IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 CRP.No. 2786 of 2002() ------------------------------- AGAINST THE ORDER DATED 31/07/2002 IN TLB/NTA IN CC.13/1990 of TALUK LAND BOARD, NEYYATTINKARA .................................... REVN. PETITIONER(S): PETITIONER: --------------------------------------------------- 1. N.S. VIJAYA RAGHAVAN, S/O. SREEDHARAN UNNI, AGED 51, 'DWARAKA, METTUKADA, THYCAUD, TRIVANDRUM-14. (DIED) 2. SMT. RENJITH KUMARI, W/O. (LATE)VIJAYA RAGHAVAN, DWARAKA, METTUKADA, THYCAUD, TRIVANDRUM-14. (IMPLEADED AS ADDITIONAL 2ND PEITIONER VIDE ORDER DATED 28.1.2009 IN .A. NO.156/09) BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. THE TALUK LAND BOARD, NEYYATTINKARA. SPECIAL GOVERNMENT PLEADER MR. M.L. SAJEEVAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------- C.R.P.No. 2786 of 2002 ------------------------------- Dated this the 21st day of December, 2009. O R D E R The revision petitioner is one of the legal heirs of deceased declarant. Revision petition is filed challenging the order of the Taluk Land Board, Neyyattinkara dated 31.07.2002. 2. The revision petitioner is claiming right, title and interest over 3.45 acres of land in Survey No.2952 of Keezhvallam village. The property claimed by the revision petitioner originally belongs to his father. He obtained title to the property by virtue of Gift deed executed by the father in his name on 14.12.1972. 3. The declarant passed away on 28.10.1973. The declarant's wife, Smt.Devaki Amma filed objection in response to the notice issued by the Taluk Land Board. After hearing, the Taluk Land Board by its order dated 30.12.1975 declared that the deceased declarant hold land in excess of the ceiling area, that 8.33.787 acres of land is held by him as excess land and therefore issued order directing his legal heirs to surrender the said extent. C.R.P.No.2786/02 2 4. Taluk Land Board passed the aforesaid order after conducting inquiry as contemplated under sec.85(7) of the Kerala Land Reforms Act. The Taluk land Board initiated proceedings against the declarant's wife and three minor children. Admittedly the revision petitioner is not included as a member of the statutory family on the basis of the enquiry report stating that there are only three minors in the family. Finding that the property gifted in favour of the petitioner was also included as land owned and held by the declarant, the revision petitioner filed a petition under section 85(8) Land Reforms Act claiming right, title and interest of the said extent. 85(8) petition was filed on 4.1.1996. 5. Original order dated 30.12.1975 was challenged by Mrs. Devakiamma before this court. This court modified the order passed by the Taluk Land Board and held that the extent of land liable to be surrendered by the declarant and statutory family is reduced to 6.8.787 acres of land. 6. After the Amendment Act 27 of 1979 came into force, the Taluk Land Board reopened the case and issued notice to the C.R.P.No.2786/02 3 parties to file a fresh statement. Contesting parties filed objections. The Taluk Land Board after conducting detailed enquiry again passed order on 5.4.1980 holding that the declarant was in possession of only 12.99.696 acres as on 1.1.1970 and that the declarant has no excess land to surrender as on 1.1.1970. 7. The Taluk Land Board, after a gap of 10 years, again issued notices on 19.01.1990 to Devaki Amma and others reopening the case under section 85(9 A) of the Amendment Act. the Taluk Land Board after considering the objection again hold that there is no irregularity or reason to reopen the case finally decided on 5.4.1980. Taluk Land board thus again dropped the proceedings initiated under section 85(9A) of the Act as per order dated 28.5.1992. In the revision petition filed by the State of Kerala, numbered as CRP 755/1993 this court partly set aside the order dated 28.5.1992 and directed the Taluk Land Board to reconsider the case on certain points noted in the judgment. 8. It is contended by the revision petitioner that he was a major as on 1.1.1970 and also was having the status of a married C.R.P.No.2786/02 4 person as on 1.1.1970. It is further submitted that he got married on 1969 and that at that time he was aged 19 years. The question to be examined by this court in the light of the contention raised by the revision petition is as to whether he is entitled to the benefit conferred by section 84 (1A) of the Land Reforms Act. Sec.84(1 A) confers benefit on the major children of the declarant and married minor child of the declarant. The section confers benefit in the case of gift deed executed by the declarant in favour of the aforesaid categories of children between 1.1.1970 and 5.11.1974. If the petitioner is able to show that he is a major as on 1.1.1970, by virtue of the gift deed under which he claims title, he is entitled to contend that the extent covered by the gift deed shall be excluded from the declarant. This court while in the course of hearing of this matter, passed an interim order dated 1.1.2009 directing the District Collector to hold an enquiry to verify the age of the revision petitioner. This court directed the District Collector, Thiruvananthapuram to enquire the matter through Tahsildar and directed to report whether the petitioner had attended any school and if so, report the date of birth in the school records. The District Collector, in the report dated 26.2.2009 reported that the revision petitioner C.R.P.No.2786/02 5 had not obtained any primary school education and therefore it is not possible to verify the correct date of birth of the appellant . 9. Sec. 85(7) mandates enquiry before issuing notice, calling upon the declarant to file objection in the proceedings for determination of the excess land. sec.87 contemplates an enquiry. In the enquiry conducted by the Land Board it is revealed that statutory family consists of five members, namely, declarant, his wife and three minor children. The enquiry further revealed that revision petitioner was a major as on 1.1.1970. On the basis of the enquiry, notice was issued to Devaki Amma, her objection was considered and the Taluk Land Board by its order on 13.12.1975 directed the statutory family to surrender 8.33.787 acres of land which was subsequently reduced to 6.68.787 acres of land in the civil revision petition. After the Amendment Act 27 of 1997 again the Taluk has reopened the case and the matter was considered afresh. The revision petitioner and others were heard. A detailed enquiry was conducted and the the Taluk Land Board held that 3 acres and 45 cents claimed by the revision petitioner is liable to be excluded from the account of the assessee u/s. 84 (1 A) of the Act. The C.R.P.No.2786/02 6 above said circumstances will go to show that there was occasion to consider the claim of the petitioner twice and the Taluk Land Board passed orders holding that claimant's property is liable to be excluded from the account of the assessee. 10. After a lapse of 10 years from the date of the second order the Taluk Land Board reopened the case u/s. 85(9 A). Notice was issued to the petitioner and others. By the order dated 28.5.1992 the Taluk Land Board dropped the proceedings initiated under section 85(9A) of the Act. In the civil revision petition, CRP.755/93 this court remanded the case to consider whether the revision petitioner is entitled to hold an extent of 3.45 acres of land; whether he was a minor as on 1.1.1970; whether he is a married person on 1.1.1970 etc. After remand the petitioner produced marriage certificate, copy of horoscope etc. I have already discussed the enquiry made by the Taluk Land Board regarding the status of the revision petition on three occasions. After due enquiry the Taluk Land Board found that he was a major as on 1.1.1970 and therefore not included as a member of the statutory family. Simply because his age was shown as 19 years in the gift deed executed in 1972, It is not C.R.P.No.2786/02 7 possible for this court to conclude that he was a minor as on 1.1.1970. The age shown in conveyance deed may or may not reflect the correct age and that was not a sole reason for reopening the case which was settled after thorough enquiry on several occasions. The petitioner has produced the horoscope since he is not a person who has attended the school. The only document which is available with him is horoscope. Horoscope shows that he was born on 17.12.1950. The said document shows that he is a major on 1.1.1970. There are no materials to find that he is a minor on 1.1.1970. Moreover, he has produced the marriage certificate which would go to show that he is a married person as on 1.1.1970. Even if it is assumed that he is a minor as on 1.1.1970, if he is a married minor as on 1.1.1970, he is entitled to the benefit as per Sec.84 (1 A) of the said Act. In these circumstances, the property claimed by the revision petitioner by virtue of the gift deed is excluded from the account of the declarant. Consequently the extent liable to be surrendered shall be the extent less 3.45 acres covered by gift deed No.3434/72. C.R.P.No.2786/02 8 11. This court in the final order in CRP 755/93 directed the Taluk Land Board to consider the question regarding the easement of land necessary for the convenient enjoyment of the house. The said question was considered by the Taluk land Board. The Taluk Land Board held that the legal heirs of the declarant failed to produce records to establish that one acre of land is required for the convenient enjoyment of the dwelling house. Taluk Land Board by the order dated 28.5.1992 exempted the additional one acre of land for the convenient enjoyment of the house and appurtenant tenements. After remand the Taluk Land Board by the impugned order held that for want of evidence the exemption of one acre allowed for the convenient enjoyment of house is liable to be cancelled. The counsel for the revision petitioner submits that 40 cents of land in a remote village area exempted for the house is not sufficient for the convenient enjoyment of the residential building and appurtenant tenements. Learned counsel for the revision petitioner also submits that the said 40 cents includes the private road portion leading to the residential property and that there are other constructions in the compound. Therefore it is submitted that a reasonable additional area may be exempted under this head. C.R.P.No.2786/02 9 The Taluk Land Board before remand, granted one acre of land in addition of 40 cents for the convenient enjoyment of the house. Taking a lenient view a further exemption of 35 cents is allowable under this head. In view of the modifications made, Taluk Land Board shall exclude 3.45 acres of land and an extent of 35 cents additionally, granted for the convenient enjoyment of the house. A revised order may be passed directing surrender of excess land less the extent stated above. The Civil revision petition is partly allowed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sou.