IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 CRP.No. 199 of 2010() --------------------- C5.13236/1986 of TALUK LAND BOARD, PEERUMEDU .................... REVISION PETITIONER(S): PETITIONER: ----------------------------------------------------------- M/S. POABS GROUP ENTERPRISES, KUTOOR.P.O, THIRUVALLA, PATHANAMTHITTA DISTRICT, REPRESENTYED BY THE MANAGING DIRECTOR, P.A. JACOB. BY ADV. SRI.N.JAMES KOSHY RESPONDENT(S): RESPONDENTS: --------------------------------------------------- 1. TAHSILDAR, PEERUMEDE, IDUKKI DISTRICT. 2. TALUK LAND BOARD, PEERUMEDU, REPRESENTED BY ITS CHAIRMAN. 3. REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, CHALAKUZHI BUILDING, CMS COLLEGE ROAD, KOTTAYAM - 686 001. 4. M/S. RAM BAHADUR TAKUR LTD., “SIDHARTH”, 2ND MAIN ROAD, WELLINGTON ISLAND, KOCHI - 682 003, REPRESENTED BY ITS DIRECTOR, SRI. SAILESH SHARMA. Kss ..2/- ..2.... CRP.NO.199/2010 5. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM. *ADDL.R6 IMPLEADED: R6. M/S. RAM BAHADUR TAKUR LTD. (MMS GROUP), REPRESENTED BY ITS DIRECTOR, MANISH SHARMA, 1/15, DUTCH CEMETERY ROAD, KOCHI - 1. (*ADDL.R6 IS IMPLEADED AS PER ORDER DTD. 26/07/2010 IN I.A.NO.1822/2010) R1,R2 & R5 BY GOVERNMENT PLEADER R3 BY ADV. SRI.JOY THATTIL ITOOP, SC, EPF ORGANISATION ADDL.R6 BY ADVS.SRI.DEVAN RAMACHANDRAN, SRI.K.M.ANEESH. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRP.NO.199/2010 APPENDIX PETITIONER'S ANNEXURES: ANNEX.1: COPY OF THE SALE CERTIFICATE DTD. 18/09/2008. ANNEX.2: COPY OF THE JUDGMENT IN WP(C) NO.23797/2009 DTD.18/12/2009. ANNEX.3: COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DTD. 02/06/2009. ANNEX.4: COPY OF THE PETITION MINUS ANNEXURERS UNDER SECTION 85(8) FILED BY THE PETITIONER DTD. 25/01/2010. ANNEX.5: COPY OF THE ORDER DTD. 08/03/2010. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.199 of 2010 --------------------------------------- Dated this 14th day of October, 2011 ORDER Annexure-5, worded in the form of a letter, dated 08.03.2010 from the Chairman, Taluk Land Board, Peerumade to the petitioner, according to the learned Special Government Pleader as is authorised by Sec.100A(2A) of the Kerala Land Reforms Act (for short, "the Act”) is under challenge on various grounds including violation of principle of natural justice as embodied in Rule 14(3) of the Kerala Land Reforms (Ceiling) Rules, 1970 (for short, "the Rules”). 2. In respect of a large tract of land belonging to the Ram Bahadur Takur Limited (for short, "the RBT Ltd”) the TLB initiated proceeding and issued order on 13.11.1976 for surrender of excess land to the extent of 1444.36.000 Acres in Peermade and Elappara villages (originally the RBT Ltd was M/s.TTE Company Ltd.). There were challenges with respect to various orders passed by the TLB which as per the submission of learned Special Government Pleader concluded by the orders of this Court and the Supreme Court. While so, in respect of 343.72 Acres there was a public auction by the authorities under the C.R.P.No.199 of 2010 -: 2 :- Income Tax Act and Rules and the Provident Fund Act in which petitioner claims to have purchased the said 343.72Acres on 23.06.2008 on paying the bid amount. The Assistant Provident Fund Commissioner issued Annexure-A1, certificate of sale in favour of petitioner on 23.06.2008 stating that the said 343.72 Acres (details of which are given in the second page of Annexure- A1) was purchased in public auction by the petitioner for 1,74,50,000/- and stating that the sale became absolute on 23.06.2008. Since the revenue authorities of the State refused to effect mutation of the property in favour of petitioner pursuant to Annexure-I, certificate a union of the employees (as learned counsel claims, working under petitioner) approached this Court with W.P(C).No.23797 of 2009 and this Court passed Annexure-2, judgment on 18.12.2009. By that judgment the State of Kerala, the Secretary, Revenue Department and the District Collector, Idukki where directed to ensure that mutation of properties of M/s.RBT Ltd purchased by petitioner (impleaded as 7th respondent in that proceeding) is effected within one month from the date of receipt of a copy of the judgment. There was a direction to the petitioner (7th respondent in that proceeding) as to disbursement of the dues of the employees. Learned Judge made it clear that the judgment will not stand in the way of the C.R.P.No.199 of 2010 -: 3 :- Government proceeding against “the other properties of RBT Ltd, if available, for recovery of the amounts due to them from the RBT Ltd”. 3. It is the contention of petitioner that while so, on 16.09.2009 the Revenue officials of the State came to the said 343.72 Acres presumably to take possession thereof pursuant to the order passed by the TLB and a copy of Annexure-3, order dated 17.12.2009 was given to the petitioner. Thereon, petitioner filed Annexure-4, application to the TLB on 27.01.2010 making a claim over the said 343.72Acres under Secs.85(6) and (8) of the Act. To that application, the Chairman gave Annexure- 5, reply stating that the application could not be considered since it is filed after 60days from the date of Annexure-3, order. Annexure-5, letter or order, as the case may be, is under challenge. 4. Learned counsel contends that as seen from Annexure-I, certificate petitioner has purchased in auction the 343.72 Acres and as per the provisions of the Income Tax Act and the Provident Fund Act the purchase is free from all encumbrances which includes liability to surrender its excess land as well. It is argued that to inspire confidence and transparency in public auction conducted by public authorities it C.R.P.No.199 of 2010 -: 4 :- is necessary to ensure that the property is free from all such encumbrances, otherwise there will be no bidders in public auction which is not the policy of the Government. It is further argued that petitioner never got notice of the proceeding before the TLB and even going by Annexure-3, order it would appear that the TLB was aware of purchase of property in public auction by the petitioner but in spite of that, being as an interested party petitioner was not given notice of the proceeding. It is contended that the period of 60days provided under Sec.85(8) of the Act should be understood, so far as persons interested in the matter to whom notice of the proceeding is not given, as commencing from the date of knowledge of the order and viewed in that line, Annexure-4, application preferred by petitioner is within 60days of the date on which a copy of Annexure-3, order was served on petitioner and hence the Chairman of the TLB was not correct in taking a contra view in Annexure-5, order or letter as the case may be. Learned counsel has placed reliance on the decision of this Court in Krishnan Vs. Taluk Land Board, Vaikom (1979 KLT 209). It is also the contention of learned counsel that if not sub sec.(8), sub sec.(6) of Sec.85 of the Act and proviso thereto should come to the rescue of petitioner since there is dispute as to identity of the land in question - petitioner claiming that C.R.P.No.199 of 2010 -: 5 :- 343.72 Acres acquired as per Annexure-1, forms part of the land not so far taken possession by the Government from the RBT Ltd. Learned counsel has also invited my attention to Rule 14(3) of the Rules to contend that at any rate the Chairman could not have rejected the application in the way done by Annexure-5 without hearing petitioner. Learned counsel therefore requested that Annexure-5, letter/order be quashed and the proceeding may be remitted to the TLB for fresh decision to consider the claim of petitioner on merit. 5. Learned Special Government Pleader has contended that prima facie the application made by petitioner cannot stand since the TLB has initiated proceeding and passed orders for surrender of excess land as early as on 13.11.1976, petitioner is claiming right and possession over the 343.72 Acres only as per Annexure-1, certificate dated 23.06.2008 and hence that cannot affect the proceedings initiated in the year 1976. Learned Special Government Pleader submits that by virtue of Sec.86 of the Act the excess land has vested in the Government of the State and hence the question of any other authority, be it Central Government or any department under it conducting an auction of all or any portion of the excess land and transferring title and possession to the petitioner by Annexure-1, dated 23.06.2008 did C.R.P.No.199 of 2010 -: 6 :- not arise. It is also contended by the learned Special Government Pleader that for Sec.85(8) to apply, the acquisition from the declarant must have been before 01.01.1970 and that provision is intended to avoid the declarant executing documents after 01.01.1970 to defeat the provisions relating to excess land. It is argued that the Chairman is entitled and authorised to exercise the functions of the TLB by Sec.100A(2A) of the Act. 6. Learned counsel appearing for the additional 6th respondent has contended that this Court in exercise of its revisional power may not enter a finding as to the land which has been (allegedly) taken possession by the Government from the RBT Ltd. 7. For one thing, Annexure-5, order cannot stand. Reason is that under Rule 14(3) of the Rules the TLB shall not reject an application (under Sec.85(8) of the Act) without giving the application a reasonable opportunity of being heard. That provision apply to the Chairman also when he exercises the functions of the TLB by virtue of Sec.100A(2A) of the Act. Indisputably in this case, no such opportunity was given to the petitioner. Hence for that short reason Annexure-5, letter/order is liable to be set aside. 8. I shall also refer to the other contentions which C.R.P.No.199 of 2010 -: 7 :- learned counsel on both sides have addressed and which is required to be considered by the TLB. No doubt, Sec.85(8) says that transfers made by the declarant after 01.01.1970 are not to be recognised in considering the excess land liable to be surrendered by him. The TLB has to consider whether the said provision would apply to the facts of this case. It is required for the TLB to decide while considering the claim of petitioner whether to an acquisition in a public auction held by a public authority, the cut off date prescribed under Sec.85(8) of the Act would apply. Necessarily, the TLB shall also consider whether any authority, be it under the Central Government could sell in auction any portion of the excess land once it is vested with the Government by virtue of Sec.86 of the Act. I leave that matter to be decided by the TLB at the first instance. 9. The finding of the Chairman of the TLB in Annexure-5 that the claim made under Sec.85(8) of the Act is barred by limitation in that it is not preferred within 60days of Annexure-3, order does not appears to be correct. For, this Court in Krishnan Vs. Taluk Land Board, Vaikom (supra) has held in almost similar situation that the application need be filed within sixty days of the knowledge of the order. This Court held that in such situation, a person can make the application within 60 days C.R.P.No.199 of 2010 -: 8 :- of the knowledge of the order sought to be set aside. I must bear in mind that it was a case where claim was made under Sec.85(8) of the Act. Annexure-3, order shows that the TLB was aware of the public auction and acquisition by petitioner. Still, the TLB did not give notice of proceeding which culminated in Annexure- 3, order, to the petitioner. No other binding decision taking a different view has been brought to my notice. So far as the said decision stands, it has to be held that Annexure-4, application filed by the petitioner being within 60days from the date on which according to the petitioner a copy of Annexure-3, order was served on it, is within time. 10. If not under Sec.85(8) of the Act the claim made by petitioner under Sec.85(6) of the Act is also required to be decided by the TLB. For, petitioner has a case that the 343.72 Acres over which it claims right is not part of the property that has been taken possession by the Government from the RBT Ltd. Sub sec.(6) of Sec.85 of the Act deals with determination of identity of the land and the proviso to clause (C) thereunder states that in such determination if the interest of other persons are likely to be affected, they shall be afforded opportunity to be heard and the TLB shall pass suitable orders regarding the land to be surrendered. C.R.P.No.199 of 2010 -: 9 :- 11. This is not a case where the TLB was unaware of the claim being made by petitioner. For, as aforesaid in Annexure-3, order there is reference to the petitioner being the successful bidder (in the auction referred to in Annexure-1, certificate). In that view of the matter also the TLB should have given notice to the petitioner. 12. The result of my discussion is that Annexure-5, order or letter (as the case may be) cannot stand and the claim of the petitioner under Sec.85(6) or (8) of the Act is required to be decided by the TLB after giving an opportunity to the petitioner of being heard. The TLB while deciding the question shall also decide whether the claim being made by the petitioner is in respect of any land not taken possession by the Government from the RBT Ltd. The TLB shall issue notice to the petitioner for its appearance before it and dispose of the application as provided under the law after giving opportunity to the petitioner to produce its evidence. I make it clear that I have not expressed any final opinion on the contentious issues raised before me and referred to above except on the question of limitation for an application under Sec.85(8) of the Act. It is directed that until the TLB decides the issue after hearing petitioner also, possession of petitioner over the 343.72 Acres shall not C.R.P.No.199 of 2010 -: 10 :- disturbed. Petitioner is directed not to either transfer in any manner, encumber or transfer possession of the 343.72 Acres during the said period. The TLB shall expedite its proceeding and dispose of the application as early as possible, at any rate within a period of six months from this day. Civil revision is allowed as above. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-