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1998 DIGILAW 65 (KER)

Wahab v. State of Kerala

1998-02-11

P.A.MOHAMMAD

body1998
Judgment :- P.A. Mohammed, J. The petitioner in this Writ Petition challenges Ext. P2 order of the 2nd respondent, the Taluk Land Board, Manjeri dated 29.5.1992 reopening the ceiling case in exercise of power under S.85(9 a) of the Kerala Land Reforms Act (for short 'the Act'). Ext. P1 is the order of the 2nd respondent passed under S.85(5)(c) of the Act holding that the declarant was not liable to surrender any surplus land. The above order was sought to be reviewed. By Ext. P2 the 2nd respondent decided to reopen the case after setting aside the Ext. P1 order and to proceed with the ceiling case afresh. 2. The counsel for the petitioner submits that the ingredients of sub-s.(9A) of S.85 of the Act have not been established in this case. Sub-s.(9A) is reproduced hereunder: "(9A) Power of Taluk Land Board to review its decision - Notwithstanding any tiling contained in this Act or in the Limitation Act, 1963 (Central Act 36 of 1963), orin 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-s.(5) or sub s.(7) or sub-s.(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 date of coming into force of the Kerala Land Reforms (Amendment) Act, 1989." The powers under this provision can be invoked only when the Taluk Land Board is satisfied that its decision under sub-s.(5) or sub-s.(7) or sub-s.(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. By virtue of this provision what is sought to be done is to review the rights accrued to a person by reason of orders of the Taluk Land Board under sub-s.(5) or sub-s.(7) or sub-s.(9) of S.85 of the Act. The orders under these sub-sections are not summary orders. Those orders are passed by the Taluk Land Board after enquiry and discussion and thus they are final orders. When the rights accrued to a person by reason of such orders shall not be obliterated or attenuated without the strict compliance of the requirements provided under sub-s.(9 a). 3. In the present case what Ext. P2 order indicate is that an extent of 55.601/2 acres of land comprised in R.S. No. 98C of Edakkara Village is exempted being private forest. The further statement in Ext. P2 "The aforesaid extent is soon alienated to strangers and they were in possession" does not appear to be correct. The alleged alienation was made even prior to the passing of Ext. P1 order but the Taluk Land Board proceeded on the basis that it was effected after the Ext. P1 order. Even assuming the said observation of the Taluk Land Board is correct, that will not satisfy the requirements to be complied with before invoking the power under S.85(9A). What is primarily to be established under sub-s.(9A) is that there was failure to produce relevant data or other particulars relating to ownership or possession. The Ext. P2 does not indicate any material to show to the effect that there was failure to produce any relevant data or material. No doubt such material has to be disclosed in the impugned order. The basis of taking action under sub-s.(9A) is fresh material and not the material already on record. What is available as per Ext. P2 is the same material on record when Ext. P1 order was passed by the Taluk Land Board. In the absence of any fresh material constituting failure to produce the relevant data, it cannot be said any material has been brought before the Board for invoking the powers under S.85(9 a ). The Taluk Land Board is not authorised under sub-s.(9A) to review a case on the basis of same materials available before the Board when Ext. P1 order was passed. The Taluk Land Board is not authorised under sub-s.(9A) to review a case on the basis of same materials available before the Board when Ext. P1 order was passed. If the review is proposed on the same material, it can only be a "change of opinion' or an "error of judgment'. This is not a reason to review an earlier decision of the Board invoking the provisions under sub-s.(9A). 4. In this context, it would be profitable to point out a recent decision of the Supreme Court in Bagawati Tea Estates Ltd. v. Government of India (AIR 1996 SC 209). The Supreme Court while dealing with a case arising under the Kerala Private Forests (Vesting & assignment) Act (Act 26 of 1971) had occasion to examine a similar provision in the said Act. There the Supreme Court observed: "Indeed, no such data or particulars were placed before the High Court by the State in the review petition. On the same material, which was on record in the appeal, the impugned order has been made. We are of the opinion that the words "due to failure to produce relevant data or other particulars" mean what they say. It must be a failure to produce relevant data or particulars; it cannot mean a mere change of opinion on the same material or on the same evidence". Thus, the matter is crystalline that the Taluk Land Board in this case has reviewed its earlier order merely on the basis of a'change of opinion' on the materials already on record. In this context, it is essential to point out that in case the Taluk Land Board purposes to review its earlier decision under sub-s.(5) or sub-s.(7) or sub-s.(9) of S.85 by invoking sub-s.(9A) thereof, it must be necessary that the Taluk Land Board shall disclose the fresh material or data in its possession with all particulars. The reason is obvious. The right available to a person for enjoyment of land in his possession is a civil right guaranteed under Art.300A of the Constitution. When such rights are proposed to be taken away, the procedure in that regard shall be strictly complied with. The civil rights of the persons cannot be effected merely on the ipse dixit of the officer or the authority who proposes such action. This position is well settled. In view of what is said above, Ext. When such rights are proposed to be taken away, the procedure in that regard shall be strictly complied with. The civil rights of the persons cannot be effected merely on the ipse dixit of the officer or the authority who proposes such action. This position is well settled. In view of what is said above, Ext. P2 order is set aside and the Writ Petition is accordingly allowed.