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2019 DIGILAW 352 (KER)

Robin v. Taluk Land Board

2019-04-12

A.MUHAMED MUSTAQUE

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JUDGMENT : A. Muhamed Mustaque, J. 1. These consolidated Writ Petitions present a principle issue in regard to the utilisation of the land which was exempted under S.81 of the Kerala Land Reforms Act, 1963 (for short, the “KLR Act”). These matters were heard on different dates. However, it require consolidation on account of common issue arisen in the context of the demand made by the petitioners before the revenue authorities for obtaining possession and sketch etc. for utilising the land for other purposes. 2. I have heard the learned Senior Counsel, Shri N.N. Sugunapalan and Shri Bechu Kurian Thomas, Advocates Dr.George Abraham and Shri T.G. Rajendran on behalf of the petitioners. I have also heard learned Additional Advocate General Shri Ranjith Thampan ably assisted by the learned Government Pleader Shri Jaffer Khan. 3. The question is whether an exempted land under S.81 of the KLR Act on being used for purposes other than which it was exempted, the Government would be justified in rejecting the request for revenue documents which require for using the land for other purposes. There are two sets of landowners, one set of landowner claims that they are using the land for other exempted categories. The other set of landowners are using the exempted land for non exempted categories. 4. The KLR Act is an enactment based on sound principles of social justice. The land was held by the Tillers in different forms like on perpetual lease, the lease which does not require renewal, lease in the name of kuzhikkanam granted to the tenant with a view to improve soil, mortgage known under different names. These holders of land do not have an absolute right to hold and enjoy. The generic title of ownership of land, therefore, is vested with the landlord. There are other types of occupants known as kudikidappukaran, who were in occupation of the hut and had no homestead or land of a specified limit. The KLR Act conferred the title to these occupants through various procedures under the Act. Apart from this, embarking upon the ethos of welfare State, the State also thought fit to restrict the ceiling of the holdings. The State thought that allowing the owner to keep the larger extent of holdings beyond the sphere of economic production would result in inequalities of wealth. Accordingly, the stipulated ceiling limit. Apart from this, embarking upon the ethos of welfare State, the State also thought fit to restrict the ceiling of the holdings. The State thought that allowing the owner to keep the larger extent of holdings beyond the sphere of economic production would result in inequalities of wealth. Accordingly, the stipulated ceiling limit. This ceiling limit is determined with reference notification under S.83. Notification was issued on 1.1.1970. The land above the ceiling limit would be vested with the Government. No person can hold any land in excess of the ceiling limit. The excess land has to be surrendered to the Government. The procedure of surrender is referred to in S.85 of the KLR Act read with the Kerala Land Reforms (Ceiling) Rules, 1970 (for short, the “KLR Ceiling Rules”). It is only thereafter, the land would be vested under S.86. Perhaps these provisions are crucial in this case to decide the fate of these Writ Petitions. 5. Section 81(1)(e) exempt plantation. This exemption form part of Chapter III of the KLR Act. Chapter III provides a restriction on ownership and possession of land in excess of ceiling area and disposal of excess land. Therefore, while calculating the ceiling area, if the land was used for any of the purposes specifically referred under S.81, such land would be excluded for determination of ceiling area as an exempted land. The Apex Court in Karimbil Kunhikoman vs. State of Kerala, AIR 1962 SC 723 as well as the Malankara Rubber and Produce Co. Ltd. vs. State of Kerala AIR 1972 SC 2027 had adverted to the reasons for granting the exemption to the plantations. This was taking note of its contribution to the national economy. Therefore, while fixing the ceiling, larger public interest or State interest weighed in favour of granting the exemption to the plantations. Rest of the non exempted category of land was treated based on the individual perspective. Accordingly, the ceiling was fixed to take over excess land to give it to landless persons. 6. Under S.87(1) a ceiling area can be re-determined if any land ceases to be an exempted land. Therefore, a re-determination of the ceiling would be required. It is alleging that conversion of exempted land, revenue authorities refused to issue revenue certificates sought by the petitioner. 7. There are different views expressed at Bar while arguing in regard to accounting such converted land. Therefore, a re-determination of the ceiling would be required. It is alleging that conversion of exempted land, revenue authorities refused to issue revenue certificates sought by the petitioner. 7. There are different views expressed at Bar while arguing in regard to accounting such converted land. The learned Senior Counsel Shri N.N. Sugunapalanan and Shri Bechu Kurian Thomas argued that such a ceiling will have to be determined with reference to the land held by the holder of the land at the time of conversion and not with reference to the declarant. The learned Additional Advocate General argued that such determinants have to be argued with reference to the declarant and not with reference to the holder of land at the time of conversion. Anyhow, this Court is not deciding on an issue on the ceiling limit. It is a matter to be dealt with appropriately by the Land Board concerned at appropriate stages. 8. The learned Additional Advocate General points out to the amendment made to S.81 sub-clause (4) in the year 2015. The learned Additional Advocate General particularly pointed out to me the object of such an amendment. This amendment was allowing conversion not exceeding 5% of exempted land for certain specified purpose therein. This relaxation as seen from the object of the amendment was on account of the reason that large scale of conversion of exempted land resulted in environment-related problems including pollution and it was with an intention to preserve and conserve the plantation, that amendment was made. Therefore, it is argued that the revenue authorities cannot acknowledge or recognise the conversion of the plantation for other purposes while issuing revenue certificates demanded by the landowners. This argument proceeds on a premise that illegal activity of landowners cannot be acknowledged by the Government which is bound to resist such action by refusing to issue certificates as above. The petitioners appear to have demanded such certificates for the purpose of renewing the licence for existing quarrying, for obtaining environment clearance for extracting granite stones etc. 9. To assume that utilisation of land for other purposes as illegal, one may have to proceed to think that it was a prohibited activity under the provisions of the KLR Act. It has to be assumed that the conversion is illegal and also to be assumed utilisation of land for non exempted or for other exempted purposes would also an illegal activity. It has to be assumed that the conversion is illegal and also to be assumed utilisation of land for non exempted or for other exempted purposes would also an illegal activity. There is no statutory inhibition that an owner of land can utilise the land only for specified purposes. The determination of the ceiling area of land is only with an object of curtailing consolidation of holding of land by individuals or family. The Scheme of the enactment rests on the principles of social justice and equitable distribution of wealth. Therefore, S.85 states that a person who holds the land in excess of ceiling area on the date notified under S.83 shall surrender excess land. This is to redistribute land among landless. The procedure of determination of excess land is referred to as KLR Ceiling Rules. This procedure will have to be followed for determining the land that will have to be surrendered. It is only after the determination of the extent and other particulars of the land, it would vest with the Government under S.86. Therefore, without such determination, the Government cannot claim any right over the land. The land still belongs to the holder of such land. There is no curtailment of nature of use of land contemplated under the various provisions of the KLR Act. The holder of the land is free to use the land as an absolute owner in accordance with law. If the landholder has converted the land by using it for other exempted or non exempted purposes, in a re-determination of the ceiling the extent of which conversion will have to be decided, and holder of land need to surrender only such portion of the land so determined. A Full Bench of this Court recently in Mathew K. Jacob and Another vs. District Environmental Impact Assessment Authority, 2018 (5) KHC 487 at para.13 of its judgment observed as follows: “...We however add that any class of land earlier exempted in the ceiling case can be converted into any class of land not liable to be exempted under Explanation II to S.87 of the Act. The consequence is that the benefit of the exemption would be lost and the extent added to the account of the assessees or the declarant in determination of his ceiling area...” It is also to be noted that once converted land is surrendered after re-determination of land, the Government or the allottee of such land is not under an obligation to use the land as a plantation. 10. Section 81 also exempt commercial site while determining the ceiling limit. According to the petitioners, they are using the land as a commercial site which should qualify for exemption from ceiling limit. Therefore, it was argued that converting the land from one exempted category to another will not deprive them the benefit of the exemption. I need not address this issue in this case as I have already adverted, this is not a case where this Court is called upon to decide the legality of an order passed on this issue by the Land Board. As rightly pointed by the learned Senior Counsel appearing for the petitioners, it is doubtful whether ceiling proceedings can be initiated when land is converted from one exempted category to another exempted category. I leave open the issue. This judgment should confine to decide the right of the petitioners to obtain revenue certificates, I find that on account of the potential action that can be brought against the holder of the land, he cannot be denied his right to utilise the land for any lawful purposes. Till the land is vested with the Government, the holder of the land has absolute freedom to utilise and enjoy the land as a full owner of it. 11. Next question is whether the KLR Act had intended to conserve or preserve the plantation as such. There is no prohibition of conversion under the KLR Act. Had it not been used for plantation, this land would have remained as a non exempted category and could not have been exempted from the purview of the ceiling. Conservation and preservation were not the objectives of the KLR Act. It may be true the very object of allowing conversion under S.81(4) to preserve the plantation as such. However, Legislature while carrying out the amendment was carried away with a notion that original enactment itself intend to preserve and conserve the plantation. In fact, in the original enactment, there was no such object. It may be true the very object of allowing conversion under S.81(4) to preserve the plantation as such. However, Legislature while carrying out the amendment was carried away with a notion that original enactment itself intend to preserve and conserve the plantation. In fact, in the original enactment, there was no such object. In the absence of any provisions under the KLR Act, the objects of the amendment referring to the original intent of the legislature, have no place to interpret the other provisions. The very object of S.81(4) is to relax to the ceiling to the extent of 5% conversion. That is, need to say, on account of such conversion, such 5% will not attract ceiling provisions and nothing else. 12. It is to be noted that based on amendment brought into S.81 by incorporating sub-clause (4), the Government also formulated Rules for using 5% of plantation land for non-plantation purposes. These Rules are known as Kerala Land Reforms (Using of five percent plantation land for non-plantation purposes) Rules, 2015, also refers to consequences of conversion of land in excess of 5%. Rule 7 specifically states that the Land Board would proceed against treating against such conversion as excess land found in possession. Therefore, it is clear that conversion only would visit the consequence of initiation of proceedings for re-determination of the ceiling alone and not beyond that. 13. A Division Bench of this Court in State Human Rights Protection Centre and Others vs. State of Kerala and Others, 2009 (3) KHC 682 (DB) and this Court in Devassia v. State of Kerala ( 2015 (1) KLT 825 ) had taken the view that exempted land will have to be used for the purpose for which it was exempted and on being used for non exempted purposes, proceedings can be initiated for re-determination of ceiling. 14. The holder of the land is entitled to enjoy all such benefits being the holder of the land. He would be entitled to all such revenue documents to utilise the land for any such purposes. 15. The exempted land would also include the land cultivated with food crops referred to under the Kerala Land Utilization Order, 1967 (for short, the “KLUO”). There is an embargo under KLUO utilising the land for other purposes without obtaining orders from the Collector. 15. The exempted land would also include the land cultivated with food crops referred to under the Kerala Land Utilization Order, 1967 (for short, the “KLUO”). There is an embargo under KLUO utilising the land for other purposes without obtaining orders from the Collector. Therefore, in respect of such land, without obtaining permission from the Collector, land cannot be utilised for other purposes. In view of the inbuilt prohibition utilising the land cultivated with food crops under the aforesaid order for other purposes without permission from the Collector, the Revenue authority would be justified in refusing to issue possession certificates and other revenue certificates to enable the holder of the land to utilize for other purposes. However, in respect of other plantation which is not covered by KLUO, revenue authorities are bound to issue such certificates demanded by the holder of the land. 16. This Court is witnessing a large number of cases in regard to utilisation of the land. The land is the immediate concern of a human next to food and sustenance. Due to the scarcity of land in the State, the holder of the land having a high economic interest in the land; the struggle between him and the Government is on the measures taken by the latter to control and regulate the use of the land, are day-today affairs before the Court. Selfish behaviour of an individual can be regulated only through the legislation. The natural character of the land originally stood changed due to the passage of time and also on account of economic interest over such land. The Government is well aware of the struggle of the holder of the land. The large scale of conversion and reclamation of the land resulted in soil erosion and also flooding. In the absence of law regarding utilisation of land, the holder of the land prompted by economic interest is making all efforts to utilise the land to explore its commercial potential. The attempt to thwart conversion of the plantation is obviously laudable. But such an attempt can be regulated and controlled only through plenary power available with the Legislature. It is the duty of the State to legislate when there is a conflict of interest, by regulation and control. This conflict is apparent from the action initiated by the Government. The law is the instrument to avoid persistent conflict of interest and ensure stability. It is the duty of the State to legislate when there is a conflict of interest, by regulation and control. This conflict is apparent from the action initiated by the Government. The law is the instrument to avoid persistent conflict of interest and ensure stability. The Government cannot regulate or control utilisation of the land in the absence of any statutory provisions. The private interest of the holder of the land over the land can be regulated only through the plenary powers of Legislature. Such Legislature presumes regulation or control on a larger community interest or public interest. In order to preserve the original tenure of the land, it is highly necessary to have comprehensive legislation on Land Utilisation. This will bring clarity in regard to the nature of land and also would avoid all potential claim for utilising the land for other purposes. It is necessary to retain the agricultural landscape and greenery of the State. The utilisation of the land could be restricted balancing the requirement to conserve the environment, requirement of food and also the need for commercial and non commercial purposes. It is possible to classify the land - agricultural, residential, commercial, industrial etc., so as to confine sphere of the activity of the holder of the land within the limits of classification. Unfortunately, no efforts have been made by the State to bring any legislation. The judicial control over the use of the land would be available when the threat is imminent based on evidence. Legislature power prevails where it is required to regulate class behaviour. All attempt on the part of the Government on a good cause, therefore, would end in vain in the absence of legislation. Thus, with hope and trust that the State would initiate appropriate action, these Writ Petitions are allowed with the following directions: 17. The petitioners shall be given such revenue documents as demanded, for utilising the land for any lawful purposes without prejudice to the right of the State to proceed against the land to re-determine the ceiling on conversion. This shall be done within one month from the date of receipt of a copy of this judgment. The petitioners, who are given an exemption for plantation cultivated with food crops covered by KLUO need to be given such certificate only based on the order of the Collector under the KLUO. This shall be done within one month from the date of receipt of a copy of this judgment. The petitioners, who are given an exemption for plantation cultivated with food crops covered by KLUO need to be given such certificate only based on the order of the Collector under the KLUO. The impugned orders challenged in the Writ Petitions are set aside. No costs.