Research › Search › Judgment

Kerala High Court · body

2007 DIGILAW 214 (KER)

Mylan v. Taluk Land Board

2007-03-21

K.T.SANKARAN

body2007
JUDGMENT : 1. The question involved in this Original Petition is whether an order passed by the Taluk Land Board allowing an application under S.85(8) of the Kerala Land Reforms Act could be reviewed by the Taluk Land Board on the ground that at the time when the Taluk Land Board passed the order, the period for which it was constituted was over. 2. Ketcha Boyan, the predecessor in interest of the petitioner, was the cultivating tenant in respect of 8.56 acres of land under Subbayya Gownder. Ceiling case was initiated against Subbayya Gownder on the file of the Taluk Land Board, Chittur. Ketcha Boyan filed a claim petition under S.85(8) of the Kerala Land Reforms Act (hereinafter referred to as “Act”.). The Taluk Land Board rejected the claim. Ketcha Boyan challenged that order in C.R.P. No. 2731 of 1979. C.R.P.No.2731 of 1979 was disposed of on 30.7.1981. 3. Ketcha Boyan had filed an application under S.72B of the Act before the Land Tribunal for the purchase of right, title and interest of the landlord in respect of the lands. Land Tribunal had dismissed that application. Ketcha Boyan filed an appeal before the appellate authority. At the time when the Civil Revision Petition was disposed of on 30.07.1981, the appeal was pending before the appellate authority. The revisional court did not interfere with the dismissal of the application filed by Ketcha Boyan under S.85(8) of the Act. However, it was observed in Ext. P1 judgment in C.R.P. 2731 of 1979 that the appeal pending before the appellate authority shall be disposed of without reference to the findings of the Taluk Land Board or orders of the revisional court since primarily it is the land reforms authority which is the competent authority to adjudicate upon the plea of tenancy. 4. The appellate authority (Land Reforms) dismissed the appeal filed by Ketcha Boyan. He challenged that judgment in C.R.P. 3729 of 1981, which was allowed and the matter was remanded to the Land Tribunal for fresh consideration as per Ext.P2 judgment. After remand, the Land Tribunal allowed the application filed by Ketcha Boyan under S.72B of the Act as per Ext. P3 order. Ext. P4 purchase certificate was also issued in favour of Ketcha Boyan. Thereafter, a claim petition was filed by the legal representatives of Ketcha Boyan under S.85(8) of the Act before the Taluk Land Board. After remand, the Land Tribunal allowed the application filed by Ketcha Boyan under S.72B of the Act as per Ext. P3 order. Ext. P4 purchase certificate was also issued in favour of Ketcha Boyan. Thereafter, a claim petition was filed by the legal representatives of Ketcha Boyan under S.85(8) of the Act before the Taluk Land Board. Petitioner filed O.P. 1152 of 1996 for issue of a direction to the Taluk Land Board to dispose of that application under S.85(8). The Original Petition was allowed and the Taluk Land Board was directed, as per Ext. P5 judgment, to dispose of the claim petition under S.85(8). Meanwhile, proceedings were initiated for assignment of excess land which was taken possession of in the ceiling case. Petitioner filed O.P. 1964 of 1998 which was disposed of as per Ext.P7 judgment directing the Taluk Land Board to dispose of the claim petition filed by Ketcha Boyan. The Taluk Land Board considered the application and passed Ext. P8 order dated 28.11.1998 allowing the application under S.85(8) filed by the petitioner and other legal representatives of Ketcha Boyan. The Taluk Land Board deducted an extent of 8.56 acres from the account of the assessee, viz., Subbayya Gownder. The Tahsildar was directed to re-convey the extent of 8.56 acres of land to the petitioner and the other legal representatives of Ketcha Boyan. The land was re-conveyed to the petitioner in compliance with Ext. P8 order and basic tax was paid by the petitioner as evidenced by Ext. P9. On 31.7.1999, Ext.P10 notice was issued by the Taluk Land Board seeking to re-open and review Ext.P8 order and directing the petitioner to appear on 15.9.1999. It is stated in Ext.P10 that on 28.11.1998 when Ext. P8 order was passed, the Taluk Land Board which was re-constituted was not in existence and therefore the order dated 28.11.1998 has no legal validity. Ext. P10 notice is under challenge in this Original Petition. 5. No counter affidavit is filed in the case. Learned Government Pleader, on instructions, submitted that the Government re-constituted the Taluk Land Board as per G.O.(MS) 102/99/RD dated 23.3.1999. The term of the earlier Taluk Land Board which was constituted on 21.8.1995 for a period of three years had expired on 20.8.1998. Therefore it is contended that when Ext. P8 order dated 28.11.1998 was passed, there was no legally constituted Taluk Land Board in existence. The term of the earlier Taluk Land Board which was constituted on 21.8.1995 for a period of three years had expired on 20.8.1998. Therefore it is contended that when Ext. P8 order dated 28.11.1998 was passed, there was no legally constituted Taluk Land Board in existence. It is also submitted that non-existence of Taluk Land Board was not noticed and that it is necessary to re-open the case by giving notice to the parties concerned. It is contended that the proceedings of the Taluk Land Board for the period from 21.8.1998 to 23.3.1999 (or 22.3.1999) do not have any legal validity and that it is only a proper official procedure to re-open the case in such circumstances. 6. S.100A of the Kerala Land Reforms Act provides for constitution of the Taluk Land Boards. S.100 A reads as follows: “100A. Constitution of Taluk Land Boards: (1) The Government shall by notification in the Gazette, constitute a Taluk Land Board for each Taluk in the State for performing the functions of the Taluk Land Board under this Act. (2) A Taluk Land Board shall consist of the following members, namely:- (a) an officer not below the rank of Deputy Collector appointed by the Government, who shall be the Chairman of the Board; (b) not more than six members nominated by the Government. (2A) Notwithstanding anything contained in subs.(2), but subject to such rules as may be made by the Government in this behalf, the functions of the Taluk Land Board may be performed by the Chairman alone or by the Chairman and anyone or more of the other members of the Board. (2B) The member or members present at any meeting of the Taluk Land Board may deal with any evidence or memorandum taken down or made in any case during any previous meeting or meetings of the Board as if such evidence or memorandum had been taken down or made by him or them and may proceed with that case from the stage at which it was left at the last previous meeting in which that case was dealt with by the Board. (3) Subject to the provisions of sub-s. (2A) and (2B) the procedure to be followed by the Taluk Land Board in performance of its functions under this Act shall be such as may be prescribed. (3) Subject to the provisions of sub-s. (2A) and (2B) the procedure to be followed by the Taluk Land Board in performance of its functions under this Act shall be such as may be prescribed. (4) A person shall be disqualified for being nominated as, or for being, a member of the Taluk Land Board if he is or has been convicted of an offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months unless a period of five years has elapsed from the date of expiry of the sentence. (5) The term of office of the Taluk Land Board and the manner of filling casual vacancies among the non-official members of the Board shall be such as may be prescribed. (6) Any member nominated to fill the vacancy in the office of a member shall hold office only so long as the member in whose vacancy he was nominated would have held office if the vacancy had not occurred. (6A) Any member of the Taluk Land Board other than the Chairman shall cease to hold office if he absents himself from three consecutive meetings of the Board. Provided that no meeting from which a member absented himself shall be counted against him under this sub-section, if due notice of that meeting was not given to him. (6B) The members of the Taluk Land Board other than the Chairman shall be entitled to a sitting fee of ten rupees per day for attending the meetings of the Board. Provided that that the Government may, by notification in the Gazette, and for reasons to be stated in such notification, fix such other amount as they deem fit, as sitting fee. (7) The Government may, at any time, for reasons to be recorded in writing, remove from office any member of the Taluk Land Board after giving him a reasonable opportunity of showing cause against the proposed removal. Provided that it shall not be necessary to record in writing the reasons for the removal or to give an opportunity of showing cause against the proposed removal, if the Government are of the opinion that it is not expedient, in the public interest, to record the reasons in writing or to give such opportunity.” 7. S.100B provides for dissolution and re-constitution of Taluk Land Board. S.100B provides for dissolution and re-constitution of Taluk Land Board. It is relevant to extract S.100B as well, which reads as follows: “100B. Dissolution and reconstitution of Taluk Land Board:- (1) If the Government are of the opinion that a Taluk Land Board is not functioning satisfactorily or in accordance with the provisions of this Act, the Government may, by notification in the Gazette, dissolve the Board after giving it an opportunity of showing cause against the proposed dissolution. (2) As soon as may be after the dissolution of a Taluk Land Board under sub-s.(1), the Government shall constitute a new Taluk Land Board in accordance with the provisions of S.100A, and until such constitution, the Land Board shall exercise the powers and perform the functions of the Taluk Land Board.” 8. R. 103A of the Kerala Land Reforms (Tenancy) Rules, 1970 provides that every final order of the Taluk Land Board shall be written by the Chairman of the Taluk Land Board and circulated to the other members who may either agree to the order or write separate order agreeing or disagreeing to the order written by the Chairman. Sub r. (3) of R.103A provides that every final order of the Taluk Land Board shall be pronounced by the Chairman. R.137A states that the term of office of the Taluk Land Board shall be three years from the date of its constitution. R.137B provides that casual vacancies among the non-official members of the Taluk Land Board shall be filled up by the Government. 9. A distinction is to be drawn between the re-constitution of the Taluk Land Board on the expiry of the period of Taluk Land Board constituted earlier as well as re-constitution of the Taluk Land Board after its dissolution under S.100B. A dissolution under S.100B can be had if the Government are of opinion that Taluk Land Board is not functioning satisfactorily or in accordance with the provisions of the Act. After dissolution of the Taluk Land Board under S.100B of the Act, the Government shall constitute a new Taluk Land Board under S.100A. S.100B provides that until such constitution, the Land Board shall exercise the powers and perform the functions of the Taluk Land Board. After dissolution of the Taluk Land Board under S.100B of the Act, the Government shall constitute a new Taluk Land Board under S.100A. S.100B provides that until such constitution, the Land Board shall exercise the powers and perform the functions of the Taluk Land Board. In the case of a Taluk Land Board constituted under S.100A, there is no provision in S.100 or elsewhere in the Act that the Land Board shall exercise the powers and perform the functions of the Taluk Land Board in the interregnum between the expiry of the period for which it was constituted and the date of re-constitution of the Taluk Land Board. A reading of S.100A and 100B would lead to the inevitable conclusion that in the case of constitution of a Taluk Land Board under S.100A, that Taluk Land Board shall continue to function until a new Board is constituted notwithstanding the expiry of its term. A specific provision conferring power on the State Land Board to exercise powers and perform the functions of the Taluk Land Board after its dissolution under S.100B and the conspicuous absence of such a provision in 100A or anywhere else in the Act in respect of the Taluk Land Board on the expiry of its term would fortify this conclusion. It is common knowledge and judicial notice of the same can be taken that hundreds of ceiling cases are being dealt with by the Taluk Land Boards. If it were to be held that orders passed by the Taluk Land Board after expiry of the period of its constitution are invalid, it would lead to disastrous consequences. Litigants would be put to untold misery and the interest of the State also would be put to serious prejudice if it were to be held so. If cases in which excess land holders have surrendered lands were to be reopened on the ground that at the time when final orders were passed by the Taluk Land Board its term had expired, the interests of the State and the people would be adversely affected. If such an interpretation is accepted, declarants and assessees who had surrendered lands would rush to the court seeking to nullify the orders of the Taluk Land Board. Such persons may even claim the benefits of the Kerala Land Reforms (Amendment) Act, 2005 (Act 21 of 2006). If such an interpretation is accepted, declarants and assessees who had surrendered lands would rush to the court seeking to nullify the orders of the Taluk Land Board. Such persons may even claim the benefits of the Kerala Land Reforms (Amendment) Act, 2005 (Act 21 of 2006). Therefore I am inclined to take a view that Ext.P8 order passed by the Taluk Land Board is perfectly legal and valid though the term of the Taluk Land Board expired on 20.8.1998. In this context, it is also relevant to note that the Chairman of the Taluk Land Board shall be an officer not below the rank of a Deputy Collector and that under sub-s.(2A) of S.100A, the functions of the Taluk Land Board may be performed by the Chairman alone. Even if a Taluk Land Board is reconstituted, its Chairman shall be an officer not below the rank of a Deputy Collector. 10. To my mind, “de facto doctrine” would protect Exhibit P8 order dated 28.11.1998 passed by the Taluk Land Board. In Gokaraju Rangaraju v. State of Andhra Pradesh ( AIR 1981 SC 1473 ), the Supreme Court, dealing with de facto doctrine, held thus: “The doctrine is now well established that “the acts of the Officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure” (Pulin Behari v. King Emperor ((1912) 15 Cal. LJ 517 at. p. 574). As one of us had occasion to point out earlier “the doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine”. In P.S. Menon vs. State of Kerala ( AIR 1970 Ker. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine”. In P.S. Menon vs. State of Kerala ( AIR 1970 Ker. 165 ), the Full Bench held as follows: “That the members appointed by the Raj Pramukh functioned as the members of the Public Service Commission and discharged effectively the duties of the Public Service Commission during the entire period 26th January, 1950 to 01.11.1956 is not disputed before us, in these circumstances, what is called the de facto doctrine, we consider, must apply. This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid.” In Padmanabhan Nambiar v. Government of Kerala ( 1997 (2) KLT 725 ) and in Manager, St. Mary's H.S. v. Beji Abraham ( 2002 (1) KLT 406 ), de facto doctrine was applied to uphold the appointments made by Managers of Schools whose appointments as Managers were subsequently found to be illegal or irregular. 11. On another ground also, Ext.P10 notice is wholly illegal and without jurisdiction. The jurisdiction of the Taluk Land Board to re-open or review or re-consider a matter which has already been decided, lies in specific limited spheres. There is no inherent power vested in the Taluk Land Board to re-open a case or to re-hear a case or to review a case.” The Taluk Land Board has no jurisdiction to review its own decision. The Taluk Land Board has jurisdiction to entertain an application under S.85(8) of the Act, at the instance of a person who is not a party to the ceiling case. If an application under S. 85(8) is entertained and allowed, the Taluk Land Board shall set aside the order under S.85(5) or 85(7) as the case may be and shall proceed under sub-s.(5) or sub-s.(7) of S.85. If an application under S. 85(8) is entertained and allowed, the Taluk Land Board shall set aside the order under S.85(5) or 85(7) as the case may be and shall proceed under sub-s.(5) or sub-s.(7) of S.85. Sub-s.(9) of S.85 empowers the Taluk Land Board, at any time, to set aside its order under sub-s.(5) or sub-s.(7) of S.85 and proceed afresh, if it is satisfied that the extent of lands surrendered by or assumed from, a person under S.86 is less than the extent of lands which he was liable to surrender under the provisions of the Act, or the lands surrendered by, or assumed from, a person are not lawfully owned or held by him; or in a case where a person is, according to such order, not liable to surrender any land, such person owns or holds lands in excess of the ceiling area. The second proviso to sub-s.(9) of S.85 states that the Taluk Land Board shall not initiate any proceedings under S.85(9), after the expiry of seven years from the date on which the order sought to be set aside has become final. Sub-s.(9A) was inserted in S.85 by the Kerala Land Reforms (Amendment) Act 1989 which came into force on 30.5.1989 granting power to the Taluk Land Board to review its decision. Sub-s.(9A) reads as follows: “(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-s.(5) or sub-s.(7) or sub-s.(9) required 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 the Kerala Land Reforms (Amendment) Act, 1989". 12. 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 the Kerala Land Reforms (Amendment) Act, 1989". 12. The aforesaid provisions are the provisions enabling the Taluk Land Board to review its order or to re-hear or re-open the case already decided by it. R.136A of the Kerala Land Reforms (Tenancy) Rules empowers the Taluk Land Board to correct clerical or arithmetical mistakes in the order or errors arising therein from any accidental slip or omission, either suo motu or on application. A Taluk Land Board reconstituted under S.100A has no authority or jurisdiction to review or re-consider orders passed by the erstwhile Taluk Land Board and to hold that such orders are illegal or without jurisdiction on the ground that the term of the erstwhile Board had expired when the order was passed. A re-constituted Taluk Land Board has no authority to issue a notice like Ext.P10 and to review the order passed by the erstwhile Board. Even if an order is passed by the Taluk Land Board after expiry of its term, that is not a matter for consideration by the succeeding Taluk Land Board. There is no power vested in the Taluk Land Board to scrutinize the decisions of the erstwhile Board or to examine the legality or otherwise of the orders passed earlier except on grounds which are provided in the Act and Rules. Limited jurisdiction of a Taluk Land Board to reopen or to review its orders being only those enumerated in the Act, I am of the view that Ext. P10 notice is wholly without jurisdiction. I therefore allow this Original Petition and quash Ext.P10 notice.