IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 CRP.No. 671 of 2008() --------------------------------- (AGAINST THE ORDER DATED 30/07/2008 IN CEILING CASE NO.951/TPY/LR6 OF TALUK LAND BOARD, THALAPPILLY TALUK) ...... PETITIONER(S): PETITIONER: --------------------------------------------- PREMACHANDRAN, S/O.PARAYIL KRISHNAN EZHUTHACHAN, AKAMALA, ENKAKKADU, THALAPILLY TALUK. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S): --------------------------- 1. THE TALUK LAND BOARD, THALAPILLY TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, MINISTRY OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM. BY SPL.GOVERNMENT PLEADER (REVENUE) SMT. SUSHEELA BHAT THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.671 of 2008 --------------------------------------- Dated this 22nd day of September, 2011 ORDER A proceeding relating to the surrender of excess land initiated way back in the year, 1975 is being still pursued, now at the instance of a member of the then joint Hindu family who, at the relevant time was a minor and treated as a member of the statutory family. The properties belonged to the late Krishnan Ezhuthassan. After his death his wife, Kunjulakshmi Amma gave statement under Sec.85A of the Kerala Land Reforms Act (for short, "the Act”) as to the availability or otherwise of excess land. The Taluk Land Board, Thalappilly (for short, "the TLB”) passed order on 04.11.1975 directing surrender of 8.15 Acres as excess land. The declarant filed C.R.P.No.2626 of 1975 and by order dated 10.12.1976 this Court directed exemption of 40 cents being house site. Accordingly, the TLB passed revised order directing the declarant to surrender 7.75 Acres. The declarant went in appeal to the Supreme Court in Civil Appeal No.2623 of 1977. Pursuant to the direction of the Supreme Court, the TLB passed revised order directing surrender of 2.67.760 Acres in survey 108/P of Enkakkad Village. That was challenged by the declarant C.R.P.No.671 of 2008 -: 2 :- and ultimately the Supreme Court in Civil Appeal No.689 of 2001 confirmed the said order. Petitioner was treated for the purpose of fixing the excess land as a member of the statutory family since he was then a minor. After he attained majority he made a claim under Sec.85(8) of the Act on 27.03.2008. He raised various claims before the TLB such as that he is entitled to 1/5 share in the property of his father under the Mithakshara Law of Succession as the properties were held by his father as ancestral properties. The TLB based on records petitioner produced, found that he was aged about 13 years as on 01.01.1970 and was to be treated as a member of the statutory family which was taken into account in the previous order. The claim was dismissed by the impugned order which is under challenge. 2. Learned counsel for petitioner contends that subsequent to the decision of the Supreme Court in Civil Appeal No.689 of 2001 whereby the order of the TLB to surrender 2.67.760Acres was confirmed, Secs.7E and 84(4) were brought into the Act by amendment with effect from 18.10.2006. As those provisions were brought into the Act after the Supreme Court disposed of the Civil Appeal No.689 of 2001, claim under Secs.7E and 84(4) of the Act is required to be considered by the TLB. It is the contention of learned counsel that the assignments made by the family in favour of several persons came under the purview of C.R.P.No.671 of 2008 -: 3 :- Secs.7E and 84(4) of the Act and if those assignments are reckoned, the TLB ought to have found that the statutory family inclusive of petitioner is not holding any excess land. It is also contended by learned counsel from the order under challenge that since the excess land, according to the Government was taken possession only on 26.03.2008, none of the provisos to Sec.84(4) of the Act would apply. Learned counsel has also placed reliance in the counter affidavit of the respondent to contend that the land was taken possession only after Secs.7E and 84(4) came into force. 3. Learned Government Pleader has contended that the TLB is not the competent authority to decide whether a person is a deemed tenant coming under Sec.7E of the Act since that is a right vested with the Land Tribunal under Sec.106B of the Act. It is also pointed out by learned Government Pleader that in view of provisos 1 and 3 to Sec.84(4) of the Act, petitioner cannot request this Court or the TLB to reopen concluded proceeding since the excess land was taken possession by the Government as early as on 01.04.2000, much prior to Secs.7E and 84(4) of the Act came into force on 18.10.2006. It is also pointed out by the learned Government Pleader that the statement in the impugned order that excess land was taken possession on 26.03.2008 is a mistake. C.R.P.No.671 of 2008 -: 4 :- 4. The question is whether the contentions of petitioner based on Secs.7E and 84(4) of the Act (if otherwise the provisions applied) could be taken into account notwithstanding the decision of the Apex Court in Civil Appeal No.689 of 2001. The said provisions, I am told, came into effect after the decision of the Supreme Court confirming the order of the TLB. But then, question will arise whether petitioner could request for a re- opening of concluded proceedings in view of the provisos 1 and 3 of Sec.84(4) of the Act. Under the 1st proviso, a re-opening is not possible if the excess land has been physically taken over and distributed to the landless labourer or reserved for public purposes. Under the 3rd proviso, if the excess land was surrendered by or assumed from a person before the commencement of the Amendment Act, 2005, then also, re- opening of concluded proceedings is not possible. On the question when the excess land was taken possession there is difference of opinion between the parties hereto – petitioner relying on the impugned order where it is stated that the Government took possession of the land on 26.03.2008 (he filed the present application on 27.03.2008) and the learned Government Pleader claiming that the land was taken possession on 01.04.2000 as revealed by the records prepared by the officers concerned. C.R.P.No.671 of 2008 -: 5 :- 5. Learned counsel for petitioner contended that Sec.106B of the Act has no application since the said provision applies only in the matter of transferees (from the declarant) who claim exemption of their land as deemed tenants and not to the transferor who contends that the transfer he has made is covered by Sec.7E of the Act and therefore the land assigned is to be excluded while deciding whether there is excess land. 6. As I stated, the amended provisions referred above came into force on 18.10.2006 i.e, after the Supreme Court disposed of Civil Appeal No.689 of 2001 (as I am told). It is to be considered whether it is open to the petitioner to claim benefit of Secs.7E and 84(4) of the Act if otherwise, on facts and law he is entitled to raise that claim. In deciding that, one crucial question is whether re-opening of the proceeding is permissible for which the 1st and 3rd provisos to Sec.84(4) of the Act have to be considered. If the excess land was taken possession and distributed to landless labourers or reserved for public purpose as provided in the Act before petitioner made the claim (on 27.03.2008) or the land has to been surrendered by or assumed from the declarant before the Amendment Act, 2005 came into force, a re-opening of the proceedings cannot be permitted. There is dispute when actually the land was taken possession. That dispute has to be resolved by the TLB. If the TLB finds that C.R.P.No.671 of 2008 -: 6 :- re-opening of the proceeding is permissible having regard to the 1st and 3rd provisos to Sec.84(4) of the Act, it shall consider whether petitioner is entitled to plead Secs.7E and 84(4) of the Act as above stated. Resultantly this civil revision is allowed as follows: (i) The impugned order is set aside and the matter is remitted to the TLB for fresh decision on the question whether the claim of petitioner that the assignments made by the family of which he has been found to be a member are covered by Secs.7E and 84(4) of the Act having regard to the question whether a re- opening of the proceeding is permissible in view of the 1st and 3rd provisos to Sec.84(4) of the Act as well. Both sides shall be given opportunity to produce evidence as to the application of the said provisos. (ii) The TLB is directed to consider the matter and pass appropriate orders after giving both sides opportunity to adduce evidence on the above question as early as possible. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-