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2003 DIGILAW 159 (KER)

Thankamma Jacob v. State of Kerala

2003-02-27

M.RAMACHANDRAN

body2003
Judgment :- 1. Late Mr. John Jacob was in possession of certain extent of properties in Wayanad District, the total area of which was 90.96 acres. In view of the advent of the Land Reforms Act, he had submitted ceiling return under S.85 of the Act on 30.3.1970. After adjudication, the Taluk Land Board, Wayanad on 30.7.1976 by Ext.P1 proceedings held that out of the total area, petitioner will be entitled to retain only 43.48 acres and the balance of 47.08 acres is liable to be surrendered. This was overruling the objections of the declarant that a substantive portion of the land so directed to be surrendered was in fact rubber and coffee plantations. 2. C.R.P. No. 4716/76 had been filed against the order. But this Court did not interfere in the matter. As a matter of fact the Supreme Court had upheld that above said decision and Ext.P1 thus became final in all respects. The learned counsel, Elizebeth Mathai Idiculla points out that the problems of the declarant had not ended up there. 3. In due course, steps were taken up by respondents for taking possession of the land, which was declared to be excess land because of Ext.P1 proceedings. It is submitted by the learned Government Pleader that such possession had been taken over and distribution had been made in respect of a total extent of 37.08 acres as would be seen from the orders passed on 30.12.1982 and 26.6.1992. It was not possible for the Government to take full extent of land as per the order. The situation had arisen, because by that time in view of the proceedings that had been initiated under the Kerala Private Forests Vesting and Assignment Act, 1971, petitioners had been disposed of 10.50 acres of forest land. 4. Under the Vesting Act, Mr. Jacob had been directed to surrender 10.50 acres of private forest held by him. Sri. Jacob had filed petition under S.8 of the Vesting and Assignment Act objecting to the steps as O.A. No. 70/75 before the Forest Tribunal, Kozhikode, which ultimately had been finalised by the Forest Tribunal, Palakkad in renumbered case O.A. No. 49/90. The Tribunal had not interfered with the orders passed and there is clear indication that 10.50 acres have been treated as vested forest and taken over by the Government as such. The Tribunal had not interfered with the orders passed and there is clear indication that 10.50 acres have been treated as vested forest and taken over by the Government as such. This position had been practically conceded in the counter affidavit filed by the Taluk Land Board and as also the Forest Department as could be seen from Ext.P18 produced by the petitioner. 5. Nevertheless, the Taluk Land Board was putting pressure contending for the position that full extent of land that was to be surrendered was not made available by the petitioner. They refused to account for the 10.50 acres of land, which had already been vested in the Government. 6. On the other hand, petitioners took a stand that they were retaining only 43.48 acres of land which had been authorised by Ext.P1. The proceedings by the District Collector, a copy of which is marked as Ext.P4 dated 26.7.1989, indicate that notwithstanding the objections, there was an attempt to take over the full extent of land from Sri. Jacob, without clearly understanding that such portion comprised of properties which were exempted by Ext.P1 order. I am extracting herein the two paragraphs of the letter of the District Collector issued to Taluk Land Board: "Now that Tahsildar, Mananthavady in the reference II cited (copy enclosed) has reported that an extent of 12.20 acres (6 acres plus 6.20 acres) of coffee estate in R.S. No. 294 has been included in the 47.08 acres of land already taken over possession from Sri. M.J. Jacob as surplus land which was actually exempted by the T.L.B., 6.00 acres as per the reference first cited and 6.20 acres as per order T.L.B. 35/73/NW dt. 23.11.74. The position in details have been explained in the Tahsildar's report. The Tahsildar has reported that land under exempted categories was taken possession by mistake and also requested to reconvey the land". 7. In the letter the District Collector had required them to verify as to whether Sri. Jacob is in possession of 12.20 acres to be taken over possession instead of the coffee estate taken over. 8. The Tahsildar has reported that land under exempted categories was taken possession by mistake and also requested to reconvey the land". 7. In the letter the District Collector had required them to verify as to whether Sri. Jacob is in possession of 12.20 acres to be taken over possession instead of the coffee estate taken over. 8. The question to be decided is as to whether there was justification on the part of the Taluk Land Board to insist that they should get the full extent of 47.08 acres and to be surrendered by the petitioner, over looking the stand of the petitioner that from the land which had been so declared 10.50 acres had been treated and taken over as vested forest. 9. The learned Government Pleader, on instructions, submitted that it would not have been obligatory on the part of the petitioner to place the matters of such vesting before the Taluk Land Board before Ext.P1 decision was passed. If so, appropriate observations would have been there in respect of the above portion of land. It is true that pleadings do not indicate these aspects. The explanation of the petitioner is that the vesting proceedings had been subjected to challenge and a final decision had been passed only in the year 1990. 10. However, this appears only to be a technical plea since it cannot be disputed that the materials have been placed to show that 10.50 acres were treated as vested forest and taken possession of. This position had not been disputed as could be seen by Ext.P18. 11. In the counter affidavit filed by the third respondent as also the first respondent before this Court, of course, it is pointed out that there is no definite indication as to the vesting of 10.50 acres of land. But, it has to be noticed that the sixth respondent, has not filed a counter affidavit, controverting the contention of the petitioner that in fact substantive properties had been vested and the averments in the Original Petition to this extent stand uncontroverted. The question is whether it will be possible for the Taluk Land Board to insist that full extent of land ordered by Ext.P1 has to come from the owners or whether the petitioners need have surrendered properties minus the vested forests surrendered. 12. The question is whether it will be possible for the Taluk Land Board to insist that full extent of land ordered by Ext.P1 has to come from the owners or whether the petitioners need have surrendered properties minus the vested forests surrendered. 12. Learned counsel for the petitioner brought my attention to a judgment of this Court in Gopalan v. Taluk Land Board (1987 (2) KLT 1006). Almost identical circumstances arose therein for the Court to consider. In respect of excess land declared, before the actual taking over had been carried out, a portion had been acquired for a public purpose. A contention was raised by the State that notwithstanding the acquisition proceedings the full extent which was liable to be surrendered as assessed had to be made available. In the above case, petitioner had submitted that he is not interested in claiming compensation in respect of the land so subjected to acquisition and as far as he is concerned, he is entitled to retain the land that had been permitted to be retained by him in view of the orders. This position was accepted. The court held that the contra approach of the Government was arbitrary and without any justification. 13. The circumstances that are available in this case is similar. At least as of now, it cannot be disputed that the petitioner had been directed to surrender a large extent as vested forest. The Government have already obtained possession over the forest land. At a later stage respondents cannot insist that notwithstanding such assumption of an extent of 10.50 acres, the petitioner has to find fresh equal area to be surrendered so as to satisfy the orders of the Taluk Land Board as well. 14. The position, it seems, has to be viewed from a slightly different perspective. The petitioners are entitled to retain 43.48 acres, as provided in Ext.P1 and as confirmed by the Supreme Court. The issue has to be appreciated from the side of the declarant as well. Especially in this case, by operation of law there was diminution in respect of the land to be surrendered. The Taluk Land Board authorised petitioners to retain certain amount of land. It was not due to any of their private conduct that the reduction came about. The issue has to be appreciated from the side of the declarant as well. Especially in this case, by operation of law there was diminution in respect of the land to be surrendered. The Taluk Land Board authorised petitioners to retain certain amount of land. It was not due to any of their private conduct that the reduction came about. Therefore the full effect of the order that the petitioners will be entitled to retain 43.48 acres of land could not have gone unnoticed. 15. If we accept a contention otherwise, it would work out injustice. The entitlement of the owners would be drastically reduced for no fault of theirs. The Government will only be entitled to retain possession of the whole balance of 47.08 acres as a cumulative effect of the order of the Taluk Land Board and the impact of the Vesting and Assignment Act. The full eligible extent of land of 43.48 acres therefore is to be permitted to be retained by the petitioners. They are entitled to retain land, permitted to be held by them in view of Ext.P1 order. It is so declared. The Original Petition is allowed to the above extent. There will be no order as to costs.