High Court Kerala High Court

Vijayakrishna Varama Raja vs State Of Kerala Represented on 13 September, 2010

Kerala High Court
Vijayakrishna Varama Raja vs State Of Kerala Represented on 13 September, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 198 of 2010()


1. VIJAYAKRISHNA VARAMA RAJA,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA REPRESENTED
                       ...       Respondent

2. THE SECRETARY,

                For Petitioner  :SRI.P.B.SAHASRANAMAN

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :13/09/2010

 O R D E R
                   THOMAS P JOSEPH, J.

                  ----------------------------------------

                     C.R.P.No.198 of 2010A

                   ---------------------------------------

             Dated this 13th day of September, 2010

                                ORDER

This revision is at the instance of respondents in the

proceeding before the Taluk Land Board, Vadakara (for short, “the

TLB”) under Section 85(5) of the Kerala Land Reforms Act (for

short, “the Act”). Allegedly since petitioner did not file declaration

as required in respect of the land in excess of the ceiling limit, on

getting permission from the State Land Board the TLB initiated

proceeding against petitioner for surrender of excess land allegedly

held by him. After verification of the relevant documents and

reports notice was served on petitioner. He, in answer to that

notice filed a statement disputing liability to surrender excess land

and claiming that he is only one among the 88 co-owners who are

members of Ayancheri Kovilakam. It is also contended that in

respect of ceiling matter the TLB had already initiated another

proceeding (S-24493/04/TLB(B) against 47 persons including

petitioner and to whom notices were issued and hence the present

proceeding is not maintainable on principles of res judicata and

estoppel. The further contention is that for partition of these

properties a suit is pending in the court of learned Sub Judge,

C.R.P.No.198 of 2010
: 2 :

Vadakara as O.S.No.21 of 2003. In the meantime there were

several claim petitions in respect of portion of property allegedly

possessed by the claimants. The TLB considered the statement of

petitioner and claims made by the respective claimants and by the

impugned order dated 30-03-2010 has rejected the contention of

petitioner and allowed some of the claims. The TLB has found that

petitioner is entitled to retain 5 std acres (7 = ordinary acres) of

land and directed petitioner to surrender the excess land. That

order is under challenge. Learned counsel for petitioner has

contended that in the light of pendancy of earlier proceeding the

present proceeding is not maintainable. Learned counsel has given

to me a copy of notice No.S-24493/04/TLB(B) dated 23-10-2004

issued to 47 persons from the TLB. It is also contended that there

was no notice given to the remaining co-owners of the property.

Reliance is placed on the decisions in Kadeeja Umma Vs. Taluk

Land Board (1981 KLT Case No.151) and State of Kerala Vs.

Ambika (2001(3) KLT Case No.130). Learned Additional

Advocate General in response contended that proceeding referred

to in the statement of petitioner did not relate to surrender of

excess land and instead a file was opened with respect to the

complaint preferred by one Damu Master regarding the excess

land. It was in connection with the enquiry on that petition that

C.R.P.No.198 of 2010
: 3 :

notice was issued to the persons referred to in the notice produced

by learned counsel. It is also contended that notice as required

under the Kerala Land Reforms (Ceiling) Rules, 1970 (for short,

“the Rules”) has been given to the petitioner and as the rule

requires, sufficient publication has been made. None has

responded to such notice. It is contended that petitioner has no

locus standi to complain that notice was not given to other so called

co-owners as claimed by the petitioner.

2. So far as the contention regarding pendancy of earlier

proceedings is concerned learned Additional Advocate General has

explained that it is not concerning surrender of excess land and it

was only an enquiry into the petition preferred by one Damu

Master. There is no reason why I should reject that statement of

learned Additional Government Pleader. Admittedly, there was no

order passed by the TLB in that present proceeding directing

petitioner or anybody else to surrender excess land. Hence no

question of res judicata or estoppel does arise.

3. So far as the claim of petitioner that there are other

co-owners interested in the property is concerned, except

contending so and that there is a suit for partition pending in the

Sub Court, Vadakara it is not disputed before me that no document

was produced by petitioner before the TLB to show that he has only

C.R.P.No.198 of 2010
: 4 :

a fractional interest in the property.

4. So far as notice to other so called co-owners is

concerned, that question is not required to be gone into at the

instance of petitioner to whom admittedly notice has been given

and who was represented before the TLB by counsel. Though it is

contended by learned counsel that provisions of the Kerala Land

Reforms (Tenancy) Rules is applicable and since the provisions of

the Code of Civil Procedure (for short, “the Code”) has also been

made applicable there must be personal service of notice as

contemplated under Order V of the Code and it is only when

personal service is not practicable that publication is required,

Rule 12(3) of the Rules say that “wherein any case the TLB is of

opinion that service of notice under Sub rule (2) is not sufficient or

effective or it is not practicable to give notice under that sub rule

to all persons who have or are likely to have any such claim or

interest as is specified in that rule, the TLB may cause to be

published a public notice in Form No.4 in daily newspapers having

wide circulation in the area”. In paragraph 2 of the order it is

stated that the said requirement was complied. Learned Additional

Advocate General states that though the Government took

possession of the property in April, 2010, none of the so called co-

owners has come forward making any claim over the property.

C.R.P.No.198 of 2010
: 5 :

This of course is disputed by learned counsel for petitioner who

states that operation of the impugned order was stayed by this

court from 06-04-2010.

5. Suffice to say, petitioner has been given notice and he

has been heard. As I stated now there is no material placed before

this court to show that petitioner is only a co-owner. If at all any

other person is affected by the impugned order it is open to him to

initiate appropriate proceedings if he is otherwise entitled and as

provided under law. Hence the contention that notice was not

given to other (so called) co-owners is not required to be gone into

in this proceeding at the instance of petitioner. I therefore find no

reason to interfere with the impugned order.

6. Learned counsel has contended that at any rate

petitioner should have given option to surrender the land. In

response it is contended that no such claim was made before the

TLB. Assuming so, it only meant that petitioner cannot as of right

ask for option but that does not prevent this court from giving him

opportunity to exercise option on principle of equity. Having

regard to the facts and circumstances of the case I am inclined to

give that privilege to the petitioner but, that shall not in any way

affect the purpose for which the Government allegedly proposes to

use the surrendered land.

C.R.P.No.198 of 2010
: 6 :

Resultantly this revision petition is dismissed for the reasons

aforesaid. But I make it clear that the TLB shall, if requested for

within two weeks from this day give opportunity to the petitioner to

exercise the option regarding land to be surrendered subject of

course to the rider that option shall be exercised without in any

affecting the object to which Government (allegedly) proposes to

use the surrendered land.

(THOMAS P JOSEPH, JUDGE)

Sbna/-