IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 CRP.No. 343 of 2007() --------------------- AGAINST THE ORDER DATED 19/09/2006 IN TPY IN TLB.553/2006 of LAND TRIBUNAL, TALAPPILLY .................... REVN. PETITIONER(S)/CLAIMANTS 1 TO 3 & 5 TO 7: --------------------- 1. T.V.GANGADHARAN, S/O.APPUKUTTY @ VELU, THEKKEKARAYIL HOUSE, ATTOOR VILLAGE, TALAPPILLY TALUK,THRISSUR DISTRICT. 2. VELAYUDHAN,S/O.APPUKUTTY @ VELU, THEKKEKARAYIL HOUSE, ATTOOR VILLAGE, TALAPPILLY TALUK,THRISSUR DISTRICT. (DIED) 3. NARAYANANKUTTY, S/O.APPUKUTTY @ VELU, THEKKEKARAYIL HOUSE, ATTOOR VILLAGE, TALAPPILLY TALUK,THRISSUR DISTRICT. 4. SUBHADRA, D/O.APPUKUTTY @ VELU, THEKKEKARAYIL HOUSE, ATTOOR VILLAGE, TALAPPILLY TALUK,THRISSUR DISTRICT. 5. DEVAKI,D/O.APPUKUTTY @ VELU, THEKKEKARAYIL HOUSE, ATTOOR VILLAGE, TALAPPILLY TALUK,THRISSUR DISTRICT. 6. JANAKI,D/O.APPUKUTTY @ VELU, THEKKEKARAYIL HOUSE, ATTOOR VILLAGE, TALAPPILLY TALUK,THRISSUR DISTRICT. ADDL.PETITIONERS 7 TO 15: 7.KARTHIYAYANI, AGED 76, W/O.LATE VELAYUDHAN, THEKKEKARAYIL HOUSE, ATTOOR VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. 8.ARAVINDAKSHAN, AGED 53, S/O.LATE VELAYUDHAN, DO. DO. 9.LEELA,AGED 46, W/O.SUDHAKARAN, DO. DO. 10.YESODHA, W/O.VASU, DO. DO. CRP.343/07 11.RAJAN,AGED 46, S/O.LATE VELAYUDHAN, DO. DO. 12.PRABHAKARAN,AGED 45, S/O.LATE VELAYUDHAN, DO. DO. 13.SASIDHARAN,S/O.LATE VELAYUDHAN, DO. DO. 14.PUSHPALATHA, W/O.MUKUNDAN, DO. DO. 15.SUJATHA,W/O.ARAVINDAKSHAN, DO. DO. ADDL.P7 TO P15 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED 2ND PETITIONER VIDE ORDER DATED 10.3.2010 IN I.A.NO.663/2010 IN C.R.P.NO.343/2007. BY ADV. SRI.L.GOPALAKRISHNAN POTTI SRI.A.DINESH RAO RESPONDENT(S)/STATE AND CLAIMANT: --------------- 1. TALUK LAND BOARD, THALAPPALY, AND DEPUTY COLLECTOR (L.A), THRISSUR, TALAPPILLY TALUK,TALAPPILLY,THRISSUR. 2. THE TAHASILDAR, TALAPPILLY. 3. STATE OF KERALA REPRESETNED BY CHIEF SECRETARY,SECRETRIAT, THIRUVANANTHAPURAM. 4.PADMAVATHI,W/O.LATE RAMAN AND D/O.APPUKUTTY, MULLURKARA VILLAGE, TALAPPILY TALUK. GOVERNMENT PLEADER SRI.M.L.SAJEEVAN FOR R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/3/2010, THE COURT ON 09/04/2010 PASSED THE FOLLOWING: ORDER IN I.A.NO.1065/2007 IN C.R.P.NO.343/2007 DISMISSED 9.4.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.343 OF 2007 () ----------------------------------- Dated this the 9th day of April, 2010 O R D E R The revision is directed against the order dated 19.9.2006 in T.L.B.No.553/TPY passed by the Taluk Land Board, Talappilly. Revision petitioners and the 4th respondent are the children of one Appukutty @ Velu, against whom ceiling proceedings under the provisions of the Kerala Land Reforms Act and Rules, hereinafter referred to as the 'Act' and 'Rules' had been initiated by the Taluk Land Board, Talappilly. Pursuant to filing of ceiling return by the above said Appukutty (late), after conducting due enquiry, the Taluk Land Board issued notice to him with draft statement of his properties determining the excess area to be surrendered, directing for filing objections, if any. The declarant late Appukutty filed objections contending that the property held by him was joint family property and his possession of such land was only as a Kartha of such family. A substantial portion of his area had been acquired by the State under the Land acquisition CRP.343/07 2 proceedings was also canvassed to contend that no more land as excess area was required to be surrendered by him. The Taluk Land Board, after enquiry, negatived his contentions directing him to surrender excess area of 5.95 acres of land. That order of the Taluk Land Board was challenged by late Appukutty, the statement giver, by filing a revision as C.R.P.No.1952 of 1976 before this Court. The revision was, however, later dismissed as withdrawn. After the death of Appukutty, who passed away on 2.11.1982, his legal heirs, the revision petitioners and the 4th respondent moved petition before the Taluk Land Board, claiming that they are the members of a joint family and as such, the properties which were determined as land of late Appukutty with direction to surrender the excess area under the orders of the Taluk Land Board, is not binding on them. The claimants sought for a reconsideration of the orders passed by the Taluk Land Board directing surrender of excess area as if the property belonged to the late Appukutty, statement giver. Since there was nonconsideration of that application by the Taluk Land Board, they moved an original petition as O.P.No.2319 of 1990 before this Court, in which, a direction was issued to consider CRP.343/07 3 and dispose the claim of the claimants on merits. The Taluk Land Board after considering the claim, rejected the claim by order dated 25.5.1992. Against that order of the Taluk Land Board, the legal heirs of late Appukutty preferred a revision as C.R.P.No.1589 of 1992. That revision was disposed setting aside the order of the Taluk Land Board and remitting the case for fresh consideration after giving opportunity to the claimants to lead evidence to substantiate their claim. Pursuant to such remission, the claimants examined some witnesses and the Taluk Land Board after appreciating the materials tendered again rejected the claim by order dated 8.11.1993. That order of the Taluk Land Board was challenged by the claimants by filing C.R.P.No.2430 of 1993 before this Court. The order of the Taluk Land Board was set aside and the case was remitted again affording an opportunity to the claimants to prove their case. After such remission, some more witnesses were examined by the claimants in the enquiry. The Taluk Land Board after considering the materials produced in the proceedings again rejected the claim holding that the case set up by the claimants that the property belong to a joint family is false and directed for CRP.343/07 4 surrender of 5.95 acres as the excess land held by the declarant late Appukutty. Propriety and correctness of that order is challenged by the petitioners, the legal heirs of late Appukutty, the statement giver, filing this revision under Section 103 of the Act. 2. I heard the learned counsel for the revision petitioners and also the learned Govt.Pleader. Inviting my attention to the observations made in the order dated 25.6.2002 in C.R.P.No.2430 of 1993, the learned counsel for the revision petitioners/claimants contended that the question whether the statement giver, late Appukutty, was the Kartha of a joint family and whether the property was held by him in such capacity has become final and conclusive, and so much so, the Taluk Land Board went wrong after remission of the case under the order in the above revision in re-examining that question and entering a finding that the property did not belong to a joint family and the claim raised by the claimants on that count was false. In view of the conclusive finding entered by this Court in the revision that late Appukutty held the property as the Kartha of a joint Hindu CRP.343/07 5 family, it was not open to the Taluk Land Board to have any enquiry on that question again, and so much so, the finding to the contrary entered under the impugned order, according to the learned counsel, was perverse and to be treated as unworthy of any merit. The learned counsel further contended that if for any reason, the observations of this Court in the order passed in the above revision are to be treated as not conclusive and final, and, therefore, it was open to the Taluk Land Board to consider the question whether the property was held by a joint family of the petitioners as claimed by them, still sufficient materials have been produced before that authority establishing that the claimants are members of a joint family covered by the Hindu Mithakshara Law of inheritance and the properties were held by late Appukutty, the statement giver, as the Kartha of the joint family. Where the properties involved in the proceedings are shown to be the joint family property of the claimants, there is no land to be surrendered as excess area over the ceiling limit, and the claimants cannot be ordered to surrender any land on the basis of the excess area determined as against the statement giver, their predecessor, late Appukutty, is the submission of the CRP.343/07 6 counsel. The learned counsel for the claimants highlighting that a major portion of the property belonging to the family of the claimants, nearly an extent of more than 13 acres, had been acquired for public purpose by the Government pursuant to land acquisition proceedings, contended that out of the land remaining with them, a major portion is sought to be taken away by the State as excess area as if the entire land belonged to the declarant, the statement giver, late Appukutty. The order of the Taluk Land Board for surrender of the excess area determined is assailed by the counsel as unconscionable and thoroughly unjustified. Inviting my attention to Section 7E of the Act, which has been brought into the Act by way of the amendment under the Kerala Land Reforms (IInd Amendment) bill, 2004 (Act 21 of 2006), the learned counsel contended that in the case of transfer effected by land owners holding excess land and their transferees inducted into possession of such land, and who continued to be so at the commencement of the Land Reforms (Amendment) Act, 2005 subject to the limit of the land prescribed, they are given protection and, further, insulated from any challenge that the land transferred was in excess of the CRP.343/07 7 ceiling area of the previous owner, treating such transferees as tenants under the Act; but, in the case of a statement giver, declarant, who has filed ceiling returns in accordance with the provisions of the law, he is not only not given any concession in the determination of the excess area despite a major portion of his land had been acquired subsequent to the commencement of the Act for a public purpose under the Act. There is no reasonable classification for providing exemption to the tansferees who came into possession by way of transfers effected by land owners violating the provisions of the ceiling rules, submits the counsel. But such transferees are given status of tenant under Section 7E of the Act, and insulated from dispossession. The above provision, Section 7E of the Act, according to the counsel, is discriminatory, unreasonable and unjust. Where a land owner transfers his excess area to another violating the ceiling proceedings, the transferee would be entitled to claim exemption in the land not exceeding four hectares in extent if such transfer was after the Act but before the commencement of the Kerala Land Reforms (Amendment) Act, 2005, treating the transferee as a tenant under Section 7E CRP.343/07 8 of the Act, is pointed out by the counsel to contend that retaining the possession of the land after filing of the return under the ceiling rules would visit the landlord with the consequence of surrender of the excess land determined above the ceiling limit, but, not in the case where a transfer had already been effected by him violating the ceiling rules. Per contra, the learned Govt.Pleader submitted that there is no conclusive finding in the order passed in C.R.P.No.1952 of 1976 that the declarant, late Appukutty, as the Kartha of a joint Hindu family, held the land covered by the proceedings. No such case was presented by late Appukutty when he filed return under the ceiling rules, but, such a plea was taken after the Taluk Land Board issued a notice with a draft statement inviting objections, submits the Govt.Pleader. It is further submitted that late Appukutty had withdrawn the revision filed impeaching the order of the Taluk Land Board, and so much so, the order of the Taluk Land Board determining the excess area to be surrendered as against the statement giver has become final and conclusive. After the death of Appukutty, his legal heirs, revision petitioners and the 4th respondent had again set up a plea that the property held by late Appukutty, their CRP.343/07 9 predecessor, belong to a joint family and his possession was only as a Kartha of such family. The documentary evidence let in the case clearly demonstrate, according to the learned Govt. Pleader, that the plea so canvassed to resist the surrender of the excess area determined is unworthy of any merit. The order of the Taluk Land Board rejecting the claims of the petitioners does not warrant any interference in exercise of the revisional jurisdiction of this Court, in the proved facts and circumstances of the case, is the submission of the learned Govt. Pleader. 3. Has this Court in the order passed in the previous revision, C.R.P.No.2430 of 1993 has made a finding that the lease in favour of late Appukutty, the declarant, was taken by him as the Kartha of a family, the parties to which are governed by Mithakshara Law of inheritance, and so much so, it was not open to the Taluk Land Board on remission of the case to have any further enquiry on that question and to take a different view that the claimants are not members of a family governed by Mithakshara Law is the most significant question that emerges CRP.343/07 10 for consideration in view of the challenges canvassed on that ground against the impugned order. In the order disposing the above revision remitting the case for fresh consideration, this Court has observed as follows:- “The oral evidence of the witnesses will show that the properties were jointly enjoyed by the petitioners and their father and it was not the absolute properties of their father. The grievance of the petitioners is that the first respondent without properly considering the evidence dismissed the application. Even if the lease was taken by Appukutty @ Velu, he was the Kartha of the family and the parties are governed by Mithakshara Law of inheritance, the acquisition of land would be for the family. The fact that Appukutty was the Kartha of the family is not disputed by the respondent. If the properties acquired on lease by Kartha, it could be for and on behalf of the other members of the family also. The 1st respondent (Taluk Land Board) did not consider this fact while passing the order.” The observations made above are canvassed by the learned counsel for the revision petitioners as if a conclusive finding had been entered by this Court that the claimants are members of a CRP.343/07 11 joint family governed by Hindu Mithakshara Law of inheritance, and so much so, no further enquiry by the Taluk Land Board with respect to that case canvassed by the claimants as done after remission of the case by the remand order in the above revision was impermissible. I do not find any merit in the submission. After making the above observations, this Court has remitted the case with the specific direction to the Taluk Land Board “to consider whether leasehold right was acquired by late Appukutty for and behalf of the family consisting of the petitioners”. If there was a conclusive finding expressing a view that the lease taken by late Appukutty would enure to his family, which is claimed to be a joint family, the direction as indicated above to examine whether the lease was acquired by late Appukutty for and on behalf of his family was quite unnecessary. The question whether the lease taken by late Appukutty was as the Kartha of a joint family as claimed by the revision petitioners, his legal heirs, was left open to be determined on the materials to be produced in the case. The fact that the Govt.Pleader who appeared in the above revision did not dispute that late Appukutty was the Kartha of the family as claimed by his legal heirs, the revision CRP.343/07 12 petitioners herein, does not give rise to a conclusion that a finding had been entered by this Court while remitting the case that the family of late Appukutty was a joint family governed by Hindu Mithakshara Law of inheritance. 4. It is interesting to note on perusal of the records of the case that the lease was not taken by late Appukutty, but ,by his father as evident from a registered release deed executed by the sister of late Appukutty in his favour releasing her right over the leasehold property involved in the proceedings before the Taluk Land Board. A copy of the registered release deed No.882 dated 28.10.1969 executed by Valli, the daughter of Krishnan, sister of late Appukutty, releasing her right over the leasehold property in his favour demonstrate that the property was taken on lease by their father late Krishnan and not by late Appukutty, the declarant, the statement giver in the proceedings. Certified copy of that release deed was produced by none other than the late Appukutty in the proceedings before the Taluk Land Board. So much so, the release of the rights of his sister over the leasehold and obtained by late Appukutty demonstrate in unequivocal CRP.343/07 13 terms that the lease was taken not by him, but, by his father late Krishnan from the Pathirappilly Mana, and, even in 1969, his sister as one among the legal heirs had subsisting rights over the leasehold. The claimants, after remission, it is seen, has produced photocopies of two other release deeds executed by late Krishnan, the father of late Appukutty in favour of Kunjan, another son of the above said Krishnan. Those release deeds are seen executed after 1.4.1964. There is no dispute that the aforesaid release deeds of late Krishnan, all relate to the property covered by the proceedings, over which later tenancy was obtained by late Appukutty. One of the release deeds had been executed in favour of late Appukutty and the other two in favour of another son of late Krishnan by some of his legal heirs, is also indicative that the case canvassed that the land was possessed by a joint family and late Appukutty, as the Kartha of the family held the land, is not at all correct. Oral evidence let in the case as if the lease was taken by late Appukutty from the land owner, Pathirappilly Mana, to get over the order passed by the Taluk Land Board to surrender the excess area over the ceiling limit possessed and owned by late Appukutty by the CRP.343/07 14 revision petitioners, his legal representatives, that too, after a conclusive decision had been entered into as against their predecessor, late Appukutty by the Taluk Land Board, setting forth a case that the family of late Appukuytty is a joint family governed by Hindu Mithakshara Law of inheritance, is unworthy of any merit. It is also seen that late Appukutty, the declarant, in his individual capacity, applied for assigning tenancy right over the leasehold before the Land Tribunal, and, that was accordingly granted by the Land Tribunal ordering issue of purchase certificate in his favour. In the return filed in respect of his property by the late Appukutty also, it is seen that he has included his family, only his children and grandchildren. 5. Admittedly, a major portion of the leasehold enjoyed by late Appukutty was acquired for a public purpose. In respect of the compensation payable for such acquisition, there was a suit before the civil court as O.S.No.180 of 1980 before the Sub Court, Thrissur instituted by the erstwhile jenmies of the land. Copy of the judgment rendered in that suit form part of the records of the case. The declarant, late Appukutty, 2nd defendant CRP.343/07 15 in the suit, resisted the claim contending that he had obtained tenancy right over the property, and he alone is entitled to collect compensation. One among the issues raised in the suit was whether he had tenancy right over the property as claimed. On the death of late Appukutty during the pendency of the suit his legal representatives including the present revision petitioners were brought on record as additional defendants, and they resisted the suit claim. After trial, the suit filed by the jenmies was dismissed holding that the 2nd defendant, late Appukutty, alone was entitled to claim compensation fixed under the award. There was no whisper that the entitlement of late Appukutty to collect such compensation was as the tenant of a joint family, but the very defense was that he, as the tenant, is entitled to such claim. That claim was prosecuted by the present revision petitioners, his children after his death in the suit. It is an admitted fact that the earlier order passed by the Taluk Land Bord was challenged by late Appukutty, the declarant, by filing a revision, but, later, it was dismissed as withdrawn. Late Appukutty, declarant, had also canvassed a case resisting the surrender of the excess area determined by the Taluk Land CRP.343/07 16 Board, raising a plea that the property was enjoyed by him as the Kartha of a joint family. It was long after the dismissal of the revision, his children, the revision petitioners, have come up with the very same case, and by virtue of orders obtained by filing the original petition for consideration of that claim they have been successfully resisting the surrender of the excess area as due from the declarant, late Appukutty under the orders of the Taluk Land Board. There is absolutely no merit in the case canvassed by the legal heirs of late Appukutty that the properties covered by the lease had been taken and enjoyed by him as the Kartha of a joint Hindu family governed by the Hindu Mithakshara Law of inheritance. Oral evidence let in by the claimants, the legal representatives of late Appukutty, militating against the documentary evidence, the registered release deeds obtained by the declarant, late Appukutty, from his sister and brothers and also the judgment passed in the civil case, as indicated above, has no merit at all. The case canvassed by the claimants that they are the members of a joint Hindu family is devoid of any value. CRP.343/07 17 6. The exemption provided under Section 7E of the Act in favour of the transferees, who came into possession after the Act, but, before the commencement of the Land Reforms (Amendment) Act, 2005, from persons who held land in excess of the ceiling area treating them as tenant subject to the extent of land specified as under Section 7E of the Act has been canvassed by the counsel to impress upon me that an unjust treatment had been meted out to the claimants/the revision petitioners in directing them to surrender the excess area determined by the Taluk Land Board despite a major portion of that land covered by the ceiling proceedings of the statement giver had been acquired for a public purpose in the State. Needless to point out, in a revision under Section 103 of the Act, it is not open or permissible for this Court to examine the constitutional validity of a statutory provision and any challenge against Section 7E brought into the Act by way of amendment under the Kerala Land Reforms (IInd Amendment) bill, 2004 (Act 21 of 2006), on the ground that it is unconscionable and amounts to discrimination as between land owners, who had effected CRP.343/07 18 transfers of excess land in violation of the ceiling rules and those who continued to retain possession of such excess land cannot be entertained by this Court. The legislative wisdom in bringing such an amendment if it is open to challenge for any reason whatsoever can be assailed only as provided by law, but, it has to be pointed out that Section 7E under the Amendment Act has been brought in to protect the interest of the occupant in possession of any land which had been obtained land from the land owners holding excess area over the ceiling limit, subject to the conditions envisaged thereunder treating them as tenants, and, thus, protecting such occupier from eviction. May be such protection given to the occupier would enure to the transferor, the land owner, who had transferred his land in excess of the ceiling area fixed under the Act. Further more, from the second proviso to Section 84 (4) of the Act makes it abundantly clear that the Taluk Land Board is having authority if it is satisfied that the transfer of the land made by a person in possession of excess land is calculated to defeat the ceiling provisions to take into account the land so transferred in