Saramma Varghese and others v. Taluk Land Board, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934** ## **CRP.No. 930 of 2005 ( )** ## **-----------------------** **AGAINST THE ORDER IN LB.801/1973 of TALUK LAND BOARD, PALAKKAD** ## **REVISION PETITIONERS):** **----------------------** **1. SARAMMA VARGHESE, W/O. VARGHESE, MEPPURATH VEEDU, PARASSERI, KONGAD.** **2. VARGHESE THOMAS, S/O. VARGHESE,** - **MEPPURATH VEEDU, PARASSERI, KONGAD.** **3. JANU, D/O. AYYAPPAN,** - **KIZHAKKEPURACKAL, PARASSERY P.O., KONGAD.** **4. RAMANAN, S/O. RAMAN,** - **KUNNATHU VEEDU, PARASSERI, KONGAD.** **5. K. CHANDRAN, S/O. KUTTAPPAN MOOTHAN,** - **POOLAKUNTIL VEEDU, PARASSERI, KONGAD.** - ***6. K. RAVEENDRAN, S/O. GOVINDAN NAIR,** - **KONNAM KOTTIRA VEEDU, KUNDUVAMPADAM.(DIED LRS IMPLEADED)** **7. V.U. VENUGOPALAN, S/O. UNNI, BHAVYA BHAVAN, PARASSERI, KONGAD.** **8. PANCHALI, D/O. AYYAPPAN,** - **KIZHAKKEPURACKAL, PARASSERI, KONGAD.** **9. SARITHA, W/O. BALAN,** - **KIZHAKKEPURACKAL, PARASSERI, KONGAD.** **10. VELAYUDHAN, S/O. AYYAPPAN, KIZHAKKEPURACKAL, PARASSERI, KONGAD.** **11. ABDDOOTY, S/O. BAPPUTTY HAJI, REP. BY HIS WIFE AND POWER OF ATTORNEY HOLDER ASSOORA N.B., NAMBICHATHAYIL VEEDU PARASSERI, KONGAD.** **12. NANI, W/O. RAMAN, AYYAPPANKAVU, PARASSERI, KONGAD.** **13. K.R. CHANDRAN, S/O. RAMAN, KUNNATHU VEEDU, PARASSERI, KONGAD.** **14. THANKAMALU, W/O. LATE SANKARAN, CHEKUATH, PARASSERI, KONGAD.** **15. RAMACHANDRAN, S/O. VEEMBAN,** - **AYYAPPANKAVU, PARASSERI, KONGAD.** **CRP.No. 930 of 2005 ( ) :2:** ## ***SUPPL.PETITIONERS 16 TO 19 IMPLEADED** **16. K. JAYASREE,** **W/0. LATE K. RAVEENDRAN, DEVI NIVASE, KUNDUVAMPADAM P.O., KONGAD II, PALAKKAD** **17. K.PRIYANKA,** - **D/0.LATE K. RAVEENDRAN, DEVI NIVASE, KUNDUVAMPADAM P.O., KONGAD II, PALAKKAD** **18. K. ATHIRA,** - **D/O.LATE K. RAVEENDRAN, DEVI NIVASE, KUNDUVAMPADAM P.O., KONGAD II, PALAKKAD** **19. NANIKUTTY AMMA M/O.LATE K. RAVEENDRAN, DEVI NIVASE, KUNDUVAMPADAM P.O., KONGAD II, PALAKKAD** **(SUPPLEMENTARY P16 TO P19 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 6TH PETITIONER VIDE ORDER DT. 9.11.2012 IN I.A. 2749/2012 IN CRP 930/2005)** **BY ADVS.SRI.N.RAGHURAJ** **SMT.K.AMMINIKUTTY** **SRI.A.V.RAVI** **RESPONDENTS:** - **--------------** **1. TALUK LAND BOARD, PALAKKAD** - **REPRESENTED BY THE CHAIRMAN.** **2. RAMDAS, S/O. LATE C.P. LAKSHMIKUTTY AMMA** - **RAM NIVAS, OTTAPPALAM, PALAKKAD.** **3. SPECIAL DEPUTY TAHSILDAR** - **(AUTHORISED OFFICER) TALUK LAND BOARD, PALAKKAD.** **4. THE TAHSILDAR, PALAKKAD.** **5. STATE OF KERALA, REPRESENTED** **BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF REVENUE, GOVT.SECRETARIAT THIRUVANANTHAPURAM.** **R3 TO 5 BY SPECIAL GOVERNMENT PLEADER SMT. SUSHEELA BHAT R2 BY ADV. SRI.S.M.UNNIKRISHNAN** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - C.R.P No.930 of 2005** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of December, 2012** ## **O R D E R** C.P Lakshmikuttiamma was the original declarant before the Taluk Land Board wherein, after one modification, an extent of 17.39 acres of land was found in excess of the ceiling limit; in the possession of the declarant. This was directed to be surrendered by order dated 31.10.2002. Around 37 persons claiming to be in occupation of the lands directed to be surrendered and styling themselves as persons interested, filed applications under Section 85(8) of the Kerala Land Reforms Act, 1963 (hereinafter referred to as 'the KLR Act) before the Taluk Land Board. 15 such persons who claimed under Section85(8) are before this Court challenging the order of the Taluk Land Board dated 31.3.2005 wherein their claims were purportedly considered and rejected. Except revision petitioners 1 and 2 who holds more than one acre each, all the other petitioners claiming to be interested, holds much smaller extents of property. 2. The Taluk Land Board, in the impugned order, CRP No.930/2005. : 2 : extracted the report of the Authorized Officer wherein the claim of each of the revision petitioners were dealt with separately. With respect to the revision petitioners 1 and 2, the Authorized Officer reported that though the purchase certificate was obtained on the basis of the possession prior to 1.1.1970, the predecessor-in-interest of the revision petitioners came into possession only after 1.1.1970, i.e, by document No.1529/1980 and 787/1993. The revision petitioners numbering 3 and 6 to 12 and 14 also produced purchase certificates issued by the Land Tribunal. Again, in the opinion of the Authorized Officer, such transactions being after 1.1.1970, revision petitioners were not entitled to claim under Section 85(8). The claim with respect to the 4[th] revision petitioner was not dealt with either by the Authorized Officer or the Taluk Land Board. The land claimed by the 5[th] revision petitioner was reported as having not been included in the land sought to be taken possession of from the original declarant. The claim of the 13[th] revision petitioner was allowed deleting the lands claimed from the ceiling proceedings. 3. After having extracted the report of the Authorized Officer, the Taluk Land Board, stated as having discussed the CRP No.930/2005. : 3 : matter in detail and rejected the claims by a sentence as extracted herein below:- “Decided to reject all other claim petitions as the Authorized Officer reported that sufficient evidence was not produced to prove that the land was in the possession as on 1.1.90.”(Paragraph 13) 4. The learned counsel for the revision petitioner would contend that going by the Supreme Court judgment reported in **Ahmmed Kutty v. Mariakutty Umma (2000(1)KLT 829)** , the purchase certificate issued under Section 72K is the conclusive proof of the assignment to the tenants of the right title and interest of the land owner over the holding as provided under sub-section (2) of Section 72K. The Hon'ble Supreme Court also held that when the enactment enjoins that the certificate would be treated as conclusive proof, then, the law would forbid other evidence to be adduced for the purpose of contradicting or varying aforesaid conclusiveness unless there is an allegation of fraud or collusion and that the document is vitiated by such fraud or collusion. 5. The learned Special Government Pleader, however, would take me through **Malathy Amma v. Taluk Land Board** reported in **1988(1)KLT 350** wherein it has been stated that only persons who claim rights in the land prior to CRP No.930/2005. : 4 : ## 1.1.1970 can invoke Section 85(8). 6. Reading the order of the Taluk Land Board, it is evident that there has been absolutely no application of mind, since what has been done by the Taluk Land Board is to reproduce verbatim; the report of the Authorized Officer. The claims were rejected on the basis of the report of the Authorized Officer. There is absolutely no discussion as to the documents produced by the claimants or as to the respective dates on which purchase certificates were issued and the claim that led to the issuance of such purchase certificate. Going by the binding precedent of **Ahmmed Kutty(supra)** , it cannot be said that the Taluk Land Board can ignore or question the legality of a purchase certificate issued under Section 72K; except under the specific situation of fraud or collusion being alleged and established. 7. In the instant case, there is no fraud or collusion alleged and there is absolutely no consideration, in so far as the Taluk Land Board adopts the report of the Authorized Officer without any application of mind. The decision referred to by the learned Special Government Pleader, **Malathy Amma(supra)** dealt with a case in which the declarant himself transferred the property; after 1.1.1970. The said CRP No.930/2005. : 5 : decision was upheld by a Division Bench of this Court in **Kunhalan Haji v. State of Kerala** reported in **1994(2) KLT 311** . The facts in the Division Bench decision would indicate that there were three petitions before the Court and the claim of the 2[nd] and 3[rd] petitioners were rejected for reason of there being no material before the Taluk Land Board for proving possession before 1.1.1970 to maintain a claim under Section 85(8). With respect to the 1[st] revision petitioner, again, the claim was raised on the strength of a document wherein the vendor was the declarant in the ceiling proceedings. The document was also executed after 1.1.1970. 8. There is a clear distinction in the facts revealed in the two decisions cited above and the instant case. In the instant case, purchase certificates were issued by the jurisdictional Land Tribunals to those persons who applied under the KLR Act. The petitioners came into possession after the assignment by such persons; who obtained the purchase certificate. The interest in the land claimed by the subsequent assignees is the interest of their vendors, purchased by them. They attempt to enforce that interest which their predecessors-in-interest had over the property. The purchase certificates were issued since the possession before 1.1.1970 CRP No.930/2005. : 6 : was proved. The subsequent assignee should also be deemed as claiming the interest prior to 1.1.1970. There is absolutely no discussion with respect to the claims; in the order of the Taluk Land Board for this Court to approve the impugned order. In the said circumstances, the order of the Land Tribunal is set aside and the matter remanded back to the Taluk Land Board, Palakkad for fresh consideration. 9. Since the report of the Authorized Officer is on record as also the documents produced by the revision petitioners, the Land Tribunal shall give an opportunity of hearing to the petitioners and consider the matter afresh, in accordance with law. Such consideration shall be done within a period of six months from the date of appearance of the revision petitioners before the Taluk Land Board. The revision petitioners shall appear before the Taluk Land Board on 28.1.2013. 10. It is submitted that WP(C) No.31064/2009 is pending before this Court, wherein the petitioners have obtained an order of stay of the action proposed by the District Collector for distribution of lands to landless persons. The said order issued in the writ petition is only with respect to dispossession and it shall not stand in the way of the Taluk Land Board considering the matter under Section 85(8) and finalizing the CRP No.930/2005. : 7 : claims. Needless to say that the dispossession will be subject to the result of the writ petition as also orders passed in the proceedings under Section 85(8). Before leaving the matter, it is also to be noticed that by Kerala Land Reforms (Amendment)Act, 2005, Section 7E, Section 84(4) and Section 106B have been introduced on the strength of which any purchaser for consideration between the period specified under Section 7E can approach the Land Tribunal for grant of purchase certificate; being deemed tenants under the KLR Act. The petitioners if so advised shall be entitled to avail of such remedy without prejudice to their claims under Section 85(8). Civil Revision Petition is allowed and remanded back to the Taluk Land Board. Parties to suffer their respective costs. Sd **/(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge