VARKEY Vs. TALUK LAND BOARD QUILANDY

JUDGEMENT

(1.) By the order dated 29-11-1974, the Taluk Land Board, Quilandy determined the surplus lands held by the petitioner to be 1.72 acres. In reaching this conclusion the Board bad treated as valid certain gift deeds executed by him between 1970 and 1974 in favour of bis adult children and in that view excluded from computation 4 acres of land covered by the gift deeds. In the decision of this Court in C. R.P. Nos. 677 add 1027 of 1974 (Narayanan Namboodiri v. Land Board, 1975 KLT 171 ) it was held, in the mean while, that transfers after 1-1-1970 will have to be ignored in determining the surplus lands of the transferor. The Taluk Land Board therefore issued the petitioner a notice asking him to show cause why the order dated 29-11-1974 should not be set aside under S.85(9) of the Land Reforms Act and proceedings started afresh. In answer to the notice the petitioner filed an objection contending that the Board had no power to reopen the proceeding in view of the order dated 29-11-1974 and that if it was reopened he should be allowed to contest the entire case afresh. By the order under revision the Board rejected these objections, reserving him liberty to argue his points relating to the gifts alone.

(2.) Mr. Viswanatha Iyer's first contention that by reason of the order dated 29-11-1974 which had finally decided the case, the Board has no jurisdiction to reopen the proceeding can be shortly dealt with as it is contrary to the provisions of S.85 (9) which reads thus:

(3.) The more important contention however was directed to the scope of the order setting aside the previous order and to the rights of the person against whom the order is made. Now what sub-s.(9) contemplates is the setting aside of the order under sub-s.(5) or Sub-s.(7). Sub-s.(5) provides for the order determining the extent and identity of the land to be surrendered by the person filing the statement and sub-s.(7) provides for a like order against persons who default in filing the statements under relevant provisions of S.85. In either case therefore the Board sets aside "its order under sub-s.(5) or sub-s.(7), as the case may be in respect of such lands and shall proceed afresh under that sub-section." The answer to the contention on this aspect thus turns upon the true construction of the words "set aside its order ......... in respect of such lands and proceed afresh under that sub-section" Reading the conditions under which sub-s.(9) operates, it is obvious that the power of rectification which it confers comes into play where the extent of the lands that are surrendered by or assumed under S.86 is less than what a person was liable to surrender as also where the lands surrendered by or assumed from a person were not lawfully owned or held by him. It must follow that the order of setting aside is thus limited to such lands so that the error that vitiated the prior order under sub-s.(5) or (7) could be corrected The language of sub-s.(9) does not empower the Board to set aside its earlier order completely nor does the object of the sub-section permit the expression "in respect of such lands" to be construed as in respect of all the lands of the person. The same limitation must attach to the subsequent proceedings, contemplated by the words and may proceed afresh under that sub-section" ie., sub-s.(5) or (7); in other words, after setting aside the order to the extent permitted by sub-s.(9), the Board is to proceed afresh under sub-s.(5) or (7) for determining the correct surplus land. It is also impossible, unless compelled by the statute, to hold that where an authority reopens apart of the prior adjudication for a limited purpose, the entire proceedings are again at large or that the party affected can reagitate other questions concluded by the prior adjudication and which the authority is not authorised or did not mean to reopen. Counsel for the petitioner however contended that unless the entire order is reopened and objections in respect of all the lands are permitted, sub-s.(9) may work injustice or in any case cause difficulties in such matters as option to surrender excess lands. There is no question of injustice as his objections had already been heard and decided and apart from the statute there is no scope for appealing to justice or injustice. As for the difficulty of exercising option suggested by counsel, it is more fancied than real, for the option is only incidental to the determination of the correct surplus land in so far as it is rendered necessary by the reopening order and the fresh proceedings. Even if there be any difficulty, I do not see how that would entitle the petitioner to claim in the limited fresh proceedings -- proceedings whose scope is limited by sub-s.(9) the unlimited right to contest not only what has been reopened and has thus become alive but also what had been closed. On the terms and scheme of sub-s.(9) I find it impossible to accept the petitioner's contention.