IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 CRP.No. 1822 of 1994(E) AGAINST THE ORDER NO.SMC.26/81(V) L2 DATED 17.8.1994 OF THE TALUK LAND BOARD, VYTHIRI. REVN. PETITIONER: DECLARANT: --------------------- RAJAGIRI RUBBER AND PRODUCE COMPANY LTD. REGISTERED OFFICE AT BEACH ROAD, ALLEPPEY. BY ADV. SRI.C.M.DEVANA.M.SHAFFIQUE RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM. 2. TALUK LAND BOARD, VYTHIRI REPRESENTED BY ITS CHAIRMAN. 3. TAHSILDAR, KOZHIKODE. 4. TAHSILDAR, VYTHIRI. BY ADDITIONAL ADVOCATE GENERAL THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/03/2011,THE COURT ON 24/05/2011 PASSED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------------- C.R.P. NO. 1822 OF 1994 -------------------------------------------------- Dated this the 24th day of May, 2011 O R D E R The declarant in S.M.C.No.26/81, on the file of the Taluk Land Board, Vythiri, challenges the order dated 17.8.1994 in this Revision. The petitioner was, originally, Kalpetta Estates Limited. It is stated that as per the order passed in C.P.No.9 of 2005 connected with M.C.A.Nos.97 and 98 of 2004, this Court ordered amalgamation of the assets and liabilities of Kalpetta Estates Limited with Rajagiri Rubber and Produce Company Limited and that the assets and liabilities of the transferor Company vested with Rajagiri Rubber and Produce Company Limited. As per the order dated 6.12.2006 in this Revision, the cause title was allowed to be amended changing the name of the petitioner as Rajagiri Rubber and Produce Company Limited. 2. The ceiling proceedings were initiated originally as TLB.1777/1973 of Taluk Land Board, South Wynad. The Taluk Land Board in its order dated 23.1.1976, considered the ceiling statement dated 12.9.1970 of Kalpetta Estates Limited and, after considering the claims and objections, passed a final order dated 23.1.1976, directing the declarant (petitioner) to surrender 680.96 acres of land as excess land. It C.R.P. NO.1822 OF 1994 :: 2 :: was found that the total extent in the possession of the declarant was 3648.81 acres. An extent of 2953.17 acres was exempted as plantation. The ceiling area was fixed at 14.68 acres and the declarant was directed to surrender 680.96 acres of land. The order dated 23.1.1976 was challenged by the declarant in C.R.P.NO.1210 of 1976 under Section 103 of the Kerala Land Reforms Act, 1963 (hereinafter referred to as 'the Act'). This Court as per order dated 11.11.1976, allowed the Revision in respect of certain extent of land and modified the order passed by the Taluk Land Board and reduced the extent of land to be surrendered from 680.96 acres to 435.90 acres. 3. In C.R.P.No.1210 of 1976, one of the points in dispute was regarding exclusion of 1089.98 acres in Chulika Estate and 190.94 acres in Poonoor Estate for fuel purposes. The Taluk Land Board did not exempt any land for fuel purpose. This question was considered by this Court and exemption was granted for 190.94 acres of land for fuel purpose for Poonoor Estate. It was recorded in the judgment thus: “.. Although the entire 1098.94 acres of land is mentioned in his report as being used by Chulika Estate for fuel purposes the authorised officer has expressed his opinion in the report that 50 acres was sufficient for fuel purposes for that estate. Counsel appearing for the revision petitioner submitted that if the area of 190.94 acres was exempted for fuel purposes for Poonoor estate he was not pressing the claim for exemption of the 1098.98 acres of land for the Chulika estate.” C.R.P. NO.1822 OF 1994 :: 3 :: In C.R.P.No.1210 of1976, this Court rejected the claim for exclusion of 143.10 acres of land claimed as private forest and also rejected the claim for exemption of 110 acres of land on the ground that it was planted with coffee and firewood trees. The relevant portion of the order in C.R.P.No.1210 of 1976 reads thus: “2. The company owns two estates, Poonoor and Chulika. The first point pressed on behalf of the Company by its counsel here, when this revision petition was heard was about exclusion of 143.10 acres of land on the ground that it was a private forest. The report of the authorised officer shows that it was planted with rubber in 1970. There is no evidence to show that it was private forest before 1970. So the exclusion claimed in respect of the 143.10 acres of land cannot be granted. 3. The second point pressed was about exemption of 110 acres of land on the ground that it was planted with coffee and fire-wood trees. The report of the authorised officer shows that there is not a single fire wood tree there. It is true that some small coffee plants were seen here and there on that land by the authorised officer. But that would not make it a coffee plantation. So it can neither be treated as a fuel area nor as a coffee estate. Therefore the exemption claimed in respect of the 110 acres of land also cannot be granted.” While disposing of C.R.P.No.1210 of 1976, the High Court reduced an extent of 245.06 acres from the extent of land to be surrendered and to that extent alone the Revision was allowed. It was recorded that “in all other respects it shall stand dismissed”. The order in C.R.P.No.1210 of 1976 has become final. C.R.P. NO.1822 OF 1994 :: 4 :: 4. It is stated that the Tahsildar, Kozhikode Taluk has taken possession of 143.10 acres of surplus land in Sy.No.2/1B of Raroth Village in Kozhikode Taluk. However, the Tahsildar, South Wynad did not take possession of the surplus land to be taken from the land situated in South Wynad Taluk on the ground that the land is not available as it is either a vested forest or in the possession of others. 5. While so, on 15.7.1977, the declarant filed an application before the Taluk Land Board to reopen the case and to reconsider the order for surrender of an extent of 143.10 acres in Raroth Village. A report dated 18.8.1977, sent by the Divisional Forest Officer, was relied on by the declarant, wherein it was stated that an extent of 21.25 hectares of land in Sy.No.2/1B had vested in the Government as vested forest. On 6.3.1979, the Taluk Land Board issued an order holding that the declarant is not liable to surrender the extent of 435.90 acres which was directed to be surrendered as per the order passed by the High Court. 6. Taking the view that the Taluk Land Board had no jurisdiction to reopen the case and to pass the order as the one passed on 6.3.1979, at the instance of the State Land Board, the Taluk Land Board reopened the ceiling case under Section 85(9) of the Act. However, the proceedings were dropped as per order dated 28.6.1982, holding that certain extents C.R.P. NO.1822 OF 1994 :: 5 :: of land were converted from exempted category to non-exempted category, which warrants initiation of proceedings under Section 87 of the Act. 7. The order dated 28.6.1982 was challenged by the State in C.R.P.No.201 of 1985. The said Revision was allowed as per order dated 13.11.1987 and the order impugned in the Revision was set aside. It was held: “The order passed by the Taluk Land Board on 28.6.1982 is neither specific nor clear. It is unknown as to why, notwithstanding the direction of the State Land Board, the proceedings are closed by the Taluk Land Board. The order dated 28.6.1982 is vague. It is also cryptic.” The Taluk Land Board was directed to consider the matter afresh in accordance with law. 8. As directed by the High Court, the Taluk Land Board initiated the present proceedings in SMC.No.26/1981 and, after hearing the declarant and considering the objections, passed an order dated 17.8.1994, which is under challenge in the present Revision. The Taluk Land Board held that as the order in C.R.P.No.1210 of 1976 dated 11.11.1976 has become final, the declarant was not entitled to file the petition dated 15.7.1977 to reopen the case and, therefore, the order dated 6.3.1979 was illegal. Relying on the decision in Chathunny v. C.R.P. NO.1822 OF 1994 :: 6 :: Taluk Land Board (1981 KLT 74) and State of Kerala v. P.V.Mathew (1987 (1) KLT 618), the Taluk Land Board held that it had no jurisdiction to reopen the case and pass the order dated 6.3.1979. 9. The declarant contended that an extent of 143.10 acres in Sy.No.2/1B of Raroth Village shall be excluded as it was a vested forest. The Taluk Land Board rejected this contention on the ground that this claim was put forward earlier and it was rejected by the High Court in the order dated 11.11.1976 in C.R.P.No.1210 of 1976. The contention of the declarant was that this extent of land was a private forest, an exempted category, and it was converted into a rubber plantation, which is also another exempted category, and therefore, this extent of land is to be totally exempted from the account of the declarant. The Taluk Land Board considered this contention again on facts and held that there is no satisfactory evidence that the land was private forest as on 1.4.1964, the date of commencement of the Act, and that the reports of the Authorised Officer show that the land was a waste land. Accordingly, it was held that the claim of the declarant to exclude the said extent of land as private forest which was allegedly converted into a rubber plantation is devoid of merit. The Taluk Land Board further held thus: “.. However, in view of the specific reports of the Divisional Forest Officer, Spl.Division, the extent of 21.25 Hectares (52.48 acres) (including 10 acres of vested forest C.R.P. NO.1822 OF 1994 :: 7 :: allowed as fire wood area by Forest Tribunal) in this Sy. Field viz. 2/1 B Pt. of Raroth Village vested in Government as vested forest will not be taken and the balance 90.62 acres alone will be taken over. (The contention that vested forest is 56.60 acres and not 52.48 acres is not proved, since what is stated in the Tribunal order is about Petitioner's claim only and not the extent declared as vested forest.)” 10. The Taluk Land Board also found, after considering the entire facts and the reports of the Divisional Forest Officer, that instead of 320.69 acres actually declared as vested forest, an extent of 900.26 acres have already been exempted from the ceiling case in respect of the lands in South Wynad Taluk. It was held that exemption granted as per the order dated 23.1.1976 was really in excess by an extent of 579.57 acres. The Taluk Land Board concluded that such excess exemption was granted on the basis of the report of the Tahsildar but without obtaining the report of the forest officials. The other objections raised by the declarant were also considered by the Taluk Land Board and held that the declarant is liable to surrender an extent of 290.85 acres of land. It was held that the order is without prejudice to the right of the Government to take over the entire extent of surplus land in terms of the judgment dated 11.11.1976, passed by the High Court and the extent exempted as vested forest in excess of forest actually vested. 11. The learned counsel for the revision petitioner/declarant C.R.P. NO.1822 OF 1994 :: 8 :: submitted that the order passed by the Taluk Land Board, dated 17.8.1994, holding that the order dated 7.3.1979 passed by the Taluk Land Board is wholly without jurisdiction, is unsustainable and that the Taluk Land Board was right in passing the order dated 7.3.1979 invoking the power under Section 85(9) of the Act. He also submitted that in view of the change in law and the introduction of sub-section 9A of Section 85, the order dated 6.3.1979 could be justified. 12. It was submitted on behalf of the respondents that Section 85 (9) and 85(9A) could not be invoked by the declarant and that the order now passed by the Taluk Land Board is legal and just. 13. Subsections (9) and (9A) of Section 85 are extracted below for the sake of convenience: “(9) The Taluk Land Board may, at any time, set aside its order under sub-section (5) or sub-section (7), as the case may be, and proceed afresh under that sub-section if it is satisfied that -- (a) the extent of lands surrendered by, or assumed from, a person under section 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: C.R.P. NO.1822 OF 1994 :: 9 :: Provided that the Taluk Land Board shall not set aside any order under this sub-section without giving the persons affected thereby an opportunity of being heard: Provided further that the Taluk Land Board shall not initiate any proceedings under this sub-section after the expiry of seven years from the date on which the order sought to be set aside has become final. Explanation I:- For the removal of doubts, it is hereby clarified that the references in this sub-section to the Taluk Land Board shall, in cases in which the order under sub-section (5) or sub-section (7) has been passed by the Land Board, be construed as references to the Land Board. Explanation II:- For the purposes of this section and section 86, “hold” with reference to land shall include “possess” land under mortgage with possession. (9A) Power of Taluk Land Board to review its decision:-- Notwithstanding anything contained in this Act or in the Limitation Act, 1963 (Central Act 36 of 1963), or in any other law for the time being in force or in any judgment, decree or order of any court or other authority, the Taluk Land Board may, if it is satisfied that its decision under sub- section (5) or sub-section (7) or sub-section (9) 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 Taluk Land Board may review such decision after giving an opportunity to the parties of being heard and pass such orders as it may think fit: Provided that the Taluk Land Board 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, 1989.” 14. In Chathunny v. Taluk Land Board (1981 KLT 74), the Division Bench held that the Taluk Land Board has no power under C.R.P. NO.1822 OF 1994 :: 10 :: Section 85(9) to reopen the case where the order of the Taluk Land Board had merged in the order of the High Court in revision. In State of Kerala v. P.V.Mathew (1987 (1) KLT 618), the declarant was directed to surrender an extent of 7.06 acres of land by the revisional court in modification of the order passed by the Taluk Land Board to surrender an extent of 18.25 acres. Subsequently, the Taluk Land Board granted further exemption in respect of five and odd acres of land on the basis of the report of the Authorised Officer. The power invoked by the Taluk Land Board to do so was under Section 85(9) of the Act. In P.V.Mathew's case, it was held that the Taluk Land Board was not competent to make any modification with regard to the order of the High Court which has become final and that the power under Section 85(9) would not be available in such a situation. 15. Section 85(9) applies only when any of the clauses (a) to (c) therein is attracted. A reading of clauses (a) to (c) would indicate that Section 85(9) cannot be invoked by the declarant or assessee. Section 85(9) is intended to recover those extents of land as excess land in case it is found that the land surrendered by or assumed from the declarant is less than the extent which he was liable to surrender or in a case where the land surrendered by him is not lawfully owned or held by him or in a case where the declarant is liable to surrender the excess land but the C.R.P. NO.1822 OF 1994 :: 11 :: order passed by the Taluk Land Board declared that he was not liable to surrender any excess land. The declarant or assessee cannot invoke clauses (a) to (c) of Section 85(9), as evidently, he cannot complain that the land taken from him was less or that he had no title to the land surrendered by him or that though the Taluk Land Board held that he was not liable to surrender any extent actually he was liable to surrender. Therefore, the declarant could not have moved the Taluk Land Board under Section 85(9) of the Act by filing the application dated 15.7.1977, which culminated in the order dated 6.3.1979. The Taluk Land Board was, therefore, justified in initiating the present proceedings to set right the proceedings in conformity with the order passed by the High Court in C.R.P.No.1210 of 1976. The power was exercised by the Taluk Land Board as directed by the State Land Board. The revision petitioner apparently did not raise a contention that the present proceedings initiated by the Taluk Land Board at the instance of the State Land Board is without jurisdiction. When C.R.P.No.201 of 1985 was filed by the State challenging the earlier order dated 28.6.1982 passed by the Taluk Land Board, the declarant ought to have raised the contention that the Taluk Land Board was not entitled to initiate the present proceedings. Having not raised such a contention, the declarant is precluded from raising any such contention in the present revision. C.R.P. NO.1822 OF 1994 :: 12 :: 16. The learned senior counsel appearing for the petitioner submitted that Section 85(9A) could be sought in aid at the instance of the declarant and that in the present proceedings initiated by the Taluk Land Board all the contentions could be again raised by the declarant. Sub- section (9A) was inserted in Section 85 by the Kerala Land Reforms (Amendment) Act, 1989, which came into force on 30.5.1989. Under Section 85(9A), the Taluk Land Board could reopen a case before the expiry of three years from the date of commencement of the Amendment Act. Such power could be exercised by the Taluk Land Board if the conditions mentioned in sub-section (9A) were satisfied. Sub-section (9A) of Section 85 is not intended for the aid of the declarant. The proceedings under sub-section (9A) could be initiated only by the Taluk Land Board. It cannot be initiated at the instance of the declarant or assessee. The non-obstante clause in Section 85(9A) provides that the power under sub-section (9A) could be invoked notwithstanding anything contained in the Kerala Land Reforms Act or in the Limitation Act, 1963 or in any other law for the time being in force or in any judgment, decree or order of any court or other authority. Sub-section (9A) is intended to overcome the situation where the excess land really to be surrendered by excess land holder was not ordered to be surrendered by the order of the Taluk Land Board, which is vitiated due to failure to produce relevant data or other particulars relating to ownership or possession or by collusion or C.R.P. NO.1822 OF 1994 :: 13 :: fraud or suppression of any material fact. It is not intended to enable the declarant or assessee to produce fresh materials in the proceedings of the Taluk Land Board which have become final and to claim further exemptions or exclusions. The purpose of introducing sub-section (9A) is to secure to the State the excess land liable to be surrendered by the land owners. Such excess lands which are held by them under the cover of orders which are vitiated as provided in sub-section (9A) could be recovered by reopening the proceedings under sub-section (9A) of Section 85. Sub-section (9A) was not intended at all to reopen the proceedings at the instance of the declarants/assessees to enable them to raise the contentions afresh and to enable them to get over decisions rendered earlier. I am fortified in this conclusion by the decisions of this Court in State of Kerala v. Khalid (2000 (1) KLT 152); Chenaji v. Taluk Land Board (1991 (1) KLT 770) and Antony v. Taluk Land Board (1992 (1) KLT 415). The Division Bench in State of Kerala v. Khalid (2000 (1) KLT 152) held thus: “Sub-s.(9A) confers powers on the Taluk Land Board to review its decisions under sub-s.(5) or sub-s.(7) or sub-s.(9), if such decisions had been made due to failure to produce relevant data or other particulars relating to ownership or possession or by collusion or fraud or by any suppression of any material facts, notwithstanding anything contained in the provisions in the Kerala Land Reforms Act, or the Limitation C.R.P. NO.1822 OF 1994 :: 14 :: Act or in any other law for the time being in force or in any judgment, decree or order of any court or authority. Such order has to be passed only after giving an opportunity to the parties to be heard and was limited to a period of three years from the date of coming into force of the amendment Act. In the ordinary course there cannot be any collusion or fraud or suppression of material facts to the disadvantage of a declarant or any person, but it can only be to the advantage of the declarant or any other person and to the disadvantage of the State and public interest. Similar is the case with failure to produce relevant data or other particulars regarding ownership or possession at the instance of a declarant or aggrieved party was never in the contemplation of the legislature as disclosed from the statement of object and reasons accompanying the bill. Moreover, effective and adequate provisions were already there in the Statute to remedy the grievances of the declarants or any aggrieved person by invoking either S.85(8) or S.103. Sub-s.(9A) was intended only to safeguard the interest of the State by conferring powers on the Taluk Land Board to review its decisions only at its own instance and it was never intended to confer any right on the declarants or any other aggrieved persons to get the order received at their instance.” ...... ...... “The intention of the legislature for introducing sub-s. (9A) to the Kerala Land Reforms Act was only to confer powers on the Land Board to review its orders to protect the C.R.P. NO.1822 OF 1994 :: 15 :: interest of the State alone at its own instance and not on the application of any declarant or aggrieved person. Thus the Taluk Land Board had no jurisdiction to review its order under S.89(9A) of the Land Reforms Act on the basis of an application from the declarants.” For the aforesaid reasons, I am of the view that Section 85(9A) would not be of any aid to the revision petitioner/declarant. The proceedings were reopened by the Taluk Land Board in 1981 even before the introduction of sub-section (9A). It was done so to get over an order passed by the Taluk Land Board without jurisdiction, contrary to and in violation of the order in C.R.P.No.1210 of 1976, dated 11.11.1976. Had the Taluk Land Board initiated the present proceedings after the commencement of the Kerala Land Reforms (Amendment) Act, 1989, it could very well be sustained under sub-section (9A) as well. There is no infirmity