IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 CRP.No. 249 of 2008() --------------------------- AGAINST THE ORDER DATED 31/12/2007 IN L.R. 6 IN SM.2/2005 of TALUK LAND BOARD, THRISSUR .................... PETITIONER(S): -------------------- KURIEN, S/O. LATE ANTONY, AGED 64 YEARS, THULUMBAMAKKEL HOUSE, ANANDA NAGAR, MADAKKATHARA, THRISSUR. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): --------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TALUK LAND BOARD, THRISSUR, REPRESENTED BY ITS CHAIRMAN. 3. THE TAHSILDAR, TALUK LAND BOARD, THRISSUR. 4. THE VILLAGE OFFICER, MADAKKATHARA. * ADDL. R5 IMPLEADED 5. ABRAHAM P. DANIEL, S/O.P.G.DANIEL, AGED 61, RESIDING AT SNEHALAYAM PANTHALODIL, 1ST STREET, INDIRA NAGAR, OLLUKKARA VILLAGE, THRISSUR - 680 651. * ADDL. R5 IMPLEADED AS PER ORDER DATED 12/08/2011 IN I.A. NO.3336/2009. R1 TO R4 BY GOVERNMENT PLEADER SUSHEELA BHAT R5 BY ADVS. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.249 of 2008 -------------------------------------- Dated this the 12th day of August, 2011. ORDER This revision is in challenge of the order, T.L.B. No. S.M.2/2005/Thrissur/L.R.6 dated December 31, 2007 of the Taluk Land Board (for short, “the TLB”) directing petitioner to surrender 7.66 acres as excess land. 2. According to the petitioner, proceeding was initiated against him and his father. The late Antony on January 10, 1976. The TLB then concluded after perusing the statement of the declarants and other relevant records that there is no excess land in the ownership and possession of petitioner and the late Antony. On December 30, 2005 the TLB issued notice to the petitioner as if it reopened or reviewed the proceeding that had already concluded as per proceeding dated January 10, 1976. Proceeding that the TLB initiated pursuant to the said notice resulted in the impugned order directing petitioner to surrender excess land. Learned counsel for petitioner, Shri Nikhil Raj has contended that the impugned order is not sustainable for various reasons. It is contended that proceeding initiated by the TLB pursuant to the notice dated December 30, 2005 is hopelessly time barred. It is also contended that there is no allegation of fraud of collusion at the hands of petitioner or anybody else with respect to the proceeding of TLB which culminated in the order dated January 10, 1976. Learned counsel for additional 5th respondent, Shri P.B.Krishnan CRP No.249/2008 2 supplementing the argument of petitioner contended that apart from limitation, provisions contemplated notice to all affected parties in case the TLB intended to reopen or review its earlier proceeding and after the proceeding concluded by order dated January 10, 1976 there were several transactions arising from partition and settlement deeds executed by the original declarant Shri Antony whereby several persons including additional 5th respondent became owners in possession of several plots. It is pointed out that had notice of proceeding been issued to such interested persons including additional 5th respondent, they would have been able to take appropriate defence available to them under the Kerala Land Reforms Act (for short, “the Act”) including that they are small holders entitled to the protection of the Act. It is contended that the proceeding initiated by the TLB cannot be sustained and is liable to be set aside. 3. Learned Government Pleader appearing for respondents 1 to 4 has contended that though the expression fraud and collusion are not specifically mentioned in the impugned order, a reading of page 3 of the impugned order would show that material facts were suppressed by the original declarants including petitioner as to the marital status of petitioner and the extent of property they were in possession and enjoyment. In these circumstances, it is contended that the general law should apply and the TLB was competent and entitled to reopen the entire proceeding and come to the right conclusion. It is contended that no interference is required. CRP No.249/2008 3 4. I shall refer to the contention that learned counsel for petitioner and additional 5th respondent have advanced. It is not disputed that originally by proceedings dated January 10, 1976 the TLB came to the conclusion that original declarants including petitioner were not in possession of excess land and accordingly all proceedings against them were dropped. While so, a complaint was preferred to the Petitions Committee of the State Legislative Assembly by Shri V.K.Kuriakose that petitioner is in possession of excess land. Based on that complaint an enquiry was conducted and notice dated December 30, 2005 was issued to the petitioner. It is seen from page 3 of the impugned order that reopening of proceeding by the TLB was confirmed by the State Land Board by its order No.L.B.E. 8-5775/01 dated February 13, 2006. 5. After the proceeding dated January 10, 1976, the original declarant, Shri Antony died. Thereafter there was a partition among his legal heirs and that was followed by settlement and assignment deeds in favour of various persons including the additional 5th respondent. Section 85(9) of the Act empowered the TLB to set aside its order passed under Sub-secs.(5) or (7) as the case may be and proceed afresh under the said provisions if the TLB is satisfied that - CRP No.249/2008 4 (a) the extent of lands surrendered by or assumed from a person under Sec.86 is less than the extent of lands which he was liable to surrender under the provisions of this Act, or (b) the lands surrendered by or assumed from a person are not lawfully owned or held by him; or (c) in a case where a person is according to such order not liable to surrender any land such person owns or holds lands in excess of the ceiling area. 6. The proviso to Sub-sec.(9) of Sec.85 of the Act states that the TLB shall not set aside any order under the said Sub-section without giving the persons affected thereby an opportunity of being heard. Second proviso states the TLB shall not initiate any proceedings under the said Sub-section after the expiry of seven years from the date on which the order sought to be set aside has become final. 7. If the proceeding of the TLB based on the notice dated December 30, 2005 to the petitioner is taken as one falling under any of the clauses of Sub- sec.(9) of Section 85 of the Act, necessarily the said proceeding ought to have been initiated within seven years from the date on which the original proceeding attained finality. In this case the original proceeding attained finality by order of CRP No.249/2008 5 the TLB dated January 10, 1976 whereas notice for initiation of the subsequent proceeding was issued to the petitioner only on December 30, 2005, ie, after seven years of the original proceeding attaining finality. In otherwords, if according to respondents 1 to 4 they have initiated subsequent proceeding under any of the clauses of Sub-sec.(9) of Sec.85 of the Act necessarily, notice dated December 30, 2005 issued to the petitioner is beyond the prescribed time. 8. Sub-sec.(9A) was incorporated in Sec.85 of the Act by Act 16 of 1989 which came into force on May 30, 1989. That Sub-section [ie. (9A)] referred to the power of the TLB to review its decision. It is stated that if the TLB is satisfied that its decision under Sub-secs.(5) or (7) or (9) of Sec.85 of the Act requires to be reviewed on the ground that such decision has been made due to the failure to produce relevant data or other particulars relating to ownership or possession before it or by collusion or fraud or any suppression of material facts the TLB may review such decision after giving opportunity to the parties of being heard and pass such orders as it may think fit. The proviso to the newly introduced Sub-sec.(9A) states that the TLB shall not reopen any such case after the expiry of three years from the date of coming into force of the Kerala Land Reforms (Amendment) Act 16 of 1989 (May 30, 1989). In otherwords, if respondents 1 to 4 were to invoke Sub-sec.(9A) of Sec.85 of the Act they should have initiated proceeding at any rate, within three years from May 30, 1989. In this case notice to the petitioner was issued only on December 30, 2005. In CRP No.249/2008 6 otherwords, whether it is under Sub-sec.(9) or (9A) of Sec.85 of the Act, proceeding has been initiated by respondents 1 to 4 only after the prescribed time. 9. When faced with the above situation learned Government Pleader has made an effort to salvage the situation by contending that if not Sub-sec.(9) or (9A) of Sec.85, the general law would come to the rescue of respondents 1 to 4 – that any proceeding if vitiated by fraud cannot stand and could be set aside at any point of time. There could be no quarrel with the general proposition said by the learned Government Pleader. But when specific provisions are made as to the manner which action is to be initiated, one cannot fall back on the general principle. I am inclined to hold that proceedings of respondents 1 to 4 which culminated in impugned order is initiated beyond the prescribed time and hence time barred. 10. It is also to be seen that be it under Sub-sec. (9) or (9A) of Sec.85 of the Act when such proceedings are initiated under the said provisions notice is required to be given to all interested parties. Here notice was given only to the petitioner. Notice should have been gone to all legal representatives of Antony including the assignees who included additional 5th respondent. That also has not been done. 11. No doubt that defect is only curable and respondents 1 to 4 could have been given opportunity to correct the same. But in the light of my earlier CRP No.249/2008 7 finding that the proceeding initiated by the TLB is out of prescribed time, such a course is not required as it will only be a futility. 12. The result of my above finding is that impugned order cannot be sustained and is liable to be set aside. Resultantly this civil revision succeeds and the impugned order is set aside. Proceedings of the TLB will stand dropped. I.A.No.707 of 2008 will stand dismissed. THOMAS P.JOSEPH, Judge. cks