State of Kerala vs E.V. Ittiachan

K. Sreedbaran, Actg. C.J.

The judgment of the Court was delivered by Sreedharan, Ag. C.J.-State and Taluk Land Board, Parur-Respondents 1 and 2 respectively in O.P. 3918/1987- are the Appellants. Taluk Land Board, initiated suo motu proceedings for taking possession of the excess land held by Varghese who expired in 1973. By proceedings dated 21st November 1977, the Taluk Land Board found that an area of 15.85.621 acres of land was held by Sri Varghese as on 1st January 1970 as excess land. Legal representatives of the deceased were directed to surrender the above area as excess land. That order of the Taluk Land Board was questioned before this Court in C.R.P. 549/1978. This Court by order dated 30th August 1978 quashed the order of the Taluk Land Board taking the view that suo motu proceedings were taken without intimation from the Land Board as required u/s 85(7) of the Land Reforms Act. While disposing of the same, this Court observed that the Taluk Land Board is free to proceed u/s 87, since the land in question is vested on the legal heirs in 1973 consequent on the death of original owner-Varghese. Subsequently on 15th December 1978, the State Land Board authorised the Taluk Land Board u/s 85(7) to initiate suo motu proceedings against the heirs of Varghese. Kerala Land Reforms Amendment Act, 1981 inserted Section (6A) to Section 85 of the Land Reforms Act. By that Amendment, proceedings for determination of the extent and other particulars of any land which are to be surrendered by a family or adult unmarried person or sole surviving member can be continued against legal representatives. The legal representatives are bound to surrender the same extent of land as the deceased. By virtue of that provision, the ceiling case against the deceased-Varghese was restored to file by the Taluk Land Board on 15th June 1982. The draft statement with notice was issued to heirs of Varghese on 11th August 1982. Said proceedings were challenged by the heirs of Varghese in O.P. 6880/1982. This Court disposed of the Original Petition on 30th October 1986 with a direction to the Petitioner to file objections to the above notice and draft statement. They were also allowed to question the competence of the Taluk Land Board to proceed against them in relation to the excess land left behind by Sri Varghese. Pursuant to the judgment of this Court, objections were filed before the Taluk Land Board disputing its jurisdiction and right to proceed u/s 85(7). Taluk Land Board rejected the objections raised by the legal heirs by order dated 21st April 1987. Above decision was challenged in O.P. 3918/1987. The learned Single Judge allowed the Original Petition and quashed the order of the Taluk Land Board dated 21st April 1987. Hence this appeal.

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 Section 85(6A) nor the transitory provision in the Act have 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.

In State of Kerala, etc. Vs. Varkey Mathew and others, etc., , Their Lordships of the Supreme Court took the view:

....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 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 u/s 85 (6A).

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 u/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 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.

Since this matter is a long pending one, the Taluk Land Board is directed to pass final orders fixing the excess land, if any, to be surrendered by the Respondent herein and the legal heirs on whom the property left behind by Sri Varghese devolved, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. We make it clear that the decision in State of Kerala v. Mathu 1987 (2) KLT 278, is not to detain the Taluk Land Board in deciding the issue. We also make it clear that a reasonable opportunity of being heard in the matter should be afforded to the legal heirs of Sri Varghese, who are to surrender the excess land, if there is any excess land.

Writ Appeal is allowed in the above terms.

Issue photocopy of the judgment to the parties on usual terms.