IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 14454 of 2007(U) ----------------------------------------- PETITIONER(S): ------------------------ M.K.VASUDEVAN, MOKKERIL HOUSE, PUTHUPPALLIPURAM, KOLLAMMURI ROAD, EDAPPALLY P.O., ERNAKULAM. BY ADVS.MR.P.JAYAKUMAR MR.V.G.ARUN MR.T.R.HARIKUMAR MR.P.JAYAKUMAR RESPONDENT(S): ------------------------- 1. THE TALUK LAND BOARD, NORTH PARUR. 2. THE SECRETARY, LAND BOARD, TRIVANDRUM. 3. THE DISTRICT COLLECTOR, ERNAKULAM. 4. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, TRIVANDRUM. *ADDL. R5 TO R18 ARE IMPLEADED 5. M.B .PRAKASAN, AGED 62 YEARS, MALOTH HOUSE, MNRA 62, KOLLAMMURI ROAD, EDAPPALLY P.O., KOCHI 682 024. 6. V.RAVINDRAN NAIR, AGED 73 YEARS, LATHA NIVAS, MNRA KOLLAMMURI ROAD, EDAPPALLY P.O., KOCHI 682 024. 7. M.K.VIDHYADHARN, AGED 62 YEARS, MEKKERIL HOUSE, MNRA 66, KOLLAMMURI ROAD, EDAPPALLY P.O., KOCHI 682 024. W.P.(C) NO.14454/2007 8. K.T.BHADRAN, AGED 38 YEARS, KOLLAMMURI PARAMBIL MNRA 80, KOLLAMMURI ROAD, EDAPPALLY P.O., KOCHI 682 -024. 9. A.P.REMA, AGED 43 YEARS, KOLLAMMURI PARAMBIL, MNRA 80, KOLLAMMURI ROAD, EDAPPALLY P.O., KOCHI 682 024. 10. K.T.JAYAN, AGED 47 YEARS, KOLLAMMURI PARAMBIL, MNRA 80, KOLLAMMURI ROAD, EDAPPALLY P.O., KOCHI 682 024. 11. B.V.GEORGE, AGED 44 YEARS, BRAHMAKULATH, MNRA 82, KOLLAMMURI ROAD, EDAPPALLY P.O., KOCHI 682 024. 12. B.V.VARGHESE, AGED 69 YEARS, BRAHMAKULATH, MNRA 83, KOLLAMMAURI ROAD, EDAPPALLY P.O., KOCHI 682 024. 13. DEVASSY KAITHAMATTOM AGED 49 YEAR, KAITHAMATTOM, MNRA 86, KOLLAMMURI ROAD, EDAPPALLY P.O., KOCHI 682 024. 14. M.B.SURESH, AGED 47 YEARS, AGED 47 YEARS, MALOTH HOUSE, PEECHINGAPARAMBU ROAD, EDAPPALLY NORTH P.O., 682 024. 15. V.S.BEENA, AGED 50 YEARS, MALOTH HOUSE, PADAM ROAD, VADUTHALA. 16. SREEJAN AGED 34 YEARS, VENGATHANATHU (H), VENGALLOOR P.O., THODUPUZHA, IDUKKI 685 584. 17. GEORGE LINDON, 41 YEARS, THOLATT HOUSE, KUMBALANGHI, COCHIN 682 007. W.P.(C) NO.14454/2007 18. JALAJA, AGED 56 YEARS, PANDARAPARAMBIL (H), PARAMARA ROAD, COCHIN 682 018. ADDL. R5 TO R18 ARE IMPLEADED AS PER ORDER DTD. 14.7.09 IN IA. 8474/09. ADDL. R19 IS IMPLEADED 19. THE KALAMASSERY MUNICIPALITY, REP.BY IS SECRETARY. ADDL. R19 IS IMPLEADED AS PER ORDER DT.30.09.2009 IN IA. NO.4930/2009. *ADDL. R20 & R21 ARE IMPLEADED 20. G.SREEKUMARAN NAIR, S/O. JANARDHANAN PILLAI, ''SREENILAYAM'' EDAPPALLY P.O., PIN. 682 024, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK. 21. A.SREEKUMARI, W/O. G.SREEKUMARN NAIR, DO. DO. ADDL. R20 & R21 ARE IMPLEADED AS PER ORDER DTD. 14.12.2009 IN11644/2008. R1 TO R4 BY GOVT. PLEADER MR.K.SANIL KUMAR ADDL. R5 TO R18 BY ADV. MR.ANTONY M. AMBAT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.14454/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER IN SMP. 1745/1976 DTD. 17.9.77 OF THE SPECIAL TAHSILDAR. P2:- COPY OF THE RECEIPT NO.98 DTD. 14.12.77. P3:- COPY OF THE PURCHASE CERTIFICATE NO.1584 DTD. 14.12.77. P4:- COPY OF THE TAX RECEIPT NO.48 DTD. 27.2.1980. P5:- COPY OF THE TAX RECEIPT NO.45 DTD. 15.2.1991 AND RECEIPT NO.36 DTD. 7.10.88. P6:- COPY OF THE RECEIPT NO.53 DTD. 15.2.97. P7:- COPY OF THE MORTGAGE DEED DTD. 28.1.93. P8:- COPY OF THE ENCUMBERANCE CERTIFICATE NO.3994 DTD. 5.7.97. P9:- COPY OF THE PATTA DTD. 238.8.06. P10:- COPY OF THE PETITION FILED BEFORE THE TALUK LAND BOARD DTD. 23.4.07. P11:- COPY OF THE PETITION FILED BEFORE THE DISTRICT COLLECTOR DTD. 24.4.07. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC,J. --------------------- W.P.(C).No.14454 OF 2007 ------------------------ Dated this the 30th day of September, 2009. JUDGMENT Petitioner submits that he is in possession of 1.66 acres of land in Sy. No.671/6,672/6,672/1,671/14A and 671/14B of Thrikkakkara North Village in Kanayannur Taluk of Ernakulam District. According to the petitioner, he obtained the said land initially on lease from Smt. Sathi Sathyadevan, the original land lord. Petitioner submits that since 1965, he has been in possession of the land and has also constructed a residential building where he is residing. It is stated that subsequently suo moto proceedings under Section 72 of the Kerala Land Reforms Act were initiated which ultimately resulted in Ext.P3 purchase certificate issued in his favour, in respect of the aforesaid property. WP(c).No.14454/07 2 2. Subsequent to Ext.P3, petitioner submits that the Taluk Land Board initiated proceedings against Smt. Sathi Sathyadevan, the original land lord, which included 1.66 acres of land held by the petitioner. Petitioner there upon approached the Taluk Land Board requesting that in view of the lease in his favour and the purchase certificate issued, the land should be exempted from the proceedings. However, the land was held to be excess land liable to be vested in Government and on that basis, the petitioner's application was also rejected. It is stated that against the said order of the Taluk Land Board, the petitioner filed CRP.No.2269/88, which was also dismissed by this court. 3. As the proceedings thus concluded against the petitioner, he made an application for assignment of 17 cents of land out f 1.66 acres referred to above, where he had constructed a residential house and after completing the proceedings, by Ext.P9, the said plot was assigned in his favour. Still later, petitioner came to know from news paper reports that the remaining portion of 1.66 acres of land was proposed to be assigned to landless people and at that stage WP(c).No.14454/07 3 petitioner submitted Ext.P10 application before the Taluk Land Board claiming the benefit of Section 7E of the Kerala Land Reforms Act. This application is pending. 4. In the meanwhile, apprehending that the land in question is likely to be assigned to landless people, this writ petition was filed and this court had passed an interim order on 4.5.2007 staying further proceedings before the Taluk Land Board in the ceiling case. When the matter was taken up for hearing, counsel for the petitioner submits that the petitioner is entitled to the benefit of Section 7-E of the Act which provides that any person, who had at the commencement of the Kerala Land Reforms(Amendment) Act 2005 was in possession of land not exceeding 4 hectors acquired by him or his predecessor in interest by way of purchase or otherwise , shall be deemed to be a tenant. It is submitted that if the benefit of the said provision is extended, petitioner is entitled to be assigned the remaining portion of 1.66 acres as prayed for by him in Ext.P10. 5. The learned Government Pleader contended that the petitioner is not entitled to claim the benefit of the said WP(c).No.14454/07 4 section. According to the Government Pleader, the petitioner having opted for assignment of 17 cents and obtained Ext.P9 order of assignment, is not entitled to claim the benefit of Section 7-E. The additional respondents, who are in possession of other properties, do not claim any right over the remaining portion of 1.66 acres in respect of which Ext.P10 application has been made by the petitioner, but they only plead that any order to be passed in Ext.P10, shall not be to their prejudice. 6. Section 7-E of the Kerala Land Reforms Act, introduced by Act 21 of 2006 reads as under. “Notwithstanding anything to the contrary contained in Section 74 or Section 84 of in any other provisions of this Act, or in any other land for the time being in force or in any contract, custom or usage, or in any judgment, decree or order of any Court, Tribunal or other authority, a person who at the commencement of the Kerala Land Reforms(Amendment)Act, 2005, is in possession of any land, not exceeding four hectors in extent, acquired by him or his predecessor-in-interest by way of purchase or otherwise on payment of consideration from any person holding land in excess of the ceiling area, during the period between the date of the commencement of the Kerala Land Reforms Act, 1963(1 of 1964) and the date of commencement of the Kerala Land WP(c).No.14454/07 5 Reforms (Amendment) Act, 2005 shall be deemed to be a tenant.” 7. A reading of the said provision shows that any person, who on the commencement of the Act 21 of 2006, is eligible to claim the benefit of the said amendment. Therefore, the fact that prior to the amendment the petitioner had made an application resulting in Ext.P9, prima faice would not result in depriving the petitioner the benefit of Section 7-E. In any case, this is not a matter for this court to pronounce upon at least at this stage, since the issue is pending before the Taluk Land Board. Petitioner having placed Ext.P10 application before the Taluk Land Board , it is incumbent on the Taluk Land Board to decide the same with notice the petitioner and in accordance with law. This shall be done within 6 months from the date of production of a copy of the judgment. It is directed that in the meanwhile the interim stay passed by this court by order dated 4.5.2007 will remain in force. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.14454/07 6