Allowed

State of Kerala v. v.P.Joseph

Kerala HC11 Feb 2016WA/1752/2010

Case brief

AI extract

What is this about?

High Court allowed a writ appeal against an order quashing a Taluk Land Board direction to surrender excess land. The Court held that suo motu proceedings under Section 85(7) of the Kerala Land Reforms Act are valid against legal heirs of a deceased owner who failed to file a return, setting aside the lower court's reliance on Section 85(9A) and limiting. The matter was remitted to the TLB.

What did the court decide?

Set aside the learned Single Judge's judgment; declared proceedings under Section 85(7); remitted matter to TLB for fresh consideration within six months.

State of Kerala Vs v.P.Joseph — Land Acquisition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937

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WA.No. 1752 of 2010

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--------------------------------AGAINST THE JUDGMENT IN W.P.(C).NO.35771 OF 2007, DATED 18-08-2010

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APPELLANT(S)/RESPONDENTS IN THE W.P.(C) :

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1. THE STATE OF KERALA,

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REPRESENTED BY THE SECRETARY TO REVENUE,

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GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE TALUK LAND BOARD, MANANTHAVADY,

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REPRESENTED BY ITS CHAIRMAN, COLLECTORATE, KALPATTA, WAYANAD.

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3. THE TAHSILDAR, TALUK OFFICE, MANANTHAVADY.

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BY SR.GOVERNMENT PLEADER SRI.C.R.SYAMKUMAR

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RESPONDENT(S)/PETITIONER IN THE WP(C) :

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1. V.P.JOSEPH, S/O.PAILY, VADAYATHUKUZHIYIL HOUSE, CHERUKATTOOR P.O., WAYANAD DISTRICT- 670 721. (DIED)

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ADDITIONAL R2 TO R11 IMPLEADED

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2. CICILY, AGED 63 YEARS, W/O.THOMAS, PAYYANATTU HOUSE, EACHOME P.O., PIN - 670 721.

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3. MARY JOSEPH V., AGED 51 YEARS, W/O.VARKEY P.J., PAZHAYATHOTTATHIL HOUSE, MANANTHAWADY P.O- 670 645.

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4. CELIN JOSEPH, AGED 47 YEARS, W/O.SABU K.F, KOOTTIYANIKKAL HOUSE, KODENCHERY P.O- 673 580.

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5. JAMES V.J., AGED 45 YEARS, VADAYATUKUZHIYIL HOUSE, CHERUKATTOOR P.O - 670 721.

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..2/-

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..2..

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WA.No. 1752 of 2010

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6. LUCY V.J., AGED 43 YEARS, W/O.THOMAS, PAZHYATHOTTATHIL HOUSE, MARAKKADAVU - 673 579.

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7. SHAJI JOSEPH, VADAYATUKUZHIYIL HOUSE, CHERUKATTOOR P.O - 670 721.

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8. MARY, AGED 60 YEARS, W/O.PAILY V.J (LATE), VADAYATUKUZHIYIL HOUSE, CHERUKATTOOR P.O - 670 721.

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9. JOSEPH, AGED 34 YEARS, S/O.PAILY V.J (LATE), VADAYATUKUZHIYIL HOUSE, CHERUKATTOOR P.O - 670 721.

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10. SHIBIN, AGED 31 YEARS, S/O.PAILY V.J (LATE), VADAYATUKUZHIYIL HOUSE, CHERUKATTOOR P.O - 670 721.

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11. JINCY, D/O.PAILY V.J (LATE), VADAYATUKUZHIYIL HOUSE, CHERUKATTOOR P.O - 670 721.

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ADDITIONAL R2 TO R11 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT AS PER ORDER DATED 07.10.2015 IN I.A.NO.430 OF 2015.

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R8 TO R11 BY ADV. SRI.JACOB SEBASTIAN BY ADV. SRI.K.A.MANZOOR ALI

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-01-2016, ALONG WITH CROSS OBJECTION NO.157 OF 2015, THE COURT ON 11-02-2016 DELIVERED THE FOLLOWING:

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Msd.

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**ASHOK BHUSHAN, CJ “CR” & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.1752 of 2010

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& Cross Objection No.157 of 2015 ---------------------------------------Dated this the 11^th day of February 2016

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J U D G M E N T

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Shaffique,J

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This Writ Appeal is filed by the respondents in the writ petition, the State of Kerala and its authorities challenging the judgment dated 18/08/2010 in W.P.C.No.35771/2010. The writ petition was filed by the respondent herein challenging Ext.P4 and P5 and for a direction to the respondents not to proceed against the petitioner in the light of Exts.P1 to P3.

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The short facts involved in the writ petition are:

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Petitioner claimed that his father Sri.Paily and his mother Smt.Eli were having ownership and possession in respect of 25.25 Acres of land in Kuppathode village in Mananthawady Taluk. Petitioner's father executed a gift deed bearing No.2227/71 of S.R.O, Mananthawady by which an extent 13.50 Acres of land was gifted in favour of the petitioner. He filed ceiling return before the authorities under Section 85(2) of the Kerala Land Reforms Act (hereinafter referred to as the 'KLR Act') on 14/12/1972. The

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W.A.No.1752/2010

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& Cross Objection No.157/2015 2

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Taluk Land Board (for short 'TLB') passed an order dated 28/06/1976 dropping the ceiling proceedings holding that the properties were acquired by the declarant on the basis of an invalid gift made after 01/01/1970 from his father. It was also mentioned that the properties are to be included in the account of the declarant's father. According to the petitioner, during 1998 he was served with a notice by the Taluk Land Board. It is stated that ceiling proceedings were re-opened and by order dated 29/12/1998 (Ext.P2), the ceiling proceedings were dropped. After six months, petitioner received another notice from the TLB and another order was passed on 29/06/1999 dropping further proceedings.

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Petitioner again received another notice Ext.P4 by which he was called upon to appear before the TLB on 22/8/2007. Petitioner appeared before the TLB and after perusal of the documents, they issued an order dated 26/09/2007 stating that the petitioner is in possession of excess land having an extent of 2.65 Acres and he was directed to surrender the same as per Ext.P5. According to the petitioner, the entire ceiling proceedings having become final in terms of Exts.P1 to P3 and therefore, after

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W.A.No.1752/2010 & Cross Objection No.157/2015 3

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the expiry of three years from the date of Exts.P2 and P3, no proceedings can be taken under Section 85(9A) of the KLR Act. It is also contended that reference to initiation of proceedings under Section 85(7) of the KLR Act has no application as suo motu proceedings can be initiated only in instances where no return has been filed.

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Counter affidavit was filed by the 1^st respondent inter alia stating that Ext.P5 order has been passed in a suo motu proceedings initiated under Section 85(7) of the KLR Act. It is further submitted that Exts.P1, P2 or P3 will not confer any right on the petitioner. In Ext.P1, it has been clearly indicated that the petitioner's ceiling return was not taken for consideration as he claimed right on the basis of an invalid gift. In the Counter affidavit it was also stated that Exts.P2 and P3 were erroneously dropped by the TLB on a wrong assumption. It is also stated that at the time when Ext.P2 was passed, the TLB was not functioning. It was on reconstitution of the TLB that the case was informally dropped by Ext.P3 after giving the declarant an opportunity for being heard.

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W.A.No.1752/2010

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& Cross Objection No.157/2015 4

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The learned Single Judge observed that in so far as Ext.P5 order is passed under Section 85(9A) of the KLR Act, it is not passed within the time as specified under the said provision and therefore initiation of proceedings which led to Ext.P5 is clearly barred by limitation. Hence Ext.P5 was quashed.

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It is, impugning the aforesaid judgment, that this writ appeal has been field.

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Heard Sri.C.R.Syamkumar, learned senior Government

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Pleader appearing on behalf of the appellants and Sri.Sreekumar.G.Chelur, learned counsel appearing on behalf of the legal heirs of the land holder.

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Cross Objection is also filed contending that while quashing Ext.P5, the learned Single Judge had made certain observations which are to be expunged.

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The learned senior Government Pleader submits that Ext.P5 order itself would indicate that suo motu proceedings were initiated under Section 85(7) of the KLR Act for which there is no time limit, though in the counter affidavit, by mistake, reference was made to Section 85(9A) of the KLR Act. From Ext.P5 order itself, it is apparent that suo motu proceedings have been

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W.A.No.1752/2010

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& Cross Objection No.157/2015 5

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initiated. It is argued that in so far as Sri.Paily had not submitted any return, it shall always be open for the TLB, as directed by the State Land Board to initiate proceedings. It is submitted that Section 85(7) and 85(9A) of the KLR Act deals with two separate contingencies and what is to be verified is the nature of order passed and the proceedings taken by the TLB. For that reason itself, the learned Single Judge committed serious error of law in arriving at a conclusion that it is not a proceedings under Section 85(7) of the KLR Act.

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On the other hand, learned counsel appearing for the land holders and the other parties to the cross objection submits that Exts.P1 to P3 had given a finality to the issue and there was no reason for initiating a fresh proceedings under Section 85(7) of the KLR Act. Even in the counter affidavit, the State Government and its authorities had a contention that steps were taken under Section 85(9A) of the KLR Act. In that view of the matter, the learned Single Judge was justified in quashing Ext.P5.

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Before proceeding further, it would be useful to quote Ext.P5 order.

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W.A.No.1752/2010

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& Cross Objection No.157/2015

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“As per the reference cited the Land Board authorities the Taluk Land Board, Mananthavady to initiate SM action u/s. 85(7) of the KLR Act against Sri.Vadayathkuzhi Paily, since it had come to the notice that late Sri.Paily and his family has been holding land in excess of ceiling limit as on 1-1-70 and has failed to file ceiling return u/s.85 (2) of KLR Act.

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Accordingly SM action U/s.85(7) was initiated against the legal heirs of late Sri.Paily.

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The Authorized Officer has reported that Sri.Vadayathukuzhi Joseph is the only legal heir of late Paily and accordingly the TLB issued notice to Sri.Joseph to appear before the TLB on 22-8-07. Sri.Joseph appeared on the day and stated that an extent of 3.25acres and 2 acres of the land belonging to his late father Sri.Paily were Rubber and Coffee Plantations respectively before 1964 and Rubber Registration Certificate No:C:2186/87 and C. 2187/07 were obtained for those plantations. Licence for selling Coffee for 2 acres of land for the year 1959 was also available with him and produced copies of these documents. He also claimed that an extent of 75 cents has to be exempted being house, cattle shed, road etc.

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& Cross Objection No.157/2015 7

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W.A.No.1752/2010

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The TLB examined the case in detail with reference to the available records. Sri.Vadayathukuzhi Paily and his wife Eli in possession of the following land.

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1	Kuppathode Village	115/IAIAI	19.50 Acres
2	--do--	--do--	2.50 “
3	--do--	118/1	1.25 “
4	--do--	--do--	2.00 “
		Total	25.25 Acres

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========

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Out of this total extent of 25.25 acres Sri.Paily has gifted an extent of 13.50 acres to his major son Sri.Joseph as per gift deed No.2227/197/Dt.27/9/71. The gift is valid to the extent of only 7.5 acres and therefore an extent of 17.75 acres is accounted for in the possession of the declarant, Sri.Paily. The ceiling area applicable to the family is 15 acres in this case. Exemption for an extent of 10 cents is allowed being house site. The balance extent liable for surrender is 2.65 acres.

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The assessee has produced new planting licence No.C.2186/67 Dt.31-7-1967 for 0.25 Acres in Sy.No.115/1A1A and another Licence No.2187/67 Dt.31-07-1967 for planting 3.00 acres of Rubber as an evidence to show that 3.25 acres

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W.A.No.1752/2010 & Cross Objection No.157/2015

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was planted with Rubber and eligible for exemption u/s.81 of the Act. The TLB considered this and found that these licenses cannot be accepted as an evidence to show that 3.25 acres were planted with Rubber before 01/04/64 as the certificates are issued in the year 1967. On 5/1/1977 the Authorized Officer had reported that 3.25 Acres was planted with Rubber and it was 1962-64 Plantation. This cannot be accepted as new planting licence for this extent was issued in the year 1967. The assessee has also produced new planting licence No.769/61 Dt.12/1/1961 for planting Rubber in 6.00 acres of land in the name of Sri.Vadayattukuzhi Ouseph Paily. In the report of the Authorised Officer Dt.5/1/77, there is no mention about 6.00 Acres of Rubber planted as per this licence. Therefore the TLB held that the declarant had not raised any Rubber plantation as per licence No.769/61. The assessee had also produced some papers for having purchased Rubber seedlings, and sale of Coffee etc. None of these papers are reliable evidence to treat any portion of the land held by the declarant as plantation as on 01/04/64 eligible for exemption u/s.81 of the Act.

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W.A.No.1752/2010 & Cross Objection No.157/2015

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In the result, the TLB order to surrender an extent of 2.65 Acres of land in R.S.No.115/IAIA of Cherukattoor Village belonging to the declarant as shown below:

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Total extent held by the declarant - 25.25 Acres Area eligible for exemption 1. Valid gift deed - 7.50 Acres 2. House site - 0.10 “ ----------------7.60 “ Balance 17.65 “

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======== Ceiling area applicable 15.00 Acres Area to be surrendered 2.65 Acres

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The ownership and possession of the above lands shall subject to the provisions of the KLR Act vest in the Govt. free from all encumbrances from the date of taking possession. The declarant's legal heir Sri.Vadayathukuzhi Joseph is directed to surrender possession of the above land to the Tahsildar Mananthavady within 7 days from the date of receipt of notice failing which the Tahsildar shall on behalf of the Government take possession of the land or assume ownership thereof.”

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W.A.No.1752/2010

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& Cross Objection No.157/2015

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Section 85(7) and 85(9A) of the KLR Act reads as

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under:

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“85(7): Where any person fails to file the statement specified under sub-section (2) or subsection (3A) the Land Board shall intimate that fact to the Taluk Land Board, and thereupon the Taluk Land Board shall after necessary enquiries, by order, determine the extent and other particulars of the land, the ownership or possession or both of which is or are to be surrendered:

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Provided that before such determination the Taluk Land Board shall give an opportunity to the persons interested in the land, to be heard.”

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85(9A): Power of Taluk Land Board to review its decision .- Notwithstanding anything contained in this Act or in the Limitation Act, 1963 (Central Act 36 of 1963), or in any other law for the time being in force, or in any judgment, decree or order of any Court or other authority, the Taluk Land Board may, if it is satisfied that its decision under sub-section (5) or sub-section (7) or sub-section (9) requires to be reviewed on the ground that such decision has been made due to the failure to produce relevant data or other

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W.A.No.1752/2010

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& Cross Objection No.157/2015

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particulars relating to ownership or possession before it, or by collusion or fraud or any suppression of material facts the Taluk Land Board may review such decision after giving an opportunity to the parties of being heard and pass such orders as it may think fit:

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Provided that the Taluk Land Board shall not reopen any such case after the expiry of three years from the date of coming into force of the Kerala Land Reforms (Amendment) Act, 1989.”

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It is apparent that, it is a suo motu proceedings initiated by the TLB against the legal heirs of Sri.Paily. There is no material to show that Sri.Paily has filed any ceiling return. The opening paragraph of Ext.P5 order itself indicates that the State Land Board had authorised the TLB to initiate suo motu action under Section 85(7) of the KLR Act. It is not in dispute that Sri.Paily had not filed any return in terms of Section 85(2) of the KLR Act. Under such circumstances, apparently there is no difficulty in the initiation of proceedings under Section 85(7) of the KLR Act.

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It is argued by the learned counsel for the respondents/cross objectors that when Exts.P1 to P3 had already

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W.A.No.1752/2010 & Cross Objection No.157/2015 12

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been taken on record by TLB, Ext.P5 can only be a proceeding initiated in terms of Section 85(9A). This contention, we do not think, is appealing to us especially on account of the arguments raised by the learned Government Pleader that the proceedings under Section 85(7) of the KLR Act can be initiated only at the instance of the State Land Board. Any proceedings under Section 85(9A) of the KLR Act can be made by the TLB itself without authorisation from the State Land Board. Under such circumstances, the only inference that can be drawn is that Ext.P5 is a suo motu action initiated under Section 85(7) of the KLR Act.

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Yet another contention which is to be considered is whether there is a finality of the ceiling as far as the petitioners are concerned, taking into consideration Exts.P1 to P3 documents. Ext.P1 has no relevance as it is based on a return filed by the son of Sri.Paily with reference to his own land. Ext.P2, as already stated by the learned Government Pleader and as clearly indicated in the Counter affidavit, has no relevance as the TLB was not functioning during the time when the order has been passed on 19/12/1998. Ext.P3 again appears to be the reopening of the TLB matter on the basis of the return filed by the son of

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W.A.No.1752/2010 & Cross Objection No.157/2015 13

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Sri.Paily. It is stated that the said return has been re-opened. In a matter relating to reopening of the return filed by the petitioner, it is not known how the land belonging to the declarant's father can be considered. Therefore Exts.P1 to P3, absolutely, has no relevance as far as the proceedings initiated pursuant to Ext.P4 notice is concerned.

¶104

Learned Government Pleader also relied upon the judgment of the Division Bench in State of Kerala v. Ittichan [1996(2) KLT 238] . Paragraphs 2 and 3 of the said judgment reads as under:

¶105

"2. Short question that was raised before the learned Single Judge was whether legal heirs of Varghese can be proceeded against for determining the excess land held by Varghese if Varghese did not file any declaration and no proceedings were initiated against him requiring him to surrender the excess land. The State and the Taluk Land Board contended before the learned Judge that the legal heirs cannot retain the excess land which was bound to be surrendered by deceased Varghese. The learned Single Judge took the view that neither S. 85(6A) nor the transitory provision in the Act have

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W.A.No.1752/2010

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& Cross Objection No.157/2015

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¶109

anything to do with the proceedings which were initiated for the first time after the death of the person who was liable to surrender land. The view taken by the learned Single Judge is that the above provisions are meant to be applied in a case where proceedings have been initiated before the death of Varghese and such proceedings have either discontinued on account of his death or have abated as a consequence of the death. In other words, in the absence of any proceedings against Varghese before his death, the Taluk Land Board and the State are having no power to proceed against the legal heirs.

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3. In State of Kerala v. Varkey Mathew, AIR 1996 SC 1009, Their Lordships of the Supreme Court took the view:-

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“....... If the estate was succeeded by any member of the family as envisaged thereunder, he/she would be liable to account for the excess land and proceedings could be continued for determination of the ceiling area and surrender of excess land or possessed or both, as the case may be, by the deceased person, when such is the situation regarding the person who is liable to file the Statement but died before proceedings were

¶112

W.A.No.1752/2010 & Cross Objection No.157/2015

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¶114

initiated, the person who succeeds to the estate according to law and had the land under him would not be in a better position than the person covered under pending proceedings envisaged under S. 85(A)”.

¶115

From this, it means that even if proceedings were not initiated against the original owner for fixing the excess land to be surrendered by him, the excess land on its devolution on the legal heirs will not cease to be anything other than excess land liable to be surrendered to Government. The mere, fact that proceedings were not initiated against the original owner who was having the excess land during his time will not disentitle the State and the Taluk Land Board from finding out the actual excess extent that is liable to be surrendered to Government. In the instant case, Land Board, passed orders under S. 85(7) of the Act authorising the Taluk Land Board to proceed against the legal heirs of Varghese who obtained the excess land left behind by Varghese. Taluk Land Board, pursuant to the above communication from the Land Board, issued proper notice to the legal heirs and draft statement inviting objections regarding the excess land to be earmarked for

¶116

W.A.No.1752/2010

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& Cross Objection No.157/2015

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surrender. It appears that the respondent raised objection regarding the competence of the Taluk Land Board to proceed with the matter. Respondent did not raise any objection regarding the land to be surrendered. In such a situation, we direct respondent, if so advised, to file their objections regarding the actual property that they want to surrender if the -Taluk Land Board finds that there is excess land to be surrendered. After hearing the objections of the respondent and other persons on whom the property left behind by Mr. Varghese devolved, the Taluk Land Board may pass final orders fixing the area to be surrendered to Government."

¶120

Having regard to the aforesaid finding of ours, we are of the view that the learned Single Judge had not considered the matter in the light of the relevant provisions of the KLR Act.

¶121

As already indicated, it is clear from Ext.P5 itself that suo motu action has been initiated by the TLB based on the directions issued by the State Land Board. Therefore learned Single Judge had committed serious error of law in considering the same as an order under Section 85(9A) of the KLR Act.

¶122

W.A.No.1752/2010 & Cross Objection No.157/2015 17

¶123

Learned counsel appearing for the respondents however submits that they did not get an opportunity to challenge the validity of the order as they have filed the writ petition on jurisdictional aspects. Under normal circumstances, an order passed by the TLB can be challenged by filing a revision in terms of Section 103 of the KLR Act. It is apparent that the petitioner did not avail of the opportunity taking into account the fact that there is lack of jurisdiction for the TLB to have reopened the matter. Under such circumstances, to subserve the interest of justice, we are of the view that an opportunity should be granted to the parties to agitate their respective claims before the TLB. For that reason, we are of the view that Ext.P5 order is liable to be set aside and the matter has to be remitted back to TLB for fresh consideration, in accordance with law.

¶124

In the result, this Writ Appeal is allowed. We set aside the judgment of the learned Single Judge and following orders are passed:

¶125

i) It is declared that the proceedings which culminated in Ext.P5 is under Section 85(7) of the KLR Act.

¶126

ii) Ext.P5 is set aside. The TLB is directed to consider the

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W.A.No.1752/2010 & Cross Objection No.157/2015

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¶129

matter afresh and within a period of six months from the date of receipt of a copy of the judgment after giving an opportunity for hearing to the respondents.

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iii) Since we have set aside the judgment of the learned Single Judge and remitted the matter back to TLB, no orders are required in the Cross Objection. Hence the Cross Objection is dismissed.

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(sd/-)

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(ASHOK BHUSHAN, CHIEF JUSTICE) (sd/-) (A.M.SHAFFIQUE, JUDGE)

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True Copy PA to Judge

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jsr

State of Kerala v. v.P.Joseph

Case brief

What is this about?

What did the court decide?

State of Kerala v. v.P.Joseph

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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