Chinnamma Joseph alias M.P.Chinnamma v. Taluk Land Board, Kanayannur and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 29TH DAY OF NOVEMBER 2012/8TH AGRAHAYANA 1934 CRP.No. 236 of 2006 ( ) ----------------------- M.2407/1977 of TALUK LAND BOARD, KANAYANNUR. REVISION PETITIONER(S): ---------------------- CHINNAMMA JOSEPH ALIAS M.P.CHINNAMMA, AGED 64, D/O.LATE PAILY PAILY AND WIFE OF P.V.JOSEPH, PAZHAMPILLIL HOUSE, THIRUVANKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.K.C.CHARLES RESPONDENT(S): -------------- 1. TALUK LAND BOARD, KANAYANNUR, REPRESENTED BY ITS CHAIRMAN AND REVENUE DIVISIONAL OFFICER, FORT COCHIN. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LAND BOARD, GOVERNMENT SECRETARIAT, TRIVANDRUM. 3. SRI.ROY KURIAN, SON OF LATE KURIAKOSE, AGED ABOUT 57, AKAMTHURUTHIL THENGODU KARA, KAKKANAD. 4. SRI.RAJU KURIEN, SON OF LATE KURIAKOSE, AGED ABOUT 54, AKAMTHURUTHIL THENGODU KARA, KAKKANAD. *5. SMT.LILLY KURIEN, WIFE OF LATE KURIAKOSE, AGED ABOUT 77, AKAMTHURUTHIL THENGODU KARA, KAKKANAD.(DIED) * IT IS RECORDED THAT THE 5TH RESPONDENT DIED AND RESPONDENTS 3, 4 AND 6 ARE THE LEGAL REPRESENTATIVES OF THE DECEASED 5TH RESPONDENT AS PER ORDER DATED 25-8-2006 ON I.A.NO.2246/2006. 6. SMT.RENU GOERGE, D/O.LATE KURIAKOSE, AGED NOT KNOWN, AKAMTHURUTHIL, THENGODU KARA KAKKANAD. R1 & R2 BY GOVERNMENT PLEADER SMT.SUSHEELA BHATT. R3,4 BY ADVS. SRI.P.T.SEBASTIAN SRI.K.M.SUBIAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: amk ## **K.VINOD CHANDRAN, J** **---------------------------------------------------C.R.P.No.236 OF 2006 ----------------------------------------------------Dated this the 29[th] day of November, 2012.** ## **O R D E R** The revision petitioner has been attempting to get, the assignment of 1acre 3 cents of property, in Survey No.489/4B of Kunnathunadu Village in Kunnathunadu Taluk, granted to her predecessor-in-interest; enforced for more than a decade. The said lands were sought to be taken over by the Taluk Land Board in the ceiling proceedings with respect to one K.P.Kuriakose. An order dated 14-06-1999 was passed by the Taluk Land Board, wherein the above mentioned land was included in the ceiling proceedings of Sri.K.P.Kuriakose. The revision petitioner's father, who had obtained purchase certificate for the said land was before this Court in C.R.P.No.1408/1999, against the rejection of his claim. 2. The application filed by the revision petitioner's predecessorin-interest, her father Paily Paily, was under Section 85(8) of the Kerala Land Reforms Act, 1973 (hereinafter referred to as 'the Act'), being a person interested in the land; evidenced by the purchase certificate issued by the Land Tribunal. The claim was rejected on the premise that C.R.P.No.236 OF 2006 2 the applicant had not produced satisfactory evidence regarding the claim. Before this Court, it was contented that the said lands were covered by a gift deed, executed by the father of the declarant, in favour of minor children on 8-12-1957, i.e., before 18-12-1957, the relevant date as per the explanation to Section 85 of the Act. Further more, it was also contented that the predecessor-in-interest of the revision petitioner had obtained purchase certificate, with respect to the said land under the provisions of the K.L.R Act. It is seen from the order of the Taluk Land Board that the gift deed, the subsequent settlement deed and the purchase certificate in O.A.No.280/1975 of Land Tribunal, Vadavucode were produced before the Taluk Land Board. 3. The Taluk Land Board noticed the contentions of both sides. The respondents, who were the legal heirs of the declarant, raised a contention that though there was an oral lease to Sri.Paily Paily, it is evidenced that the lease was alleged to be by a person who was not born then. The revision petitioner however contented that the land was ## C.R.P.No.236 OF 2006 3 leased out to the claimant's father by the father of the declarant in 1950 and had later settled the properties by a gift deed prior to 18-12-1957 in the name of his minor children. The contention was that the lease was of 1950 by the father of the declarant to the father of the revision petitioner and subsequently the properties were settled in favour of the minor children by the gift deed. On the basis of the lease subsisting from 1950, the father of the revision petitioner had also obtained purchase certificate from the Land Tribunal, which was also produced before the Taluk Land Board. 4. It is seen from the impugned order of the Taluk Land Board that after discussion the Board came to the conclusion that though the purchase certificate has been issued to the claimants by the Land Tribunal concerned, the claimants did not produce any document to prove that the land was under their possession as on 1-1-1970. Such a jurisdiction, in this Court's opinion, does not rest with the Taluk Land Board, when the purchase certificate has been produced by the claimants. The purchase certificate is one issued by the Land Tribunal C.R.P.No.236 OF 2006 4 notified under the provisions of the Act. It is for such Land Tribunal before issuance of the purchase certificate to verify as to the possession, subsisting tenancy and so on and so forth. Having been issued a purchase certificate by a competent authority under the Act, in valid proceedings initiated under the Act, it does not lie in the mouth of the Taluk Land Board to disbelieve it or ignore the same. This Court in taking the above view is supported by a decision of the Supreme Court reported in _**2000(1) K.L.T 829 (S.C) Ahmmed Kutty v. Mariyakutty Umma**_ . The Hon'ble Supreme Court has clearly limited the consideration of the genuineness of a purchase certificate to cases in which there are allegations of fraud and collusion. In fact, the Supreme Court follows _**A.I.R 1979 Supreme Court 1573, Chettiam Veettil Ammad and another v. Taluk Land Board and others**_ , wherein it is stated : “ 27. It would thus appear that even though the certificate of purchase issued under sub-section (1) of Section 72-K is conclusive proof of the assignment of the right, title and interest of the landowner in favour of the holder in respect of the holding concerned ## C.R.P.No.236 OF 2006 5 under sub-section (2), that only means that no contrary evidence shall be effective to displace it, unless the so called conclusive proof is inaccurate on its face, or fraud can be shown (Halsbury's Laws of England, fourth edition, Vol.17, page 22 paragraph 28). It may be stated that "inaccuracy on the face" of the certificate is not as wide in its connotation as an "error apparent on the face of the record." It will not therefore be permissible for the Board to disregard the evidentiary value of the certificate of purchase merely on the ground that it has not been issued on a proper appreciation or consideration of the evidence on record, or that the Tribunal's finding suffers from any procedural error. What sub-section (2) of Section 72-K provides is an irrebuttable presumption of law, and it may well be regarded as a rule of substantive law. But even so, for reasons already stated, it does not thereby take away the jurisdiction of the Taluk Land Board to make an order under Section 85 (5) after taking into consideration the "conclusive" evidentiary value of the certificate of purchase according to Section 72-K (2) as far as it goes." 5. In such circumstance, this Court is of the view that the impugned order of the Taluk Land Board is vitiated for the reason of the Board having gone into matters which does not arise within the scope and jurisdiction conferred under Section 85(8) of the K.L.R Act. C.R.P.No.236 OF 2006 6 As has been held in the above Supreme Court decisions when a purchase certificate issued by the Land Tribunal is produced; the Taluk Land Boards are bound to accept it as conclusive proof under Section 72-K of the Kerala Land Reforms Act, unless fraud or collusion is alleged and established. This is a case in which there is no allegation of fraud or collusion. Going by the principles laid down in the above decision of the Hon'ble Supreme Court, the Taluk Land Board could not have gone behind the purchase certificate and made a roving enquiry into the claim of the cultivating tenant under the Act. That has been established before the Land Tribunal and is final in so far as the purchase certificate is valid and in existence. The claim under the Act as a cultivating tenant is no more alive for consideration before the Taluk Land Board. It could not have gone into the question of possession which has already been found by the Land Tribunal which has issued the purchase certificate. 6. This Court has also in _**1979 K.L.T 209, Krishnan v. Taluk Land Board, Vaikom**_ , and _**1981 K.L.T 545, Venkiteswara**_ C.R.P.No.236 OF 2006 7 _**Naidu v. Taluk Land Board**_ , considered the scope of an enquiry under Section 85(8) and found it to be limited to the question of whether the applicant has shown a _prima facie_ interest in the land and whether the applicant was prevented by reasonable cause in approaching the Land Board before the order was passed. The purchase certificate evidences the interest in land and this Court had earlier directed consideration of the application filed under sub-section (8) of Section 85. Considering the principles laid down in the above decisions as also the scope and ambit of the jurisdiction under sub-section (8) of Section 85; as also the long lapse of time, this Court is of the opinion that the application under sub-section (8) of Section 85 has to be allowed and this Court does so. The actual exemption has to be done by the Taluk Land Board after conducting an enquiry under sub-section(5) or (7) of Section 85 of the Act. This Court hence finds that the revision petitioner has _prima facie_ established the claim under sub-section(8) of 85 and directs the Taluk Land Board to conduct the enquiry contemplated under subsection (5) of sub-section(7) of Section 85 and pass appropriate orders C.R.P.No.236 OF 2006 8 in accordance with law. The proceedings before the Taluk Land Board shall be restored and the application filed by the predecessor in interest of the revision petitioner under Section 85(8) of the Act shall stand allowed. The party shall appear before the Taluk Land Board on 3-12013. The Taluk Land Board shall conduct the enquiry as contemplated in Section 85 and dispose of the matter, as expeditiously as possible, at any rate, within a period of three months, from the date of appearance of the parties. i.e., from 3-1-2013. The civil revision petition is allowed and remanded. No costs. The records of the case shall be retransmitted to the Taluk Land Board immediately by the Registry. Sd/- **K.VINOD CHANDRAN,** amk/30-11-12 **JUDGE** //True Copy// P.A to Judge