K.K. Viswanathan & K.K. Vasanti Devi v. State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **MONDAY, THE 24TH DAY OF NOVEMBER 2014/3RD AGRAHAYANA, 1936** ## **CRP.No. 337 of 2010** **-------------------------------CR 92/1973/M6 of TALUK LAND BOARD, THIRURANGADI** **................................................** ## **PETITIONERS:** - **--------------------** **1. K.K.VISWANATHAN, AGED 63 YEARS S/O.K.M.KUNHIRAMAN NAIR, RESIDING AT SANTHI ARIYALLUR P.O., THIRURANGADI TALUK MALAPPURAM DISTRICT.** **2. K.K.VASANTHI DEVI,** - **D/O.K.M.KUNHIRAMAN NAIR, RESIDING AT SANTHI ARIYALLUR P.O., THIRURANGADI TALUK MALAPPURAM DISTRICT.** **BY ADVS.SRI.P.M.POULOSE SMT.AYSHA YOUSEFF SMT.MOLLY JACOB** **RESPONDENTS:** - **----------------------------** **1. STATE OF KERALA** - **REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001** **2. TALUK LAND BOARD THIRURANGADI, REPRESENTED BY ITS CHAIRMAN, DEPUTY COLLECTOR(LR) COLLECTORATE, MALAPPURAM P.O., MALAPPURAM DISTRICT - 676 505** **3. DISTRICT COLLECTOR MALAPPURAM MALAPPURAM P.O., MALAPPURAM - 676 505** **4. THE TAHSILDAR THIRURANGADI, CHEMMAD P.O., MALAPPURAM DISTRICT - 676 306** **5. THE VILLAGE OFFICER, ARIYALLUR, ARIYALLUR P.O., MALAPPURAM DISTRICT. - 676 312** **6. THE VILLAGE OFFICER, VALLIKKUNNU** - **ATHANI P.O. MALAPPURAM DISTRICT - 683 585** **BY SPL. GOVERNMENT PLEADER SMT. SUSHEELA R. BHAT** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-11-2014, ALONG WITH CRP. 265/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DCS** **CRP.No. 337 of 2010** ## **APPENDIX** **PETITIONER(S)' ANNEXURES :- -------------------------------------------** **ANNEXURE I: COPY OF THE PETITION DATED 14.02.2013 BEFORE THE 1ST RESPONDENT TALUK LAND BOARD** ## **RESPONDENT'S ANNEXURES :- NIL** **/TRUE COPY/** **P.A. TO JUDGE** **DCS** ## **V.CHITAMBARESH,J.** **-------------------------------** **C.R.P. Nos. 337 of 2010 &** ## **265 of 2011** **-----------------------------------------** Dated this the 24[th] day of November, 2014 ## **O R D E R** The Taluk Land Board by order dated 23.09.1977 directed the declarant to surrender 14.17 acres as in excess of his ceiling area. The order was the subject matter of C.R.P. No. 3400/77 on the file of this Court on the question whether the ceiling proceedings abated or not on the death of the declarant. This issue was set at rest by the introduction of Section 85(6A) of the Kerala Land Reforms Act, 1963 (the 'Act' for short). The Taluk Land Board has thereafter by the order impugned directed the legal heirs of the declarant to surrender 9.97 acres as in excess of the ceiling area. C.R.P.No. 337/2010 has been filed by the legal heirs of the declarant and C.R.P. No. 265/2011 has been filed by the State challenging the order of the Taluk Land Board dated 11.05.2010. 2. The first point contended by the legal heirs of the declarant is as regards the applicability of Section 7E of the C.R.P. Nos. 337 of 2010 & 265 of 2011 2 Act. It is stated that an extent of 56 cents in R.S. No. 89/5 was sold by the legal heirs of the declarant to one Mohammadkutty under Document No. 1884/82. Another extent of 44 cents in R.S. No. 167/18 was sold by the wife of the declarant to Kodakkattakath Yakoob under Document No. 1304/1996. It is the contention of the legal heirs of the declarant that the above total extent of 1 acre is liable to be excluded under Section 7E of the Act. The Taluk Land Board has passed the impugned order treating the alienations as invalid being done after 01.01.1970. I do feel that the applicability of Section 7E of the Act has to be reconsidered in regard to the above two transactions as per law. The same shall be done in the wake of the decisions in **Rajeev v. District Collector [2014 (4) KLT 209]** and **State of Kerala v. Thomas Kurian [2014 (4) KLT 417].** 3. The next point is as regards the transaction by the declarant in favour of Gouri Sankar Asramam and the subsequent transaction in favour of Kannan Nair Memorial Educational Trust. The legal heirs contend that the father of the declarant set apart 22.81 acres to Gouri Sankar Asramam by a settlement deed (Document No. 1464/1946). The declarant subsequently transferred 2.19 acres in favour of the C.R.P. Nos. 337 of 2010 & 265 of 2011 3 Asramam in R.S. Nos. 39/1A, 1B and 33/1 under Document No. 1463/1953. Another extent of 81 cents in R.S. No. 32/2 was purchased by Gouri Sankar Asramam from a stranger under Document No. 881/1959. Thus the total extent of the land in the possession of Gouri Sankar Asramam earlier was reckoned as 25.81 acres. 4. 18.07 Acres out of 25.81 acres was sold by the declarant on behalf of Gouri Sankar Asramam. The property was so sold under Document No. 1863/1969 to Kannan Nair Memorial Educational Trust. The Taluk Land Board has excluded only 7.74 acres retained by the Gouri Sankar Asramam after alienation in favour of Kannan Nair Memorial Educational Trust. The Taluk Land Board in so doing has held that the transaction evidenced by Document No. 1863/1969 of an extent of 18.07 acres as invalid in the eye of law. 5. The legal heirs contend that 22.81 acres and 2.19 acres has been sold to Gouri Sankar Asramam long before 01.04.1964. What is the logic in treating only 7.74 acres retained by the asramam as valid and treating as invalid the alienation of 18.07 acres ? This is the contention urged by the legal heirs of the declarant as regards the transaction in favour of Gouri Sankar Asramam. The State on the other hand C.R.P. Nos. 337 of 2010 & 265 of 2011 4 refers to the decision in **State of Kerala v. Karthiyani Amma [1989 (2) KLT 505]** . The State contends that the Gouri Sankar Asramam is not a public trust which alone is liable to be excluded under Section 81(1)(t) of the Act. I do feel that the transaction in favour of the Gouri Sankar Asramam and the subsequent sale in favour of Kannan Nair Memorial Educational Trust needs a deeper probe. As to whether the entire extent of 22.81 acres and 2.19 acres is liable to be excluded under Section 81(1)(t) of the Act has to be reconsidered. Similarly the logic behind treating the transaction of 18.07 acres out of the total extent of 25.81 acres as invalid has to be reconsidered. 6. The third point urged by the legal heirs of the declarant is as regards exemption for 14.46 acres under Section 81(1)(f) of the Act. The legal heirs assert that the said extent was a cashew plantation as on 01.04.1964 and rely on the decision in **Kunhipathumma v. Tellicherry Taluk Land Board [2014 (4) KLT 19].** It has been held in the above decision that the density of growth of cashew trees is a relevant factor for the purpose of qualifying for exemption under the Act. The application put in by the declarant claiming such exemption is pending before the Taluk Land Board. It is C.R.P. Nos. 337 of 2010 & 265 of 2011 5 only proper that the Taluk Land Board considers that issue also in the proceedings after remand. 7. The State asserts that the total extent of land in the possession of the declarant was found to be 57.27 acres in the original draft statement issued. It is intriguing as to how the total extent has been drastically reduced to 24.97 acres from 57.27 acres. The legal heirs of the declarant point out that 0.34 acres in R.S. Nos. 87/7 and 87/8 was owned by the major daughter of the declarant under Document No. 1361/71. The legal heirs also add that 4.69 acres in R.S. Nos. 77/4, 18/4 and 19/1B was gifted by the declarant to his major daughter. The documents those styled as partition deed ought to be treated as a gift deed following **Mehaboob Beevi v. Taluk Land Board [2002 (1) KLT 305]** . There has been a duplication or excess accounting in respect of 5.84 acres in R.S. Nos. 237/1, 237/2, 237/3, 237/4 and 1/3. The legal heirs also maintain that 19/20 shares of lands in Beypore and Naduvattom Villages comes to about 5.61 acres only. It is the case of the legal heirs of the declarant that the extent of land aforementioned were deleted from the account of the declarant justifiably. This explains the reason as to why the total extent of land was drastically reduced from 57.27 acres to 24.97 acres. Added to C.R.P. Nos. 337 of 2010 & 265 of 2011 6 this is the fact that exemption was granted under Section 81 of the Act in regard to house sites and other structures bringing down the total extent of land. This aspect of the matter has also to be considered by the Taluk Land Board on a proper application of mind. 8. What remains is the property gifted under Document No. 692/63 by the declarant in favour of one Thankam Antharjanam. The Taluk Land Board has held that the property in R.S. Nos. 179/9 and 179/2010 has been so transferred under the document afore quoted. The State on the other hand contends that Document No. 692/63 reflects an altogether different property in R.S. Nos. 175/9 and 175/10. The plea in essence of the State is that exemption has been granted to a wrong property under the cover of Document No. 692/63. I am sure that the Taluk Land Board will address itself to this issue while passing final orders in the ceiling case. 9. No reasons have also been stated by the Taluk Land Board as regards the exemption granted for 16 cents in R.S. No. 30/2. The State contends that exemption was lawfully granted whereas the legal heirs of the declarant attempt to justify it. Whether the property in R.S. No.30/2 of extent 16 cents is liable to be exempted has to be considered by the C.R.P. Nos. 337 of 2010 & 265 of 2011 7 Taluk Land Board. The same shall be done in the touchstone of Section 81 of the Act in regard to the grant of exemption from ceiling provisions. 10. The Taluk Land Board, Thirurangadi will consider the points focused above and pass final orders within a period of six months from today. The impugned order of the Taluk Land Board is set aside for this limited purpose. The Civil Revision Petitions are allowed. No costs. **V.CHITAMBARESH JUDGE** DCS