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1999 DIGILAW 614 (KER)

State of Kerala v. Khalid

1999-11-29

K.K.USHA, RAJENDRA BABU

body1999
Judgment :- R. Rajendra Babu, J. This C.R.P. arises out of an order passed by the Taluk Land Board, Thalassery in S.M.NO.944/1981 TLY dated. 17.12.1991. The order of the Taluk Land Board reopening the above ceiling case under S.85(9 a) of the Kerala Land Reforms Act (for short, the act) is challenged by the State. The learned Single Judge before whom the matter had come up doubted the correctness of the decisions of the learned Single Judge in Chenajiv. Taluk Land Board (1991 (1) klt 770) and /4 Antony v. Taluk Land Board (1992 (1) KLT 415) wherein it was held that the order of the Taluk Land Board cannot be reviewed under S.85(9A) at the instance of the declarant, but can be reviewed only on its own motion. As the learned Single Judge, before whom this C.R.P. had come up, doubted the correctness of the above decisions, the matter has come up before this Division Bench 2. The question for consideration is whether a declarant is entitled to invoke the power of review vested in the Taluk Land Board u/S.85(9A) of the Act. 3. The facts of the case are the following: The Taluk Land Board, Thalassery, by its order dated. 13.9.1984 directed the respondent/ declarants to surrender the excess land of 10 acres and 80.5 cents of property and the said extent was taken possession of by the Government on 8.2.1985. The declarant challenged the order of the Taluk Land Board in CRP 2335/1989 before this Court and contended that 12.25 acres of land which was accounted in the ceiling case was vested forest land over which the declarants' family had no right. But this Court rejected the above contention and dismissed the CRP on 4.4.1990. The declarant challenged the order of the Taluk Land Board in CRP 2335/1989 before this Court and contended that 12.25 acres of land which was accounted in the ceiling case was vested forest land over which the declarants' family had no right. But this Court rejected the above contention and dismissed the CRP on 4.4.1990. Thereafter the declarants (respondents herein) filed a petition before the Taluk Land Board u/S.85(9A) of the Act for reviewing the order dated 13.9.1984 alleging that 12.25 acres of property obtained by the 2nd declarant as per a document of 7.12.1961 and was transferred as per a document dated 25.1.1968 was also taken to the account of the declarants fixing the ceiling land and in respect of the above property proceedings were taken before the Forest Tribunal, Calicut as O. A. 5/1976,6/1976 and 7/1976 and the Tribunal found that the property was forest land coming within the purview of the M.P.P.F. Act, and as the declarants could not produce the copy of the order of the Forest Tribunal in the above O. As., the Land Board decided against them in respect of 12.25 acres of land and hence the earlier order has to be reopened u/S.85(9A) of the Act. The Taluk Land Board considered the application on 22.10.1971 and the Chairman of the Taluk Land Board, after hearing the counsel for the respondents, held that the Taluk Land Board had powers to reconsider the case u/S.85(9A) only on its own motion and a party had no right to invoke S.85(9A) of the Act. But the members of the Land Board dissented from the finding of the Chairman of the Board and on 17.12.1991 the Taluk Land Board decided to reopen the above ceiling case under S.85(9A) of the Act. The above order is challenged by the State by preferring this C.R.P. 4. The learned Government Pleader argued that S.85(9A) of the Act does not envisage an application at the instance of the declarant or the aggrieved party but it can be invoked only at the instance of the Taluk Land Board. The learned Government Pleader placed reliance on the decisions of this Court in Chenaji v. Taluk Land Board (1991 (1) KLT 770)and/4Antony v. Taluk Land Board (1992 (I) KLT 415). The learned Government Pleader placed reliance on the decisions of this Court in Chenaji v. Taluk Land Board (1991 (1) KLT 770)and/4Antony v. Taluk Land Board (1992 (I) KLT 415). In Chenaji v. Taluk Land Board (1991 (1) KLT 770) a learned Single Judge of this Court held: "Sub-s.(9A) being specific and unambiguous cannot be whittled down to hold that review power can be exercised by the declarant or any aggrieved person. Under sub-s.(9A) Land Board alone is given the power to review its decision under the circumstances enumerated. The proviso makes the position crystal clear as it specifies the period of limitation as three years from the date of coming into force of the Amendment Act for the Land Board to act under the sub-section." In. Antony's case (supra) another learned judge of this Court also took the same view that the power of the review under S.85(9A) of the Act can be exercised only by the Taluk Land Board suo mote or at its own motion and not at the instance of the declarant or by the aggrieved person. The learned counsel for the respondents argued that S.85(9A) is not worded in such a manner that the power be invoked only suo mote or at the instance of the Taluk Land Board but is exercisable by the Land Board on an application or at the instance of the declarant or by any aggrieved person also. It was further argued that whenever the legislature intended to confer such power of review to be exercised only at the instance of the authority or suo mote, that would be specifically provided in the statute and the absence of any expression like suo mote or by its own motion in sub-s.(9A) is a clear indication that the power conferred under sub-s.(9A) can be exercised on an application of an aggrieved person or the declarant also. 5. It would be relevant to consider the back ground under which sub-s.(9A) was brought into the statute. 5. It would be relevant to consider the back ground under which sub-s.(9A) was brought into the statute. Under sub-s.(8) of S.85 provision was made 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-s.(5) or sub-s.(7). S.103 of the Act confers power of revision to the High Court. S.103 provides that any person aggrieved by any final order of the Taluk Land Board under the Act may prefer a petition to the High Court against the order, on the ground that the appellate authority or the Land Board or Taluk Land Board as the case may be, has either decided erroneously or failed to decide any question of law. Under S.103 the declarant or any aggrieved person or the State can prefer a revision before the High Court against an order passed by the Taluk Land Board. When an order has been passed without hearing the declarant he has got a right to approach the Taluk Land Board for getting the order set aside under sub-s.(8). If the decision was erroneous or there was failure to decide any question of law, the aggrieved person can approach the High Court under S.103. Thus adequate and effective remedies were provided in the Act, thereby an aggrieved person can approach the Taluk Land Board under sub-s.(8) of S.85 or before the High Court under S.103 of the Act. 6. Sub-s.(9) of S.85 was introduced in the statute as per the Amendment Act 25 of 1971. Again in 1978, the opening paragraph of sub-section was amended by Act 13 of 1978. 6. Sub-s.(9) of S.85 was introduced in the statute as per the Amendment Act 25 of 1971. Again in 1978, the opening paragraph of sub-section was amended by Act 13 of 1978. By sub-s.(9) of S.85, power was conferred to the Taluk Land Board to set aside its own orders passed under sub-s.(5) or sub-s.(7) as the case may be and to proceed afresh on the grounds: (1) the extent of lands surrendered by or assumed from a person under S.85 was less than the extent of lands which he was liable to surrender under the provisions of this Act, (2) the lands surrendered by or assumed from a person were not lawfully owned or held by him. (3) in a case where a person was according to such order, is not liable to surrender any land, such person owned or held lands in excess of the ceiling area. Sub-s.(9) of S.85 conferred power on the Land Board to set aside its own order on its own motion on the grounds mentioned above. But sub-s.(9) was found to be inadequate to meet all contingencies where public interest had been defeated due to certain acts or omissions. Certain orders of the Taluk Land Board which became merged with the appellate orders or with the orders passed by High Court under S.103 could not be reopened by the Taluk Land Board invoking sub-s.(9). The question whether the order of the Land Board which was confirmed in appeal or by the High Court under S.103 of the Act, could be set aside invoking sub-s.(9) of S.85 was considered by a Division Bench of this Court in Chathunny v. Taluk Land Board (1981 KLT 74) and held that by appeals or revisions the original orders merge in such appeal or revisional orders, and thereby the Land Board had no power under S.85(9) of the Act to set aside such orders. In Vellappally Plantations Pvt. Ltd. v. State of Kerala (1999 (2) KLT 352 (SC) held: "....The provision in S.85(9), as we see it, is intended to enable the Board to set aside its order under sub-s.(5) or sub-s.(7), as the case may be. The power vested in the Board under the provision is in wide items, and therefore, the necessity for circumspection in exercise of the power. The power vested in the Board under the provision is in wide items, and therefore, the necessity for circumspection in exercise of the power. The provision is intended to empower the Board to correct errors in its orders and not to upset judgment/order/decree of competent courts which are binding on the parties. To hold otherwise will amount to vesting powers to reopen any proceeding disposed of by a competent court at any point of time to vest the power in the Taluk Land Board to ignore such an order and reopening the proceeding will not only result in unsettling settled positions between the parties but also go against judicial discipline. On the facts and in the circumstances of the case the Taluk Land Board rightly held that it had no power to reopen the proceeding in exercise of the powers vested in S.85(9) and the High Court was in error in interfering with the said order of the Taluk Land Board". Sub-s.(9) was found insufficient to protect the public interest in all contingencies, even though it was introduced in the statute in 1971 with the intention of safeguarding the interest of the State. 7. Sub-s.(9A) of S.85 was introduced by the amendment Act, 16 of 1989. The statement of objects and reasons accompanying the Bill for the intention of sub-s.85(9A) reads: "It has come to the notice of Government that as a result of collusion of the declarant and authorised officers and members of Taluk Land Board, declarants have escaped from surrendering the surplus land to Government. There is at present no provision to reopen such cases-. It is considered necessary to confer the power for reopening such cases on Taluk Land Boards by amending S.85 of the Act for the purpose." In Kumar Jagdish Chandra Sinhav. There is at present no provision to reopen such cases-. It is considered necessary to confer the power for reopening such cases on Taluk Land Boards by amending S.85 of the Act for the purpose." In Kumar Jagdish Chandra Sinhav. Eileen K. Patricia D'Rozarie (1995(1) SCC 164), the Apex Court held: "The statement of Objects and Reasons accompanying a legislative bill cannot be used to ascertain the true meaning and effect of the substantive provisions of the legislation, but it can certainly be pressed into service for the limited purpose of understanding the background, the antecedent state of affairs and the object the legislation sought to achieve." In Devadoss v. Veera Makali Amman Koil Athalur (AIR 1998 SC 750) the Supreme Court held: "Question arises naturally whether the Court can refer to the Statement of Objects and Reasons mentioned in a Bill when it is placed before the Legislature and even if it is permissible to what extent the Court can make use of the same. On this aspect, the law is well settled. In Narain Khamman v. Parguman Kumar Jain (1985) 1 SCC 1 (8): (AIR 1985 SC 4), it was stated that though the Statement of Objects and Reasons accompanying a legislative Bill could not be used to determine the true meaning and effect of the substantive provisions of a statute, it was permissible to refer to the same for the purpose of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy." Thus the statement of Objects and Reasons accompanying the Bill can be considered for understanding the background, antecedent state of affairs and the object of the enactment. The object of introducing sub-s. (9A) to the Kerala Land Reforms Act was to confer powers on the Taluk Land Board to review certain orders which were obtained by collusion of the declarants and the authorised officers and the members of the Land Board and also by the non-production of documents by the officers of the State whereby the interests of the State were adversely affected. The object and reasons accompanying the bill would reveal the antecedent state of affairs and intention to remedy the evils. The object and reasons accompanying the bill would reveal the antecedent state of affairs and intention to remedy the evils. The state of previous law, its defects and insufficiencies which the legislature wanted to remedy and the true reason of the remedy provided by the amendment are determinative of the intention of the legislature. When there is a doubt about the words of a statement, their meanings are to be understood in the sense in which they best harmonize with the subject of enactment and the object which the legislature has in view. It has thus become absolutely necessary for the State to introduce sub-s.(9A) conferring powers on the Taluk Land Board to undo the evils and to protect the interests of the State. 8. Sub-s.(9A) reads: "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-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 the date of coming into force of the Kerala Land Reforms (Amendment) Act, 1989." Sub-s.(9A) confers powers on the Taluk Land Board to review its decisions under sub-s.(5) or sub-s.(7) or sub-s.(9), if such decisions had been made due to failure to produce relevant data or other particulars relating to ownership or possession or by collusion or fraud or by any suppression of any material facts, notwithstanding anything contained in the provisions in the Kerala Land Reforms Act, or the Limitation Act or in any other law for the time being in force or in any judgment, decree or order of any court or authority. Such order has to be passed only after giving an opportunity to the parties to be heard and was limited to a period of three years from the date of coming into force of the amendment Act. In the ordinary course there cannot be any collusion or fraud or suppression of material facts to the disadvantage of a declarant or any person, but it can only be to the advantage of the declarant or any other person and to the disadvantage of the State and public interest. Similar is the case with failure to produce relevant data or other particulars relating to ownership or possession. Failure of production of relevant data or other particulars regarding ownership or possession at the instance of a declarant or aggrieved party was never in the contemplation of the legislature as disclosed from the statement of object and reasons accompanying the bill. Moreover, effective and adequate provisions were already there in the Statute to remedy the grievances of the declarants or any aggrieved person by invoking either S.85(8) or S.103. Sub-s.(9A) was intended only to safeguard the interest of the State by conferring powers on the Taluk Land Board to review its decisions only at its own instance and it was never intended to confer any right on the declarants or any other aggrieved persons to get the order received at their instance. 9. A question whether sub-s.(9A) can be invoked by the Taluk Land Board to review its order even if the above order had been confirmed or modified by the appellate order or by an order in revision by the High Court under S.103 of the Act has come up before Mohammed J. in Thampi Gounder v. State of Kerala (1994 (1) KLT 89). It was held that the non-obstante clause in sub-s.(9A) would prevail despite the merger of the order of the Taluk Land Board with the revisional order of the High Court. In considering the application under sub-s.(9A), the learned judge held: "Under this provision the power has been conferred on the Taluk Land Board to review its decision under sub-ss.(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. In considering the application under sub-s.(9A), the learned judge held: "Under this provision the power has been conferred on the Taluk Land Board to review its decision under sub-ss.(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 an application by a party." In Kunchalu v. Taluk Land Board (1999 (2) KLJ 417), the Land Board issued notice to the declarant invoking S.85(9A) of the Act as an error was noticed in giving exemption of 2 acres of land. There the declarant raised a contention that all the objections raised by him while passing the earlier order have to be considered. There one of us (Usha, J.) held that the review contemplated under S.85(9A) was only to the extent the Land Board found that the order was liable to be reviewed. It was further held that a declarant was not given any right to get the order reopened under S.85(9A) of the Act. In Wahad v. State of Kerala (1998 (2) KLT 433), a learned Single Judge of this Court held that the Taluk Land Board is not authorised under S.85(9A) to review its previous decision at its instance on the same materials before the Board when the earlier order was passed. The basis for taking action under S.85(9A) is fresh materials and not the materials already on record. 10. The learned Government Pleader argued that similar situations existed in respect of certain decisions taken by the Forest Tribunals and for safeguarding the interests of the State, S.8B and 8C were introduced in the Kerala Private Forests (Vesting and assignment) Act, 1971 (Act 26/1971) by the amendment Act 17/1971. It was further argued that the above provisions were brought into the statute only with the intention of protecting the interests of the State by conferring powers of review on the Forest Tribunal and on the High Court. The Custodian of Vested Forests was authorised to file petitions before the Forest Tribunal to review the orders and decisions of the Forest Tribunal as per S.8B and the Government was authorised to prefer appeals or petitions for review before the High Court as per S.8C. The Custodian of Vested Forests was authorised to file petitions before the Forest Tribunal to review the orders and decisions of the Forest Tribunal as per S.8B and the Government was authorised to prefer appeals or petitions for review before the High Court as per S.8C. Further powers were conferred on the Forest Tribunal under sub-s.(3) of S.8B and on the High Court under sub-s.(4) of S.8C to review the orders or to pass orders as it deems fit, notwithstanding anything contained in Act 26/1971 or in the Limitation Act or in any other law for the time being in force or in any judgment, decree or order of court or authority on certain specified grounds. By the above provisions the State alone was given the right to approach the Forest Tribunal or the High Court for review or for preferring appeals and no right had been conferred on an aggrieved person. It was in similar circumstances sub-s.(9A) of S.85 of the Kerala Land Reforms Act was introduced conferring powers on the Taluk Land Board to review its decisions on its own motion and a declarant or an aggrieved person was not given a right to invoke S.85(9A) of the Act. 11. Ss.35 and 36 of the Kerala General Sales Tax Act were relied on by the learned Government Pleader to support his argument that whenever the legislature intended to confer a right to an aggrieved person to challenge an order, specific provisions would be there in the Statute. It was argued by the learned counsel for the respondents that it was on the other way that whenever legislature intended to limit jurisdiction to be exercised only suo mote, it would be specifically mentioned and in the absence of the same, any aggrieved person can invoke the jurisdiction at his instance also. S.35 of the K.G.S.T. Act deals with powers of revision of the Deputy Commissioner suo mote whereas S.36 deals with his powers of revision on application by an aggrieved person. Ss.35 and 36 deal with the powers of revision of the Deputy Commissioner to call for and examine the orders passed by a subordinate authority and it is not in respect of a right conferred on the Deputy Commissioner to review its own order. An aggrieved person was given right to approach the Dy. Ss.35 and 36 deal with the powers of revision of the Deputy Commissioner to call for and examine the orders passed by a subordinate authority and it is not in respect of a right conferred on the Deputy Commissioner to review its own order. An aggrieved person was given right to approach the Dy. Commissioner to call for and examine any order passed by a subordinate authority on revision as per S.36. The Dy. Commissioner was invested with suo mote powers of revision under S.35. The above provisions do not have much similarity with the provision in the Kerala Land Reforms Act. Sub-s.(9A) of S.85 of the Land Reforms Act was introduced for undoing certain decisions of the Land Board and to review such decisions for a limited period of three years and intended only to safeguard the interests of the State. The intention of the legislature for introducing sub-s.(9A) to the Kerala Land Reforms Act was only to confer powers On the Land Board to review its orders to protect the interest of the State alone at its own instance and not on the application of any declarant or aggrieved person. Thus the Taluk Land Board had no jurisdiction to review its order under S.85(9A) of the Land Reforms Act on the baiss of an application from the declarants. The decisions in 1991 (1) KLT 770 and 1992 (1) KLT 415 had laid down the correct law. Hence the impugned order has only to be set aside and this appeal be allowed. In the result this appeal is allowed and the impugned order of the Taluk Land Board, Thalassery in the S.M. 944 of 1981 TLY dated 17.12.1991 is set aside.