IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 WP(C).No. 4589 of 2004(U) ------------------------------------- PETITIONER(S): ------------------------ KUMARI VARMA, D/O. P.RRAMAVARMA RAJA, KOLIYAT ESTATE, ALAKODE P.O., THALIPARAMBA, KANNUR DISTRICT. BY ADV. SRI.V.SANTHARAM SRI.ALEX ANTONY SEBASTIAN P.A. SRI.MKS.MENON SRI.ANTO THOMAS RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO THE GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 3. LAND BOARD, TRIVANDRUM, REP. BY THE SECRETARY. 4. THE DISTRICT COLLECTOR, KANNUR. 5. THE TAHSILDAR, THALIPARAMBA, KANNUR. 6. THE PLANTATION CORPORATION OF KERALA LTD KOTTAYAM, REP. BY THE MANAGING DIRECTOR. R1 TO R5 BY SPL. GOVERNMENT PLEADER SRI.M.L.SAJEEVAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2010, ALONG WITH CRP. NO.399 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.4589/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.LB)B) 5-4858/70 DTD. 22.11.73 ISSUED BY THE 3RD RESPONDENT. P2:- COPY OF THE ORDER NO.G.O.(MS) NO.1343 DTD. 4.10.78. P3:- COPY OF THE REPRESENTATION DTD. 1.12.97 SUBMITTED BY THE FATHER OF THE PETITIONER. P4:- COPY OF THE REPRESENTATION DTD. 17.12.98 FILED BY THE FATHER OF THE PETITIONER BEOFRE THE 3RD RESPONDENT. P5:- COPY OF THE ORDER NO.LB(B) 3.36529/89 DTD. 24.3.99 PASSED BY THE 3RD RESPONDENT. P6:- COPY OF THE JUDGMENT DTD. 9.9.99 IN OP. 21525/99. P7:- COPY OF THE ORDER NO.LB(B) 3-36529/89 DTD. 29.5.2000 PASSED BY the 3RD RESPONDENT. P8:- COPY OF THE REPRESENTATION DTD. 15.9.2003 SUBMTITED BY THE PETITIONER BEFORE THE MINISTER FOR REVENUE. P9:- COPY OF THE REPRESENTATION DTD. 29.10.03 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P10:- COPY OF THE REPORT CAME IN MATHRUBHOOMI DAILY ON 31.10.2003. P11:- COPY OF THE JUDGMENT DTD. 3.8.1973 IN CRP. 1130/72 AND 1146/72. P12:- COPY OF THE LETTER DTD. 12.3.1974 SUBMITTED BEFORE THE PERSONAL ASSISTANT TO THE COLLECTOR , LAND REFORMS, KANNUR. P13:- COPY OF THE PETITION DTD. 28.3.1974 SUBMITTED BY THE PETITIONER'S FATHER BEFORE THE 3RD RESPONDENT. P14:- COPY OF THE APPLICATION DTD. 21.8.1974 FILED BY THE PETITIONER'S FATHER BEFORE THE 4TH RESPONDENT. P15:- COPY OF THE LETTER DTD. 26.8.1974 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER'S FATHER. P16:- COPY OF THE REPRESENTATION DTD. 10.9.1974 FILED BEFORE THE 3RD RESPONDENT. 2/- W.P.(C) NO.4589/2004 /2/ P17:- COPY OF THE CEILING CSE DTD. 2.11.1974 FILED BEFORE THE 3RD RESPONDENT BY THE PETITIONER'S FATHER. P18:- COPY OF THE LETTER DTD. 18.11.1974 SUBMITTED BY THE PETITIONER'S FATHER BEFORE THE 5TH RESPONDENT. P19:- COPY OF THE LETTER DTD. 7.3.1975 SUBMITTED BY THE PETITIONER'S FATHER BEFORE THE 5TH RESPONDENT. P20:- COPY OF THE LETTER DTD. 2.4.1975 SUBMITTED BY THE PETITIONER'S FATHER BEFORE THE 3RD RESPONDENT. P21:- COPY OF THE REPRESENTATION DTD. 26.4.1975 SUBMITTED BY THE PETITIONER'S FATHER BEFORE THE 3RD RESPONDENT. P22:- COPY OF THE REPRESENTATION DTD. 15.5.1975 SUBMITTED BY THE PETITIONER'S FATHER BEFORE THE 3RD RESPONDENT. P23:- COPY OF THE REPRESENTATION DTD. 4.6.1975 SUBMITTED BY THE PETITIONER'S FATHER BEFORE THE 3RD RESPONDENT. P24:- COPY OF THE DRAFT COMPENSATION ROLL SIGNED BY TAHSILDAR TALIPARAMBA ON 28.10.74 AND MARKED IN A 77 IN OS. 148/83 BEFORE THE SUB COURT, TELLICHERY. P25:- COPY OF THE INTERIM REPORT DTD. 28TH MAY 1980 SUBMITTED BY SRI.N.SUBTRAMANIAN, ADVOCATE APPROVED BY THIS HONOURABLE COURT. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE LETTER NO.LB(B) 5,2166/82 DTD. 18.4.74. R3(b):- COPY OF THE LETTER NO.LB(B) 5,4858/70 DTD. 30.12.74. TRUE COPY P.S. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== W.P(C) No.4589 of 2004 and C.R.P. No.399 of 2010 ==================================== Dated this the 22nd day of November, 2010 J U D G M E N T Writ Petition and Civil Revision Petition arise from Ext.P7, order dated May 29, 2000 passed by the State Land Board, Thiruvananthapuram (for short, “the Land Board”). Parties are referred to as petitioner (petitioner in W.P(C) No.4589 of 2004) and State (petitioner in C.R.P. No.399 of 2010). As per the said order a representation made by the predecessor-in-interest of petitioner on 17.12.1998 was dismissed. The Land Board observed that as per orders dated 01.08.1972 and 22.03.1973 an extent of 1161.84 acres of land was ordered to be taken possession from the predecessor-in-interest of petitioner as Managing Partner of M/s.Koliyat Estate and the land was taken possession on 07.01.1974 and 22.03.1974. Thereafter there was a request from the predecessor-in-interest of petitioner for re-conveyance of 250.32 acres on the ground that it is rubber plantation which is exempted from ceiling area. In Ext.P7, order it is stated that the remaining area was surveyed and demarcated as 851.03 acres W.P(C) No.4589 of 2004 & C.R.P. No.399 of 2010 -: 2 :- and that the declarant had not made any further objection regarding fixation of surplus land to be surrendered. According to the Land Board, after 24 years (of the orders dated 01.08.1972 and 22.03.1973) predecessor-in-interest of petitioner on 17.12.1998 filed a petition before the Land Board stating that an extent of 175.74 acres of Rubber and Cardamom Plantations which were to be exempted by the Land Board was erroneously taken possession and the same may be restored to him. In the meantime predecessor-in-interest of petitioner filed O.P. No.21525 of 1999 in this Court seeking a direction to the Land Board for consideration of the representation made by him. That petition was disposed of by this Court as per Ext.P6, judgment dated September 9, 1999 directing the Land Board to consider the representation dated 17.12.1998 which was rejected by order dated 24.03.1999. It is pursuant to Ext.P6, order that the Land Board has now passed Ext.P7, order rejecting the claim of predecessor-in-interest of petitioner. Learned counsel for petitioner contends that the Land Board has not identified the land to be surrendered and taken possession by it and the land exempted from ceiling area as directed by this Court in Ext.P11, W.P(C) No.4589 of 2004 & C.R.P. No.399 of 2010 -: 3 :- order dated August 3, 1973 in C.R.P. Nos.1130 and 1146 of 1972. According to the learned counsel even as per Ext.P7, order an area of 250.32 acres is liable to be re-conveyed to the petitioner but that has not been done. Hence challenge to Ext.P7, order in W.P(C) No.4589 of 2004. In the Revision petition State would contend that the observation in Ext.P7, order that there was an order for re-conveyance of 250.32 acres to the petitioner vide order dated 18.04.1974 referred to in Ext.P7, order (Annexure P1 in C.R.P. No.399 of 2010) was a mistake. Learned Government Pleader contends that there was no order for re-conveyance of 250.32 acres. It is also argued that at no point of time petitioner or her predecessor-in-interest had a grievance that the actual area to be surrendered was not identified, surveyed and demarcated. According to the learned Government Pleader attempt of petitioner is to take advantage of a mistake committed by the Land Board in Ext.P7, order referring to the letter dated 18.04.1974 which did not really re-convey any land to the petitioner. 2. This proceeding has a chequered career. Exhibit P1 (in the Writ Petition) is the initial order dated 22.11.1973 W.P(C) No.4589 of 2004 & C.R.P. No.399 of 2010 -: 4 :- passed by the Land Board fixing excess land liable to be surrendered by the predecessor-in-interest of petitioner in his capacity as the Managing Partner of M/s.Koiyat Estate. He filed C.R.P. Nos.1130 and 1146 of 1972 in this Court. Those revisions were disposed of by Ext.P11, order dated August 3, 1973. This Court observed in paragraph 9 of the order that there is no proper identification as to wherefrom or from which portion of the survey number the excess land is to be carved out. This Court found prima facie acceptance for the contention so raised. This Court referred to the necessity to identify the land to be surrendered and observed in paragraph 9 that under Section 85(6) of the Kerala Land Reforms Act (for short “the KLR Act”) Land Board has to determine identity of the land to be surrendered accepting the choice indicated under sub-sec.(2) and (3A) of Sec.85 of the KLR Act. If petitioners had not already indicated the lands proposed to be surrendered, the Land Board had to give them an opportunity to so indicate and determine identity of land which is to be surrendered. In Paragraph 10 it is observed that in the circumstances it is necessary to send back the cases to the Land Board for the limited purpose of identifying the lands that are to W.P(C) No.4589 of 2004 & C.R.P. No.399 of 2010 -: 5 :- be surrendered and also to look into the claims of the revision petitioners that some more land will come within the purview of Sec.81 of the KLR Act. The Land Board was directed to look into and decide those matters in accordance with the provisions of the Act and the Rules, and in the light of what is stated in the judgment, and amend or modify the orders under revision accordingly. Thereafter the Land Board has passed Ext.P1, order dated 22.11.1973 as per which reference is made to the order dated August 3, 1973 in C.R.P. Nos.1130 and 1146 of 1972 referred to above. Accordingly the Land Board found that land to be surrendered by predecessor-in-interest of petitioner is 1232.26 acres while 1530 acres of land was found to be liable to be exempted. The Land Board also found that another 14.50 acres is also to be exempted. Total extent of land in the possession of the predecessor-in-interest of petitioner was 2776.76 acres. Based on Ext.P11, order the Land Board directed respondent No.5 to take possession of the surrendered land. Grievance of the petitioner is that possession taken was not in conformity with Ext.P11, order in that there was no proper identification of the land to be surrendered. Exhibit P2 is a W.P(C) No.4589 of 2004 & C.R.P. No.399 of 2010 -: 6 :- Government Order dated 04.10.1978 issued by the Department of Revenue where there is reference to 1232.26 acres taken over as excess land from the predecessor-in-interest of petitioner on 22.11.1973 (Ext.P1, order itself was passed on 22.11.1973). It is also stated in Ext.P2 that the said land was entrusted for interim management to the Plantation Corporation on 23.01.1974 and as per the Government Order, Government directed that entire excess land taken over shall be reserved for public purpose. Exhibit P2 accorded sanction for transfer of the said land which is reported to be 1160 acres. 3. Exhibit P3 is a representation from the predecessor-in- interest of petitioner, to the Land Board pointing out errors as the Land Board has not given clear identity of the land taken over as excess land and claiming that portions of exempted area has also been taken possession by the Land Board. Thereafter representations were made by predecessor-in-interest of petitioner which resulted in Ext.P6, judgment in W.P(C) No.21525 of 1999 referred to above. It is thereafter that Ext.P7, order was passed by the Land Board on 29.05.2000 where it is stated that as per order dated 18.04.1974, 1161.84 acres was ordered to be W.P(C) No.4589 of 2004 & C.R.P. No.399 of 2010 -: 7 :- taken possession and the land was taken possession on 07.01.1974 and 22.03.1974. Further reference in Ext.P7 order is to a letter dated 18.04.1974 deciding to re-convey 250.32 acres to the petitioner or predecessor-in-interest as the case may be. It is stated in Ext.P7, order that the reaming area was surveyed and demarcated and fixed as 851.03 acres. 4. Now there is dispute between the parties as to the land to be surrendered or whether it was actually identified by the Land Board pursuant to Ext.P11, judgment. When learned Government Pleader states that land was actually identified, surveyed and demarcated, learned counsel for petitioner asserts that no such survey, identification and demarcation was made. Exhibit P11, order states that the property is to be surveyed, identified and demarcated. The question is whether that has been done by the Land Board. There is also dispute as to the issue regarding re-conveyance of 250.32 acres referred to in Ext.P7, order. 5. So far as the reference to re-conveyance of 250.32 acres in Ext.P7, order is concerned there appears to be some weight in the contention raised by learned Government Pleader. W.P(C) No.4589 of 2004 & C.R.P. No.399 of 2010 -: 8 :- The said reference is based on letter dated 18.04.1974 (marked as Annexure P1 in CRP No.339 of 2010). On a perusal of Annexure P1 it is seen that it is not an order directing re- conveyance of any land to the petitioner but it is a communication between the Secretary of the Land Board and District Collector, Kannur which does not in any way refer to any re-conveyance of land to the petitioner. Hence petitioner cannot claim re-conveyance of 250.32 acres based on the reference letter in Ext.P7, order. 6. Learned counsel for petitioner has referred me to the report filed by the Advocate Commissioner in the suit for redemption (O.S.No.229 of 1978, Sub Court, Thalassery - Ext.P25 in the Writ Petition) where in paragraph 29 (page 18) Commissioner has referred to the land in the possession of petitioner as 1280 acres. Learned counsel for petitioner contends that as per Ext.P1, order dated 22.11.1973 petitioner is entitled to be in possession of 1544.50 acres but as reported by the Advocate Commissioner, petitioner is in possession of only 1280 acres which means that petitioner is entitled to be in possession of a further extent of 264.50 acres which has not been referred to W.P(C) No.4589 of 2004 & C.R.P. No.399 of 2010 -: 9 :- by the Land Board in any of its orders including Ext.P7. Learned counsel contends that in the light of the report submitted by the Advocate Commissioner, petitioner is entitled to get re- conveyance of 264.50 acres of land which question has not been considered by the Land Board in the correct perspective. 7. I stated from Ext.P1, order that of the total extent of 2776.76 acres of land, the extent directed to be surrendered is only 1232.26 acres and the predecessor-in-interest of petitioner is allowed to be in possession of 1544.50 acres. If that be so, there should have been a proper survey, identification and demarcation of the 1232.26 acres which was ordered to be surrendered by predecessor-in-interest of the petitioner and the remaining 1544.50 acres allowed to be possessed by him. Going by the report of the Advocate Commissioner which I have referred to above, the actual area in the possession of petitioner is only 1280 acres which would prima facie indicate that petitioner is entitled to get a further area of 264.50 acres also (though in the representation submitted by the predecessor-in- interest this extent is stated as 250 acres. Hence the claim shall be limited to that extent). W.P(C) No.4589 of 2004 & C.R.P. No.399 of 2010 -: 10 :- 8. On the question whether there was proper survey, identification and demarcation of the property to be surrendered as excess land and to be retained by the petitioner, I stated that there is dispute between the parties. Learned Government Pleader has invited my attention to page Nos.617 onwards of the File. It is the representation made by petitioner to the Land Board on 29.10.2003. There, it is stated that as per order dated 01.08.1972 and 22.03.1973 of the Land Board an area of 1161.84 acres of land belonging to the petitioner was surrendered to the Government and after actual surrender of the land petitioner and others realised that plantation measuring 250.32 acres was also erroneously surrendered to the Government as part of the 1161.84 acres and the said 250.32 acres of plantation is exempted under the KLR Act. Therefore petitioner and others moved the Land Board for re-conveyance of the said land. Learned Government Pleader would argue that accepting that request as genuine and true the Land Board has passed order on 18.04.1974. 9. To resolve the dispute between the parties it appears to me that the question whether the property liable to be W.P(C) No.4589 of 2004 & C.R.P. No.399 of 2010 -: 11 :- surrendered as per Ext.P1 has already been surveyed, identified and demarcated is to be decided first. File produced by the State before me is not sufficient to enter any such finding. The Land Board has to ascertain if it is not already done which exactly is the area (1232.26 acres) liable to be surrendered to the Government as per Ext,. P1 order, dated 22.11.1973 and which is the area that petitioner is entitled to be in possession pursuant to the said order. Land Board has also to ascertain along with that whether being plantation the 250.32 acres over which claim is made by petitioner is liable to be exempted. 10. In the light of the above it has become necessary to send the case back to the Land Board for fresh decision based on Ext. P1, order dated 21.11.1973. Resultantly, these petitions are allowed in the following lines: (i) Exhibit P7, order is set aside and the matter is remitted to the State Land Board for fresh decision. W.P(C) No.4589 of 2004 & C.R.P. No.399 of 2010 -: 12 :- (ii) The Land Board shall ascertain whether pursuant to Ext.P11, order dated August 3, 1973 in C.R.P. Nos.1130 and 1146 of 1973 the actual extent of land liable to be surrendered as excess land pursuant to Ext.P1, order and the land which predecessor-in-interest of petitioner was found entitled to be in possession has been surveyed, identified and demarcated. If it is already done the Land Board has to specify such area with its boundaries, survey numbers and such other details as are necessary for identification. If it is not already done, the land Board has to undertake that exercise and fix the land to be surrendered to the Government. (iii) The Land Board has also to decide whether the plantation – 250.32 acres (referred to by the Advocate Commissioner also in Ext.P25, report) is liable to be re-conveyed to the petitioner. W.P(C) No.4589 of 2004 & C.R.P. No.399 of 2010 -: 13 :- (iv) In considering the claim of petitioner the Land Board shall take into account the report submitted by the Advocate Commissioner (Ext.P25) with the State as also party to the said proceeding. The Land Board is directed to dispose of the matter within six months from the date of receipt of a copy of this judgment. THOMAS P. JOSEPH, JUDGE. vsv