THAMPI GOUNDER Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
Referred Judgements :-
VASANT RAO MANGROO V. ELECTION COMMISSION OF INDIA
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(1.)This revision arises from a proceeding initiated by the Taluk Land Board under sub-s.(9A) of S.85, which was incorporated in the Kerala Land Reforms Act, 1963 (for short 'the Act') by Act 16 of 1989.
(2.)The facts of the case can be summarised thus: The revision petitioner is an excess-land holder who had been directed to surrender 4.26 acres of land by the Taluk Land Board, Chittur as per its order dated 28-4-1976 in the land ceiling case under S.85(5) of the Act. As against the said order the petitioner filed C.R.P.No. 2252 of 1976 under S.103 of the Act before this Court. By order dated 13-3-1977, this court allowed the revision in part and consequently 28 cents was reduced from the excess land directed to be surrendered. Pursuant to the said order, the Taluk Land Board issued revised order dated 6-5-1977 directing the petitioner to surrender 3.98 acres of land which was taken possession of by it thereafter. Subsequently, the case was proposed to be re-opened under S.85(9) of the Act on the ground that exemption towards threshing ground, well etc. had been granted in excess of what is actually allowable. After hearing the petitioner, the Taluk Land Board decided to drop the said proceedings as per order dated 4-5-1981, in view of the decision of .the Division Bench of this court in Chathunny v. Taluk Land Board ( 1981 KLT 74 ). After the introduction of sub-s.(9A) in S.85, the Taluk Land Board took the above case again for review and notice was accordingly issued to the declarant and other interested parties to file objections. The case was posted for hearing on 23-12-1991 and the declarant was represented by an advocate. The declarant has filed counter statement on 13-1-1992. Finally it was adjourned to 20-1-1992 for production of evidence. When the case was taken up for final hearing on 29-1-1992, the counsel for the declarant reported that the declarant had no further evidence to be adduced. The Taluk Land Board finally passed an order on 22-1-1992 directing the petitioner declarant to surrender 0.53 acres of land in R.S.7/2 as additional excess land in his possession. The said order is challenged in this revision petition.
(3.)Learned counsel appearing for the petitioner contended that in view of the Division Bench decision of this court in Chathunny 's case (1981 KLT 74), proceeding initiated under sub-s.(9A) of Section is invalid. The argument is that the order passed under S.85(5) has been merged with the revisional order of the High Court under S.103 of the Act and that thereafter there is no order of the Board in existence which can be reviewed under sub-s.(9A). The Division Bench in the case supra held:
" Whether the power under S.85(9) could be exercised in such cases is the question that arises in all these Original Petitions. That sub-section contemplates exercise of power by the Taluk Land Board to set aside 'its' order under sub-s.(5) or sub-s.(7) necessarily indicating that it has no power to act under such sub-section if order to be set aside is the order of the High Court by reason of merger in an order of revision to the High Court. It is now well settled that whether there be an appeal or revision the original orders merge in such appellate or revisional orders."
I am in complete respectful agreement with the view expressed by the Division Bench. But the situation in the present case is totally different and I do not find my way to apply the principle laid down in that decision to the facts of the case on hand. It should be conveniently noticed here that in view of the very same decision of the Division Bench pronounced on 10th December, 1980, proceedings initiated against the petitioner earlier under S.85(9) by the Taluk Land Board had been specifically dropped.
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