Kerala High Court
Smt. Pathu vs The Taluk Land Board on 14 March, 2014
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 14TH DAY OF MARCH 2014/23RD PHALGUNA, 1935
CRP.No. 297 of 2009 ( )
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(TLB(Q)NO.182/1977 OF TALUK LAND BOARD, QUILANDY )
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REVISION PETITIONER(S):
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1. SMT. PATHU, W/O. ABDULLA,KATTAYATTU HOUSE,
KUNICHIKARA DESOM, NADERI AMSOM, QUILANDY TALUK,
KOZHIKODE DISTRICT.
2. SMT. KUNHAMI, D/O. MOIDEEN,
PUTHIYEDATH HOUSE, KUNICHIKARA DESOM, NADERI AMSOM,
QUILANDY TALUK, KOZHIKODE DISTRICT.
3. SHRI. ABDUL RAHMAN, S/O. ABDULLA,
PUTHIYEDATH HOUSE, KUNICHIKARA DESOM, NADERI AMSOM,
QUILANDY TALUK, KOZHIKODE DISTRICT.
BY SRI.N.N.SUGUNAPALAN,SENIOR ADVOCATE
ADV. SRI.S.SUJIN
RESPONDENT(S):
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1. THE TALUK LAND BOARD, QUILANDY,
KOZHIKODE DISTRICT, REPRESENTED BY ITS CHAIRMAN.
2. THE TAHSILDAR, QUILANDY, KOZHIKODE DISTRICT.
3. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.
R1 TO R3 BY SPL.GOVERNMENT PLEADER SMT. SUSHEELA R.BHAT
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 14-03-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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K.HARILAL, J.
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C.R.P.No.297 of 2009
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Dated this the 14th day of March, 2014
O R D E R
The petitioners are the claimants before the Taluk Land Board, Quilandy in a case initiated against their late mother Biyathumma. As per the order of the Taluk Land Board dated 09/09/1982, the Taluk Land Board has determined the ceiling limit of the declarant's family and directed to surrender 5.96 Acres of land as land in excess of the ceiling area. The 1st petitioner has obtained an extent of 37 cents of land in Sy.No.6/1 in Naderi amsom, as per document No.785/76 of SRO, Quilandy. She has also obtained 13 > cents in Sy.No.13/1 and 1.29 Ares in Sy.No.18/2 by document No.2641/78 of SRO, Quilandy. Thus, the first petitioner has got title and possession over the above said property by virtue of the above documents. Likewise, the second petitioner had obtained 25 cents of land in Sy.No.18/7 of Naderi amsom, Quilandy by sale deed C.R.P.No.297 of 2009 2 No.2165/91 of SRO, Quilandy. The third petitioner has also obtained 25 cents of land in Sy.No.39/2 and 12 cents in Sy.No.13/1 and 47 cents in Sy.No.12/6 in the same village by document No.2165/94 of SRO, Quilandy. Thus, the third petitioner has title and possession over a total extent of 72 cents. But, at the time of the determination of the excess land of the declarant mother, these transactions were found hit by Sec.84(2) of the Kerala Land Reforms Act. As such when the proceedings were finalised in the year 1982 against the declarant, these transactions were ignored for the purpose of determining the ceiling area of the family and determined the land in excess of the ceiling area. In short, the land obtained by the petitioners by virtue of the above documents were included in the account of the declarant's family.
2. But, on the basis of the claim petition filed by the petitioners, a Writ Petition has filed as W.P.C.No.6293 of 2007 before this Court and this Court by order dated C.R.P.No.297 of 2009 3 10/02/2007 directed the Taluk Land Board to consider their claim. However, those claims were rejected by the Taluk Land Board without granting any relief.
3. Aggrieved by the said orders, these petitioners again filed CRP No.763 of 2007 before this Court. By judgment dated 29/02/2008, again this Court set aside the order of the Taluk Land Board and remitted the matter to the Board for fresh consideration, particularly, in view of the Act 21 of 2006 and the provisions contained therein. Thereafter, the Taluk Land Board considered the claims of the petitioners after obtaining the reports from the authorised officer. Finally, the Taluk Land Board rejected the claims of the petitioners on a finding that the petitioners are not entitled to get protection under 7E of the Kerala Land Reforms Act. The legality and propriety of this order is under challenge in this revision petition.
4. The counsel for the revision petitioner submits that the impugned order passed by the Taluk Land Board is C.R.P.No.297 of 2009 4 illegal and unsustainable in view of Sections 7 E and 84(4) of the Land Reforms Act. The court below went wrong in interpreting the said provisions and arrived at a finding that the petitioner is not entitled to get benefit under Section 7 E of the Land Reforms Act. In fact 2.88 and > acres of land is pending to be assigned to landless persons. Therefore, unless the twin conditions under Second proviso to Section 84 (4) is satisfied, the claim under Section 7 E cannot be rejected. In the instant case, an extent of 1.42 and = acres was assigned to 28 landless persons with four cents each and the remaining property is in the possession of the petitioners. The learned counsel drew my attention to the observation in the order that the revision petitioners are also collecting usufructs from the land occasionally. No way it can be held that the property was distributed to landless labourers or reserved for public purpose. The respondent has no case that the remaining 2.88 and > cents is reserved for the public purposes as provided under the first proviso C.R.P.No.297 of 2009 5 to Section 84 (4). The learned counsel further drew my attention to the title deeds executed in favour of the petitioners by the declarant and submits that all the documents fall within a period between 1.4.1964 and the date of commencement of the Land Reforms Amendment Act 2005. Therefore, the petitioners are entitled to get the benefit under Section 7 E read with Section 84 (4) of the Kerala Land Reforms Act. By the judgment dated 29.8.2008 in CRP.No. 763/2007 this Court set aside the order of the Taluk Land Board particularly in view of Act 21 of 2006 and the provisions contained therein. But, the Land Board discarded the direction on a prima facie finding that the petitioner is not entitled to any benefit under Section 7 E of the Kerala Land Reforms Act. Per contra, the learned Special Government Pleader advanced arguments to justify the denial of benefits under Section 7 E to the petitioners. The learned Special Government Pleader invited my attention to the three provisos under Sub Section 4 of C.R.P.No.297 of 2009 6 Section 84 and submits that the claim is hit by the said provisos. According to the Special Government Pleader, 2.88 and > acres of property had already been taken over by the Government. Therefore, the claim of the petitioner is hit by first proviso. The Government Pleader further submits that according to the third proviso to Section 84 (4) no ceiling cases or proceedings in which any land has already been surrendered by a person as excess land before the commencement of Kerala Land Reforms Act 2005 shall be reopened. In the instance case the declarant had already surrendered the excess land. Therefore, the said ceiling case cannot be reopened in view of the last proviso. The learned Government Pleader further cited in 2008 (1) KLT 650 and submits that since the petitioners are the daughters of the deceased declarant the document executed by the declarant in favour of the petitioners will not come under the benefits provided under Section 7 E of the Land Reforms Act.
C.R.P.No.297 of 2009 7
5. Heard the learned senior counsel for the revision petitioner and the learned Special Government Pleader appearing for the respondent and I have bestowed my anxious consideration on the submissions at the bar.
6. The question that arises for consideration in this CRP is whether there is any illegality, material irregularity or perversity in any of the findings in the impugned order under challenge. Going by the impugned order, it can be seen that the proceedings under Section 85(1) of KLR Act was initiated against the mother of the petitioners Biyyathumma and 5.96 acres of land was ordered to be surrendered by the deceased declarant and she had already surrendered. Out of the total extent of 5.96 and < acres of land, 1.65 acres of land was re-conveyed to the assessee and out of the remaining land i.e. 4.31 acres was taken into possession by the Tahsildar and out of that, 1.42 and = acres of land was assigned to 28 landless persons with 4 cents each and an extent of 2.88 and > acres of land is C.R.P.No.297 of 2009 8 pending to be assigned. The question in controversy involved in this revision petition centers around the protection claimed by the revision petitioners under Section 7 E read with Section 84 (4) of the Land Reforms Act. Going by the above sections, it can be seen that the above sections were inserted by Act 21 of 2006 we.f. 18.10.2006 with an intent to grant the status of tenants to the persons who have acquired by way of purchase or otherwise on payment of consideration from any person holding land in excess of the ceiling area during the period between date of commencement of the Kerala Land Reforms Act 1963 and the date of commencement of the Kerala Land Reforms Act 2005. On an analysis of the Section 7 E, the statutory requirements are as follows:-
1. The claimants must be the person in possession of land not exceeding 4 hectors in extent.
2. The land must be acquired by him or his predecessor in interest by way of purchase or otherwise on C.R.P.No.297 of 2009 9 payment of consideration from any person holding land in excess of ceiling area.
3. Such acquisition must be effected during the period between the date of commencement of Kerala Land Reforms Act 1963 and date of commencement of Kerala Land Reforms Amendment Act 2005.
7. The person who satisfies the above said statutory requirements shall be treated as deemed tenants. Going by Section 84 (4) it is seen that the protection under Section 7 E to such tenants is clarified clearly stating that no acquisition of land required to under Section 7 E shall be deemed to be invalid or otherwise to have been invalid by reason only to the fact that land so acquired was or formed a part of the land liable to be surrendered by the transferor as excess land under the provisions of the Act.
8. Coming to the first proviso, the statutory mandate is that no ceiling cases where excess land has been physically taken over and distributed for landless labourers C.R.P.No.297 of 2009 10 or reserved for public purpose as provided in the above Act shall be reopened. Coming to the instant case, going by the impugned order, it can be seen that out of 5.96 and < acres of land 1.65 acres of land are re-conveyed to assessee and out of the remaining land i.e. 4.31 and < acres were taken into possession by the Tahsildar and out of that extent 1.42 and = acres was assigned to 28 landless persons with 4 cents each. More importantly, the order further says that an extent of 2.88 and > acres are pending to be assigned.
As I considered earlier, for coming thereunder the bar provided under first proviso, the pre-requisite twin conditions must be satisfied. In the instance case the order itself says that 2.88 and > acres is pending to be assigned. The Learned Government Pleader drew my attention to the latter part of the order and submits that the usufructs were sold by the revenue authorities and sale proceedings up to 4.8.2004 were remitted into Treasury in the case of lands in Arikkulam village and in the case of those in Naduvannur C.R.P.No.297 of 2009 11 village, sale proceeds were remitted up to 27.11.2004. Per contra, the learned counsel for the respondent drew my attention to the latter part of the said observation and submits that in the order itself it is stated that the petitioners are also taking usufructs from the property and the government has taking usufructs up to 27.11.2004 only. I am of the opinion that even if government has taken usufructs from the property the same will not be hit by first proviso as the second limb i.e. The land has not been distributed to landless labourers so far. I am of the opinion that the petitioners are entitled to seek protection under Section 7 E unless and until the land is physically taken and distributed to landless labourers.
9. Coming to the third proviso, I am of the opinion that the third proviso refers to the right of the declarant and not that of the purchasers under the declarant. The third proviso means that ceiling cases or proceedings in which land has already been surrendered by the declarant, no C.R.P.No.297 of 2009 12 fresh proceedings can be reopened invoking a protection under Section 7 E of the Land Reforms Act. In short, the third proviso will not hit the right of the purchasers from the declarant during the period between date of commencement of Land Reforms Act, 1963 ad the commencement of Land Reforms Amendment Act 2005. In short, to sum up, I find that the right of the petitioners under Section 7 E will not be hit by either first proviso or the third proviso. The remaining question to be considered is whether the right of the petitioners is hit by the second proviso under Section 84 (4).
10. The learned Government Pleader drew my attention to the second limb of the first proviso to Section 84 (4) of the KLR Act and submits that reservation of the property for assigning to the landless people also will come under the public purposes contemplated under the second limb. But, I am unable to accept the above argument. I am of the opinion that what is intended by the legislature in the C.R.P.No.297 of 2009 13 second limb is reservation of the property for utilising the said property, for some purpose other than distributing the said property to landless people. So, it cannot be interpreted to mean that reservation of the property for distributing to landless people will come under the public purpose contemplated under the second limb.
11. I am of the opinion that it is a question of fact to be determined on the basis of the evidence on record and to be adduced and also to be adduced before the Land Board. In the above view of the matter, I am inclined to set aside the impugned order under challenge and I do so. The matter is remitted back to Land Board to consider the issue under the second proviso to Section 84 (4) of the Land Reforms Act. It is made clear that the matter is remitted to the Taluk Land Board to decide this issue only. Needless to say, if the Taluk Land Board determines this issue also in favour of the petitioners, certainly the petitioners would be entitled to get the protection under Sec. 7E introduced by C.R.P.No.297 of 2009 14 the Kerala Land Reforms Amendment Act 2005.
The Taluk Land Board is directed to pass order afresh within a period of six months from today.
This revision petition is disposed of accordingly.
K.HARILAL, JUDGE.
stu/kvr/ //True copy// P.A to Judge C.R.P.No.297 of 2009 15 C.R.P.No.297 of 2009 16 K.HARILAL, JUDGE.
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