IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 26923 of 2004(E) ---------------------------------------- PETITIONER(S): ------------------------ P.A.JOHNY, S/O. LATE PADIKKALA ANTHAPPAN, NEAR LATIN CHURCH ROAD, THRISSUR-1. BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): -------------------------- 1. THE CHAIRMAN, TALUK LAND BOARD, THRISSUR. 2. THE TAHSILDAR, THRISSUR. 3. THE SUB INSPECTOR OF POLICE, PERAMANGALAM POLICE STATION, THRISSUR DISTRICT. 4. THE DISTRICT SUPERINTENDENT OF POLICE, THRISSUR. *ADDL.R5 & R6 IMPLEADED: R5. THE DISTRICT SURVEY SUPERINTENDENT,THRISSUR. R6. THE SPECIAL TAHSILDAR, LAND REFORMS, THRISSUR. (*ADDL. R5 & R6 ARE IMPLEADED VIDE ORDER DTD. 3/07/2008 IN I.A.NO.8385/08) Kss ..2/- ..2..... WPC.NO.26923/2004 E **ADDL.R7 & R8 IMPLEADED: R7. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. R8. DISTRICT COLLECTOR, THRISSUR. (**ADDL.R7 & R8 ARE IMPLEADED AS PER ORDER DTD. 1/07/2010 IN I.A.NO.8214/10) BY SPL.GOVERNMENT PLEADER(TALUK LAND BOARD) SRI. M.L.SAJEEV BY SRI.ROY VARGHESE,ADV.COMMISSIONER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2010 ALONG WITH CRP NO. 41 OF 2010, THE COURT ON 14/07/2010 DELIVERED THE FOLLOWING: Kss WPC.NO.26923/2004 E APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF GIFT DEED DTD. 11/10/1961 OF SUB REGISTRY, MUNDOOR. P2: COPY OF THE PETITION DTD. 26/09/1997 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P3: COPY OF THE JUDGMENT DTD. 21/04/1998 IN O.P.NO.7585 OF 1998 OF THIS HON'BLE COURT. P4: COPY OF THE REPRESENTATION DTD. 27/08/2003 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE TALUK LAND BOARD, THRISSUR. P5: COPY OF REPORT VIDE NO.H 26902/03 DTD. 24/11/2003 FROM THE 2ND RESPONDENT TO THE PETITIONER. P6: COPY OF NOTICE VIDE NO.LR6-40280/03 DTD. 25/10/2003 FROM THE 1ST RESPONDENT TO THE PETITIONER. P7: COPY OF THE ARGUMENT NOTES DTD. 10/12/2003 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P8: COPY OF THE NEWS ITEM PUBLISHED IN THE MATHRUBHUMI DAILY DTD. 20/08/2004. P9: COPY OF THE REPRESENTATION DTD. 20/08/2004 SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR, THRISSUR. P10: COPY OF THE SKETCH OBTAINED BY THE PETITIONER FROM THE VILLAGE OFFICE. P11: COPY OF THE PROCEEDINGS NO.LR1.42080/03 DTD. 18/12/2009 PASSED BY THE CHAIRMAN OF THE TALUK LAND BOARD,THRISSUR. RESPONDENT'S EXHIBITS & ANNEXURES: R1 (A):COPY OF THE REPORT OF THE TAHSILDAR DTD. 25/04/03. ANNEXURE 1: COPY OF THE ORDER DTD. 29/08/08 PASSED BY THE 6TH RESPONDENT. /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No.26923 of 2004 & C.R.P. No.41 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2010. JUDGMENT Since these two cases are interlinked and as same issue arises for consideration, they are being disposed of by a common order. 2. Petitioner is the son of late Padikkala Anthappan. His father had filed a ceiling return, details of which are mentioned as below: Total extent of land held - 51.66.081 Acres Land exempted - 0.99.000 '' Land allowed to be retained - 15.00.000 '' Land to be surrendered - 35.67.081 '' Petitioner was a minor at the relevant time and he too was a member of the family. Family was allowed to retain 15 acres of land. As per Ext.P1 gift deed, late Anthappan had gifted properties to the petitioner, the details of which are given below: WPC.26923/04 & CRP.41/10. 2 Taluk Village Survey No. Extent Thrissur Puzhakkal 197 1.87 Thrissur Puzhakkal 198 3.88 Thrissur Puzhakkal 200/1 Part 0.48 ½ Thrissur Chittilappally 3 Part 0.65 4 Part 4.59 5/2 Part 2.17 In the year 1977 petitioner wanted to avail of a loan from Dhanalakshmi Bank for agricultural purpose. For the said purpose, he intended to mortgage his properties. The Bank insisted that the properties should be measured before taking it as security for the loan. As per the gift deed, the petitioner had three items at Chittilappally Village, the details of which are given as follows: Survey No. Extent (Acres) 3 Part 0.65 4 Part 4.59 5/2 Part 2.71 -------------- Total 7.41 Acres WPC.26923/04 & CRP.41/10. 3 When the property was measured, it was found that the property in various survey numbers at Chittilappally Village had only an extent of 7 acres and that there was a shortage of 41 cents. According to the petitioner, that means that the Taluk Land Board had taken 41 cents of excess land, that is liable to be surrendered by late Anthappan. Therefore, the petitioner filed Ext.P2 as per Section 85(8) of the Kerala Land Reforms Act seeking restoration of 41 cents. While the application was pending, the petitioner learnt that the property in Puzhakkal Village were proposed to be handed over to the Police department for construction of police quarters and other structures. The land could be utilized for public purpose. But before assigning the land, the application filed by the petitioner had to be considered. Since hasty steps were being taken for the transfer of the land to the police department, the petitioner was compelled to approach this court by filing O.P. 7585 of 1998 seeking appropriate reliefs. That writ petition was disposed of WPC.26923/04 & CRP.41/10. 4 directing the first respondent to dispose of Ext.P1 application therein as expeditiously as possible at any rate within three months from the date of receipt of a copy of the judgment. Till then the parties were directed to maintain status quo. 3. For a brief period, there was no Chairman for the Land Board and the Land Board was not functioning. Petitioner kept on trying to get his petition disposed of by the Taluk Land Board. As the Taluk Land Board was not functioning, the petitioner approached the Revenue Minister for redressal of his grievances. Several representations filed for disposal of his application. Ultimately a representation was made informing the authorities concerned that unless steps are taken to dispose of the application immediately, he will be compelled to move for contempt of court. In order to ascertain the actual extent of the property, the petitioner made a representation to the second respondent also. As per the instructions from the Tahsildar, Taluk Surveyor conducted the measurement and it was found that in Sy. WPC.26923/04 & CRP.41/10. 5 Nos.297/1 and 296/34 and the total extent available is only 6.88 acres ( in Sy. No. 297/1, 2.5357 hectares and in Sy. No.296/34, 0.2508 hectare). The report filed by the Village Officer to the Tahsildar is marked as Ext.P5. 4. Petitioner received notice of hearing. It was to take place on 26.11.2003. Copy of the notice is produced as Ext.P6. He appeared on the said date. He was directed to file a written argument in the matter. Ext.P7 argument note was filed. Noticing a news item in one of the daily newspapers regarding the laying of foundation stone for the police quarters in the property, which was involved in the proceedings, the petitioner made a representation to the first respondent, which is produced and marked as Ext.P9. The attempt on the part of the respondents to assign the property to the police department for construction of quarters and other structures without disposing of the representation filed by the petitioner is irregular and improper. Petitioner has produced a plan, which shows the WPC.26923/04 & CRP.41/10. 6 lie of the properties, as Ext.P10. In Ext.P10 the property shaded in orange colour is the property of the petitioner. That situates in Chittilappally Village. The property shown in green colour is going to be utilized for construction of police quarters. That is situated in Puzhakkal Village. Lie of the properties is such that the entry to the petitioner's small strip of land becomes extremely difficult. It is pointed out by the petitioner that the public purpose contemplated under the Kerala Land Reforms Act, for which the land could be assigned or transferred does not envisage construction of police quarters etc. 5. The petitioner would point out that his representation remains to be disposed of and till that is done, the property could not be handed over to the police department for construction of quarters. Petitioner would also assail the conduct of the respondents in transferring the land to the police department for construction of quarters both on the ground that it does not take in the public WPC.26923/04 & CRP.41/10. 7 purpose as envisaged under the Kerala Land Reforms Act and also that the assignment could not be made before the issue raised by the petitioner is decided. It is also pointed out by the petitioner that if the property is assigned as shown in Ext.P10 sketch, property in the possession of the petitioner will become land locked and it will not be possible to use the land for any purpose. 6. A report has been filed by the fifth respondent as directed by this court. In the report, it is pointed out that the petitioner has produced a copy of the interim order dated 31.7.2008 in W.P.(C) No. 26823 of 2004. In the hearing on 22.8.2008 the petitioner was heard. The case of the petitioner was found to be that he had put in possession of 7.41 acres of land in Chittilappally Village and that there is a deficit of 41 cents. He claimed that he is entitled to restoration of 41 cents, which has been taken in excess of the area that is due from his father late Anthappan. According to the report, three options were considered for WPC.26923/04 & CRP.41/10. 8 restoration of the land. It is pointed out that the fifth respondent is not competent to issue orders on the representation filed by the petitioner. 7. The sixth respondent too filed a report as per the direction of this court. The report shows that the sixth respondent is not the competent authority for granting reliefs as prayed for by the petitioner. 8. The fourth respondent had filed an affidavit as directed by this court. The fourth respondent is the Superintendent of Police, Thrissur District. The fourth respondent in his report made mention with regard to option No.3 suggested by the Advocate Commissioner appointed by this court. According to this respondent, the report and plan are not legally sustainable. It is pointed out that the fourth respondent was not heard in the matter before the report was prepared and filed before the court. According to the fourth respondent, the report has been filed in violation of the principles of natural justice. The affidavit discloses that WPC.26923/04 & CRP.41/10. 9 1.60 acres of land in Sy. No.197, 198, 2002/02 (R.S. No.9/01) of Puzhakkal Village is in possession and enjoyment of the fourth respondent. According to the fourth respondent, the property was assigned to the police Department by G.O.(Rt) No.747/87 dated 14.5.1987 and by order No. B.S.46329/87 dated 21.7.1987 by the District Collector, Thrissur. It is pointed out that the entire extent is necessary for the purpose of putting up police quarters and other structures. It is also contended that the property owned by the petitioner lies well demarcated from the property assigned to the fourth respondent. The fourth respondent makes mention of various important institutions in the locality and the necessity for vigilance in the area all the 24 hours. The entire extent of 1 acre 60 cents is required by the police department for various purposes. The deponent points out that it is not possible to accept the option pointed out by the Commissioner. WPC.26923/04 & CRP.41/10. 10 9. It may be worthwhile here to mention that during the pendency of the petition, this court had issued directions and had directed that properties be measured and a sketch be prepared. In pursuance of the said order, Advocate Commissioner appointed by this court, namely Adv.Roy Varghese has filed a report and survey sketch. The report discloses three options with regard to the restoration of 41 cents to the petitioner. 10. During the pendency of the petition it appears that final orders were passed on Ext.P2. The petitioner has sought to produce the said order and seeks to get it marked as Ext.P11. By the said order, the Taluk Land Board has pointed out that the matter is to be considered and disposed of by the Government and the petitioner is directed to approach the Government for appropriate reliefs. 11. Since Ext.P11 order has been passed by the Taluk Land Board, by way of abundant caution petitioner seeks to challenge Ext.P11 order in C.R.P. 41 of 2010. WPC.26923/04 & CRP.41/10. 11 12. The question that arises for consideration is whether the claim of the petitioner is sustaiinable and whether the order now passed by the Taluk Land Board produced as Ext.P11 can be upheld. 13. Before going into the facts, statutory provisions relevant for the purpose may be noticed. Petitioner filed a petition under Section 85(8) of the Kerala Land Reforms Act seeking restoration of 41 cents, which according to him has been taken in excess of what is due with respect to the ceiling case against his father late Anthappan. Section 85(8) reads as follows: “Where the Taluk Land Board determines the extent of the land to be surrendered by any person without hearing any person interested, such person may, within sixty days from the date of such determination, apply to the Taluk Land Board to set aside the order and, if he satisfies the Taluk Land Board that he was prevented by any sufficient cause from appearing before the Taluk Land Board it shall set aside the order and shall WPC.26923/04 & CRP.41/10. 12 proceed under sub-section (5) or sub-section (7), as the case may be.” Section 86 says that on determination of the extent and other particulars of the land under Section 85 of the Kerala Land Reforms Act, the ownership and possession of those lands will have been in the Government free of all encumbrances and the Taluk Land Board should issue notice accordingly. On getting the order from the Taluk Land Board, the person who is in possession of the land is bound to surrender the land. In case he fails to do so, the Taluk Land Board is competent to take possession of the same. The Act provides for payment of compensation to the person from whom excess land has been taken possession of. 14. The next Section that is relevant is Section 96, which reads as follows: “96. Assignment of lands by Land Board.-(1) The Land Board shall assign on registry subject to such conditions and restrictions a may be WPC.26923/04 & CRP.41/10. 13 prescribed, the lands vested in the Government under Section 86 or Section 87, as specified below: (i) the lands in which there are kudikidappukars shall be assigned to such kudikidappukars; (ii) the remaining lands shall be assigned to- (a) landless agricultual labourers; and (b) smallholders and other landlords who are not entitled to resume any land: Provided that eighty-seven and a half per cent of the area of the lands referred to in clause (ii) available for assignment in a taluk shall be assigned to landless agricultural labourers of which one-half shall be assigned to landless agricultural labourers belonging to the Scheduled Castes, the Scheduled Tribes, and such other socially and economically backward classes of citizens as may be specified in this behalf by the Government by notification in the Gazette. Explanation.- For purposes of this sub-section- (a) a kudikidappukaran or the tenant of a kudiyiruppu shall be deemed to be a landless agricultural labourer if he does not possess any other land; WPC.26923/04 & CRP.41/10. 14 (b) “Kudikidappukaran” shall include a person who was a kudikidappukaran to whom a certificate of purchase has been issued under sub-section (2) of Section 80C. (1A) Notwithstanding anything contained in sub- section (1), the Land Board may, if it considers that any land vested in the Government under Section 86 or Section 87 is required for any public purpose, reserve such land for such purpose. (2) The Land Board shall not assign to any person more than one acre in extent of land. (3) Where a person possesses any land, only so much land as will make the extent of land in his possession one acre shall be assigned to him.” The other relevant provisions are Rules 25, 26 and 32 of the Kerala Land Reforms (Ceiling) Rules, 1970, which read as follows: “25. Land to be managed through the agency of Revenue Department.-(1) Lands vested in the Government under Section 86 or Section 87 shall be managed by the Land Board through the agency of the Revenue Department WPC.26923/04 & CRP.41/10. 15 and the District Collectors shall act in that behalf under the general control and direction of the Land Board. (2) A register in Form No.15 shall be maintained in each Taluk Office showing the lands in that taluk vested in the Government under Sections 85 and 87. 26. Protection of land from unauthorised occupation.- As and when any land is taken possession of under Rule 19 of Rule 20 or Rule 21, the Tahsildar of the taluk in which the land is situate shall take prompt and adequate steps to ensure its complete protection from any unauthorised occupation or other interference whatsoever. 32. Reservation for public purposes.- Notwithstanding anything herein before contained, the Land Board may at any stage after a land is surrendered or taken possession of and before the execution of the deed of assignment under sub- rule (2) of Rule 31 reserve any such land or portion thereof for public purposes, such reservation and determination of public purposes being made in such manner as it things fit; and on WPC.26923/04 & CRP.41/10. 16 such reservation, such land or portion shall be deemed to be land not available for assignment.” 15. The main case put forward by the petitioner in the writ petition is that he is entitled to 7.41 acres as per the gift deed executed by late Anthappan. On measurement he is found to have only 7 acres of land and therefore he is entitled to restoration of 41 cents. The definite case put forward is that on measurement there is only 7 acres and therefore he is entitled to restoration of 41 cents from Puzhakkal Village, which is lying adjacent to Chittilappally Village and from which the land has been taken by the Taluk Land Board. 16. Going by Section 96 of the KLR Act, it is clear that the maximum extent of land that could be assigned for any public purpose is 1 acre. Of course, Section 96(1)(a) enables the Taluk Land Board to reserve such land, which, it feels necessary, is required for a public purpose. One of the questions raised by the petitioner is whether construction of police quarters and other structures will fall within the ambit WPC.26923/04 & CRP.41/10. 17 of public purpose as envisaged under the Kerala Land Reforms Act. Before going further, it may be noticed that the respondents have not tried to answer this issue raised by the petitioner at all. 17. The petitioner placed considerable reliance on the decision reported in Malankara Rubber & Produce Co. v. State of Kerala (1972 K.L.T. 411), wherein it was held as follows: “Upon surrender all lands are to vest in the Government free from all encumbrances. Under S.96 as enacted in 1964 the Land Board was to reserve in each village lands necessary for public purposes and then assign on registry the remaining lands vested in the Government under Ss. 86 and 87 as specified therein, namely (i) to assign the holdings in which there were kudikidappukars to these persons, as far as possible and (ii) out of the remaining area available for assignment to assign (a) 50% (later raised to 87 ½ ) to landlless agricultural labourers of which again one half was to be given to the landless agricultural labourers belonging to the WPC.26923/04 & CRP.41/10. 18 Scheduled Castes, (b) 25% (later reduced to 12 ½ %) to small holders and other landlords not entitled to resume any land and © the remaining 25% to cultivators who did not possess more than Ac.5-00 of land in extent. Under Sub-s. (2) of the section, the Land Board was not to assign more than Ac.5-00 (later reduced to one acre) in extent of land to any person and where a person possessed any land only so much land as would make the extent thereof in his possession five acreas was to be assigned. By the Amending Act 25 of 1971 S.96(1) was completely recast to provide as follows: “(1) The Land Board shall assign on registry subject to such conditions and restrictions a may be prescribed, the lands vested in the Government under Section 86 or Section 87, as specified below: (i) the lands in which there are kudikidappukars shall be assigned to such kudikidappukars; (ii) the remaining lands shall be assigned to- (a) landless agricultual labourers; and (b) smallholders and other landlords who are not entitled to resume any land: Provided that eighty-seven and a half per cent of the area of the lands referred to in clause (ii) available WPC.26923/04 & CRP.41/10. 19 for assignment in a taluk shall be assigned to landless agricultural labourers of which one-half shall be assigned to landless agricultural labourers belonging to the Scheduled Castes, the Scheduled Tribes. Explanation.- For purposes of this sub-section- (a) a kudikidappukaran or the tenant of a kudiyiruppu shall be deemed to be a landless agricultural labourer if he does not possess any other land; and (b) “Scheduled Caste” and “Scheduled Tribes” shall include converts to Christianity from such Castes and Tribes.” As a result of the amendment assignment of land is to be made not only to kudikidappukars and landless agricultural labourers but also to tenants of a kudiyiruppu who were to be deemed landless agricultural labourers if they did not possess any other land. a new sub-s. (1A) was added reading: “Notwithstanding anything contained in sub-s. (1) the Land Board may, if it considers that any land vested in the Government under S.86 or S.87 is required for any public purpose, reserve such land for such purpose.” ............ ............. It was argued that although the Kerala High court in Narayanan Nair's case turned down the contention that under the wide language of S. 96 WPC.26923/04 & CRP.41/10. 20 (1) “the reservation for public purpose could be for any purpose whatever including one entirely unconnected with agriculture such as for example, an “industrial undertaking” on the ground that “having regard to the context in which it appears the reservation for public purposes under that subsection can only be for public purposes relating to agriculture, such as the provisions for threshing floors or the construction of irrigation or drainage channels or the construction of houses for agricultural labourers”, the new sub section (1A) shows that the State did not intend to be bound by the construction placed upon S.96 by the High Court and made it clear that the section was not to be so read down thereby keeping in its hand the matter of reservation of land for public purpose of any kind not limited to agrarian reform. The argument though forcefully put cannot be accepted. The object of both the 1964 Act and the present Act was to effect agrarian reform, which only can give to the statute the protection of Art.31A. This was made clear by the High Court in its judgment and in our view rightly, by reading down the said provision as to reservation for WPC.26923/04 & CRP.41/10. 21 public purposes to reservation for purposes falling within the expression “agrarian reform”. By enacting sub-section (1A) despite the said construction by the High Court it appears that the intention of the State Legislature was to overrule legislatively the view expressed by the High Court and not to be bound by the interpretation placed by the High Court. By so doing, the new sub- section has one again been made prone to the same constitutional challenge. We