State of Kerala vs Varkey Mathu and Others

K.P. Radhakrishna Menon, J.—The State is the revision petitioner. The revision arises from suo motu proceeding initiated by the Taluk Land Board u/s 85 (7) of the K. L. R. Act.

Essential fads lie in a narrow compass. The lands in dispute belonged to one Sri Varkey Mathu. He died in the year 1973. It is the common case of the parties that though deceased Varkey Mathu owned land in excess of the ceiling area, he had not filed the statement either u/s 85(2) or Section 85(3A) before he died. This resulted in the Taluk Land Board initiating suo motu proceeding against the legal representatives who are the respondents in this revision.

The legal representatives contended that the suo motu proceeding initiated against them was not maintainable because such proceedings at best could be initiated only against the deceased, in case it was found that he was holding land in excess of the ceiling area. In other words the proceedings could have legally and validly been initiated only against deceased Varkey Maihu.

The question arising for consideration therefore, is whether the proceeding initiated u/s 85 (7) against the legal representatives of deceased Varkey Mathu, who admittedly had not filed the statement either u/s 85(2) or 85 (3A), is maintainable. The answer depends upon the construction of section 85. (7).

Section 85 (7) reads:-

Where any person fails to file the statement specified under sub-section (2) or sub-section 3(A), the Land Board shall, intimate that fact to the Taluk Land Board and thereupon the Taluk Land Board shall after necessary enquiries, by order, determine the extent and other particulars of the land, the ownership or possession or both of which is or are to be surrendered:

Provided before such determination the Taluk Land Board shall give an opportunity to the persons interested in the land, to be heard.

On a plain reading of this section, it is clear that the proceedings under this section, can be initiated only against a person who failed to file the statement contemplated either u/s 85 (2) or section 85(3A). The person who is bound to file a statement u/s 85(2) is the person who owns or holds land in excess of the ceiling area, on the date notified u/s 83, that is 1-1-1970. So is the case with the statement to be filed u/s 85 (3A). That the person who is bound to file the statement either under sub-section 2 or sub-section 3 (A) of Section 85 is the person who owns or holds, land in excess of the ceiling area, therefore is beyond dispute. The properties owned or held by such a person, on his death, devolves on his legal representatives subject to the said person''s liability to surrender the excess land, determined in terms of the procedural provisions contained in Section 85. A reference in this connection to Section 85(1) is profitable. This Section provides that where a person owns or holds land in excess of the ceiling area on the date notified (i.e. 1-1-1970) u/s 83, he is bound to surrender such excess land. It is by virtue of this provision the said person is bound to file the statement before the Land Board intimating the location, extent and such other particulars as may be prescribed, of all the lands (including lands exempted u/s (81) owned or held by him and indicating the lands proposed to be surrendered within a period of three months from the date notified u/s 83, i.e. 1-1-1970. (vide sub-section (2). Where the person mentioned in sub-section 2, after the final settlement of his claim for resumption of lands held by tenants under him, is found holding land in excess of the ceiling area or where he, after the purchase of the right, title and interest of the land owner and the intermediary by the cultivating tenant in respect of lands owned by him, is found holding land in excess of ceiling area, he is bound to surrender such excess land following the procedure under sub-section (3A). So, it is clear that the person who is bound to submit the statement whether under sub-section 2 or sub-section (3A), is the person mentioned in sub-section (1). This liability to surrender the excess land, as is seen from the scheme of these sections, is a statutory liability fastened on the land owned by the person aforementioned. The lands owned or held by such a person, on his death, devolves on the legal representatives subject to the above statutory liability.

Having understood the position thus, let us consider the question whether the Taluk Land Board can validly initiate proceedings under sec. 85 (7), against the legal representatives of a deceased person in case where no proceedings for surrender of excess land owned or held by the deceased, had been started during his life time Sub-section (6A) throws some light on this aspect. This sub-section provides for the continuation of the proceedings for the determination of excess land, on the death of the person mentioned in sub-section (1), against his legal representatives. That means the proceedings on the death of the person, will not abate. But for this sub-section, it would appear that the proceedings would come to an end. At least there existed a doubt that the proceedings would get abated on the death of the person. The legislature therefore intervened and removed the doubt by enacting this sub-section. I do not wish to extend the discussion any more. Suffice it to say that these sub-sections make it clear that Section 85 as it stands today, does not contain a provision empowering the Taluk Land Board to initiate, for the first time, proceedings to determine the excess land liable to be surrendered by the person mentioned in sub-section 1, against his legal representatives although sub-section (6A) enables the continuation of pending proceedings to which the deceased was a party, against his legal representatives. There is therefore a lacuna in the Act as it stands now. This is a case where the doctrine of ''casus omissus'' squarely applies This doctrine, tells us that, "if the legislature omitted something from the statute, the court may not supply it". The omission can be filled only by the legislature.

It therefore follows that Section 85 does not confer any power on the Land Board to initiate for the first time the proceedings contemplated under sub-section 7 thereof, against the legal representatives.

The learned Government Pleader however, relying on the decision in Celine v. State of Kerala, (1981 K.L.T 668) submits that the Taluk Land Board has the power to imitate proceedings against the legal representatives in respect of the excess land owned or held by the deceased person, on 1-1-1970. He made particular reference to the following passage from the said decision.

The estate of the deceased, declarant would devolve on his legal representatives subject only to the provisions of Chapter III of the Act. The liability to surrender excess land is incurred by the family on 1-1-1970 and the legal representatives of the deceased can inherit the estate of the deceased subject to this liability for surrender of excess land held by the family of which the deceased was a member.

The main question that arose for consideration in that case was whether the proceedings commenced following the procedure prescribed u/s 85 (2) or 85 (3A), can be continued against the legal representatives, on the death of the person mentioned in these sub-sections. The learned Judge held that by virtue of the provisions contained in Chapter III read with Section 85 (6A) such proceedings can be continued against the legal representatives of the deceased. This decision therefore has no application to the facts of the case.

The sole question thus arising for consideration in this case, as already noted, is whether the proceedings initiated u/s 85(7) against the legal representatives of the deceased who undoubtedly was liable to submit a statement either u/s 85(2) or 85 (3A), is sustainable? That the proceedings u/s 85(7) can be initiated only against the person who is liable to submit a return either u/s 85(2) or 85 (3A), is clear from the discussion supra. If that be so, the argument of the learned counsel that the Taluk Land Board has validly initiated the proceedings u/s 85(7), is liable to be rejected. No other question arises for consideration in this C.R.P.

The C.R.P. is without merits. Accordingly the same is dismissed.