State Of Kerala & Anr vs Kondottyparambanmoosa & Ors

2. The brief facts leading to the filing of this appeal may be narrated as under :

3. Accordingly, a draft statement with a notice under Rule 12(i) of the Kerala Land Reform (Ceiling) Rules was issued to the respondents to file objections, if any, against the draft statement and also to appear for hearing before the Board. Accordingly, the objection statement was filed by the 2 respondents and the same was verified through the Authorised Officer.

7. Accordingly, the case was reopened and notice was issued to the respondents stating that as per the enquiry report dated 7th of January,1976, the family of the respondent consisted of only 5 members as on 1st of January,1970, and that the family was holding 11 standard acres instead of the prescribed limit of 10 standard acres for a family consisting of 5 members. The respondents were called upon to file their objections, if any, by 10th of June,1992.

9. The Board by its order dated 10th of June,1992 decided to reopen the case under Section 85(9) of the Act as amended by Act 16 of 1989 and to proceed afresh after issuing a revised draft statement.

11. The High Court by the impugned judgment dated 1st of June, 2001 allowed the Revision Petition filed by the respondents on a finding that the order dated 13th of June, 1985 ceased to exist as it was merged with the order of the High Court dismissing the revision and that there was no scope for invoking Section 85(9) of the Act.

14. The questions that need to be decided in this appeal are as under:

15. Before we answer these questions, it would be expedient at this stage to record the findings of the High Court while allowing the Revision Petition filed by the Respondents and thereby setting aside the order of the Board. Accordingly, we reproduce those findings as under :-

(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;

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 11 which the order sought to be set aside has become final.

21. It is clear that the Board vide its order dated 13th of June,1985 held that the respondents were not liable to 12 surrender any land. However it cannot be said that the aforesaid order has merged with the order of the High Court dismissing the Revision petition of the appellant State as the same was dismissed on the ground of rejection of the application for condonation of delay and not on merits.

(Emphasis supplied) 14

26. In this view of the matter, we are, therefore, of the opinion that the doctrine of merger would only apply in a case when a higher forum entertains an appeal or revision and passes an order on merit and not when the appeal or revision is dismissed on the ground that delay in filing the same is not condoned. In our view, mere rejection of the revision petition on the ground of delay cannot be allowed to take away the jurisdiction of the Board, from whose order forms a subject matter of petition and Section 85(9) of the Act confers powers on the Board to reopen the case if such grounds for reopening the case are shown to exist.

28. For the reasons aforesaid, the impugned judgment of the High Court is liable to be set aside and it is accordingly set aside. The appeal is thus allowed. There will be no order as to costs.