Kerala Land Reforms Act | Article 226 Can Be Invoked To Divest Land Vested With Govt: High Court

The Kerala High Court has recently held that while excess land vests absolutely in the Government upon issuance of an order under Section 86 of the Kerala Land Reforms Act, 1963 (KLR Act), the constitutional courts may still exercise its power under Article 226 to order divesting such land in exceptional circumstances to prevent injustice and violation of property rights under Article 300A of the Constitution.Justice C Jayachandran delivered the judgment. The case arose where the petitioner's father was a declarant under Section 85A of the KLR Act, 1963 in a ceiling proceeding. The petitioner and his brother were impleaded and proceeded with the case after the death of their father. An order was passed in 1977 determining the extent and identity of the land to be surrendered which was later revised in 1981 by the Taluk Land Board under Section 85(8) of the KLR Act. Accordingly, the petitioner and his brother were liable to surrender a certain portion of land in Mampad Village. In 2012, the petitioner's brother, on behalf of the petitioner too, preferred a re-option statement to surrender another land, instead of the land ordered by revised order in 1981. Accordingly, 5.81575 acres of land situated in Pullipadam Village of the same Taluk was offered. Even though initially, the offer was not accepted, it was later accepted by virtue of a judgement in a writ petition filed by the present petitioner, which directed the State to accept the proposed land. The land was thus surrendered by revised option statement. The petitioner in the present petition thus claims that the land, which technically vests with the Government by virtue of the revised order of 1981— which has been substituted by the judgement, has to be divested so as to bring back the ownership and possession to the petitioner and his brother. The Court thus examined whether land that has vested in the Government under Section 86 of the KLR Act can be divested, when the State itself has accepted and acted upon a later substitution of land offered by the declarant.For context, Section 86 of the KLR Act deals with restricting on ownership and possession of land in excess of ceiling area and disposal of excess lands. The Court examined Sections 85 and 86 of the KLR Act, particularly the point at which vesting occurs and whether the Act contemplates any mechanism for reversal of such vesting.The Court reaffirmed the settled legal position that vesting of excess land in the Government takes place upon the issuance of an order under Section 86(1) of the KLR Act, following determination of the extent and identity of land to be surrendered under Section 85. Relying on the language of the statute and the contents of the revised ceiling order dated 22 December 1981, the Court held that both ownership and possession of the specified lands had vested in the Government free from all encumbrances from the date of that order. The Court agreed with the amicus curiae that the KLR Act does not contain any express provision enabling statutory authorities to divest land once vesting under Section 86 has taken place.The Court further noted that the Government had accepted an alternate parcel of land offered by the petitioner decades later and had taken possession of that substitute land, even allotting it under a land distribution scheme. The Court noted that if the original land were also retained by the State, the petitioner would effectively lose both properties.The Court thus held that such a consequence would amount to unjust enrichment by the State and a serious infraction of the petitioner's constitutional right to property under Article 300A. “It could be seen that the proposal vide Ext.P1(revised option statement) has been accepted, and acted upon by the Government. In such circumstances, if the property covered by Ext.C1(revised order dated 1981), to the extent substituted by Ext.P1, has to remain with the Government, the petitioner will be deprived of both the lands, impinging his valuable rights under Article 300A of the Constitution, putting him on serious jeopardy. That apart, it amounts to unjust enrichment of the Government as well.” Court observed. In this context, the Court observed that since there is no provision under the KLR Act for issuance of an order divesting a land, which has already been vested with the Government in terms of Section 85 of the Act, the Court can invoke its powers under Article 226 in an extra ordinary situation like the instant case. The Court thus invoked its power under Article 226 of the Constitution and directed the Principal Secretary (Revenue) to pass an order divesting the 5.81575 acres of land in Mampad Village to the petitioner. With these directions, the Court disposed of the petition. Case No: WP(C) 29003/ 2025Case Title: P G Thomas Tharakan v The State Land Board and Ors. Citation: 2026 LiveLaw(Ker) 37Counsel for Petitioner: M Krishnakumar Counsel for Respondents: Deepa Narayanan (Sr. GP)Amicus Curiae: Harikumar G ...

Kerala Land Reforms Act | Article 226 Can Be Invoked To Divest Land Vested With Govt: High Court

Anamika MJ

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