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2018 DIGILAW 505 (KER)

Kunjiraman Nambiar v. State of Kerala

2018-06-29

DEVAN RAMACHANDRAN

body2018
JUDGMENT : 1. A not so commonly applied Statute, but one which has portentous amplitude, in social engineering imperatives and social justice endeavours, is involved in this case. The Act called into focus herein is the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999 (for short, 'the Act'). 2. The preambular mandate of this Act is “to provide for restricting the transfer of lands by members of Scheduled Tribes in the State of Kerala and for the restoration of possession of lands alienated by such members and for matters connected therewith”. This Act has come into force with effect from 24.01.1986 and is a successor to the earlier Act “the Kerala Scheduled Tribes (Restriction on Transfer and Restoration of Alienated Lands) Act, 1975 (31 of 1975)”, which had been brought into effect on 01.01.1982. However, consequent to the enactment of Act 31 of 75, several proceedings came to be initiated before the various Revenue Divisional Officers, for restoration of possession of tribal lands from non-tribal alienees and attempts to evict them created serious social problems with multi-faceted dimensions. It was noticed that many of the non-tribal alienees had no other land and that when they were evicted, they themselves would become landless and would thus cause a serious threat to law and order. It was to harmonize the interests of the tribals and that of the non-tribal alienees that this Act was brought into effect retrospectively from 24.01.1986, recognising the emergent need to protect small and marginal non-tribal transferees and to re-convey the extent of land in excess of 2 hectares back to the tribal transferers. 3. A look at the most vital facts involved in this case would first be apposite: 4. The disputations in this case revolve around an extent of 2.10 acres of land comprised of in old Re.Sy.No.556/IAIAIA B1A9 of the Panamaram Village. While additional respondent Nos.5, 6 and 7, who are the legal heirs of the original 4th respondent-Smt. Lakshmi, who is now deceased, claim that they are in de facto and de jure possession of the property, the petitioner alleges that the afore-mentioned Lakshmi had trespassed into the property using force, in the year 1997. 5. While additional respondent Nos.5, 6 and 7, who are the legal heirs of the original 4th respondent-Smt. Lakshmi, who is now deceased, claim that they are in de facto and de jure possession of the property, the petitioner alleges that the afore-mentioned Lakshmi had trespassed into the property using force, in the year 1997. 5. The genesis of the proceedings in this case is that when the father of the afore-mentioned Lakshmi, Late Darappan, applied to the District Collector for restoration of the above extent of land in the year 1987, which, he claimed had been illegally retained by the petitioner herein at that time, by invoking the provisions under Section 7(3) of the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999 (for short, 'the Act'). 6. The specific contention of Darappan was that this extent of property was in his ownership and possession and that he had earlier allowed the petitioner to carry on cultivation in tapioca thereon under an oral lease but that the petitioner, thereafter, refused to return the property to him. On such assertion, a petition was made before the District Collector seeking that the said land be restored to the afore-mentioned Darappan under the prescriptions of the Act. 7. It transpires that Darappan died pending this application but that the competent authority issued an order in the year 1996 allowing the said application. This order was challenged by the petitioner herein before the District Collector by filing a statutory appeal, who allowed it, constraining the aforementioned Lakshmi, the daughter of Darappan, to file a writ petition before this Court, numbered as W.P.(C)No.26706 of 2010, which culminated in Ext.P6 judgment. In the said judgment, this Court found that Darappan had died by then and since Lakshmi had not been heard by the District Collector before the appellate order was issued, directions were given to the District Collector to reconsider the matter and take a decision afresh, in terms of law. This finally led to Ext.P8 being issued by the District Collector, wherein it has been held that Smt. Lakshmi is in possession of this property for the last few years and therefore that the claim of the petitioner stands rejected. It is this order has been impugned in this writ petition by the petitioner on various grounds. 8. I have heard Sri. It is this order has been impugned in this writ petition by the petitioner on various grounds. 8. I have heard Sri. Bechu Kurian Thomas, learned senior counsel, assisted by Sri. Tony Jose, appearing for the petitioner and Sri. M.P. Ashok Kumar, the learned counsel who had earlier appeared for deceased 4th respondent and now appearing for additional respondents 5, 6 and 7. 9. The provisions relating to transfer of land by the members of the Scheduled Tribes and the prescriptions of such transfers being deemed as invalid are available in Sections 5(1), 7(1) and 7(3) of the Act which reads as under: “5(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any contract, custom or usage, or in any judgment, decree or order of any Court, any transfer of land possessed, enjoyed or owned by a member of a Scheduled Tribe to a person other than a member of a Scheduled Tribe, effected on or after the 1st day of January, 1960, and before the commencement of this Act shall be deemed to be invalid.” Provided that nothing in this section shall render invalid any transfer of land possessed, enjoyed or owned by a member of a Scheduled Tribe to a person other than a member of a Scheduled Tribe effected during the aforesaid period and the extent of which does not exceed two hectares. “7(1) Whereby reason of a transfer of land, which is invalid under Section 4 or Section 5, a member of a Scheduled Tribe has ceased or ceases to be in possession or enjoyment thereof, he shall be entitled to the restoration of possession or enjoyment, as the case may be, of such land. “7(1) Whereby reason of a transfer of land, which is invalid under Section 4 or Section 5, a member of a Scheduled Tribe has ceased or ceases to be in possession or enjoyment thereof, he shall be entitled to the restoration of possession or enjoyment, as the case may be, of such land. 7(3) On receipt of an application under subsection (2), the Revenue Divisional Officer shall make or cause to be made, necessary inquiries in respect of such application and if he is satisfied that the applicant or the person on whose behalf the application has been made is entitled to restoration of possession or enjoyment, as the case may be, of the land mentioned in the application, he shall, by order, direct the person in possession or enjoyment of such land to deliver possession thereof to the applicant or to the person on whose behalf the application has been made, or, as the case may be, to allow him to enjoy such land.” 10. It is clear from the afore-extracted provisions of the Act that any transfer effected by a member of a Scheduled Tribe to a person who is not such a member on or after the first of January, 1960 is invalid and void. This is, of course, subject to the caveat inbuilt into the proviso that even such a transfer effected by a member of the Scheduled Tribe during the period of time shown in Section 5(1) would not be invalid, provided the extent of the property so transferred does not exceed 2 hectares. This particular proviso has some impact in this case because concededly the extent involved herein is less than 2 hectares. That being so, when a land comprised of an area over the extent shown in the proviso to Section 5(1) is in possession of another person under a transfer of the kind specified in the said Section, the member of a Scheduled Tribe can apply under Section 7(3) of the Act for its restoration to him/her. This is the basic scheme qua the restoration procedure mandated by the Act. 11. In the instant case, the claim put forward by Darappan was that he was in possession of the land for the last several decades and that he had only entrusted the property to Sri. Kunjiraman Nambiar, the petitioner herein, through an oral lease for tapioca cultivation. He asserts that Sri. 11. In the instant case, the claim put forward by Darappan was that he was in possession of the land for the last several decades and that he had only entrusted the property to Sri. Kunjiraman Nambiar, the petitioner herein, through an oral lease for tapioca cultivation. He asserts that Sri. Kunjiraman Nambiar refused to give back the property after the said lease. This led to Ext.P4 order being issued by the Revenue Divisional Officer in favour of Sri. Darappan, even though by then he had unfortunately died. When this order was challenged in an appeal before the District Collector by the petitioner, the same was reversed and the said authority issued Ext.P5 order finding, inter alia, that since the area in question is 2 hectares, the provisions of the Act does not apply on account of the afore-extracted proviso to Section 5(1). However, as I have already indicated above, this order was set aside by this Court directing a fresh consideration. It is in such circumstances that Ext.P8 order has been issued by the District Collector. 12. I have examined Ext.P8 order which is impugned in this writ petition with great amount of care. 13. I encounter an implicit hadi-cap while evaluating the legality of Ext.P8, since many of the factual factors presented in this case are extremely vague and amorphous. As I have said above, the provisions of the Act would have been called for only if the factum of the transfer of the property to the petitioner had been proved. However, no where in Ext.P8 order does it say that such a transfer had been effected either by Darappan or his legal heirs. Even though the pleadings would reveal that Smt. Lakshmi-the fourth respondent herein, has made a specific asseveration that her father had entrusted the property to the petitioner under an oral arrangement to cultivate tapioca, even this is not referred to by the District Collector in Ext.P8 order. The said order deals with the matter as if it is a civil dispute between the parties and concludes that Sri. Kunjiraman Nambiar, the petitioner herein, has not been able to prove title over the property in question. The said order deals with the matter as if it is a civil dispute between the parties and concludes that Sri. Kunjiraman Nambiar, the petitioner herein, has not been able to prove title over the property in question. It further goes to say that Smt.Lakshmi, the fourth respondent herein, has been in possession of the property for a few years now and therefore, that the application of the petitioner, Sri.Kunjiraman Nambiar, for establishment of his title deserves to be rejected. I am surprised at the tenor of this order because what was enjoined upon the District Collector was not to decide the title of Sri.Kunjiraman Nambiar but to verify whether the property in question had come to the possession of the petitioner - Sri.Kunjiraman Nambiar on account of a transfer effected by a member of Scheduled Tribe after the 1st of January, 1960. This imperative adjudication has never been done by the District Collector in Ext.P8 order and for that single reason, I am certain that it suffers from the vice of having been issued by the said Authority without proper application of law or mind. 14. That being said, however, I do not propose to change the status quo presently available with respect to the property for the singular reason that Ext.P8 order affirmatively states that Smt.Lakshmi had been in de facto possession of the property for some years prior to the date of the said order. Though the petitioner does not concede that Smt.Lakshmi or her legal heirs are in legal possession, he virtually admits that she had been able to construct a hut thereon and that she has also been able to obtain orders of mutation in her name, which, in fact, is under challenge in another writ petition, namely W.P.(C) No.18267 of 2012. Therefore, the factual indubitable reality appears to be that by some method, be it legal or otherwise, Smt.Lakshmi has managed to be in possession of the property for a few years at least and that she has even been able to obtain legal sanction for such possession by being able to obtain transfer of registry in her name, which, of course, is under challenge in another writ petition. 15. 15. In such view of the matter, since the property in question had already been reduced into the possession of Smt.Lakshmi even before her death, no further purpose would be served by any exercise under the provisions of Section 7(3) of the Act, since any action within its ambit will be warranted only if a member of a Scheduled Tribe applies for restoration of possession of lands lost through the manner mentioned in Section 5 of the Act. Therefore, the validity of Exhibit P8 order, ostensibly issued under Section 7(3) of the Act, has now become unnecessary of my consideration, as I have already said above, the petitioner concededly is now not in possession of the property. 16. Sri. Bechu Kurian Thomas, the learned senior counsel appearing for the petitioner at this time submits that the possession managed to be obtained by Smt. Lakshmi cannot be construed to be legal and that his client has, therefore, filed O.S.Nos.123/2008 and 48/2009 before the Sub Court, Sulthan Bathery seeking for injunction and damages respectively, against her and after her death, against her legal heirs. The learned senior counsel also says that the possession of Smt.Lakshmi found in Ext.P8 order is impermissible in law because she took advantage of the first order of the RDO afore noticed, which was subsequently set aside, to virtually trespass into the property and to construct a hut. 17. Whatever be the submissions of the learned senior counsel for the petitioner as afore recorded, the fact remains that the provisions of the Act no longer have any relevance because, right or wrong, Smt.Lakshmi or persons claiming under her, appear to be holding possession of this property, which, as contended by the petitioner, may not be legal or otherwise. However, as long as the property is outstanding in possession of either Smt.Lakshmi or people claiming under her, the remedy of the petitioner will be to invoke apposite civil processes against such alleged trespass, for which, the conclusions in Ext.P8 would have no bearing whatsoever. Since the application of the provisions of the Act, as I have said above, has now lost complete relevance, I do not think that the directions in Ext.P8 should continue to hold the field. 18. Since the application of the provisions of the Act, as I have said above, has now lost complete relevance, I do not think that the directions in Ext.P8 should continue to hold the field. 18. In view of the above, I order that the status quo with respect to the property will be maintained by both sides as of now subject, of course, to the orders to be issued by the competent Civil Courts in this matter but I clarify that their internecine claims and rights will not be affected or guided, in any manner, by Ext.P8 order. 19. The impugned Ext.P8 order, therefore, except to the extent to which it records that Smt. Lakshmi has been in physical possession of the property in question for the last few years, is hereby set aside as being unnecessary and redundant in the circumstances afore and leaving the parties to their respective rights and remedies, as may be available to them, under the civil law. This writ petition is thus ordered.