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2007 DIGILAW 837 (KER)

Sahadevan v. State of Kerala

2007-12-07

K.T.SANKARAN

body2007
ORDER : 1. Proceedings were initiated against the revision petitioners for determination of the ceiling area in respect of the lands held by them, in L.B. 85 of 1973 on the file of the Taluk Land Board, Palakkad. By final order dated 18.1.1984, the Taluk Land Board held that the declarant is liable to surrender an extent of 11 acres and 4.5 cents of land as excess land. Possession of an extent of 6 acres and 41.5 cents was assumed from the declarant. The balance extent to be surrendered by him was 4.63 acres. The Taluk Land Board directed the petitioner/declarant to surrender an extent of 50 cents in Sy.No. 487/4 and 4.13 acres in Sy.No. 487/2, the total extent being 4.63 acres. The 4th respondent filed a claim petition under S. 85(8) of the Kerala Land Reforms Act claiming that he has tenancy right in respect of 50 cents of land in Sy.No. 487/4. The claimant contended that the declarant is not in the possession of the aforesaid extent of 50 cents and that the declarant has no right, title and interest over the said item of land as on 1.1.1970. 2. The Taluk Land Board did not decide as to whether the claimant under S. 85 (8) of the Act has established any tenancy right. It was also not verified by deputing an authorised officer as to whether the declarant was in actual possession of the said extent of land as on 1.1.1970. Instead, the Taluk Land Board, by the present impugned order, made a short cut and directed the declarant to surrender the same extent of 4.63 acres in Sy. No.487/2 alone. The extent of 50 cents claimed by the claimant was taken out of the items of lands to be surrendered but the said extent was not deleted from the ceiling account of the declarant. 3. The method adopted by the Taluk Land Board in disposing of the case, after entertaining an application under S. 85(8) of the Land Reforms Act is not a legal and proper method. Once a claim put forward by the claimant is accepted, the said extent of land so proved to be held by the claimant shall be excluded from the account of the declarant. Once a claim put forward by the claimant is accepted, the said extent of land so proved to be held by the claimant shall be excluded from the account of the declarant. If it is so excluded, necessarily, the total extent of land held by the declarant would be less by the said extent of land which is allowed in favour of the claimant. In such a case, the declarant does not stand to lose since the extent claimed by the claimant and upheld by the Taluk Land Board will go out of the purview of the total extent held by the declarant. Necessarily, after fixing the ceiling area applicable to the declarant, there will be consequent reduction in the extent to be surrendered by him. In the case on hand, if the claim made by the claimant is to be accepted, the declarant need surrender only an extent of 4.13 acres instead of 4.63 acres. The Taluk Land Board, though granted the benefit of excluding the land claimed by the claimant out of the items of lands to be surrendered as excess land, but did not exclude that extent of land from the total extent held by the declarant. Instead, the Taluk Land Board directed that the extent of 50 cents should be taken from another survey number belonging to the declarant. The necessary consequence of a claim being allowed is corresponding reduction in the total extent from the account of the declarant. Instead of doing so, an easy method was adopted by the Taluk Land Board, so that the claimant would not have any grievances, but the declarant alone would be put to prejudice. When a claim is allowed under S. 85(8) of the Act, the declarant would not be entitled to opt to surrender that land under S. 85(6) of the Act nor such option could be accepted by the Taluk Land Board. In case a claim under S. 85 (8) is allowed in respect of a land, it would preclude the Taluk Land Board from accepting the option exercised by the declarant in respect of that land. In case a claim under S. 85 (8) is allowed in respect of a land, it would preclude the Taluk Land Board from accepting the option exercised by the declarant in respect of that land. An option can be rejected by the Taluk Land Board in any of the following three contingencies mentioned in sub-s.(6) of S. 85 of the Act, viz.: (i) The Taluk Land Board has reason to believe that the person whose land is indicated to be surrendered has no good title to that land; or (ii) the land indicated to be surrendered is not accessible ; or (iii) the Taluk Land Board considers for any other reason to be recorded in writing that it is not practicable to accept the choice. 4. The second proviso to sub-s.(6) of S.85 states that where in determining the identity of land to be surrendered, the interest of other persons are also likely to be affected, the Taluk Land Board shall except in cases where all the persons interested have agreed to the choice indicated, afford an opportunity to such other persons to be heard and pass suitable orders regarding the land to be surrendered. A person whose interest is likely to be affected includes a person whose claim could be accepted under S. 85(8). Once his claim is accepted, he need not again appear before the Taluk Land Board to answer the exercise of option by the declarant. In other words, once a claim is allowed under S. 85(8) of the Act, it goes out of purview of exercise of option by the declarant under S.85(6) of the Act. All these provisions would clearly indicate that the Taluk Land Board cannot simply accept the claim of a claimant and at the same time include that land in the total extent of land held by the declarant. 5. The order passed by the Taluk Land Board is illegal and unsustainable and it is liable to be set aside. Accordingly, the order passed by the Taluk Land Board is set aside. The Taluk Land Board shall dispose of the matter afresh in accordance with law and in the manner indicated above. No order as to costs.