IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 WP(C).No. 5909 of 2007(C) ------------------------- PETITIONER(S): --------------- M/S. GLEN LEVEN ESTATE (P) LTD., REP. BY ITS MANAGING DIRECTOR, P.O.VARAYAL, MANANDAVADY, WAYANAD. BY ADV. MR. P.V.JYOTHI PRASAD RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY FOR REVENUE, SECRETARIAT, THIRUVANANTHAPURAM. 2. TALUK LAND BOARD, REPRESENTED BY CHAIRMAN, DEPUTY COLLECTOR (LR), MANANDAVADY, WAYANAD. BY MR. DILEEP MOHAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5909 of 2007(C) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER OF TALUK LAND BOARD DATED 14.11.1984. P2: COPY OF THE ORDER OF THIS COURT IN CRP NO.103/09 DATED 19.06.1986. P3: COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 24.05.1996. P4: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 17.09.1996. P5: COPY OF THE JUDGMENT OF THE SUPREME COURT DATED 04.05.2001. P6: COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 28.05.2001. P7: COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 13.08.2002. P8: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN OP NO. 28711/2002. P9: COPY OF THE ORDER OF THIS COURT IN O.P.NO.28711/2002 DATED 25.05.2006. P10: COPY OF THE ADDITIONAL OBJECTION FILED by the PETITIONER DATED 10.11.2006. P11: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 01.12.2006. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // P.A. TO JUDGE kkms/ V.GIRI, J. = = = = = = = = = = = = = = == = = = = = = W.P.(C). No. 5909 OF 2007 = = = = = = = = = = = = = == = = = = = = = Dated this the 19th day of October 2009. JUDGMENT Petitioner filed a statement under Section 85(A) of the Kerala Land Reforms Act and by an order dated 30.11.1981, the Taluk Land Board, the second respondent passed orders holding that the land held by the petitioner is below the ceiling limit. 2. Thereafter by Ext.P1 order dated 14.11.1984, the Taluk Land Board reopened the proceedings under Section 85(9) of the Kerala Land Reforms Act. Ext.P1 order was challenged in C.R.P. No.103/85. Noting the absence of notice, this Court recorded the submission by the learned Government Pleader that the original order passed in Section 85(A) of the Land Reforms Act has not been set aside and it can be done only after giving the petitioner an opportunity of being heard. This Court observed that the order shall be set aside if necessary only after giving the petitioner an opportunity of placing his points against such course. 3. By Ext.P3 dated 24.05.1996, petitioner appeared before the Taluk Land Board with connected records. It is not clear W.P.(C). No. 5909 OF 2007 2 whether the petitioner filed any written objections. Pursuant to Ext.P3, by Ext.P4 order dated 17.09.1996, the Taluk Land Board referred to the earlier judgment of this Court Ext.P2, the subsequent notice Ext.P3 and went on to find that the earlier notice issued by the Deputy Collector was within time and the details called for earlier as per Ext.P3 is part of the proceedings. 4. Ext.P4 was again challenged by the petitioner before this Court and though the judgment is not placed on record, it is admitted that the writ petition is dismissed. Writ Appeal No.276/97 also was dismissed. Petitioner took up the matter before the Supreme Court. Supreme Court by Ext.P5 order dismissed the special leave petition after taking note of the contention raised on behalf of the State that the contention of the assessee that the conditions for reopening have not been satisfied are matters which can be addressed before the Taluk Land Board and that will be considered at the appropriate time. 5. Again Ext.P6 objections were filed by the petitioner before the Taluk Land Board. The followings are the objections contained in Ext.P6. W.P.(C). No. 5909 OF 2007 3 “ The existence of those conditions is the condition precedent for the excess of jurisdiction. As per Section 85(9) it allows re- opening only if the T L B have subjective satisfaction based on the materials that the extent of the land surrendered or ought to be surrendered has discrepancies and such a satisfaction has to be arrived before the previous order could be re-opened. Formation of this satisfaction and that too of the nature specified above is the sine qua non of condition percedent for the re-opening. If the satisfaction for the nature and qualities specified in Section 85(9) does not exist the entire re-opening is viod as with jurisdiction. For the above said reasons and based on the Supreme Court decision referred above, it is prayed that the preliminary order may be passed in the above case whether the conditions specified in Section 85(9) was satisfied and incorporated in the notice to re- open the proceedings.” 6. The Taluk Land Board then passed Ext.P7 order, wherein it was found that on going through the objection statement filed by the declarant, it is found that there are no materials in it to resist from re-opening the case. 7. Ext.P7 order was again challenged by the petitioner in O.P.No.28711/2002. By Ext.P9 judgment, this Court found that Ext.P7 does not satisfy the requirements of law. The Taluk Land W.P.(C). No. 5909 OF 2007 4 Board was bound to consider the objections on merits, advert to the same and pass a speaking order, as is mandatorily required under Section 85(9). Thus the Taluk Land Board was directed to pass a fresh order. Again Ext.P10 objections were filed by the petitioner pointing out that a reopening under Section 85(9) can be done only after Taluk Land Board was satisfied that the earlier order passed, requires to be reviewed. 8. By Ext.P11, the Taluk Land Board rejected the objections of the petitioner and decided to set aside the earlier order passed under Section 85(9) of the Kerala Land Reforms Act. Ext.P11 has been challenged in this writ petition. 9. Counter affidavit has been filed by the respondents. 10. I heard Mr. P.V.Jyothi Prasad, learned Counsel for the petitioner and Mr. Dileep Mohan, learned Government Pleader. 11. Reference will have to be made to Section 85(9) under the Land Reforms Act. Relevant portion of the same reads as follows:- “ (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 W.P.(C). No. 5909 OF 2007 5 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: 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:” 12. The statutory provision makes it clear that the Taluk Land Board cannot set aside any order passed by it without giving the person an opportunity to be heard. Obviously, this can be done only on objective grounds. Learned Counsel for the petitioner submits that Ext.P1 shows that the Taluk Land Board had proceeded to reopen the case only as per the dictates of State Land Board. This was an improper exercise of power, it is W.P.(C). No. 5909 OF 2007 6 contended, going by the judgments in Pushpamani v. State of Kerala (1991(1) KLT 401) and Moideen Kunhi Haji v. State of Kerala (1987 (2) KLT 101). This Court in the first decision held the power available to the Land Board under Section 101 of the Kerala Land Reforms Act is only the power of a Superintendence and it does not enable the Land Board to issue directions to the Land Tribunals or such other authorities to reopen proceedings which are already completed. In the second among the decisions, this Court reiterated the principle that since the power exercised by the Taluk Land Board is quasi judicial, it cannot be exercised under the dictates of any other authority. 13. It is true that in Ext.P2, Taluk Land Board refers to certain clarifications sought for by the State Land Board. But there was a further hearing held in this regard. As regards Ext.P4, the Taluk Land Board purported to reject the petitioner's objections by a cryptic order. This was set aside and ultimately this Court had by Ext.P9 judgment, directed the Taluk Land Board to pass a fresh order after considering the petitioner's W.P.(C). No. 5909 OF 2007 7 objections. In other words, the Taluk Land Board should give a notice to the assessee, specifically detailing the objections on the basis of which it proposes to reopen its earlier proceedings. I also find from Ext.P11, the Taluk Land Board has noticed certain discrepancies in certain transfers stated to have been executed subsequent to 15.09.1963. If this is be so, it should be specifically detailed in the notice proposing reopening of the proceedings. That has not been done. 14. I also take note of the fact that the Supreme Court had not accepted the petitioner's contention that the notice issued by the Taluk Land Board to reopen the proceedings is beyond the time frame fixed under Section 85(9) of the Act. An objection as regards the time limit within which the Taluk Land Board can now consider whether the proceedings are to be reopened or is not available to the petitioner. But the petitioner will have to be put on notice regarding the objections, which in the opinion of the Taluk Land Board constituted discrepancies, sufficient to reopen the proceedings. The process of considering any objection by the assessee against such proposal will have to be W.P.(C). No. 5909 OF 2007 8 on objective materials and not on the subjective satisfaction of the Taluk Land Board. An objective assessment will require a real opportunity to the assessee to respond to the specific infirmity which is noticed by the Taluk Land Board and which otherwise would constitute an adequate ground to reopen the proceedings under Section 85(9) of the Land Reforms Act. 15. In the result, the writ petition is allowed in part. Ext.P11 is set aside. The Taluk Land Board shall within two months from the date of receipt of a copy of this judgment, sent notice to the petitioner indicating the specific infirmities on the basis of which the proceedings are proposed to be reopened. Such a notice will be treated as an addendum to Ext.P1. Learned Counsel for the petitioner submits that any such infirmity will have to be restricted to what is noticed in Ext.P1. In the circumstances, the Taluk Land Board shall specifically formulate the infirmities if any detected in its earlier order dated 30.11.1981 provided such infirmities / discrepancies are within the scope of the discrepancies noted in Ext.P1. The petitioner shall be given an opportunity to file objections to such notice. W.P.(C). No. 5909 OF 2007 9 Thereafter, fresh orders shall be passed within six months from the date of receipt of a copy of this judgment. Petitioner shall be heard before such orders are passed. Writ petition is disposed of as above. (V.GIRI) JUDGE kkms/