IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 CRP.No. 775 of 2002(Y) ---------------------- SM.10/1989 of TALUK LAND BOARD, OTTAPALAM .................... REVN. PETITIONER: ------------------ 1. K.KUMARAN, SECRETARY,GANDHI SEVA SADAN, PALGHAT. ADDL. P2 TO P7 IMPLEADED 2. SMT.K.SAROJINI W/O. LATE K.KUMARAN GANDHI SEVA SADAN P.O., GANDHI SEVA SADAN PATHIRIPALA. 3. SMT.K.PADMINI ANAND D/O.LATE K.KUMARAN KUNNATH, KRISHNAPURAM GANDHI SEVA SADAN P.O. GANDHI SEVA SADAN, PATHIRIPALA. 4. SMT.K.NALINI ANAND D/O.K.KUMARAN, GANDHI SEVA SADAN P.O. GANDHI SEVA SADAN, PATHIRIPALA. 5. SRI.K.RAVIKUMAR S/O.LATE K.KUMARAN GANDHI SEVA SADAN P.O., GANDHI SEVA SADAN PATHIRIPALA. 6. SMT.K.RAGINI D/O.LATE K.KUMARAN SEVA MANDIR POST, BASIC SCHOOL RAMANATTUKARA, KOZHIKODE DISTRICT. 7. SRI.K.HARIKUMAR S/O.LATE K.KUMARAN, VASANTHAM, NAGARIPURAM P.O., PATHIRIPALA. ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED PETITIONER VIDE ORDER DATED 28.11.2006 IN I.A.NO.2348/2005 BY ADV. SRI.M.P.RAMACHANDRAN NAIR SRI.DEVAN RAMACHANDRAN SRI.M.P.RAMACHANDRAN NAIR CRP775/2002 RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. THE TALUK LAND BOARD, OTTAPPALAM. BY GOVERNMENT PLEADER SRI.S.DILEEP THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP775/2002 ORDER ON I.A.NO.2420/2004 IN CRP NO.775/2002 DISMISSED 31.1.2008 SD/- K.T.SANKARAN, JUDGE /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. ------------------------------------------- C.R.P.No.775 of 2002 ------------------------------------------- Dated this the 31st day of January, 2008 O R D E R The assessee in Ceiling Case No.S.M.10/89 on the file of the Taluk Land Board, Ottappalam challenges the order dated 26.7.2001 passed by the Taluk Land Board by which the assessee was directed to surrender an extent of 26.52 acres of land. 2. As per the draft statement the total extent included in the account of the declarant is 43.02 acres. Exemption was granted for an extent of 2.02 Acres. Taking that the assessee is entitled to hold an extent of 15 acres of land, the assessee was directed to surrender 25.97 acres. The assessee filed three objections dated 14.3.2001, 24.3.2001 and 30.6.2001. The contention raised by the assessee in these objections was that the assesee, namely, Gandhi Seva Sadan, was not holding excess land as on 1-1-1970 and that it was not liable to surrender any extent of land. 3. One of the objections relates to an extent of 22.32 acres. The assessee is a voluntary organisation established CRP775/2002 2 during 1941 and registered under the Societies Registration Act XXI of 1860 on 16.8.1951. It was contended by the assessee that during the period from 1958 to 1965, the assessee had availed loans from Khadi and Village Industries Commission, Bombay and Khadhi and Village Industries Board, Thiruvananthapuram by depositing title deeds and creating mortgage of the properties of the assessee. The assessee could not repay the loan. Revenue recovery proceedings were initiated and the aforesaid extent of 22.32 acres of land was sold in the revenue recovery proceedings before 1970. It was therefore contended that this extent of 22.32 acres is liable to be excluded from the account of the assessee. 4. Another objection relates to an extent of 3.22 acres of land. It was contended that though this property belongs to the assessee, it was leased out to Kunhambu in the year 1963. Kunhambu obtained purchase certificate from the Land Tribunal as per the purchase certificate No.3970 dated 26.3.1976. Later, as per document No.1553 of 1981 dated 15.5.1981, Kunhambu sold this property to Gandhi Seva Sadan Kathakali & Classic Arts Academy which is a separate institution registered under CRP775/2002 3 the Societies Registration Act on 12.2.1973. It was contended that the property owned and possessed by the Kathakali & Classic Arts Academy cannot be included in the account of the assessee since the assessee and the academy are different institutions. 5. Yet another objections relates to the extent of 1.66 acres of land in survey No.114/A and 114/B. According to the petitioner, this land was sold to Puthenpurakkal Theethi as per document Nos.458 of 1965 and 459 of 1965 and therefore this extent of land is liable to be excluded from the account of the declarant. 6. The Taluk Land Board rejected the contentions put forward by the assessee. 7. From the records, it is seen that the Tahsildar, Palakkad has submitted a report dated 24.7.1989 to the Chairman of the Taluk Land Board. The records reveal that on 3.9.1988, the Special Deputy Tahsildar, Ottapalam had submitted a report to the Taluk Land Board wherein details of certain properties are shown. In another report dated 24.7.1989 submitted by the Tahsildar, Palakkad, details in respect of CRP775/2002 4 1.26 acres of land at Mankara amsom are indicated. On 30.11.2000 a report was submitted by the Special Deputy Tahsildar in respect of 11.13 acres in Mankara Village. On the basis of these reports suo motu proceedings were initiated and thedraft statement was issued. 8. After receipt of the draft statement, the assessee is entitled to file objections. The objections submitted by the assessee should be verified with reference to documents and by local inspection. Section 105(A) provides for appointment of officers not below the rank of a Revenue Inspector for the purposes mentioned therein. The Taluk Land Board may depute such officer to make legal enquiry, investigation or inspection and to collect any data. The report and records submitted by such officer may be used without examining him as evidenced in the proceedings before the Taluk Land Board, in view of Sub Section 2 of Section 105(A). The Taluk Land Board is also entitled to, if it thinks fit, to examine any such officer. In this case, after the objections were filed, no report was called for from the authorised officer, invoking the power of the Taluk Land Board under sub section (2) of Section 105(A). The CRP775/2002 5 records do not reveal that any such report was called for by the Taluk Land Board. Instead, the Taluk Land Baord considered the case on the basis of the materials available as per the reports submitted by the Tahsildars concerned before initiation of the proceedings. A report obtained before initiation of suo motu proceedings cannot be treated as evidence against the assessee/declarant unless he gets an opportunity to substantiate his contentions before the officer concerned and unless an inspection of the property is made to verify the objections raised by the assessee. In the present case, there was no inspection at all after the objections were filed. It would appear that the Taluk Land Board has verified the documents produced before it and passed the order on the basis of the documents and the aforesaid reports. It is also not clear whether the assessee wanted any oral evidence to be adduced or whether such an opportunity was granted by the Taluk Land Board. 9. The Taluk Land Board held that in respect of 22.32 acres of land, the property was sold in auction invoking revenue recovery proceedings. It is not verified with reference to any document as to when exactly the revenue recovery sale took CRP775/2002 6 place. It is stated in the order that a major portion of the property put in auction was purchased in the names of the children of Kumaran. Kumaran was the secretary of Gandhi Seva Sadan. The assessee is not Kumaran but Gandhi Seva Sadhan. It would appear that the Taluk Land Board was under a wrong impression that Kumaran is the assessee. Whether in the revenue recovery auction, the property was purchased by the children of Kumaran by adopting undesirable methods with the assistance of the Kumaran, is not relevant for deciding whether the assessee was holding that particular land as on 1.1.1970. The real question involved was whether the assessee was holding the particular land having an extent of 22.32 acres as on 1.1.1970. If the assessee was in possession, certainly the said extent of land is liable to be included in his account. If the assessee was not holding that land as on 1.1.1990, it could not be so included unless it is well established that documents were created in such a manner to screen off the property from the account of the assessee. Here no such case was established and no documentary evidence was available before the Taluk Land Board to establish the same. A report submitted by the CRP775/2002 7 authorised officer that major portion of the property sold in auction was purchased by Kumaran's children was not sufficient for the Taluk Land Board to hold that the assessee was holding that much extent of land as on 1.1.1970. If the view taken by the Taluk Land Board is to be accepted, the net result would be that though the assessee lost its lands in revenue recovery auction, the assessee would still be liable to surrender that much extent of land out of the property which is now available with it. Or else, the property which was sold in auction should be taken possession of as excess land. In such a situation, it would be necessary to issue notice to the auction purchasers and afford them an opportunity to put forward their case. The order passed by the Taluk Land Board in this regard is illegal and unsustainable. 10. As regards the extent of 3.22 acres, the Taluk Land Board found that the assessee acquired that land as per document No.1302 of 1962. The case of the assessee is that the property was leased to Kunhambu in 1963 and he obtained purchase certificate. The Taluk Land Board found that the purchase certificate cannot be relied on for the following CRP775/2002 8 reasons. (1) the assessee was indebted due to the loan taken by it from 1958 to 1965. (2) it cannot be assumed that in such circumstances, the assessee would have leased out an extent of 3.22 acres of land to a stranger. Therefore, the Taluk Land Board held that the purchase certificate allegedly issued in favour of Kunhambu does not have any effect. The Taluk Land Board has not made any enquiry as to whether the property was in the possession of Kunhambu before the commencement of the Kerala Land Reforms Act. It is also not found that the purchase certificate was obtained by fraud or collusion. The property was purchased by Gandhi Seva Sadan Kathakali & Classic Arts Academy as per document No.1553 of 1981 from Kunhambu. The document recites that the property belonged in jenmom to Ambadi Kovilakam and Samoothiri Kovilakam and that it was outstanding on lease in favour of two tharavads. In 1962, the property was purchased by Gandhi Seva Sadan, the assessee, as per the document No.1302 of 1962. It is also stated in the document that the property was taken on oral lease by Kunhambu. He had obtained the purchase certificate as per the order passed by the Land Tribunal, Ottapalam. Sub section (2) CRP775/2002 9 of Section 72K of the Kerala Land Reforms Act provides that the purchase certificate issued under the sub section (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the land owner and the the intermediaries, if any, over the holding or portion thereof to which the assignment relates. The Hon'ble Supreme Court had occasion to consider the scope of Section 72K and the effect of a purchase certificate in the ceiling proceedings, in Mathew and others vs. Taluk Land Board (1979 KLT 601). The Supreme Court held thus: Now the certificate of purchase which the Land Tribunal issues (in the prescribed form) evidences the “assignment” of the assigned land to the purchaser. Sub-S.(2) of S.72K of the Act mentioned above merely declares that the certificate shall be conclusive proof of that “assignment” of the right, title and interest of the landowner and the intermediaries (if any) to the tenant in respect of the holding concerned (or portion thereof). There is nothing in the sub-section which could be said to declare that the finding recorded by the Tribunal in those proceedings would be conclusive proof of any other matter which it may determine so as to bind the Taluk Land Board or any other authority. Sub-S.(2) of S.72K therefore does not, in terms or in substance, impinge on the authority of the CRP775/2002 10 Taluk Land Board to discharge its own functions under S.85(5) of the Act. The Board is thus quite free to cause the particulars mentioned in the statement filed under Sub-Section (2) of S.85 to be verified and to ascertain whether the person filing the statement owns or holds any other land, and to determine the “extent” as well as the “identity” of the excess land which he is required to surrender. If a certificate of purchase is issued by the Land Tribunal to any such person and he tenders it in proceedings before the Taluk Land Board, the Board is required by law to treat it as conclusive proof of the fact that the right, title and interest of the land owner (and intermediary) over the land mentioned in it has been assigned to him. It is however not the requirement of the law that the certificate of purchase shall be conclusive proof of the surplus or other land held by its holder so as to foreclose the decision of the Taluk Land Board under Sub-Section (5) of S.85. It would thus appear that even though the certificate of purchase issued under Sub-Section (1) of S.72K is conclusive proof of the assignment of the right, title and interest of the landowner in favour of the holder in respect of the holding concerned under Sub-Section (2), that only means that no contrary evidence shall be effective to displace it, unless the so- CRP775/2002 11 called conclusive effective proof is inaccurate on its face, or fraud can be shown (Halsbury's Laws of England, fourth edition, Vo.17, page 22 paragraph 28), It may be stated that “inaccuracy on the face” of the certificate is not as wide in its connotation as an “error apparent on the face of the record.”. It will not therefore be permissible for the Board to disregard the evidentiary value of the certificate of purchase merely on the ground that it has not been issued on a proper appreciation or consideration of the evidence on record, or that the Tribunal's finding suffers from any procedural error. What Sub-Section (2) of S.72K provides is an irrebuttable presumption of law, and it may well be regarded as a rule of substantive law. But even so, for reasons already stated, it does not thereby take away the jurisdiction of the Taluk Land Board to make an order under S.85(5) after taking into consideration the “conclusive” evidentiary value of the certificate of purchase according to S.72K (2) as far as it goes. 11. I am of the view that the Taluk Land Board has not correctly applied the law and the finding that the purchase certificate is liable to be ignored is unsustainable. Since the matter is being remanded to the Taluk Land Board, the case as CRP775/2002 12 regards the extent of 3.22 acres shall also be considered afresh by the Taluk Land Board. For the aforesaid reasons, I am of the view that the order passed by the Taluk Land Board is liable to be set aside. The Civil Revision Petition is accordingly allowed and the order impugned is set aside. The Taluk Land Board shall appoint the authorised officer to get a report touching upon all the relevant aspects. The authorised officer shall issue notice to the assessee sufficiently early before making inspection of the properties. The assessee shall have an opportunity to file objections to the report submitted by the authorised officer. The Taluk Land Board shall dispose of the case afresh, in accordance with law and in the light of the observations mentioned above, after affording an opportunity to the assessee of being heard and an opportunity to produce documents and to adduce evidence. It is made clear that the assessee would be entitled to put forward all the contentions which are mentioned in the objections dated 14.3.2001, 24.3.2001 and 30.6.2001. It is submitted by the counsel for the petitioner that certain items of properties were purchased after 1970 and those items were also included in the CRP775/2002 13 account. The assessee is entitled to point out the same before the Taluk Land Board. The assessee would also be entitled to avail the benefits of the Kerala Land Reforms (Amendment) Act, 2005, if on facts, any such benefit is available. K.T.SANKARAN, JUDGE csl CRP775/2002 14 K.T.SANKARAN, J. ------------------------------------------- C.R.P.No.775 of 2002 ------------------------------------------- Dated this the 31st day of January, 2008 O R D E R The assessee in Ceiling Case No.S.M.10/89 on the file of the Taluk Land Board, Ottappalam challenges the order dated 26.7.2001 passed by the Taluk Land Board by which the assessee was directed to surrender an extent of 26.52 acres of land. 2. As per the draft statement the total extent included in the account of the declarant is 43.02 acres. The exemption was granted at 2.02 Acres. Taking that the assessee is entitled to hold an extent of 15 acres of land, the assessee was directed to surrender an extent of 25.97 acres. The assessee filed three objections dated 14.3.2001, 24.3.2001 and 30.6.2001. The contention raised by the assessee in these objections was that the assesee namely Gandhi Seva Sadan was not holding excess land and that it is not liable to surrender any land. 3. One of the objections relates to an extent of 22.32 acres. The assessee is a voluntary organisation established CRP775/2002 15 during 1941 and registered under the Societies Registration Act XXI of 1860 on 16.8.1951. It was contended by the assessee that during the period from 1958 to 1965, the assessee had availed loans from Khadi and Village Industries Commission, Bombay and Khadhi and Village Industries Board, Thiruvananthapuram by depositing title deeds and creating mortgage of the properties of the assessee. The assessee could not repay the loan. The revenue recovery proceedings were initiated and the aforesaid extent of 22.32 acres of land was sold in the revenue recovery proceedings before 1970. It was therefore contended that this extent of 22.32 acres is liable to be excluded from the account of the assessee. 4. Another objection relates to an extent of 3.22 acres of land. It was contended that though this property belongs to the assessee, it was leased out to Kunhambu in the year 1963. Kunhambu obtained purchase certificate from the Land Tribunal as per the purchase certificate No.3970 dated 26.3.1976. Later as per document No.1553 of 1981 dated 15.5.1981 Kunhambu sold this property to Gandhi Seva Sadan Kathakali & Classic Arts Academy which is a separate institution registered under CRP775/2002 16 the Societies Registration Act on 12.2.1973. It was contended that the property owned and possessed by the Kathakali & Classic Arts Academy cannot be included in the account of the assessee since the assessee and the academy are different institutions. 5. Yet another objections relates to the extent of 1.66 acres of land in survey No.114/A and 114/B. According to the petitioner, this land was sold to Puthenpurakkal Theethi as per document Nos.458 of 1965 and 459 of 1965 and therefore this extent of land is liable to be excluded from the account of the declarant. 6. The Taluk Land Board rejected the contentions put forward by the assessee. 7. From the records, it is seen that the Tahsildar, Palakkad has submitted a report dated 24.7.1989 to the Chairman of the Taluk Land Board. The records reveal that on 3.9.1988, the Special Deputy Tahsildar, Ottapalam had submitted a report to the Taluk Land Board wherein details of certain properties are shown. In another report dated 24.7.1989 submitted by the Tahsildar, Palakkad details in respect of CRP775/2002 17 1.26 acres of land at Mankara amsom are indicated. On 30.11.2000 a report was submitted by the Special Deputy Tahsildar in respect of 11.13 acres in Mankara Village. On the basis of these reports Suo motu proceedings were initiated and draft statement was issued. 8. After receipt of the draft statement, the assessee is entitled to file objections. The objections submitted by the assessee is to be verified with reference to documents and by local inspection. Section 105(A) provides for appointment of officers not below the rank of a Revenue Inspector for the purposes mentioned therein. The Taluk Land Board may depute such officer to make legal enquiry, investigation or inspection and to collect any data, report and records submitted by such officer may be used without examining him as evidenced in the proceedings before the Taluk Land Board, in view of Sub Section 2 of Section 105(A). The Taluk Land Board is also entitled to, if it thinks fit, to examine any such officer, in case, after the objections were filed, no report was call for from the authorised officer invoking the power of the Taluk Land Board under Sub Section 2 of Section 105(A). The records do not reveal that any CRP775/2002 18 such report was call for the Taluk Land Board and consider the case on the basis of the materials available as per the report submitted by the Tahsildar's concerned before initiation of the said proceedings. A report obtained before initiation of suo motu proceedings cannot be treated as evidence against the assessee/declarant unless he gets an opportunity to substantiate his contentions before the officer concerned and also after the inspection of the property on that ground is made. Here there was no inspection at all after the objections were filed. It would appear that the Taluk Land Board has verified the documents produced before it and passed the order on the basis of the documents. It is also not clear whether the assessee wanted any oral evidence to be adduced or whether such an opportunity was granted to adduce evidence. 9. The Taluk Land Board held that in respect of 22.32 acres of land, the property was sold in auction invoking revenue recovery proceedings. It is not verified that reference to any documents as to when exactly the revenue recovery sale took place. It is stated in the order that a major portion of the property auctioned was purchased in the names of the children CRP775/2002 19 of Kumaran. Kumaran was the secretary of Gandhi Seva Sadan. The assessee is not Kumaran but Gandhi Seva Sadhan. It would appear that the Taluk Land Board was under a wrong impression that Kumaran was the assessee. Whether in the revenue recovery auction, the property was purchased by the children of Kumaran by adopting undesirable methods with the assistance of the Kumaran or not. It is not relevant for deciding whether the assessee was holding that particular land as on 1.1.1970. The real question involved was whether the assessee was holding the particular land having an extent of 22.32 acres as on 1.1.1970. If the assessee was in possession, certainly the said extent of land is liable to be included in his compound That was not available as on 1.1.1990 itself, it could not be so included unless it is well established that documents were created in such a manner to screen or the property from the account of the assessee. Here no such case is established and no documentary evidence is available before the Taluk Land Board to establish the same. A report submitted by the authorised officer that major portion of the property sold in auction was purchased by Kumaran's children was not sufficient for the Taluk Land Board CRP775/2002 20 to hold that the assessee holding that an extent of land as on 1.1.1970. If the view taken by the Taluk Land Board is to be accepted, the net result would be that not only the land revenue recovery or but the assessee would surrender that much extent of land out of the property which is now available with it. Such a situation is not contemplate under the Kerala Land Reforms Act. The order passed by the Taluk Land Board in this regard