IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 OP.No. 20698 of 1998(L) ------------------------------ PETITIONER(S): ------------------- D.T. D' CRUZ, MANAGING DIRECTOR, FATHIMA PLANTATIONS, MUKKAM, CALICUT. ADDL. PETITIONER: D.T. JOSE, S/O. LATE D.T. D' CRUZ, MANAGING DIRECTOR, FATIMA PLANTATIONS, MYSORE MALA P.O., MUKKAM, KOZHIKODE. (IMPLEADED AS PER ORDER DATED C.M.P.NO.21224/1999 DATED 21.6.99) BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN(SR.) SRI.T.SETHUMADHAVAN RESPONDENT(S): --------------------- 1. THE TALUK LAND BOARD, QUILANDY. 2. STATE OF KERALA, NOTICE FOR WHOM MAY BE SERVED ON THE CHIEF SECRETARY, THIRUVANANTHAPURAM. 3. V.K. NARAYANAN NAIR, SON OF KRISHNA KURUP, KUMARANELLOOR AMSOM, ANAYAKUNNU DESOM, KOZHIKODE DISTRICT. ADV. SRI.V.V.SURENDRAN GOVERNMENT PLEADER SRI. M.R. SABU THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 20698 of 1998 ORDER ON C.M.P.NO.21224 OF 1999 IN O.P.NO.20698 OF 1998 DISMISSED 25.9.2008 SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF THE ORDER OF THIS HON'BLE COURT IN C.R.P.NO.1675/76. EXT.P2: COPY OF THE ORDER OF THE TALUK LAND BOARD DTD 30.9.85. EXT.P3: COPY OF THE JUDGMENT IN O.S.NO.770/86 BEFORE THE MUNSIFF COURT, KOZHIKODE. EXT.P4: COPY OF THE ORDER OF TALUK LAND BOARD DTD 29.9.88. EXT.P5: COPY OF THE REPORT OF THE TAHSILDAR DTD 13.9.88. EXT.P6: COPY OF THE JUDGMENT DTD 21.3.90 IN O.P.NO.8689/88 BEFORE THIS HON'BLE COURT. EXT.P7: COPY OF THE JUDGMENT IN O.P.3127/91 BEFORE THIS HON'BLE COURT. EXT.P8: COPY OF THE NOTICE NO.T.L.B (Q) 3/75 DATED 4.3.95. EXT.P9: COPY OF THE REPLY NOTES OF ARGUMENT SUBMITTED BY THE 3RD RESPONDENT DTD 12.12.96. EXT.P10: COPY OF THE ORDER OF THE FIRST RESPONDENT DTD 25.6.98 TO THE PETITIONER. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 20698 OF 1998 ---------------------------------------- Dated this the 25th day of September, 2008 JUDGMENT The 1st petitioner who filed the original petition (who died during the pendency of the original petition) was the declarant in Ceiling Case No.TLB Q-3/75 on the files of the Taluk Land Board, Quilandy. In that proceedings, a dispute arose as to the total extent of land involved in the ceiling case as belonging to the 1st petitioner. In respect of the same, the 1st petitioner filed C.R.P. No.1675/76, in which Ext.P1 order was passed, whereby this Court set aside the earlier order passed by the Taluk Land Board and remanded the matter for fresh disposal of the whole matter giving reasonable opportunity to the petitioner to state and prove his case and for passing appropriate and consequential orders, if any, found necessary. Pursuant thereto, a detailed survey was conducted, which resulted in Ext.P2 order dated 30.9.1985 of the Taluk Land Board, whereby the Taluk Land Board decided to drop O.P.No.20698/98 2 further proceedings in the case holding that the 1st petitioner had no surplus land to be surrendered. Thereafter, on 27.9.1988, the 1st petitioner was served with a show cause notice directing him to show cause on 28.9.1998 why the ceiling case should not be re-opened under Section 85(9) of the Kerala Land Reforms Act. Although the 1st petitioner was not given sufficient time, he somehow managed to file objections on 28.9.1988 and by Ext.P4 order dated, on the very next day viz. 29.9.1988, the Taluk Land Board decided to re-open the Ceiling Case. That was challenged by the 1st petitioner by filing O.P.No.8689/1988. This Court, by Ext.P6 judgment, in the original petition, set aside Ext.P4 order and directed the Taluk Land Board to consider the matter afresh. The Taluk Land Board thereafter issued Ext.P8 notice for a fresh hearing. In the meanwhile, the 3rd respondent got himself impleaded in the ceiling case, and filed Ext.P9. Thereafter, the Taluk Land Board, by Ext.P10 order, again decided to re-open the Ceiling Case. Ext.P10 order is under challenge before me. 2. During the pendency of this original petition, the 1st petitioner died and his son got himself impleaded as additional O.P.No.20698/98 3 2nd petitioner in the original petition, who prosecuted the original petition as legal representative of the deceased 1st petitioner. 3. The petitioners' contention is that the decision to reopen the ceiling case is not based on any reliable materials on record and does not conform to Section 85(9) of the Kerala Land Reforms Act. 4. I have heard the learned Government Pleader also, who sought to support Ext.P10 order with the help of the counter affidavit filed by the 1st respondent. 5. I have considered the rival contentions in detail. While considering the validity of the earlier order, Ext.P4, this Court had, in paragraph 4 of Ext.P6 judgment, held thus: “4. The order Ext.P8 also prima facie shows that the re-opening was made under Section 85(9) without any material whatsoever. Section 85(9) provides that the Taluk Land Board can set aside its order under Sub- Section (5) or (7) and proceed afresh if it is satisfied that the conditions mentioned in Clauses (a), (b) and (c) are satisfied. Though I am not expressing any final opinion on that matter, on going through Ext.P8 order I do not find any material on the basis of which the Taluk Land Board could have come to that conclusion. Whether there are any other materials is a matter to be enquired into. The only basis of Ext.P8 order is the report of a Tahsildar dated 13.9.88 which does not show any mistake in the order of the Taluk Land Board. Any how, I am not O.P.No.20698/98 4 expressing any final opinion on the matter except to state that the Taluk Land Board can set aside the order under Section 85(9) only if it is satisfied that one or the other condition mentioned in that section exists in a particular case”. Therefore, there is a very clear finding that apart from the report of the Tahsildar, there is no other reliable material based on which the Taluk Land Board could have come to the decision to re-open the Ceiling Case. That being so, unless the Taluk Land Board shows that, apart from the report of the Tahsildar, there were some other materials than those available at the time of passing Ext.P4 order, the Taluk Land Board could not have re-opened the ceiling case under Section 85(9) of the Kerala Land Reforms Act. In Ext.P10 order, it is stated thus: “Both the parties were heard. The matter was discussed with the Land Board members in detail. The main points discussed are 1) whether the survey work has been done properly and 2) whether the exemption granted in this case was covered by valid documents. On scrutiny of the file it is seen that the assessee company has acquired 864 acres of land in R.S.66/1, 76 and 78/2 of Kumaranallur village. According to the Authorised Officer's report dt. 4.8.83 the area in possession of the assessee as per survey record is 692.53 acres,. Nothing has been mentioned about the difference of 177.47 acres. It has not been explained how such a vast difference in O.P.No.20698/98 5 measurement is occurred with reference to the document. It is difficult to believe that a company will purchase such a vast area without proper verification and basis of the measurement of landed properties. The interested party who was impleaded in the case has stated that the land was surveyed as pointed out by the assessee. The returnee has not produced any contra-evidence to this statement. It is also not clear from the report of the Authorised officer that the survey done was in respect of the land owned by the assessee as on 1.1.70 and that was too with reference to the boundaries as mentioned in the documents as per which the assessee acquired the property. This has to be verified and confirmed. The other point to be considered is whether there is any valid material evidence to substantiate the exemption made as per the earlier order dt. 30.1.85. On a perusal of the file it is seen that the Taluk Land Board has discussed only the report of the Authorised Officer. It has been mentioned in the order that is reported (by Authorised Officer) that the company was having' proper documents' to prove their case that an extent of altogether 127.03 acres (105.47 + 21.56) in R.S.66/1 and 76 was rubber plantation. But no such a “proper document” were seen produced either by the Authorised Officer or by the assessee, which would be a good material evidence in support of this statement. This aspect has also to be verified. The interested party, Sri. Narayanan Nair, has stated that since the earlier order dt. 26.2.76 as per which 37 cents was exempted for Anayamkunnu National library was set aside by the Hon'ble High Court, this exemption of 37 cents should have been continued and he should have been impleaded in the subsequent proceedings and orders. This arguments also seems to be correct. Under these circumstances, the Taluk Land Board O.P.No.20698/98 6 find that this case has to be re-opened and decide afresh. In the result, the order of the Taluk Land Board, Koyilandy first cited is hereby set aside U/s 85 (9) (c) of the KLR Act, and the case is re-opened. A revised draft statement with notice under rule 12(1) of KLR Ceiling rules will be issued separately”. These findings are not based on any other materials other than the report of the authorised officer, which this Court has categorically held does not disclose any material on the basis of which the Ceiling Case can be re-opened. As such I find that apart from the contentions raised by the 3rd respondent there was no additional material in the matter which were gathered after Ext.P6 judgment. Therefore the Taluk Land Board did not have any other material other than what were available at the time of passing Ext.P2 order. The Taluk Land Board could not have re-opened the matter on the basis of the contentions of the 3rd respondent unless he had produced any reliable material in support of the same, which he had not. Even if there is any other material, the same had not been put to the petitioner. That being so, Ext.P10 is clearly unsustainable. Accordingly, the same is quashed. The matter is thirty three years old. Proceedings under the Act should attain finality some time. Therefore, I am of opinion that it is O.P.No.20698/98 7 high time that this matter be closed finally. Accordingly, I allow the original petition with a direction that the ceiling case No.TLB Q-3/75 on the files of the Taluk Land Board, Quilandy be closed finally as per Ext.P2 order. S. SIRI JAGAN, JUDGE Acd O.P.No.20698/98 8