Kerala High Court
T.K.C. Moideenkutty vs State on 17 January, 2007
Author: M.Ramachandran
Bench: M.Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 505 of 2001(G)
1. T.K.C. MOIDEENKUTTY
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.T.KRISHNAN UNNI
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice M.RAMACHANDRAN
Dated :17/01/2007
O R D E R
(M.RAMACHANDRAN. J)
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C.R.P.No.505 of 2001-G
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Dated this the 17th day of January, 2007
O R D E R
Proceedings of the Taluk Land Board, Tirur dated 30-09-2000 is under challenge. By the said order, a total extent of 22.30 ordinary acres of land were directed to be surrendered, in exercise of powers under Section 85(5) of the Kerala Land Reforms Act. The petitioner submits that in spite of specific directions issued by this Court full attention has not been bestowed in respect of the claims and the order requires to be set aside.
2. Originally the Taluk Land Board on 31-12-1982 had directed surrender of 37.02 acres. By order in C.R.P.No.1321 of 1981, it had been found that in respect of certain items of properties, which were directed to be surrendered, principles to be adopted had not been correctly applied by the Taluk Land Board. Therefore specified objections were directed to be considered afresh. It is seen that after remand notice had been issued to the [CRP No.505 of 2001] -2- parties concerned. After due hearing, the present order had come to be passed.
3. As could be seen from the proceedings, objection Nos.6, 8, 10, 12, 14, 15, 18 and 21 had been upheld. According to counsel, what remained there as objectionable was decision in respect of objection Nos.5 and
9. Additionally there were claims in respect of a laterite quarry and a granite quarry as well as a parcel of land which had been claimed as surrendered for construction of a road by the Panchayat. The claims in respect of these heads, which were rejected, could now be examined so as to see whether the order suffers any mistake requiring interference in exercise of powers of this Court under Section 115 of the Code of Civil Procedure. Although option was given, as required under law in respect of surrender, it is pointed out that in view of the interlocutory orders the status quo all through out was being maintained.
4. Objection No.5 pertains to 6.40 acres of land in Sy.No.247/1A of Kattipparuthy Village. The case was [CRP No.505 of 2001] -3- that already 3.62 acres thereof had been assigned by the Land Tribunal, Kuttippuram, and there were four kudikidappukars and this area had to be deleted from the declarant's account. However, the Taluk Land Board had noted that the above contention had been accepted in respect of the holding and the question of further exemption does not arise. The objection was overruled. It has to be found that it was done rightly.
5. In respect of objection No.9, pertaining to 52 cents in Sy.No.247/1A of Kattipparuthy Village, it was argued that by proceedings of the Land Tribunal jenmom right had been assigned in favour of the tenant. It is seen that the Tribunal had verified the records and had found that the claim agitated was not found acceptable, since Survey Numbers and extent of the property in the said proceedings are totally different. Therefore, it has not been possible for the declarant to convince the Land Board that any mistake had been committed, as the burden was on the declarant to show that the properties were not in his possession at the relevant time. The decision on this point [CRP No.505 of 2001] -4- also is upheld.
6. The next contention is in respect of lands situated in Sy.Nos.262/1,2 and 3, which were claimed as quarries for extraction of granite. Reliance was placed on a decision of this Court in State of Kerala v. Mohammedali Haji [1996 (1) KLT 584], which dealt with claims under Section 2(5) and Section 81(1)(q) of the Kerala Land Reforms Act. Mr.Krishnanunni submits that liberal interpretation is to be there in respect of the word "undertaking". It was not necessary that an individual was to have a registered establishment to get the benefits, when as a matter of fact quarrying had been continuing there on a regular basis. Exemption was intended to be conferred, when a parcel of land was put to commercial use.
7. The report of the Authorised Officer, as referred to in the order of the Taluk Land Board, shows that it was a working quarry for extraction of granite. It is presumable that industrial activities were going on. The allegation that there was no permit produced as issued by the Panchayat authorities, nor was there authorisation by [CRP No.505 of 2001] -5- the Department of Geology perhaps may be circumstance for characterising the extraction as irregular, but nevertheless the activities admitted as going on there are sufficient to indicate that the properties are put to use for an industrial venture circumstantially an extended meaning has to be given to the word "undertaking". Therefore, it may be possible to hold that the petitioner was entitled to exemption.
8. It is evident that the properties were rocky and unfit for cultivation. The very purpose of surrender of surplus land is for distribution of the same to landless individuals for the purpose of cultivation. It is common sense that dispossession of the petitioner will not subserve the underlying intention of the enactment. The Act does not postulate distribution of land for industrial or commercial exploitation. An interpretation therefore as suggested by the counsel would be acceptable. Resultantly, the above area coming under the three survey numbers, which are in the possession of the petitioner, requires to be exempted from surrender.
[CRP No.505 of 2001] -6-
9. But that is not the case in respect of properties lying in R.S.Nos.221/3A1, 221/3A2 and 3B, measuring an extent of 8.33 acres. The claim reagitated by the declarant was that it was used exclusively for a laterite quarry. The entire land, according to him, was so used as laterite quarry. Claim appears to be that the whole property was specifically earmarked for such a commercial purpose. It was a rock barren land, it is averred, which could not be used for cultivation.
10. However, it is seen that the Taluk Land Board had relied on the report of the Authorised Officer, which practically stood uncontroverted. There was only signs of defunct laterite quarries in the site. Section 81 (1)(k) of the Kerala Land Reforms Act could be extracted herein:
"(k) lands belonging to or held by an industrial or commercial undertaking at the commencement of this Act, and set apart for use for the industrial or commercial purpose of the undertaking".
11. The continuity of an undertaking is spoken to by the exemption clause and this is not satisfied as respects the above claim. It cannot also come within Section 81(1) [CRP No.505 of 2001] -7-
(q) of the Act as a commercial site. There is only a word by the declarant that large extent of properties are used as quarry for mining laterite. Such an argument, as pointed out by the learned Government Pleader, could be put forward by any ingenious land holder, since laterite may be found in properties in large number of terrains. What was sought to be exempted was parcel of lands used continuously for actually running industrial activities. Obviously the claim will not satisfy such prescription. It is also not possible to uphold the contention of the declarant that it was unfit for cultivation, since there was no sufficient evidence brought up at his instance and the burden expected of him is not discharged. The decision of the Taluk Land Board in respect of the above claim therefore requires to be upheld.
12. However, in respect of point No.III decided, pertaining to an extent of 25 cents comprised in Sy.Nos.226/3 and 265/1A, the contention was that the road was in existence before 1967 and the property stood vested in the Panchayat long prior to the appointed date. In [CRP No.505 of 2001] -8- disallowing the claim for the reason that the declarant had not produced documentary evidence in support of the above, evidently the Land Board has resorted to a strict and technical stand. In case of doubt, it would have been possible for the Board to ascertain the position by deputing the Authorised Officer for enquiring into the matter. We feel that the initial burden had been discharged by the declarant for salvaging the above extent while considering the extent of his holdings. Therefore, this finding is also vacated.
13. Resultantly, the orders passed by the Taluk Land Board in CR-240-73/B dated 30-09-2000 will stand modified, as it concerns the above two items. The claims specifically allowed as above require to be noted as admissible claims. The Taluk Land Board is directed to appropriately modify this order, so as to incorporate the findings in the above lines, and after giving an opportunity of hearing to the petitioner, take further steps for enforcing surrender.
[CRP No.505 of 2001] -9- The Civil Revision Petition is disposed of as above. There will be no order as to costs.
(M.RAMACHANDRAN) JUDGE mks/ [CRP No.505 of 2001] -10- (M.RAMACHANDRAN. J) =============================== C.R.P.No.505 of 2001 =============================== ORDER =============================== Dated: