FRANCIS Vs. TALUK LAND BOARD TELLICHERRY

JUDGEMENT

(1.) THIS Civil Revision Petition must succeed. After the passing of the Kerala Land Reforms Act 1964 (Act I of 1964) proceedings were taken to determine excess lands in respect of which persons owning, or being in possession were liable to surrender to the State, and the State was entitled to assume possession, under the provisions of chapter III, (Ss. 81 to 86 ). The taluk Land Board by its proceedings No T L. B. 110/73/tly. dated 8-10-1974 (recited in the order under revision) held that the revision petitioner and his family were not holders of any excess land. THIS conclusion was arrived at after excluding an extent of 4. 10 acres of land covered by a gift deed executed by the revision petitioner's wife in favour of her son on the 20th March, 1970. Thereafter, by the impugned order the Taluk Land Board held that the petitioner and bis family were in possession of 32. 01 acres of land, of which an extent of 12. 93 acres would fall under the exempted category, and that the family was liable to retain 15. 00 acres, and liable to surrender 4. 08 acres of land. The extent and identity of the lands were shown. The petitioner herein objected that the Land Board was incompetent to reopen its earlier order having regard to the provisions of s. 85 (9 ). THIS objection was overruled and an order on the merits was passed which is impugned in this revision petition.

(2.) S. 85 clause (9) of the Land Reforms Act, reads as follows: "85 (9) The Land Board, may, if it is satisfied that the extent of lands surrendered by, or assumed from, a person under S. 80 is less than the extent of lands which he was liable to surrender under the provisions of this Act or that the lands surrendered by, or assumed from, a person were not lawfully owned or held by him, set aside its order under sub-section (5) or sub-section (7), as the case may be, in respect of such lands and shall proceed afresh under that sub-section: Provided that the 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 Land Board shall not initiate any proceedings under this sub-section after the expiry of three years from the date on which the order sought to be set aside has become final. " It is obvious that the Land Board can take action only if either of the two eventualities or conditions stand specified, viz. (1) the extent of land surrendered by, or assumed from, a person under S. 86 is less than the extent which he was liable to surrender under the provisions of the act, or (2) that the lands surrendered by, or assumed from, a person were not lawfully owned by him. The second condition may safely be left out as inapplicable to the present case. Under the first condition there must be either a surrender of excess lands by the person concerned or an assumption of excess land from him. Neither of these things have happened here. On the other hand, all that happened was that the Land Board determined on the earlier occasion that the person concerned was neither owning nor possessing lands in excess of the statutory limits and therefore that he was not liable to surrender possession; nor could any lands be assumed by the State or the Land board. In such a contingency, whether by inadvertence or otherwise, there is no provision in the Section as it stands, for the Land Board to take action by way of re-opening or revising its earlier order. It may be, a casus omissus in the section. But the same cannot be repaired by us by judicial decision. We are therefore of the opinion that the Land Board was wrong in reviewing or varying its earlier order which had been set out in the opening sentence of the order attached in revision.

(3.) ATTENTION was called to the decision of our learned brother Poti J. in CRP. No. 2142 of 1975. We do not think that the learned judge laid down any different principle. On the other hand, we find the learned judge has also stated the two conditions subject to which, and subject to which alone, action can be taken under S. 86 (9) of the Act. On the actual facts before the learned judge there has been a surrender of some lands by the person concerned. The Land Board directed surrender of certain extra land by a later order passed by it, holding that certain gift-deeds in favour of children executed after 1-1-1970 which had been exempted from the reckoning by its earlier order, were not liable to be so exempted. It is therefore plain that by the earlier order there was a surrender of excess lands by the persons concerned, and what was sought to be done by the later order strictly fell within the conditions adumbrated by S. 85 (9) of the Act. The decision is therefore not against the petitioner. In the result, we hold that the order of the Land board cannot be supported. We allow this revision petition, set aside the order of the Land Board and vacate the order complained of in this revision petition. There will be no order as to costs. Allowed. . .