IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 1220 of 2000(B)
1. PANKAJAKSHI AMMA
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.V.CHITAMBARESH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.T.SANKARAN
Dated :26/03/2008
O R D E R
K.T. SANKARAN, J.
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C.R.P. Nos. 1220, 1420 and 1662 OF 2000
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Dated this the 26th March, 2008
O R D E R
C.R.P.Nos. 1220 and 1662 of 2000 arise out of S.M. No.994 of 1976 on the file
of the Taluk Land Board, Palakkad, while C.R.P.No. 1420 of 2000 arises out of
S.M.No. 993 of 1976 on the file of the Taluk Land Board, Palakkad. Since common
questions are involved in these revisions, they are being disposed of by this common
order.
2. Suo motu proceedings were initiated as S.M.No. 994 of 1976 showing
Pazhaniswamy Kounder as the assessee. The Taluk Land Board passed an order
dated 19.11.1976 holding that the assessee, Pazhaniswamy Kounder held excess land
and that he is liable to surrender an extent of 28.75 acres of land. Challenging the order
passed by the Taluk Land Board dated 19.11.1976, C.R.P.No. 5749 of 1976 was filed.
As per order dated 08.08.1978, this Court set aside the order of the Taluk Land Board
on the ground that no intimation from the Land Board under Section 85(7) of the
Kerala Land Reforms Act was obtained. It was also held that the Taluk Land Board
would be free to take action under Section 85 (7) of the Act if and when intimation was
received. There was another revision, viz. C.R.P. No. 5752 of 1976 filed by
Damodaran Nair, assignee, Pazhaniswamy Kounder. That Revision was allowed on
04.12.1979 on the same ground on which C.R.P.No. 5749 of 1976 was allowed.
Thereafter, the Taluk Land Board passed the present order dated 04.04.2000 in
S.M.No. 994 of 1976. It is stated in the order thus:
C.R.P. Nos. 1220, 1420 and 1662 OF 2000
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“On going through the file, it is seen that the Land Board,
Thiruvananthapuram in the proceedings LB.6.48610/76
K.Dis.dt.11.07.76 which was received in the office on 20.8.76 had
accorded sanction to initiate suo moto proceedings against the
assessee Sri.R.S.Pazhaniswamy Kounder to determine the extent and
identity of land to be surrendered. But that fact is found to be omitted
to bring to the notice of the Hon’ble High Court in time which resulted in
the above judgments. In persuance of the judgment dt. 8.8.78 and
4.12.78 in the CRP’s 5749/76 and CRP.5752/76 respectively, the case
was re-opened and revised draft statement with notice dt. 9.5.79 was
issued to Sri R.S. Pazhaniswamy Kounder (2)Sri Damodaran Nair, (3)
Smt. Kunhilakshmi (4) Shri Rajeev (5) Shri Subramanian for appearing
before the Taluk Land Board on 30.05.79 with relevant
document/evidence in support of their claim. The Taluk Land Board
again issued notice to the above claimants on 24.9.99 and 10.1.2000.”
3. After hearing the parties, the Taluk Land Board did not independently
discuss the contentions put forward by the assessee or the claimants but simply
decided to retain the earlier order dated 19.11.1976 in S.M.No.994 of 1976.
The order dated 19.11.1976 was set aside by the High Court on the sole ground that
sanction from the Land Board was not obtained. The Taluk Land Board was not
justified in simply reviving the earlier order without considering the contentions put
forward by the assessee and the persons who put forward the claims.
4. In S.M.No. 993 of 1976, Kumaraswamy Kounder, who is the brother of
Pazhaniswamy Kounder, is the assessee. In S.M.No. 993 of 1976, the Taluk Land
Board had passed an order dated 19.11.1976 against the legal representatives of
C.R.P. Nos. 1220, 1420 and 1662 OF 2000
3
Kumaraswamy Kounder, who expired on 29.03.1976. The legal representatives of
Kumaraswamy Kounder challenged the order dated 19.11.1976 in C.R.P.No. 5771 of
1976. This Court as per order dated 22.08.1978 allowed the Revision and held that
the proceedings under Section 85 of the Kerala Land Reforms Act cannot be
continued against the legal heirs of the assessee after his death. It was held that the
proceedings under Section 87 of Act should be initiated against the legal heirs.
Subsequently, in view of introduction of Section 85(6A) of the Act, the proceedings
were revived after obtaining sanction from the Land Board dated 19.06.1991. The
Taluk Land Board, by final order dated 17.05.2000 held that the assessee is liable to
surrender an extent of 14.07 acres . This order is under challenge in C.R.P.No. 1420
of 2000 filed by Senthilkumar, the legal representative of Kumaraswamy Kounder.
The Taluk Land Board did not independently consider the contentions put forward by
the assessee. A contention raised that an extent of 12.37 acres was ordered to be
resumed in favour of the landlord was rejected on the basis of the authorised officer’s
report wherein it was stated that the land continued to be in possession and enjoyment
of the assessee as on 01.01.1970.
5. C.R.P.No. 1662 of 2000 is filed by the claimants in S.M.No. 994 of 1976
challenging the order dated 04.04.2000.
6. The properties involved in S.M.Nos. 993 and 994 of 1976 belonged to
Yakkanath Mannakkattu Gopalan Unni. The properties were outstanding on Kanam
right in favour of T.S. Veeraraghava Iyer. A lease was granted by Veeraraghava Iyer
in favour of Pazhaniswamy Kounder and his brother Kumaraswamy Kounder.
Subsequently in the year 1976 as per document No. 344 of 1966, S.R.O. Palakkad,
C.R.P. Nos. 1220, 1420 and 1662 OF 2000
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Pazhaniswamy Kounder and Kumaraswamy Kounder entered into a partition and the
properties were divided. It is stated by the petitioners in C.R.P.No.1220 of 2000 that
an extent of 12.21 acres of land was assigned by Pazhaniswamy Kounder in favour of
Damodaran Nair and his brother Sreedharan Nair as per document No.1624 of 1966,
S.R.O., Palakkad. Sreedharan Nair released his right in favour of Damodaran Nair as
per document No. 654 of 1969, S.R.O., Palakkad. It is also stated that jenmi assigned
jenmam right in favour of Damodaran Nair as per document No. 3270 of 1967, S.R.O.,
Palakkad. The wife of Damodaran Nair is the first petitioner in C.R.P.No.1220 of 2000.
It is also stated that Pazhaniswamy Kounder assigned an extent of 7 acres of land in
favour of Subramanian, the second petitioner in C.R.P. 1220 of 2000 as per document
No.1934 of 1968, S.R.O., Palakkad.
7. It is revealed from the records produced before the Taluk Land Board that
jenmi Gopalan Unni had filed Application No.520 of 1965 on the file of the Land
Tribunal, Palakkad against Veeraraghava Iyer and Kumaraswamy Kounder for
resumption of lands. As per order dated 30.11.1970, the Land Tribunal allowed the
application for resumption in respect of an extent of 12.37 acres . Stating that the
actual possession of the land was not obtained by jenmi, though he belatedly complied
with the direction to deposit solatium, jenmi Gopalan Unni filed O.S.No. 21 of 1977 on
the file of the Sub Court, Palakkad against Kumaraswamy Kounder and others for
recovery of possession of the properties ordered to be resumed. O.S.No. 21 of 1977
was decreed on 18.01.1982 and the extent ordered to be resumed, except an extent of
one acre in Sy.No.484/2A4 of Elappully village, was ordered to be recovered from the
defendants. The judgment and decree in O.S.No. 21 of 1977 was challenged by
C.R.P. Nos. 1220, 1420 and 1662 OF 2000
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defendant Nos. 5 to 9 before the High Court in A.S.No.138 of 1982. The appeal was
dismissed on 16.01.1990.. In paragraph No.5 of the judgment in A.S.No. 138 of 1982,
it was held thus:
“If we act on Ext.A2, it has to be presumed that the plaintiff got
possession of the property. At least, the plaintiff gets title to the
property and on that basis, plaintiff can recover the property from the
legal representatives of the first defendant, who are parties to Ext.A2.
The submission of the counsel that if the solatium amount has not been
paid within thirty days, the order of resumption will stand cancelled,
cannot be taken as a rule of the thumb because several circumstances
have to be considered before accepting such a contention. “
8. It was also noticed by the High Court that as per Ext. A1 document produced
in the case, the first defendant in the suit and the plaintiff had filed a joint application
under Order XXIII Rule 3 wherein it was stated that the property was put in the
possession of the jenmi. The Taluk Land Board in the orders impugned in both the
S.M. cases have not taken into account the order passed by the Land Tribunal in the
application for resumption, the judgment in O.S.No.21 of 1977 and the judgment in
A.S.No. 138 of 1982, though these documents are seen in the files. The report of the
authorised officer cannot be taken as overriding the finding of the Land Tribunal and
the decision of the civil court and which was confirmed by the High Court. If title has
already been vested in the landlord by the order of resumption, it cannot be stated that
the assessee continued to retain title so as to make that land liable for being
considered as excess land. Unless it is shown that the jenmi lost title vested in him by
virtue of the order of resumption, the said land cannot be included in the account of the
C.R.P. Nos. 1220, 1420 and 1662 OF 2000
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assessee. The Taluk Land Board has not properly considered this question. I am of
the view that the order is liable to be set aside on that short ground.
9. Petitioners in C.R.P.No. 1662 of 2000 have stated in the Memorandum of
Revision that they produced before the Taluk Land Board several documents including
purchase certificate issued by the Land Tribunal in order to substantiate their claims,
but the Taluk Land Board did not consider the case put forward by them. On a perusal
of the files, such documents are not seen. However, the fact remains that the
contentions raised by the petitioners in C.R.P.No.1662 of 2000 were not considered by
the Taluk Land Board. Therefore, C.R.P.No. 1662 of 2000 is also liable to be allowed.
10. There is yet another reason as to why the matter should be considered
afresh by the Taluk Land Board. By the Kerala Land Reforms (Amendment) Act, 2005
(Act 21 of 2006), Section 7E and Section 84(4) were inserted. The aforesaid Sections
are quoted below for easy reference:
“”7E. Certain persons who acquired lands to be deemed
tenants:– Notwithstanding anything to the contrary contained in
section 74 or section 84 or in any other provisions of this Act, or in any
other law for the time being in force or in any contract, custom or
usage, or in any judgment, decree or order of any court, tribunal or
other authority, a person who at the commencement of the Kerala Land
Reforms (Amendment) Act, 2005, is in possession of any land, not
exceeding four hectares in extent, acquired by him or his predecessor-
in-interest 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 the date of the commencement of the
Kerala Land Reforms Act, 1963 (1 of 1964), and the date of
C.R.P. Nos. 1220, 1420 and 1662 OF 2000
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commencement of the Kerala Land Reforms (Amendment) Act, 2005,
shall be deemed to be a tenant.”
Section 84, sub-section (4):
“(4) Notwithstanding anything contained in sub-sections (1), (1
A) or (2), or in any judgment, decree, or order of any court, tribunal or
other authority, no acquisition of land referred to in section 7E shall be
deemed to be invalid, or ever to have been invalid by reason only of the
fact that the land so acquired was found included as, or forming part of,
the land liable to be surrendered by the transferor as excess land under
the provisions of this Act and no suit or other proceedings including
proceedings for eviction relating to the said land shall be instituted,
maintained or continued in any court or tribunal against any person who
is a deemed tenant under section 7E and every such suit or
proceedings pending shall stand abated;
Provided that, no ceiling cases wherein excess land has been
physically taken over and distributed to landless labourers or reserved
for public purposes as provided in this Act shall be reopened.
Provided further that if the Taluk Land Board is satisfied that the
transfer of land made by a person, in possession of excess land is
calculated to defeat the ceiling provisions, it may take into account the
land so transferred in determining his ceiling area and may direct him to
surrender such extent of land held or possessed by him.
Provided also that no ceiling cases or proceedings in which any
land has already been surrendered by, or assumed from, a person as
excess land before the commencement of the Kerala Land Reforms
(Amendment) Act, 2005, shall be reopened.”
C.R.P. Nos. 1220, 1420 and 1662 OF 2000
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11. The first petitioner in C.R.P.No. 1220 of 2000 claims title in respect of 12
acres 21 cents. It is her contention that part of this land is also included in the order of
resumption and therefore the extent does not exceed four hectares. The second
petitioner in C.R.P.No.1220 of 2000, Subramanian claims an extent of 7 acres , which
does not exceed the extent mentioned in Section 7E . Likewise the petitioners in
C.R.P.No. 1662 of 2000 could also seek the benefit of Section 7E. The Taluk Land
Board shall consider these aspects as well in the light of the Amendment Act 21 of
2006 and arrive at a conclusion as to whether the petitioners are entitled to get the
relief in the light of the provisions of law quoted above.
12. It is to be noted that the proceedings commenced in the year 1976. The
order passed by the Taluk Land Board dated 19.11.1976 was set aside since no
effective representation was made by the Government that sanction of the Land Board
was obtained before passing the order. The final order is now passed in the year
2000. The fact remains that from 1976 to 2000, the matter was pending before the
Taluk Land Board . This situation arose since correct information was not furnished to
the High Court while dealing with the earlier Revisions. The petitioners are also to be
blamed for not furnishing correct information to the High Court. The net result is that
from 1976 to 2000, a final determination could not be made by the Taluk Land Board.
This necessitates the Taluk Land Board to consider and dispose of S.M.Nos. 993 and
994 of 1976 afresh, as expeditiously as possible, after hearing the parties and affording
them an opportunity to produce documents and to adduce evidence.
For the aforesaid reasons, all these Civil Revision Petitions are allowed. The
C.R.P. Nos. 1220, 1420 and 1662 OF 2000
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orders in S.M.Nos.993 and 994 of 1976 are set aside. The Taluk Land Board is
directed to consider and dispose of the matter afresh in the manner indicate above,
after affording an opportunity of being heard to the parties and affording them an
opportunity to produce documents and to adduce evidence. All the contentions of the
parties are left open to be considered by the Taluk Land Board. No order as to costs.
K.T. SANKARAN,
JUDGE.
lk
C.R.P. Nos. 1220, 1420 and 1662 OF 2000
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K.T. SANKARAN, J.
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C.R.P. Nos. 1220, 1420 & 1662 OF 2000
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Dated this the 26th March, 2008
O R D E R