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1981 DIGILAW 87 (KER)

GOPALAN NAIR v. TALUK LAND BOARD, TALIPARAMBA

1981-03-26

K.BASKARAN

body1981
Judgment :- 1. The first respondent,the Taluk Land Board, Taliparamba, bad by its order dated 17-3-1976 made in its proceedings No. TLB. 676/ 73 (TBA) directed the revision petitioner (the declarant) who had tiled a statement under S.85 (2) of the Kerala Land Reforms Act, Act 1 of 1964 as amended by Act 35 of 1969 (the Act), to surrender to the Government 0.62 acre of dry land found to have been held by him in excess of the ceiling limit prescribed under S.82(1) of the Act. 2. The petitioner having surrendered 0.62 acre of land to the 2nd respondent, the Tahsildar, Taliparamba, on 23-4-1976 in obedience to the said order dated 17-3-1976 passed by the Taluk Land Board, he later on filed before the Taluk Land Board an application in Form 7A of the Kerala Land Reforms (Ceiling) Rules, 1970 (the Rules), under sub-section (10) of S 85 incorporated by the Kerala Land Reforms (Amendment) Act (Act 27 of 1979) (the Amendment Act) for restoration of ownership or possession or both of the surplus land assumed possession from him. The Taluk Land Board recording a finding that the land assumed possession by the Tahsildar from the petitioner had already been assigned on registry under S.96 of the Act before the commencement of the Kerala Land Reforms (Amendment) Ordinance 8 of 1979, which came into force on 7-7-1979, dismissed the application. It is aggrieved by the dismissal of the application this revision has been preferred by the declarant. 3. Sri V. M. Kurian, the counsel for the petitioner, submitted that the view taken by the Taluk Land Board was not sustainable. According to him the bar under proviso (b) to S.84(1A) incorporated by the Amendment Act would apply only to "land which has been assigned on registry under S.96 before the commencement of the Kerala Land Reforms (Amendment) Act, 1979". His reasoning is that in as much as it was not the land gifted by the petitioner to his daughter on 30-10-1974 that was surrendered in pursuance of the order passed by the Taluk Land Board, the bar contained in proviso (b) to S.84(1A) would not apply to the present case so as to deprive him of the benefit conferred by sub-section (1A) of S.84 incorporated by the Amendment Act. Sub-section (1A) of S.84, so far as it is relevant tor the purpose of this case, reads as follows: "(1A) Notwithstanding anything contained in sub-section (1), or in any judgment, decree or order of any court or other authority, any voluntary transfer effected by means of a gift deed executed during the period commencing on the 1st day of January, 1970 and ending with the 5th day of November, 1974, by the person owning or holding land in excess of the ceiling area in favour of his son or daughter or the son or daughter of his predeceased son or daughter shall be not deemed to be, or ever to have been, invalid Provided that nothing contained in this sub-section shall apply (b) in respect of any land which has been assigned on registry under S.96 before the commencement of the Kerala Land Reforms (Amendment) Act, 1979." The petitioner's stand at the first flash may appear to be sound; however, on a closer scrutiny of the relevant provisions in the light of the legislative intent and the scheme of the Act, it could be found that the contention could not be sustained The identity of the land which was surrendered by the landowner before the commencement of the Amendment Act in compliance with the order of the Taluk Land Board is not the real issue. What is relevant is whether the extent of the land which formed the subject-matter of the gift or the equivalent thereof is to be deleted from the extent of land held by the petitioner for the purpose of the ceiling provisions of the Act as a result of the validation of the gift deed executed between the period 1-1-1970 and 5-11-1974. The legislature while, by the amendment, relaxed the rigidity of the dead line fixed under S.84(1) of the Act before which gifts were to be executed to be valid for the purpose of the ceiling provisions of the Act, appears to have also thought it impracticable and unnecessary to apply the benefit of such relaxation in respect of any land which had been assigned on registry under S.96 of the Act before the commencement of the Amendment Act 27 of 1979. 4. 4. It has also to be noticed that what proviso (b) to sub-section (1A) enjoins is that nothing contained in that sub-section shall apply in respect of any land which has been assigned, not that it shall not apply to any land which has been assigned. The distinction between the two, however thin it might be, would lend support to the view that the intendment of the legislature was to exclude the benefit of the newly introduced sub-section to the extent to which the land ordered to be surrendered had already been assigned under S.96 of the Act On a harmonious construction aimed at giving effect to the real intention of the legislature, the application of proviso (b) to sub-section (1A) of S.84 could not be restricted to cases where the very land which had been the subject-matter of the gift deed, validated for the purpose of ceiling purposes, had been surrendered to the Government and had been assigned on registry under S.96 of the Act before the commencement of the Amendment Act. 5. We have also to bear in mind the practical difficulty that may have to be encountered if it is construed that the proviso would have no application unless the land assigned on registry under S.96 is any land other than what was the subject-matter of the gift deed, as it would follow then that the land which had already passed into the hands of a stranger is to be taken back to restore it to the person invoking the sub-section. No provision in the Act or the Rules authorising the resumption of the land assigned on registry under S 96 has been shown to me, though Sri Kurian made a faint effort to suggest that sub-rule (1) of R.29 of the Rules provides sufficient safeguard in favour of the Government in that regard. That sub-rule reads as follows:- "Lands assigned under S.96 shall be heritable but shall not, subject to the provisions of sub-rules (2) to (5), be alienable for a period of 12 years from the date of assignment or for the period during which the charge created under sub-section (3) of S.97 subsists, whichever is later." . That sub-rule reads as follows:- "Lands assigned under S.96 shall be heritable but shall not, subject to the provisions of sub-rules (2) to (5), be alienable for a period of 12 years from the date of assignment or for the period during which the charge created under sub-section (3) of S.97 subsists, whichever is later." . This sub-rule, as far as I could see, only restricts the right of the assignee to alienate the land till the expiry of a certain period, it certainly does not clothe the Government with authority to resume the laud assigned on registry. The argument that the assignment by itself dees not confer absolute right or title on the assignee and, therefore, the land could be resumed, does not appeal to reason in the absence of any provision express or implied in the Act or the Rules which would enable the Government or the Taluk Land Board to do so once it is assigned on registry. 6. Sri Kurian then went on to argue that sub-sections (10) to (12) of S 85 introduced by S.12 of the Amendment Act would suggest that the intention of the legislature was that in appropriate cases the land assigned on registry could be taken back from the assignee and that would enable-the Taluk Land Board to restore the land which in terms of sub-section (1A) of S.84 the landowner was entitled to retain Sub-sections (10) add (11) provide only the time within which and the Form in which the application has to be made if a person invokes S.84(1A). Sub-section (12) which provides: "on receipt of an application under sub-section (10), the Land Board or the Taluk Land Board, as the case may be, shall, after giving the applicant or any other person likely to be affected, an opportunity of being heard and after such inquiry as it deems necessary, by order, restore the ownership or possession, or both, as the case may be, of the land" has naturally to be read and understood subject to the restrictions contained in proviso (b) to subsection (IA) of S.84 of the amended Act. That would mean that where proviso (b) applies, the Land Board or the Taluk Land Board would be under no obligation to restore the land taken from a landowner. 7. That would mean that where proviso (b) applies, the Land Board or the Taluk Land Board would be under no obligation to restore the land taken from a landowner. 7. What emerges from the foregoing discussion is that the person seeking restoration of ownership or possession or both by virtue of the provisions contained under sub-section (1A) of S.84 of the Act would not be entitled to that relief from the Land Board or the Taluk Land Board, as the case may be, to the extent to which the land belonging to him, irrespective of the fact whether it was the subject-matter of the gift deed or not, had already been assigned on registry under S.96 of the Act before the commencement of the Amendment Act. The result, therefore, is that the revision fails and is dismissed, however, in the circumstances of the case, without any order as to costs.