Full Judgment Text
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PETITIONER:
STATE OF KERALA
Vs.
RESPONDENT:
K. MOIDEENKUTTY & ORS.
DATE OF JUDGMENT: 11/03/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
1996 AIR 1544 JT 1996 (6) 76
1996 SCALE (3)188
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
We have heard learned counsel on both sides.
Leave granted.
This appeal by special leave arises from the order of
the High Court of Kerala at Ernakulam made on October 27,
1992 in CRP No.1399/87. The admitted facts are that K.
Moideenkutty, the declarant under the Kerala Land Reforms
Act, 1961 was found to be in possession of 3171.53 acres of
excess land in Thiruvampadi village. This finding came to be
recorded by the Taluk Land Board, Kozhlkode in its order
dated March 29, 1985 under the Act . That order became
final. Subsequently, the Taluk Land Board reopened the
matter and by order dated August 5, 1986 found that the 877
tenants were in occupation of an extent of 1726.90 acres of
land and that 1444.63 acres was a private forest
Consequently, K. Modieenkutty was not in excess of the land.
That order dated August 8, 1986 came to be challenged in the
revision. The learned single Judge dismissed the revision
upholding the order of the second order passed by the Taluk
Land Board. Thus, this appeal by special leave.
We think that the view of the High Court is wholly
illegal and cannot be sustained. From the order of the Taluk
Land Board it is not clear as to what extent of the lands
was in possession of each tenant and whether it was prior to
the Act came into force or was any purchase certificate
given to them etc. All the details were kept delightfully
vague by the Taluk Land Board. The High Court had not looked
at this aspect of the matter and chose to confirm the order.
Further 1444.63 acres of said land were found to be private
forest with the finding that the settlement officer had not
taken possession of the land. This finding also is wholly
illegal. It was open to the declarant K.Moideenkutty to
challenge the original order passed by the Taluk Land Board
on March 29, 1985 declaring that he was in excess of the
land; but he did not challenge the order. Was it right for
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the Taluk Land Board to go behind that order and declare
that the declarant was not in excess of the land for the
reason that possession of the land admeasuring 1444.63 acres
was not taken and so it is of private forest. Failure to
take possession of excess land is one facet and declaration
of the said land as private forest is another. Failure to
take possession of the land does not ipso facto establish
that the lands are private forest lands. It was open to the
owner to challenge it but was not done. Unfortunately, the
High Court also had not gone into this aspect nor examined
that aspect from the purview of the Land Reforms Act. The
orders of the High Court and the Taluk Land Board are set
aside. The matter is remitted to the High Court to the
extent of land covered by the land said to be in possession
of 877 tenants, The High Court is requested to call upon
Taluk Land Board to issue notice to all the so-called
tenants and the appellant and after giving reasonable
opportunity to them determine as to who are said tenants in
possession of the land and to what extent and when they came
into possession etc. The Taluk Land Board should give
opportunity to the appellant to rebut the evidence adduced
by the so-called tenants and transmit the recorded facts to
High Court. The High Court would thereafter examine the
matter afresh and then decide the question according to law.
The appeal is accordingly allowed. No costs. Mr. K.
Sukumaran, the learned senior counsel has stated that his
clients have been given purchase certificate by the Taluk
Land Board. It would be open to them to place the same
before the High Court and the High Court is requested to
dispose of it according to law.