IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 OP.No. 11204 of 1998(H) ----------------------- PETITIONER(S): ---------------------- A.MOHAMMED, S/O. IBRAHIM, RESIDING AT BEDRAMPALLA, ERMAKAJE VILLAGE, KASARAGOD TALUK, POST PERLA. BY ADVS. SRI.M.C.SEN, SENIOR ADVOCATE SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN SRI.A.PARVATHI MENON RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BYSECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, KASARAGOD. 3. REVENUE DIVISIONAL OFFICER, KASARAGOD AT KANHANGAD. 4. TAHSILDAR, KASARAGOD. 5. GIRIJA, W/O. LATE KUNHA NAIKA, BAJIKUDLU HOUSE, ENMAKAJE VILLAGE, POST PERLA. BY GOVERNMENT PLEADER SMT. N.SUDHA DEVI ADV. SRI.K.V.SOHAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/09/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 11204 of 1998(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE ORDER DIS.239/96 STRA 1/93 DT. 23.3.1996 OF THE 2ND RESPONDENT TO THE PETITIONER. EXT.P2 - TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DT. 19.1096 TO THE PETITIONER. EXT.P3 - TRUE COPY OF THE JUDGMENT IN O.P. NO. 16471/97 OF THIS COURT DT.14.10.97. EXT.P4 - TRUE COPY OF THE ORDER DT/ 25.5.98 PASSED BY THE 2ND RESPONDENT. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... O.P No. 11204 of 1998 ................................................. Dated this the 18th day of September, 2009 J U D G M E N T The petitioner purchased 72 cents of land in R.Sy. No. 752- 1D and 1.55 acres in R.Sy. No. 732/1A2 and 34 cents in R.Sy. no. 954-1A2 in Enmakaje Village from one Kunhan Naika as per sale deed dated 10.12.1981. The said Kunhan Naika is a Scheduled Tribe. He is no more. His wife, the 5th respondent herein filed a petition before the Revenue Divisional officer under the Kerala Scheduled Tribes (Restoration on Transfer of Land and Restoration of Alienated Lands) Act, 1975 (hereinafter referred to as the 1975 Act) to set aside the sale as invalid by virtue of the provisions of the said Act. By Ext.P1 order dated 23.3.1996, that application was allowed and the petitioner was directed to restore the property to the 5th respondent. The petitioner filed an appeal under Section 6 of the said Act before the District Collector. By Ext.P2 order dated 19.10.1996, the District Collector dismissed the appeal. It appears that it was an ex- parte order. The petitioner filed O.P.No. 16471 of 1997 O.P No. 11204 of 1998 -2- challenging Ext.P2 order. This court, by Ext.P3 set aside that order and directed the District Collector to reconsider the appeal and dispose of the same. Pursuant thereto by Ext.P4 order dated 25.5.1998, the District Collector again dismissed that appeal. The petitioner has filed this writ petition challenging Exts.P1 and P4 orders seeking the following reliefs: “(a) issue a writ of certiorari or other appropriate writ, direction or order quashing Ext.P1 and P4 orders as illegal and an order passed without jurisdiction. (b) To declare that the application filed by the 5th respondent for restoration of possession is not maintainable. (c) to declare that Sec.6 of the Act is violative of Art.14 of the constitution and hence not enforceable.” 2. While this original petition was pending, the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999 (hereinafter referred to as the 1999 Act) came into force as per Section 22 of which, the1975 Act was repealed and it was directed that every proceedings pending before a court on a complaint under Section 14 of 1975 Act shall be deemed to be a complaint under the corresponding provisions of the 1999 Act and shall be continued accordingly. Certain provisions of that Act namely Sections 5, 6 and 22 were declared as unconstitutional by this Court in the decision of People's O.P No. 11204 of 1998 -3- Union for Civil Liberties Kerala State Unit v. State of Kerala & Ors. 2003(2) KHCACJ 639 (Ker) (DB), That decision was taken in appeal before the Supreme Court and the Supreme Court has in Civil Appeal Nos. 104 and 105 of 2001 reversed the judgment of this court and held that the 1999 Act in toto is constitutional and valid. According to the petitioner, therefore, the original petition has to be decided in terms of the provisions of the 1999 Act. According to him, by virtue of the proviso to Section 5 of the said Act, the provisions of Section 5 which renders a transfer of property belonging to a member of the Schedules Tribe to a person other than a member of a Scheduled Tribe as invalid is not applicable in case of a transfer of a property the extent of which does not exceed two hectares. According to the petitioner, since the transfer in dispute in this original petition is in respect of a property which does not exceed two hectares, the transfer is not invalid by virtue of the proviso to Section 5 of 1999 Act. 3. The counsel for the 5th respondent does not now dispute the legal position as contended by the petitioner, whose only contention now is that she is entitled to the benefit of Section 6 of the Act. Section 6 of the Act reads thus: “6. Declaration that land is required for a public O.P No. 11204 of 1998 -4- purpose.- (1) Subject to the provisions of Part VII of this Act, [when the [appropriate Government] [or the Board of Revenue] is satisfied, after considering the report, if any, made under Section 5-A, sub-section (2)], that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders [or of the Secretary of the Board of Revenue, as the case may be], [ and different declarations may be made for time to time in respect of different parcels of any land covered by the same notifications under Section 4, sub- section (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5-A, sub-section (2)]; [Provided that no declaration in respect of any particular land covered by a notification under Section 4, sub-section (1).- (1) published after the commencement of Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:] Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.” The 5th respondent would therefore contend that the Government is bound to restore an equal extent of land by virtue of the Section 6. The 5th respondent therefore seeks a direction to the 1st respondent to consider the claim of the 5th respondent under O.P No. 11204 of 1998 -5- Section 6 of the Act. 4. I have considered the rival contentions in detail. 5. The eligibility for exemption of the petitioner in respect of the property in question cannot now be disputed in view of the proviso to Section 5 of the Act. Therefore Exts.P1 and P4 orders are liable to be quashed. I do so. 6. In view of Section 6 of the Act, the 1st respondent is bound to consider the claim of the 5th respondent under that section. Under Section 7, the authority to consider such claims is the Revenue Divisional Officer. In view of Section 7, the 3rd respondent Revenue Divisional Officer shall treat the application filed by the 5th respondent which resulted in Ext.P1 order as an application under Sections 6 and 7of the 1999 Act and pass appropriate orders thereon, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this 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 Paragraph 3 of the judgment is corrected by substituting the (Contd....6) O.P No. 11204 of 1998 -6- portion extracted from the Act therein by Section 6 of the Kerala Restriction on Transfer by the Restoration of Lands to Scheduled Tribes Act, 1999, which reads thus: “6. Allotment of lands:- Notwithstanding anything contained in Section 5 or in any judgment, decree or order of any Court or other authority, a member of a Scheduled Tribe who had effected any transfer of land, possessed, enjoyed or owned by him, to a person other than a member of a Scheduled Tribe, between the 1st day of January, 1960 and the 24th day of January, 1986 and where an application for restoration of right under Section 6 of the Kerala Scheduled Tribes (Restriction of Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (31 of 1975) has been filed before publication of this Act in the Gazette, but the possession or enjoyment thereof, has not been restored to him and such transfer has been validated by the proviso to sub section (1) of Section 5 or the transferee thereof has been made eligible for the retention of said land under sub section (2) of Section 5 shall be entitled to restoration of equal extent of land by way of allotment from the Government.” Vide order dated 10/12/2009 in I.A. 14696/2009. sd/- Registrar (Judicial)