IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 OP.No.9768 of 2000(K) -------------------------- PETITIONER: -------------- CHEKKUMMA, W/O. ERANHIKKAL MOIDEEN HAJI, RESIDING AT ANKUZHIKKARA, KUTTIKATTOOR, KOZHIKODE. BY MR.V.V.SURENDRAN, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REP. BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE TALUK LAND BOARD, KOZHIKODE. BY MS. SMITHA SUKUMAR, GOVERNMENT PLEADER. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No.9768/2000 Order on C.M.P.No.16272/2000 in OP.No.9768/2000 & Order on C.M.P.No.26067/2000 in C.M.P.No.16272/2000 in OP.No.9768/2000 ------------------------ Closed. 04.03.2009 Sd/- S. SIRI JAGAN, JUDGE. A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE PROCEEDINGS DTD. 15.9.1992. EXT. P2 : COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DTD. 9.10.96. EXT. P3 : COPY OF the PROCEEDINGS DTD. 31.8.1999. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp S. SIRI JAGAN, J. ------------------------------------ O.P.No.9768 OF 2000 ---------------------------------------- Dated this the 4th day of March, 2009 JUDGMENT The petitioner is challenging Ext.P3 order passed by the Taluk Land Board in exercise of their powers under Section 85(9) of the Kerala Land Reforms Act. The original declarant was one Ummachutti Umma. In ceiling proceedings initiated against her, it was found that she was liable to surrender 24.9.500 acres of land. Revision against that order was dismissed. Subsequently it was found that out of 24.9.500 acres, only 19.51.500 acres were available for taking possession, since other lands were in possession of others. Some persons claiming to be in possession of the same, filed applications under Section 85(8)of the Act. That was when proceedings for re-opening of the ceiling case under Section 85(7) of the Act was pending. While that order was pending, the original assessee died. At that time the law in force was laid down in State of Kerala V. Mathu [1987(2) KLT 278] as per which, such proceedings cannot be continued against the legal heirs of the deceased declarant. Subsequently that O.P.No.9768/2000 2 decision was reversed by the Supreme Court. Thereafter, proceedings under Section 85(9) was initiated for re-opening the earlier order closing the proceedings. Ext.P2 notice was issued to the petitioner to which the petitioner submitted her reply and by Ext.P3, earlier order closing the proceedings based on Mathu's Case (supra) was set aside and the case was re-opened. The petitioner is challenging that order. 2. According to the petitioner, the Taluk Land Board could have set aside the order earlier passed only on entering a finding that the conditions specified in Clause (a) or (b) or (c) of Section 85(9) is satisfied. According to her, in Ext.P3, there is no finding regarding any of the three conditions specified in Section 85(9) and therefore, the order under Section 85(9) is vitiated. 3. The learned Government Pleader submits that earlier relying on Mathu's case the proceedings under Section 85(7) was dropped and the applications under Section 85(8) were allowed purely on a technical ground which resulted in the question as to whether the extent of property liable to be surrendered is correct remaining unconsidered. On Mathu's decision having been reversed, those questions revive and O.P.No.9768/2000 3 have be decided afresh after setting aside the order under Section 85(7) since the Taluk Land Board is satisfied that the extent of land surrendered by or assumed from late Ummachutti Amma is less than the extent which she was liable to surrender under the provisions of the Act . 4. I have considered the rival contentions in detail. 5. At first blush, the contentions of the petitioner sound attractive. In fact, because of the words 'the order 1st cited' is set aside occurring in Ext.P3, the argument of the petitioner may appear sound. On a closer reading of Ext.P3, I find that what has been done is only to re-open the matter since the earlier proceedings under Section 85(7) was dropped on technical ground, which were initiated since the Taluk Land Board was satisfied that the extent of land surrendered or assumed from Ummachutty Amma was less than the extent of land she was liable to surrender. That being so, it is clear that the earlier order under Section 85(7) was set aside to decide the extent of land to be surrendered or assumed from the legal heirs of Ummachutty Amma which is perfectly in accordance with Section 85(9). In the above circumstances, I am of opinion that the O.P.No.9768/2000 4 Taluk Land Board has to now decide the issue as to the extent of land to be surrendered or assumed from the legal heirs of Ummachutty Amma setting aside Ext.P1. Therefore, there is nothing wrong in Ext.P3 order setting aside Ext.P1. In the above circumstances, the Taluk Land board shall now continue proceedings as directed in Ext.P3. The original petitions is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.9768/2000 5