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2001 DIGILAW 377 (KER)

State of Kerala v. Sivasankaran Nair

2001-07-13

M.R.HARIHARAN NAIR

body2001
ORDER M.R. Hariharan Nair, J. 1. Respondent herein filed ciling return admitting possession of 8.95 acres and claiming exemption over 4 acres and 93.5 cents as rubber plantation. After necessary enquiry, the Land Board passed an order accepting the contention that there was no area to be surrendered and dropping further proceedings. Pursuant to notice dated 8.5.1992, the order was sought to be re-opened under S. 85(9A) of the KLR Act. The matter was pursued further and after necessary enquiries through authorised officers, the matter was again dropped as per the impugned order dated 25.8.1992. The State has come up in revision asserting that the order is passed without supporting materials and that the Land Board erred in proceeding on the basis of inconsistent reports of authorised officers. 2. According to the learned counsel for the respondent, the re-opening of the case itself was illegal and beyond the time allowed. According to him, after 9.5.1992 there was no justification at all for the Land Board to reopen the case and as such the impugned order does not warrant any modification. 3. The question whether the re-opening can be made three years from the date of commencement of the amendment incorporating S. 85(9A) of the KLR Act on 30.5.1989 was considered by this Court in O.P.No.9587 of 1993 in the light of the earlier decisions in W.A.Nos. 1629/1992 and 319/1993. 4. In the former case it has held that the order for reopening earlier decision of the Taluk Land Board should be passed before expiry of three years from the date of coming into force of the Act, ie., before 30.5.1992 and that it was not sufficient that a notice is issued within the said period of three years. In the later case also, it has held that it was not sufficient if notice was given with regard to reopening before 30.5.1992; but it is also necessary that the finding should be arrived at by the Taluk Land Board within the prescribed period namely before 30.5.1992. In the instant case, the impugned order was passed on 25.8.1992 ie., after the expiry of the three years period. The case having not been re-opened and decided within the prescribed period, there is no prospect of any tangible result being achieved through the proceedings under S. 85(9A). 5. In the instant case, the impugned order was passed on 25.8.1992 ie., after the expiry of the three years period. The case having not been re-opened and decided within the prescribed period, there is no prospect of any tangible result being achieved through the proceedings under S. 85(9A). 5. That apart the reopening propsed also does not come within the four corners of the stipulations in S. 85(9A) of the KLR Act. Under this Section, the re-opening would be possible only on the following grounds: 1. That the decision was made due to failure to produce relevant data or other particulars relating to ownership or possession. 2. That the earlier order was passed as a result of collusion or fraud. 3. That the order was passed based on suppression of material facts. In the instant case, the learned Government Pleader's submission was only that the authorised officers gave inconsistent reports going beyond the exemption claimed in the return itself. There is no allegation that the petitioner played any fraud except that the exemption claimed with regard to rubber plantation was not genuine. This Court found in George v. State of Kerala ( 1992 (2) KLT 160 ) that a decision arrived at by the Board by mistaken notion of law cannot be brought within the purview of S.85(9A) and that only in case where decision was rendered due to the failure to produce relevant data or other particulars relating to ownership or by collusion or fraud or suppression of material facts that the Taluk Land Board has power to invoke S. 85(9A). 6. In Wahab v. State of Kerala ( 1998 (2) KLT 433 ) the question whether avilability of new materials before the Borad was suffiecient to invoke S. 85(9A) was considered. It was held that the basis of taking action under S. 85(9A) should be fresh materias and not the materias already on record and that the Board is not authorised under sub-s. 9A to review a case on the basis of some materials available before the Board when the earlier order was passed. If review is proposed on the same amterial, it can only be change of opinion or an 'error of judgment', which is not a ground for review under sub-clause 9A. If review is proposed on the same amterial, it can only be change of opinion or an 'error of judgment', which is not a ground for review under sub-clause 9A. In view of the aforesaid decisions and considering the fact the athe learned Governemnt Pleader could not present before the Court any new material which was not available on record at the time when Land Board passed the original order finding that the declarant was not bound to surrender any excess land, I am of the view that there is no basis for coming to a conclusion that the proceedings against the respondent deserves to be reopened under S. 85(9A) of the Act. In that perspective, the final conclusion in the impugned order does not warrant any modification. 7. The revision is without merit, dismissed.