IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 OP(C).No. 351 of 2011(O ) AGAINST THE ORDER DATED 30/03/2010 IN TLB(B)1/2009 OF TALUK LAND BOARD, VADAGARA PETITIONERS: --------------------- 1. K.C. UDAYAVARMA RAJA, AGED 59 YEARS, S/O.LATE SANKARA VARMA RAJA, `KAILAS', P.O.PURAMERI, VADAKARA TALUK, PIN-673 503. 2. THIRUVAZHIYOT SATHYAVATHY, AGED 51 YEARS, D/O.LATE A.K.CHERIYA RAMAVARMA RAJA, AZHAHAVATTOM DESOM, VALAYANAD AMSOM, P.O.MANKAVU, KOZHIKODE TALUK, PIN-673 003. 3. A.K.SUDHA THAMPURATTI, AGED 44 YEARS, AYANCHERI KOVILAKAM, P.O.PURAMERI, VADAKARA TALUK, PIN-673 503. BY ADV. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE SECRETARY, TALUK LAND BOARD, VADAKARA, PIN-673 101. ADDITIONAL ADVOCATE GENERAL SRI.RENJITH THAMPAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/1/2011, THE COURT ON 22/03/2011, DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 351 OF 2011 O ------------------------------------------------------ Dated this the 22nd day of March, 2011 JUDGMENT The petitioners state that they are members of Ayancherry Kovilakam. In the year 1958, a partition took place among the members of the Kovilakam, as per the final decree passed in O.S.No.40 of 1954 on the file of the Sub Court, Thalasseri. The properties were partitioned into twenty shares as per the decree. The petitioners state that it was specifically provided in the decree that if any properties were left out of partition, those properties are also liable to be partitioned subsequently. 2. The petitioners state that 244.69 acres of land in R.S.No.30/1A1 of Vilakkottor Desom and 79.10 acres in R.S.No.58 of Kuruvantheri Desom were not included in the partition suit. Therefore, one Ravivarma Raja filed O.S.No.21 of 2003 on the file of the Sub Court, Vadakara, for partitioning those items which were left out of the partition in the year 1958. It is stated that 87 persons are having rights in the property. It is also stated that as per the final O.P.(C) NO.351 OF 2011 :: 2 :: decree in O.S.No.40 of 1954, Sub Court, Thalasseri, the Kovilakam was divided into twenty families and it lost the status of joint family. The petitioners state that they were born prior to 1.1.1970 and they are members of the respective families who are entitled to get shares in the properties. According to the petitioners, those twenty families had no land in excess of the ceiling limit, even if the properties left out are also divided and allotted to their shares. 3. Suo motu proceedings were initiated under Section 85(7) of the Kerala Land Reforms Act in TLB(B)1/2009 before the Taluk Land Board, Vadakara, on getting permission from the State Land Board. Vijayakrishna Varma Raja was shown as the assessee, showing him as the “present Raja”. It would appear that notices were issued to several members of the Kovilakam and public notice was also given in the newspapers. Several persons approached the Taluk Land Board and put forward claims. The claims were considered by the Taluk Land Board. It was held by the Taluk Land Board, as per Ext.P2 order dated 30.3.2010, that Vijayakrishna Varma Raja is a single member family and, therefore, he is entitled to own and possess only five standard acres of land, so however, that it shall not exceed 7.5 ordinary acres. The Taluk Land Board held thus: O.P.(C) NO.351 OF 2011 :: 3 :: “The property possessed and owned by the reported members were taken into consideration while preparing the draft statement. Hence Sri.Vijayakrishna Varma Raja, being the present Raja, sole family member of the Kovilakam has the right over only 5 Std. acres of land as per the law. Sri.Vijayakrishna Varma Raja can possess and own only 5 Std. acres (7 ½ ordinary acres) as the sold individual member and the present Raja of the Kovilakam family.” After granting exemption to several claimants and deducting certain extent of lands, it was found that the surplus land to be surrendered by the assessee is 273.93 acres comprised in Sy.No.30/1A1 of Vilakkottur Desom and Sy.No.58 of Kuruvantheri Desom. 4. The order dated 30.3.2010 passed by the Taluk Land Board was challenged by Vijayakrishna Varma Raja in C.R.P.No.198 of 2010. A learned single Judge of this Court dismissed the Revision. However, it was held that “if at all any other person is affected by the impugned order, it is open to him to initiate appropriate proceedings if he is otherwise entitled and as provided under law”. The Special Leave Petition filed by Vijayakrishna Varma Raja against the order in C.R.P.No.198 of 2010 was dismissed by the Supreme Court. O.P.(C) NO.351 OF 2011 :: 4 :: 5. The petitioners filed claim petitions under Section 85(8) of the Kerala Land Reforms Act before the Taluk Land Board. However, when there was a threat to take possession of the land, the petitioners filed O.P.(C) No.361 of 2010, which was disposed of as per Ext.P5 judgment dated 26.10.2010, directing the Taluk Land Board to expedite disposal of the claim petitions. It was also held that the petitioners could file applications before the Taluk Land Board to keep further proceedings in abeyance until the disposal of the claim petitions. 6. The petitioners state that the Taluk Land Board was not functioning through out the months of October and November, 2010 due to the election to the local self government institutions. It is also stated that the term of the Board expired and new Board has not been constituted. The stay petitions filed by the petitioners were not received by the staff in the office of the Taluk Land Board till the next posting of the case on 3.12.2010. It is stated that on that day also, there was no sitting. It is averred that the Government initiated proceedings to deliver possession of the property in question to the Boarder Security Force for their training centre. News items O.P.(C) NO.351 OF 2011 :: 5 :: appeared in the newspapers that the foundation stone for the training centre of Boarder Security Force was to be laid on 27.1.2011 in the property in question. In these circumstances, the Original Petition is filed by the petitioners for a direction to the first respondent not to dispossess the petitioners and not to handover possession of the property till the claim petitions are disposed of. There is also a prayer for directing the first respondent not to permit anybody to make any construction in the property which is ordered to be surrendered as per the order of the Taluk Land Board, till the claim petitions filed by the petitioners are disposed of. 7. A statement is filed on behalf of the first respondent by the Deputy Collector and Liaison Officer attached to the Advocate General's office. In the statement, it is inter alia stated thus: The petitioners have no right over the land in question. The properties belonging to the family were allegedly partitioned in O.S.No.40 of 1954. No decree or judgment was passed by the civil court till date declaring that the property mentioned in the Original Petition is the property of the family of the petitioner. When it was noticed that Krishna Valiya Raja held excess land, suo motu proceedings were initiated. Form No.4 notification was published in leading dailies. O.P.(C) NO.351 OF 2011 :: 6 :: Notifications were issued in the Village Office and Government offices. More than 200 persons filed their claims before the Taluk Land Board. Special team was appointed for surveying the land, verification of documents and the statements filed by the claimants. The report submitted by the special team was considered by the Taluk Land Board and it was found that an extent of 273.93 acres was the excess land to be surrendered in the case. A full fledged enquiry was conducted by the Taluk Land Board. The petitioners did not file any claim in spite of the wide publicity given in the matter. The Revision filed by the assessee was dismissed and the Special Leave Petition was also dismissed. The land was taken possession of. The Government prepared a master plan in the name and style “Nadapuram Development Plan”. Annexure-1 sketch was produced by the respondents to show the various plots allotted to different parties. Lands were earmarked for allotment to Kendriya Vidyalaya, for settlers, for Nadapuram Development Project, for landless labourers, for Chengara agitators, as reserve land, for cremation ground and also for BSF. An extent of 60 acres of land was earmarked for BSF station. BSF constructed a helipad in the land. The applications filed by the petitioners under Section 85(8) of the Kerala Land Reforms Act do not contain the necessary details. They O.P.(C) NO.351 OF 2011 :: 7 :: have no right over the land in question. O.P.(C) No.361 of 2010 was filed by the petitioners and they did not get the reliefs therein. 8. Prima facie, it would appear that the ceiling case was proceeded with on the basis that Vijayakrishna Varma Raja, is a single member family. Though he is styled as the “present Raja”, the Taluk Land Board does not appear to have dealt with the case of the different families of the Kovilakam on a disruption of the joint family status by the decree in O.S.No.40 of 1954. The different families which came into existence on such partition would be entitled to hold lands up to the ceiling limit. The case of the petitioners is that an extent of 323.79 acres in two different survey numbers were not included in the partition suit and, therefore, those lands are available for partition among the co-owners. The extent of 273.93 acres ordered to be surrendered by the Taluk Land Board treating Vijayakrishna Varma Raja as a single member family, is included in the aforesaid 323.79 acres, according to the petitioners. In the ceiling case, entitlement of the different families of the Kovilakam having separate status and which constitute different families within the meaning of the Kerala Land Reforms Act was not considered by the Taluk Land Board. It is true that C.R.P.No.198 of 2010 filed by O.P.(C) NO.351 OF 2011 :: 8 :: Vijayakrishna Varma Raja was dismissed by this Court. But, an observation was made in that order that if any other person is affected by the order of the Taluk Land Board, it is open to him to initiate appropriate proceedings. 9. Some of the members of the Kovilakam filed applications under Section 85(8) of the Kerala Land Reforms Act. The Taluk Land Board is bound to consider those applications on the merits. The respondents have no case that the Taluk Land Board has disposed of those applications filed by the petitioners under Section 85(8) of the Kerala Land Reforms Act. If so, the surplus land allegedly taken possession of by the respondents cannot be assigned or distributed. If a claim petition is filed under Section 85 (8) of the Kerala Land Reforms Act, it has the effect of retaining the case. If the claim of the petitioners is accepted, that much extent of land is liable to be excluded from the ceiling area. Before deciding all these things, it cannot be thought of that the land involved in the case should be distributed to various stake holders including certain agitators who are admittedly trespassers upon government land. Whatever may be the pressing need for making available lands for distribution, that should not be made after depriving the legitimate O.P.(C) NO.351 OF 2011 :: 9 :: rights of the members of the Kovilakam. If they have right to hold the land, that right cannot be taken away by taking recourse to a suo motu proceeding initiated against one member of the family styling him as the “present Raja”. There can be no “present Raja” after the enactment of the Kerala Joint Hindu Family System Abolition Act. Even as per the provisions of the Kerala Land Reforms Act, if a person is a major as on 1.1.1970, he could hold lands separately. If he is a married man, then also, he could constitute a separate family. The Taluk Land Board cannot treat “Raja” as the head of the family and treat all other members as members of the same family and determine the ceiling limit in accordance with that concept. That concept is against the provisions of the Kerala Land Reforms Act and against the provisions of the Kerala Joint Hindu Family System Abolition Act, by which a notional partition took place and the share of each share holder got determined. The members of the Kovilakam, who constituted separate families, should be heard before passing an order which affects them. That was not apparently done in the present case. This Court protected the rights of those persons who were not made parties before the Taluk Land Board. They approached the Taluk Land Board. Without deciding their rights, the land cannot be distributed at all. That is against the O.P.(C) NO.351 OF 2011 :: 10 :: very Scheme of the Kerala Land Reforms Act and the Kerala Land Reforms Ceiling Rules. 10. There is dispute on the question whether the State has taken possession of the land declared to be the excess land by the Taluk Land Board. According to the petitioners, possession was not taken over. The petitioners pointed out that stay was granted on 6.4.2010 in C.R.P.No.198 of 2010. C.R.P.No.198 of 2010 was dismissed only on 13.9.2010. The stay was in force till then. According to the Government, possession was taken on 8.4.2010. If so, it was during the pendency of the stay. I am not deciding that question in the present Original Petition. I leave open that question to be adjudicated in appropriate proceedings. 11. The Kerala Land Reforms Ceiling Rules provides for assignment of lands vested in Government and management of the lands pending assignment. Rules 25 to 33 deal with the same. For assignment of the land, applications are to be invited as provided in Rule 27. Rule 28 provides for the form of application and mode of presentation. Rule 29 provides for the conditions and restrictions regarding assignment. Rule 30 provides for preparation of list of O.P.(C) NO.351 OF 2011 :: 11 :: persons eligible for assignment. Rule 31 provides for offer, acceptance and assignment. Rule 33 provides for the register of lands reserved and assigned. Elaborate procedure is provided for finding out the persons who are entitled to preferential rights for assignment. Under the guise that the property was taken possession of on 8.4.2010 and under the guise that a sketch was prepared earmarking different plots for assignment to various persons and group of persons, the legitimate rights of the petitioners cannot be taken away. No records have been produced to show that the procedure prescribed under the Ceiling Rules have been followed in earmarking various portions of land to be assigned to different persons. The sketch produced along with the objection would show that different portions of land are to be assigned to settlers, Chengara agitators, landless labourers, etc. Land is earmarked for the purpose of BSF and for Kendriya Vidyalaya. Rule 32 of the Kerala Land Reforms (Ceiling) Rules, 1970 provides that the Land Board may at any stage after a land is surrendered or taken possession of and before the execution of the deed of assignment under sub-rule (2) of Rule 31 reserve any such land or portion thereof for public purposes, such reservation and determination of public purpose being made in such manner as it thinks fit; and on O.P.(C) NO.351 OF 2011 :: 12 :: such reservation, such land or portion shall be deemed to be land not available for assignment. No records have been produced to show that the land was allotted to BSF, after complying with the procedure. At the same time, it is submitted by the Additional Advocate General that the foundation stone was laid on 27.1.2011 for establishing the training centre for BSF. Learned Additional Advocate General submitted that any land can be acquired for a public purpose and now possession of the land having been taken and a particular portion earmarked for establishment of a training centre for BSF, this Court should not interfere with the activities in the said extent of land. Learned Additional Advocate General also submitted that different portions of land have been earmarked for distribution to settlers, landless labourers, Chengara agitators, etc. and it would be harsh if the proceedings for distribution of the lands is interfered with by this Court. 12. The alleged pressing need for distribution of certain lands to the Chengara agitators, landless labourers, settlers etc. should not be at the peril of the owners of the land, if they are entitled to possess land up to the ceiling area. In this case, the Taluk Land Board has not held that any person other than Vijayakrishna Varma O.P.(C) NO.351 OF 2011 :: 13 :: Raja is holding any excess land. It is not held by the Taluk Land Board that different families which constitute the Kovilakam hold land in excess of the ceiling area. Whether they are in possession of the land or not, or whether third parties are in possession as submitted by the learned Additional Advocate General is not quite relevant. The question of title is to be determined and the question whether they are liable to surrender is to be determined by the Taluk Land Board. Without resorting to such a method, it cannot be said that the alleged excess land was determined, taking that Vijayakrishna Varma Raja is the “present Raja” of the Kovilakam, thereby depriving the legitimate rights of the other members of the Kovilakam, who constitute independent families after the partition and after the enactment of the Kerala Joint Hindu Family System Abolition Act. Their claim petitions are to be dealt with, considered and disposed of. Before that, no question of assignment arises under the Kerala Land Reforms (Ceiling) Rules. However, taking into account the public interest and also the submission made by the learned Additional Advocate General that even if the lands belong to the members of Kovilakam, it could be acquired for a public purpose, I am of the view that the extent of 55 acres earmarked in the plan as land for BSF stands on a different footing. O.P.(C) NO.351 OF 2011 :: 14 :: In the facts and circumstances mentioned above, the Original Petition is disposed of as follows: a) The Taluk Land Board shall dispose of the applications filed by the petitioners under Section 85(8) of the Kerala Land Reforms Act, after affording an effective and meaningful opportunity of being heard to the petitioners. b) Before finally disposing of the applications filed by the petitioners or by any other person under Section 85(8) of the Kerala Land Reforms Act, the land directed to be surrendered as per the order of the Taluk Land Board dated 30.3.2010 shall not be distributed or assigned to any person or body of persons or any institution except as mentioned below. c) Subject to the final orders passed by the Taluk Land Board and subject to any other proceedings in accordance with law, the extent of 55 acres of land earmarked in Annexure-I plan as land for BSF can be possessed and enjoyed by BSF. The BSF also would be entitled to make constructions therein. d) Necessary documents also could be executed by the Government in favour of BSF. However, if it is found that the O.P.(C) NO.351 OF 2011 :: 15 :: land allotted to BSF does not form part of any ceiling area, appropriate steps shall be taken for acquiring that land under the Land Acquisition Act. (K.T.SANKARAN) Judge ahz/