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PETITIONER: VALLAPALTY PLANTATIONS PVT LTD.

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       06/05/1999

BENCH: K.T.  THOMAS., D.P. MOHAPATRA.

JUDGMENT:

MOHAPATRA.J.

       The appellant  M/s  Vellapally  Plantations  Private Limited,  a company registered under the Companies Act, 1956 owned a total extent of 130.47 acres of land.   It  filed  a return  under  section  85A  of the Kerala Land Reforms Act, 1963 (hereinafter referred to as ’the  Act’)  claiming  that out  of  the  total  area  125  acres  was covered by rubber plantation as on 1st January, 1970, and therefore, is to  be exempted  for  the  purpose  of  calculation  of the ceiling surplus land.  The Taluk Land Board (hereinafter referred to as ’the Board’) Kanjirapally did not accept  the  claim  for exemption  of  the  land  since  the area was not covered by plantation as on 1st April,  1964  and  was  converted  into rubber plantation  only  thereafter.   The Board treated the area In question as "other dry  land"  for  the  purpose  of computation of ceiling surplus land.  The Board by Its order dated  24.2.1376  determined  the ceiling surplus area to be 115.17 acres and directed the  appellant  to  surrender  the same.  The said order was challenged by the appellant before the  Kerala  High  Court  in C.R.P.No.2274/1976, wherein the learned single Judge set aside the  order  taking  the  view that  companies  were  introduced in the Act by amendment of Section 82(1)(d) by Act 35 of 1969 which came into force  on January 1, 1970 and that the said date was the relevant date for  calculation of the selling surplus area in the hands of the company.  The High Court  remitted  the  matter  to  the Taluk  Land  Board  for  fresh  disposal  with the following observations:

       "For  the  foregoing reasons the revision is allowed in part; the impugned order is set aside; and the matter  is remanded  to  the Taluk Land Board for fresh disposal in the light of the observations contained in this  order,  and  in accordance with  law.   The Taluk Land Board would ascertain as to what, if any, is the extent of land covered by  rubber plantation  as  on  1.1.1970 out of the 130.47 acres held by the revision petitioner-company, and.   exempt  such  extent also, besides the extent of 30 cents already exempted, while reckoning the extent of land held by the revision petitioner for the  purpose of ceiling area.  There will be no order as to costs."

       The  Board  by  a  consequent  order dated 18.5.1979 implementing the order of the High Court held that 125 acres being covered  by  rubber  plantation  as  on  1.1.1970  the

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company  could not be said to hold any land in excess of the selling limit.  The proceeding was dropped.

       Sometime thereafter a Division Bench of  the  Kerala High Court considering a similar question took the view that introduction   of  section  82(1  )(d)  in  the  Act  w.e.f. 1.1.1970 has no impact on the applicability  of  section  82 (4), and therefore, conversions of dry land into plantations after  1.4.1964  had  to  be  ignored  for  the  purpose  of computation  of  the  ceiling  area  even  in  relation   to companies vide  Kuruvila Vs.  Taluk Land Board, 1980 KLT 53. The High Court placed reliance on a decision of.  this Court in Mathew Vs.  Taluk Land Board 1979 KLT 601.  The resultant position was that  the  decision  of  the  Single  Judge  in Vallapally Plantations case (supra) stood overruled.

       The  Board  in  exercise  of its power under section 35(9) of the Act issued a  notice  to  the  company  seeking re-opening of the proceeding and for re-determination of the ceiling  surplus  land  in  the light of the decision of the Division Bench in  Kuruvilla  case  (supra).    The  Company raised  objection  against  the attempt at re-opening of the proceeding contending  that  the  decision  of  the  learned single  Judge  in  Vallapally  Plantations  case (supra) had attained finality inter parties and could not  be  re-opened in  exercise  of  the  power under section 85(9) of the Act. The contention found favour with majority of the Board which by order dated 20.2.1982 dropped the proceeding holding that it had no jurisdiction to re-open the proceedings.

       The State challenged  the  said  order  in  revision before the High  Court in C.R.P.  No.562/83.  Placing strong reliance  on  the  language  of  section  85(9)  the   State contended  that  in  view  of  the wide powers vested in the (Board under the section there was no bar for it to exercise the said power in the case on hand even if  the  proceedings inter-parties  had  engaged  the attention of the High Court and the

       Taluk  Board  had  only passed a consequential order against the company carrying out the directions of the  High Court in  the  remand order.  The High Court by its judgment dated 16.10.1993 accepted the stand taken by the State,  sot aside  the  order of the Board and remitted the matter to it for fresh disposal in accordance with law to  ascertain  the extent of land, if any, held by the company in excess of the ceiling limit.    The  said order is under challenge in this appeal filed by the company.

       The thrust of  the  submissions  of  Shri  Vinod  A. Bobde, learned senior counsel for the appellant was that the judgment  of  the  High Court in the Civil Revision Petition No.2274/96 having not been challenged  before  any  superior Court had  attained finality between the parties.  The order of the Board dated  20.2.1982  was  merely  a  consequential order  passed  in compliance of the order of the High Court. In such circumstances, submitted the  learned  counsel,  suo moto  power  vested  in the Board to re-open the proceedings could not be exercised.  According to  the  learned  counsel taking  a  view otherwise would result in unsettling settled decisions between the parties and will create confusion  and chaos,

       Shri G.  Viswanatha  lyer,  learned  senior  counsel appearing  for  the  respondent; on the other hand contended

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that the remand order  passed  by  the  High  Court  in  the revisional proceeding between the parties is no bar for this Court to consider the correctness or otherwise of the notice issued by  the Board seeking to re-open the proceeding.  The learned counsel submitted that unless this  Court  comes  to hold  that  the decision in the case of Kuruvila (supra} was wrongly decided there is no escape from the  legal  position that  the order passed by the Board holding that the company was not in possession of any surplus land is erroneous,  and therefore,  the  Board  was  right in issuing the notice for re-opening the proceeding.

       The  core  question that arises for determination in the case is whether on the facts and in the circumstances of the  case  the  Board  can  re-open  the   proceedings   for determination  of  ceiling  surplus  land on the ground that subsequent to the final order passed in the  proceeding  the position  of  the  law has undergone a change in view of the later decision of the High  Court  taking  a  contrary  view regarding the legal position.

       Before  adverting  to the point for determination it will be convenient to notice some statutory provisions which are relevant for the present purpose.

       Section 2 (56A) defines ’Taluk Land Board’ to mean a Taluk Land Board constituted under Section  100A.    Section 100  A  provides,  inter alia, that 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.  In section 100 C it is laid down "that for the purpose of performing its  functions under  this  Act,  the  Taluk  Land Board shall have all the powers of a civil court while trying a suit under  the  Code of  Civil  Procedure, 1908, in respect of matters enumerated in the section.

       Chapter III  of  the  Act  contains  the  provisions regarding  restrictions  of ownership and possession of land in excess of ceiling  area  and  disposal  of  excess  land. Section 81 to 98 A are included in that Chapter.

       Section 82.  which contains the provisions regarding ceiling area provides in sub-section clause (d) that in case of any other person, other than a Joint family, ten standard acres, so however that the ceiling area shall  not  be  less than twelve and more than fifteen acres in extent.

       In sub-section (4) it is laid down that where, after the commencement of this Act, any class of land specified in Schedule  II has been converted into any other class of land specified in that Schedule or into a plantation, the  extent of  land  liable  to  be  surrendered  by a person owning or holding such land shall be determined  without  taking  into consideration such conversion.

       In  Section  83 it is provided that with effect from such date as may  be  notified  by  the  Government  in  the Gazette,  no  person  shall be entitled to own or hold or to possess under a mortgage lands in the aggregate in excess of the ceiling area.

       Section 85(1) provides that where a person  owns  or holds  land  in  excess  of  the  ceiling  area  on the date notified  under  section  83,  such  excess  land  shall  be

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surrendered as provided under the said sub-section.

       Under  sub-section  (5) of the said section power is vested in the Taluk Land Board- (a) to cause the particulars mentioned in the statement to be verified  ;  (b)  ascertain whether  the  person  to whom the statement relates, owns or holds any other lands;  and  (c)  by  order,  determine  the extent and identity of the land to be surrendered.

       In sub-section (3) provision is made that where  the 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-section  (5)  of sub-section (7), as the case may be.

       Sub-section   (9)   of  section  85  which  is  very important for the purpose of the case is  quoted  hereunder:

"(9)  The  Taluk  Land Board may, at any time, set aside Its order under sub-section (5) or sub-section (7), as the  case may  be,  and proceed afresh under that sub-section if it is satisfied that -

(a) the extent of lands surrendered by, or assumed  from,  a person  under  section  86  is less than the extent of lands which he was liable to surrender  under  the  provisions  of this Act, or

(b)  the lands surrendered by, or assumed from, a person are not lawfully owned or held by him; or

(c) 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.

PROVIDED  that  the Taluk Land Board shall not set aside any order under this  sub-section  without  giving  the  persons affected thereby an opportunity of being heard:

PROVIDED  further  that  the  Taluk  Land  Board  shall  not initiate  any  proceedings  under this sub-section after the expiry of seven years from  the  date  on  which  the  order sought to be set aside has become final.

Explanation 1 - For the removal of doubts, it  is  clarified that  the  references  in  this subsection to the Taluk Land Board shall, in cases in which the  order  under  subsection (5) or sub-section (7) has been passed by the Land Board, be construed as references to the Land Board.

Explanation 2 - For the purposes of this section and section 86, "hold" with reference to land  shall  include  "possess" land under mortgage with possession.

In  Sub-section 9A, which was inserted by Kerala Land Reform (Amendment) Act, 1989 w.e.f.  30th May, 1989 power is vested in Taluk Land Board  to  review  its  decision.    The  said section  provides  inter  alia that notwithstanding anything contained in this Act or in the Limitation Act, 1963  or  in

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any  other  Act  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-section  (5)  or  sub-section  (7)   or sub-section  (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.  In the proviso a period of limitation of 3 years  from the  date  of  coming  into  force  of  Kerala  Land Reforms (Amendment) Act, 1989 is  prescribed  whereafter  the  Taluk Land Board shall not reopen any such case.

       Section   86  sub-section  (1)  which  contains  the provision regarding vesting of  excess  land  in  Government provides  that  on the determination of the extent and other particulars of the lands, the  ownership  or  possession  or both  of which is or are to be surrendered under section 85, the ownership or possession or both, as the case may be,  of the  land shall, subject to the provisions of this Act, vest in the Government free from all encumbrances and  the  Taluk Land Board  shall  issue  an order accordingly.  The further steps to be taken by the  person  concerned  and  the  other consequences  to  follow are enumerated in the provisions of the said section.

       Section 103 of the Act which vests power of revision in the High Court provides under subsection (1) thereof 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 the Taluk Land Board as  the  case  may be, has either decided erroneously, or failed to decide, any question of   law.     ln  a  petition  for  revision  under sub-section (1) the Government shall be made a  party.    In subsection  1B  provision  is  made  that the Government may within such time as may be prescribed, prefer a petition for revision to the High Court against any final order  referred to  In  sub-section  (1), on any of the grounds mentioned in that sub-section.

       It may be relevant to state here that section 125 of the  Act  in  which  provision  is  made  regarding  bar  on jurisdiction  of  Civil  Courts  it is laid down inter alia, that no civil  court  shall  have  jurisdiction  to  settle, decide  or deal with any question or to determine any matter which is by or under this Act required to be settled by  the Taluk Land  Board.    In the proviso an exception is made to proceedings pending in any Court at the time of commencement of the Kerala  Land  Reforms  (Amendment)  Act,  1969.    In sub-section  (2) of the said Section it is laid down that no order by the Taluk Land Board made under the  Act  shall  be questioned in any civil court except as provided in the Act.

       From  the statutory provisions referred to above the position is clear that in matters relating to  determination of  ceiling  surplus land in the hands of a person the Board is vested with the power to determine all disputes  and  the order  passed by the Board is subject to a revision petition which may be filed by any person aggrieved by the Government before the High Court.

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       Considering the question regarding applicability  of section  85(3)  to  the  case  in  hand in the conspectus of statutory provisions we are of the view that answer  to  the question is  in  the  negative.    The  provision in section 85(9), as we see it, is intended to enable the Board to  set aside its order under sub-section (5) or sub-section (7), as the case  may  be.   The power vested in the Board under the provision is in wide terms, 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 (there is  no  period  of limitation provided in the section) which may result  in  unsettling  positions  settled  between  the parties.   On  a  fair  reading of the provision it is to be held that the power to set aside  its  order  and  reopen  a proceeding  should  be  exercised by the Board in a fair and reasonable manner.  In a case where  the  dispute  on  being determined  by  the Taluk Land Board was carried in revision to  the  High  Court  by  the  person  affected  or  by  the Government and the revisional order passed by the High Court was  not  challenged before superior Court and thus attained finality, 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.

       No  doubt  in  the  present  case the order that was sought to be set aside was of the Board.  But the said order was passed in pursuance to the directions of the High  Court in the  revision  petition.  In other words in substance and in effect, in passing the order the Board was only complying with the direction of the High Court.  To vest  jurisdiction in  the  Board to set aside such an order will be permitting the Board to interfere with the decision of the  High  Court which has attained finality inter-parties.

       A somewhat similar question arose before this  Court In  the  case  of  Authorised  Officer  (Land  Reforms)  Vs. M.M.Krishnamurthy Chetty (JT 1998(7) SC 503 ).  In that case about  4.81  standard  acres  of  land  belonging   to   the respondent were  declared  surplus.    Ultimately the matter came to the High Court.  The Learned Judge of the High Court set  aside  the  order  and  remanded  the  case  for  fresh consideration in the light of the judgment of the High Court in the  case  of Naganath Aiyer Vs.  Authorised Officer 1984 LW 69.  While the matter was pending before  the  authorised officer the Supreme Court reversed the aforesaid judgment in the case of  Authorised Officer Vs.  S.  Naganatha, AIR 1973 SC 1487.  The authorised officer decided the  proceeding  in the light  of  the  Judgment of the Supreme Court.  The land holder went in revision before the  High  Court  challenging the order  of  the  Authorised  officer.   A stand was taken before the High Court that the order of remand passed by the High Court directing the authorised officer  to  decide  the dispute  in  respect of the ceiling area in the light of the judgment of  the  High  Court  was  not  challenged  by  the Authorised  Officer  before the Supreme Court and as such it had become final.  In other words the Authorised officer was bound by the order of remand passed by the High Court and it was not open to  the  Authorised  Officer  to  consider  the dispute  in  respect of the selling area in the light of the judgment of the Supreme Court.  The High Court accepted this

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contention ana allowed the civil revision filed by the  land holder the  respondent.   This court confirming the order of the High Court observed as follows:

       "The order passed by the High  Court  directing  the Authorised  Officer  to  examine the dispute in the light of the judgment of the High Court in the case of Naganatha Iyar Vs.  Authorised Officer became final although  the  judgment on  which  the  grievance  had  to  be  examined  itself was reversed later by this Court.  We find  no  fault  with  the reasoning  of  the  High Court, it is well settled that even orders which may not be strictly legal become final and  are binding  between  the  parties  if  they  are not challenged before the superior courts.  In the result the appeal  fails and it is dismissed."

       On giving our anxious consideration  to  the  entire matter  we  have no hesitation to hold that on the facts and in the circumstances  of  the  case  the  Taluk  Land  Board rightly held that it had no power to reopen to proceeding in exercise  of the powers vested in section 85(9) and the High Court was in

error  in  interfering with the said order of the Taluk Land Board.  In the result the appeal is allowed.   The  impugned order  of  the  High Court is set aside and the order of the Taluk Land Board dropping the proceeding under section 85(9) of the Act is restored.  There will, however, be  no  orders as to costs.