DEWET VAN INGAN Vs. LAND

JUDGEMENT

(1.) THESE eleven writ petitions arise out of the same facts; and they seek the same kind of reliefs. The questions arising in these cases are also the same; and therefore, they were heard together and are being disposed of by this single judgment.

(2.) THE petitioners in all these cases are the same; and they are the two co-owners of a coffee plantation, having an extent of 261-71 acres in R. S. 454/ 4-A2 and other survey numbers in Tirunelli Amsom, North Wyna d , Cannanore District. Respondents 1, 3 and 4 in all these cases are also the same. THEy are the Land Tribunal, Tellicherry, the Assistant Collector, Tellicherry, and the State of Kerala respectively. THE second respondent in these cases are different persons; and they are said to be mazdoors working in the plantation under the petitioners, and living in the coolie lines provided by the petitioners for the residence of the mazdoors. S. 29 of the kerala Land Reforms Act, 1963 (hereinafter referred to as the Act) provides for preparation of record of rights in respect of cultivating tenants. THE cultivating tenant' is defined in S. 2 (8) of the Act as a tenant, who is in actual possession of and is entitled to cultivate the land comprised in the holding. THE word 'holding' is also defined in S. 2 (17) of the Act, meaning a parcel or parcels of land held under a single demise by a tenant from a landlord, and shall include any portion of a holding as above defined which the landlord and the tenant have agreed, or are bound under S. 48 or otherwise, to treat as a separate holding. THE word 'tenant' is also defined in the Act in S. 2 (57); and it is not necessary to refer to that definition. S. 29 of the Act reads as follows: "29. Preparation of record of rights: (1) Any cultivating tenant may, at any time within one year from the commencement of this Act, apply to the Land Tribunal for the preparation of a record of rights in respect of the holding. THE Land Tribunal shall admit such application if it is prima facie satisfied that the application has been made bona fide. (2) Notwithstanding anything contained in sub-section (1), the Government may suo motu direct the Land Tribunal for the preparation of a record of rights in respect of any holding. (3) Where an application for the preparation of a record of rights is admitted or when directed by the Government to prepare such record, the Land Tribunal shall direct the Revenue Divisional Officer having jurisdiction over the area in which the holding is situated to prepare a record of rights in respect of the holding. (4) THE record of rights shall be prepared in such manner as may be prescribed, after giving an opportunity to the landlord and all other interested parsons to be heard. THE record of rights shall contain (a) the description and extent of the holding; (b) the name and address of the owner; (c) the nature of the applicant's interest in the holding; (dj the name and address of the intermediaries in respect of the holding and the nature of the interest of each of such intermediaries; (e) such other particulars as may be prescribed. (5) THE Revenue Divisional Officer shall, for the purpose of proceedings under the section, have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavit;"and (d) issuing commission for the examination of witness or for local investigation. (6) THE record of rights prepared under this section shall be admissible in evidence before any court or tribunal. (7) Where an application for the preparation of a record of rights in respect of a holding is admitted, no application under S. 31 for determination of fair rent in respect of that holding shall be disposed of till the record of rights is prepared under this Section. " By an order dated 7121964, the fourth respondent directed the first respondent to prepare record of rights in respect of the holdings of tribals in North Wynad; and pursuant to the said order, the first respondent directed the third respondent under S. 29 (3) of the Act to take necessary action. R. 14 to 17a of the Kerala Land Reforms Tenancy Rules (hereinafter referred to as the Rules) are the Rules regarding the preparation of record of rights. THE third respondent obtained applications from the second respondent in all these eleven cases in Form 4 prescribed under the Rules. He got a preliminary enquiry conducted in the matter by the Special Tahsildar, mananthur, and published the requisite notice in Form 6 under R. 16. He also issued notices in all the eleven applications to the first petitioner in Form 7. THEse notices have been marked as Ext. P. 1 in each case. Some of them are dated 23rd April, 1966, while others are dated 19th March, 1966. Except for the difference in the name of the tenant and the extent of the land, all these notices are in the same terms. It is, therefore, sufficient to refer to the notice issued in one of these cases; and I shall refer to the one in O. P. No. 1504 of 1967. It reads as follows: "form No. 7 (Notice to individuals) (S. 29 & r. 16) O. P. 811/66 Office of the Revenue Divisional Officer, Tellicherry. Name of Tenant: Chelur Kuruman Bollu, S/o Martian, Tirunelly Village, Trissileri desom. NOTICE Take notice that as per orders of the Government and the direction of the Land Tribunal, Tellicherry, the enquiry regarding the preparation of records of rights in respect of the land specified in the schedule hereunto has been posted to 6 51966 at 11 a. m. at Taluk Office. Manantoddy. You are hereby directed to appear in person or by authorised agent at the hearing and put forth your claims and objections, if any, in this matter. If no such appearance is made, the matter shall be decided ex-parte. Table:#1 Dated this the 23rd day of April 1966. Sd/ R. D. O. Tellicherry. " To: Applicant, J. Dewe Van Ingen, Besel Handi Mysore. " I shall also state the extent of the land shown in the notices issued in the other cases. It is 11 cents in O. P. 1506;10 cents each in o. P. Nos. 1505 and 1514; 7 cents each in O. P. 1507,1508 and 1511; 5 cents in o. P. 1509, 8 cents in O. P. 1510, 13 cents in O. P. 1512, and 18 cents in O. P. 1515 of 1967. THE first petitioner appeared before the third respondent and filed an objection, which is marked Ext. P2 in OP. 1504 of 1967. THE same objection has been filed in all the other cases. Ext. P2 reads as follows: 'before the RDO. Tellicherry OP. 811/66 Chelur Kuruman Bollu, S/o Mathan. J. Dowet & Joubert van ingen. I am the co-owner of the Kartikulam and Alathur estate. THE other co-owner is Mr. Joubert van Ingen, my brother. THE Survey No. of my property is RS. 454/4a2. THE area of the property comes to 261. 71 acres. This property was originally a tea and orange estate and now we have converted it into a coffee estate. THE petitioner was a worker at my estate. He being a coolie, a but was constructed by us with our own funds within our estate near the boundary. This was done only for the convenience of the coolies working at our estate. THEre are many such permanent and temporary coolies. THEy would not live in the lines specially built for them. Some of such workers have filed petitions like this before the Land Tribunal. Many have taken their gratuity and although they were asked to vacate they are still staying in the house. THEy have absolutely no right for the but or place. THE area is within our estate. THE revenue is paid by us. This is a dry developed area and is a plantation. Under the above circumstances it is prayed that the petition may be dismissed. Sd/- J. Van Ingen. "

(3.) THE main contentions urged by the learned counsel are the following: - 1. THE lands, in respect of which record of rights was prepared in these cases, are comprised in and form part of a plantation, and, therefore, S. 29 of the Act relating to preparation of records does not apply to the case; 2. THE second respondent in any of these petitions is not a cultivating tenant as defined in the Act and that none of them has a holding in respect of land for which the record of rights was prepared; 3. THE enquiry relating to the preparation of the record of rights was conducted by the Special Tahsildar. This is contrary to the statutory provisions in that respect, and it vitiates the whole procedure; 4. THE petitioners were not given any reasonable opportunity to substantiate their objections; and 5. THE procedure adopted by the third respondent was in violation of the Rules, and also the principles of natural justice.