IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 9768 of 2000(K)
1. CHEKKUMMA
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.V.V.SURENDRAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :04/03/2009
O R D E R
S. SIRI JAGAN, J.
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O.P.No.9768 OF 2000
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Dated this the 4th day of March, 2009
JUDGMENT
The petitioner is challenging Ext.P3 order passed by the
Taluk Land Board in exercise of their powers under Section 85(9)
of the Kerala Land Reforms Act. The original declarant was one
Ummachutti Umma. In ceiling proceedings initiated against her,
it was found that she was liable to surrender 24.9.500 acres of
land. Revision against that order was dismissed. Subsequently it
was found that out of 24.9.500 acres, only 19.51.500 acres were
available for taking possession, since other lands were in
possession of others. Some persons claiming to be in possession
of the same, filed applications under Section 85(8)of the Act.
That was when proceedings for re-opening of the ceiling case
under Section 85(7) of the Act was pending. While that order
was pending, the original assessee died. At that time the law in
force was laid down in State of Kerala V. Mathu [1987(2) KLT
278] as per which, such proceedings cannot be continued against
the legal heirs of the deceased declarant. Subsequently that
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decision was reversed by the Supreme Court. Thereafter,
proceedings under Section 85(9) was initiated for re-opening
the earlier order closing the proceedings. Ext.P2 notice was
issued to the petitioner to which the petitioner submitted her
reply and by Ext.P3, earlier order closing the proceedings
based on Mathu’s Case (supra) was set aside and the case
was re-opened. The petitioner is challenging that order.
2. According to the petitioner, the Taluk Land Board
could have set aside the order earlier passed only on entering
a finding that the conditions specified in Clause (a) or (b) or
(c) of Section 85(9) is satisfied. According to her, in Ext.P3,
there is no finding regarding any of the three conditions
specified in Section 85(9) and therefore, the order under
Section 85(9) is vitiated.
3. The learned Government Pleader submits that
earlier relying on Mathu’s case the proceedings under Section
85(7) was dropped and the applications under Section 85(8)
were allowed purely on a technical ground which resulted in
the question as to whether the extent of property liable to be
surrendered is correct remaining unconsidered. On Mathu’s
decision having been reversed, those questions revive and
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have be decided afresh after setting aside the order under
Section 85(7) since the Taluk Land Board is satisfied that the
extent of land surrendered by or assumed from late
Ummachutti Amma is less than the extent which she was liable
to surrender under the provisions of the Act .
4. I have considered the rival contentions in detail.
5. At first blush, the contentions of the petitioner
sound attractive. In fact, because of the words ‘the order 1st
cited’ is set aside occurring in Ext.P3, the argument of the
petitioner may appear sound. On a closer reading of Ext.P3, I
find that what has been done is only to re-open the matter
since the earlier proceedings under Section 85(7) was dropped
on technical ground, which were initiated since the Taluk Land
Board was satisfied that the extent of land surrendered or
assumed from Ummachutty Amma was less than the extent of
land she was liable to surrender. That being so, it is clear that
the earlier order under Section 85(7) was set aside to decide
the extent of land to be surrendered or assumed from the legal
heirs of Ummachutty Amma which is perfectly in accordance
with Section 85(9).
In the above circumstances, I am of opinion that the
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Taluk Land Board has to now decide the issue as to the extent
of land to be surrendered or assumed from the legal heirs of
Ummachutty Amma setting aside Ext.P1. Therefore, there is
nothing wrong in Ext.P3 order setting aside Ext.P1.
In the above circumstances, the Taluk Land board shall
now continue proceedings as directed in Ext.P3. The original
petitions is disposed of as above.
S. SIRI JAGAN, JUDGE
Acd
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