VELAYUDHAN v. STATE OF KERALA — 1981 DIGILAW 184 (KER)

Judgment :- 1. In a ceiling case against the 4th respondent an order under S.85(5)(c) of Kerala Act 1 of 1964 (for short the 'Act') was passed by the Taluk Land Board on 15-12-1975 and it was confirmed in revision by this Court on 3-11-1976. On 13-11-1976 the 4th respondent's major son (revision petitioner) filed an application under S 85(8) of the Act for setting aside the order on the ground that the land held to be belonging to his mother does not belong to her but belongs to bis family, the same having been acquired by his father for the benefit of the family. Since the application was filed not within 60 days but nearly eleven months after the date of the order passed by the Taluk Land Board and since the ground urged for condoning the delay was not acceptable, the Taluk Land Board dismissed the application and this order is now challenged. 2. The learned counsel for the revision petitioner contended that the period of 60 days for filing the application under S.85(8) of the Act will commence only from the date of the disposal of the CRP by this court, i.e. 3-11-1976 and not from the date of the order passed by the Taluk Land Board, i. e. 15-12-1975 and hence the application filed on 13-11-1976 was within time. The learned Government Pleader contended that irrespective of the filing of revision and disposal of the same, the period of 60 days has to be calculated from the date of the order of the Taluk Land Board. He also contended that the applicant being the son of the declarant, cannot be treated as ;'a person interested" eligible to move the Taluk Land Board under S.85(8) of the Act 3. S 85 (8) of the Act states that where the Taluk Land Board determines the extent of the land to be surrendered by any person without hearing any person interested, such person may, within sixty days from the date of such determination, apply to the Taluk Land Board to set aside the order and, if he satisfies the Taluk Land Board that he was prevented by any sufficient cause from appearing before the Taluk Land Board, it shall set aside the order and shall proceed under sub section (5) or sub-section (7), as the case may be. R.14 (1) of the Kerala Land Reforms (Ceiling) R.1970 (for short the 'Rules') prescribes that the application under S.85 (8) shall be in Form No. 6. Clause (2) of the rule enables the Taluk Land Board to make or cause to be made such enquiries, investigations and verifications as it deems necessary. Clause (3) of the rule states that the Taluk Land Board shall not reject the application without hearing the applicant. 4. The period of 60 days for filing the application commences from the date of "such determination" of the extent of the land to be surrendered. Where the order of the Taluk Land Board has become final not having been challenged in revision under S.103 of the Act there can be no doubt that period of 60 days must be counted from the date of the order of the Taluk Land Board. Where the order of the Taluk Land Board has been challenged in revision under S.103 of the Act and the revision has been disposed of on merits by the High Court either by confirmation, or modification, the order of the Taluk Land Board merges in the order of the revising court, (vide Chathunni v. Taluk Land Board (1981 KLT. 74)) In such a case the date of determination of the extent of the land to be surrendered can only be the date of the disposal of the revision by this Court. The same view has been taken in the decision in Krishnan v. Taluk Land Board, Vaikom (1979 KLT. 209) where Narendran, J. observed: "As petitioner has approached the Taluk Land Board within sixty days of the order in the Civil Revision Petition the application is not barred by limitation." 5. It is suggested in the course of the arguments that if this view be taken, it has to be held, following the dictum in Chathunni's case, that Taluk Land Board cannot set aside an order which has merged in the revisional order under S.103 of the Act. In Chathunni's case this Court held that where the order of the Taluk Land Board has merged in the revisional order, the Land Board cannot exercise power under S.85(9) of the Act According to S.85(9), under the contingencies specified therein, Taluk Land Board may set aside "its order". In Chathunni's case this Court held that where the order of the Taluk Land Board has merged in the revisional order, the Land Board cannot exercise power under S.85(9) of the Act According to S.85(9), under the contingencies specified therein, Taluk Land Board may set aside "its order". This Court held that where the order of the Taluk Land Board has been challenged in revision and the revision has been disposed of on merits, the Taluk Land Board will not then be setting aside "its own order" but that of the revisional authority with whose order the Taluk Land Board's order must be taken to have merged and hence power under S.85(9) cannot be exercised by the Taluk Land Board. 6. However the identical question in the context of S.85(8) came up for consideration in Krishnan's case (1979 KLT. 209). In that case the Taluk Land Board did not direct surrender of the land later claimed by the applicant under S.85(8); it directed surrender of some other land. Revisional court modified the order and directed surrender of land in which the applicant was interested. So he filed an application under S.85(8) Narendran, J. observed as follows: "The application is to be filed before the Taluk Land Board. It cannot be filed before the High Court The power to pass final order in a ceiling case directing surrender of excess land is with the Taluk Land Board under S.85 of the Act. No doubt, the High Court has the power to interfere with that order in revision under S.103. But, even if it is interfered in revision, the order will not cease to be a final order in a ceiling case. If there is direction to surrender land in that order an application under S.85(8) will lie to the Taluk Land Board if the conditions insisted by the sub-section are satisfied. So, it is the Taluk Land Board that is to be approached even where its' order is modified by the High Court in revision." (emphasis supplied). 7. Sub-section (9) of S.85 contemplates the Taluk Land Board setting aside 'its order'. When its order has merged in the order of the revisional authority; its order that is, the Taluk Land Board's order does not survive. The Taluk Land Board has authority under sub-section (9) only to set aside 'its order' and not any other order. 7. Sub-section (9) of S.85 contemplates the Taluk Land Board setting aside 'its order'. When its order has merged in the order of the revisional authority; its order that is, the Taluk Land Board's order does not survive. The Taluk Land Board has authority under sub-section (9) only to set aside 'its order' and not any other order. That was why this court in Chathunni's case held that S.85(9) does not enable the Taluk Land Board to set aside an order which has merged in the order of the revisional authority. It is open to the legislature to invest such a power in the original authority, i.e. the Taluk Land Board. That is what has been done in S.85(8) of the Act. The expression "its order" occurring in sub-section (9) is conspicuously absent in sub-section (8) and the latter speaks only of "the order". The expression "the order" would indicate the "final order in the ceiling case", whether it be the unchallenged order of the Taluk Land Board or the order of the Taluk Land Board as merged in the order of the revisional authority. The frame and scheme of sub-section (8) is materially different from that of sub-section (9). Therefore, I am of the respectful view that the construction put on subsection (9) in Chathunni's case cannot be put on sub-section (8) of S.85 of the Act. The view taken in Krishnan's case, with respect, must survive the decision in Chathunni's case. 8. Taking a different view would lead to serious consequences, which could not have been in the legislative mind. An interested person, though he was not called upon to participate in the enquiry before the Taluk Land Board under sub-section 5 or sub-section? of S.85 may approach the Taluk Land Board with his claim or contention. It is open to the Taluk Land Board to hear him in the enquiry under sub-sections (5) or (7). He may not be aware of the ceiling case or of the fact that the land in which he is interested is concerned in the case. In such a case, he will not have the opportunity of approaching the Taluk Land Board for a hearing before order is passed. By the time he becomes aware of it, order might have been passed directing surrender of land in which he is interested. In such a case, he will not have the opportunity of approaching the Taluk Land Board for a hearing before order is passed. By the time he becomes aware of it, order might have been passed directing surrender of land in which he is interested. If at that stage, he approaches the Taluk Land Board, it will not be in a position to hear him and give him any relief. No relief can be given to him unless the order is set aside. That is why sub-section (8) of S.85 provides for the order to be set aside. It is true that any person aggrieved by the order of the Taluk Land Board can under S.103 of the Act challenge the order in revision But the scope of intervention by the High Court under S 103 of the Act is extremely limited, it is limited to erroneous decision on question of law and to failure to decide question of law by the Taluk Land Board. A person having a genuine claim or interest in the land directed to be surrendered may have to adduce evidence in regard to disputed questions of fact and call for adjudication regarding those contentions. In such a case, High Court may not be able to give him adequate remedy under S.103. He may find himself under threat of eviction under R.19, 20 and 21 of the Rules. Sub-section (8) is designed to secure justice to interested persons placed in such unenviable predicaments Denial of remedy under sub-section (8) in cases where the order of the Taluk Land Board has merged in the order of the revisional court could not have been in the contemplation of the legislature; on the contrary, legislature appears to have drawn up the frame and scheme or sub-section (8) in a form materially different from that in sub-section (9), only with a view to secure an opportunity of hearing on facts to such persons Therefore, T hold that remedy under sub-section (8) of S.85 is available in this case 9. I shall now deal with the submission of learned Government Pleader that only a stranger can seek the aid of S 85(8) and the revision petitioner who is the son of the person involved in the ceiling case is not a person interested and cannot apply under S 85 (8). I shall now deal with the submission of learned Government Pleader that only a stranger can seek the aid of S 85(8) and the revision petitioner who is the son of the person involved in the ceiling case is not a person interested and cannot apply under S 85 (8). Any person having a right or claim inland is a person interested in land There is nothing in the expression "interested" or the provisions in sub-section (8) to warrant the view that only a stranger can apply thereunder. R.12 (2) of the Ceiling Rules provides for individual notice in Form 3 to all persons, so far as may be, having or likely to have any claim to or interest in lands included in the draft statement. When such notice is not sufficient, or effective or practicable, R.12 (3) requires public notice in Form 4 to be published in two daily newspapers. Notice in Form 3 requires the addressee to appear before the Taluk Land Board and participate in the enquiry Notice in Form 4 directs any person having claim or interest in land to file objections and appear before the Taluk Land Board in support of objections. These provisions show that it is open to any interested person, be he a member of the family of the person involved in the ceiling case, or his son or daughter, etc. or a tenant or a rival claimant to title or a co-owner to appear before the Taluk Land Board and put forward his claim or objection and require it to be adjudicated If inspite of a public notice, he does not come to know that the land over which he has a claim is involved in a ceiling case, naturally he will have no opportunity to urge his claim before order is passed. His interest is however safeguarded by subsection (8) of S.85, subject to the conditions stipulated therein. On this understanding of the purpose and scope of S 85 (8), it is difficult to agree that the remedy provided thereunder can be availed of only by a "stranger" like a person claiming tenancy or rival title and not by member of the family or children having claim over the land. On this understanding of the purpose and scope of S 85 (8), it is difficult to agree that the remedy provided thereunder can be availed of only by a "stranger" like a person claiming tenancy or rival title and not by member of the family or children having claim over the land. 1 hold that if the revision petitioner, who is the son of the 4th respondent, has a claim over any part of the land directed to be surrendered and satisfies the other conditions in S.85 (8), he is entitled to secure the remedy provided therein. 10. It follows that the application under S.85(8) has been filed in time. Taluk Land Board has not considered the other conditions required to be satisfied under S.85 (8). The impugned order is set aside and the case is remitted back to the Taluk Land Board for disposal according to law. This revision petition is thus allowed, but without costs.