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PETITIONER: STATE OF KERALA

       Vs.

RESPONDENT: K. MOIDEENKUTTY & ORS.

DATE OF JUDGMENT:       11/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1544            JT 1996 (6)    76  1996 SCALE  (3)188

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      We have heard learned counsel on both sides.      Leave granted.      This appeal  by special  leave arises from the order of the High  Court of  Kerala at  Ernakulam made on October 27, 1992 in  CRP No.1399/87.  The admitted  facts  are  that  K. Moideenkutty, the  declarant under  the Kerala  Land Reforms Act, 1961  was found to be in possession of 3171.53 acres of excess land in Thiruvampadi village. This finding came to be recorded by  the Taluk  Land Board,  Kozhlkode in  its order dated March  29, 1985  under the  Act .  That  order  became final. Subsequently,  the  Taluk  Land  Board  reopened  the matter and  by order dated August 5, 1986 found that the 877 tenants were  in occupation of an extent of 1726.90 acres of land  and   that  1444.63   acres  was   a  private   forest Consequently, K. Modieenkutty was not in excess of the land. That order dated August 8, 1986 came to be challenged in the revision. The  learned single  Judge dismissed  the revision upholding the  order of the second order passed by the Taluk Land Board. Thus, this appeal by special leave.      We think  that the  view of  the High  Court is  wholly illegal and cannot be sustained. From the order of the Taluk Land Board  it is  not clear  as to what extent of the lands was in possession of each tenant and whether it was prior to the Act  came into  force or  was any  purchase  certificate given to  them etc.  All the  details were kept delightfully vague by the Taluk Land Board. The High Court had not looked at this aspect of the matter and chose to confirm the order. Further 1444.63  acres of said land were found to be private forest with  the finding that the settlement officer had not taken possession  of the  land. This  finding also is wholly illegal. It  was open  to the  declarant  K.Moideenkutty  to challenge the  original order passed by the Taluk Land Board on March  29, 1985  declaring that  he was  in excess of the land; but  he did  not challenge the order. Was it right for

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the Taluk  Land Board  to go  behind that  order and declare that the  declarant was  not in  excess of  the land for the reason that possession of the land admeasuring 1444.63 acres was not  taken and  so it  is of  private forest. Failure to take possession  of excess land is one facet and declaration of the  said land  as private  forest is another. Failure to take possession  of the  land does  not ipso facto establish that the  lands are private forest lands. It was open to the owner to  challenge it  but was not done. Unfortunately, the High Court  also had  not gone into this aspect nor examined that aspect  from the  purview of  the Land Reforms Act. The orders of  the High  Court and  the Taluk Land Board are set aside. The  matter is  remitted to  the High  Court  to  the extent of  land covered by the land said to be in possession of 877  tenants, The  High Court  is requested  to call upon Taluk Land  Board to  issue  notice  to  all  the  so-called tenants  and  the  appellant  and  after  giving  reasonable opportunity to  them determine as to who are said tenants in possession of the land and to what extent and when they came into possession  etc.  The  Taluk  Land  Board  should  give opportunity to  the appellant  to rebut the evidence adduced by the  so-called tenants and transmit the recorded facts to High Court.  The High  Court would  thereafter  examine  the matter afresh and then decide the question according to law.      The appeal  is accordingly  allowed. No  costs. Mr.  K. Sukumaran, the  learned senior  counsel has  stated that his clients have  been given  purchase certificate  by the Taluk Land Board.  It would  be open  to them  to place  the  same before the  High Court  and the  High Court  is requested to dispose of it according to law.