IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 WP(C).No. 23303 of 2008(Y) -------------------------- PETITIONER: ------------- SUSHEELA HARIDAS, D/O.LATE P.G.MENON AND W/O. A.HARIDAS, DEVI VILAS, CHERPULASSERI, NOW RESIDING AT "SHREE" HOUSE NO. 357, CHANDRA NAGAR EXTENSION, P.O.CHANDRANAGAR, PALAKKAD. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: ---------------- 1. THE TALUK LAND BOARD, OTTAPALAM 2. THE TAHSILDAR, OTTAPALAM 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM 4. THE SUB REGISTRAR, CHERPULASSERI 5. THE VILLAGE OFFICER, CHERUPULASSERI R1 TO R5 BY GOVERNMENT PLEADER, SMT. N. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 23303/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE ORDER OF THE TALUK LAND BOARD (R1) DATED 31.03.1981. EXT.P2 : TRUE CPY OF THE ORDER OF THE TALUK LAND BAORD(R1) DATED 31.01.05. EXT.P3 : TRUE COPY OF THE ORDER DATED 15.11.07 IN CRP NO.266/06. EXT.P4 : TRUE COPY OF THE FRESH DRAFT STATEMENT DATED 18.06.08 ISSUED BY THE 1ST RESPONDENT. EXT.P5 : TRUE COPY OF THE INTIMATION GIVEN BY THE 1ST RESPONDENT TO THE 4TH RESPONDENT DATED 18.06.02. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 23303 OF 2008 ------------------------------------------------- Dated this the 17th day of June, 2009 JUDGMENT Petitioner is the daughter of late P.G. Menon, who was the declarant in SM Proceedings No.104/77 under the ceiling provisions of the Kerala Land Reforms Act on the files of the Taluk Land Board, Ottappalam. Originally as per order dated 29.10.77, the 1st respondent directed late P.G. Menon to surrender an extent of 2.44 acres of land. The above extent of land was surrendered. The State filed CRP No.605/78 against that order before this Court. This Court by order dated 28.11.79 set aside the order of the Taluk Land Board for want of sanction from the State Land Board to initiate proceedings under the Kerala Land Reforms Act. After obtaining necessary sanction from the State Land Board, by Ext.P1 order dated 31.03.81 the 1st respondent held that the declarant is not in possession of any excess land. Pursuant thereto the Taluk Land Board directed the Tahsildar to re-convey 2.44 acres of land, which had already been surrendered by the declarant. Thereafter a civil suit was filed by the declarant for reconveying the surrendered 2.44 acres of land, which WPC :23303/08 -:2:- was in the meanwhile assigned by the Government to third parties. During the pendency of the civil suit, the declarant P.G. Menon passed away in 1986. According to the petitioner, to overcome the liability to re-convey the land, the 1st respondent by order dated 28.02.92 decided to reopen the ceiling case invoking powers under Section 85(9A) of the Kerala Land Reforms Act without issuing any notice to the legal heirs of the declarant, before actually deciding to reopen the case. Thereafter, Ext.P2 order dated 31.01.05 had been passed by the 1st respondent directing the petitioner and others to surrender an extent of 57.28 acres as excess land. The legal heirs of P.G. Menon filed two revisions, namely, CRP Nos.266/06 and 1190/05. By Ext.P3 order dated 15.11.07, this Court set aside the order of the Taluk Land Board and directed the Taluk Land Board to reconsider the matter. However, without passing any order as to whether conditions for reopening the case under Section 85(9A) are satisfied, the Taluk Land Board has now issued Ext.P4 draft statement, directing the legal heirs to file their objections to the draft statement. The 1st respondent has also sent an intimation to the Sub Registrar, Ext.P5, not to effect any transaction in respect of the WPC :23303/08 -:3:- properties included in the ceiling case. It is aggrieved by Exts.P4 and P5 orders, the petitioner has approached this Court seeking the following relief: “i. to call for the records leading to Exhibits P4 and P5 and to quash the same by issuing a writ of certiorari;” 2. According to the petitioner, without first deciding as to whether the conditions for review of the earlier order invoking powers under Section 85(9A) are satisfied and passing an order, no draft statement could have been issued by the Taluk Land Board. It is also submitted that in Ext.P5, properties which have not been ordered to be surrendered, have also been included and therefore the same is without jurisdiction. 3. The learned Government Pleader would argue that Ext.P4 notice had been issued perfectly in accordance with Ext.P3 order. According to her, all what has been directed in Ext.P3 order is that in the fresh orders to be passed, the reasons for invoking Section 85 (9A) should also be specifically stated. The argument is that while filing objections to Ext.P4 draft statement, the petitioner can very well raise contentions regarding jurisdiction under Section 85(9A) as well, which will be duly considered and decided in the final order to be WPC :23303/08 -:4:- passed. 4. I have considered the rival contentions in detail. Section 85 (9A) reads thus: “Section 85 (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, 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.” 5. Therefore, for invoking the powers under that Section the conditions prescribed therein should be satisfied, namely that the earlier decision should have been one made due to the failure to produce relevant data or other particulars relating to ownership or possession, or the earlier order should have been one passed because of collusion or fraud or any suppression of material facts. WPC :23303/08 -:5:- Only if those conditions are satisfied, the Taluk Land Board can exercise the powers under Section 85 (9A). Therefore before deciding to review the earlier order in exercise of powers under Section 85 (9A), the Taluk Land Board is bound to pass an order deciding to review the earlier decision for the reasons to be recorded in writing after hearing the parties. The Taluk Land Board should also consider the question of limitation prescribed in the Section before deciding to review the earlier order. Only thereafter the question of issue of fresh draft statement arises. 6. I am of opinion that in Ext.P3 order this Court has not decided otherwise. It is clear from paragraphs 2 and 5 of Ext.P3 order, which read as follows: “2. The main grievance of the revision petitioners is that except the widow of the son of the original declarant nobody else was given an individual notice and therefore they were not able to agitate before the Taluk Land Board about the correctness of the reopening of the case. It has to be remembered that a case which has been closed by the Land Tribunal in 1981is reopened and they have directed them to surrender an extent of 57.28 acres of land. If really there are materials to support reopening under Section 85 (9A) of the Act, opportunity must be given to the parties concerned to put forward their contentions and resist reopening of the case under the Act. WPC :23303/08 -:6:- xxxxx xxxxxx 5. Therefore, the order under challenge is set aside and the matter is remitted for the following: The Taluk Land Board shall give notice of hearing to all concerned by registered post with acknowledgment due and thereafter on appearance of the parties, permit them to file detail counter statement and allow them to produce documentary and oral evidence in support of their respective contentions and in case of necessity of any report from the Special Deputy Tahsildar under Section 105 of the Act, that may have to be obtained and thereafter dispose of the matter in accordance with law. I also make it clear that there must be materials available to show that Section 85(9A) of the Act is attracted or reopening the case and further that it has been done within the time stipulated. I further direct the Taluk Land Board to take into consideration the fact that the matter is of the year 1977onwards and try for expeditious disposal.” 7. By reading paragraphs 2 and 5 together, I am satisfied that what was in contemplation of this Court was a specific order under Section 85 (9A) before deciding to review the earlier order of the Taluk Land Board. Therefore, clearly without first passing an order deciding to review the earlier order, the Taluk Land Board could not have issued a draft statement calling for objections. In the facts and circumstances of the case, I am also satisfied that Ext.P5 was uncalled for. Accordingly, Exts.P4 and P5 are quashed. The 1st respondent is directed to first consider the question as to whether the WPC :23303/08 -:7:- conditions prescribed under Section 85 (9A) of the Kerala Land Reforms Act are satisfied for invoking the jurisdiction to review its earlier order and to pass an order under Section 85 (9A), after hearing all parties concerned. Only after passing that order further proceedings like issue of fresh draft statement, calling for objections shall be taken. Such orders shall be passed as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. In view of the peculiar facts and circumstances of the case, I direct that the petitioner shall not alienate the property for the said period of three months. If the proceedings are not completed within the said period of three months, it would be open to the petitioner to sell properties under the exempted category. S. SIRI JAGAN, JUDGE ttb