IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 WP(C).No. 27275 of 2009(D) ------------------------------------- PETITIONER(S): ------------------------ SMT. KUNJAMMA DANIEL, W/O. DANIEL, PARAMKAM VEETIL KIZHAKKETHERU.P.O., KOTTARAKKARA, KOLLAM DIST. BY ADV. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SMT.U.M.FOUSIA SMT.RABIA BEEGAM T.K. SMT.BOBY M.SEKHAR SMT.FASHIYA YOUSEFF RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO LAND BOARD, REVENUE DEPARTMENT GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE TALUK LAND BOARD, KOTTARAKKARA. 3. THE TAHSILDAR, KOTTARAKKARA. 4. THE VILLAGE OFFICER, MELILA, KOLLAM DISTRICT. 5. THE DIST. COLLECTOR, KOLLAM. R1- R5 BY GOVERNMENT PLEADER MR. SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.N.RAVINDRAN, J. ---------------------------------------- W.P.(C) No.27275 of 2009 - ---------------------------------------- Dated 3rd December, 2009 Judgment The petitioner is the wife of the declarant in Ceiling Case No.327 of 1973 on the file of the Taluk Land Board, Kottarakkara. Initially, by order passed on 24.6.1976, the Taluk Land Board, Kottarakkara directed the declarant to surrender 9.30 acres of land as land held by him in excess of the ceiling area applicable to his family. He challenged the said order by filing C.R.P.No.4241 of 1976 in this Court. By order passed on 4.3.1977, this Court permitted the declarant to file a statement indicating the identity of the lands which he opts to surrender. The ceiling case was remanded for the said purpose. Thereafter, the declarant filed a re-option statement in which he claimed exemption of the lands covered by two gift deeds executed by him in the year 1993 in favour of his major sons Sri.Geevarghese and Sri.John. The declarant expired thereafter and the petitioner herein, his wife, was impleaded in the ceiling case. The Taluk Land Board thereafter passed an order dated W.P.(C) No.27275/2009 2 28.7.1981 directing surrender of 7.33.500 acres of land in Survey No.99/1A1-11 and 99/16 of Melila Village in Kottarakkara Taluk as land held by the family of the declarant in excess of the ceiling area. 2. The petitioner challenged the said order by filing C.R.P.No.3851 of 1981 in this Court. She contended that while passing the order dated 28.7.1981 the Taluk Land Board determined the area to be surrendered, without reference to the transfers effected by the declarant in favour of his children. By order passed on 16.10.1984 in C.R.P.No.3851 of 1981 this Court directed the Taluk Land Board to consider the said aspect also. All the children of the declarant were thereupon impleaded and notice was issued to them. They entered appearance and filed Ext.P10 statement dated 24.5.1988 raising various contentions. In paragraph 9 of the said statement, the children of the declarant stated as follows: “9. In determining the identity of lands to be surrendered by the declarant, we exercise our option as shown below:- W.P.(C) No.27275/2009 3 (1) The south-western portion in item No.6 of the draft namely Sy.Nos.99/1A-11, 99/1A/11A and 99/16 inclusive of the area now converted as road. 10. Hence it may be found that the family of the declarant is not liable to surrender any land. If it is found that the declarant's family is liable to surrender any land, the south-western portion of item No.6 in Part B of the Draft may be take possession.” 3. The Taluk Land Board thereafter passed Ext.P1 order dated 27.11.2000 whereby it directed the legal heirs of the declarant to surrender 7.03 acres of land as land held by the family of the declarant in excess of the ceiling area. While passing Ext.P1 order, the Taluk Land Board took note of the request made by the legal heirs of the declarant in Ext.P10 petition, accepted the said request and directed that the option statement filed by them shall be accepted. The Taluk Land Board also directed the Tahsildar, Kottarakkara to take possession of 7.03 acres of land after deducting 30.5 cents of land taken over for the formation of a public road by the Block Development Officer, Vettikkavala. Ext.P1 order passed by the Taluk Land Board has become final. W.P.(C) No.27275/2009 4 4. Long thereafter, the petitioner and one of her sons filed Ext.P3 representation dated 7.2.2003 before the District Collector, Kollam stating that possession of the excess land was not taken over, that they are in possession of the land and that possession of the lands ordered to be surrendered may be taken after allowing them to retain land having a road frontage of 125 metres lying to the north-west of the road that was formed by acquiring land from their predecessor in interest. It is stated in Ext.P3 that the road has a total length of 318 metres and that they had requested the revenue authorities to take possession of the excess land in such a manner that they are left with lands on the north-western side of the road having a road frontage of 125 metres. The District Collector rejected the said request and communicated his decision by Ext.P4 letter dated 11.4.2003 wherein he inter alia stated that possession of the land ordered to be surrendered was taken over on 28.2.2001. The District Collector held that after possession of the excess land was taken, the request in W.P.(C) No.27275/2009 5 Ext.P3 cannot be entertained. 5. The petitioner challenged Ext.P4 by filing W.P.(C) No.29971 of 2003 in this Court. On the short ground that before Ext.P3 representation was rejected the petitioner was not heard and also for the reason that no counter affidavit has been filed, this Court quashed Ext.P4 and directed the District Collector, Kollam to consider Ext.P3 petition afresh and to pass orders thereon. The petitioner thereupon submitted Ext.P6 representation dated 23.10.2008. On receipt of the said representation, the District Collector issued Ext.P7 letter dated 5.1.2009 calling upon the petitioner to be present for a hearing on 13.1.2009. The petitioner was heard and the District Collector thereafter sent Ext.P8 letter dated 19.8.2009 informing her that the request in Ext.P3 cannot be considered. Ext.P8 is under challenge in this writ petition wherein the petitioner seeks the following reliefs: “(i) to call for the records leading to Ext.P8 and quash the same by the issuance of a writ of certiorari; (ii) to declare that the petitioner is entitled to W.P.(C) No.27275/2009 6 retain the property as per the order of the Taluk Land Board and in terms of the option exercised by her/declarant and that the respondents 3 to 5 are liable to measure and demarcate the land in terms of Ext.P1 order of the Taluk Land Board and in terms of the option exercised by the declarant and in compliance with Ext.P5 judgment.” 6. The petitioner contends that possession of the excess lands has not been taken as claimed by the respondents and that while enforcing surrender, the area to be retained by the declarant and his family has to be surveyed and demarcated. Though there is lack of a specific plea in that regard, the learned counsel appearing for the petitioner contends that as the procedure prescribed in the rules was not followed and possession of the excess land has not been taken, the petitioner is entitled to have the request made by her in Ext.P3 considered and accepted. The petitioner also contends that the option exercised by the legal heirs of the declarant in Ext.P10 has not been accepted and acted upon. 7. A statement dated 9.11.2009 has been filed by the Additional Tahsildar, Kottarakkara on behalf of the third W.P.(C) No.27275/2009 7 respondent wherein it is stated that for the past more than 8 years, the land is in the possession of the Government and that steps have been taken to assign the excess land taken over from the declarant and his legal heirs to about 126 persons who have been found eligible for such assignment. It is contended that this writ petition is only an attempt by the legal heirs of the declarant to prevent the excess land being assigned and that the request made by the petitioner in Ext.P3 cannot be granted. 8. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The petitioner does not challenge Ext.P1 order passed by the Taluk Land Board. Ext.P1 order has admittedly become final. By Ext.P1, the Taluk Land Board accepted the option given by the legal heirs of the declarant in Ext.P10 petition and ordered that while enforcing surrender of 7.30 acres of land, the land acquired for the road namely, 30.5 cents shall be given credit to and that the excess land shall be taken in the manner opted W.P.(C) No.27275/2009 8 by the legal heirs of the declarant. The legal heirs of the declarant had in Ext.P10 petition, the relevant portion of which is extracted above, opted to surrender the south-western portion of item No.6 in the draft statement namely, the lands situated in Survey No.99/1A-11A and 99/16 of Melila village, Kottarakkara Taluk. Possession of the said land was also taken over as stated by the District Collector on 28.2.2001. Long thereafter, the petitioner moved the District Collector contending that possession of the excess land has not been taken and requested him to allow the legal heirs of the declarant to retain lands abutting the road which was formed by acquiring the land belonging to the declarant. The said request was rejected on the ground that the option once exercised cannot be changed. 9. In my opinion, the stand taken by the District Collector in Exts.P4 and P8 cannot be said to be arbitrary or illegal. The legal heirs of the declarant had in clear and unequivocal terms stated in Ext.P10 petition that possession of the lands situated W.P.(C) No.27275/2009 9 in the three survey numbers described above which lies on the south-western portion of item No.6 of the draft statement may be taken while enforcing surrender. They also wanted that such excess land should include the lands which was later converted into a road. The said request was also reiterated in the last paragraph of Ext.P10 petition. The petitioner has not proved by any cogent material that possession of excess land was not taken over in terms of the option exercised by the legal heirs of the declarant or that land other than the land opted for surrender was taken possession of. In this context, it is apposite to refer to the decision of a learned single Judge of this Court in George Joseph v. Taluk Land Board, Meenachil (1976 KLT 917) wherein it was held that the option once exercised and acted upon cannot be changed after the order of the Taluk Land Board has attained finality. It was held that with the passing of an order determining the excess land to be surrendered, the ownership thereof vests in the Government, that it can be revised only by this Court in W.P.(C) No.27275/2009 10 revision or by the Taluk Land Board itself under sub-sections (8) and (9) of section 85 of the Kerala Land Reforms Act and that the determination by the Taluk Land Board has to be treated as final in all other cases. As the petitioner has not been able to establish that the option given by the legal heirs of the declarant was not accepted and acted upon and as the provisions of the Kerala Land Reforms Act do not entitle the petitioner to have the option once exercised altered even without challenging the order of the Taluk Land Board, I am constrained to hold that the reliefs prayed for by the petitioner in Ext.P3 and in this writ petition cannot be granted. The legal heirs of the declarant wanted the road that was formed through the lands belonging to the declarant also taken over along with the lands lying by the side of the road as excess land. In such circumstances, at this belated stage, the petitioner cannot claim or be granted the reliefs prayed them. The writ petition is in my opinion an abuse of the process of the court and is liable to be dismissed. W.P.(C) No.27275/2009 11 I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. P.N.RAVINDRAN Judge vaa