Kerala High Court
Kumari Varma vs State Of Kerala on 22 November, 1973
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 21ST DAY OF JULY 2017/30TH ASHADHA, 1939
WP(C).No. 1401 of 2016 (A)
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PETITIONER :
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KUMARI VARMA, AGED 79 YEARS,
D/O. P.R.RAMA VARMA RAJA,
KOLIYAT ESTATE, ALAKODE P.O.,
THALIPARAMBA, KANNUR DISTRICT.
BY ADVS.SRI.P.S.SREEDHARAN PILLAI
SRI.T.K.SANDEEP
SRI.ARJUN SREEDHAR
SRI.ARUN KRISHNA DHAN
SRI.T.KRISHNANUNNI (SR.)
RESPONDENTS :
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1. STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY
THIRUVANANTHAPURAM 695 001.
2. LAND BOARD, REPRESENTED BY ITS SECRETARY
THIRUVANANTHAPURAM, PIN: 695 001.
3. THE DISTRICT COLLECTOR
KANNUR, PIN: 670 001
4. THE TAHSILDAR
THALIPARAMBA, KANNUR, PIN: 670 001.
WP(C).No. 1401 of 2016 (A)
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5. THE PLANTATION CORPORATION OF KERALA
LIMITED KOTTAYAM, REPRESENTED BY ITS
MANAGING DIRECTOR,PIN 686 001.
R1 TO R4 BY SPL. GOVERNMENT PLEADER
SRI.M.L.SAJEEVAN
R5 BY SRI.K.RAMAKUMAR SENIOR ADVOCATE
BY SRI.RAJU SEBASTIAN VADAKKEKARA, SC,
BY ADV. SRI.RAJESH N., SC,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 21-07-2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
bp
WP(C).No. 1401 of 2016 (A)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1: A TRUE COPY OF THE ORDER DATED 22/11/1973
PASSED BY LAND BOARD
P2: A TRUE COPY OF M.O.(MS) 1343 DATED 4/10/1978
P3: A TRUE COPY OF THE REPORT DATED 27/5/1980 FILED
BY THE ADVOCATE COMMISSIONER
P4: A TRUE COPY OF THE ORDER DATED 9/9/1999 IN OP
NO.21525/1999 OF THIS HON'BLE COURT
P5: A TRUE COPY OF THE ORDER DATED 29/5/2000 OF THE
LAND BOARD.
P6: A TRUE COPY OF THE INTERIM ORDER DATED
19/7/2004 IN WPC NO.4589/2014 PASSED BY THIS
HON'BLE COURT
P7: A TRUE COPY OF THE JUDGMENT DATED 22/11/2010 IN
WPC NO.4589/2004 OF THIS HON'BLE COURT
P8: A TRUE COPY OF THE LETTER DATED 26/5/2007
P9: A TRUE COPY OF THE ORDER DATED 10/6/2014 IN
WPC NO.10667/2013 OF THIS HON'BLE COURT
P10: A TRUE COPY OF THE JUDGMENT DATED 16/10/2014 IN
WPC NO.10667/2013 OF THIS HON'BLE COURT
P11: A TRUE COPY OF THE REPORT DATED 30/6/2015
SUBMITTED BY 3RD RESPONDENT, DISTRICT
COLLECTOR, KANNUR
P12: A TRUE COPY OF THE LETTER DATED 25/5/2010
ISSUED BY THE OFFICE OF THE 3RD RESPONDENT
P13: A TRUE COPY OF THE ORDER DATED 17/12/2015
PASSED BY THE LAND BOARD.
WP(C).No. 1401 of 2016 (A)
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P14: COPY OF THE LETTER DT 20/10/2015 ISSUED BY R5
PURSUANT TO APPLICATION UNDER RTI ACT.
P15: COPY OF THE LETTER DT 23/5/2017 ISSUED BY THE
R5 UNDER RTI ACT.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.S. TO JUDGE
bp
CR
Devan Ramachandran, J.
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W.P.(C)No.1401 of 2016 A
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Dated this the 21st day of July, 2017
JUDGMENT
It is only with a certain amount of exasperation can this Court open this judgment. Repeated judgments and orders appear to be met by obdurate resistance and stark unwillingness to comply with the directions of this Court at the hands of the competent Authorities, which can only be viewed as defiance and insolent reluctance. If such attitude is deliberate, then it certainly is a foray into the authority of this Court. The unmistakable indolence and languor, calculated or otherwise, exhibited by the responsible officers bound by the directions of this Court in obstinately or unyieldingly holding on to decisions and in re-issuing the same, even after such having been found untenable by this Court in earlier proceedings, cannot but induce exasperation. I am, therefore, for reasons that I WPC 1401/16 2 will presently record, left with no other room other than to allow this writ petition.
2. Large amount of facts are presented in the various pleadings in this writ petition. However, for the resolution of the immediate issue in this lis only a very few unexpendable facts are required to be stated.
3. The petitioner is the daughter of Sri.P.R.Ramavarma Raja who is now no more. Sri.Ramavarma Raja was a declarant in the land ceiling proceedings, LB (B5) 4858/70, with respect to certain extent of lands comprised of in different Survey Numbers of various Villages and stated to have been put to use as an estate. This estate is called the 'Koliyat Estate' and is situated in Thaliparamba Taluk, Kannur District. As per proceedings of Land Board dated 22.11.1973, a copy of which has been produced on record as Exhibit P1, Sri.Ramavarma Raja was directed to surrender an extent of 1232.26 acres from various survey numbers. After such WPC 1401/16 3 surrender Sri.Ramavarma Raja ought to have been left with 1544.50 acres, which were specifically exempted by the Taluk Land Board as per the said order.
4. Sri.Ramavarma Raja, on an allegation that the revenue authorities while acting under the mandate of Exhibit P1 had taken over more extends of land than 1232.26 acres and that such excess land so taken over were in fact exempted lands used by him as a cultivated estate, moved an application before the Land Board seeking re-conveyance of an extent of 250 acres of land. This application was originally dismissed by the Land Board on the ground that it had no authority to consider the same. However, this Court in Exhibit P4 judgment, which was issued in a writ petition filed by Sri.Ramavarma Raja, directed the Land Board to consider the said application filed by him and to pass orders thereon. Subsequent to this, Exhibit P5 order was passed on 29.5.2000 dismissing the application aforementioned. WPC 1401/16 4
5. The Land Board, in Exhibit P5, took the stand that the request of Sri.Ramavarma Raja for re- conveyance of an area of 250 acres cannot be allowed because, as per an earlier order, an extent of 250.32 acres had already been re-conveyed to him and that the area to be surrendered was thus reduced to 851.03 acres. The order went on to say that this 851.03 acres was demarcated, surveyed and fixed in the presence of the declarant and that he had remained silent for 24 years after the land was thus taken possession. These reasons were written in the said order in rejecting the application of Sri.Ramavarma Raja.
6. Sri.Ramavarma Raja appears to have died soon thereafter and subsequent legal proceedings are seen to have been initiated at the instance of his daughter, who is the petitioner in this writ petition.
7. It transpires from the pleadings that Exhibit P5 order of the State Land Board was challenged by the WPC 1401/16 5 petitioner herein by filing W.P.(C)No.4589/2004, which was heard and disposed of by this Court along with C.R.P.No.399/2010 filed by the State of Kerala against the same order, as per Exhibit P7 judgment. This Court, in Exhibit P7 judgment found that the statements in Exhibit P5 order that an extent of 250.32 acres had already been re-conveyed to the predecessor-in-interest of the petitioner was not correct and that the petitioner herein could not claim re-conveyance of the said extent of land based on the such statements contained in the said Order, which this Court concluded was only on account of an error. The submissions of the State to this extent was accepted by this Court and the judgment was delivered, therefore, directing the State Land Board to survey, demarcate and ascertain the extents surrendered by the petitioner's predecessor-in-interest under Exhibit P1 order. It will be beneficial to read the specific directions in Exhibit P7 and I therefore extract it as under: WPC 1401/16 6
Resultantly, these petitions are allowed in the following lines:-
(i) Exhibit P7, order is set aside and the matter is remitted to the State Land Board for fresh decision.
(ii) The Land Board shall ascertain whether pursuant to Exhibit P11, order dated August 3, 1973 in C.R.P.Nos.1130 and 1146 of 1973 the actual extent of land liable to be surrendered as excess land pursuant to Exhibit P1, order and the land which predecessor-
in-interest of petitioner was found entitled to be in possession has been surveyed, identified and demarcated. If it is already done the Land Board has to specify such area with its boundaries, survey numbers and such other details as are necessary for identification. If it is not already done, the land Board has to undertake that exercise and fix the land to be surrendered to the Government.
(iii) The Land Board has also to decide whether the plantation-250.32 acres (referred to by the Advocate Commissioner also in Exhibit P25, report) is liable to be re-conveyed to the petitioner.
(iv) In considering the claim of the petitioner the Land Board shall take into account the report submitted by the Advocate Commissioner (Ehibit.P25) with the State as also party to the said proceeding."
8. In ostensible compliance of Exhibit P7 directions, the State Land Board thereafter issued orders dated 10.06.2012, a true copy of which has been produced and appended to this writ petition as Exhibit P9. In the said order, after detailing all the facts that led WPC 1401/16 7 to the controversy in question, the State Land Board, even without causing any survey or demarcation as ordered in Exhibit P7 judgment, entered a conclusion that the claim of the petitioner was not tenable and that even though an extent of 1331.06 acres was earlier directed to be surrendered by it, only an extent of 1260.64 acres was resumed from the predecessor-in-interest of the petitioner during the years 1974-75. The order goes on to say that the balance of 70.42 acres could not be resumed due to encroachment and thick forestation and that out of the above mentioned 1260.64 acres, an extent of 1101.35 acres was transferred to the Plantation Corporation of Kerala as early as in the year 1974, which was comprised of in two locations including 252.25 acres at Nadukani. The report further states that an extent of 159.29 acres could not be transferred due to the alleged further encroachment on the said land and that out of the total of 1101.35 acres so mentioned, an extent of only 1020.11 WPC 1401/16 8 acres was transferred to Tribal Rehabilitation and Development Mission (TRDM) vide Government Order dated 10.06.2003.
9. The State Land Board also recorded in Exhibit P9 that while transferring the land from the Plantation Corporation of Kerala to the TRDM a survey was ordered by the District Collector, Kannur and that after the survey, plots were alloted to the members of the Scheduled Tribe communities, as part of the TRDM activities, to an extent of 966.43 acres that could be surveyed. From among this 966.43 acres, the Land Board continues to say in the said order, an extent of 247.94 acres was transferred to the Forest Department, thus reducing the area handed over to the TRDM to be 718.49 acres and that 'pattayams' have been issued with respect to 411 plots of 1 acre each demarcated from this 718.49 acres. The order also says that an extent of about 169.65 acres is under encroachment.
WPC 1401/16 9
10. Interestingly, Exhibit P9 order refers to the interim report of the Advocate Commissioner in the suit referred to in Exhibit P7 judgment but holds that the said report cannot be considered or accepted because it was a "one sided affair". This is so stated apparently for the reason that the Learned Advocate Commissioner allegedly did not inform the Revenue Officials about his visit and that only the declarants were present during his inspection.
11. The petitioner herein assailed Exhibit P9 order by filing W.P.(C)No.10667/2013 before this Court which culminated in Exhibit P10 judgment. This Court, after considering all the factors involved and taking note of the specific directions contained in Exhibit P7 judgment, found that Exhibit P9 order is not in conformity with the letter and spirit of the directions contained in Exhibit P7 judgment and set aside the same directing the State Land Board to survey, identify and demarcate the areas WPC 1401/16 10 covered by the orders of exemption, favouring the predecessor-in-interest of the petitioner, in Sy.No.292/1A of Naduvil Village and Sy.No.53/1A of Arangam Desom in Alakode Village. The judgment also directed the Land Board that the demarcation and identification be done not only with reference to the survey numbers but also with reference to the boundaries and the exact extent, so that the entirety of the lands in these survey numbers, which were covered by the exemption, can be clearly identified. It was also mentioned in the judgment that it will be desirable that the State Land Board produce a sketch showing the land so demarcated.
12. The materials available in this writ petition show that resultant to the directions in Exhibit P10 judgment, the State Land Board had directed the District Collector, Kannur to cause a survey of the lands in question and to file a report. The District Collector, Kannur appears to have made a report in June 2015, a WPC 1401/16 11 copy of which has been produced and marked as Exhibit P11 in this writ petition. What is pertinent in Exhibit P11 report is that the District Collector says that the area has been completely surveyed, albeit with some amount of delay caused due to inhospitable natural conditions and lack of proper personnel and that consequent to such survey it appears probable that the area now claimed by the petitioner, namely 250 acres, was wrongly assumed by the revenue authorities from among the areas exempted in favour of the predecessor-in-interest of the petitioner, while implementing the directions contained in Exhibit P1 order of the State Land Board.
13. Normally, this order should have led the State Land Board to consider the entirety of the issues in a new perspective since Exhibit P11 report states unequivocally that an extent of about 250.32 acres of land comprised of in Sy.No.292/1A in Naduvil Village and 53/1A in Arangam Village have been found to be improperly resumed from WPC 1401/16 12 the petitioners. However, the State Land Board, distressingly, did not even deem it necessary to allude to Exhibit P11 report of the District Collector but has now chosen to finalise the proceedings, as per Exhibit P13 order, rejecting the claim of the petitioner. The petitioner has, therefore, filed this writ petition challenging Exhibit P13 order as being illegal, unlawful and issued in total violation and in wilful derogation of the directions of this Court in Exhibits P7 and 10 judgments.
14. I have heard Sri.T.Krishnanunni, learned Senior Counsel assisted by Sri.Arun Krishna Dhan, appearing for the petitioner, Sri.K.Ramkumar, learned Senior Counsel assisted by Sri.Rajesh N., appearing for the fifth respondent and the learned Special Government Pleader for the official respondents.
15. The facts I have recorded above would, with great amount of clarity show that the total extent originally in the hands of Sri.Ramavarma Raja, the father WPC 1401/16 13 of the petitioner, was 2145.76 ares in Sy.Nos. 292/1A of Naduvil Village and 477 acres in Sy.No.53/1A of Thadikkadavu Village. In addition to this, the estate also had 106 acres in Sy.No.13/1-A3, 4.75 acres in Sy.No.1/3 and 43.25 acres in Sy.No.1/1, going by the figures shown in Exhibit P13. Out of these extents, the Land Board has, as per Exhibit P1, directed Sri.Ramavarma Raja to surrender an extent of 945.76 acres in Sy.No.292/1A, thus exempting 1200 acres found in that survey number to be under cultivation with rubber and other crops along with an extent of 132.5 acres in Sy.No.53/1A, thus exempting 344.5 acres comprised therein. Apart from these, the full extent of lands comprised of in the other survey numbers, namely Sy. Nos.1/1 and 1/3, 13/1A-3, were directed to be surrendered, thus leaving the estate with a balance of 1544.50 acres of land. The specific case of Sri.Ramavarma Raja and that of the petitioner, as his daughter, in this writ petition is that the actual area now WPC 1401/16 14 in possession of the estate is only 1050 acres in Sy.No. 292/1A of Naduvil Village and 230 acres in Sy.No.53/1A of Thadikkadavu Village, thus making it a total of only 1280 acres. The loss, according to the petitioner, is about 150 acres in Sy.No.292/1A and 114.5 in Sy.No.53/1A, thus add-totalling 264.5 acres, which is limited by them, in their claim, to 250 acres.
16. The claim made by the petitioner obviously is, therefore, that the areas which were under cultivation and specifically exempted under Section 81 of the Kerala Land Reforms Act by Exhibit P1 order has been taken over by the Government while implementing it and that this alleged excess area is comprised of in Sy.Nos.292/1A and 53/1A in the proportions that I have shown above. It is also pertinent that the interim report submitted by the learned Advocate Commissioner in O.S.No.229/1978, which has also been directed to be taken note of by this Court in both Exhibits P7 and P10 judgments, has WPC 1401/16 15 mentioned these facts in favour of the petitioner and states that in Sy.No.292/1A a balance of 149.24 acres and in Sy.No. 53/1A a balance of 114.5 acres are to be found, making the total area to be found and identified at 263.74 acres. These statements in the said report are more or less in conformity with what I have found and recorded earlier, which are also based on the orders of the State Land Board itself, namely Exhibits P5, P9 and P13.
17. That being said, the question before me is whether the State Land Board has, in Exhibit P13 order, done what it was expected to do and carried on what it was directed to complete. The answer to both these unfortunately is an emphatic 'No'. What is recorded in Exhibit P13 is merely a verbatim reproduction of what was earlier stated in Exhibit P9 order, which has already been set aside by this Court in Exhibit P10 judgment and then to conclude by stating that while the lands were taken over from Sri.Ramavarma Raja, in compliance with the WPC 1401/16 16 directions in Exhibit P1, no measurement was done, thus insinuating that the short fall in exempted land, now claimed by the petitioner, is untrue because, according to it, at the time when the lands were assumed on the strength of Exhibit P1, only the extent of lands recorded in the title deeds were followed and no specific measurement or survey was done.
18. I am afraid that the stand of the State Land Board in Exhibit P13 cannot be found to be in compliance with the directions of this Court issued repeatedly through Exhibits P7 and P10 judgments. The defiance is rather apparent and the inertia exhibited in changing from a pre- cogitated decision appears to be obvious. This order has been issued demonstratively in derogation of the specific directions of the judgments of this Court and I cannot, by any measure, condone or countenance such attitude. For this reason, as I have already indicated above, I have no other option but to quash Exhibit P13 and I order so. WPC 1401/16 17
19. The State Land Board seems to have lost sight of the claim of the petitioner totally. The petitioner says that an extent of about 250 acres was taken from her predecessor-in-interest illegally while implementing Exhibit P1 order. The only way the Land Board could have been assessed this to be true or otherwise was by causing a survey and making a determination and demarcation of the properties surrendered by Sri.Ramavarma Raja and taking into account the lands which are in the possession of the Government today. In fact, sufficient assistance in this regard have been obtained from Exhibit P11 report of the District Collector, wherein a survey appears to have been conducted under his authority and he reports, with substantial clarity, that an extent of 250.32 acres has been found to have been assumed by the Government in excess of the extents that should have been taken over under Exhibit P1. However, he records that most of the area covered by this 250.32 WPC 1401/16 18 acres have already been assigned on registry to members of the Scheduled Caste and Scheduled Tribe communities and that it will not be possible to disturb them from the said area. The District Collector also says that the Plantation Corporation has put the entire area within its possession to use as Cashew Plantations and that it will not be possible to disturb them either.
20. Sri.K.Ramkumar, learned Senior Counsel for the Plantation Corporation affirms this fact and says that the Plantation Corporation was given these lands as early as on 04.10.1978 as per a valid Government Order, namely G.O.M.S.No.1343 and that the Corporation has put the entire area into agricultural operations, including for growing cashew. He further asserts that any order now passed against them would be contrary to public interest since large amounts of money has been expended and used by the Plantation Corporation in planting and maintaining these plantations.
WPC 1401/16 19
21. As I have already said above, the only way a complete resolution of the disputes in this lis can be obtained is through a proper survey, demarcation and identification of the properties. This has necessarily to be done by the State Land Board following the directions contained in Exhibits P7 and P10 judgments of this Court. The State Land Board cannot deviate therefrom and cannot pass orders at their whim and fancy merely because they have already entered into a pre-determined decision. Such decisions will have to be completely obliterated and fresh decisions will have to be taken strictly in compliance with the directions of this Court. The State Land Board will be certainly assisted by the observations of the District Collector in Exhibit P11 report and the fact that this report was not even considered by the Land Board, while issuing Exhibit P13 is, in my view, unpardonable. As I have already said above, had Exhibit P11 report been looked into, the Land WPC 1401/16 20 Board would have certainly come to a different decision.
22. In any event of the matter, since this Court has already directed the State Land Board by Exhibits P7 and P10 judgments to cause a survey for identification and demarcation of the properties exempted from surrender, by Exhibit P1, in favour of Sri.Ramavarma Raja, it is incumbent upon the Land Board to cause such exercise and to enter into a fresh decision adverting to Exhibit P11 report as well as Exhibit P3 report of the learned Advocate Commissioner in O.S.No.229/1978 on the files of the Sub Court, Thalassery. After such a survey, through which the properties are to be ascertained and demarcated, if it is found that the lands that were exempted in the hands of Sri.Ramavarma Raja have been assumed by the Revenue Authorities wrongly, while complying with Exhibit P1, it will be certainly obligatory on the part of the Land Board to order as to how much land and in what manner such lands have to be restituted WPC 1401/16 21 to the petitioner. If, for any reason, these lands cannot be restituted, either because they have already been assigned in registry to the members of Scheduled Caste and Schedule Tribe communities or if they had already been handed over to the Plantation Corporation as per G.O.M.S.No.1343 dated 04.10.1978 and being put to use by the Corporation for their activities, the Government of Kerala will be obligated by the terms of this judgment to consider the suggestion made by the District Collector in Exhibit P11 report that alternate lands can be offered to the petitioner in certain other survey numbers in Koovery and Panniyoor Villages. I am not saying that the petitioner should only be given these lands but I am saying that this suggestion can also be considered by the District Collector and if the Government is of the view that certain other extents, as may be acceptable to the petitioner, can be offered, it would be at liberty to do so by following the applicable Statutes, Rules and WPC 1401/16 22 Regulations and it will then be up to the petitioner to consider and accept such offer.
23. The learned Special Government Pleader at this time says that this is a highly forested area and it will be very difficult to cause survey through conventional methods. He, therefore, says that assistance of the Kerala State Remote Sensing and Environmental Centre will have to be requisitioned. It does not require an order from this Court for this purpose. It will be open to the State Land Board and to the competent officers of the Government to obtain assistance of such agencies, as are required and to engage any such mechanism or modality, as is appropriate, in causing the survey and my concern in this judgment is only that the survey so conducted is done methodically, scientifically and correctly.
24. The exercise as directed herein shall be completed by the State Land Board within a period of eight months from the date of receipt of a copy of this judgment. WPC 1401/16 23
25. As I have, in the preface of this judgment said, it is with exasperation that I began and I hope that the State Land Board understands that any delay in compliance with the directions in this judgment will not be condoned or countenanced in any manner. I direct the State Land Board, therefore, to treat the directions herein as being peremptory and to complete the proceedings fully within the time granted herein.
This writ petition is thus ordered. In the peculiar facts and circumstances of the case, I make no order as to costs and the parties shall suffer their respective costs.
Devan Ramachandran, Judge tkv/skj