 Acres in Sy. No.464.
21. The TLB has pointed out that by order dated 03.09.2010 it had deleted 1.56 Acres (from the 2.54 Acres claimed by the petitioner) and that order was challenged by the petitioner in this Court in C.R.P. No.579 of 2010. It is also pointed out by the TLB that of the said 4.34 Acres covered by the purchase certificate No.495 of 1984, 91 cents was deleted from the account of the declarant as per claim made by one Aboobacker and that another 1.87 Acres was deleted from the account of the declarant as per claim made by one Sulaiman. Excluding the said 91 cents, and 1.87 Acres from the 4.34 Acres, what remains is only 1.56 Acres which was deleted from the 2.54 Acres claimed by the petitioner in this Civil Revision.
22. The learned counsel contends that the order dated 03.09.20120 was interfered by this Court in C.R.P. No.579 of 2010 and hence the TLB was not correct in placing reliance on the order in that Civil Revision.
23. I am given a copy of the order in C.R.P. No.579 of 2010 and connected Civil Revisions. C.R.P. No.579 of 2010 was C.R.P(L.R.) No.577 of 2012, etc. -: 7 :- filed by the petitioner in this Civil Revision from the order of the TLB, dated 03.09.2010. By the said order, the TLB deleted only 1.56 Acres from the 2.54 Acres claimed by the petitioners. The TLB had not assigned any reason for not excluding the rest of the property from 2.54 Acres claimed by the petitioner. Referring to that, this Court observed in the order dated 03.09.2010 in C.R.P. No.579 of 2010 and connected revisions that the matter has to go back to the TLB as it had not assigned any reason for not excluding the entire 2.54 Acres. A reading of the order in C.R.P. No.579 of 2010 would show that this Court did not interfere with the order dated 03.09.20120 of the TLB deleting the 1.56 Acres in favour of the petitioner and the remand was only with respect to the rest of the property in 2.54 Acres, that too, for the reason of the TLB not assigning any reason for not excluding rest of the property in 2.54 Acres.
24. In the present order, the TLB has assigned reason for not excluding the rest of 2.54 Acres, the reason being that of the 4.34 Acres covered by purchase certificate No.495 of 1984, 91 cents has been deleted as claimed by Aboobacker and another 1.87 Acres was deleted as per the claim made by Sulaiman. The 91 cents excluded as per the claim of Abboobacker 1.87 Acres C.R.P(L.R.) No.577 of 2012, etc. -: 8 :- excluded as per claim of Sulaiman and the 1.56 Acres deleted from the 2.54 Acres claimed by the petitioners together makes the 4.34 Acres covered by purchase certificate No.495 of 1984. In view of exclusion of 91 cents and 1.87 Acres as aforesaid what remained to be excluded from the 4.34 Acres covered by purchase certificate No.495 of 1985 was only 1.56 Acres which has been deleted as per the claim of the petitioner.
25. Though learned counsel has advanced a contention that petitioner had a preferential claim, I do not find any reason to accept that also in view of the order passed in C.R.P. No.579 of 2010.
26. So far as the claim made under Sec.7E of the Act involved (in C.R.P. Nos. 577, 579, 580 and 581 of 2012) is concerned I make it clear that it is open to the petitioners therein to approach the Tribunal concerned and establish their claim under the said provision. Until then, the respondents shall not take possession of the properties claimed by the petitioners in the said Civil Revisions.
Resultantly, these Civil Revisions are disposed of as under:
(i) C.R.P(L.R.) No.582 of 2012 is dismissed.
(ii) So far as C.R.P(L.R.) Nos.577, 579, 580 and 581 of C.R.P(L.R.) No.577 of 2012, etc. -: 9 :- 2012 are concerned, it is made clear that it is open to the petitioners therein to approach the Tribunal concerned and establish their claim of deemed tenancy under Sec.7E of the Act .
(iii) Petitioners shall do so within two months from this day.
(iv) It is directed that in case petitioners move the appropriate Tribunal as above stated within the period prescribed, the respondents shall not take possession of the property in the possession of the petitioners in C.R.P(L.R.) Nos.577, 579, 580 and 581 of 2012 until their claim of deemed tenancy is adjudicated finally by the Tribunal and other authorities concerned.
THOMAS P. JOSEPH, JUDGE.
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