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.
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C.R.P.No.198 of 2010A
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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,
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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
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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
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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.
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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.
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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/-