IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 CRP.NO. 275 OF 2009() --------------------- {TLB.1030/1992 OF TALUK LAND BOARD, TRIVANDRUM} .................... REVN. PETITIONER(S): --------------------- STATE OF KERALA, REPRESENTED BY RDO, TRIVANDRUM. BY GOVERNMENT PLEADER SRI.M.L.SAJEEVAN RESPONDENT(S): --------------- AMBIKA BHARATHAN NAIR, BHARATH COTTAGE, BEEACH ROAD, KOVALAM. ADV. SRI.V.SURESH FOR R1 SRI.G.SUDHEER FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------- C.R.P.No.275 of 2009 --------------------------------------- Dated this the 30th day of March, 2010 O R D E R State has filed this revision challenging the order passed by the Taluk Land Board, Thiruvananthapuram in its proceedings No.030/92/TLB/TVM dated 26.6.2004 holding that the first respondent has no excess land to surrender. 2. Short facts giving rise to this revision may be summed as thus: The Taluk Land Board commenced ceiling proceedings against the husband of the first respondent viz., Sri.Bharathan Nair, pursuant to a statement filed by him on 12.12.1972 furnishing the details of his property. After due enquiry, the Taluk Land Board issued a draft statement and also notice to him determining the excess area to be surrendered. The statement giver (declarant) filed objections dated 29.5.1996. Pending C.R.P.No.275 of 2009 :: 2 :: enquiry on the objections, the declarant passed away. The Taluk Land Board passed an order directing surrender of 4.936 acres of land by the declarant. The order being served on his wife, the present first respondent, she challenged that order preferring C.R.P.No. 3702/76. That revision was dismissed by order dated 14.8.1978. Pursuant to the dismissal of that revision, she moved an application under Section 85(8) of the Kerala Land Reforms Act {for short “the Act”} before the Taluk Land Board for reopening the case alleging that statutory notice was not issued to her while determining the extent of land to be surrendered and that the order was passed without hearing her. State filed objections contending that in an application under Section 85(8) of the Act a reopening of the case was not permissible and, further, the previous order had merged with the order of the High Court in C.R.P.No.3702/76. However, C.R.P.No.275 of 2009 :: 3 :: the Taluk Land Board proceeded with the matter. After due enquiry, it was concluded by passing an order that the first respondent had no excess land to be surrendered and an area of 21 cents already taken possession is to be re-conveyed to her. State challenged the order of the Taluk Land Board dated 14.2.1993, by way of a revision, C.R.P.No.582/84 before this court. That revision was disposed of setting aside the order of the Taluk Land Board holding that its previous order dated 14.8.78 has become final. The declarant challenged the order of this court in the revision preferring a Special Leave Petition before the Apex Court. The Apex Court holding that the reopening of the case having not been challenged has become final, set aside the order of this court and remitted the matter for fresh consideration on the merits of the order passed by the Taluk Land Board. This court, on such remand, reconsidered the order C.R.P.No.275 of 2009 :: 4 :: passed by the Taluk Land Board on its merits and setting aside that order by order dated 15.6.2001 remitted the case for fresh consideration, subject to the observations made therein. 3. Pursuant to such remand, after reconsidering the matter, as directed by this court, the Taluk Land Board has passed the impugned order by which the Board has again held that the land held by the declarant is less than the ceiling area and there is no excess area to be surrendered by the first respondent. Propriety and correctness of that order is impeached by the State in this revision. 4. I heard the learned Special Government Pleader and the learned counsel for the first respondent. 5. The Taluk Land Board without adverting to and taking note of the specific directions/observations made by this court in C.R.P.No.275 of 2009 :: 5 :: the remand order rendered in C.R.P.No.582/84 dated 15.6.2001 has passed the order impugned in the present revision, is the submission of the learned Government Pleader. The exemptions provided to the declarant by the Taluk Land Board are impeached by the learned Government Pleader contending that in respect of such lands exemption cannot be granted under law. An area of 1.09 acres was exempted by the Taluk Land Board holding that it is a rocky land wherein rock blasting and rubble making operations are carried out. The Taluk Land Board, without any materials, has granted exemption holding that such land is a commercial site. It is submitted by the learned Government Pleader that no material was produced, not even a licence to show permission for rock blasting operation in that property. In respect of an acquisition made by the Government after 1.1.1970, over 1.86.500 acres of land in Survey No.59/1A of C.R.P.No.275 of 2009 :: 6 :: Thiruvallam village, exemption was granted by the Board for the reason that it was an acquired land. Reliance was placed by the Taluk Land Board in the decision rendered in Gopalan v. TLB {1987(2) KLT 1006} to grant such exemption. In the order rendered in the previous revision, this court had specifically held that the above decision has no application in respect of acquisitions made after 1.1.1970 in the granting of exemption from excess area is the submission of the learned Government Pleader. Similarly overlooking the observations made by this court in the remand order that the various claims for exemption in respect of purchase certificates issued to the tenants, kudikidappukars by the Land Tribunal there should be proper enquiry as to whether such certificates have been obtained by collusion or by fraudulent means it is submitted by the learned Government Pleader, a blanket C.R.P.No.275 of 2009 :: 7 :: exemption for such claims had been granted by the Taluk Land Board. Exemption has been provided to the declarant in respect of two house sites, one at Thiruvananthapuram and the other at Ottapalam and that goes against the spirit of exemption covered under Section 81 (1)(m) of the Act is the submission of the learned Government Pleader. The impugned order passed by the Land Board is patently unsustainable under law and it is liable to be set aside, submits the Government Pleader. 6. Per contra, the learned counsel appearing for the first respondent submitted that so far as the house sites are concerned, the exemption for second house site is provided in respect of a house jointly owned by the declarant along with other family members. Exemption provided for two house sites situated in two different places, one under the possession and occupation of the first respondent, and the other at far away C.R.P.No.275 of 2009 :: 8 :: place and jointly owned by her with others is justified by the learned counsel contending that Section 81(1)(m) of the Act contemplates exemption of house sites and not of a site alone. There is no impropriety in the Taluk Land Board providing exemption of more than one house site is the submission of the learned counsel for the first respondent. So far as the exemption provided for the rocky area, it is contended that it could be utilised only for the purpose of rock blasting and that alone is sufficient to indicate that it has commercial value and thus liable to be exempted under Section 81(q) of the Act. The learned counsel further submitted that once the excess area of the declarant is determined, the law permits him to surrender the land which is under the enjoyment of a tenant or any other person including the Government. When that be so, for the sole reason that the acquisition was made after C.R.P.No.275 of 2009 :: 9 :: 1.1.1970, landlord/declarant could not be prevented from surrendering such acquired land which had been taken to assess the excess area. The counsel contended that the Taluk Land Board was perfectly correct in holding that the acquired land can be treated as exempted area in determining the excess land, if any, to be surrendered by the declarant. So far as the exemption provided with respect to the certificates issued to the tenants/ kudikidappukars by the Land Tribunal, as the lands covered by such certificates had already been assigned in favour of such tenants/ kudikidappukars and no longer held by the declarant etc., it is the submission of the counsel, such lands cannot be taken into account in determining the excess area of the declarant. So much so, the exemption granted in respect of the lands covered by the certificates by the Taluk Land Board, according to the learned counsel, is perfectly C.R.P.No.275 of 2009 :: 10 :: legal and correct. In short, no interference with the order passed by the Taluk Land Board is called for in the given facts of the case, is the submission of the counsel. 7. I have considered the rival submissions made by the learned Government Pleader and the learned counsel appearing for the declarant with reference to the impugned order passed by the Taluk Land Board. Adverting to the rival case presented by the counsel for the respective parties, it may be useful to take note of the observations/directions made by this court while disposing of C.R.P.No.582/84 by order dated 15.6.2001 directing the Taluk Land Board to reconsider the matter in determining the excess area, if any, to be surrendered by the declarant. Paragraphs 8 and 10 of the said order read thus: “8. The first respondent had contended that 1 Acre and 86.5 cents of land in Sy.No.89/1A of Thiruvallam C.R.P.No.275 of 2009 :: 11 :: Village and 1 Acre and 75.2 cents in Kovalam were acquired by the State and that being involuntary transactions the area aforementioned have to be exempted. The contention was upheld by the Taluk Land Board. The said finding is clearly erroneous in so far as the acquisitions were not shown to be before 1.1.1970. In ceiling cases the cut off date is 1.1.1970 and the land to be surrendered is fixed with reference to the total area held by the declarant on that date. Subsequent loss of land through land acquisitions cannot be taken into account for the purpose of deciding the area to be surrendered. 10. As regards exemption for an area of 1.69 Acres in Sy.No.16/203 of Thiruvallam Village, the contention was that that is full of rocks and as such amounts to a commercial site, which is liable to be exempted. Commercial site is defined in Section 2(5) as land (not being a kudiyiruppu or kudikidappu or karaima), which is used principally for the purposes of any trace, commerce, industry, manufacture or business. Blasting of rocks from a property cannot be said to be a commercial activity for the purpose of Section 2(5). No authority has been placed before me to show that such potential of a land would make it commercial area. As such I am C.R.P.No.275 of 2009 :: 12 :: of the view that exemption granted with regard to 1.69 Acres aforementioned under the said head is also inadmissible. 1 Acre and 2.25 cents in Sy.No.106/2 has been exempted as sought for by the first respondent on the ground that this extent had been assigned to tenants as per S.M. Cases 344 of 1972, 165 of 1971, 341 of 1972 and 167 of 1971. I find merit in the contention of the learned Government Pleader that even if the Authorised Officer had made recommendation in this regard, it was incumbent upon the Taluk Land Board to go into the relevant documents before allowing exemption. A perusal of the order passed by the Land Tribunal in those cases to appraise the genuineness of the transaction including the aspect whether the grant was pursuant to 'J' Form filed by the parties was essential and in the absence of such considerations the grant of the said exemptions has also to be set aside and the matter remitted for further consideration. The same is the position with regard to 1.71 Acre in Sy.No.88/7 allegedly covered by assignment orders in O.A.Nos.100 of 1973, 490 of 1971, 709 of 1982 and 609 of 1977. The admissibility of exemption with regard to the said property also requires further scrutiny by the Land Tribunal C.R.P.No.275 of 2009 :: 13 :: with reference to the relevant assignment orders. The exemption of 60 cents allegedly covered by orders passed by the Land Tribunal in O.A.Nos.161 of 1975, 376 of 1971, 475 of 1972, 562 of 1972, 18 of 1972 and 543 of 1973 in Sy.No.21/10, 106/3 and 92/1A allegedly given to kudikidappukars also comes under the same category. Here again, further scrutiny is required based on original records before granting exemption.” 8. Evidently, the Taluk Land Board has not looked into, nor even a cursory perusal of, the order rendered by this court in the remand order directing reconsideration of the matter, subject to the observations/directions given, as seen from the order challenged in the present revision. This court has negatived the claim of exemption canvassed over 1.7520 acres of land which had been acquired by the Government for rehabilitating the evicted fishermen, from the declarant under the award passed by the Land Acquisition Officer. The decision in Gopalan C.R.P.No.275 of 2009 :: 14 :: v. TLB {1987(2) KLT 1006} banked upon by the declarant had been negatived by this court in the previous order expressing the view that it has no application to the facts of the case. Still, the Taluk Land Board relying on the very same decision, it is seen, has upheld the grant of exemption in respect of the above land. Despite this court making a categorical and unequivocal statement that the declarant “can succeed in the claim (exemption) with regard to the acquisition of land only before 1.1.1970”, the Taluk Land Board has granted exemption over such land relying on Gopalan v. TLB {1987(2) KLT 1006}. The exemption so granted by the Taluk Land Board in respect of the acquired land, admittedly, after 1.1.1970 viz., 1.7520 cents in Survey No.59/LA of Thiruvallom Village, is clearly unsustainable. The exemption so provided by the Taluk Land Board cannot be granted as the acquisition had been made after 1.1.1970. C.R.P.No.275 of 2009 :: 15 :: 9. The exemption claimed over the rocky area of 1.69 acres in Survey No.16/203 of Thiruvallom Village (incorrectly shown as 1.09 acres in the order of the Taluk Land Board) for the reason that it is full of rocks and so much so it is a commercial area, is patently unsustainable. This court adverting to the claim of exemption over such rocky land in the previous revision, C.R.P.No.582/84 has held that the exemption claimed over such land is clearly impermissible. Overlooking the view so expressed and in fact discarding the conclusion formed by this court, the Taluk Land Board, it is seen, has granted exemption to the declarant in respect of the above land. That exemption also cannot be granted. 10. So far as the exemption claimed by the declarant in respect of the land over which purchase certificates had been issued to the tenants/kudikidappukars, this court has directed the Taluk Land Board to examine the C.R.P.No.275 of 2009 :: 16 :: relevant documents to consider the merit of the exemption claimed. In fact, a specific direction was given by this court that in such cases, the genuineness of the transaction including the question whether joint statements had been filed by the parties also has to be gone into by the Taluk Land Board in forming an opinion whether any exemption can be granted in respect of such lands. Further scrutiny over the transaction of such land in respect of which exemption was claimed was directed to be held by the Taluk Land Board. Strangely enough, without having any further enquiry, the Taluk Land Board, it is seen, has granted a blanket exemption in respect of all the lands wherein the Land Tribunal had issued purchase certificates to the tenants/ kudikidappukars, to exclude such lands from the excess area of the declarant. As there has been no enquiry on the question whether such lands can be exempted or not, despite a C.R.P.No.275 of 2009 :: 17 :: direction issued by this court to conduct such enquiry and scrutiny with reference to the relevant materials, the exemption so granted in favour of the declarant cannot be sustained. 11. The declarant had been granted exemption of land in respect of two house sites one at Thiruvananthapuram and the other at Ottapalam. I find that the exemption so granted by the Taluk Land Board, especially, where the second house, covering the site, is held by the declarant only as a co-owner, does not warrant any interference. It has also to be noted that Section 81(1)(m) of the Act, which is applicable for exemption of house site, indicates that such exemption can be provided for house sites as well. More than one house site, it appears, can be taken into account for the purpose of granting exemption. 12. The Taluk Land Board is directed to take note of the observations/directions C.R.P.No.275 of 2009 :: 18 :: given in the order dated 15.6.2001 in C.R.P.No.582/85 as to how the exemptions claimed in respect of various lands by the declarant have to be examined and scrutinised, and to pass appropriate orders in determining the excess area, if any, to be surrendered by the declarant. The impugned order passed by the Taluk Land Board is set aside directing it to consider the matter afresh in the light of the directions in the above revision and also those stated in the present order. The Taluk Land Board shall pass fresh orders as expeditiously as possible after providing opportunity to both sides to produce further materials, if any, and also hearing the counsel, at any rate, within a period of six months from the date of receipt/production of a copy of this order. 13. Parties are directed to appear before the Taluk Land Board on 21.06.2010. C.R.P.No.275 of 2009 :: 19 :: Civil Revision Petition is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.