The petitioners are the claim petitioners under Sec.85
(8) of the Kerala Land Reforms Act, 1963 (for short 'the Act'). The 1st petitioner is the owner in possession and enjoyment of 3.50 acres of land in R.S.No.759/3A1A of Amarambalam Desom as per the registered partition deed No.1066 of 1987 of S.R.O., Nilambur. The 2nd petitioner is the owner in possession and enjoyment of 3.50 acres of land in the same survey number as per the above said partition deed. The 3rd petitioner had purchased an extent of 3.92 acres of land as per the registered document No.2125/92 of S.R.O., Nilambur, from Kalarikkal Kamalavathy Amma who had title and possession over the land as per the same partition deed. The 3rd petitioner had transferred 0.50 acres of land to Mukkatta Masjid-ul-Huddha as per the document No. 2595 of 1995 and after the transfer, the 3rd petitioner is now in possession and enjoyment of the remaining 3.42 acres of land.
2. While so, the Taluk Land Board, Nilambur, initiated ceiling proceedings against one Sri.M.P.Thomas under Sec. 87 of the Act as per S.M.P No.1/2001 and passed an order dated 12/10/2001, directing him to surrender an extent of 9.08 acres of land as excess land in R.S.No.759/3A1A of Amarambalam Village, Nilambur Taluk, including the lands which are in possession and enjoyment of the petitioners. In short, the above said properties which are in possession and enjoyment of the petitioners were included in the total account of the assessee M.P. Thomas.
3. The assessee M.P.Thomas purchased the property from one K.V.Mohammed as per the document No.1613 of 1971 and thereafter he sold 12.19 acres to Kalarikkal Sankaran Nair as per the document No.1180 of 1974 of S.R.O, Nilambur. Thereafter, Sankaran Nair purchased Janmam right of the property as per the purchase certificate No.20/1979 in S.M.P No.604/1978 of the Land Tribunal, Nilambur. Thereafter, he bequeathed the land to the petitioners 1 and 2 and one Kamalavathy Amma from whom the 3rd petitioner purchased the above said property by the registered Will No.57 of 1983 of SRO, Nilambur. Thus, after the death of Sankaran Nair, petitioners 1 and 2 and the said Kalarikkal Kamalavathi Amma were in possession and enjoyment of the land as per the registered Will. Subsequently, they partitioned the land as per the partition deed No.1066 of 1987 and as per the partition deed, the petitioners 1 and 2 are in possession and enjoyment of 3.50 acres of land each and the said Kalarikkal Kamalavathy Amma was in possession of 4.13 acres of land.
4. The grievance of the petitioners is that ignoring all the above transactions effected after 1974, as per the impugned order, the lands including that belonging to the petitioners are directed to be surrendered as excess land, without making an enquiry as to whether the land was an excess land kept secretly in violation of the prohibition under Sec.83 of the Act and sold away by the assessee. When the petitioners came to know the inclusion of their land, they filed a petition under Sec. 85(8) of the Act claiming to re-open the proceedings and to delete the lands belonging to them from the ceiling account of the assessee M.P.Thomas. After hearing the petitioners, the Taluk Land Board, by the impugned order, rejected the application. The legality and propriety of the said order is under challenge in this revision petition.
5. The learned counsel for the petitioners advanced arguments challenging the findings in the impugned order. According to the learned counsel, the impugned order is erroneous, illegal and passed without making any enquiry as to whether the lands were possessed in excess of ceiling limit, kept concealed and subsequently sold away by the assessee. The Land Board miserably failed to consider the claim of the petitioners in its correct perspective. Without looking into the documents produced in evidence and appreciating the same in its correct perspective, the Taluk Land Board rejected the claim mechanically, without application of mind. The Land Board went wrong, by relying on the report of the authorised officer alone. In short, the petitioners' claims were rejected without sufficient reasoning.
6. Per contra, the learned Special Government Pleader advanced arguments to justify the findings of the Land Board. According to the learned Special Government Pleader, since all the transfers were effected after 01/01/1970, such transfers are not valid, in view of the prohibition under Sec.83 and invalidation under Sec. 84 of the Act. The petitioners have no right to be heard under Sec.85(8) of the Act as the only persons who claim rights over the land prior to 01/01/1970 alone can invoke Sec.85 (8) of the Act. In short, the argument advanced by the learned Special Government Pleader is that, in the ceiling proceedings under Sec.87 of the Act, all the lands which were acquired after 01/01/1970 and sold away before the commencement of the proceedings under Sec.87 of the Act can also be included in the account of the assessee, against whom the ceiling proceedings are initiated, notwithstanding subsequent transfers in favour of bona fide purchasers. The learned Special Govt. Pleader further drew my attention to Sec.84 of the Act and pointed out that all voluntary transfers effected after the commencement of the KLR Act can be taken as invalid, while computing the total account of the assessee.
7. I have given my anxious consideration to the arguments advanced at the Bar. The question to be considered is, whether the Appellate Authority has either decided erroneously, or failed to decide any question of law? Admittedly, the proceedings were initiated under Sec.87 of the Act, on the allegation that, the assessee M.P.Thomas had acquired land after the commencement of the ceiling provisions under Act 35 of 1969 with effect from 01/01/1970 and whereon he owned and held land in excess of ceiling area and thereby he is liable to surrender the land which was found in excess of the ceiling area. He was directed to surrender an area measuring 9.08 acres of land from R.S.No.759/3A1A of Amarambalam Village in Nilambur Taluk. According to the petitioners 1 and 2, they are the title holders in possession of the said property from 1983 onwards and the lands in their possession had never been held in excess of ceiling limit by the assessee, as he had no land in excess of ceiling area, when these lands were transferred to Sankaran Nair in the year 1974.
8. Let us examine the devolution of title. It is true that the property originally belonged to Mr. M.P.Thomas and he acquired the property by virtue of sale deed No.1613 of 1971 executed by one K.V.Mohammed. Thereafter, he sold away the property to one Kalarikkal Sankaran Nair by virtue of the sale deed No.1180 of 1974. The impugned order itself says that, according to the report of the Authorised Officer, as per the document No.1180 of 1974 of SRO, Nilambur, Kalarikkal Sankaran Nair purchased 12.19 acres in R.S.No.759/3A1A from the assessee. Thereafter, Sankaran Nair obtained Janmam right as per the purchase certificate No.20/79 in S.M.P.No. 604/1978 of Nilambur Land Tribunal. Subsequently, he executed the Will No.57/1983 of SRO, Nilambur, in favour of his three children, namely, Savithri Amma, Kamalavathy Amma and Sreedharan Nair. Thus, after the death of Sankaran Nair, the above said 12.19 acres of land came into possession of his children mentioned above. Thereafter, the above said children of Sankaran Nair had executed the partition deed No.1066/1987. As per the said partition deed, 3.50 acres of land each was set apart in favour of Savithri Amma and Sreedharan Nair and 3.92 acres was set apart in favour of Kamalavathy Amma. Thereafter, the 3rd petitioner, Palliyalil Moosa purchased the said property from Kamalavathy Amma by virtue of sale deed No. 2125 of 1992. Subsequently, he had sold away 50 cents in favour of Mukkatta Masjid-ul-Huddha as per the document No.2595 of 1995 and now he is in possession of the remaining 3.42 acres of land.
9. Going by the derivation of title, it could be seen that the assessee M.P.Thomas had purchased the land in the year 1971 and he had sold away the land in the year 1974. He was in possession of the disputed property from 1971 to 1974 only. During that period, no proceedings had been initiated against him under Sec.87 of the Act, on the allegation that, after 01/01/1970, he had acquired land in excess of the ceiling area. Admittedly, the ceiling proceedings had been initiated on 25/02/2000, though, the impugned order had been passed on 14/01/2010.
10. Then, the question to be broadly considered is, can the land, which was acquired after 01/01/1970 and sold away before reaching the ceiling limit be included in the account of the assessee, for the ceiling proceedings under Sec.87 of the Act ?
11. Admittedly, there was no excess land as on 1/1/1970. If that be so, the crucial question is, when did the subsequent acquisition cross the ceiling limit? Did the subsequent acquisition of the land involved in this revision petition cross the ceiling limit, when the declarant purchased the said land in the year 1971? No enquiry was conducted on these questions. The finding of the Tribunal is that in the year 2000, the declarant has excess land, including the land which has been purchased after 1/1/1970 and sold away before 2000. In the case on hand, the finding of the Land Tribunal is that the land in possession of the petitioners is one which was purchased in the year 1971 and sold away before 1974. In my view, without conducting an enquiry as to those questions referred above, the land, which was purchased in the year 1971 and sold away in 1974 cannot be included in the account of the declarant in the ceiling case initiated in the year 2000. Can the land purchased in the year 1971 and sold away in the year 1974 be included in the account of the assessee in a ceiling proceedings initiated in the year 2000, unless that acquisition of land, was an acquisition after reaching the ceiling limit and stood as excess land, when the same was sold in the year 1974 ? What had been done by the Tribunal? In the year 2000, all the properties acquired and sold away in between 1/1/1970 and 2000, taken as a whole, and included in the account for calculating excess land. Thereafter proceeded against land which is in the possession of the subsequent assignees.
12. Let us examine the legality and propriety of the methodology adopted in the above computation. The registration of the ceiling proceeding under Sec.87 of the Act itself shows that the assessee had no excess land beyond the ceiling area as on 01-01-1970. Sec.87(1) of the Act reads as follows:
“Where any person acquires any land after the date notified under Sec.83 by gift, purchase, mortgage with possession, lease, surrender or any other kind of transfer inter vivos or by bequest or inheritance or otherwise and in consequence thereof the total extent of land owned or held by such person exceeds the ceiling area, such excess shall be surrendered to such authority as may be prescribed”.
Going by the last limb of the above Section, it could be seen that the liability to surrender land is made applicable to those acquisitions made after 01/01/1970 and in consequence thereof the total extent of land owned or held by such person exceeds the ceiling area. The extent of land to be surrendered is, such excess land acquired in excess only. So, the crucial question emerges from Sec.87 of the Act is, whether the land is a land acquired in excess of ceiling area after reaching ceiling limit.
13. According to Sec. 83 of the Land Reforms Act, with effect from 01/01/1970, no person shall be entitled to own or hold or to possess under a mortgage, lands in the aggregate 'in excess of the ceiling area'. Similarly, according to Sec.84 of the Act, the nullity and voidness are made applicable to certain voluntary transfers made 'in excess of ceiling area'. Thus, acquisition and transfer of land 'in excess of ceiling area alone is prohibited' and invalidated respectively under Secs.83 and 84 of the Act. If that be so, the land which was acquired after 01-01-1970, but sold away before reaching the ceiling limit, cannot be included in the account of the assessee, after a long time, when subsequent acquisitions after the selling of the said land crossed the ceiling limits. The land which had been acquired and transferred, after reaching the ceiling limit alone can be included in the account of the assessee in a ceiling proceeding under Sec.87 of the Act.
14. In view of Secs.83, 84 and 87 of the Act, it can be held that the random and invariable inclusion of land acquired and sold away after 01/01/1970 in the total account of the assessee, without making an enquiry as to the point at which subsequent acquisition after 01/01/1970 crossed the ceiling limit, is impermissible in the ceiling proceedings under Sec.87 of the Act. In my view, each acquisition after 01/01/1970 shall be examined separately so as to find out the point at which the subsequent acquisition after 1/1/1970 crossed the ceiling limit. In the absence of such a definite finding arrived at under proper enquiry, no ceiling proceedings under Sec.87 of the Act can be intiated against that land, which is in possession of the subsequent assignees, as excess land of the assessee. Certainly, even though the subsequent acquisition after exceeding the ceiling limit was sold away, in a subsequent proceedings under Sec.87 of the Act, the said property can be included in the account of the assessee and proceeded against thereunder, if the same was found acquired and held as an excess land beyond the ceiling area, violating the prohibition under Sec.83 of the Act and subsequently sold away in a way attracting invalidation under Sec.84 of the Land Reforms Act, 1963.
15. In the above view, in the instance case, the inclusion of the property involved in this revision petition in the account of the assessee, without making proper enquiry as to the questions referred above, is bad in law and unsustainable.
16. That apart, after purchasing the property from the assessee in the year 1974, Kalarikkal Sankaran Nair approached the Land Tribunal and obtained purchase certificate as per purchase certificate No.20/79 in S.M.P No.604/78 of the Nilambur Land Tribunal. But, the Taluk Land Board has not considered the validity of the above said purchase certificate. It could be reasonably presumed that he got a valid title over the property by virtue of the said purchase certificate obtained by him in accordance with the Act itself, since the issuance of the above purchase certificate in favour of the deceased Sankaran Nair was admitted by the Land Board. There is no circumstance to disbelieve the legal validity or genuineness of the same.
17. The learned Govt. Pleader cited the decision laid down in Malathy Amma v. Taluk Land Board [1988 (1) KLT 350] and submitted that the only persons who claim rights over the land prior to 01/01/1970 can invoke jurisdiction under Sec.85(8) of the Act. But, it could be found that the above decision was held in a proceeding initiated under Sec. 85(5) of the Act, where rights accrued before 01/01/1970 alone need be considered. Moreover, Sec.87(2) says that :- “The provisions of Sections 85 and 86 shall, so far as may be, apply to the vesting in the Government of the ownership or possession or both of the lands required to be surrendered under Sub Sec.(1)”.
Needless to say, all the sub sections of Sec.85 are applicable to the proceedings under Sec.87 also. More importantly, after 01/01/1970, several exemptions have been granted to the transferees under Secs.84(1A) and 7E, who have acquired rights, title and interest over the property after 01/01/1970 etc., by the insertion of the provisions under Act 27 of 1979 and Act 21 of 2006. If that be so, a right to be heard granted to any person interested in the land under Sec.85(8) cannot be restricted or limited to those who have acquired rights over the land before 01/01/1970. I am unable to accept the argument advanced by the learned Special Govt. Pleader as the same would defeat the aim and objects of the Amendment Acts referred above. Such a restrictive invocation of jurisdiction under Sec.85(8) to those who have acquired rights before 01/01/1970 is arbitrary, irrational and unreasonable. Subsequently, exemptions have been granted to those who have acquired rights after 01/01/1970, by way of Amendment Acts 27 of 1979 and 21 of 2006. Therefore, in my view, any person interested in the land involved in the proceedings under Sec. 87 can also file petition under Sec. 85(8) to redress his grievance.
18. Another ground taken by the petitioners in this revision petition is that the Land Board has not considered the petitioners' claim under Section 7E of the Kerala Land Reforms (Amendment) Act, 2005. Going by Section 7E of the Kerala Land Reforms (Amendment) Act, 2005, it could be seen that a person who, at the commencement of the Kerala Land Reforms (Amendment) Act, 2005, is in possession of any land not exceeding four hectares in extent, acquired by him or his predecessor-in-interest by way of purchase or otherwise on payment of consideration from any person holding land in excess of the ceiling area, during the period between the date of commencement of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) and the date of commencement of the Kerala Land Reforms (Amendment) Act, 2005 shall be deemed to be a tenant. Admittedly, in the instance case, Kalarikkal Sankaran Nair had purchased the property from the assessee by virtue of Sale Deed No.1180/74 of SRO, Nilambur, and, thereafter, as per the purchase certificate No.20/79 in SMP No.604/78 of the Nilambur Land Tribunal, he obtained the assignment. Thereafter, he bequeathed the said property in favour of the petitioners 1 and 2 and the predecessor in interest of the third petitioner. Subsequently, they had effected partition of the property by virtue of Partition Deed No.1066/87. Going by the derivation of title, it is seen that the predecessor in interest of the petitioners had purchased the property from the assessee and thereafter, several transactions had been effected. More importantly, the Land Board has no case that in the year 1974, when the assessee sold away the property, he had land in excess of the ceiling limit.
19. Then the question to be considered is, whether the said transaction is hit by Section 84(4) of the Land Reforms Act? Admittedly, the respondents have no case that the land in possession of the petitioners had been physically taken over, and distributed to the landless labourers or for the public purposes as provided in the Act. Similarly, the ceiling proceedings against M.P. Thomas had been initiated under Section 87 of the Act on the allegation that after 1-1-1970 he acquired land in excess of the ceiling limit. As I held above, the Land Board has no case that, in 1974, when the assessee sold the property, he had land in excess of the ceiling limit. Therefore, no way, it could be presumed that the transfer in favour of Kalarikkal Sankaran Nair by way of sale is an act calculated to defeat the ceiling provisions. So also, indisputably, the disputed land has not been surrendered before the commencement of the Land Reforms (Amendment) Act, 2005, and even now, the petitioners are in possession and enjoyment of the property. Therefore, I find that the claim under Section 7E of the Land Reforms (Amendment) Act, 2005 will not be hit by the proviso to Section 84(4) of the Land Reforms Act.
20. In the light of the above discussions, I find that the Land Board has exercised the jurisdiction not vested in it and the findings are illegal and unsustainable. I find that the property claimed by the petitioners cannot be included in the account of the assessee, M.P. Thomas, and the petitioners are entitled to get protection under Section 7E of the Land Reforms (Amendment) Act, 2005 also. It is made clear that the petitioners shall not be directed to surrender the property involved in this revision petition as they are entitled to hold the same. The finding that the land shall vest in Government is illegal and unsustainable.
Consequently, the impugned order under challenge will stand set aside and this Revision Petition will stand allowed.
stu K.HARILAL, JUDGE.
//True copy// P.A to Judge