Thampi Gounder v. State of Kerala — 1993 DIGILAW 118 (KER)

Judgment :- This revision arises from a proceeding initiated by the Taluk Land Board under sub-section (9 a) of S.85, which was incorporated in the Kerala Land Reforms Act, 1963 (for short 'the act) by Act 16 of 1989. 2. The facts of the case can be summarised thus: The revision petitioner is an excess-land holder who had been directed to surrender 4.26 acres of land by the Taluk Land Board, Chittur as per its order dated 28-4-1976 in the land ceiling case under S.85(5) of the Act. As against the said order the petitioner filed C.R.P.No. 2252 of 1976 under S.103 of the Act before this Court. By order dated 13-3-1977, this court allowed the revision in part and consequently 28 cents was reduced from the excess land directed to be surrendered. Pursuant to the said order, the Taluk Land Board issued revised order dated 6-5-1977 directing the petitioner to surrender 3.98 acres of land which was taken possession of by it thereafter. Subsequently, the case was proposed to be re-opened under S.85(9) of the Act on the ground that exemption towards threshing ground, well etc. had been granted in excess of what is actually allowable. After hearing the petitioner, the Taluk Land Board decided to drop the said proceedings as per order dated 4-5-1981, in view of the decision of the Division Bench of this court in Chathunny v. Taluk Land Board (1981 KLT 74). After the introduction of sub-section (9A) in S.85, the Taluk Land Board took the above case again for review and notice was accordingly issued to the declaring and other interested parties to file objections. The case was posted for hearing on 23-12-1991 and the declarant was represented by an advocate. The declarant has filed counter-statement on 13-1-1992. Finally it was adjourned to 20-1-1992 for production of evidence. When the case was taken up for final hearing on 29-1-1992, the counsel for the declarant reported that the declarant had no further evidence to be adduced. The Taluk Land Board finally passed an order on 22-1-1992 directing the petitioner-declarant to surrender 0.53 acres of land in R.S.7/2 as additional excess land in his possession. The said order is challenged in this revision petition. 3. Learned counsel appearing for the petitioner contended that in view of the Division Bench decision of this court in Chathunny 's case (1981. The said order is challenged in this revision petition. 3. Learned counsel appearing for the petitioner contended that in view of the Division Bench decision of this court in Chathunny 's case (1981. KLT 74), proceeding initiated under sub-section (9A) of Section is invalid. The argument is that the order passed under S.85(5) has been merged with the revisional order of the High Court under S.103 of the Act and that thereafter there is no order of the Board in existence which can be reviewed under sub-section (9A). The Division Bench in the case supra held: "Whether the power under S.85(9) could be exercised in such cases is the question that arises in all these Original Petitions. That sub-section contemplates exercise of power by the Taluk Land Board to set aside Mts' order under sub-section (5) or sub-section (7) necessarily indicating that it has no power to act under such sub-section if order to be set aside is the order of the High Court by reason of merger in an order of revision to the High Court. It is now well settled that whether there be an appeal or revision the original orders merge in such appellate or revisional orders." I am in complete respectful agreement with the view expressed by the Division Bench. But the situation in the present case is totally different and I do not find my way to apply the principle laid down in that decision to the facts of the case on hand. It should be conveniently noticed here that in view of the very same decision of the Division Bench pronounced on 10th December, 1980, proceedings initiated against the petitioner earlier under S.85(9) by the Taluk Land Board had been specifically dropped. 4. Sub-section (9A) of S.85 was introduced by the Legislature of the State as per S.10 of the Kerala Land Reforms (Amendment) Act, 1989 which came into force with effect from 30-5-1989. By the said sub-section what is sought to be achieved is to have specific power for Taluk Land Board to re-open cases where declarants have escaped from surrendering surplus lands to Government, as a result of the collusion of the declarant and authorised officers and members of Taluk Land Board. By the said sub-section what is sought to be achieved is to have specific power for Taluk Land Board to re-open cases where declarants have escaped from surrendering surplus lands to Government, as a result of the collusion of the declarant and authorised officers and members of Taluk Land Board. I do not for a moment agree with the suggestion that the Legislature while enacting the provision was unaware of the decision of the Division Bench of this court in Chathuniiy's case (1981 KLT 74). On the other hand, I am compelled to fore sea that the Legislature while enacting sub-section (9A) has intended to cover all cases which were dropped out from review by reason of the above decision. The wisdom behind a legislative provision or the purpose of an enactment need not necessarily appear in all cases from the provisions of the statute or from the objects and reasons of the enactment. 5. Sub-section (9A) reads thus: "(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, if 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." Under this provision the power has been conferred on the Taluk Land Board to review its decision under sub-sections (5), (7) and (9) of S.85 of the Act. This power is to be exercised by the Taluk Land Board alone in order to review its own decision. This provision can be invoked only 'on its own motion' as opposed to 'on an application by a party'. This power is to be exercised by the Taluk Land Board alone in order to review its own decision. This provision can be invoked only 'on its own motion' as opposed to 'on an application by a party'. This position is well-settled by the decision of this court in Chenaji v. Taluk Land Board (1991 (I) KLT 770) and Antony v. Taluk Land Board (1992 (I) KLT 415). 6. It cannot possibly be contended that the Legislature has no power to enact subsection (9A) and at any rate, no such argument is advanced before me in this case. What is intended by this sub-section is that in case the Taluk Land Board is satisfied that its decision under sub-section (5) or sub-section (7) or sub-section (9) requires to be reviewed on the ground specified therein, 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. The ground specified is that the decision under the above sub-sections has been made due to the failure to produce the relevant data, or other particulars relating to ownership or possession before it or by collusion or fraud or any suppression of material facts. Significantly, the provision in sub-section (9A) starts with a non-obstante clause which takes in "any judgment, decree or order of any court". It may not be possible to argue that the expression "any court" contained in the clause does not include "High Court" which decides the revision petition under S.103 of the Act. No indication to that effect is available anywhere in the provision. That would mean, the powers under sub-section (9A) can be exercised notwithstanding any revisional order of the High Court under S.103 of the Act arising out of the final orders passed by the Taluk Land Board under sub-sections (5), (7) and (9) of S.85. The High Court in revision under S.103 may either confirm or cancel or modify the final orders passed by the Taluk Land Board under the aforesaid sub-sections. In such situation, indisputably there is merger of the order of the Taluk Land Board with the order of the High Court. In cases of such merger the application of sub-section (9A) is not excluded directly or indirectly. In such situation, indisputably there is merger of the order of the Taluk Land Board with the order of the High Court. In cases of such merger the application of sub-section (9A) is not excluded directly or indirectly. Therefore, the intention of the Legislature appears to be that even in a case where the order of the Taluk Land Board is merged with the order of the High Court, it shall have the power to re-open such orders also under sub-section (9A). 7. The next question requires examination is whether by virtue of non-obstante clause, the order of the Taluk Land Board under sub-section (5), or sub-section (7) or sub-section (9) remains as 'its' order although such order is merged with the order of the High Court. In Vasant Rao Mangroo v. Election Commission of India (AIR 1953 Nag. 237) the Division Bench of the Nagpur High Court held: "A v non-obstante' clause is used in a provision to indicate that that provision should prevail despite anything to the contrary in any other provision. No doubt, one of the objects is to indicate that, despite any repugnancy between the provision containing a non-obstante' clause and another provision, the former is to prevail." Therefore, the provision contained in the non-obstante clause will prevail despite the merger of the order of the Taluk Land Board with the revisional order of the High Court. Thus the effect of merger has been invalidated by the non-obstante clause. The order of the Taluk Land Board remains as it is notwithstanding the order of the High Court. Therefore, the argument that there is no decision of the Taluk Land Board which can be reviewed under sub-section (9A) cannot be countenanced. That being the position it cannot be said that proceeding initiated in the present case under sub-section (9A) is invalid or in any way improper. 8. The next point to be considered is whether the provision contained in subsection (9A) is attracted to the facts of the present case. According to the Taluk Land Board, an extent of 0.53 acre in Sy.No. 274/1 was allowed for threshing floor and 10 cents each for square well and pump house in Sy. Nos. 10 and 187/1 of Attempathy village. According to the Taluk Land Board, an extent of 0.53 acre in Sy.No. 274/1 was allowed for threshing floor and 10 cents each for square well and pump house in Sy. Nos. 10 and 187/1 of Attempathy village. Though these items were not liable to be exempted under S.81 of the Act, exemption was allowed for the square well as per majority opinion of the members of the Taluk Land Board. However, as regards exemption for threshing floor it was not liable to be exempted. According to the Taluk Land Board, declarant had suppressed these facts to the notice of the Taluk Land Board in order to gain undue advantage. It is for this reason the Taluk Land Board has initiated proceeding under sub-section (9A) of S.85. However, an argument has been advanced before this court that the petitioner's residential house and site appurtenant thereto is situated in Sy.274/1 and that therefore the declarant is entitled to exemption as it being a house site. Such a contention is not seen raised before the Taluk Land Board. If there if suppression of facts as alleged by the Taluk Land Board definitely sub-section (9A) will be attracted. However, I am not persuaded to decide this question finally in this revision in the absence of any material proof in this regard. It appears when the case was posted for hearing on 29-1-1992 counsel submitted that the petitioner had no evidence to be adduced. If as a matter of fact there is a house and adjoining land there will be evidence to prove such contention. It is yet to be known why the counsel had submitted that he had no evidence to adduce in this regard. Therefore, I feel, in view of the contention re-iterated by the learned counsel for the petitioner in this court that there is a house and adjoining house site in R.S.274/1, the matter requires further examination by the Taluk Land Board. The petitioner is allowed to produce evidence in respect of his claim before the Taluk Land Board. 9. Another reason which persuaded me to order for a fresh disposal of the matter in this case, is that no option statement has been filed by the declarant in view of the fresh proposal to surrender 0.53 acres of land. The petitioner is allowed to produce evidence in respect of his claim before the Taluk Land Board. 9. Another reason which persuaded me to order for a fresh disposal of the matter in this case, is that no option statement has been filed by the declarant in view of the fresh proposal to surrender 0.53 acres of land. Of course, in the absence of option statement the Taluk Land Board has determined the identity of the additional excess land liable to be surrendered. I feel, the petitioner is entitled to have a re-option in the changed circumstances of the case if his contentions are not ultimately accepted by the Taluk Land Board in spite of the production of evidence. 10. There is yet another question which incidentally arises in this case. The question is whether the petitioner is entitled to have a second opportunity of being heard while making the fresh enquiry in case the Taluk Land Board decides the case to be reviewed under sub-section (9A) on the ground mentioned therein. It is pointed out that the said opportunity is in addition to what is provided in sub-section (9A) Since I have granted a fresh opportunity of being heard to the petitioner the above question does not call for consideration in this case. The above question therefore is left open. 11. In the result, I set aside the order impugned in the revision and direct the Taluk Land Board to conduct fresh enquiry in the manner indicated above after affording a reasonable and effective opportunity to the petitioner to produce evidence and to file option statement if found necessary. The C.R.P. is disposed of as above.