KUNJANUJAN THAMPURAN Vs. TALUK LAND BOARD

JUDGEMENT

(1.) A common question of some importance is raised is these cases This question is one which frequently arises in revision petitions under S.103 of the Kerala Land Reforms Act, 1963 (hereinafter referred to as the Act) and therefore it has been referred to a Division Bench by one of us sitting single. It has been contended by some of the parties to these petitions that the Taluk Land Board which has the duty of determining the land to be surrendered as excess land under S.85(5) of the Kerala Land Reforms Act, 1963 is obliged to accept the plea that land is held by a tenant who is entitled to purchase the land and as such, such land is liable to be excluded from the scope of ceiling and surrender provisions whenever such a plea is raised. It is their case that it is not open to the Land Board or the Taluk Land Board to assess the sustainability of this plea and consequently there is no discretion in these authorities to reject the plea for exclusion of such lands.

(2.) Chap.3 of the Act concerns the scheme relating to ceiling limit of land and the surrender of excess land envisaged by the Act. S.81 of the Act provides for exempting certain lands from the provisions of Chap.3. The ceiling area of land to be held by a person is specified in S.82. S.83 of the Act prohibits owning or holding or possessing under a mortgage of lands in the aggregate in excess of the ceiling area with effect from the notified date. The date notified is 1-1-1970. S.85(1) obliges any person owning or holding land in excess of the ceiling area notified under S.83 to surrender such land. There is a proviso to this section which excludes certain lands from being taken into account in calculating the excess land to be surrendered under S.85(1). The said section with the proviso, leaving out the Explanation which may not be necessary for the purpose of this case, runs

(3.) A person who owns property held under a lease has an obligation to treat such property as property held by him for the purpose of ceiling provisions subject to the proviso to sub-s.(1) of S.85. That is because it is not every property held by a tenant that vests in the State as on 1-1-1970. S.72 of the Act envisages vesting of landlord's right in Government on a date notified by the Government in this behalf in the Gazette. Such date was notified as on 1-1-1970. The provision in the section operates to vest all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders of karaimas) entitled to fixity of tenure under S.13 and in respect of which certificates of purchase under sub-s.(2) of S.59 have not been issued, free from all encumbrances. There is a proviso to the said section which excludes the operation of the section on holdings or part of holdings in respect of which applications for resumption under the provisions of the Act are pending on such date. It is only parties entitled to fixity of tenure under S.13 that will come within the scope of S.72. We are referring to this only to indicate that mere existence of a lease may not justify the assumption that the land covered by the lease would have vested in the Government.