Nallasivam Pillai & Others v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN &** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 18TH DAY OF MARCH 2016/28TH PHALGUNA, 1937** **WA.No. 560 of 2009 (A) IN OP.17798/2000** **-----------------------------------------** ## **AGAINST THE ORDER/JUDGMENT IN OP 17798/2000 of HIGH COURT OF KERALA DATED 29-08-2008** **APPELLANT(S)/PETITIONERS 1, 3,5,6,7,8,9,11,12,13,14,15,16 20,21,22,23,24 AND RESPONDENTS 5, 10,19, 20:** **----------------------------------------------------------------------------------------** **1. NALLASIVAM PILLAI** - **S/O.KUMARANAYAKAM PILLAI, RESIDING AT DOOR NO.2 STREET NO.9, TATABAD, COIMBATORE.** **2. KRISHNASWAMY KOUNDER,** - **S/O.SUBBAYYA KOUNDER, RESIDING AT SRAMBI, MOOLATHARA PALAKKAD.** **3. NATARAJAN, S/O.SUBBAYYA KOUNDER, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** ## **4. RAJAPPAN (DIED),** - **REPRESENTED BY THE ASSIGNEE SUBBALAKSHMY W/O.PAZHANISWAMY, KARUPPUTHURAI KADU MEENAKSHIPURAM. PALAKKAD.** **5. SUBRAMANYA BOYAN, S/O.PALANI BOYAN, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** ## **6. GOPALASWAMI,** - **S/O.SUBBALINGA KOUNDER RESIDING AT ERUPPAMARATHUKADU, MOOLATHARA, PALAKKAD.** **7. MANICKA BOYAN, S/O.PALANI BOYAN, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **8. RAMATHAL, D/O.SUBBAYYA KOUNDER, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **9. RAMASWAMY BOYAN, S/O.PALANI BOYAN, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **10. RAMAKUMAR, S/O.ARUMUGHAN, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **11. PONNUSWAMI, S/O.SUBBALINGA KOUNDER, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **-2-** **WA NO.560/2009** ## **12. RATHNASWAMI KOUNDER,** **S/O.SIVARAMA KOUNDER, RESIDING AT SRAMBI, MOOLATHARA PALAKKAD.** ## **13. VELUSWAMI BOYAN, S/O.PALANI BOYAN, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **14. PAZHANISWAMI, S/O.LATE SUBBAYA KOUNDER, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **15. MARATHAL, S/O.ARUCHAMI, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** ## **16. KUMARASWAMI, S/O.SUBRAMANIAN, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** ## **17. GANAPATHY AMMAL,** - **W/O.KARUPPASWAMY KOUNDER, RESIDING AT SRAMBI MOOLATHARA, PALAKKAD.** ## **18. KANAKARAJ, S/O.KUMARASWAMI, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **19. PONGAIPPA KOUNDER (DIED) REPRESENTED BY SIVAMANI, S/O.PONGAIPPA KOUNDER RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** ## **20. KALIMUTHU NADAR,** - **S/O.PALANIAPPA NADAR, PEECHIMADA, MOOLATHARA PALAKKAD.** ## **21. NACHIMUTHU (DIED),** - **REPRESENTED BY ITS ASSIGNEE SUBHALAKSHMY RESIDING AT NALLU, SRAMBI, MOOLATHARA PALAKKAD.** **22. CHINNASWAMY KOUNDER (DIED) REPRESENTED BY HIS LEGAL HEIR ARUCHAMI RESIDING AT NALLU, SRAMBI, MOOLATHARA PALAKKAD.** **23. SWAMINATHAN, S/O.MANICKAN, RESIDING AT NALLU, SRAMBI, MOOLATHARA PALAKKAD.** ## **BY ADV. SRI.P.R.VENKETESH** **RESPONDENT(S)/PETITIONERS 2, 4, 10, 17 TO 19 AND RESPONDENTS 1 TO 4, 6 TO 9, 12 TO 17, 21 TO 25:** - **-----------------------------------------------------------------------------------------------------** ## **1. DANDAPANI BOYAN RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** ## **2. KARPAKAVINAYAKA KOUNDER,** ## **S/O.KARUPPASWAMI, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **WA NO.560/2009** **-3-** ## **3. PERIYA THAMPI,** - **S/O.KRISHNASWAMI KOUNDER, RESIDING AT SRAMBI MOOLATHARA, PALAKKAD.** ## **4. ARUMUGHA BOYAN, S/O.VELLA BOYAN., RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **5. ARUCHAMI MUDALIAR, S/O.NATARAJA MUTHALIAR, RESIDING AT SRAMBI, MOOLATHARA PALAKKAD.** ## **6. MURUKESA KOUNDER,** ## **RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** ## **7. THE STATE OF KERALA,** - **REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** ## **8. THE TALUK LAND BOARD,** - **CHITTUR, REPRESENTED BY ITS CHAIRMAN.** **9. THE TAHSILDAR, CHITTUR TALUK, PALAKKAD DISTRICT.** **10. THIRUMOORTHY KOUNDER, S/O.RAMASWAMY KOUNDER RESIDING AT THEVAMPADY VALASU VILLAGE, KALIPALAYAM POLLACHI TALUK.** ## **11. DHARMARAJA KOUNDER,** - **S/O.PALANI KOUNDER, RESIDING AT SRAMBI, MOOLATHARA PALAKKAD.** ## **12. SUBBATHAL, TEA SHOP, MEENAKSHIPURAM, PALAKKAD.** **13. PONNAMMAL, W/O.GURUSWAMI NAICKER, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **14. NANJAMMAL, W/O.KANTHASWAMI KOUNDER, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **15. KALIMUTHU NADAR, S/O.PALANIAPPA NADAR, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** **16. KRISHNASWANY, S/O.SUBHAYYA KOUNDER, -DO- -DO-** **17. KALIAPPAN, S/O.SUBHAYYA KOUNDER, -DO- -DO-** **18. VENKITTAMMAL, W/O.KRISHNASWAMY CHETTIAR, -DO- -DO-** ## **19. HAJIRA, W/O.ABDUL JABBAR, RESIDING AT MEENAKSHIPURAM, PALAKKAD.** ## **WA NO.560/2009** **-4-** ## **20. NATARAJA CHETTIAR,** **S/O.BHANKARU CHETTIAR, DHANALAKSHMI RICE MILL MEENAKSHIPURAM, PALAKKAD.** ## **21. MAHALINGAM,** **S/O.LATE SUBBAYYA KOUNDER, RESIDING AT SRAMBI MOOLATHARA, PALAKKAD.** ## ***22. NACHIMUTHU,** **S/O.SUBBAYYA KOUNDER, RESIDING AT NALLU, SRAMBI MOOLATHARA PALAKKAD.** ***[DELETED] [THE 22ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 15.02.2016 IN IA 1285/15.]** ## **23. SWAMINATHAN,** - **S/O.RAJU BOYAN, RESIDING AT SRAMBI, MOOLATHARA PALAKKAD.** ## **24. PERIAMMA KOUNDACHI, W/O.SUBBAYYA KOUNDER, -DO- -DO-** ## **25. SUBRAMANIAN (DIED)** ## **26. SARASWATHI, W/O.SUBRAMANIAN, RESIDING AT SRAMBI, MOOLATHARA, PALAKKAD.** ## **27. RAJESWARI, W/O.PANCHALINGAM,** ## **-DO- -DO-** ## **28. SENTHILKUMAR, S/O.SUBRAMANIAN,** ## **-DO- -DO-** **R1-6,10-21,23,24,&26-28 BY ADV. SRI.MANURAJ. K.J R7 TO 9 BY ADV. SR GOVERNMENT PLEADER SRI.C.R.SYAMKUMAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ASHOK BHUSHAN, C.J. & A.M. SHAFFIQUE, J.** ================ W.A. No. 560 of 2009 =============== Dated this, the 18[th] day of March, 2016 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed against the judgment dated 29/8/2008 in OP No.17798/2000. Some of the petitioners and respondents are the appellants. The petitioners filed the writ petition challenging Ext.P6 order passed by the Taluk Land Board pursuant to the notice under Section 85(9) of the Kerala Land Reforms Act (hereinafter referred to as the KLR Act). According to the petitioners, the Taluk Land Board proceedings were completed as per Ext.P1 dated 17/7/1991 and Ext.P3 notice had been issued only on 8/12/1998 which was beyond the period of limitation as provided under Section 85(9) of the KLR Act. Though a preliminary objection was raised, the Taluk Land Board rejected the preliminary objection by Ext.P6 order on a finding that in so far as the order dated 17/7/1991 has been modified by another order dated 8/1/1992 (Ext.P2), the notice under Section 85(9) of W.A. No.560/09 -:2:- the KLR Act was within time and accordingly proceeded to take further steps in the matter. 2. The learned Single Judge disposed of the original petition observing that in the light of the Full Bench judgment of this Court in _**Balan v. State of Kerala**_ (2006 (4) KLT 229), the matter requires reconsideration. Accordingly, Ext.P6 has been quashed and direction was issued to reconsider the entire matter afresh with notice to the petitioners. 3. It is submitted by the learned counsel for the appellants that the learned Single Judge did not consider the question of limitation which was the main contention urged by the appellants. It is argued that the notice received by the petitioners, Ext.P3, was not one under Section 85(9A) of the KLR Act, which provided for only a three year period of limitation and the Full Bench judgment does not apply to the fact situation in the present case.It is argued that Ext.P1 was a final order passed in the ceiling case against the petitioners. Ext.P2 order dated 8/1/92 was virtually a correction of certain extent of land and its survey number and it did not affect the total extent of land agreed to be surrendered by the appellants/petitioners. Though it was stated in W.A. No.560/09 ## -:3:- Ext.P2 that an application was filed by one Thirumoorthi Kounder under Section 85(8) of the KLR Act, it was only an application for correction and the earlier order dated 17/7/91 has not been reviewed. Therefore, according to the learned counsel for the appellants, Ext.P3 notice was beyond the period of seven years from the date of Ext.P1 order dated 17/7/91 and hence the Taluk Land Board was justified in arriving at a conclusion that Ext.P2 order dated 8/1/92 will save the period of limitation. 4. On the other hand, learned senior Government Pleader Sri.C.R.Syamkumar appearing on behalf of the respondents argued that immediately after disposal of Ext.P1 as per order dated 17/7/91, Thirumoorthi Kounder filed an application under Section 85(8) claiming right in respect of certain item of property which is included in the land directed to be surrendered in terms of Ext.P1 order. His application had been considered in detail and thereafter the order dated 17/7/91 has been modified by which identity of the excess land to be surrendered in respect of 74 cents was refixed. It is argued that in so far as Ext.P2 order is a modification of the order dated 17/7/91, finality of the ceiling case arises only after the order dated 8/1/92. Therefore, the Taluk Land ## W.A. No.560/09 ## -:4:- Board was justified in computing the period of limitation from 8/1/92. Learned Government Pleader also placed reliance on the judgment of the learned Single Judge of this Court in _**Gopalan v. Taluk Land Board**_ (1987 (2) KLT 1006), where the learned Single Judge after considering the period of limitation with reference to Section 85(9) held at para 5 as under: _"5 One of the objections was that the suo motu proceedings under S.85(9) was unauthorised on the ground that it was initiated more than 3 years after the order under S.85(5) has become final. Second proviso to S.85(9) prohibits initiation of proceedings under that sub-section after the expiry of 3 years from the date on which the order sought to be set aside has become final. An order which could be subjected to appeal, revision, review or the like could become final only subject to the result of such remedies or if no such remedy was resorted to, after the period for seeking those remedies expired. When an order is subsequently modified the date of modification is the date on which the order has become final if nothing further happened to that order. In that sense the order under S.85(4) became final only on 21-4-1982 when it was modified. Admittedly proceedings under S 85(9) was initiated within 3 years from 214-1982. The prohibition under the second proviso is hence not attracted. The Taluk Land Board was_ ## W.A. No.560/09 -:5:- _perfectly right in rejecting the objection on that ground."_ 5. Having heard the learned counsel appearing on either side and having perused the records, we are of the view that there was nothing wrong in the Taluk Land Board considering Ext.P2 as a modified order. In fact, order dated 8/1/1992 contemplates modification of the earlier order dated 17/7/91 in so far as one item of land was excluded from being surrendered on account of the claim raised by one Thirumoorthi Kounder and another item of land has been incorporated for the purpose of surrender by the petitioners. In so far as Ext.P2 is a modified order, without which Ext.P1 will not be complete, we are of the view that the Taluk Land Board was justified in arriving at a finding in terms of Ext.P6. 6. It is submitted by the learned counsel for the appellants that pursuant to the judgment, Taluk Land Board has issued notice that on account of the stay granted in the matter, further proceedings has not taken place. 7. Having regard to the finding as stated above, we do not think that there was justification on the part of the learned W.A. No.560/09 ## -:6:- Single Judge to have remitted the matter back to the Land Tribunal to consider the question of limitation afresh. Admittedly, neither Section 85(9A) of the KLR Act or the judgment in _**Balan**_ (supra) has application to the fact situation. Under such circumstances, there was no justification on the part of the learned Single Judge to have quashed Ext.P6. Though no appeal has been filed by the State, taking into consideration the over all factual situation and the delay that has been caused in the matter, we are of the view that the matter has to be considered on merits by the Taluk Land Board. Accordingly, we allow the appeal and the judgment is set aside. The Taluk Land Board is directed to consider the matter in accordance with law on merits after hearing all the affected parties. Sd/- **ASHOK BHUSHAN, CHIEF JUSTICE** Sd/- **A.M. SHAFFIQUE, JUDGE** _//True Copy//_ _PS to Judge_ Rp18/3/2016