SMP 1/2012 of Taluk Land Board, Kozhencherry v. K.J. Abraham S/o Joseph (CRP(LR) Nos. 185 & 187 of 2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2013/6TH AGRAHAYANA, 1935** **CRP(LR).NO. 185 OF 2013 ()** **----------------------------------------** ## **SMP 1/2012 OF TALUK LAND BOARD, KOZHENCHERY** ## **REVISION PETITIONER/PETITIONER(S):** **-------------------------------------------------------** **K.J.ABRAHAM S/O. JOSEPH, AGED 65 YEARS CHAIRMAN, CHARITABLE EDUCATIONAL AND WELFARE SOCIETY, REG. NO. Q.374/83 KOZHENCHERRY AND CHARITABLE EDUCATIONAL AND WELFARE SOCIETY, REG. NO. 72/04, KALAMANNIL VEEDU KOZHENCHERRY.** ## **BY SENIOR ADVOCATE SHRI N.N.SUGUNAPALAN (SR.)** **SRI.S.SUJIN SRI.S.NIDHEESH SRI.T.S.JOHN SRI.JESTIN MATHEW** ## **RESPONDENTS/RESPONDENTS:** **-------------------------------------------------** ## **1. TALUK LAND BOARD** **KOZHENCHERRY, RERPESENTED BY ITS CHAIRMAN MULLAPUZHASSERY, KOZHENCHERRY TALUK PATHANAMTHITTA-689645.** ## **2. VILLAGE OFFICER, KIDANGANNUR-689643.** ## **3. VILLAGE OFFICER** **MULLAKUZHASSERY, KOZHENCHERRY TALUK KIDANGANNUR-689643.** ## **CRP(LR).NO. 185 OF 2013** ## **4. VILLAGE OFFICER** ## **ARANMULAM-689533.** ## **5. VILLAGE OFFICER** - **PRAMADAM-689649.** ## **6. STATE OF KERALA** - **REPRESENTED BY ITS CHIEF SECRETARY TO GOVT. GOVT. SECRETARIAT THIRUVANANTHAPURAM-689649.** **RADDL.7 BY ADV. SRI.R.KRISHNA RAJ RADDL.R BY ADV. SRI.RENJITH THAMPAN (SR.) RADDL.R BY ADV. SRI.M.V.ANANDAN BY GOVERNMENT PLEADER SHRI TOM K. THOMAS** **THIS CRP (LAND REFORMS ACT) HAVING BEEN FINALLY HEARD ON 27-11-2013, ALONG WITH CRP(LR) 187/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **============================== C.R.P(LR) Nos.185 & 187 of 2013 ============================== Dated this the 28[th] day of November, 2013** ## **O R D E R** These Civil Revision Petitions arise from the final order dated 10.04.2013 passed by the Taluk Land Board, Kozhencherry (for short, “the TLB”) in S.M.P. No.1 of 2012 holding that 136.3119 hectares of land is liable to be surrendered by the land owner (for short, “the declarant”). Aggrieved by the said order, the declarant has filed C.R.P. No.185 of 2013. Claiming to be a person aggrieved, the assignee from the declarant has filed C.R.P. No.187 of 2013. 2. The following arguments are raised: (i) Though the properties are held by two registered Societies which are separate legal entities, the TLB has not given notice to the said Societies but has proceeded as if the properties are owned by the declarant. (ii) The TLB, without authority has entered a finding that the Societies are family concerns of the declarant. (iii) The TLB has not exempted areas covered by rubber/coffee plantations. **C.R.P (LR) Nos.185 & 187 of 2013** -: 2 :- (iv) Exemption was not granted as prayed for, for the educational institutions functioning in the property ordered to be surrendered. (v) The declarant has transferred 232 acres of land in favour of the petitioner in C.R.P. No.187 of 2013 as per assignment deeds dated 29.10.2010 and 20.12.2010 but notice was not given to the assignee (petitioner in C.R.P. No.187 of 2013). (vi) Sufficient opportunity was not afforded to the declarant adduce evidence. 3. Learned Senior Advocate for the declarant (petitioner in C.R.P. No.185 of 2013) has contended that the TLB gave notice to the declarant in his capacity as Chairman of the two registered Societies – the Kozhencherry Educational Welfare Society and the Charitable Educational and Welfare Society. It is contended that those Societies had purchased several items of land. Those Societies come within the definition of “person” under Section 2(43) of the Kerala Land Reforms Act (for short, the Act”). But the TLB has not issued separate notices to the said Societies. It is contended that the TLB was not correct in its **C.R.P (LR) Nos.185 & 187 of 2013** -: 3 :- finding, without even giving separate notice to the Societies aforesaid that the said Societies are not real entities and that the Societies are run by the declarant and the members of his family. Had the TLB taken the two Societies as separate entities, there would have been difference in the limit of ceiling under Sec.81 of the Act, each Society being entitled to hold 15 acres of land depending on the class of land as referred to in Sec.82(1)(d) of the Act. So far as exemption claimed for rubber/coffee plantations is concerned, the TLB has rejected the claim for the reason that the declarant has not produced materials to show registration of the rubber/coffee plantations with the Rubber/Coffee Board, respectively. No attempt was made by the TLB to ascertain through its Authorized Officer, under Sec.105 of the Act whether or not the said claim of the declarant is correct. It is argued that the rubber/coffee plantations were in existence in the property even prior to 01.04.1964 and hence those areas were required to be exempted. So far as the exemption claimed for the land occupied by the educational institutions is concerned, it is argued that there are two engineering colleges for men and women and a medical college functioning in the property ordered to be exempted. So far as the engineering college for men is **C.R.P (LR) Nos.185 & 187 of 2013** -: 4 :- concerned, the TLB has granted exemption only for ten acres in spite of a claim for larger extent. So far as the medical college is concerned, no exemption is granted. Learned Senior Advocate has invited my attention to I.A. No.1299 of 2013 (in C.R.P. No.185 of 2013) and the order dated 21.06.2013 passed by this Court in respect of the land (allegedly) occupied by the medical college. The declarant was allowed to exercise option before the TLB. It is argued that pursuant to the order dated 21.06.2013 the said matter is pending before the TLB for consideration. 4. The learned Senior Advocate for the petitioner in C.R.P. No.187 of 2013 has argued that 232 acres were assigned to the petitioner as per assignment deeds dated 29.10.2010 and 20.12.2010. The assignee under the said documents is a 'person' who has, or is likely to have a claim to, or interest in the ownership or possession or both of the said land and hence should have been heard before the TLB passed final order. In spite of the declarant specifically referring to the said assignments in his objection to the draft statement, the TLB has not issued notice to the assignee (petitioner in C.R.P. No.187 of 2013). Learned Senior Advocate has invited my attention to Sec.81(3) of the Act and contended that the Government have declared 500 acres (out of **C.R.P (LR) Nos.185 & 187 of 2013** -: 5 :- the land ordered to be surrendered) as industrial area. The petitioner in C.R.P. No.187 of 2013 has preferred an application to the Government under Sec.81(3(b) of the KLR Act for exemption of the said 500 acres. That application is pending before the Government. The petitioner in C.R.P. No.187 of 2013 is a person aggrieved and entitled to raise appropriate contentions before the TLB. If at all it is found for any reason that the assignments being after 01.04.1964 cannot be taken into account, in the matter of the declarant claiming option or (the assignee) claiming compensation, the petitioner in C.R.P. No.185 of 2013 had a say before the TLB. The above said matters could not be brought to the notice of the TLB since the petitioner in C.R.P. No.185 of 2013 was not given notice of the proceeding. 5. Learned Government Pleader for the State has submitted that the Government is not supporting the Civil Revision Petitions. It is argued that the assignments in favour of the petitioner in C.R.P. No.187 of 2013 being in the year 2010 are hit by Sec.84 of the Act and hence cannot be taken into account. It is also argued that notice was given to the declarant in his capacity as Chairman of both the registered Societies. 6. The Aranmula Heritage Village Action Council (for **C.R.P (LR) Nos.185 & 187 of 2013** -: 6 :- short, “the Action Council”) has filed impleading applications in both the Civil Revisions while the Member of State Legislative Assembly from Aranmula Constituency has filed impleading application in C.R.P. No.187 of 2013. While the Action Council has resisted the Civil Revisions, the Member of the Legislative Assembly has contended that attempt of the Action Council is to stall establishment of the green field Airport at Aranmula. Shri P.Prasad, claiming to be a member of the Action Council has filed application for impleadment in C.R.P. No.185 of 2013. Learned counsel for P.Prasad supplemented arguments advanced by the learned counsel for the Action Council. 7. Having heard all the learned counsel on the request for impleadment, I am not inclined to think that I must allow third parties to be impleaded in these revisions. For, the questions raised in these civil revisions are matters between the petitioners therein and the Government. Third parties have no interest in that matter. Notwithstanding that, I have sought assistance from the learned counsel who appeared for the impleading petitioners also for a fair and proper disposal of these revisions. 8. Learned counsel for the Action Council submitted that C.R.P. No.187 of 2013 is not maintainable. It is pointed out that **C.R.P (LR) Nos.185 & 187 of 2013** -: 7 :- the petitioner therein is not a “person interested” since the claim of the petitioner therein is based on assignment deeds of the year, 2010 which are hit by Sec.84 of the Act. Learned counsel has referred to me the decision in **Kunhalan Haji v. State of Kerala** (1994 [2] KLT 311) and the decisions referred to therein to point out that in so far as it is admitted that the petitioner in C.R.P. No.187 of 2013 had no right, title interest or possession of the property prior to 01.01.1970, it cannot be said to be 'a person interested' in the matter so that the TLB was required to issue notice to it. It is also pointed out that the argument that there are two Societies chaired by the declarant is not true, as rightly found by the TLB. At any rate, notice was issued to the declarant in his capacity as Chairman of both the Societies and hence the contention that separate notices were to be issued is too technical. It is further pointed out that the contention that the claim of the Societies should have been considered in two proceedings separately is untenable as it is within the power of the TLB to consider the claim of the Societies in the same proceeding. Learned counsel pointed out that the declarant has filed a suit against the petitioner in C.R.P. No.187 of 2013 in the Sub Court, Pathanamthitta as O.S. No.171 of 2012 to annul the **C.R.P (LR) Nos.185 & 187 of 2013** -: 8 :- assignment deeds (allegedly) executed in favour of the petitioner in C.R.P. No.187 of 2013. Learned Sub Judge has passed an order of injunction restraining the petitioner in C.R.P. No.187 of 2013 from entering the properties scheduled to O.S. No.171 of 2012. 9. Learned counsel who appeared for the Member of the State Legislative Assembly has pointed out that the Action Council has no say in the matter and that its attempt is to stall establishment of the Airport. 10. Learned Senior Advocate for the petitioner in C.R.P. No.187 of 2013 in response has argued that the decision in **Kunhalan Haji v. State of Kerala** concerns the expression “person interested” in the context of Sec.85(8) of the Act while, under Sec.103 of the Act, the petitioner in C.R.P. No.187 of 2103 being a 'person aggrieved' is entitled to file a revision against the order of the TLB. 11. Sec.85(8) of the Act refers to the right of a 'person interested' to apply to the TLB to set aside an order passed without hearing him. 12. In the decision in **Kunhalan Haji v. State of Kerala** , referring to the expression 'person interested' in Sec.85(8), the Division Bench, approving the earlier decisions has held that a **C.R.P (LR) Nos.185 & 187 of 2013** ## -: 9 :- person having no possession of the property prior to 01.01.1970 cannot be said to be a “person interested”. I must understand the said decision as only interpreting the expression “person interested” in the context of Sec.85(8) of the Act who may request the TLB to set aside the order passed by it without notice to him. But under Sec.103 of the Act, as distinguished from the expression “person interested” used in Sec.85(8), a “person aggrieved” is entitled to file a revision from the order of the TLB. He need not be a party to the proceeding. The question whether the petitioner in C.R.P. No.187 of 2013 is a “person aggrieved” is altogether a different matter. In the circumstances, based on the decision in **Kunhalan Haji v. State of Kerala** the submission that C.R.P. No.187 of 2013 is not maintainable, cannot be accepted. 13. So far as the contention raised by the declarant that separate notices were not issued to the registered Societies is concerned, it is true that under Sec.2(43) of the KLR Act “person” shall include a company, family, joint family, association or other body of individuals whether incorporated or not and any institution capable of holding property. But it is seen that the TLB had issued notice to the declarant in his capacity as Chairman of both **C.R.P (LR) Nos.185 & 187 of 2013** ## -: 10 :- the Societies. There is no dispute that he is the Chairman of both the Societies. Hence, that separate notices were not issued can only be understood as a technical contention which cannot be accepted. 14. Nor am I impressed by the contention that separate proceedings ought to have been initiated with respect to the properties held by the two Societies. Learned Senior Advocates were not able to point out any provision in the Act which prevented the TLB from clubbing the claims of the two Societies in the same proceeding or requiring separate proceedings to be initiated. 15. Learned Senior Advocate for the declarant has a further contention that the TLB was not correct in holding that the Societies are not real and that the Societies are family concerns of the declarant. It is argued that the TLB had no power to enter such a finding. 16. It is not as if the TLB has no power to enter such a finding when claims are made before it on behalf of the said Societies. When the matter is before the TLB, it is for the TLB to decide whether or not the Societies are real. 17. The further argument is that before entering such a **C.R.P (LR) Nos.185 & 187 of 2013** -: 11 :- finding, the declarant was not given sufficient opportunity to adduce evidence. It is argued that the societies which are registered as per the law in force could not have been declared to be family concerns of the declarant without a deeper consideration of all issues involved. 18. I do not forget that the declarant did not prefer any application before the TLB seeking time to adduce evidence. But since it is a matter concerning two Societies which are otherwise registered under provisions of the law and the finding of the TLB as to the real character of the Societies can have far reaching consequences, it is appropriate that sufficient opportunity is given to the declarant to adduce evidence regarding the character and nature of the Societies before the TLB and based on such evidence the TLB enters appropriate finding. 19. If the two Societies are genuine and are separate legal entities, there could be difference in the limit of ceiling area of the property which those Societies, if otherwise entitled could hold under Sec.82(d) of the Act. I am inclined to give the declarant opportunity to adduce evidence. 20. Section 81(e) of the Act provides for exemption of plantations. It is seen from the impugned order that the TLB **C.R.P (LR) Nos.185 & 187 of 2013** -: 12 :- has rejected the claim for exemption of the coffee/rubber plantations (allegedly in existence) on the ground that the declarant has not produced material to show that he has obtained registration for the coffee/rubber plantations from the Coffee/Rubber Board. The law does not require that for such exemption to be claimed and granted, the plantation should have registration from the coffee/rubber board, etc. Even plantations which are not so registered are to be exempted. May be, fact of registration would serve to prove existence of the plantation on the relevant day. That is a different matter. 21. True that the declarant does not appear to have produced evidence regarding the existence of rubber/coffee plantations and his eligibility otherwise to get exemption for such plantations if any. But it is not as if the TLB had no power to verify through its Authorized Officer whether or not there existed plantations and if so, its eligibility for exemption. Sec.105 and 105A of the Act empowers the TLB to do that. Having regard to the contentions raised by the declarant as to the existence of plantations on the relevant day, it was appropriate that opportunity was given to the declarant to adduce evidence and the TLB also verified that matter through the Authorized Officer. **C.R.P (LR) Nos.185 & 187 of 2013** -: 13 :- That having not been done, I am inclined to interfere with the finding of the TLB rejecting the claim for exemption for the coffee/rubber plantations (allegedly in existence). 22. Next is the exemption claimed for the two engineering colleges for men and women and the medical college. The learned counsel for the Action Council has pointed out that at any rate those institutions are established after 01.04.1964 and hence are not required to be taken into account. 23. The TLB has granted exemption to some extent for the engineering college for men. The entire claim for the engineering college for the women is allowed. But exemption was not granted for the medical college. Learned Senior Advocate has contended that if this Court is inclined to interfere with the order of the TLB, the exemption already granted may not be interfered with so that, if ultimately the TLB is again to pass an order adverse to the declarant, he may not loose the exemption already granted. It is in this connection that the learned Senior Advocate has invited my attention to the order on I.A. No.1299 of 2013 (in C.R.P. No.185 of 2013) where the declarant was given option as regards the area occupied by the medical college. 24. I make it clear that it is open to the declarant to again **C.R.P (LR) Nos.185 & 187 of 2013** ## -: 14 :- claim the exemption already granted by the TLB for the two engineering colleges and pursue the remedy provided to him vide order dated 21.06.2013 on I.A. No.1299 of 2013. I am not making any opinion on the question whether the TLB should grant the exemption or not. The ultimate order I pass in these civil revisions would not and need not bar the TLB from giving the exemption it has already granted to the two engineering colleges if at all it comes to the conclusion that further exemption cannot be granted to those two colleges. 25. So far as claim for exemption of 232 acres which is (allegedly) assigned to the petitioner in C.R.P. No.187 of 2013 as per assignment deeds dated 29.10.2010 and 20.12.2010 is concerned, the question whether those assignments could not be taken into account for any reason whatsoever shall be decided by the TLB after giving notice to the petitioner in C.R.P. No.187 of 2013 as well. If at all the assignments are not valid under Sec.81 (1) of the Act, the TLB shall consider whether as provided in Rule 12(2) of the KLR (ceiling) Rules, 1970 the petitioner in C.R.P.No.187 of 2013 has any interest in the possession (if any) in the land covered by the assignment deeds and whether, when the right of option is exercised by the declarant, such possession if **C.R.P (LR) Nos.185 & 187 of 2013** -: 15 :- any of the petitioner in C.R.P.No.187 of 2013 would help it raise its objection if any to the option exercised by the declarant. 26. As regards claim made by the petitioner in C.R.P. No.187 of 2013 concerning exemption under Sec.81(3) of the Act is concerned, learned counsel for the Action Council has pointed out that the government order produced by the petitioner in C.R.P.No.187 of 2013 does not show that the government have issued a notification as contemplated by Sec.81(3) of the Act. Hence no exemption could be claimed, it is pointed out. Let that question also be considered by the TLB. The claim for exemption made under Sec.81(3) of the Act is left open for decision by the TLB. I am also not expressing any opinion on the application said to be preferred before the Government under Sec.81(3)(b) of the Act. It is for the Government take appropriate decision on such application if any as provided under the law. 27. The above discussion leads me to the conclusion that the order passed by the TLB is liable to be set aside and the matter remitted to that authority for fresh decision after giving notice to the petitioner in C.R.P. No.187 of 2013 as well and giving the petitioners in both the civil revisions opportunity to raise all their contentions and adduce evidence. ## **C.R.P (LR) Nos.185 & 187 of 2013** -: 16 :- 28. On 21.06.2013 this Court, on I.A. No.1004 of 2013 in C.R.P. No.187 of 2013 passed interim order against dispossession of the petitioner in C.R.P. No.187 of 2013 but directed the petitioner not to effect any construction in the properties ordered to be surrendered till 17.07.2013. That order was being extended thereafter. It is directed that the said order will remain in force until the TLB decides the matter afresh as aforesaid or the proceeding before the TLB is otherwise terminated. Resultantly, the Civil Revision Petitions are allowed as under: (i) The order dated 10.04.2013 of the Taluk Land Board, Kozhencherry in S.M.P. No.1 of 2012 is set aside. (ii) S.M.P. No.1 of 2012 is remitted to the Taluk Land Board for fresh decision after giving notice to the petitioner in C.R.P. No.187 of 2013 and opportunity to the petitioners in both the civil revisions to raise all their contentions and adduce evidence in support of that. (iii) It is made clear that this order will not stand in the way of the declarant pursuing **C.R.P (LR) Nos.185 & 187 of 2013** -: 17 :- his remedy before the TLB as ordered by this Court on 21.06.2013 on I.A. No.1299 of 2013 or claiming exemptions already granted for the engineering colleges and disallowed for the medical college and the TLB granting such exemption. (iv) It is directed that the interim order dated 21.06.2013 on I.A. No.1004 of 2013 in C.R.P. No.187 of 2013 against dispossession of the petitioner in C.R.P. No.187 of 2013 and making any construction in the properties ordered to be surrendered will stand extended until the TLB disposes of S.M.P. No.1 of 2012 afresh or the proceeding before the TLB is otherwise terminated. (v) The TLB is directed to dispose of S.M.P. No.1 of 2012 as early as possible, at any rate within six months from the date of receipt of a copy of this order. (vi) I.A. No.1299 of 2013 in C.R.P. No.185 of 2013 and I.A. No.1004 of 2013 in **C.R.P (LR) Nos.185 & 187 of 2013** -: 18 :- C.R.P. No.187 of 2013 are disposed of vide Order in these revisions. (vii) All other pending Interlocutory Applications in both the revisions will stand closed. ## **THOMAS P. JOSEPH, JUDGE.** vsv