IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 21239 of 2004(C) -------------------------- PETITIONER(S): --------------- M.P.MOIDEEN, S/O. MUHAMMED, MUTHUNILAM, THAMBI ROAD, BEYPORE, KOZHIKODE DIST. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT(S): --------------- 1. THE DISTRICT COLLECTOR, KOZHIKODE DISTRICT, COLLECTORATE, KOZHIKODE. 2. THE TAHSILDAR, KOZHIKODE, COLLECTORATE, KOZHIKODE DISTRICT. 3. THE VILLAGE OFFICER, BEYPORE VILLAGE, KOZHIKODE DISTRICT. 4. THE SECRETARY, TALUK LAND BOARD, KOZHIKODE. GOVERNMENT PLEADER SRI.BIJOY CHANDRAN FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 21239/2004 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 : TRUE COPY OF THE PROCEEDINGS DATED 28.06.1994 OF THE FIRST RESPONDENT. EXHIBIT P2 : TRUE COPY OF THE ASSIGNMENT ORDER DATED 28.07.1995 ISSUED BY THE SECOND RESPONDENT. EXHIBIT P3 : TRUE COPY OF THE RECEIPT DATED 02.08.1995. EXHIBIT P4 : TRUE COPY OF THE PROCEEDINGS DATED 08.03.1996 OF THE FIRST RESPONDENT. EXHIBIT P5 : TRUE COPY OF THE ORDER DATED 16.03.1999 PASSED BY THE FIRST RESPONDENT. EXHIBIT P6 : TRUE COPY OF JUDGMENT DATED 18.03.2003 PASSED IN O.P. NO. 18642/1999 EXHIBIT P7 : TRUE COPY OF DOCUMENT NO. 1112/1979 DATED 15.12.2003 EXHIBIT P8 : TRUE COPY OF DOCUMENT NO. 374/1992 DATED 06.02.1992 EXHIBIT P9 : TRUE COPY OF THE ORDER DATED 07.06.2004 ISSUED BY THE FIRST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 21239 OF 2004 ......................................................................... Dated this the 20th October, 2009 J U D G M E N T This is the 3rd or 4th round of litigation, that is being pursued by the petitioner to establish his rights over an extent of 26 cents of land sought to be assigned in his favour. 2. The petitioner is stated as a bonafide purchaser of 40 cents of land comprised in R.S.4/4 of Naduvattam Desom of Beypore Village, from one B.R. Ramkumar, as per the Kanom Assignment Deed No. 3161 /83 of S.R.O., Meenchanda. It is the case of the petitioner that, this was a part of the land, which was actually opted to be surrendered by the assignor (B.R. Ramkumar) as part of the excess land. In the said circumstances, the petitioner filed a petition before the 4th respondent under Section 85(8) of the Kerala Land Reforms Act , which was rightly rejected by virtue of the statutory prescription under the Kerala Land Reforms Act, as the transaction was only in the year 1983. 3. The dismissal of the said application was challenged by the petitioner by filing C.R.P.No. 2782 of 1984 , where W.P.(C) No. 21239 OF 2004 2 interference was declined, holding that the 4th respondent had rightly dismissed the application preferred under Section 85(8). However, taking note of the contention raised by the petitioner that he was a bonafide purchaser and that the petitioner was residing in the particular property during the pendency of the matter, he was permitted to approach the 'Government' and the Government was directed to consider the matter sympathetically for assignment of the land, if the concerned property was the only item of the property belonging to the petitioner. 4. Pursuant to the above direction, the petitioner preferred an application dated 07.07.1989, which was considered by the 'District Collector', Kozhikode, leading to Ext. P1 order dated 28.06.1994, whereby an extent of 26 cents of land was ordered to be assigned to the petitioner on satisfying the conditions stipulated therein. It is stated that the petitioner satisfied the said conditions, whereupon, Ext. P2 assignment order was passed and the petitioner was directed to satisfy the purchase price, which is stated as satisfied as borne by Ext. P3 receipt dated 02.08.1995. While the petitioner was anxiously waiting to have W.P.(C) No. 21239 OF 2004 3 the fruits of the above order, he was shockingly served with the order dated 08.03.1996, whereby the first respondent/District Collector cancelled Ext. P2 order, stating that the earlier order happened to be passed on a mistake and that the matter actually required to be considered by the 'Government'. In fact, the said order of cancellation was stated as passed without any notice to the petitioner, which in turn was challenged by filing O.P.No.1427 of 1998. 5. Pursuant to the direction given by this Court in the above O.P., the Government considered the matter and held that, by virtue of the provisions under Section 128A of the Kerala Land Reforms Act , the District Collector was very much competent to pass proper orders and accordingly, the matter was sent back to the District Collector. However, without considering the merits in the proper perspective, the application was rejected by the District Collector as per Ext. P5 order dated 16.03.1999, which was under challenge in O.P.No. 18642 of 1999 leading to Ext.P6 judgment, whereby Ext.P5 order was set aside and the matter was directed to be reconsidered. It was in furtherance to the W.P.(C) No. 21239 OF 2004 4 said direction that the first respondent considered the matter again and passed Ext. P9 order, turning down the claim, holding that the petitioner does not come within the purview of the eligible categories under Section 96 of the K.L.R. Act, which is impugned in this Writ Petition. 6. The first respondent has filed a counter affidavit seeking to sustain Ext. P9 order, asserting that the petitioner does not come within the purview of Section 96 of the Kerala Land Reforms Act(Paragraph Nos. 11 and 12). It is also pointed out in paragraph No. 8 that, as per the documents produced by the petitioner in the Writ Petition, he was having some other properties at the time of passing the verdict in C.R.P.No.2782 of 1984 and the petitioner had transferred one of such items to his wife as per Ext.P8 only on 06.02.1992, i.e., after the order dated 30.03.1989 passed by this Court in the above C.R.P. Referring to the sequence of events, the learned Government Pleader asserts that the petitioner is not entitled to get the benefit of assignment, in view of the specific observation made by this Court in the above C.R.P. and more so, when the concerned W.P.(C) No. 21239 OF 2004 5 property was not the only property belonging to the petitioner, who has some other properties as well. 7. The learned Counsel for the petitioner submits that, even though there was a direction given by this Court on 08.07.2009 to implead the assignor in the party array (on doubting the nature of transaction), it could not be complied with, since, on enquiry, it was found that the assignor was no more, having expired 10 years ago and not survived by anybody as his legal heirs, which made the petitioner to file an affidavit dated 25.07.2009 before this Court. The learned Counsel further submits that the observation made by the first respondent in paragraph No.3 of the impugned order, stating that the petitioner does not come within the purview of Section 96 of the K.L.R. Act is not at all correct, particularly since, the petitioner is entitled to be classified as a 'small holder', even if the concerned extent of properties covered by Exts. P7 and P8 were actually owned by him. Section 96 of the K.L.R. Act is extracted below for the purpose of convenience of reference: Section 96. “ Assignment of lands by Land W.P.(C) No. 21239 OF 2004 6 Board:-(1) The Land Board shall assign on registry subject to such conditions and restrictions as may be prescribed, the lands vested in the Government under Section 86 or Section 87, as specified below: (i) the lands in which there are kudikidappukars shall be assigned to such kudikidappukars; (ii) the remaining lands shall be assigned to:- (a) landless agricultural labourers; and (b) small-holders and other landlords who are not entitled to resume any land; Provided that eighty seven and a half per cent of the area of the lands referred to in clause (ii) available for assignment in a taluk shall be assigned to landless agricultural labourers of which one-half shall be assigned to landless agricultural labourers belonging to the Scheduled Castes, the Scheduled Tribes and such other socially and economically backward classes of citizens as may be specified in this behalf, by the Government by notification in the Gazette. (Explanation: For the purposes of this sub- section W.P.(C) No. 21239 OF 2004 7 (a) a kudikidappukaran or the tenant of a kudiyirippu shall be deemed to be a landless agricultural labourer if he does not possess any other land: (b) 'kudikidappukaran' shall include a person who was a kudikidappukaran to whom a certificate of purchase has been issued under sub-section (2) of Section 80C. (1A) Notwithstanding anything contained in sub-section (1), the Land Board may, if it considers that any land vested in the Government under section 86 or Section 87 is required for any public purpose, reserve such land for such purposes; (2) The Land Board shall not assign to any person more than one acre in extent of land (3) Where a person possesses any land, only so much land as will make the extent of land in his possession one acre shall be assigned to him. “ 8.The term 'small holder' as it appears under Section 96 (b) is very much defined under Section 2 (52) of the Act , which reads as follows: W.P.(C) No. 21239 OF 2004 8 “(52) “small holder” means a landlord who does not have interest in land exceeding eight standard acres or ten acres in extent, whichever is less, as owner, intermediary, or cultivating tenant, or in two or more of the above capacities , so however that the extent of non-resumable land in his possession as owner, or as cultivating tenant, or partly as owner and partly as cultivating tenant, does not exceed:- (i) two and a half standard acres ; or (ii) four acres in extent, whichever is greater. (Explanation: For the purpose of this clause, a person who was in possession of, or had interest in land exceeding the limits specified in this clause immediately before the 18th December, 1957, but such extent of land was reduced to the said limits or below by partition or transfer effected after the date mentioned above shall not be deemed to be a small holder nor shall such partition or transfer entitle the allottee or transferee to exercise the rights of a small holder in respect of the land allotted or transferred to him. ” W.P.(C) No. 21239 OF 2004 9 Further, Section 96(3) of the Act stipulates that, where a person possesses any land, only so much land as will make the extent of land in his possession 'one acre' shall be assigned to him. Reading the above provisions of the law, it is not discernible from Ext. P9 order passed by the first respondent, as to how the case of the petitioner was held as not coming within the purview of Section 96 even as a 'small holder', though he may not be classified as a 'landless agricultural labourer.' The only reason stated by the first respondent in the penultimate paragraph of Ext. P9 order for rejecting the claim is that his case does not come within the purview of Section 96 of the Act . Even though, the sequence of events has been referred to, no discussion is made in Ext. P9, in order to take out the petitioner from the category of 'small holder' and as such, it cannot be held as a speaking order. 9. True, there is an observation in the Order passed by this Court, in C.R.P.No. 2782 of 1984, that the assignment of the land would be considered by the Government, on the petitioner's W.P.(C) No. 21239 OF 2004 10 submitting an application, if he was actually residing in the said property, and if the said property was the 'only land' belonging to the petitioner. The above stipulation has also been referred to in the subsequent proceedings as well. But this has to be read and understood in the light of the relevant provisions of law, particularly as contained under Section 96 of the KLR Act; since there cannot be any estoppel against the provisions of law. What was intended by this Court while disposing of the CRP, directing to consider the application, was only to have it considered 'in accordance with law'. It appears that the first respondent has not understood the position in such a manner and it was in the said circumstance, that eligibility of the petitioner was considered confining to the above observation made by this Court in C.R.P.No. 2782 of 1984. The only point that comes up for consideration is whether the first respondent has considered the eligibility of the petitioner in his capacity as a 'small holder' as well, while rejecting the application, referring to the provisions of Section 96, which can be answered only in the negative. 10. In the above facts and circumstances, this Court does W.P.(C) No. 21239 OF 2004 11 not find any reason to sustain Ext. P9 order, which hence is hereby set aside. The first respondent is directed to re-consider the matter with specific reference to the eligibility of the petitioner also as a 'small holder' under Section 96 of the Act, taking note of the observations made herein before. It shall be finalised as above, after giving an opportunity of hearing to the petitioner, as expeditiously as possible and at any rate, within three months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk