The petitioner challenges Exts.P7 and P8. Ext.P7 is the notice issued by the Revenue Divisional Officer, Ottapalam calling upon the petitioner to surrender certain item of land directed to be surrendered in terms of an order dated 28.4.2011. Ext.P8 is the said order. Ext.P8 came to be issued in accordance with the provisions of Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999. A perusal of Ext.P8 order indicates that the petitioner was in possession of land belonging to a scheduled tribe. Orders were passed on 13.10.1995 in TLA.1545/87 calling upon the petitioner to surrender the land in possession of the petitioner having an extent of 7 acres in Agali village. After the Act, 1999 coming into force the petitioner was entitled to the benefit of holding upto 2 hectares. Therefore after issuing notice to the petitioner orders were passed calling upon him to surrender the balance extent of land after demarcation.
2. The main contention urged by the petitioner is that he was not served any notice whereas only Ext.P7 was served on him. That apart the property involved is not belonging to a tribe, whereas the same was patta land which he had obtained by way of assignment.
3. Counter-affidavit is filed by the third respondent supporting the stand taken by them and inter-alia contending that there was no dispute regarding the nature of land as evident from the order dated 13.10.1995, and thereafter the petitioner cannot take a contention that the property is not a tribal land. Though notices were issued subsequently since the petitioner was not residing in the property, the same could not be served on him. It is, therefore, contended that when reports clearly indicates that the property involved is a tribal land, the Revenue Divisional Officer is entitled to pass an order under the Statute.
4. Having regard to the above factual situation the question to be considered is whether the petitioner is served with any notice before passing the impugned order Ext.P8. The learned Govt.Pleader placed on record the files in this connection and it is seen that a notice dated 9.10.1995 fixing the hearing on 12.9.1995 is seen served by registered post with acknowledgment due. The acknowledgment indicates that the notice had been received. According to the learned counsel for the petitioner, the signature is not that of the addressee. At any rate the order is seen passed on 13.10.1995. It is clear from the aforesaid particulars made available that there was no sufficient service of notice on the petitioner. Even the endorsement in the acknowledgment card indicates that it was served only on 11.10.1995. Under such circumstance even assuming that notice was served is not sufficient notice to enable the petitioner to defend the case on 13.10.1995. That apart, it is clear that when the 1999 Act came into force, fresh proceedings were taken and the respondent authorities issued notice to the petitioner. There is no material to indicate that such notice has been served on the petitioner. Under such circumstances, when the petitioner has a valid case that the property involved is not a tribal land it is a matter to be enquired into after giving a proper opportunity to the petitioner to adduce evidence to prove their contentions. Hence I am of the view that this writ petition is liable to be allowed and accordingly the same is allowed with the following directions:
(i) Exts.P7 and P8 are hereby set aside.
(ii) The third respondent shall reconsider the entire issue after giving opportunity to the petitioner to file necessary representation and documents to prove his claim
(iii) The petitioner shall appear by himself or through authorised representative before the third respondent on 14.7.2014 at 11.00 am. and thereafter continue to appear or make arrangements for appearance on the respective posting dates.
(iv) The third respondent shall complete the proceedings within a period of six months thereafter.
Sd/-
A.M.SHAFFIQUE, (Judge)
Kvs/-
// true copy //
PA TO JUDGE.