IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 CRP.No. 849 of 2008() --------------------- AGAINST THE ORDER DATED 30/08/2008 IN TLB.994/1973/TBA of TALUK LAND BOARD, TALIPARAMBA .................... REVN. PETITIONER(S)/PETITIONER ------------------------------- ANDIYAN VALAPPIL MUHAMMED HAJI, S/O.LALILAKATH KUNHAMMED,AGED 80 YEARS, RESIDING AT VALIYAPARAMBIL HOUSE, KOLACHERRY AMSOM, PATTAYAM DESOM, P.O.KOLACHERRY, THALIPARAMBA TALUK. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY REVENUE DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TALUK LAND BOARD TALIPARAMBA REPRESENTED BY ITS CHAIRMAN-DEPUTY COLLECTOR (LB) KANNUR. 3. P.P.AMSAKUTTY S/O.UMMAR, PANNIYANKANDI PUTHIYAPURAYIL HOUSE, KOLACHERRY AMSOM, KAMBIL DESOM, KOLACHERRY VILLAGE, KANNUR DISTRICT. GOVERNMENT PLEADER SRI.M.L.SAJEEV FOR R THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/01/2010 ALONG WITH CRP NO.851 OF 2008, THE COURT ON 29/01/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NOS.849 & 851 OF 2008 () ----------------------------------- Dated this the 29th day of January, 2010 O R D E R The Taluk Land Board, Taliparamba, after having due enquiry, has issued an order dated 21.10.1993 in TLB.No.994/73/TBA directing the legal heirs of the declarant, Sri.P.P.Amsakutty to surrender the excess land of 23.52 acres of the assesee specifying the survey numbers, village, extent and classification, which was held by the assesee in excess of the ceiling limit. Several claim petitions were moved over the land fixed as excess land for surrender from the assesee by third parties claiming independent possession and enjoyment under valid transfers effected over the land earlier in point of time, contending that the lands in their possession are to be exempted. Petitioners in both these revisions are some of the claimants who have moved Form VI applications before the Taluk Land Board. 2. The revision petitioner in C.R.P.No.849 of 2008 has moved an application claiming right over 1.17 acres of land in C.R.P.NOS.849 & 851 OF 2008 2 R.S.No.77/4A of Narath amsom/desom. The Taluk Land Board had fixed an extent of 1.62 acres from the above survey number for surrender by the assesee as part of the excess land. The above revision petitioner contended that he has enjoyment of possession of the above said 1.17 acres of the land under two valid assignment deeds of the years 1975 and 1976. It was the further case of the revision petitioner that the property originally belonged to Makreri Devaswom jenmom, from which his transferor had obtained right, title, possession and enjoyment under the assignment deed of the year 1973. It was his case that the transferor, his predecessor in interest had been issued a purchase certificate over the land by the Land Tribunal recognising his status as a cultivating tenant entitled to fixity of tenure by the Land Tribunal. He also produced a copy of the purchase certificate and tax receipts to substantiate his claim. 3. The revision petitioners in C.R.P.No.851 of 2008 were two other claimants who too put forward claims over some lands fixed as excess land to be surrendered by the assesee. C.R.P.NOS.849 & 851 OF 2008 3 The 1st petitioner in the above revision, Sri.Kuttikattukunnel Abraham claimed that he is in possession of 2.40 acres in R.S.No.21/5, 0.72 acres in R.S.No.21/9, 0.44 acres in R.S.No.21/10, 0.27 acres in R.S.No.21/11 and 0.40 ares in R.S.No.21/12 of Sreekandapuram desom under a registered sale deed executed in the year 1993 by one Smt.Peedikaparambath Puthiya Purayil Mariyakutty Umma and eight others claiming that he has purchased the property for valuable consideration. He sought for exemption of such land from the excess area fixed for surrender by the assesee. The 2nd petitioner in the above revision Smt.Kuttikattukunnel Shali in her application claimed right over 3.56 acres of land in R.S.No.20/2 of Sreekandapuram amsom and desom under a sale deed of the year 1993 executed by Smt.Peedikaparambath Puthiya Purayil Mariyakutty Umma and eight others alleging that the village authorities are proceeding to take possession of 0.17 acres from her possession as the excess land ordered to be surrendered by the assesee. She claimed that the land in her possession is distinct and different and it is not liable to be resumed or C.R.P.NOS.849 & 851 OF 2008 4 taken possession as excess land due form the assesee. 4. The Taluk Land Board had enquired the claims made by the above third parties and it was found from the report filed by the authorised officer that the predecessor in interest of the claimant Sri.Andiyan Valappil Muhammed Haji, the revision petitioner in C.R.P.No.849 of 2008, had obtained the property covered by his claim petition from the assesee in the year 1973 and the transaction was illegal under Section 84 of the Kerala Land Reforms Act. It was also noticed that the above said claimant has not produced any material to show his independent possession over the property prior to 1.4.1964. So much so, the Taluk Land Board rejected the claim. In the case of the claimants Sri.Kuttikattukunnel Abraham and also Smt.Kuttikattukunnel Shali, the revision petitioners in C.R.P.No.851 of 2008 also, the report of the authorised officer disclosed that their claims over the properties stated in their Form VI application were based on the transactions effected by the legal heirs of the declarant and such transactions were also illegal under Section 84 of the KLR Act. These claim C.R.P.NOS.849 & 851 OF 2008 5 petitioners, it was noticed, purchased the property in the year 1993 under invalid transactions as stated above and their claims were meritless. The claims raised by the above claimants were also rejected. 5. Impeaching the correctness of the order passed by the Taluk Land Board rejecting the claims as aforesaid, the above said claimants have filed these two revision petitions. 6. I heard the learned counsel for the revision petitioners and also the learned Special Govt. Pleader. In the case of the claimant, Sri.Andiyan Valappil Muhammed Haji, the revision petitioner in C.R.P.No.849 of 2008, it is contended by the counsel that the Taluk Land Board has not taken into account the purchase certificate issued in favour of his predecessor in interest over the land by the Land Tribunal in appreciating the merit of his claim raised under his application. That claimant and also the other claimants, the petitioners in C.R.P.No.851 of 2008, according to their respective counsel, are entitled to the benefits covered by C.R.P.NOS.849 & 851 OF 2008 6 Section 7E of the KLR Act introduced by the amended Act 21 of 2006, but that was not examined or considered by the Taluk Land Board while rejecting the claims set up by them over the lands which has come into their possession and enjoyment under the registered deeds of transfer. So much so, the Taluk Land Board went wrong in holding that the transactions effected in favour of these claimants were to be treated as null and void as such transfers have been effected either by the declarant or his legal heirs after 1.4.1964. In view of the introduction of Section 7E of the KLR Act under amendment Act 21 of 2006, the claim raised by these claimants deserve to be reexamined afresh by the Taluk Land Board and the reliance placed on the report of the authorised officer and conclusions formed that since the transfers in favour of these claimants are vitiated under Section 84 of the KLR Act, cannot be sustained under law, according to the counsel. The learned counsel therefore urged for setting aside the impugned order and remitting the case for fresh consideration of the claims raised by the claimants with reference to the right canvassed by them under Section 7E of the KLR Act. C.R.P.NOS.849 & 851 OF 2008 7 7. Section 7E of the KLR Act inserted by Act 21 of 2006 recognised certain transfers effected over the period specified thereunder conferring on the transferee in possession the status of a deemed tenant, provided, he satisfied the conditions stipulated that he is in possession of such land at the commencement of the Kerala Land Reforms (Amendment) Act, 2005, not exceeding four hectars in extent, as 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 from 1.4.1964, the date of the commencement of the KLR Act, 1963 and 18.10.2006, the date of commencement of the KLR (Amendment) Act, Act 21 of 2006. As per the above provisions under Section 7E of the KLR Act, the persons who possessed lands not exceeding four hectars subject to satisfaction of the conditions specified are considered as deemed tenants entitled to the protection thereof from eviction. The main challenge canvassed in these revisions to impeach the correctness of the order of the Taluk Land Board rejecting the claim petitions of C.R.P.NOS.849 & 851 OF 2008 8 the revision petitioners is based on the claim now set up as to the entitlement of the claimants for the benefits under Section 7E of the KLR Act. Even assuming that the claimants can set forth claim under Section 7E of the Act in respect of the land in possession the larger question emerges for consideration whether the Taluk Land Board is competent to enter a finding on such a claim raised by an applicant who had filed Form VI application setting forth an independent claim in respect of the excess land fixed for surrender by the assesee. Adjudication of the claim under Section 7E of the Act as to the status of the claimant as deemed tenant can be gone into only by the Land Tribunal and not by the Taluk Land Board. So much so, the plea now raised in the revisions to challenge the order of the Taluk Land Board holding that the claims raised by the petitioners which are based on transactions hit by Section 84 of the KLR Act, has no merit at all. The order of the Taluk Land Board will not stand in the way of the petitioners in canvassing their claim under Section 7E of the KLR Act before the appropriate forum as such a claim cannot be adjudicated upon nor any findings thereof be given by the C.R.P.NOS.849 & 851 OF 2008 9 Taluk Land Board. 8. The revision petitioner in C.R.P.No.849 of 2008 has canvassed another challenge as well that a purchase certificate had been issued in favour of his predecessor in interest by the Land Tribunal in respect of the land under his possession over which the claim was raised under his Form VI application. Validity of the purchase certificate was not examined by the Taluk Land Board in examining the merit of his claim is the challenge mooted to question the rejection of his application. In case, a purchase certificate has been issued by the Land Tribunal in favour of his predecessor in interest over the land claimed by him, necessarily, without revocation of such certificate on the ground it had been obtained by suppression of fact or fraud flouting the provisions of the Act or Ceiling Rules, the validity of such a purchase certificate could not have been ignored. So much so, resumption of the land under orders of the Taluk Land Board in respect of the property covered by the purchase certificate can be proceeded only on cancellation of that certificate by C.R.P.NOS.849 & 851 OF 2008 10 the competent authority, the Land Tribunal, in accordance with law. I make it clear that the issue of purchase certificate in respect of a land covered by the ceiling proceedings in favour of any person on the basis of an invalid transfer hit by Section 84 of the KLR Act by itself cannot be canvassed by that person or his transferee to substantiate a claim of independent possession and to seek exemption of such land determined as excess land of the assesee in the ceiling proceedings by the Taluk Land Board. Having regard to the impact of Section 72K of the KLR Act, resumption of such land covered by purchase certificate without its revocation in accordance with law is not correct and proper. So much so, in case any purchase certificate had been issued in respect of any of the items of land claimed by the revision petitioner in C.R.P.No.849 of 2008, then resumption of possession of such lands as excess lands of the assesee as determined by the Board can be proceeded only after revocation of such certificate. Order of the Taluk Land Board to the extent indicated in the matter of resuming possession in respect of the land covered by the purchase certificate of the revision C.R.P.NOS.849 & 851 OF 2008 11 petitioner in C.R.P.No.849 of 2008, and that alone, shall stand modified to the effect that resumption of such land was only on cancellation of the purchase certificate, if any, issued over such land. In all other respects, challenges mooted against the orders of the Taluk Land Board in both the revisions by the respective claimants fail. The learned counsel for the petitioner relied on Pasupathi Nampoothiri v. State of Kerala (2008 (4) KLT 163) and Institute of Brothers of St.Gabriel v. State of Kerala (2008 (4) KLT 631) to contend that a claim under Section 7E of the KLR Act cannot be discarded by the Taluk Land Board in examining the merit of Form VI application in respect of a land covered by the ceiling proceedings. 9. The decisions reported by the counsel for the revision petitioners have no application to the present case for more than one reason. A claim under Section 7E of the KLR Act, it is seen from the impugned order, was never canvassed before the Taluk Land Board. Further more, the issue involved in the decisions related to the directions given on the administrative C.R.P.NOS.849 & 851 OF 2008 12 side by the Revenue Department that the Taluk Land Board has to reject claim under Section 7E of the KLR Act. No doubt, such directions could not have been given to the statutory authority, and it was found so by this Court in the decisions. But the larger question whether Taluk Land Board, an authority constituted under the Act to enquire into the ceiling limits of land as under the Ceiling Rules can adjudicate a claim under Section 7E of the KLR Act never came up for consideration before this Court. A claim under Section 7E of the KLR Act, which calls for determination of the right of the claimant as a deemed tenant subject to satisfaction of the conditions thereunder can be gone into only by the Land Tribunal and not by the Taluk Land Board. So much so, if at all a claimant has a claim over the excess land of the assesee determined by the Taluk Land Board in ceiling proceedings under Section 7E of the KLR Act to substantiate his independent possession and enjoyment as a deemed tenant, he has to pursue and substantiate that claim before the Land Tribunal by taking proper proceedings, and the mere canvassing of such a plea before the Taluk Land Board can C.R.P.NOS.849 & 851 OF 2008 13 never be considered as a relevant factor supporting his claim. C.R.P.No.849 of 2008 is dismissed, but, subject to the reservation made in the resumption of possession of land covered by the purchase certificate, if any, as indicated above. C.R.P.No.851 of 2008 is dismissed. S.S.SATHEESACHANDRAN JUDGE prp