IDICHERIYA v. STATE OF KERALA — 1976 DIGILAW 206 (KER)

Judgment :- 1. The petitioner who has been directed by the order of the Taluk Land Board, Pathanapuram, under challenge in this revision, to surrender an extent of 5.72 acres of land, attacks the order on several grounds. In Para.16 of his objection to the draft statement published by the Taluk Land Board he had mentioned that certain alienations made by him before 111970 cannot be held to be invalid since on the dates of those alienations he bad only land within the ceiling limit as determined under the law in force during that time. The alienations effected by him concern 6.90 acres of land and the alienations were in favour of two sons, a daughter and a daughter-in-law and these were in 1967. He had also contended that although these alienations were termed as sales the transferor was ill-advised to call them by that name and really they were gift deeds executed out of natural love and affection towards the donees. In the face of the categorical statement in the sale deeds that the properties were being sold for consideration and without any other material to contradict it excepting the assertion of the petitioner, the Taluk Land Board was not prepared to accept the petitioner's case. I see no reason to take a different view. But the contention raised that the alienations would be valid since on the dates of the alienations the petitioner was holding land less than the ceiling area has not been noticed in the order of the Taluk Land Board. Infact, if the contention was correct in law, the petitioner was entitled to succeed. Vide Joseph v. State of Kerala ( 973 KLT. 701). Therefore, whether the petitioner had only extent below the ceiling area under the law in force at the relevant time is a matter which calls for consideration and the decision with regard to exclusion of this area must be found upon the decision on that question. This question may be re-examined by the Taluk Land Board. 2. It is contended by the petitioner that in items 5, 6 and 7 covering 5.34 acres of land 2 acres is rubber plantation. This point has not been adverted to in the order of the Taluk Land Board. This question may be re-examined by the Taluk Land Board. 2. It is contended by the petitioner that in items 5, 6 and 7 covering 5.34 acres of land 2 acres is rubber plantation. This point has not been adverted to in the order of the Taluk Land Board. But counsel for the Taluk Land Board referring to the remarks received by him points out to me that this is a matter which really engaged the attention of the Taluk Land Board and the Taluk Land Board was convinced on materials available that the claim for exemption cannot stand as there was no rubber plantation prior to 1 11970. I am not going into it, for it is not sufficient that there was some material sufficient to hold so. There must be a finding by the Taluk Land Board. The Taluk Land Board must consider this question of exemption in regard to 2 acres claimed in the objection of the petitioner dated 23 31974. 3. In this revision petition petitioner claims that an area of 45 cents ought to have been exempted as that area was occupied by a public road. Evidently it is a later development of the case. There is no reference to any public road in the objection filed by the petitioner There is no plea of any absence of title in regard to the 45 cents. What is mentioned in passing is that; "From Alencherry Onthu Parambu a road exists to the house. It is more than 45 cents in extent". One could read it only as a private road used by the petitioner and that cannot entitle the petitioner to exemption. The Taluk Land Board has also found that so long as it is not a public road there can be no question of exemption. Any further plea here that it is a public road does not deserve notice. 4. It is contended that an extent of 36 cents in Sy No. 986 should have been excluded since it was not in the possession of the petitioner This was the contention raised in Para.10. This contention did not succeed. Even on the petitioner's averments this contention cannot be sustained. He has no case that he has no title to the 36 cents. He says that he has possession of this and therefore the area should be deducted. This contention did not succeed. Even on the petitioner's averments this contention cannot be sustained. He has no case that he has no title to the 36 cents. He says that he has possession of this and therefore the area should be deducted. Possession is not material for the purposes of S.82 and 83 of the Act If a person holds or owns land the extent of such land should be reckoned for the ceiling area. So long as it is not contended that the petitioner does not own the averment that he is not in possession does not help the petitioner. 5. Lastly the contention concerns one of option. The petitioner seeks to make a fresh option in this court but it is not for this court to accept any option. Any declarant has the right to opt when he files the return. S.85(2) provides for indicating the lands a person desires to retain. The rules provide for exercising the option at any time before the final disposal. Wren once it is so exercised it has to be respected except in cases where it could be rejected on specified grounds, the grounds being those mentioned in the proviso to S.85(6) of the Act. The petitioner cannot seek to exercise any option in revision. 6. He did exercise the option indicating the 8 items of properties as those which he was willing to surrender. Later he added one more by a fresh option statement. Of these 9 items so opted by him the first 4 have been accepted. The other 5 have not been for the reason that they are lands on which there is rubber plantation, lands which were liable to be exempted under S.81(1) (e) of the Act and actually so exempted. An interesting question arises whether a person who may exercise his option to surrender specific items of lands could opt to surrender lands which were to be exempted under sec-lion 81(1) of the Act. A person may seek exemption of lands under S.81 (1) on several grounds. It may be that the land is required for the convenient enjoyment of the dwelling house. It may be that he requires the land for any industrial or commercial undertaking or for the industrial and commercial purposes of the undertaking. A person may seek exemption of lands under S.81 (1) on several grounds. It may be that the land is required for the convenient enjoyment of the dwelling house. It may be that he requires the land for any industrial or commercial undertaking or for the industrial and commercial purposes of the undertaking. It may be that there is a church or mosque, cemetery, burial or burning ground or it may be that the land is a commercial site. The declarant is entitled to seek exclusion of these lands from the list of lands to be taken into account for the purpose of determining the extent of land owned or held by him on 1-1-1970. There is a purpose for these exemptions. Can it be said that in exercising his option a declarant could indicate that surrender must be of land exempted for industrial or commercial purposes or a site required for the convenient enjoyment of the dwelling house or sites which are to be similarly exempted under S 81 (1) of the Act. Sub-section (1) of S.81 commences with the words. "The provisions of this Chapter shall not apply to". In regard to lands falling within the exempted category none of the provisions of Chapter III would apply. Therefore S 82 which provides what the ceiling area of land shall be in the case of families, adult unmarried persons and others does not apply to the exempted category. That means lands within the exempted category are not to be taken into account in determining the ceiling area S.83 prohibits a person from holding, owning or possessing under mortgage lands in the aggregate in excess of the ceiling area. There again owning, holding or possessing under mortgage of lands of the exempted category is outside the purview of S.83. So is the case with S.84 which renders certain voluntary transfers null and void. In S.85 (I) there is provision for obligation to surrender excess land. Here again the obligation does not apply to land falling in the exempted category as the extent of such land would be irrelevant in deciding the question of excess land. The procedure for determination of excess land to be surrendered is indicated in other sub-sections of S 85. In S.85 (I) there is provision for obligation to surrender excess land. Here again the obligation does not apply to land falling in the exempted category as the extent of such land would be irrelevant in deciding the question of excess land. The procedure for determination of excess land to be surrendered is indicated in other sub-sections of S 85. Sub-section (2) is relevant in this context That obliges a person owning or holding land in excess of the ceiling area to file a statement before the Land Board within a specified period. Though normally in the scheme dealt with in the Act such a statement need be only of land other than those in the exempted category specific provision in made is S 85 (2) that the statement must include land of the exempted category. That may be necessary to enable the Taluk Land Board to determine whether the claim for exemption itself is genuine and sustainable. It is evidently for that purpose that provision is made for including the items in respect of which exemption under S.81 is claimed also in the statement. It is further stated in the subsection that the statement has to indicate the lands proposed to be surrendered. The lands proposed to be surrendered are necessarily excess lands and excess land is that to which the exemption does not apply for as I indicated earlier, excess land in the context of the provisions in Chapter III has reference to land other than those in the exempted category. Lands in the exempted category are not referred to as excess land. They do not come in for reckoning at all in determining excess land. Thus the provision in sub-section (2) of S.85 which provides that the declarant is to indicate the lands to be surrendered, read in the light of S.81(1) which excludes exempted lands from the provisions of Chapter III would show that the reference is only to land other than those in the exempted category. Such a construction would be quite consistent with the spirit of the legislation. It would be only logical to assume that for good reasons the legislature thought it necessary to place certain categories of land beyond the purview of Chapter III. It is logical to assume that such land is to be retained by the declarant and other land is to be surrendered if excess is found. It would be only logical to assume that for good reasons the legislature thought it necessary to place certain categories of land beyond the purview of Chapter III. It is logical to assume that such land is to be retained by the declarant and other land is to be surrendered if excess is found. I therefore hold the view that the lands to be surrendered by persons in possession of excess land are lands other than those in the exempted category. The Taluk Land Board was right in this case in declining to accept the offer of the petitioner to surrender certain lands which have been exempted as rubber plantation under S.81(1) (e) of the Act. 7. Nevertheless I find some scope for the grievance for the petitioner in this regard. The purpose of the draft statement to be published by the Taluk Land Board is to enable the declarant to object in case he has any reason to object. One of the matters to be stated in the draft statement is the particulars of land to be surrendered. If a person does not object to this the surrender cannot be of different items of land. The party would not in such a case get any opportunity to answer a case of surrender of other land. Even when a party objects if the objection is rejected the original proposal should follow. In other words, when a party objects to the surrender of items of land shown in the draft statement as those to be surrendered and offers other items instead, if the option is rejected for reasons stated under S.85(6) of the Act the surrender to be directed must be of those items mentioned in the draft statement and not fresh items. If the fresh items have to be directed to be surrendered necessarily the party must be given further notice of such proposal and must be heard on it In the case before me, I find that the last two items mentioned in Part D statement of the final order namely lands comprised in Sy. Nos 122/1705 and 745/1/421 are not seen to be included in the draft statement. They are fresh items. The records do not show that the proposal to demand the surrender of these items was brought to the notice of the petitioner so as to enable him to object to it if he desired so. Nos 122/1705 and 745/1/421 are not seen to be included in the draft statement. They are fresh items. The records do not show that the proposal to demand the surrender of these items was brought to the notice of the petitioner so as to enable him to object to it if he desired so. Hence the question of identity of the land to be surrendered calls for reconsideration. It is not as if there was not sufficient extent of land available among the items shown in the draft statement to cover the area directed to be surrendered. In fact there was much larger extent in the draft statement. Hence in regard to the two items mentioned there must be reconsideration The Taluk Land Board must either confine the direction to surrender to the items mentioned in the draft statement or give notice to the declarant of proposal to call upon surrender of other items and decide it only after hearing the petitioner on that matter. The question of excluding the items covered by the transfers dealt with earlier and the consideration of the claim for exemption of 2 acres of rubber plantation are the only other questions which call for reopening in this revision. To that extent the order of the Taluk Land Board is vacated and the Board is directed to go into the matter afresh and dispose of the case in accordance with law Parties will suffer their costs, in the circumstances. A carbon copy of the order will be issued to the counsel for the Taluk Land Board free of cost.