ABRAHAM G PALLIVATHUKKAL Vs. STATE OF KERALA

JUDGEMENT

(1.) Whether an order under Section 85(9A) of the Kerala Land Reforms Act, 1963 is liable to be reopened under Section 85(9) is the question to be decided in this case. Ext.P2 notice issued by the 2nd respondent Taluk Land Board is under challenge. As per the said notice dated 27.5.1999 the ceiling case No. C.R. 784/73 on the files of the Taluk Land Board, Ernad, transferred to Taluk Land Board, Nilambur and renumbered as S.R.I 15/97 was sought to be reopened by invoking the power under Section 85 (9A) of the Kerala Land Reforms Act, 1963. One main ground taken in the Writ Petition is that of limitation. Proviso to Section 85(9A) clearly provides for a period of three years from the date of introduction of the amendment for such reopening and it is now settled law that beyond the period of three years there cannot be reopening under Section 85(9A). Two decisions of this Court on the point are (1) Mary Michael v. Taluk Land Board 2001 (2) KLT 603) and (2) State of Kerala v. Sivasankaran Nair 2001 (3) KLT 408). Apparently, faced with such a situation, the stand taken in the counter affidavit is that the reopening is under Section 85(9) where the limitation is seven years. Then the question is whether in the facts and circumstances of the case reopening under Section 85(9) is permissible.

(2.) It is admitted in the counter affidavit itself that the ceiling case, C.R.No. 784/73 had been recorded by the Taluk Land Board, Ernad on 29.5.1981. It is stated in the counter affidavit that pursuant to orders passed by this Court in C.R.P.f4o. 2196/82 filed by the State, the case was again considered and revised order was passed on 28.9.1988..."upholding the original order 29.5.1981 ".After detailed enquiry and examination, the Taluk Land Board again dropped the case as per its order dated 21.6.1994 passed pursuant to the reopening as per notice dated 27.5.1992. That order is produced in the Writ Petition as Ext.Pl. It is clear from the order that the reopening was made under Section 85 (9A) of the Act. Once there is an order under Section 85(9A), the question is whether reopening under Section 85(9) is permissible.

(3.) It is clear that reopening under Section 85(9) is only of the orders passed under Section 85(5) or under Sub-section 7. Order under Section 85(5) is the original order determining the ceiling case considering the statement filed by the declarant and on further enquiry. Section 85(7) order is passed when the declarant fails to file a statement. Thus the Taluk Land Board is not competent under Section 85(9) to reopen the case or an order in a ceiling case passed otherwise than under Section 85(5) or (7). That power is available to the Taluk Land Board only under Section 85(9A) where the Taluk Land Board is competent to reopen the case or an order in a ceiling case passed under Section 85(5), 85(7) or under 85(9). To the extent relevant the provision reads as follows: