IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 CRP.No. 1083 of 2001() --------------------- AGAINST THE ORDER IN SB IN RP.9/1992 of T.L.B.,SULTHANBATHERI .................... REVN. PETITIONER(S): ------------------------------- STATE OF KERALA. BY SR. GOVERNMENT PLEADER SRI. M.R. SABU. RESPONDENT(S): ----------------------- 1. SMT. P. SUSEELA, W/O. LATE P. RAGHAVAN, KARAVAYAL HOUSE, ATHIRATTUKUNNU, KENICHIRA. 2. SRI.. OMAKKARA MATHAI, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 3. SRI.KOCHUPURAKAL NARAYANAN, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 4. SRI. ANICUVATTIL THOMAS, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 5. SRI. ANICUVATTIL JOHN THOMAS, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 6. SRI. VENGAKKAL JOSEPH, (DIED LRS IMPLEADED) ANGADISSERI, P.O. MANALVAYAL, IRULAM. 7. ARAKKAL DEVASSIA, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 8. PARAYIDUKKIL MADHAVAN, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 9. PARAYIDUKKIL KRISHNAN, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 10. VAZHAYIL RAJU MATHEW, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 11. SMT. ROSAMMA KURIAKOSE, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 12. SRI. V.K. MATHAI, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 13. SRI. KOOVALATHILKATTIL MOHANAN, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 14. SMT. ANICHUVATTIL MARIAMMA THOMAS, ANGADISSERI, P.O. MANALVAYAL, IRULAM. (DIED. LRS IMPLEADED) 15. SRI. PUTHUSSERIL BALAN, S/O. LATE P. RAGHAVAN, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 16. SRI. KOLLIYIL GEORGE, ANGADISSERI, P.O. MANALVAYAL, IRULAM. 17. SMT. PANNIMATTATHIL KALLIANI, ANGADISSERI, P.O. MANALVAYAL, IRULAM. ADDL. R18 TO R23 IMPLEADED. 18. ROSAMMA (WIFE) VENGAKKAL VEEDU, ANGADISSERI, MANALVAYAL P.O., WAYANADU. 19. JOSEPH (SABU) (SON) VENGAKKAL VEEDU, ANGADISSERI, MANALVAYAL P.O., WAYANADU. 20. MINI (DAUGHTER), KARAMEL VEEDU, KATTIKKULAM, CHERUR, MANANTHAVADI, WAYANADU. 21. MATHEW (SAJI) (SON) VENGAKKAL VEEDU, ANGADISSERI, MANALVAYAL P.O., WAYANADU. 22. SIJI (DAUGHTER) PARANTHANAL VEEDU, NADAVAYAL, PANAMARAM P.O., WAYANADU. 23. BINDU (DAUGHTER) VENGAKKAL VEEDU, ANGADISSERI, MANALVAYAL P.O., WAYANADU. ADL. R18 TO R23 IMPLEADED AS PER ORDER DATED 17.1.2008 IN I.A. 3473/2006. ADDL. R24 TO 31 IMPLEADED. 24. THOMAS (HUSBAND), ANICHUVATTIL HOUSE, ANGADISSERI P.O., MANALVAYAL. 25. JOHN THOMAS (SON) NAVAGIRI, KALLONIKKUNNU, P.O. MANALVAYAL. 26. KARIA (SON), ANICHUVATTIL HOUSE, VADAKKANCHERI, KURANCHERI, THRISSUR. 27. ACHAMMA (DAUGHTER), AICHUVATTIL HOUSE, MANALVAYAL P.O. 28. MARY (DAUGHTER), KOTTAYIL VEEDU, MANANTHAVADY, VALLIYOORKAVU, WAYANAD. 29. ELIAMMA, W/O. KURIAKOSE (DAUGHTER) POOKKOLAYIL, NAIKKATTY P.O., WAYANAD. 30. THOMAS (THANKACHAN) (SON) ANICHUVATTIL, IRULAM, MANALVAYAL P.O.. WAYANAD. 31. MATHEW (SHIBU) (SON) ANICHUVATTIL, IRULAM, MANALVAYAL P.O.. WAYANAD. ADDL. R24 TO 31 IMPLEADED AS PER ORDER DATED 17.1.2008 IN I.A. 3475/2006. ADV. SMT.T.D.RAJALAKSHMI FOR R18 TO R31 SRI.E.R.VENKATESWARAN FOR R18 TO R31 SRI.B.N.SHIVSANKAR FOR R1 SMT.T.D.RAJALAKSHMI FOR R3 TO 5, 7 TO11 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON 08.01.2010 PASSED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No. 1083 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of January, 2010. ORDER The State, aggrieved by the order of the Taluk Land Board, Sultan Bathery, whereby the Board held that there were no reasons to re-open the case under Section 85(9)A of the Kerala Land Reforms Act, is the revision petitioner. The facts fall within a narrow compass. 2. In relation to a ceiling assessment made with regard to one R.Raghavan, it was found that he was assessed to possess 68.16 acres of land of which 50.25 acres was exempted as being private forest as on 1.1.1970 and 25 cents as house site. The balance area, which the family possessed was determined as 17.91 acres. Since the family consisted of ten members, it was concluded that the family did not hold any excess land. CRP. 1083/2001. 2 3. Later it was felt that an error had been committed in exempting the land in regard to private forest and the Taluk Land Board sought to re-open the case under Section 85(9)A of the KLR Act. Notice was issued to Raghavan, and as he expired, his legal heirs were impleaded. Based on the Deputy Tahsildar's report and also the facts and circumstances disclosed from the records, the Taluk Land Board took the view that there was no ground to re- open the case. 4. The State would say that the above finding of the Taluk Land Board is wrong. According to the State, exemption given to 50 acres of land as private forest is not correct because as on 10.5.1971, that is the date on which Kerala Private Forest (Vesting and Assignment) Act came into effect, the property had ceased to be a private forest. The property was in the possession of fifteen others, who were cultivating the property. It was therefore contended that the order of the Taluk Land Board is unsustainable. CRP. 1083/2001. 3 5. Though the argument may look very attractive, it has no bearing on the facts and circumstances of the case whatsoever. There is no case for the State that the present case falls under Section 87 of the KLR Act. The issue was considered in the decision reported in State of Kerala v. Sarojini Amma (2004(1) K.L.T. 354). After an elaborate consideration of the identical issues, it was held as follows: “The same High Court yet in another case in Joseph Thomas v. State of Kerala (1987(2) KLT 273) has taken the view that “on a plain reading of S.81, it is clear that “Private “Forests” belong to that category of land which enjoys the exemption without any restriction. If that be so, 'private forest' converted into rubber plantation, although the conversion took place after 1.4.1964, requires to be excluded from the accounts of the declarant because the land converted belongs to the category of lands permanently exempted from the purview of the ceiling provisions contained in KLR Act.” CRP. 1083/2001. 4 Thus, this being the legal position, in the absence of any material that private forests were converted into non-exempted category of lands, it was not permissible to the Taluk Land Board to deny the benefit of exemption claimed by the respondents. Hence, the High Court was right in upsetting the order of the Taluk Land Board. The alternative argument advanced on behalf of the appellants that the lands in question vested int he State by virtue of the provisions of the Kerala Private Forests (Vesting and Assignment) Act, 1971 does not help the appellants as on this front also the State had failed in the proceedings taken up under the said Act. The Forest Tribunal by its order dated 21.7.1978 in O.A. Nos.81/1976, 82/1976, 83/1976 and 84/1976 had held that the land did not vest in the Government except some rocky and other portions stated in the said order. Appeal filed before the High Court by the State of Kerala challenging the said order of the Forest Tribunal was also dismissed. Further, even the S.L.P. CRP. 1083/2001. 5 Filed in this regard against the order of the High Court passed in the appeal was dismissed. In this view, the argument that the lands in question vested in the State cannot be accepted. What remains to be considered is whether the High Court committed an error of jurisdiction in passing the impugned order when the Taluk Land Board did not consider the question of law erroneously or failed to consider any question of law. From the facts found and looking to the provisions of the land and the discussion made in the impugned order of the High Court, it is clear that the Taluk Land Board decided the question of law erroneously in taking the view that the benefit of exemption available to private forests could be denied on account of non-conversion of those lands into plantation before 1.1.1970. As already discussed above, denying the benefit of exemption of the lands being private forests when they were not converted into category of non-exempted lands was a clear case of deciding the question of law erroneously. This apart, as held by this Court in dealing with the scope of the provision of Section 103 of the Act in Baby v. Travancore Devaswom Board & Ors. (1998(8) SCC CRP. 1083/2001. 6 310), the High Court had powers under Art. 227 of he Constitution of India to quash the orders passed by the Tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents. Para 6 of the said judgment reads: “But that, in our opinion, is not the end of the matter. The High Court had still powers under Art.227 of the Constitution of India to quash the orders passed by the tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents the consideration of which could have led to an opposite conclusion. This power of the High Court under the Constitution of India is always in addition to the powers of the revision under S.103 of the Act. In that view of matter, the High Court rightly set aside the orders of the tribunals. We do not, therefore, interfere under Art.136 of the Constitution of India. The appeals fails and are dismissed.” CRP. 1083/2001. 7 6. There is no case for the State that as on the crucial date, the land in question was not private forest and was not liable for exemption. Merely because it may or may not have ceased as a private forest as on the date of coming into force of the Kerala Private Forests (Vesting and Assignment) Act, it does not mean that the matter is to be re-opened under Section 85(9)A of the KLR Act. Section 85(9)A enables the Land Board to review its decision in case it is found that the earlier decision was due to the failure to take into consideration the relevant date and such other matters or was the result of a collusion or fraud, after giving an opportunity to the affected parties. None of the contingencies contemplated under Section 85(9)A exists in the case on hand. As already noticed, the contention of the State is that the property had ceased to be a private forest as on the date of the coming into force of the Vesting and Assignment Act and therefore the Taluk Land Board has erred in exempting the land. As already noticed, that is irrelevant because as on 1.4.1964 and 1.1.1970 the State had no CRP. 1083/2001. 8 case that the land did not qualify for exemption. The revision petition is without merits and it is only to be dismissed. I do so confirming the order of the Taluk Land Board. P. BHAVADASAN, JUDGE sb. CRP. 1083/2001. 9 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No. 1083 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER 08.01.2010