JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) THE short point that arises for consideration in this case is whether on an application under S. 85 (8) of the Kerala Land Reforms act,1 of 1964, for short the Act, the Taluk Land Board can substitute an item in Part D of Form No. 5 extract appended to the order passed in a ceiling case without setting aside that order and passing a fresh order under sub-section (5) or sub-section (7) of S. 85 of the Act as the case may be. THE petitioner's ceiling was fixed by the 2nd respondent-Taluk Land Board by order dated e1-12-1976 in SMP. 41/76/aly. By the above order, the petitioner was directed to surrender e. ee. e00 acres as excess lands. Among the lands directed to be surrendered, an extent of 1. 64. 250 acres in Sy. No. 100/2a of Manjapra Village was also included. THE 4th respondent in this Civil Revision Petition filed an application before the Taluk Land Board under S. 85 (8) of the Act contending that the above extent of 1. 64. 250 acres should not be directed to be surrendered as he is interested in the above land as person in possession from 1960 onwards. THEreupon, the Taluk Land Board issued notice to the petitioner, adduced evidence and passed the order impugned in this Civil Revision Petition substituting 1. 64. 250 acres comprised in Sy. Nos. 60/i/ee/ e0a/e2a, 60/1-ee/eeb and 60/1-ee/e4 of Manjapra Village for an equal extent in S. No. 100/2a of the same village included in Part D statement appended to the order passed by the taluk Land Board on e1-12-1976 in the petitioner's ceiling case. THE said order was modified as above by the Taluk Land Board without setting aside the same and passing a fresh order. THE petitioner has challenged the above order in this Civil Revision Petition. THE main grievance of the petitioner is that the taluk Land Board was not justified in directing the petitioner to surrender an equal extent when it found that 1. 64. 250 acres in Sy. No. 100/2a is in the possession of the 4th respondent.

(2.) S. 85 (8) of the Kerala Land Reforms Act,1 of 1964 reads: "85 (8 ). Where the Taluk Land 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) or sub-section (7), as the case may be. " The power that a Taluk Land Board has under the section is to set aside the order in the ceiling case and proceed under sub-section 5 or sub-section 7 of the section, as the case may be, for passing a fresh order. This the Taluk Land Board has to do if a person interested in the land directed to be surrendered satisfies it that he was prevented by any sufficient cause from appearing before it in the ceiling case. Under the sub-section, without setting aside the order already passed the Taluk Land Board cannot in any way deal with that order because no correction or modification is contemplated by the sub-section. By simply substituting an item in Part D statement appended to the order the Taluk Land Board has modified the order. This the Taluk Land Board has no power to do under the sub-section. Whether the claim made by the 4th respondent in the application under S. 85 (8) of the Act is legally valid, is a matter to be considered and decided in the fresh order that the Taluk Land board has to pass under sub-section (5) or sub-section (7) of S. 85, as the case may be. If the 4th respondent has a valid claim over 1. 64. 150 acres in question, it goes without saying that in the fresh order that the Taluk Land board has to pass in the ceiling case, that extent will have to be exempted or excluded from the lands of the petitioner for the purposes of fixing his celling. In that case, no question of directing the petitioner to surrender an equal extent arises. The Taluk Land Board has failed to notice this aspect of the matter also. e. In the result, the order impugned is set aside and the 2nd respondent Taluk Land Board is directed to pass fresh orders on the application of the 4th respondent in the light of what has been said in this order. The Civil Resvision Petition is allowed as above. There will be no order as to costs. . .