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MARATT RUBBER LTD v. LAND TRIBUNAL, TAHSILDAR,KOYILANDY - CRP No. 1114 of 1996(C)  RD-KL 9 (16 February 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCRP No. 1114 of 1996(C)
1. MARATT RUBBER LTD.
1. LAND TRIBUNAL,TAHSILDAR,KOYILANDY
For Petitioner :SRI.A.P.CHANDRASEKHARAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.T.SANKARAN
O R D E R((SCO LYRIX 6.1 )) .PL 57
K.T. SANKARAN, J.j j C.R.P.No. 1114 of 1996 C j j j
Dated this the 16th day of February, 2006.j j
O R D E Rj .SP 2 ((HDR 0 C.R.P.NO. 1114 OF 1996 :: # :: j )) .HE 1 As per the proceedings of the Taluk Land Board, Ernad in CR 1/75/C7 dated 31.1.1983, the Taluk Land Board found that the petitioner Company was in possession of excess land and it was directed to surrender the excess land. The excess land includes an extent of 273.17 acres in RS.87/2 of Pallikkara Desom of Thikkodi Village and an extent of 15 acres and 25 1/2 cents in RS 42/2 of Thurayur Village. These lands were taken possession of.
2. As per Section 90 of the Kerala Land Reforms Act, after the determination of the extent and particulars of land to be surrendered, the Taluk Land Board shall forward the necessary documents to the Land Tribunal and direct the Land Tribunal to prepare and submit to the Taluk Land Board a compensation roll showing the details mentioned in clause (a) to (e) of sub-section (1) of Section 90. The Taluk Land Board directed the Land Tribunal to prepare a compensation roll. The Land Tribunal issued notice to the petitioner. Petitioner appeared and contended that the land in question was being cultivated by the petitioner and that the petitioner is entitled to get compensation accordingly as per Schedule IV of the Act. The Land Tribunal passed an order dated 31.1.1987, fixing the compensation payable at Rs.100/per acre, adopting the value as shown in item 4A of Part I of Schedule IV of the Kerala Land Reforms Act. The reason stated by the Land Tribunal to arrive at this conclusion is that as per the office records and as per the orders of the Taluk Land Board the land was classified as "water logged". The Land Tribunal also held that the petitioner did not prove during which period they cultivated the land.
3. Challenging the order of the Land Tribunal, the petitioner filed appeal before the Appellate Authority (Land Reforms) Kozhikode. Before the Appellate Authority, the petitioner filed I.A.No.154 of 1991 to appoint an advocate commissioner to inspect the land in question, to verify the physical features of the land and to ascertain whether the land is fit for cultivation and was being cultivated as such. The application for the issue of a commission was dismissed by the Appellate Authority. That order was challenged by the petitioner in O.P.No.782 of 1992 before this Court. This Court did not interfere with the order passed by the Appellate Authority. However, in the judgment in O.P.No.782 of 1992 dated 24.7.1992, this Court held that the petitioner will be given an opportunity to adduce evidence and that the Appellate Authority should consider the contention of the petitioner that the property is a nilam coming under category No.13 in Part II of Schedule IV. .SP 2
4. Thereafter, the petitioner filed I.A.No.185 of 1994 before the Appellate Authority to call for the records in respect of the proceedings dated 8.7.1996 and 19.1.1987 of the District Collector, Kozhikode whereby the land was assigned for the purpose of punja crop. In the affidavit accompanying the application, the petitioner had stated that the deponent came to know of the proceedings of the District Collector only then and that the documents sought to be called for are relevant for the purpose of adjudication of the dispute involved in the case. The Appellate Authority dismissed I.A.No.185 of 1994 by the order dated 21.6.1995 holding that the petitioner did not adduce any further evidence after the judgment passed by the High Court in O.P.No.782 of 1992 and that if necessary the petitioner could produce the certified copies of the orders passed by the District Collector. Thereafter, on behalf of the petitioner, the General Manager of the petitioner company was examined as PW1. The Appellate Authority dismissed the appeal and held that the petitioner is entitled to get only Rs.100/- per acre as compensation and that the classification made by the Land Tribunal and the amount fixed as compensation are correct.
5. The judgment passed by the Appellate Authority is perverse. The Appellate Authority did not afford an opportunity to the petitioner to adduce evidence. The Appellate Authority erroneously thought that adducing evidence means adducing oral evidence. Evidence includes oral and documentary evidence. The petitioner sought to call for the records from the District Collector in respect of the assignment of the land as punja land. These documents are highly relevant for the adjudication of the dispute. Dismissal of the application on the erroneous reasoning that the petitioner did not adduce any evidence as directed by the High Court was illegal.
6. Matters to be decided in a case coming under
Section 72B, 80B and similar other provisions where
person, claiming to be a tenant or kudikidappukaran
applies to the Land Tribunal for issue of purchase
certificate are quite different from those in the
proceedings under Section 90 of the Kerala Land Reforms
Act. The burden of proof in the former category of
cases is definitely on the person who claims
benefit, but under Section 90 of the Kerala Land Reforms
Act it is not necessarily so. A person whose
taken possession of as excess land shall be given
compensation as fixed under Section 90
by the Land
Tribunal. Section 88 of the Kerala Land Reforms Act
provides that where ownership or possession
or both of
any land is vested in the Government under Section 86 or
87, such person shall be entitled to
Section 90 provides for the preparation of compensation
roll. Relevant portion of Section 90
reads as follows:
"90. Preparation of compensation roll:-- (1) As soon as may be after the Taluk Land Board has determined the extent and particulars of any land the ownership or possession or both of which is or are to be surrendered, the Taluk Land Board shall, forwarding the necessary documents, direct the Land Tribunal to prepare and submit to the Taluk Land Board a compensation roll showing --
(a) the description of the land or the interests in the land surrendered or assumed;
(b) the name and address of the person surrendering the same or from whom the same was assumed;
(c) the names and addresses of the landowner, intermediary and the cultivating tenant and the amount of compensation payable to each;
(d) the names of the holders of the encumbrances (including mortgagees who have surrendered possession of excess lands), maintenance or alimony and the value of the encumbrances or of the claims for maintenance or alimony; and
(e) such other particulars as may be prescribed. (2) On receipt of the direction under sub -section (1), the Land Tribunal shall, after giving an opportunity to all persons interested to be heard and after making such enquiry as it considers necessary, prepare a draft compensation roll and furnish copies thereof to the persons interested, together with a notice inviting objections to the draft compensation roll within such period, not being less than thirty days from the date of the notice, as may be specified in the notice. (2A) The Land Tribunal shall also cause the draft compensation roll to be published in such manner as may be prescribed. (3) .... ..... (4) After considering the objections, if any, received within the period specified in the notice under sub-section (2), the Land Tribunal shall prepare a final compensation roll showing the particulars mentioned in sub-section (1) and shall also pass an order recording his reasons for each entry in the final compensation roll and for accepting or rejecting the objections, if any, received in pursuance of the notice under sub-section (2). (5) A copy of the final compensation roll prepared under sub-section (4) shall, after the order of the Land Tribunal under that sub-section has become final, be forwarded to the Land Board by the Land Tribunal." .SP 2 Under sub-section (2) of Section 90, the Land Tribunal shall make an enquiry as it considers necessary and prepare a draft compensation roll and furnish copies to the persons interested and call for objections to the draft compensation roll. Under sub-section (4) of Section 90, the Land Tribunal shall prepare a final compensation roll showing the particulars mentioned in sub-section (1) and shall also pass an order recording his reasons for each entry in the final compensation roll. The Land Tribunal has not adhered to the mandatory provisions of Section 90 and the Appellate Authority failed to consider this aspect. Going by clauses (a) to
(e) of sub-section (1) of Section 90 read with Schedule IV, it could be seen that it is not as if the owner of the land should prove all the necessary ingredients in all types of cases to get the compensation. The petitioner is the person who has lost the land. The compensation is to be paid by the State and it should be reasonable and fair. The compensation is to be fixed by the Land Tribunal after taking into account the relevant factors. .SP 2
7.Section 88(2) of the Kerala Land Reforms Act provides that the compensation payable to an owner for the vesting in Government of ownership and possession of land shall be an amount calculated at the rates specified in Schedule IV. Schedule IV provides for the "Rates of Compensation". Part I of Schedule IV deals with "lands other than nilam", while Part II deals with "Nilams". Part I consists of two parts in respect of different districts in the State. Part I of Schedule IV of the Kerala Land Reforms Act in respect of its application to Palakkad, Malappuram, Kozhikode and Kannur Districts reads as follows: .JN .SP 1 Class of land: Rate per acre Rs.
1. Garden Land:
(i) Land used principally for growing coconut trees 1600 (ii) Land used principally for growing arecanut trees 3000 (iii) Land used principally for growing peppervines 700
2. Dry land principally cultivated with cashew. 500
3. Palliyal land 400
4. Waste land (with or without scattered trees) 200 4A. Land not yet cultivated and which cannot be put to cultivation without incurring heavy expenditure 100
5. Land not falling under any of the above classes. 300 .SP 2 As per entry 13 in Part II of Schedule IV, compensation payable for double crop nilam in Kozhikode , Quilandy and Badagara Taluk is Rs.1300/- per acre and for single crop nilam the rate is Rs.700/- per acre.
8. There is no case for anybody that the land in question is a garden land or that it is a dry land or Palliyal land. There is also no case that the land in question comes under entry 4. To apply entry 4A in exclusion of other entries, it must be established that the land cannot be put to cultivation without incurring heavy expenditure. In view of the wording of entry 4, it can be safely held that the burden of proof is not on the owner of the land. If so, when entries 1 to 4 are excluded, the only other entry which could be applied is entry 5, wherein the compensation payable would be at the rate of Rs.300/- per acre. The petitioner has a case that the land in question is a 'Nilam' and that it is entitled to higher rate of compensation. It is found by the authorities below that the petitioner has failed to prove that the land involved is a 'Nilam'. At the same time it has come out in evidence that the land was put in possession of several persons by the District Collector and that those persons were cultivating the land with paddy after forming a society. The case put forward in the cross examination of P.W.1 is that the land was made fit for cultivation after taking over. This shows that the land is fit to be converted into paddy land. There is no evidence to indicate as to how much expenditure was incurred for converting the land into a 'Nilam'. Evidently, the petitioner has no burden to establish that fact. There is no acceptable evidence before the authorities below to arrive at a conclusion that heavy expenditure was incurred for converting the land after the land was taken over. The land in question was taken possession of on 06.05.1983. The files show that on 20.12.1986, a notice was published by the District Collector, Kozhikode, inviting application from landless agricultural labourers for allotment of land for 'Puncha' cultivation. In that notice, it is mentioned that the land is water logged. This notice would indicate that the land could be cultivated with 'Puncha' crop. Therefore, there is no justification in holding that the land comes under entry 4A of Part 1 of Schedule IV. The files would also indicate that a portion of the land was put in auction for the purpose of fish farming. There is no indication that after the date of taking possession of the land and before 20.12.1986, any expenditure was incurred for altering the nature of the land to make it fit for cultivation. The irresistable conclusion, that could be arrived at, is that the land in question comes under entry 5 of Part 1 of Schedule IV of the Kerala Land Reforms Act and that the petitioner is entitled to get compensation at the rate of Rs.300/- per acre.
9. It is for the Land Tribunal to satisfy itself that the land was not cultivated and that the land cannot be put to cultivation without incurring heavy expenditure. Necessary data for arriving at the conclusion is to be collected and applied to the case by the Land Tribunal. The person from whom the land was taken possession of need not establish any of these matters. The records are with the Land Tribunal and the Land Tribunal has the machinery to make enquiry to find out the relevant particulars as mentioned in Section 90(1) of the Kerala Land Reforms Act. The authorities below failed to consider the case in the proper perspective and dealt with the case as if the entire burden of proof is on the petitioner to prove that the land was cultivated or that it cannot be put to cultivation without incurring heavy expenditure. Even the application for calling for the relevant records was dismissed by the Appellate Authority on hypertechnical reasons. The oral evidence adduced by the petitioner was not properly considered by the Appellate Authority. Why the evidence adduced by the petitioner was disbelieved is also not stated.
10. In the proceedings before the Taluk Land Board the land was classified as "water logged". Part I of Schedule IV of the Kerala Land Reforms Act does not contain any category of land as water logged land. Simply because the land is water logged does not mean that it comes under entry 4A of Part I of Schedule IV and the authorities below were not justified in holding that the land was not yet cultivated. Cultivation can be made even in water logged area. Cultivation need not necessarily be of paddy cultivation. Any type of cultivation amounts to cultivation. It was for the Land Tribunal to collect the necessary data from the Village records and other records to find out whether the land was at any point of time cultivated. Of course, the petitioner could prove that he had cultivated the land as a nilam and he attempted to prove it. He stated that there are no records to prove the same and his oral evidence was not accepted by the Appellate Authority. The finding that the petitioner failed to prove that the land in question is a nilam, in my view, is correct. I am of the view that the authorities below were not justified in holding that the petitioner is not entitled to the compensation at the rate of Rs.300/- as per entry 5 in Part I of Schedule IV and erred in classifying the land under entry 4A of the said schedule. The Revision is, therefore, allowed and the order and judgment of the authorities below are set aside. The compensation payable to the petitioner shall be fixed at the rate of Rs.300/- per acre and the Land Tribunal shall pass a revised order accordingly. .SP 1 .JN (K.T. SANKARAN) Judge ahz/ .PA ((HDR 0 )) .HE 2 .JN .SP 2
K.T.SANKARAN, J.C.R.P..NO. 1114 OF 1996.
O R D E R16th February, 2006 ...............................................
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