STATE OF KERALA Vs. PONGAMPARA LEELA

JUDGEMENT

(1.) The State has come up in revision against the order of the Taluk Land Board, Quilandy dated 15-2-1996. The Taluk Land Board in the order dated 30-8-1980 determined the excess land to be surrendered by Sri. Pongampra Varkey Devassia, the declarant, and directed him to surrender 12.02 acres of land as excess land in his possession. After the remand order dated 15-2-1983 in C.R.P. No. 2844/1980, the Taluk Land Board again considered the matter afresh and by order dated 24-5-1984 re-fixed the excess land to be surrendered as 8.47 acres of land. The assessee unsuccessfully challenged the said order before the High Court in C.R.P. No. 1916/1984 and thereafter in Civil Appeal No. 4152/1995 before the Hon'ble Supreme Court. The order of the Taluk Land Board dated 24-5-1984 has thus become final. Subsequently when proceedings are initiated by the authorities for taking over the excess land as ordered above, two applications under Section 85(8) of the Kerala Land Reforms Act (the Act for short) were submitted by two of the children of the declarant in September 1995. According to them, they are interested in the land directed in September 1995. According to them, they are interested in the land directed to be surrendered, being members of the statutory family of the assessee, and that they are in possession of the land directed to be surrendered. They have also averred in the applications under Section 85(8) of the Act that the petitioners are the minor daughters of the assessee as on 1-1-1970 who are the applicants in the Section 85(8) petition and that both of them are not included as members of the statutory family in the draft statement filed in the proceedings before the Taluk Land Board or in the respective civil revision petitions filed before the High Court. According to the Section 85(8) petitions if both the applicants are included in the statutory family of the assessee, the assessee's family is entitled to hold ceiling area specified in Clause (c) of Sub-section (1) of Section 82. The proceedings before the Taluk Land Board is vitiated since there is absence of intimation under Section 85(7) of the Act and, therefore, the entire proceedings are originated, continued and culminated without jurisdiction. Therefore, they sought for setting aside the orders passed earlier and for redetermining the ceiling area of the declarant after taking into account the applicants as members of the statutory family who were omitted to be included by the authorities.

(2.) Section 85(7) of the Act reads as follows:

(3.) As per Section 82(1)(c) of the Act, the ceiling area of land shall be, in the case of a family consisting of more than five members, 10 standard acres increased by one standard acre for each member in excess of five, so however that the ceiling area shall not be less than 12 acres and more than 20 acres in extent. By the addition of two more members to the statutory family who were omitted in the ceiling proceedings initiated against them also, the statutory family can hold the ceiling area of not less than 12 standard acres and not more than 20 acres in extent. According to the petitioners, the assessee being a six member family, is eligible to retain 20 ordinary acres and, if thus calculated, the land held by the assessee in excess of the ceiling limit is only 47 cents. The learned Government Pleader submitted that the determination of the ceiling area is calculated after considering the objection by the assessee, who is the father of Section 85(8) petitioners, and after conducting a detailed enquiry under Rule 13 of the Ceiling Rules and, therefore, submitted that a plain reading of the provisions relating to the determination in so far as the minor children and their rights are concerned, it is the husband or the wife who would be filing their objections and participating in the enquiry for determining the extent and identity of the land to be surrendered. According to him under these provisions there is no scope for a minor after attaining majority or unmarried daughter after getting married to contend that they are persons interested and determination was done without hearing them. Sub-section (8) of Section 85 postulates an order passed without hearing any interested person. That is, a person must be able to show that he has a claim upon or legal concern in the land. The learned Government Pleader further argued that the petitioners cannot have a claim upon or legal concern in the land in as much as their interest has been determined after hearing their father as per the provisions of Section 85(5) of the Act. Thereafter there is no scope for saying that the determination was without hearing them, that after the determination they have ceased to be a person interested and that they cannot contend that they continued to have a claim or legal concern over the land in spite of the determination. It is also submitted that the status of the persons have been determined as it stood on 1-1-1970, that in almost all families there might have been minor children and unmarried daughters, that the family has been defined so as to include them and determine their rights after hearing their parents and that if the contention is accepted invariably, all the minor children after attaining majority would be persons interested and ceiling cases have to be re-opened. According to him subsequent changes in their status as a major or married minor child cannot alter the determination in fixing the ceiling area.