Thomaskutty Plakkattu Granites v. State of Kerala and Taluk Land Board, Badagara (CRP 848/2006)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941** ## **CRP.No. 848 of 2006** **AGAINST THE ORDER/JUDGMENT IN TLB(B) 126/81/L5 of TALUK LAND BOARD, BADAGARA DATED 26-09-2006** ## **REVISION PETITIONERS/PETITIONERS:** - **1 THOMASKUTTY PLAKKATTU GRANITES, PAYYANAMON, KONNI. (DIED AND LEGAL HEIRS IMPLEADED AS ADDL.PETITIONERS 11 TO 13)** - **2 CHACKO, PLAKKATTU GRANITES, PAYYANAMON, KONNI.** - **** 3 ANTO JACOB PLAKKATTU GRANITES, PAYYANAMON, KONNI. (DIED AND LEGAL HEIRS IMPLEADED AS ADDL.PETITIONERS 14 TO 16)** - **4 MATHEWKUTTY ALIAS MATHEW PLAKKATTU, EDAMON.** - **5 JOY JACOB PLAKKAT HOUSE, MUTTIYILAM P.O., WAYANAD.** - **6 SHAJI PLAKKAT HOUSE, EDAMON.** - **7 ROSSAMMA DEVASIA NADUMUTTOM HOUSE, KURUVILANGADU.** - **8 MERCY CHACKO PALAKUNNEL VEEDU, MAMMOODU P.O.,CHANGANASSERY.** - **9 BETTY PRINCE PUTHUMANA VEEDU, VAKAYAR P.O., KONNI.** - **10 LISY PLAKKATT HOUSE, EDAMON.** _CRP 848/2006_ 2 ***ADDL.P11 JACOB THOMAS S/O THOMASKUTTY, PLAKKATTU GRANITES, PAYYANAMON, KONNI. *ADDL.P12 SMT.LISA THOMAS W/O THOMASKUTTY, PLAKKATTU GRANITES, PAYYANAMON, KONNI. *ADDL.P13 KUNJUMOL THOMAS D/O THOMASKUTTY, PLAKKATTU GRANITES, PAYYANAMON, KONNI. **ADDL.P14 JACOB ANTO S/O ANTO JACOB, PLAKKATU HOUSE, VELAMKULANGARA, ADOOR TALUK. **ADDL.P15 SMT.CLARAMMA ANTO W/O ANTO JACOB, PLAKKATU HOUSE, VELAMKULANGARA, ADOOR TALUK. **ADDL.P16 LINO ANTO S/O THOMASKUTTY, PLAKKATU HOUSE, VELAMKULANGARA, ADOOR TALUK.** ***(ADDL.PETITIONERS 11 TO 13 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 1ST REV.PETITIONER AS PER ORDER DATED 02/03/2016 IN IA.583/2014)** ****(ADDL.PETITIONERS 14 TO 16 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 3RD REV.PETITIONER AS PER ORDER DATED 02/03/2016 IN IA.584/2014)** **BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SRI.GEORGE A.CHERIAN** ## **RESPONDENTS/RESPONDENTS 1 & 2:** - **1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** - **2 TALUK LAND BOARD VADAKARA, KOZHIKODE.** **BY SRI. HASHIR P.M., GOVERNMENT PLEADER** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.01.2019, THE COURT ON 25.03.2019 PASSED THE FOLLOWING:** _CRP 848/2006_ 3 ## **O R D E R** The legal heirs of Late Thomas Chacko, the original declarant, are before this Court aggrieved by the impugned order of the Taluk Land Board (TLB) in proceedings No.126/81/L5 dated 26.09.2006 directing them to surrender an extent of 60.52 acres of coffee plantation as excess land over the ceiling limit, under Section 87 of the Kerala Land Reforms Act, 1963 (for brevity “the Act”). The reason being that, the exemption granted to their cardamom plantation in an earlier proceedings, under Section 81 of the Act, ceased in view of the conversion of that plantation into a coffee plantation. 2. The aforementioned earlier proceedings in TLB.148/73 initiated under Section 85 of the Act, granted exemption to the cardamom plantation comprised in R.S.No.175 of Kavilumpara Village to the original declarant, and he was directed to surrender an extent of 5.48 acres as excess land vide order dated 21.12.1993. _CRP 848/2006_ 4 3. Despite getting an order of exemption for the plantation, the declarant filed a statement before the TLB on 07.09.1982 disclosing the fact that he has converted the cardamom plantation into a coffee plantation. Without even affording him an opportunity of being heard, the TLB passed an _exparte_ order on 27.09.1994 directing the declarant to surrender the above mentioned plantation as excess land. The declarant challenged that order before this Court in C.R.P.No.402/1995. The revision was allowed and this Court directed the TLB to pass orders afresh after hearing the declarant. Consequent to which, the impugned order was passed. Hence, this revision. 4. I heard the learned Sri.Bechu Kurian Thomas, Senior Advocate, appearing for the petitioners and the learned Government Pleader. 5. Section 2(44) of the Act defines a plantation, which includes both cardamom and coffee. Hence, both these cultivation would come within the definition of 'plantation', which is exempted from the purview of the land ceiling under Section 81(1)(e) of the Act. _CRP 848/2006_ 5 Section 83 of the Act states that no person shall hold land in excess of the ceiling area as stipulated under Section 82. Explanation II to Section 87 reads thus: _“_ _**Explanation II** .- Where, after the date notified under Section 83, any class of land specified in Schedule II has been converted into any other class of land specified in that Schedule or any land exempt under Section 81 from the provisions of this Chapter is converted into any class of land not so exempt and in consequence thereof the total extent of land owned or held by a person exceeds the ceiling area, so much extent of land as is in excess of the ceiling area, shall be deemed to be land acquired after the said date.”_ 6. The argument of Sri.Bechu Kurian Thomas is that, by virtue of Explanation II referred to above, there is no prohibition about any category of exempted land under Section 81 from being converted into any other category of such exempted land. The only embargo is with regard to such exempted land being converted into any land not so exempted. In support of his argument, the learned Senior Counsel relies on the decision of this Court, in _**Joseph Thomas v. State of Kerala, 1987 KHC 435: 1987 (2) KLT 273**_ , where, conversion of a private forest into a rubber plantation was in question and it was held as thus: _CRP 848/2006_ 6 _“3. xx xx The ratio legis thus is clear that the lands included in the exempted category will enjoy the exemption indefinitely unless there is a cessation of exemption provided for under S.81 itself. On a plain reading of S.81, it is clear that 'Private Forests' belong to that category of land which enjoys the exemption without any restriction. If that be so, 'private forest' converted into rubber plantation, although the conversion took place after 1-4-1964 requires to be excluded from the accounts of the declarant because the land converted belongs to the category of lands permanently exempted from the purview of the ceiling provisions contained in KLR Act.”_ 7. Attention is also drawn to the decision of the Hon'ble Supreme Court in _**State of Kerala v. Sarojini Amma, 2004 (1) KLT 354 (SC)**_ where, considering the claim for exemption under Section 81 for a private forest, which was converted into a plantation, it was held thus: _“14. Thus, this being the legal position, in the absence of any material that private forests were converted into non-exempted category of lands, it was not permissible to the Taluk Land Board to deny the benefit of exemption claimed by the respondents. Hence, the High Court was right in upsetting the order of the Taluk Land Board.”_ 8. The learned Government Pleader would argue that exemption under Section 81 would be available to the coffee plantation only in case it is converted prior to _CRP 848/2006_ 7 01.04.1964 and any conversion subsequent to that would not bring the land under the exempted category. Because, initially for claiming an exemption, it has to be proved that the property was a plantation as on 01.04.1964. The learned Government Pleader relies on the decision, _**Aleykutty John v. Taluk Land Board, 1981**_ _**KLT 738,**_ where it is held that state of affairs as on 01.04.1964 alone is relevant for the purpose of determining whether any land is exempt under Section 81(1) of the Act. In _**Thomas v. Taluk Land Board, 1992**_ _**(1) KLT 704 FB (SC)**_ the Hon'ble Supreme Court held that exemption under Section 81(1)(e) will not be available to a rubber plantation converted from a cashew estate after 01.04.1964. The Government Pleader seeks application of the above decisions to the case in hand. 9. The majority view in a recent Full Bench decision of this Court _**Mathew K.Jacob v. District**_ ## _**Environmental Impact Assessment Authority, 2018 (4) KLT**_ _**913 (FB)**_ , held that the exemption under Section 81(1) would be lost only in cases where land is converted from an exempted class to a non-exempted class and _CRP 848/2006_ 8 observed thus: _“13. We are therefore of the view that using up the land by excavating soil or quarrying granite stones therefrom does not make the piece of land a 'commercial site' in order to qualify for exemption from ceiling limit. But any industrial activity existing on the surface of the land like a metal crusher unit or artificial sand manufacturing unit may perhaps qualify for exemption. This is the meaning to be attributed to the term 'commercial site' as defined in Section 2(5) of the Act in deciding the question of exemption under Section 81(1) (q) of the Act. Of course those lands which are set apart for commercial or industrial activity at the time of the commencement of the Act shall be excluded provided it is actually used for the purpose. The same should have been done within a time frame specified by the District Collector under Section 81(1)(k) of the Act which does not apply to the facts of the present case. We however add that any class of land earlier exempted in the ceiling case can be converted into any class of land not liable to be exempted under Explanation II to Section 87 of the Act. The consequence is that the benefit of the exemption would be lost and the extent added to the account of the assessee or the declarant in determination of his ceiling area.”_ 10. There is no dispute that both coffee and cardamom plantations are exempted from land ceiling by virtue of Section 81(1)(e) of the Act. What is prohibited under Explanation II to Section 87 is the conversion of a land coming within the exempted _CRP 848/2006_ 9 category into a non-exempted land. The argument of the learned Government Pleader that such a conversion has to be effected prior to 01.04.1964, or at any rate, before 01.01.1970, cannot be accepted in the instant case for the reason that both were plantations coming under exempted category. It is pertinent to note that “cashew estate” has been subsequently included in the exempted category of land as Section 81(1)(f) by way of amendment with effect from 19.06.2012. The intention of the Legislature appears to be that conversion of a land from one exempted class into another exempted class of land is not objectionable, even if it after 01.01.1970. A cashew estate was not an exempted category till 19.06.2012 and conversion of cashew estate into a rubber plantation was found to be not sustainable in _**Thomas v. Taluk Land Board**_ ( _supra_ ). But as a consequence to the amendment, it will now have to held as proper. In the instant case, a cardamom plantation was converted into a rubber plantation, both coming in the exempted category, which according to me, does no offence to the provisions. _CRP 848/2006_ 10 11. I find substance in the argument advanced by the learned Senior Counsel Sri.Bechu Kurian Thomas. The impugned finding of the TLB is not sustainable and is liable to be set aside. The Revision Petition is allowed. No costs. **Sd/-** **ASHOK MENON** _dkr_ **JUDGE**