Escapade Resort Pvt. Ltd. v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941** ## **CRP(LR).No.732 OF 2018** **AGAINST THE ORDER IN TLB 141/1973/Amb. OF TALUK LAND BOARD, AMABLAPPUZHA DATED 18.09.2018** ## **REVISION PETITIONER/3RD PARTY:** **ESCAPADE RESORT PVT. LTD., HAVING ITS REGISTERED OFFICE AT CASINO BUILDING, WILLINGDON ISLAND, THOPPUMPADY VILLAGE, COCHIN - 682 003, REPRESENTED BY ITS DIRECTOR THOMAS DOMINIC, S/O.DOMINIC JOSEPH, AGED 59 YEARS, COMPANY DIRECTOR, RESIDING AT 12-A, UPARIKA MALIKA, PANDIT KARUPPAN ROAD, THEVARA POST, ELAMKULAM VILLAGE, COCHIN - 682 013, ERNAKULAM DISTRICT.** **BY ADVS. SRI.C.M.ANDREWS SRI.SHYAM PADMAN SRI.P.T.MOHANKUMAR SMT.BOBY M.SEKHAR KUM.LAYA MARY JOSEPH SRI.N.N.SUGUNAPALAN (SR.)** ## **RESPONDENTS:** **1 THE STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PATTOM, PIN - 695 001. 2 THE TALUK LAND BOARD, AMBALAPPUZHA, REPRESENTED ITS CHAIRMAN-688561. 3 THE DISTRICT COLLECTOR, CIVIL STATION, ALAPPUZHA-688001.** **CRP(LR).No.732 OF 2018** **2** ## **4 THE TAHSILDAR (LR), CHERTHALA TALUK, CHERTHALA-676505.** - **5 THE VILLAGE OFFICER, MARARIKKULAM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688523.** **6 V.L. VIJAYAKUMAR ALIAS VIJAYAN, S/O LATE VICTOR GREGARIOUS, THUNDAPURAYIDOM, THUMBOLIMURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT-688008, PRESENTLY RESIDING AT VELIYIL HOUSE,KANJIKUZHI VILLAGE, S.N. PURAM POST,-688527, CHERTHALA TALUK, ALAPPUZHA DISTRICT.** - **7 V.L. VINUMON, S/O LATE VICTOR GREGARIOUS, THUNDAPURAYIDOM, THUMBOLIMURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT-688008, PRESENTLY RESIDING AT VELIYIL HOUSE,KANJIKUZHI VILLAGE, S.N. PURAM POST,-688527, CHERTHALA TALUK, ALAPPUZHA DISTRICT.** - **8 VINOD KUMAR V.L., S/O LATE VICTOR GREGARIOUS, THUNDAPURAYIDOM, THUMBOLIMURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT-688008, PRESENTLY RESIDING AT VELIYIL HOUSE,KANJIKUZHI VILLAGE, S.N. PURAM POST,-688527, CHERTHALA TALUK, ALAPPUZHA DISTRICT.** **R1, R3-5 BY GOVERNMENT PLEADER R6-8 BY ADV. SRI.JOSEPH RONY JOSE SRI.T.KRISHNANUNNI (AMICUS CURIAE)** **THIS CRP (LAND REFORMS ACT) HAVING BEEN FINALLY HEARD ON 09.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRP(LR).No.732 OF 2018** **3** **Sathish Ninan, J. ============================== C.R.P.(LR) No.732 of 2018 ========================== Dated this the 09[th] day of March, 2020** ## **ORDER** The Civil Revision Petition arises from the proceedings in relation to the ceiling case against one Victor Gregorious and family. 2. On 15.02.2006, the Taluk Land Board passed a final order directing surrender of 1 Acre 93 cents and 480 square links as excess land. The present proceedings relate to 20.23 Ares equivalent to 50 cents out of the said extent, which is in possession of the revision petitioner Company. 3. The petitioner Company claims to have purchased the 20.23 Ares equivalent to 50 cents from respondents 6 to 8 in the revision petition, who claim to be the legal heirs of the said Victor Gregorious, as per sale deed No.2294/1994. **CRP(LR).No.732 OF 2018** **4** 4. As against the notice of surrender, respondents 6 to 8 who are the assignors of the petitioner, filed W.P(C) No. 12870 of 2017 before this Court. The writ petition was disposed of directing the Taluk Land Board to take a decision on their challenge. As per the order impugned, the land board rejected the proposal of respondents 6 to 8 for surrender of another extent of 50 cents in lieu of the 50 cents sought to be taken possession of from the petitioner-Company. 5. Heard learned senior counsel Sri. N.N.Sugunapalan on behalf of the petitioner, the learned senior Government Pleader and the learned senior counsel Sri.T.Krishnanunni, the amicus curie appointed by this Court. 6. Admittedly, the extent of 20.23 Ares which is a part of the larger extent directed to be surrendered by the family of Victor Gregorious, is in the possession of the petitioner Company under a sale deed **CRP(LR).No.732 OF 2018** **5** executed by respondents 6 to 8 as the legal heirs of Victor Grigorious. In **K.Ambunhi v. Taluk Land Board (1981 KLT 874)** this Court held that, when the land directed to be surrendered is found to be in the possession of a third party, the Taluk Land Board is to issue notice to that person calling upon him to show whether his possession is authorised or not. When he responds to such a notice, that response is to be treated as an application under Section 85(8) of the Kerala Land Reforms Act and is to be decided accordingly. 7. Even according to the Government and, as is evident by the report of the Tahsildar dated 14.05.2018 submitted to the Sub Collector, Alappuzha, the property in question does not have any road access. Going by the said report the property offered to be surrendered, which has an extent of 28.90 Ares, has Panchayath road access. 8. Once the proceedings are re-opened to the limited extent, while determining the identity of the **CRP(LR).No.732 OF 2018** **6** land to be surrendered, the Taluk Land Board is, in terms of proviso (B) to Section 85(6) of the Kerala Land Reforms Act entitled to consider as to whether the land indicated to be surrendered is accessible or not. 9. In **Moideen Kunhi Haji v State of Kerala (1987 (2) KLT 101)** , deliberating on the powers of the Land Board regarding setting aside of its order under Section 85(5), this Court held thus: “Assuming that S.85(8) does not confer power on the Taluk Land Board to set aside its order under S.85(5), at the instance of an assessee, I still think that such power should be recognised in its favour, if that is necessary for it to effectively perform its adjudicatory functions in accordance with the rules of fairplay and justice. In Cheru Ouseph v. Kunhipathumma (1981 KLT 495) I had had occasion to discuss at some length the nature of the powers exercised by Special Tribunals in modern days, and the role played by them in the administration of justice, **CRP(LR).No.732 OF 2018** **7** and to observe: “Two or three important things follow from what has been seen so far. First, the administration of justice, or at any rate, a substantial part of it is now patterned in a manner different from what it was some half a century ago. Second, the special tribunals which constitute the core of this new pattern are exercising judicial functions inherent in the sovereign of state. Third, the powers exercised by them are in many cases in distinguishable in content from those exercised by courts of justice. Further, exercise of such powers by them is vital to the citizen despite the supervisory powers of superior courts over such exercise. If this be the true position, the reality which cannot be overlooked from the functional point of view, how are we to proceed in delimiting the powers of these bodies in matters of procedure, at **CRP(LR).No.732 OF 2018** **8** least in areas not directly covered by statutes?” And after having posed the question, I ventured to answer it by suggesting that “ in respect of procedural matters, all powers which are not specifically denied by the statute or the statutory rules should be vouchsafed to a statutory tribunal so that it may effectively exercise its judicial function.” The above approach was noted with approval by Bhat J., in Abdulla v. Rent Controller (1984 KLT 865). My attention has not been drawn to any provision in Act 1/64 or the Ceiling Rules which seeks to deny, expressly or by necessary implication, the power to a Taluk Land Board to set aside its order passed without hearing an assessee, when it is satisfied that the assessee had sufficient cause for non-appearance, and that if will be unjust, in the circumstances disclosed, to allow the ex parte decision to stand. If **CRP(LR).No.732 OF 2018** **9** that is so, I am definitely of the view that even if S.85(8) was not attracted, the Taluk Land Board in the present case was well within its bounds in setting aside the order dated 16-11-81 and proceeding to reconsider the matter.” 10. In view of the above, I am of the opinion that the Taluk Land Board could be directed to consider the claim of the petitioner as a proceeding under Section 85(8) of the Kerala Land Reforms Act. I also take support from the view expressed by the Full Bench of this Court in **Ramanatha Reddiar v Taluk Land Board (1985 KLT 412(F.B))** to the following effect: “Strictly speaking, the declarant, who did not specifically mention about the option in regard to the identity of the land he wanted to surrender, could not be heard to say later on, that as a matter of right he was entitled to make a choice after the ceiling limit has been fixed, though as a **CRP(LR).No.732 OF 2018** **10** matter of equity the Land Board or the Taluk Land Board, as the case may be, might accede to such a request.” 11. The Taluk Land Board is to consider the claim of the petitioner as one under Section 85(8) of the Kerala Land Reforms Act and while determining the identity of the land to be surrendered, consider the report of the Tahsildar to the effect that the land in question is unaccessible. This court is not unmindful of the fact that the conveyance in favour of the petitioner Company is only in the year 1994, and that the conveyance is based on a Settlement Deed dated 30.03.1970 which was not accepted in the earlier round of litigation. Determination of exemption of the land in question and accepting other land in the account shall be determined on issuing notice to all the legal heirs of late Victor Gregorious. 12. On the above discussions, the order impugned is set aside. The Taluk Land Board is directed to **CRP(LR).No.732 OF 2018** **11** consider the claim of the petitioner and pass appropriate orders with notice to all the legal heirs late Victor Gregorious, in the light of the observations made above. Civil Revision Petition is allowed as above. Sd/- **Sathish Ninan, Judge** **vdv** **CRP(LR).No.732 OF 2018** **12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 TRUE COPY OF THE ORDER DATED 15.2.2006 PASSED BY THE TALUK LAND BOARD, AMBALAPPUZHA IN TLB 141/73/AMB** - **ANNEXURE 2 TRUE COPY OF THE JUDGMENT DATED 23.6.2015 IN WPC.11770/2007** - **ANNEXURE 3 TRUE COPY OF THE REPRESENTATION DATED 2.1.2017 FILED BY RESPONDENTS 6 TO 8 BEFORE THE 2ND RESPONDENT TALUK LAND BOARD** - **ANNEXURE 4 TRUE COPY OF THE JUDGMENT DATED 11.7.2017 IN WPC.12870/2017** - **ANNEXURE 5 TRUE COPY OF THE ORDER DATED 11.7.2017 IN WPC.22037/2017** - **ANNEXURE 6 LEGAL OPINION DATED 20.1.2018 UNDER REFERENCE NO.012/2018 GIVEN BY THE DISTRICT GOVERNMENT PLEADER, ALLEPPEY TO THE 2ND RESPONDENT TALUK LAND BOARD** - **ANNEXURE 7 TRUE COPY OF THE REPORT UNDER REFERENCE NO.F1.3645/79 DATED 14.5.2018 FILED BY THE TAHSILDAR, CHERTHALA BEFORE THE SUB-COLLECTOR, ALLEPPEY** - **ANNEXURE 8 JUDGMENT DATED 22.10.2018 PASSED BY THIS HON'BLE COURT IN WPC.22037/2017**