IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 CRP.No. 198 of 2010() --------------------- TLB(B).1/2009 of TALUK LAND BOARD, BADAGARA .................... PETITIONER/OPPOSITE PARTY: ----------------------------------- VIJAYAKRISHNA VARMA RAJA, SON OF SREEDEVI THAMPURATTI, AYANCHERI KOVILAKOM, P.O.PURACHERRY, VADAKARA TALUK. BY ADV. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH RESPONDENTS/ STATE AND BOARD: ------------------------------ 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, TALUK LAND BOARD, VADAKARA. ADDITIONAL ADVOCATE GENERAL: ADV.SRI RENJITH THAMPAN FOR R1 & 2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.198 of 2010A --------------------------------------- Dated this 13th day of September, 2010 ORDER This revision is at the instance of respondents in the proceeding before the Taluk Land Board, Vadakara (for short, “the TLB”) under Section 85(5) of the Kerala Land Reforms Act (for short, “the Act”). Allegedly since petitioner did not file declaration as required in respect of the land in excess of the ceiling limit, on getting permission from the State Land Board the TLB initiated proceeding against petitioner for surrender of excess land allegedly held by him. After verification of the relevant documents and reports notice was served on petitioner. He, in answer to that notice filed a statement disputing liability to surrender excess land and claiming that he is only one among the 88 co-owners who are members of Ayancheri Kovilakam. It is also contended that in respect of ceiling matter the TLB had already initiated another proceeding (S-24493/04/TLB(B) against 47 persons including petitioner and to whom notices were issued and hence the present proceeding is not maintainable on principles of res judicata and estoppel. The further contention is that for partition of these properties a suit is pending in the court of learned Sub Judge, C.R.P.No.198 of 2010 : 2 : Vadakara as O.S.No.21 of 2003. In the meantime there were several claim petitions in respect of portion of property allegedly possessed by the claimants. The TLB considered the statement of petitioner and claims made by the respective claimants and by the impugned order dated 30-03-2010 has rejected the contention of petitioner and allowed some of the claims. The TLB has found that petitioner is entitled to retain 5 std acres (7 ½ ordinary acres) of land and directed petitioner to surrender the excess land. That order is under challenge. Learned counsel for petitioner has contended that in the light of pendancy of earlier proceeding the present proceeding is not maintainable. Learned counsel has given to me a copy of notice No.S-24493/04/TLB(B) dated 23-10-2004 issued to 47 persons from the TLB. It is also contended that there was no notice given to the remaining co-owners of the property. Reliance is placed on the decisions in Kadeeja Umma Vs. Taluk Land Board (1981 KLT Case No.151) and State of Kerala Vs. Ambika (2001(3) KLT Case No.130). Learned Additional Advocate General in response contended that proceeding referred to in the statement of petitioner did not relate to surrender of excess land and instead a file was opened with respect to the complaint preferred by one Damu Master regarding the excess land. It was in connection with the enquiry on that petition that C.R.P.No.198 of 2010 : 3 : notice was issued to the persons referred to in the notice produced by learned counsel. It is also contended that notice as required under the Kerala Land Reforms (Ceiling) Rules, 1970 (for short, “the Rules”) has been given to the petitioner and as the rule requires, sufficient publication has been made. None has responded to such notice. It is contended that petitioner has no locus standi to complain that notice was not given to other so called co-owners as claimed by the petitioner. 2. So far as the contention regarding pendancy of earlier proceedings is concerned learned Additional Advocate General has explained that it is not concerning surrender of excess land and it was only an enquiry into the petition preferred by one Damu Master. There is no reason why I should reject that statement of learned Additional Government Pleader. Admittedly, there was no order passed by the TLB in that present proceeding directing petitioner or anybody else to surrender excess land. Hence no question of res judicata or estoppel does arise. 3. So far as the claim of petitioner that there are other co-owners interested in the property is concerned, except contending so and that there is a suit for partition pending in the Sub Court, Vadakara it is not disputed before me that no document was produced by petitioner before the TLB to show that he has only C.R.P.No.198 of 2010 : 4 : a fractional interest in the property. 4. So far as notice to other so called co-owners is concerned, that question is not required to be gone into at the instance of petitioner to whom admittedly notice has been given and who was represented before the TLB by counsel. Though it is contended by learned counsel that provisions of the Kerala Land Reforms (Tenancy) Rules is applicable and since the provisions of the Code of Civil Procedure (for short, “the Code”) has also been made applicable there must be personal service of notice as contemplated under Order V of the Code and it is only when personal service is not practicable that publication is required, Rule 12(3) of the Rules say that “wherein any case the TLB is of opinion that service of notice under Sub rule (2) is not sufficient or effective or it is not practicable to give notice under that sub rule to all persons who have or are likely to have any such claim or interest as is specified in that rule, the TLB may cause to be published a public notice in Form No.4 in daily newspapers having wide circulation in the area”. In paragraph 2 of the order it is stated that the said requirement was complied. Learned Additional Advocate General states that though the Government took possession of the property in April, 2010, none of the so called co- owners has come forward making any claim over the property. C.R.P.No.198 of 2010 : 5 : This of course is disputed by learned counsel for petitioner who states that operation of the impugned order was stayed by this court from 06-04-2010. 5. Suffice to say, petitioner has been given notice and he has been heard. As I stated now there is no material placed before this court to show that petitioner is only a co-owner. 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. Hence the contention that notice was not given to other (so called) co-owners is not required to be gone into in this proceeding at the instance of petitioner. I therefore find no reason to interfere with the impugned order. 6. Learned counsel has contended that at any rate petitioner should have given option to surrender the land. In response it is contended that no such claim was made before the TLB. Assuming so, it only meant that petitioner cannot as of right ask for option but that does not prevent this court from giving him opportunity to exercise option on principle of equity. Having regard to the facts and circumstances of the case I am inclined to give that privilege to the petitioner but, that shall not in any way affect the purpose for which the Government allegedly proposes to use the surrendered land. C.R.P.No.198 of 2010 : 6 : Resultantly this revision petition is dismissed for the reasons aforesaid. But I make it clear that the TLB shall, if requested for within two weeks from this day give opportunity to the petitioner to exercise the option regarding land to be surrendered subject of course to the rider that option shall be exercised without in any affecting the object to which Government (allegedly) proposes to use the surrendered land. (THOMAS P JOSEPH, JUDGE) Sbna/-