Glen Leven Estate vs State of Kerala and Another

Narayana Kurup, J.—Appellant is the petitioner in O.P. 10162/96. The Original Petition had been filed challenging the legality of Exts.P2, P5 and P7 issued by the second respondent Taluk Land Board. Brief facts necessary for the disposal of the writ appeal are as follows: The appellant had filed a statement under Sec.85(A) of the Kerala Land Reforms Act (for short ''the Act'') showing the total extend of land held by the appellant before the second respondent Land Board. The second respondent by Ext.P1 order dated 30-11-1981 held that the appellant was not in possession of land exceeding the ceiling limit. Thereafter, the second respondent issued Ext.P3 notice dated 14-11-84 on the appellant intimating that the case is reopened and the hearing is posted to 21-11-1984 at 2 p.m. The appellant challenged Ext.P3 notice before this court in C.R.P.No. 103/85 on the ground that Ext.P3 was illegal and void since it had been passed without applying the mandatory requirements under the proviso to Sec.85(9) of the Act which provides for hearing the affected person before setting aside an order. The said C.R.P. was disposed of as per Ext.P4 order dated 19-6-86 directing that the appellant shall be given an opportunity of being heard before the original order is set aside. Accordingly, Ext.P5 fresh notice was issued on 29-8-1986 which was got served on the appellant on 30-8-86. Pursuant to Ext.P5 the appellant filed Ext.P6 objection in which it is pointed out that Ext.P5 notice was issued beyond the time limit prescribed by law. Thereafter the second respondent passed Ext.P7 proceedings dated 17-9-1996 holding that Ext.P5 notice dated 28-8-86 is in continuation of Ext.P3 notice dated 14-11-84. The relevant portion of Ext.P7 is extracted as under:

.....In this case the final order was passed on 30-11-1981. But an order reopening the case was issued on 14-11-84 which is within the time limit. The declarant challenged this order in CRP 103/85. The Hon''ble High Court disposed of the CRP on 19-8-86 with the following observation "I make it clear that the previous order shall be set aside if necessary only after giving the revision petitioner an opportunity to place his points against such a course." The notice issued on 28-8-86 is as per the above direction and it is in continuation of the notice issued on 14-11-84 because the notice issued as per Taluk Land Board No.2/84 dt. 14-11-84 has been referred to therein as reference No.2 and the judgment of the Hon''ble High Court as reference No.3. The notice issued on 28-8-86 is therefore within the time and the details called for on 24-5-1996 is also part of the proceedings.

However, before Ext.P7, Ext.P2 notice dated 24-5-96 was issued by the Chairman, Taluk Land Board, Mananthavady fixing the ceiling case of the appellant for hearing on 18-6-96 and directing the appellant to appear with connected records. Being aggrieved by Exts.P2, P5 and P7, the appellant moved this court with the present writ petition out of which this Writ Appeal arises, for the issuance of a writ of certiorari to quash Exts.P2, P5 and P7 and for other reliefs. A learned single Judge of this court by the judgment impugned in this appeal, dismissed the original petition observing as follows:

In the instant case, it is evident that Ext.P3 notice was issued under Sec.85(9) within three years. Original order was passed by the Taluk Land Board on 30-11-1981 and Ext.P3 notice was issued on 14-11-1984. While disposing of the C.R.P.No. 103/85, this court only recorded the submission of learned Govt. Pleader that the order has not yet been set aside, and it will be done only after giving an opportunity of being heard to the petitioner. Obviously, in consonance with the first proviso to Sec.85(9) this court has not set aside Ext.P3 notice. Subsequently, Taluk Land Board issued Ext.P5 show cause notice. Therefore, it can be concluded that the reopening of the case was within three years.

There is no time limit fixed in the Act to complete the proceedings after reopening the case. In view of the said circumstances, I do not find any illegality in the order passed by the Taluk Land Board evidenced by Ext.P7. It is open to the petitioner to produce whatever materials which he has to establish his case. In the above mentioned circumstances, original petition lacks merits and the same is dismissed.

This appeal is directed against the aforesaid judgment of the learned Single Judge.

Having heard learned counsel on both sides, we are not persuaded to interfere with the judgment appealed against. The crux of the contention advanced by the counsel for the appellant is contained in grounds 2, 3 and 4 of the original petition which is extracted as follows:

Under Sec.85(9) of the Kerala Land Reforms Act and Sec.85(9A) of the Kerala Land Reforms Amendment Act 1989, limitation has been prescribed to set aside an order passed by the 2nd respondent. As per Sec.85(9), the orders passed by the 2nd respondent, shall not set aside after the expiry of 3 years from the date on which the order sought to be set aside has become final. Under Sec.85(9A) the 2nd respondent shall not reopen any case after the expiry of 3 years from the date of coming into force of the Kerala Land Reforms (Amendment) Act, 1989. In this case the 2nd respondent by Ext.P2 notice sought to reopen the proceedings already concluded on 30-11-1981 by Ext.P1 order.

Ext.P2 notice is not sustainable in law under Sec.85(9) and (9A) of the Kerala Land Reforms Act and it was issued without serving a show cause notice and without assigning any reason for re-hearing the case.

It is submitted that by Amendment Act 16 of 89 the limitation of 3 years prescribed in the 2nd proviso to Sec.85(9) was amended as 7 years. However, retrospective effect was not given for the said amendment. Therefore, since Ext.P5 notice is a fresh notice according to the respondents and it is issued prior to the Amendment Act the same is barred by limitation. Even by the said amendment, only within 3 years from the date of commencement of the said Act the final order can be reopened. However, Ext.P2 was also issued after 3 years from the Amendment Act. Therefore Ext.P2 notice also is barred by limitation.

However, the definite case set up by the State is that the proceeding in question having been initiated well within time, it can be completed at any time. Adverting to this aspect the learned single Judge has held that there is no limit fixed in the Act to complete the proceedings after reopening the case. In the instant case the original order of the Taluk Land Board which is sought to be reopened as per Ext.P3 was passed on 30-11-1981. Ext. P3 proceedings under Sec.85(9) of the Act was initiated well within time on 14-11-1984 by issuing notice to the appellant. Challenging Ext.P3 notice the appellant moved this court in C.R.P.No. 103/85 which was disposed of on 19-6-86. Thereafter, the Taluk Land Board issued Ext.P5 notice dated 28-8-86 to the appellant asking him to show cause on or before 11-9-1986 why Ext.P1 order of the Taluk Land Boad dt.30-11-81 should not be set aside. Evidently, Ext.P5 notice was issued in continuation of Ext.P3 notice dated 14-11-84. The issuance of Ext.P5 notice became necessary on account of the filing of C.R.P.No. 103/85 by the appellant before this court and the order of stay passed therein. That apart in Ext.P5 notice dt.28-8-86, reference is made about the earlier notice dt.14-11-84 (Ext.P3) and the judgment in C.R.P.No.103/85. Therefore, it becomes clear that Ext.P5 notice dated 28-8-86 is in continuation of Ext.P3 notice dt. 14-11-84. It is also clear that Ext.P3 notice dt. 14-11-84 was issued under Sec.85(9) of the Act, within the time limit prescribed by the said Act. In the aforesaid view, the judgment of learned single Judge cannot be faulted. It is further submitted by learned counsel for the appellant that the Taluk Land Board being a quasi-judicial authority, the State Land Board is not competent to issue instructions to it to reopen a case. We are unable to accept this contention. In this connection, the provisions of Sec.101(2) of the Act assumes importance. Section 101(2) of the Act confers power of superintendence by the State Land Board over all Taluk Land Boards. While pointing out some of the discrepancies in the order passed by the Taluk Land Board, the State Land Board was only exercising its power of superintendence over the Taluk Land Board envisaged under Sec.101(2) of the Act. We do not find any illegality in the Taluk Land Board initiating proceedings under Sec.85(9) of the Act pursuant to a communication, received from the State Land Board. Thus, on the whole we are satisfied that the authorities acted well within the time by initiating proceedings evidenced by the impugned notices and orders. We do not find any reason to interfere with the judgment appealed against. The Writ Appeal is accordingly dismissed.