Iype Joseph and Another vs Assistant Collector and Others

T.L. Viswanatha Iyer, J.—An extent of 62.32 acres of land in Sy. Nos. 70/5. 71/2, 72/3 and 53/2A of Muvattupuzha Village has been the subject of litigation, civil and criminal, since 1108 M. E The contest was between Varkey Varkey and Iype Joseph on one side, and Ittiavirah Mathai, on the other Varkey Varkey and Iype Joseph filed a suit in the year 1116 M. E. for recovery of possession of the properly from Ittiavirah Mathai. The High Court of Travancore - Cochin, by decision dated 6-4-1955 in A.S. No. 721 of 1951, passed a decree for possession of the lands subject to payment of value of the improvements effected by the defendant. Varkey Varkey and Ittiavirah Mathai are now dead. Varkey Varkey''s heir is his son Mani Varkey, the second petitioner. Ittiavirah Mathai''s children are Mathai Mathai and Mathai John.

The District Court, Parur adjudged the value of improvements payable to Mathai Mathai and Mathai John as Rs. 86149. 55, by the order dated 16-3-1971 on I. A. No. 1753 of 1968.

The decree holders applied for execution of the decree in the year 1980 by filing E. P. No. 22 of 1980. The judgment debtors objected to the execution. There was dispute between the parties regarding the value of improvements payable. I need not refer to this dispute in detail, it is unnecessary for me purpose of this petition. Suffice it to say, the dispute led to a revision petition C. R. P. No. 314 of 1984 in this court, the judgment in which is reported at page 882 of 1984 Kerala Law Times. The Supreme Court has granted special leave to appeal against this judgment. The Supreme Court also issued an interim direction for delivery of possession of the property to the decree holders on their depositing an amount of Rs. 30000/-, in addition to the amount already deposited by them. The additional amount was deposited and the property was delivered to the decree holders, partly on 17-7-1985 and partly on 10-9-1985.

Varkey Varkey and Iype Joseph had filed statements u/s 85 (2) of the Kerala Land Reforms Act, 1963, (the Act, for short) including their share in the 62.32 acres of land as part of their holdings, and opting to surrender portions thereof for the excess surrenderable area. The Taluk Land Board, Muvattupuzha held that this area could not be treated as part of the holdings of these declarants, in as much a they were not in possession of the land. The Taluk Land Board was of the view that this land formed part of the holdings of Mathai Mathai and Mathai John, who were in possession of the time. Accordingly, the proceedings against Varkey Varkey were dropped as he was not in possession of any excess land. So far as Iype Joseph was concerned, he was directed to surrender 1.74 acres as excess land from out of his other holdings. (Vide paragraphs 1 and 2 of Ext. P1 and paragraph 3 of Ext. P4).

Mathai Mathai and Mathai John had, in their turn, filed statements u/s 85 (2) of the Act. Their cases were disposed of by the Taluk Land Board on 4-9-1975 with direction to Mathai Mathai to surrender 29.43 acres, and to Mathai John, to surrender 22.03.150 acres. In both these cases, the share in the 62.32 acres in question was accounted against the respective declarants. Mathai Mathai and Mathai John filed revision petitions, C. R. P. Nos. 1551 and 1553 of 1975, in this court, which were allowed by judgment dated 24-3-1976. This court held that the possession. of the declarants was not as owner or as tenant, or partly as owner and partly as tenant, or as mortgagees, and therefore this land could not be taken into account in determining the excess land of Mathai Mathai and Mathai John. The orders of the Taluk Land Board were accordingly set aside.

On this decision being rendered, suo Motu proceedings were initiated against Varkey Varkey and Iype Joseph to determine the extent and identity of the land, if any, to be surrendered by them, treating the 62.32 acres as part of their holdings, This area was accounted in moieties against each of them, in the cases S. M. P. Nos 20 and 19/77/MVP respectively, and the Taluk Land Board determined the extent and identity, of the excess land held by each of them. Mathai Mathai and Mathai John felt aggrieved by the inclusion of the 62 32 acres in the holdings of Varkey Varkey and Iype Joseph. They filed Revision Petitions C. R. P. Nos. 80 and 92 of 1978 in this court, challenging the orders of the Taluk Land Board. The revision petitions were disposed of by the common judgment Ext. P1. This court stated that the land in question was not liable to be included in the ceiling cases of Varkey Varkey and Iype Joseph because they had not, at that time taken delivery of the property in execution of the decree in their favour. If subsequently they got possession, by depositing the value of improvements, and executing the decree proceedings u/s 87 could be set in motion against them. If however, the value of improvements was not deposited, and execution of the decree became barred, the Taluk Land Board may take action against Mathai Mathai and Mathai John u/s 87. The orders in S. M. P. Nos. 19 and 20/77 were accordingly set aside with these observations.

The position therefore was:

a) the proceedings arising out of the statements filed by Varkey Varkey and Iype Joseph u/s 85(2) had come to a finale;

b) as per the decision in C. R. P. Nos. 1551 and 1553 of 1975, the orders as against Mathai Mathai and Mathai John treating the lands in question as part of their holdings stood set aside;

c) the subsequent judgment in C R.P. Nos. 80 and 92 of 1978 left the entire matter open for fresh proceedings u/s 87, the identity of the person to be proceeded against being dependent on execution of the decree and delivery of possession there under.

If possession was taken in execution, by the decree holders, the proceedings u/s 87 were to be initiated against them; if not, the proceedings were to be against Mathai Mathai and Mathai John. Such proceedings had not been taken when Ext.P2. was issued.

It appears that soon after taking delivery of the property, the petitioners started cutting and removing the tree growth therein. Mathai John, the defeated party in the suit, brought this to the notice of the Chairman of the Taluk Land Board, the respondent, who issued the order Ext. P2 stating that 48 acres of land in Sy. No. 70/1 had been declared as excess land liable to be surrendered to Government and that the action of the petitioners in cutting the trees therefrom was in violation of Section 122 of the Act. In the event, he restrained the petitioners namely Iype Joseph, and Mani Varkey, the legal heir of Varkey Varkey, from cutting trees in the 48 acres. The petitioners than filed this Original Petition challenging Ext. P2.

While dealing with an interim application C. M.P. No. 26279 of 1985 for stay of operation of the order Ext. P2, this court directed the petitioners to make representation to the respondent against the order Ext. P2, The respondent was directed to consider the representation, if made, and to decide whether Ext. P2 could continue to be in force in the light of the judgment Ext. P1 in C. R. P. Nos. 80 and 92 of 1978. Accordingly, the petitioners made their representation and the respondent passed order affirming the Taluk Land Board''s right to issue the order Ext. P2 u/s 122 of the Act A copy of this order is Ext. P4. The respondent did not accept the petitioners'' contention that there was no proceeding pending before the Taluk Land Board justifying the initiation of proceedings u/s 122. The petitioners challenge Ext. P4 also by an amendment.

Section 122 of the Land Reforms Act reads:

penalty for cutting trees or for removing machinery, etc. - If any person cuts, or causes to be cut trees on any land indicated under sub-section (2) of Section 85, as land to be surrendered or removes or causes to be removed any building, machinery, plant or apparatus constructed, erected or fixed on any such land and used for agricultural purposes, or does or causes to be done any act likely to diminish the utility of any such land, he shall be punishable with imprisonment for a term which may extend to one year or with, fine which may extend to one thousand rupees'' or with both.

The provision is 6ne providing penalty inter alias for cutting trees on lands indicated under sub-section (2) of section 85 as land to be surrendered, the section as such does not provide for any order being passed by the Taluk Land. Board restraining any of the acts contemplated by it.

As a creature of the Act, the Taluk Land Board can exercise only those functions or powers which are conferred on it by the various provisions in the Act. The respondent identifies the power to issue Ext.P2 in section 122. A perusal of the section however, does not disclose any such power of issuing prohibitory orders. It only provides certain penalties in case one or other of the acts mentioned therein are done on land indicated u/s 85 (2) as land to be surrendered. May be the intention was that lands opted to be surrendered should not be wasted pending the ceiling proceedings, but (hat is not to say that the Taluk Land Board can exercise powers which are not conferred on it by the Act. The primary function of the Taluk Land Board is the determination of the ceiling area admissible to various classes of persons and the extent and identity of the land, if any, to be surrendered by them. This function does not require, for its proper exercise, a power to prevent cutting of trees in the properties forming the subject matter of the proceedings Therefore, and in the absence of a specific conferment of such a power u/s 122, the Taluk Land Board, much less its Chairman (the respondent herein), has no power to issue a prohibitory order like Ext.P2.

12 The learned Government Pleader, while admitting that there was no power u/s 122 - to issue an order like Ext. P2, attempted to justify its issue by stating that it was only an information, and a warning, to the petitioners that they were violating section 122 and that they were liable to be proceeded against for such violation. If Ext. P2 had stopped with this information, or warning 1 would not have been inclined to interfere. But Ext. P2 does contain a definite restraint on the petitioners against cutting of trees. The attempt of the learned Government Pleader to interpret Ext. P2 as containing only information or warning cannot be sustained on the terms of Ext. P2.

Assuming that the Talk Land Board does have such a power of issuing prohibitory orders, they can exercise it only during the period when they are in seizing of the case The Talk Land Board does not have any plenary or supervisory jurisdiction to pass orders in cases which are not being dealt with by them. They cease to have jurisdiction to pass any such prohibitory order when once the proceedings initiated by the filing of a statement come to a finale When there are no, pending proceedings, and there is only a right, if at all. to reopen the proceedings or to initiate fresh proceedings, with appropriate notices, the Taluk Land Board cannot exercise any jurisdiction to issue prohibitory orders. This power is, at best only subsidiary to the main function of the Board u/s 85, 85A and 87. I have already held that such a power is not required for the proper exercise of its functions by the Board. Therefore, and if the proceedings have concluded in any manner by dropping the same or, by taking possession of the lands ordered to be surrendered or otherwise, the question of invoking section 122 for issue a prohibitory order will not arise. Otherwise, and even when no such proceedings are pending, the parties will be put to jeopardy of action by the Taluk Land Board. Section 122 has been enacted with the specific purpose of preserving the property against any damage or waste pending the ceiling proceedings. It is not all pervasive, or intended to vest powers in the Taluk Land Board, even in regard to matters which are not before them.

On the facts of this case the proceedings initiated on the statements filed by Varkey Varkey and Iype Joseph bad concluded, when the Taluk Land Board decided that these lands had to be treated as belonging to Mathai Mathai and Mathai John. The proceedings initiated on the ceiling returns of Mathai Mathai and Mathai John also came to a finale by the decision of this court in C.R.P. Nos. 1551 and 1553 of 1975, holding that this property cannot be taken into account in calculating the extend of their holdings. The subsequent proceedings initiated against Varkey Varkey and Iype Joseph have also culminated by the decision of this court in C. R. P. Nos. 80 and 92 of 1978 with liberty to initiate proceedings u/s 87 of the Act at the appropriate time against the appropriate persons. No such proceedings u/s 87 had been taken when Ext. P2 was issued. Therefore, and at the time when Ext.P2 was issued, there were no proceedings at all pending before the Taluk Land Board on the basis of which the Board or its Chairman could act u/s 122 to issue the prohibitory orders. Ext. P2 is therefore without jurisdiction. The order Ext. P4 proceeds as if proceedings are still pending before the Taluk Land Board. In the light of the various proceedings and decisions mentioned earlier, this view is totally against record, and vitiated by apparent errors.

I therefore quash Exts. P2 and P4. The Original Petition is allowed. There will be no order as to costs.