Mohammed Kunji (through his legal heirs P2–P9) v. The State of Kerala and The Taluk Land Board, Kodungallur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934`** ## **CRP.No. 666 of 2007 (E)** ## **----------------------LR.23918/1986 of TALUK LAND BOARD, KODUNGALLOOR** ## **REVISION PETITIONER(S):** - **----------------------** **1. MOHAMMED KUNJI, AGED 88, S/O. POKKER KUNJI, POOVATHUMPARAMBIL HOUSE, P.O. AZHIKODE JETTY, KODUNGALLOOR, THRISSUR DIST.** **DIED AN LRS IMPLEADED AS P2 TO P9** ## **IMPLEADING PETITIONERS** - **P2. KOCHUMOL R K, W/O MOHAMMED KUNJI, POOVATHUMPARAMBIL HOUSE, P.O. AZHIKODE JETTY, KODUNGALLOOR, THRISSUR.** - **P3. SHEREEFA P M, D/O MOHAMEED KUNJI,POOVATHUMPARAMBIL HOUSE, P.O. AZHIKODE JETTY, KODUNGALLOOR,THRISSUR.** - **P4. KUNJEYISHU P M,D/O MOHAMEED KUNJI,POOVATHUMPARAMBIL HOUSE, P.O. AZHIKODE JETTY, KODUNGALLOOR,THRISSUR.** - **P5. SUHARA P M,D/O MOHAMEED KUNJI,POOVATHUMPARAMBIL HOUSE, P.O. AZHIKODE JETTY, KODUNGALLOOR,THRISSUR.** - **P6. MUHAMMED ALI P M,S/O MOHAMEED KUNJI,POOVATHUMPARAMBIL HOUSE, P.O. AZHIKODE JETTY, KODUNGALLOOR,THRISSUR.** - **P7. RABIA P M,D/O MOHAMEED KUNJI,POOVATHUMPARAMBIL HOUSE, P.O. AZHIKODE JETTY, KODUNGALLOOR,THRISSUR.** - **P8. SAKARIA P M,S/O MOHAMEED KUNJI,POOVATHUMPARAMBIL HOUSE, P.O. AZHIKODE JETTY, KODUNGALLOOR,THRISSUR.** - **P9. NAJEEB P M,S/O MOHAMEED KUNJI,POOVATHUMPARAMBIL HOUSE, P.O. AZHIKODE JETTY, KODUNGALLOOR,THRISSUR.** **ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED REV.PETITIONER AS P2 TO P9 AS PER ORDER DATED 07/0/2008 ON IA 1617/2008.** - **BY ADVS. SRI.VARGHESE PREM SRI N A ABOOBACKER** ## **CRP.No. 666 of 2007 (E)** ## **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA, REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE TALUK LAND BOARD,** - **REPRESENTED BY ITS CHAIRMAN, DEPUTY COLLECTOR(LR), THRISSUR, COLLECTORATE, AYYANTHOLE, THRISSUR.** **BY ADV. GOVT PLEADER SRI P S ABDUL KAREEM** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **LSN** ## **K. VINOD CHANDRAN,J.** ## **---------------------------------------** ## **C.R.P NO. 666 of 2007** **----------------------------------------** Dated this the 3[rd] day of October, 2012 ## **O R D E R** The Revision Petitioners 2 to 9 are the legal representatives of the original Revision Petitioner, Mohammed Kunji. Mohammed Kunji was a Kudikidappukaran under one P K Abdul Rahman Haji, against whom proceedings were taken under the Kerala Land Reforms Act, 1963 (hereinafter referred to as “the KLR Act”) for surrender of lands over and above the ceiling prescribed under the KLR Act. Mohammed Kunji applied for Kudikidappu and was granted the same in O A No. 297/73 by the Land Tribunal, Kodungallur by Purchase Certificate No. 160/75 dated 10/07/1975. Subsequently, in the ceiling proceedings initiated against the landlord, such Kudikidappu was exempted and excess land of 23.900 cents, lying adjacent to the Kudikidappu was taken over as vested in the Government under the provisions of the Act. The subject proceedings deal with the assignment of such lands. C.R.P NO. 666 of 2007 2 2. Mohammed Kunji, being the Kudikidappukaran, applied for assignment of the said land under Section 96 of the Act and Rule 30 of the Kerala Land Reforms Act (Ceiling rules) , 1970. Since, there was absolutely no steps taken on the application under Form 17, Mohammed Kunji was constrained to approach this court by OP No. 751/2001. Though the application was dated 16/10/2000, on the submission made by the learned Government Pleader that it was received only on 09/01/2001, ie, after the date of filing of the Original Petition on 08/01/2001; this Court refused to grant any mandamus. However, while disposing of the writ petition, it was also directed that the second respondent would dispose of the application in accordance with law, within a reasonable period. The said judgment was passed on 18/01/2001. In pursuance of the said judgment, despite the fact that the application dated 16/10/2000 was in Form 17, the petitioner was issued with a notice dated 14/03/2001 intimating him that since no notification has been published with respect to the subject land, the consideration of his application would not be possible. It was also pointed out in the said notice itself that the C.R.P NO. 666 of 2007 3 petitioner would be entitled to file an application under Form 17 immediately on the issuance of the notification. Notification dated 30/03/2001 under Form 16 was published by the District Collector inviting applications to reach his office on or before 30/04/2001. The paper publication was also made in the Malayala Manorama on 06/04/2001, intimating the last date as 30/04/2001. Muhammed Kunji promptly filed application dated 10/04/2001 which evidently was received in the office of the Land Tribunal on 16/04/2001. This is evidenced by the copy of the acknowledgment card available in the records. 3. However, since nothing transpired in the application, Mohammed Kunji was before this Court in CCC No. 541/2002 and CCC No 250/2003 seeking initiation of contempt proceedings for non-processing of his application, as directed in the Original Petition. In both the instances, the contempt proceedings were closed on the submission of the learned Government Pleader that about more than 300 applications were received in the office and time was being taken for processing the same. The petitioner C.R.P NO. 666 of 2007 4 once more approached this Court with CCC No.281/2007, filed on 15/02/2007. The Officers then were prodded into action and submitted before Court that a notice dated 20/02/2007 has been issued fixing the hearing date on the application of Mohammed Kunji on 28/02/2007. The contempt case hence, was closed. Pursuant to hearing conducted on 28/02/2007, the impugned order was passed. 4. The learned counsel Sri Varghese Prem has taken me through the impugned order. The learned counsel would point out that a mere reading of the order would lay bear the non application of mind and the callous indifference with which the matter has been dealt with. After narrating the facts, more so the various contempt applications filed by Mohammed Kunji, the Chairman, Taluk Land Board, notices that the Exhibit P2 application in Form No 17 dated 16/10/2000 is not in the appropriate time. The said finding, as is evident from the records, is strange. True, there was an application dated 16/10/2000, subsequent to which the authorities have informed the petitioner C.R.P NO. 666 of 2007 5 that he would have to make an application in Form 17 after the issuance of the notification. As noticed above, the notification was issued on 30/03/2001 and the last date fixed for filing the application was 30/04/2001. Mohammed Kunji had filed an application dated 10/04/2001, which as per the records of the case, has been received in the office of the Land Tribunal on 16/04/2001. There was an application filed within time and the reference to the earlier application dated 16/10/2000 can only indicate the levity with which the authority considered the matter. 5. Further, the Chairman, Taluk Land Board notices that the Tahsildar, Kodungallur has reported that Mohammed Kunji is not eligible for assignment, since he was already been assigned 10 cents of land being a Kudikidappukaran. It was also the report of the Tahsildar that the applicant does not come under the category of “landless agricultural labourer”. Relying on the said report and after conducting an inspection of the said land, the Chairman noticing the fact that the applications for C.R.P NO. 666 of 2007 6 assignment of surplus land, has been received from landless agricultural labourers, presons belonging to Scheduled Caste/Scheduled Tribe communities, etc, found that “it seems that they would be granted priority”. It is not clear as to how the Chairman made such an assumption. It is also to be noticed that the Chairman has gone by the eligibility or rather the ineligibility reported by the Tahsildar and has failed to look into the provisions of the KLR Act, and independently consider the matter. 6. The learned counsel for the Revision Petitioner would point out that Section 96, specifically grants preference for assignment of lands in which Kudikidappukar's exists; to such Kudikidappukars, and the only caveat being such assignment not exceeding 1 acre as provided under sub section (2) and (3) of Section 96. Rule 30 of the KLR (Ceiling) Rules more specifically sub-rule (2) mandates that first preference is to be given to the Kudikidappukaran in preparing the list referred to in sub-rule (1), which sub-rule deals with the preparation of list of persons eligible for assignment under Section 96. The statutory C.R.P NO. 666 of 2007 7 provisions have been given a complete go by, by the authorities. 7. Mohammed Kunji had been consistently approaching the authorities for the assignment of land right from the year 2000. The impugned order of the year 2007 has been made after initiation of the 3[rd] contempt proceeding and obviously is a hastily issued order, to avoid action under the Contempt of Court proceedings. Mohammed Kunji, in the long years, passed away. The legal representatives are the revision petitioners herein. The impugned order, for the reasons stated above has to be set aside. This court would have normally granted the assignment following a Division Bench decision of this Court reported in _**Antony v. District Collector**_ ( _**1979 KLT (SN 132) of page 61) (DB).**_ The Division Bench of this Court had categorically held, having regard to all the relevant provisions of the Act that, whatever rights guaranteed to the Kudikidappukaran under other provisions of the Act would remain in tact, and the rights conferred under sub-section (1) of Section 96 of the Act and sub rules (1) and (2) of Rule 30 of the Rules confer on him the C.R.P NO. 666 of 2007 8 additional right for inclusion with first preference, in the list of persons eligible for assignment of land. But however, since none of the statutory provisions are seen considered by the original authority, it is only proper that the matter is remanded to the original authority. The callous indifference and rank inefficiency of the officer who entered into the findings in the impugned order is evident from the impugned order. This Court restrains itself from directing initiation of proceedings against the said officer only taking into consideration, the circumstance that the said officer is no longer in the service of the Government. 8. The impugned order, hence, is set aside and remanded to the Taluk Land Board, Kodungallur, who shall restore the matter to the file and dispose of the application filed by Mohammed Kunji under Form 17 of the KLR Act within a period of three months from the date of appearance of the petitioners. The petitioners, legal heirs of Mohammed Kunji, shall appear before the Taluk Land Board, Kodungallur on 01/11/2012 personally or through representative or counsel. The Taluk Land C.R.P NO. 666 of 2007 9 Board shall issue orders in accordance with the observations made by this Court and also considering the proposition of law laid down by the Division Bench of this Court referred to above. It is also made clear that there shall be no assignment of the subject land until fresh orders are passed on the application filed by the deceased Mohammed Kunji and now represented by his legal heirs. The Orders shall be passed within three months of the date of appearance of the petitioners before the Taluk Land Board, Kodungallur. Civil Revision Petition, is accordingly, allowed. **+** **K.VINOD CHANDRAN JUDGE.** _LSN_ /-