IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 WP(C).No. 2685 of 2007(T) ------------------------------------- PETITIONER(S): ----------------------- REGINOLD, AGED 78, S/O.THEOPHIN, MAVEETTIL HOUSE, RAMANTHALY, KARAMTHAT P.O., KANNUR DISTRICT. BY ADV. SRI.A.X.VARGHESE, SRI.A.V.JOJO. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, KANNUR. 3. DEPUTY COLLECTOR, CHAIRMAN TALUK LAND BOARD, KANNUR. R1 TO R3 BY SPL. GOVT. PLEADER MR.M.L. SAJEEVAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 2685/2007-T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RENT RECEIPT FOR THE YEAR 1962 AND 1963. EXT.P2: COPY OF THE AGREEMENT FOR PURCHASING TENANCY LAND. EXT.P3: COPY OF THE TRUST DEED. EXT.P4: COPY OF THE GOVERNMENT ORDER OF THE REJECTION DATED 26/06/1978. EXT.P5: COPY OF THE PATTA. EXT.P6: COPY OF THE REGISTRATION OF CHARITABLE SOCIETY. EXT.P7: COPY OF THE ORDER IN C.R.P.2335/1977 DATED 30/09/1977. EXT.P8: COPY OF THE PROCEEDINGS OF TALUK LAND BOARD, KANNUR DATED 19/09/1984. EXT.P8(a): COPY OF THE COMMISSION REPORT. EXT.P8(b): COPY OF THE COMMISSION REPORT DATED 25/01/1985. EXT.P9: COPY OF THE JUDGMENT IN CRP.NO.2728, 2729 AND 2731 OF 1984. EXT.P10: COPY OF THE COMMISSION REPORT DATED 30/06/1988. EXT.P10(a): COPY OF THE DEPOSITION OF THE COMMISSIONER. EXT.P11: COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 28/12/1988. EXT.P12: COPY OF THE JUDGMENT DATED 10/04/1990 IN CRP NO.1602/1989. EXT.P13: COPY OF THE JUDGMENT IN O.P. NO. 7307/1990 DATED 08/08/1990. EXT.P14: COPY OF THE REPRESNTATION TO CHIEF MINISTER OF KERALA. EXT.P15: COPY OF THE REPLY OF POLICE SUPERINTENDENT, VIGILANCE EXT.P16: COPY OF THE REPRESNTATION DATED 29/06/2005. EXT.P17: COPY OF THE ACKNOWLEDGMENT TO THE CHIEF MINISTER'S OFFICE TO 2ND RESPONDENT. ......2/. WP(C) NO. 2685/2007-T EXT.P18: COPY OF THE AUCTION NOTICE. EXT.P19: COPY OF THE INDIAN EXPRESS DATED 5TH DECEMBER 1992. EXT.P20: COPY OF THE ARTICLE PUBLISHED IN MATHRUBHUMI DATED 31/08/2005. EXT.P21: COPY OF THE ARTICLE PUBLISHED IN THE MALAYALA MANORAMA DATED 18TH JULY 2004. EXT.P22: COPY OF THE REPRESENTATION DATED 30/06/2006. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. THOTTATHIL B.RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.2685 of 2007-T = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of March, 2010. Judgment 1.The petitioner and others claim exemption of around 60 acres of land from being identified as surplus land in terms of the Kerala Land Reforms Act, 1963. The plea was that it is a piece of commercial land where commercial cultivation of prawns is undertaken. The parties reached this Court on different rounds. In Ext.P7 order, this Court found that the procedure adopted by the Taluk Land Board was not in accordance with law and the necessary parties were not heard. The entire proceedings were set aside and an open order of remit was made. Following that, the matter was again heard. This Court found that the question urged by the petitioner and others that the land is being put to use for prawn cultivation which is essentially a commercial activity, was not looked into. It appears that WPC2685/07 -: 2 :- the Government then took the stand that there was no direction as per the first remand order to consider that issue. This Court repelled that contention and said that the first remand order was an open remit and the Taluk Land Board was bound to consider all issues. Dilating further, reference was made to Poulose v. Taluk Land Board, 1987(1) KLT 925, to hold that prawn- fishing is a commercial activity and if on the evidence adduced it is seen that the main activity and the main income relate to prawn- fishing, the land may be eligible for exemption and that in certain parts of the State, there are lands used both for agriculture and for prawn- fishing and such lands cannot be classified as commercial sites and will not be qualified for exemption under Section 81(1)(q) of the KLR Act. Ext.P9 order of remit was again made by this Court after making reference to two reports of authorised officers/Government officials. Thereafter, the Taluk Land Board again decided the issue. That order merged with Ext.P12 order WPC2685/07 -: 3 :- of this Court disposing of a revision under Section 123 of the KLR Act. This Court specifically held that in the light of the evidence, this Court is in agreement with the decision of the Taluk Land Board that the land is not liable to be exempted under Section 81 of the KLR Act. That decision has become final. On the basis of that judgment, the petitioner is not entitled to any declaration by this Court that the land in question is eligible for exemption or for issuance of a writ of mandamus as sought for, to the Taluk Land Board or the Government authorities to exempt the land. 2.As was noticed by this Court in Ext.P9 order, the only course that would be open in a case of the nature in hand is to take recourse to sub-section (3) of Section 81 and seek the indulgence of the Government for exemption in public interest provided the case falls within the parameters fixed under that provision of law. That is not a matter which this Court has to decide. It is the WPC2685/07 -: 4 :- Government which has to be moved for any such relief. For the aforesaid reasons, while rejecting the reliefs sought for, it is directed that if the petitioner moves the Government with any application under sub-section (3) of Section 81 of the KLR Act, 1963 and if the Government are satisfied that the said application is in conformity with the said provision of law, it would consider whether the land in question is to be exempted by the Government. If the petitioner files such application within two months, the Government will take a final decision thereon within a further period of six months. It is clarified at the request of the learned Government Pleader that if the petitioner had already filed any application under Section 81 (3), and has obtained adverse orders, the directions contained herein will stand vacated automatically, however without prejudice to the petitioner's right, if any, to challenge any such WPC2685/07 -: 5 :- decision before any competent authority, including this Court, in accordance with law. The writ petition ordered accordingly. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/0604