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2018 DIGILAW 888 (KER)

Abhilash TM v. State of Kerala

2018-11-01

K.HARILAL

body2018
ORDER : K.Harilal, J. 1. The petitioner is the declarant in S.M. 1/17 on the files of the Land Board, Adoor, Pathanamthitta District. According to the petitioner, he had purchased an extent of 06 hectors, 59 acres and 80 sq.metres, which is equivalent to 16 acres and 30 cents and 285 sq.links in various survey numbers in Pallickal Village, Adoor Taluk, Pathanamthitta District, by virtue of sale deed No. 2253 of 2008 of the Sub Registrar Office, Adoor and he has effected mutation in revenue records. He has been in possession and enjoyment of the said property and has been cultivating rubber. 2. According to the petitioner, the entire property is a rubber plantation as on 01/04/1964. The 2nd respondent directed the petitioner to file objection, if any, to the draft statement issued to him. Thereafter, the petitioner filed a statement on 10/10/2017, stating that the properties mentioned in the draft statement is Rubber plantations and are to be exempted from surrender. Subsequently, he a:: submitted an additional statement with more details on 15/02/2018. On the basis of the statement submitted, the authorised officer conducted a site inspection and submitted a report, stating that these properties are plantations pr 1964 and it is remaining as plantation at present. Before submitting the report he has conducted a full-fledged enquiry, as regards the nature of the land a a 01/04/1964, according to the petitioner. So, there is no reason to discard the said enquiry report. 3. Moreover, the Rubber Board furnished the details regarding the property stating that the property bearing Rubber Board registration No. KNR 877 is plantation. But, the 2nd respondent in a hasty manner, without property considering the report of the authorised officer, passed the impugned order dated 24/07/2018, directing the petitioner to surrender 00.75.985 hectors, which is also a part of the entire plantation. Thus, it is ordered by the 2nd respondent that as per Section 85 of the Kerala Land Reforms Act, 1963 (hereinafter referred to as 'the Act'), properties which were scheduled under schedule D has to be surrendered by the petitioner. The legality and correctness of this order = challenge in this C.R.P.(LR). 4. Heard the learned counsel for the petitioner and the lear = Government Pleader. 5. The legality and correctness of this order = challenge in this C.R.P.(LR). 4. Heard the learned counsel for the petitioner and the lear = Government Pleader. 5. The sum and substance of the argument advanced by the leare counsel for the petitioner is that the 2nd respondent has ignored the evidence available on record, which would prove that the entire plantation is a rue: -plantation. The learned counsel drew my attention to the report submitted by Village Officer, stating that the entire plantation by name 'Njarakkal Plantatior a rubber plantation prior to 1964. But, going by the said report, it could be see -that Village Officer has not identified the property with reference to the sure numbers or boundary or extent. 6. That apart, going by the impugned order under challenge, it could be seen that the documentary evidence adduced by the parties are not shown as exhibits or under appendix. Therefore, it is not discernible from the impugned order that, what kind of evidence was adduced by the 2nd respondent the determination of excess land. This Court is of the opinion that since the order" under challenge is a quasi-judicial order, the 2nd respondent should have shown the exhibit or appendix, in the impugned order under challenge to understand the evidence considered by the 2nd respondent. In the absence of such an appends the impugned order under challenge cannot be treated as a quasi-judicial order That apart, the 2nd respondent ought to have remembered that the order to be passed by the 2nd respondent is an order that can be challenged in revisior before the High Court. Per se, this Court finds that the impugned order itself is a defective one; it cannot be treated as a quasi-judicial order. 7. The learned counsel for the petitioner sought for an opportunity, to adduce further evidence with respect to the property, which is directed to be surrendered This Court has considered the nature and extend of enquiry to be conducted under Section 85 of the Act, by the competent authority, in Ammukunhi Amma v. State of Kerala 2016 (3) KHC 52 and issued a guideline. On an examination of the impugned order, it is seen that the 2nd respondent has not considered the said guideline, while determining the excess land. To sum up, the impugned order under challenge is not sustainable under law. On an examination of the impugned order, it is seen that the 2nd respondent has not considered the said guideline, while determining the excess land. To sum up, the impugned order under challenge is not sustainable under law. However, the petitioner as well as the 2nd respondent is given an opportunity to adduce further evidence. 8. Consequently, the impugned order challenge is set aside. The 2nd respondent is directed to pass order afresh, in the light of the aforesaid decision, after affording an opportunity to adduce evidence to both parties, at the earliest, at any rate, within a period of three months from the date of receipt of a copy of this order. This C.R.P.(LR) is disposed of accordingly. All pending Interlocutory Applications will stand closed.