IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 OP.No. 22591 of 2000(M) ----------------------- PETITIONER(S): --------------- 1. PADMANABHAN P.M. PULIARMALA, KALPETA, WYNAD. - EXPIRED, SECOND PETITIONER IMPLEADED 2. P.P.NAGENDRAN, S/O. LATE PADMANABHAN 'BHAKTI NIVAS' PULIYARMALA, KALPETTA - 2ND PETITIONER IS IMPLEADED AS PER ORDER DATED 24.8.2001 IN CMP NO. 41699/01 IN O.P. 22591 OF 2000 BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, WYNAD, KALPETTA. 3. REVENUE DIVISIONAL OFFICER, MANANTHAVADY, WYNAD DISTRICT. 4. [CHERIYA CHOMEN, PULIYARMALA, KALPETTA - DIED ADDL R5 - SRI. VIJAYAN S/O., LATE CHERIYA CHOMEN, PULIYARMALA, KALPETTA AS THE LEGAL HEIR OF THE 4TH RESPONDENT AND ADDITIONAL RESPONDENT IS IMPLEADED AS PER ORDER DT. 16.3.2009 IN I.A. 3603 OF 2009 IN O.P. NO. 22591/00) BY GOVERNMENT PLEADER FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 22591 of 2000(M) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 15.3.1996. EXT.P2 - TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BEFORE THE 2ND RESPONDENT. EXT.P3 - TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT IN APPEAL. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ................................................ O.P. No. 22591 of 2000 ................................................. Dated this the 4th day of December, 2009 J U D G M E N T The petitioner purchased 1.04 acres of land comprised in Sy. No.134/1A 3A1 of Kalpetta Village, Vythiri Taluk, which originally belonged to one Cheria Choman who was a member of a Scheduled Tribe. Proceedings were initiated against the petitioner in respect of that property under the Kerala Scheduled Tribes (Restriction of Transfer of lands) Act, 1975 which ended in Ext.P1 order dated 15.3.1996, whereby the petitioner was directed to re-convey the said 1.04 acres of land to Cheria Choman as per the provisions of the said Act. Petitioners appeal was rejected by Ext.P3 order. The petitioner is challenging Exts.P1 and P3 orders. 2. Although the petitioner had challenged the orders on various grounds including the constitutional validity of the Kerala Restriction on transfer by and Restoration of lands to Scheduled Tribes Act, 1999, in so far as the Supreme Court has finally upheld the validity of the Act, I need not delve into O.P. No. 22591 of 2000 -2- that question in this case. Suffice it to say that since the Act has been held the petitioner has to be given relief only under the provisions of that Act. This exact question was considered by me in my judgment dated 18.9.2009 in O.P. No.11204 of 1998. In that case, I hold that in view of the proviso to Section 5 of the 1999 Act, the transfer on land in favour of the petitioner is exempted from the preview of the Act since the extent of the land transferred to the petitioner in that case does not exceed two hectares. Here also the land transferred to the petitioner is below two hectares. That being so, the transfer of the land in question in favour of the petitioner is also exempted from the preview of the Act. As such the impugned orders are clearly unsustainable. Accordingly, they are quashed. However, the scheduled tribe owner of the land is entitled to the benefit of Section 6 of the Act. Of course the 4th respondent who was the owner of the land is no more. His legal heir has come on record as the additional 5th respondent and therefore the additional 5th respondent is entitled to the benefit on Section 6 of the Act. Accordingly, I direct the O.P. No. 22591 of 2000 -3- Government to allot equal extent of land to the additional 5th respondent as provided under Section 6 of the Act, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of the judgment, after affording an opportunity of being heard to the 5th respondent. The writ petition is disposed of as above. sd/- S. SIRI JAGAN, JUDGE rhs // True copy // PA to Judge