Nambiarmalayil Anna v. State of Kerala and The Tahsildar, North Wayanad

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 CRP.No. 841 of 2008() --------------------AGAINST THE ORDER DATED 17/11/2006 IN TLB/1488/77/LI IN TLB.1488/1977/LI of T.L.B.,MANANTHODY .................... REVN. PETITIONER: -------------------------------- NAMBIARMALAYIL ANNA, W/O.LATE PETER OZHAKODI, VEMOM, NORTH WAYANAD. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.JOSICHAN KORAH JOSE RESPONDENTS: -------------------- ## 1. STATE OF KERALA REP. BY THE SECRETARY REVENUE DEPARTMENT, THIRUVANANTHAPURAM. ## 2. THE TAHSILDAR, NORTH WAYANAD. GOVERNMENT PLEADER, SMT. SUSHEELA BHAT THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/12/2011, THE COURT ON 09/12/2011 PASSED THE FOLLOWING: ## **M.L.JOSEPH FRANCIS J.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** C.R.P. No.841 OF 2008 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 9[th] day of December, 2011 ## **ORDER** This C.R.P. is filed against the order dated 17.11.2006 in proceedings No.TLB/1488/77/LI of Taluk Land Board, Mananthavady directing the revision petitioner to surrender 3.50 acres of land in Sy.No.259 and 232 of Mananthavady village. 2. The facts of the case as stated in the revision petition is as follows. The revision petitioner is the widow of one Peter who died in the year 1975. Suo mot action under Sec. 85(7) of the Kerala Land Reforms Act was initiated against the revision petitioner and by the proceedings dated 27.10.1977 in TLB(NW) 1488/77/(NW), an extent of 0.78 acres of land being in excess of the ceiling limit, was ordered to be surrendered. It was done on 4.1.1978. The subject matter of the said proceedings were the properties left behind by her deceased husband. C.R.P. No.841 OF 2008 :2: 3. In the year 1981, fresh suo moto proceedings under Sec.85 (7) of the Act was taken against the revision petitioner's husband, for his alleged failure to file return as required under Sec.85(2) of the Kerala Land Reforms Act. But later, vide order dated 30.9.1981 in proceedings No.TLB.SM.55/77/(NW), the proceedings were dropped on realising the earlier proceedings relating to the same subject matter. 4. But recently the issues was reopened purportedly under Sec.85(9A) of the Kerala Land Reforms Act and by the proceedings dated 17.1.2006 with No.TLB/1488/77/LI, a total extent of 3.5 acres was ordered to be surrendered. The said order was passed on the basis of an alleged verification in which it has come out that a total extent of 3.5 acres of rubber plantation was wrongly granted exemption in the earlier proceedings. Though the petitioner was given a notice prior to passing of the order, she could not adduce any evidence to prove that the said 3.5 acres of land was rubber plantation prior to 1.4.1964, as the records concerned were lost by the passage of time. The revision petitioner had pointed out the C.R.P. No.841 OF 2008 **==> picture [14 x 9] intentionally omitted <==** illegality in the re-opening of the issue much after the time limit provided in Sec.85(9A) of the Act. But the Taluk Land Board went on with the proceedings and the impugned order was passed. Against that order, this C.R.P. is filed. 5. Heard learned counsel for the revision petitioner and the learned Government Pleader. 6. The relevant portion of the order under challenge reads as follows. “Notice was issued to the assessee to appear before the TLB and to produce evidence if any to prove that 2.00 acres of land in R.S.No.259 and 1.5 acres in R.S. No.232 is a rubber plantation as on 1.4.1964. But she could not produce any evidence and stated that all documents have been lost and she had already surrendered an extent of 0.78 acres of land. The TLB examined the case in detail and found that exemption granted for 2 acres of land in R.S.No.259 and 1.5 acres in R.S. No.232 being rubber plantation as on 1.4.1964 was without proper evidence and in the result orders to C.R.P. No.841 OF 2008 :4: surrender an extent of 3.50 acres of land in Sy.No.259 and 232 of Mananthavady village.” Sec.85(9A) of the Kerala Land Reforms Act reads as follows: **“85(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) 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.” C.R.P. No.841 OF 2008 :5: 7. Learned counsel for the revision petitioner invited my attention to the decision reported in **State of Kerala v. Sivasankaran Nair** (2001(3) KLT 408), in which it was held: “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). The basis of taking action under S. 85(9A) should be fresh materials and not the materials already on record and that the Board is not authorised under sub-s. 9A to review a case on the basis of same materials available before the Board when the earlier order was passed. If review is proposed on the same material, it can only be change of opinion or an ‘error of judgment’, which is not a ground for review under sub clause 9A.” C.R.P. No.841 OF 2008 :6: 8. In the decision reported in **Christian College Cooperative Society v. Annamma John** (1998(2) KLT 433, it was held that : “The powers under this provision can be invoked only when the Taluk Land Board is satisfied that its decision under sub-s. (5) or subs. (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 C.R.P. No.841 OF 2008 :7: strict compliance of the requirements provided under sub-s. (9 A).” 9. The power to review is not for re-consideration of the matter afresh. There is no allegation that the revision petitioner had suppressed any material or there was collusion or fraud. The only reason stated in the order under challenge is that the revision petitioner could not produce documents to prove that the properties ordered to be surrendered was a rubber plantation as on 1.4.1964 and that according to the revision petitioner all the documents have been lost. The learned counsel for the revision petitioner submitted that the Taluk Land Board by its order dated 27.10.1997 granted exemption to the present 3.5 acres of rubber plantation on the basis of local enquiry and the documents produced by the revision petitioner and that the order was confirmed in 1981. Since the revision petitioner had already produced all documents in the year 1977, the failure of the revision petitioner to produce the same documents in 2006 after the elapse of 25 years cannot be taken as a reason to think that the revision petitioner suppressed any material C.R.P. No.841 OF 2008 **==> picture [14 x 9] intentionally omitted <==** facts or there was collusion or fraud or that the revision petitioner failed to produce relevant data or other particulars relating to ownership or possession. Therefore the proceedings taken under Sec.85(9A) of the Kerala Land Reforms Act is not maintainable. Accordingly this C.R.P. is allowed and the order under challenge is set aside. **M. L. JOSEPH FRANCIS, (JUDGE)** dl/