IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 CRP.NO. 549 OF 2006() --------------------- {AA.42/2001 OF THE APPELLATE AUTHORITY (LAND REFORMS), KANNUR OA.1043/1990 OF TALUK LAND BOARD, KANNUR} .................... REVN. PETITIONER(S): RESPONDENTS/APPLICANTS: ---------------------------------------------------------- 1. K.V. ABDUL RAHIMAN, S/O. LATE K.V. MARIYAMBI, THOVAYYIL PARAMBA, WESTERN SIDE OF THE VATTAMPOYIL GATE, P.O. KALLAI, CALICUT-3. 2. K.V. SAKIYA, D/O.LATE K.V.MARIYAMBI, THUVAYYIL PARAMBA, WESTERN SIDE OF THE VATTAMPOYIL GATE, P.O. KALLAI, CALICUT-3. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): APPELLANTS/RESPONDENTS: -------------------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, TRIVANDRUM. 2. PUTHIYA PONMANICHINTEKKATH SAINABI, W/O. P.T. ALI KOYA HAJI, WEST KALLAI, P.P.HOUSE, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 3. P.I. ALIKOYA HAJI, S/O. KUKNHAMMED KOYA HAJI, MANANHALA PALAM, P.O. KALLAI, CALICUT-3. 4. P.P. KUNHAMMED KOYA, S/O. P.T. ALI KOYA HAJI, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 5. P.P. HAMZA KOYA, MANNATHALA PALAM, P.O. KALLAI, CALICUT-3. CRP.NO. 549 OF 2006 :: 2 :: 6. P.P. HASSANKOYA, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 7. P.P. ABOOBACKER KOYA, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 8. P.P. UMMAYYABI, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 9. P.P. IMBICHIPATHUMMABI, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 10. P.P. MARIYAMBI, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 11. P.P. AYISHABI, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 12. P.P. SUBAIDA, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 13. P.I. IMBICHIPATHUMABI, W/O. P.P. IMBIVHIKOYA, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 14. P.I. SAKEER, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 15. P.I. MAGEER, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 16. P.I. SAINABANU, MANANHALA PALAM, P.O. KALLAI, CALICUT-3. 17. P.I. SAINABA, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. 18. P.I. ROSHNI, MANANTHALA PALAM, P.O. KALLAI, CALICUT-3. R1 BY GOVERNMENT PLEADER SRI.M.L.SAJEEVAN R3,4,6 TO14 & 16 BY ADV. SRI.K.M.FIROZ THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------- C.R.P.No.549 of 2006 --------------------------------------- Dated this the 29th day of March, 2010 O R D E R A Karaima holder, whose application for assignment of the appurtenant land to his Karaima holding was granted by the Land Tribunal, but set aside by the Appellate Authority with a direction for reconsideration of the matter, has filed this revision challenging the order so passed by the Appellate Authority. The revision petitioner, Karaima holder, claiming occupation over two cents as Karaima sought for assignment of 10 cents of the appurtenant land for beneficial enjoyment of the Karaima holding. The Land Tribunal, after getting a report from the revenue inspector and on the materials placed, ordered for assignment of 8.9 cents of appurtenant land holding that such assignment is necessary for enjoyment of the Karaima holding. The order so passed by the Land Tribunal was challenged by the respondent/landlord C.R.P.No.549 of 2006 :: 2 :: preferring an appeal before the Appellate Authority (Land Reforms), Kannur. The appellate authority relying on Retna Bai v. State of Kerala {2004(1) KLT 632}, rendered by a Division Bench of this court, held that the impugned order passed by the Land Tribunal is improper and unsustainable under law. In that view of the matter, the order of the Land Tribunal was set aside directing the Land Tribunal to consider the matter afresh examining whether the Karaima holder is entitled to any benefit other than under the Kerala Land Reforms Amendment Act (Act 21 of 1999). Propriety and correctness of the order of the appellate authority setting aside the order of the Land Tribunal is impeached in this revision. 2. I heard the counsel on both sides. 3. At the time of hearing, learned counsel for the respondent fairly conceded that no question covered by Act 21 of 1999 was involved in the application moved C.R.P.No.549 of 2006 :: 3 :: before the Land Tribunal and so much so, the order passed by the appellate authority in any view of the matter cannot be sustained. 4. Even before the amendment under Act 21 of 1999 was brought into the Land Reforms Act the Karaimakars are entitled to get fixity of tenure of the land appurtenant to the Karaima on their possession and beneficial enjoyment in excess of Karaima lands. But the cut off date to claim such benefits, as covered under Section 2(23) of the Land Reforms Act, has been fixed with reference to the possession of the Karaimakars on 24.1.1989. By virtue of the amendment brought in by Act 21 of 1999, retrospective operation was given relegating such possession from the date on which the Land Reforms Act came into force i.e. 1.1.1970. The benefit so conferred on the Karaimakars with reference to the prior date of 1.1.1970 under Act 21 of 1999 was C.R.P.No.549 of 2006 :: 4 :: challenged in Retna Bai's case (cited supra) as infringing Article 31(b) of the Constitution of India. Since Act 21 of 1999 was not insulated from such challenge as having not been included in the 9th Schedule of the Constitution, this court upheld the challenge and held the provisions of Act 21 of 1999 are unconstitutional. 5. In the present case, no question covered by Act 21 of 1999 arose for consideration. The application moved by the applicant was on the basis of the possession over the Karaima Holding on 24.1.1989 and not of canvassing any benefit under Act 21 of 1999. When that be the case, the order passed by the appellate authority interfering with the orders of the Land Tribunal without examining the merit of the order of the Tribunal, but, solely taking a view that the provisions of Act 21 of 1999 which had been struck down by this court in Retna Bai's case were applicable is unsustainable and is liable C.R.P.No.549 of 2006 :: 5 :: to be set aside. I do so. The appellate authority is directed to take back the appeal on file and dispose it of after hearing both sides in accordance with law. The appellate authority shall dispose of the case as expeditiously as possible. Civil Revision Petition is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//