Pankajakshi Amma vs State of Kerala

K.T. Sankaran, J.—C.R.P.Nos. 1220 and 1662 of 2000 arise out of S.M. No. 994 of 1976 on the file of the Taluk Land Board, Palakkad, while C.R.P.No. 1420 of 2000 arises out of S.M.No. 993 of 1976 on the file of the Taluk Land Board, Palakkad. Since common questions are involved in these revisions, they are being disposed of by this common order.

Suo motu proceedings were initiated as S.M.No. 994 of 1976 showing Pazhaniswamy Kounder as the assessee. The Taluk Land Board passed an order dated 19.11.1976 holding that the assessee, Pazhaniswamy Kounder held excess land and that he is liable to surrender an extent of 28.75 acres of land. Challenging the order passed by the Taluk Land Board dated 19.11.1976, C.R.P. No. 5749 of 1976 was filed. As per order dated 08.08.1978, this Court set aside the order of the Taluk Land Board on the ground that no intimation from the Land Board u/s 85(7) of the Kerala Land Reforms Act was obtained. It was also held that the Taluk Land Board would be free to take action u/s 85(7) of the Act if and when intimation was received. There was another revision, viz. C.R.P. No. 5752 of 1976 filed by Damodaran Nair, assignee, Pazhaniswamy Kounder. That Revision was allowed on 04.12.1979 on the same ground on which C.R.P.No. 5749 of 1976 was allowed. Thereafter, the Taluk Land Board passed the present order dated 04.04.2000 in S.M.No. 994 of 1976. It is stated in the order thus: "On going through the file, it is seen that the Land Board, Thiruvananthapuram in the proceedings LB.6.48610/76 K.Dis.dt.11.07.76 which was received in the office on 20.8.76 had accorded sanction to initiate suo moto proceedings against the assessee Sri.R.S.Pazhaniswamy Kounder to determine the extent and identity of land to be surrendered. But that fact is found to be omitted to bring to the notice of the Hon''ble High Court in time which resulted in the above judgments. In persuance of the judgment dt. 8.8.78 and 4.12.78 in the CRP''s 5749/76 and CRP.5752/76 respectively, the case was re-opened and revised draft statement with notice dt. 9.5.79 was issued to Sri R.S. Pazhaniswamy Kounder (2)Sri Damodaran Nair, (3) Smt. Kunhilakshmi (4) Shri Rajeev (5) Shri Subramanian for appearing before the Taluk Land Board on 30.05.79 with relevant document/evidence in support of their claim. The Taluk Land Board again issued notice to the above claimants on 24.9.99 and 10.1.2000."

After hearing the parties, the Taluk Land Board did not independently discuss the contentions put forward by the assessee or the claimants but simply decided to retain the earlier order dated 19.11.1976 in S.M.No. 994 of 1976. The order dated 19.11.1976 was set aside by the High Court on the sole ground that sanction from the Land Board was not obtained. The Taluk Land Board was not justified in simply reviving the earlier order without considering the contentions put forward by the assessee and the persons who put forward the claims.

In S.M.No. 993 of 1976, Kumaraswamy Kounder, who is the brother of Pazhaniswamy Kounder, is the assessee. In S.M.No. 993 of 1976, the Taluk Land Board had passed an order dated 19.11.1976 against the legal representatives of Kumaraswamy Kounder, who expired on 29.03.1976. The legal representatives of Kumaraswamy Kounder challenged the order dated 19.11.1976 in C.R.P.No. 5771 of 1976. This Court as per order dated 22.08.1978 allowed the Revision and held that the proceedings u/s 85 of the Kerala Land Reforms Act cannot be continued against the legal heirs of the assessee after his death. It was held that the proceedings u/s 87 of Act should be initiated against the legal heirs. Subsequently, in view of introduction of Section 85(6A) of the Act, the proceedings were revived after obtaining sanction from the Land Board dated 19.06.1991. The Taluk Land Board, by final order dated 17.05.2000 held that the assessee is liable to surrender an extent of 14.07 acres . This order is under challenge in C.R.P.No. 1420 of 2000 filed by Senthilkumar, the legal representative of Kumaraswamy Kounder. The Taluk Land Board did not independently consider the contentions put forward by the assessee. A contention raised that an extent of 12.37 acres was ordered to be resumed in favour of the landlord was rejected on the basis of the authorised officer''s report wherein it was stated that the land continued to be in possession and enjoyment of the assessee as on 01.01.1970.

C.R.P.No. 1662 of 2000 is filed by the claimants in S.M.No. 994 of 1976 challenging the order dated 04.04.2000.

The properties involved in S.M. Nos. 993 and 994 of 1976 belonged to Yakkanath Mannakkattu Gopalan Unni. The properties were outstanding on Kanam right in favour of T.S. Veeraraghava Iyer. A lease was granted by Veeraraghava Iyer in favour of Pazhaniswamy Kounder and his brother Kumaraswamy Kounder. Subsequently in the year 1976 as per document No. 344 of 1966, S.R.O. Palakkad, Pazhaniswamy Kounder and Kumaraswamy Kounder entered into a partition and the properties were divided. It is stated by the petitioners in C.R.P.No. 1220 of 2000 that an extent of 12.21 acres of land was assigned by Pazhaniswamy Kounder in favour of Damodaran Nair and his brother Sreedharan Nair as per document No. 1624 of 1966, S.R.O., Palakkad. Sreedharan Nair released his right in favour of Damodaran Nair as per document No. 654 of 1969, S.R.O., Palakkad. It is also stated that jenmi assigned jenmam right in favour of Damodaran Nair as per document No. 3270 of 1967, S.R.O., Palakkad. The wife of Damodaran Nair is the first petitioner in C.R.P.No. 1220 of 2000. It is also stated that Pazhaniswamy Kounder assigned an extent of 7 acres of land in favour of Subramanian, the second petitioner in C.R.P. 1220 of 2000 as per document No. 1934 of 1968, S.R.O., Palakkad.

It is revealed from the records produced before the Taluk Land Board that jenmi Gopalan Unni had filed Application No. 520 of 1965 on the file of the Land Tribunal, Palakkad against Veeraraghava Iyer and Kumaraswamy Kounder for resumption of lands. As per order dated 30.11.1970, the Land Tribunal allowed the application for resumption in respect of an extent of 12.37 acres . Stating that the actual possession of the land was not obtained by jenmi, though he belatedly complied with the direction to deposit solatium, jenmi Gopalan Unni filed O.S.No. 21 of 1977 on the file of the Sub Court, Palakkad against Kumaraswamy Kounder and others for recovery of possession of the properties ordered to be resumed. O.S.No. 21 of 1977 was decreed on 18.01.1982 and the extent ordered to be resumed, except an extent of one acre in Sy.No. 484/2A4 of Elappully village, was ordered to be recovered from the defendants. The judgment and decree in O.S.No. 21 of 1977 was challenged by defendant Nos. 5 to 9 before the High Court in A.S.No. 138 of 1982. The appeal was dismissed on 16.01.1990. In paragraph No. 5 of the judgment in A.S.No. 138 of 1982, it was held thus:

If we act on Ext.A2, it has to be presumed that the plaintiff got possession of the property. At least, the plaintiff gets title to the property and on that basis, plaintiff can recover the property from the legal representatives of the first defendant, who are parties to Ext.A2. The submission of the counsel that if the solatium amount has not been paid within thirty days, the order of resumption will stand cancelled, cannot be taken as a rule of the thumb because several circumstances have to be considered before accepting such a contention.

It was also noticed by the High Court that as per Ext. A1 document produced in the case, the first defendant in the suit and the plaintiff had filed a joint application under Order XXIII Rule 3 wherein it was stated that the property was put in the possession of the jenmi. The Taluk Land Board in the orders impugned in both the S.M. cases have not taken into account the order passed by the Land Tribunal in the application for resumption, the judgment in O.S.No. 21 of 1977 and the judgment in A.S.No. 138 of 1982, though these documents are seen in the files. The report of the authorised officer cannot be taken as overriding the finding of the Land Tribunal and the decision of the civil court and which was confirmed by the High Court. If title has already been vested in the landlord by the order of resumption, it cannot be stated that the assessee continued to retain title so as to make that land liable for being considered as excess land. Unless it is shown that the jenmi lost title vested in him by virtue of the order of resumption, the said land cannot be included in the account of the assessee. The Taluk Land Board has not properly considered this question. I am of the view that the order is liable to be set aside on that short ground.

Petitioners in C.R.P.No. 1662 of 2000 have stated in the Memorandum of Revision that they produced before the Taluk Land Board several documents including purchase certificate issued by the Land Tribunal in order to substantiate their claims, but the Taluk Land Board did not consider the case put forward by them. On a perusal of the files, such documents are not seen. However, the fact remains that the contentions raised by the petitioners in C.R.P.No. 1662 of 2000 were not considered by the Taluk Land Board. Therefore, C.R.P.No. 1662 of 2000 is also liable to be allowed.

There is yet another reason as to why the matter should be considered afresh by the Taluk Land Board. By the Kerala Land Reforms (Amendment) Act, 2005 (Act 21 of 2006), Section 7E and Section 84(4) were inserted. The aforesaid Sections are quoted below for easy reference:

7E. Certain persons who acquired lands to be deemed tenants:-- Notwithstanding anything to the contrary contained in Section 74 or Section 84 or in any other provisions of this Act, or in any other law for the time being in force or in any contract, custom or usage, or in any judgment, decree or order of any court, tribunal or other authority, a person who at the commencement of the Kerala Land Reforms (Amendment) Act, 2005, is in possession of any land, not exceeding four hectares in extent, acquired by him or his predecessor- in-interest by way of purchase or otherwise on payment of consideration from any person holding land in excess of the ceiling area; during the period between the date of the commencement of the Kerala Land Reforms Act, 1963 (1 of 1964), and the date of commencement of the Kerala Land Reforms (Amendment) Act, 2005, shall be deemed to be a tenant." Section 84, Sub-section (4):

(4) Notwithstanding anything contained in Sub-sections (1), (1 A) or (2), or in any judgment, decree, or order of any court, tribunal or other authority, no acquisition of land referred to in Section 7E shall be deemed to be invalid, or ever to have been invalid by reason only of the fact that the land so acquired was found included as, or forming part of, the land liable to be surrendered by the transferor as excess land under the provisions of this Act and no suit or other proceedings including proceedings for eviction relating to the said land shall be instituted, maintained or continued in any court or tribunal against any person who is a deemed tenant u/s 7E and every such suit or proceedings pending shall stand abated;

Provided that, no ceiling cases wherein excess land has been physically taken over and distributed to landless labourers or reserved for public purposes as provided in this Act shall be reopened.

Provided further that if the Taluk Land Board is satisfied that the transfer of land made by a person, in possession of excess land is calculated to defeat the ceiling provisions, it may take into account the land so transferred in determining his ceiling area and may direct him to surrender such extent of land held or possessed by him.

Provided also that no ceiling cases or proceedings in which any land has already been surrendered by, or assumed from, a person as excess land before the commencement of the Kerala Land Reforms (Amendment) Act, 2005, shall be reopened.

The first petitioner in C.R.P.No. 1220 of 2000 claims title in respect of 12 acres 21 cents. It is her contention that part of this land is also included in the order of resumption and therefore the extent does not exceed four hectares. The second petitioner in C.R.P.No. 1220 of 2000, Subramanian claims an extent of 7 acres , which does not exceed the extent mentioned in Section 7E . Likewise the petitioners in C.R.P.No. 1662 of 2000 could also seek the benefit of Section 7E. The Taluk Land Board shall consider these aspects as well in the light of the Amendment Act 21 of 2006 and arrive at a conclusion as to whether the petitioners are entitled to get the relief in the light of the provisions of law quoted above.

It is to be noted that the proceedings commenced in the year 1976. The order passed by the Taluk Land Board dated 19.11.1976 was set aside since no effective representation was made by the Government that sanction of the Land Board was obtained before passing the order. The final order is now passed in the year 2000. The fact remains that from 1976 to 2000, the matter was pending before the Taluk Land Board . This situation arose since correct information was not furnished to the High Court while dealing with the earlier Revisions. The petitioners are also to be blamed for not furnishing correct information to the High Court. The net result is that from 1976 to 2000, a final determination could not be made by the Taluk Land Board. This necessitates the Taluk Land Board to consider and dispose of S.M.Nos. 993 and 994 of 1976 afresh, as expeditiously as possible, after hearing the parties and affording them an opportunity to produce documents and to adduce evidence.

For the aforesaid reasons, all these Civil Revision Petitions are allowed. The orders in S.M.Nos.993 and 994 of 1976 are set aside. The Taluk Land Board is directed to consider and dispose of the matter afresh in the manner indicate above, after affording an opportunity of being heard to the parties and affording them an opportunity to produce documents and to adduce evidence. All the contentions of the parties are left open to be considered by the Taluk Land Board. No order as to costs.