NARAYANAN NAMBOODIRI Vs. TALUK LAND BOARD PERINTALMANNA
LAWS(KER)-1974-11-17
HIGH COURT OF KERALA
Decided on November 05,1974

NARAYANAN NAMBOODIRI Appellant
VERSUS
TALUK LAND BOARD, PERINTALMANNA Respondents

JUDGEMENT

On this question we are afraid the Taluk Land Board's decision is, to a great extent, coloured by the fact that the petitioner admitted that the area did not come within the purview of the M. P. P. F. Act. Private forest is defined in the Act as follows S.2(47) "(47) "Private forest" means a forest which is not owned by the government, but does not include (i) areas which are waste and are not enclaves with in wooded areas; (ii) areas which are gardens or nilams; (iii) areas which are planted with tea, coffee, cocoa, rubber, cardamom or cinnamon; and (iv) other areas which are cultivated with pepper, arecanut coconut cashew or other fruit bearing trees or are cultivated with any other agricultural crop". The Land Board will have to decide the question in the light of this definition. The Land Board in its order took into account the definition of private forest' as given m the M.P.P.F Act, forgetting or ignoring the definition of the same in the Act, provided in terms materially different. For that purpose we would remit the case to the Taluk Land Board for decision in accordance with law. If any portion of the land will come within the ambit of the definition of 'private forest' in the Act that will have to be excluded in fixing the ceiling area. C.R.P. 1027 of 1974 is allowed as indicated above and the matter is remitted back to the Land Board for the purpose of fixing the ceiling area after considering whether any portion of the petitioners' land is liable to be excluded in reckoning the 'ceiling area', as being "Private forests" as defined under the Act. No costs. C.R.P. 677 of 1974 In this case the main question raised is that even if it is assumed that rubber plantation was raised after 1464, it will not make the petitioners liable to surrender any portion of the plantation as excess land, as there was no fresh plantation or conversion after 111970. In the light of the view have taken in C.R.P. 1027/74 we have only to reject this contention. As regards the question whether the land was a rubber plantation before 1464 we find no reason to differ from the view taken by the Taluk Land Board The learned counsel for the petitioners pleaded strongly for a remand of the case back to the Taluk Land Board as according to him the petitioners were not given sufficient opportunity to adduce oral evidence in the matter. From the proceedings of the Board it is clear that it is not a case of lack of opportunity for the petitioners to produce relevant evidence, but of failure to produce such evident in spite of sufficient opportunity. Therefore, we dismiss the C.R.P., but without costs in the circumstances. Gopalan Nambiyar, J. - (1.) Both these civil revision petitions arise out of proceedings before the Taluk Land Board under S.85 of the Kerala Land Reforms Act (hereinafter called the Act) for surrender of excess lands held by the respective petitioners. The Board had determined the excess land which the petitioners have to surrender, under S.85(5)(c) of the Act. Aggrieved by the same, the petitioners have moved this court under S.103 of the Act. As a common question of law relating to the interpretation of S.82(4) of the Act arises in the two cases, they were heard together. Though we are disposing of the cases by this common judgment, herein we shall deal with them separately.
(2.) The petitioner in C. R. P. 1027/74 as the head of the family consisting of himself, his wife and two minor children, filed the statement under S.85(2) of the Act before the Land Board intimating the particulars in respect of all the lands held by the family. After the necessary enquiries contemplated by the statute, the Taluk Land Board came to the conclusion that the petitioner has to surrender 12.19 acres in Sy. No. 43/5 and 1.01 acres in Sy. No. 46/3 of Anamangad Village of Perintalmanna taluk as excess land above the ceiling area in the family. Consequently a notice was caused to be issued to the petitioner and his wife calling upon them to file objections, if any, against the extent and identity of lands found liable to be surrendered by the petitioner. In response to this notice the petitioner raised the following objections before the Taluk Land Board: - (1) The lands referred to in the notice are lands exempted from the provisions of Chapter III of the Act as per S.81, as they are "private forests" as defined in the Act; (2) In 1963, the lands were converted into a rubber plantation and were covered by the exemption from the ceiling provisions in favour of "plantations", provided by S.81(e) of the Act; (3) One of the petitioner's sons, Damodaran had acquired ownership over 6.17 acres of land by virtue of a partition in the family and over another extent of 1.31 acres of land under a gift in his favour executed by the petitioner: and therefore an extent of 7.48 acres has, in any event, to be excluded from the land to be surrendered. These objections were overruled by the Taluk Land Board for the reasons indicated hereunder: (1) There is no record with the petitioner to show that the land is a 'private forest'. The petitioner himself admitted that the area did not come within the purview of the Madras Preservation of Private Forests Act. Therefore, the land does not come within the meaning 'private forest' as defined in the Act. (2) The evidence adduced by the petitioner would indicate that the land was converted into a rubber plantation only in 1968, and not in 1963 as contended by the petitioner. (3) Damodaran, petitioner's son was a minor on 1-1-1970 and hence a member of the 'family' on the date. The land held by him is land held by the 'family' and cannot be excluded In fixing the ceiling limit of the family. Before us, Mr. K. P. Radhakrishna Menon, learned counsel for the petitioner took up the following points in challenging the decision of the Taluk Land Board: (1) Even according to the Land Board, the land in question is a rubber plantation since 1968. Therefore, as before 1-1-70, the land having been converted into a rubber plantation, the same is liable to be exempted under S.81 of the Act. (2) The Taluk Land Board should have excluded the land, the ownership of which stands vested in Damodaran (who is now a major) the son of the petitioner, by virtue of the partition in his family and the gift deed in his favour. (3) The Board has not properly kept in view that the definition of 'private forest' in the Act differs from the definition as given in the M.P.P.F. Act in considering the question whether the land was 'private forest'. We will consider these points one by one: Claim for exemption from ceiling area on the ground that the land in question admittedly became a rubber plantation in 1968:
(3.) Under S.81(e) of the Act, the provisions in Chapter III of the Act which deal with "restriction on ownership and possession of land in excess of ceiling area and disposal of excess lands" shall not apply to "plantations". As 'defined in S.2(44) of the Act, plantation will certainly include a rubber plantation. But under S.82(4) as originally enacted, where, after the commencement of the Act, any class of land specified in Schedule II has been converted into any other class of land specified therein, the extent of land that may be owned or held by a family or adult unmarried person owning or holding such land at the time of the conversion, shall be determined without taking into account such conversion. Schedule II of the Act then took in dry land, garden, other dry land, Palliyal land, rubber plantation etc. When Act 35 of 1969 which came into force from 1-1-70 amended the Act, S.82(4) read as follows: "Where after the commencement of this Act, any class of land specified in Schedule II has been converted into any other class of land specified therein, the extent of land that may be owned or held by a person owning or holding such land at the time of the conversion shall be determined, without taking into account such conversion". The amended Schedule II did not take in any plantation. The Kerala Land Reforms (Amendment) Act, 1971 Act 25 of 1971 introduced further amendments into the Act. S.12 of the Amending Act amends S.82 of the Act and reads as follows: "12. Amendment of S.82. In S.82 of the principal Act, for sub-s.(3) and (4), the following sub-sections shall be substituted namely - "(3) In calculating the extent of land owned or held by a family or an adult unmarried person the shares of the members of the family or the adult unmarried person, as the case may be, in the lands owned or held - (a) by one or more of such members jointly without any person or persons other than a member or members of such family or by such adult unmarried person jointly with any other person or persons; or (b) by a cooperative society or a joint family, shall be taken into account. Explanation: For the purpose of this section, the share of a member of a family or an adult unmarried person in the lands owned or held jointly or by a cooperative society or a joint family shall be deemed to be the extent of land which would be allotted to such member or person had such lands been divided or partitioned as. the case may be, on the date notified under S.83. (4) where after the commencement of this Act, any class of land specified in Schedule II has been converted into any other class of land specified in that schedule or into a plantation, the extent of land liable to be surrendered by a person owning or holding such land shall be determined without taking into consideration such conversion." What is contended for by the learned counsel for the petitioner is that taking the provision in S.82(4) along with S.81(e) any conversion of the land into a plantation before 1-1-70 will not make the petitioner liable to surrender any portion of the same as excess land. S.83 of the Act came into force only on 1-1-70. According to the learned counsel for the petitioner, S.82(4) itself should have effect only from 1-1-70, which is the date from which S.12(c) of the Amending Act 25 of 1971 gave force and effect to the amended sections. He contended strongly that if the date of commencement of the Act as made mention of in S.82 (4) is taken to mean 1 4-64, viz., the date on which the original S.82 came into force, it will be giving to the amended S.82(4) a retrospective operation not intended by the legislature. In this context he canvassed the correctness of the decision of Vadakkel, J., in Ramavarma Raja v. Land Board of Kerala ( 1973 KLT 918 ) where it was held (at page 920): "It will be noticed that under S.82(4) as it stood prior to and after its amendment by Act 35 of 1969, "where.........any class of land specified in Schedule II has been converted into any other class of land specified therein" such conversion would not be taken into account or consideration in determining the extent (at the time of conversion) of the land of a person who owned or held such land. So long as all kinds of plantations were specified in schedule II, S.82(4) would be attracted to conversion of lands into plantations. But by Act 35 of 1969 which came into force on 1-1-70 the original Schedule II was substituted by the present schedule II in which plantations are not specified. It was to remedy this that the present sub-s.(4) of S.82 was substituted by Act 25 of 1971 with effect from 1-1-70. The result is that both prior to 1-1-70 as well as after that date "conversion of any class of land specified in schedule II" into a plantation, cannot be taken into account or consideration in determining the extent of the land liable to be surrendered. The argument of the learned counsel for the petitioners that S.82(4) is not attracted to case where the conversion of land into a plantation was before 1-1-1970 is therefore without any force.";


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