IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 OP.No. 29144 of 2000(T) ----------------------- PETITIONER(S): --------------- MOHAMMED ALIAS KUNHU, S/O.ALAVIKUTTY, POOTHANGODAN, P.O.PANDALOOR, VIA.PANDIKADU, MALAPPURAM DIST. BY ADV. SRI.BABU KARUKAPADATH SRI.M.A.ABDUL HAKHIM RESPONDENT(S): --------------- 1. TALUK LAND BOARD, ERANAD, REP. BY ITS CHAIRMAN & DEPUTY COLLECTOR, LAND REFORMS, MALAPPURAM. 2. CHAIRMAN, TALUK LAND BOARD, ERANAD AND DY. COLLECTOR (LR), MALAPPURAM. 3. ADDITIONAL TAHSILDAR, ERANAD. 4. VILLAGE OFFICER, PANDALOOR VILLAGE, P.O.KADANBODE VIA. MANJERI. GOVERNMENT PLEADER SHRI.K.RAMESH THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 29144/2000. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER DTD.16.8.91 BY R1. P2. COPY OF THE NOTICE DTD.29.5.92. P3. COPY OF THE OBJECTION DTD.2.6.92. P4. COPY OF THE NOTICE DTD.11.4.2000. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 29144 of 2000 ================== Dated this the 24th day of May, 2010 J U D G M E N T The petitioner's father, late Alavikutty was a declarant under the ceiling provisions of the Kerala Land Reforms Act. The Taluk Land Board passed an order directing the said Alavikutty to surrender excess land. As per the order in CRP 903/1988 the said order was quashed and the matter was remanded to the Taluk Land Board, Eranad, for fresh disposal. After remand, the Taluk Land Board passed Ext.P1 order dated 16.8.1991 determining the area in possession of the petitioner's father as 32 acres and 74.5 cents and after excluding the 15 acres as the ceiling area liable to be retained by the family, directing the declarant to surrender of 17 acres 74.5 cents as excess land. The petitioner submits that this 32 acres and 74.5 cents land was determined taking into account certain properties in possession of the tenants also, which contention was rejected and those properties were also included in the total area in possession of the petitioner's late father. The legal heirs of late Alavikutty were permitted to opt the land to be so surrendered. After deducting the area already taken over by the respondents, 8 acres 14.500 acres were to be further surrendered by the legal heirs of late Alavikutty, out of which, in respect of 7 acres 19.5 cents they pointed out the properties to that extent in survey No.292/2, which was found to be in possession of the late Alavikutty. o.p.29144/2000 2 But, instead, by Ext.P4 the legal heirs were directed to surrender 0.47 acres of land in re-survey no.509, 0.48 acres in re-survey Nos. 298/7A and 508/2 and 7.19.5 acres in resurvey no.297/2. The petitioner is aggrieved by that direction in Ext.P4 to surrender 7 acres and 19.5 cents in re-survey no.297/2. According to him, the legal heirs are bound to surrender 7.19.5 acres as opted by them. The petitioner's contention is that the legal heirs are prepared to surrender 7 acres and 19.5 cents of land found to be in possession of late Alavikutty. The respondents have rejected the contention of late Alavikutty and the legal heirs stating that certain properties are in possession of tenants. They cannot refuse to take possession of that property simply because they are in the possession of tenants. Insofar as that property is the property found to be in possession of Alavikutty, the legal heirs of Alavikutty are entitled to opt to surrender any of the properties in possession of Alavikutty as found in Ext.P4 order and the respondents cannot take the stand that they would take only other properties, is the contention of the petitioner. 2. The 2nd respondent has filed a counter affidavit seeking to controvert the contentions of the petitioner. In the same, the contentions appear to be that the property offered for surrender is in possession of tenants and therefore the legal heirs are liable to o.p.29144/2000 3 surrender the property as directed in Ext.P4. 3. I have considered the rival contentions in detail. 4. Admittedly, by Ext.P1 order, the land in possession of late Alavikutty has been determined. Out of the same, certain land has been directed to be surrendered. The legal heirs of late Alavikutty are entitled to opt to surrender any of the properties found to be in possession as per Ext.P1 and to opt to retain balance 15 acres. As rightly pointed out by the learned counsel for the petitioner, after finding that certain properties in the hands of the tenants are also includable in the total area in possession of the late Alavikutty, later on the Government cannot take the contention that the land in possession of the tenants cannot be surrendered and the land in actual possession of the legal heirs has to be surrendered. The legal heirs of late Alavikutty are entitled to opt to surrender any of the properties found to be in possession of late Alavikutty as per Ext.P1 and to retain the balance. In the above circumstances, insistence in Ext.P4 that the legal heirs should surrender those properties pointed out by the respondents cannot be accepted. Whether in the possession of the tenants or not, if the property is included in the total properties found to be in possession of late Alavikutty, the legal heirs are entitled to opt to surrender any of those properties and the respondents cannot insist a o.p.29144/2000 4 particular portion of the property alone would be taken possession as excess land. Accordingly, Ext.P4 to that extent is quashed. The respondents shall take possession of only those properties which are opted by the legal heirs of late Alavikutty to be surrendered which are included in the total area covered by Ext.P1. The original petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 29144 of 2000-T ================== J U D G M E N T 24th May, 2010